Commonwealth Consolidated Acts Commonwealth Consolidated ActsNote: See section 795A.
In this Schedule:
"amending Act" means the Fair Work Amendment Act 2012 .
"doing a thing" includes making an instrument.
"FWA" (short for Fair Work Australia) means the body referred to in section 575, as in force immediately before the commencement of Part 1 of Schedule 9 to the amending Act.
Part 2 -- Default superannuation (Schedule 1)
2 Schedule 1 to the amending Act
(1) Section 149B, subsection 149C(1) and section 149D (as inserted by Schedule 1 to the amending Act) apply in relation to a modern award that:
(a) is made on or after 1 January 2014; or
(b) is made before 1 January 2014 and that is varied on or after that day under Division 4A of Part 2 - 3 (as inserted by Schedule 1 to the amending Act).
(2) Despite the repeal of sections 149A and 155A made by Schedule 1 to the amending Act, those sections continue in force in relation to a modern award that:
(a) is made before 1 January 2014; and
(b) is not varied on or after that day under Division 4A of Part 2 - 3 (as inserted by Schedule 1 to the amending Act).
(3) The amendments made by items 15, 18, 19 and 20 of Schedule 1 to the amending Act apply in relation to a modern award that is in operation on or after 1 January 2014, whether or not the award was made before that day.
2A Transitional provision--when first variations of default fund term take effect
(1) This clause applies to the first 4 yearly review of default fund terms of modern awards under Division 4A of Part 2 - 3 (as inserted by Schedule 1 to the amending Act).
(2) In the review, determinations under that Division (whether made under section 156H or 156J) varying the default fund term of a modern award:
(a) must take effect at the same time; and
(b) must not take effect before 1 January 2015.
2B Transitional provision--modern awards made on or after 1 January 2014
If a modern award is made in the period that starts on 1 January 2014 and ends on 31 December 2017, then, until the default fund term of the award is varied after that period under Division 4A of Part 2 - 3 (as inserted by Schedule 1 to the amending Act), this Act has effect in relation to the award as if subsection 149D(1A) (as inserted by that Schedule) were as follows:
Superannuation funds offering employer MySuper products
(1A) A default fund term of a modern award must permit an employer covered by the award to make contributions, for the benefit of a default fund employee, to a superannuation fund that offers an employer MySuper product that relates to the employer.
Part 3 -- Modern awards (Schedule 3)
3 Part 1 of Schedule 3 to the amending Act
(1) This clause applies if, before the commencement of Part 1 of Schedule 3 to the amending Act (which is about variation etc. of modern awards):
(a) a determination was made under subsection 160(1) (about varying a modern award); or
(b) an application was made under subsection 160(2) (about varying a modern award).
(2) The determination and the application are as valid, and are taken always to have been as valid, as they would have been if paragraphs 160(2)(c) and (d) (as inserted by Part 1 of Schedule 3 to the amending Act) had been in force at the time the determination or application was made.
Part 4 -- Enterprise agreements (Schedule 4)
4 Part 1 of Schedule 4 to the amending Act
The amendment made by Part 1 of Schedule 4 to the amending Act (which is about enterprise agreements covering a single employee) applies in relation to enterprise agreements that are purportedly made after the commencement of that Part.
5 Part 2 of Schedule 4 to the amending Act
The amendments made by Part 2 of Schedule 4 to the amending Act (which is about bargaining representatives) apply in relation to appointments of bargaining representatives that are made after the commencement of that Part.
6 Part 3 of Schedule 4 to the amending Act
(1) The amendment made by Part 3 of Schedule 4 to the amending Act (which is about unlawful terms) applies in relation to enterprise agreements that are made before or after the commencement of that Part.
(2) However, if:
(a) an enterprise agreement that was made before the commencement of that Part included a term referred to in paragraph 194(ba) (as inserted by Part 3 of Schedule 4 to the amending Act); and
(b) a person made an election in accordance with that term before the commencement of that Part;
then the amendment does not apply in relation to that person.
7 Part 4 of Schedule 4 to the amending Act
The amendment made by Part 4 of Schedule 4 to the amending Act (which is about scope orders) applies in relation to applications for a scope order that are made after the commencement of that Part.
8 Part 5 of Schedule 4 to the amending Act
(1) The amendments made by Part 5 of Schedule 4 to the amending Act (which is about notice of employee representational rights) apply in relation to notices of employee representational rights that are given after the commencement of that Part.
(2) Regulations that:
(a) were made for the purposes of subsection 174(6) before the commencement of Part 5 of Schedule 4 to the amending Act; and
(b) were in force immediately before that commencement;
continue in force (and may be dealt with) after that commencement as if they had been made for the purposes of subsection 174(1A) (as inserted by Part 5 of Schedule 4 to the amending Act).
