Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 768BA

Orders that the FWC may make

  (1)   The FWC may make the following orders:

  (a)   an order that a copied State instrument for a transferring employee that would, or would be likely to, cover the transferring employee and the new employer because of subsection   768AN(1) does not, or will not, cover the transferring employee and the new employer;

  (b)   an order that an enterprise agreement or named employer award that covers the new employer at the transferring employee's re - employment time covers, or will cover, the transferring employee.

Who may apply for an order

  (2)   The FWC may make an order under subsection   (1):

  (a)   on its own initiative; or

  (b)   on application by any of the following:

  (i)   a transferring employee or an employee who is likely to be a transferring employee;

  (ii)   the new employer or a person who is likely to be the new employer;

  (iii)   an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph   (i);

  (iv)   if the application relates to an enterprise agreement--an employee organisation that is, or is likely to be, covered by the agreement.

Matters that the FWC must take into account

  (3)   In deciding whether to make an order under subsection   (1), the FWC must take into account the following:

  (a)   the views of:

  (i)   the employees who would be affected by the order; and

  (ii)   the new employer or a person who is likely to be the new employer;

  (b)   whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

  (c)   if the order relates to a copied State employment agreement or an enterprise agreement--the nominal expiry date of the agreement;

  (d)   whether the copied State instrument would have a negative impact on the productivity of the new employer's workplace;

  (e)   whether the new employer would incur significant economic disadvantage as a result of the copied State instrument covering the new employer;

  (f)   the degree of business synergy between the copied State instrument and any workplace instrument that already covers the new employer;

  (g)   the public interest.

Restriction on when order may come into operation

  (4)   An order under subsection   (1) must not come into operation in relation to a particular transferring employee before the later of the following:

  (a)   the transferring employee's re - employment time;

  (b)   the day on which the order is made.