Part 5 -- General protections (Schedule 5)
9 Part 1 of Schedule 5 to the amending Act
The amendment made by Part 1 of Schedule 5 to the amending Act (which is about time limits for making applications) applies in relation to dismissals that take effect after the commencement of that Part.
Part 6 -- Unfair dismissal (Schedule 6)
10 Part 1 of Schedule 6 to the amending Act
The amendment made by Part 1 of Schedule 6 to the amending Act (which is about time limits for making applications) applies in relation to dismissals that take effect after the commencement of that Part.
11 Part 2 of Schedule 6 to the amending Act
The amendments made by Part 2 of Schedule 6 to the amending Act (which is about the power to dismiss applications) apply in relation to dismissals that take effect after the commencement of that Part.
12 Part 3 of Schedule 6 to the amending Act
The amendments made by Part 3 of Schedule 6 to the amending Act (which is about costs orders against parties) apply in relation to dismissals that take effect after the commencement of that Part.
13 Part 4 of Schedule 6 to the amending Act
The amendment made by Part 4 of Schedule 6 to the amending Act (which is about costs orders against lawyers and paid agents) applies in relation to dismissals that take effect after the commencement of that Part.
Part 7 -- Industrial action (Schedule 7)
14 Part 1 of Schedule 7 to the amending Act
The amendments made by Part 1 of Schedule 7 to the amending Act (which is about electronic voting in protected action ballots) apply in relation to applications for protected action ballot orders that are made after the commencement of that Part.
15 Part 2 of Schedule 7 to the amending Act
The amendments made by Part 2 of Schedule 7 to the amending Act (which is about employees to be balloted in protected action ballots) apply in relation to applications for protected action ballot orders that are made after the commencement of that Part.
16 Part 3 of Schedule 7 to the amending Act
The amendments made by Part 3 of Schedule 7 to the amending Act (which is about conducting protected action ballots) apply in relation to protected action ballot orders that are made after the commencement of that Part.
Part 8 -- The Fair Work Commission (Schedule 8)
17 Part 1 of Schedule 8 to the amending Act
The amendment made by Part 1 of Schedule 8 to the amending Act (which is about stay orders) applies in relation to orders under subsection 606(1) that are made after the commencement of that Part.
18 Part 2 of Schedule 8 to the amending Act
The amendments made by Part 2 of Schedule 8 to the amending Act (which is about conflicts of interest) apply in relation to matters that an FWC member begins to deal with before or after the commencement of that Part.
19 Part 4 of Schedule 8 to the amending Act
The amendments made by Part 4 of Schedule 8 to the amending Act (which is about appointing acting Commissioners) apply in relation to appointments that are made after the commencement of that Part.
20 Part 5 of Schedule 8 to the amending Act
The amendments made by Part 5 of Schedule 8 to the amending Act (which is about appointing the General Manager) apply in relation to appointments and acting appointments that are made after the commencement of that Part.
21 Part 6 of Schedule 8 to the amending Act
The amendments made by Part 6 of Schedule 8 to the amending Act (which is about Vice Presidents) apply in relation to appointments that take effect after the commencement of that Part.
22 Part 7 of Schedule 8 to the amending Act
The amendments made by Part 7 of Schedule 8 to the amending Act (which is about handling complaints) apply after the commencement of that Part in relation to a complaint about an FWC Member, regardless of whether:
(a) the complaint is made before or after that commencement; or
(b) the circumstances that give rise to the complaint occur before or after that commencement.
23 Part 8 of Schedule 8 to the amending Act
The amendments made by Part 8 of Schedule 8 to the amending Act (which is about engaging in outside work) apply in relation to paid work that is engaged in after the commencement of that Part.
Part 9 -- Changing the name of Fair Work Australia (Schedule 9)
24 Transitional provision--President
(1) The person holding office as the President of FWA immediately before the commencement of Part 1 of Schedule 9 to the amending Act continues to hold office as the President of the FWC.
(2) If, before that commencement, a thing was done by, or in relation to, the President of FWA, then, for the purposes of the operation of any law on or after that commencement, the thing is taken to have been done by, or in relation to, the President of the FWC.
(3) For the purposes of subclause (2), a thing done before that commencement under a provision amended by Part 1, 2 or 3 of Schedule 9 to the amending Act has effect from that commencement as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done.
(4) The Minister may, by writing, determine that subclause (2):
(a) does not apply in relation to a specified thing done by, or in relation to, the President of FWA; or
(b) applies as if the reference in that subclause to the President of the FWC were a reference to the FWC; or
(c) applies as if the reference in that subclause to the President of the FWC were a reference to another FWC member.
A determination under this subclause has effect accordingly.
(5) A determination made under subclause (4) is not a legislative instrument.
25 Transitional provision--Deputy President
(1) Subject to subclause (2), a person holding office as a Deputy President of FWA immediately before the commencement of Part 1 of Schedule 9 to the amending Act continues to hold office as a Deputy President of the FWC.
(2) If, immediately before that commencement, a person:
(a) is a member of a prescribed State industrial authority; and
(b) holds office as a Deputy President of FWA;
the person continues to hold office as a Deputy President of the FWC for the balance of the person's term of appointment that remains immediately before that commencement.
(3) If, before that commencement, a thing was done by, or in relation to, a Deputy President of FWA, then, for the purposes of the operation of any law on or after that commencement, the thing is taken to have been done by, or in relation to, a Deputy President of the FWC.
(4) For the purposes of subclause (3), a thing done before that commencement under a provision amended by Part 1, 2 or 3 of Schedule 9 to the amending Act has effect from that commencement as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done.
(5) The Minister may, by writing, determine that subclause (3):
(a) does not apply in relation to a specified thing done by, or in relation to, a Deputy President of FWA; or
(b) applies as if the reference in that subclause to the Deputy President of the FWC were a reference to the FWC; or
(c) applies as if the reference in that subclause to the Deputy President of the FWC were a reference to another FWC member.
A determination under this subclause has effect accordingly.
(6) A determination made under subclause (5) is not a legislative instrument.
26 Transitional provision--Commissioner
(1) Subject to subclause (2), a person holding office as a Commissioner of FWA immediately before the commencement of Part 1 of Schedule 9 to the amending Act continues to hold office as a Commissioner of the FWC.
(2) If, immediately before that commencement, a person:
(a) is a member of a prescribed State industrial authority; and
(b) holds office as a Commissioner of FWA;
the person continues to hold office as a Commissioner of the FWC for the balance of the person's term of appointment that remains immediately before that commencement.
(3) If, before that commencement, a thing was done by, or in relation to, a Commissioner of FWA, then, for the purposes of the operation of any law on or after that commencement, the thing is taken to have been done by, or in relation to, a Commissioner of the FWC.
(4) For the purposes of subclause (3), a thing done before that commencement under a provision amended by Part 1, 2 or 3 of Schedule 9 to the amending Act has effect from that commencement as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done.
(5) The Minister may, by writing, determine that subclause (3):
(a) does not apply in relation to a specified thing done by, or in relation to, a Commissioner of FWA; or
(b) applies as if the reference in that subclause to a Commissioner of the FWC were a reference to the FWC; or
(c) applies as if the reference in that subclause to a Commissioner of the FWC were a reference to another FWC member.
A determination under this subclause has effect accordingly.
(6) A determination made under subclause (5) is not a legislative instrument.
27 Transitional provision--Minimum Wage Panel Member
(1) A person holding office as a Minimum Wage Panel Member of FWA immediately before the commencement of Part 1 of Schedule 9 to the amending Act continues to hold office:
(a) as a Minimum Wage Panel Member of the FWC; and
(b) for the balance of the person's term of appointment that remains immediately before that commencement.
(2) If, before that commencement, a thing was done by, or in relation to, a Minimum Wage Panel Member of FWA, then, for the purposes of the operation of any law on or after that commencement, the thing is taken to have been done by, or in relation to, a Minimum Wage Panel Member of the FWC.
(3) For the purposes of subclause (2), a thing done before that commencement under a provision amended by Part 1, 2 or 3 of Schedule 9 to the amending Act has effect from that commencement as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done.
(4) The Minister may, by writing, determine that subclause (2):
(a) does not apply in relation to a specified thing done by, or in relation to, a Minimum Wage Panel Member of FWA; or
(b) applies as if the reference in that subclause to a Minimum Wage Panel Member of the FWC were a reference to the FWC; or
(c) applies as if the reference in that subclause to a Minimum Wage Panel Member of the FWC were a reference to another FWC member.
A determination under this subclause has effect accordingly.
(5) A determination made under subclause (4) is not a legislative instrument.
28 Operation of laws--things done by, or in relation to, FWA
(1) If, before the commencement of Part 1 of Schedule 9 to the amending Act, a thing was done by, or in relation to, FWA, then, for the purposes of the operation of any law on or after that commencement, the thing is taken to have been done by, or in relation to, the FWC.
(2) For the purposes of subclause (1), a thing done before that commencement under a provision amended by Part 1, 2 or 3 of Schedule 9 to the amending Act has effect from that commencement as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done.
(3) The Minister may, by writing, determine that subclause (1):
(a) does not apply in relation to a specified thing done by, or in relation to, FWA; or
(b) applies as if the reference in that subclause to the FWC were a reference to the President of the FWC; or
(c) applies as if the reference in that subclause to the FWC were a reference to another FWC member.
A determination under this subclause has effect accordingly.
(4) A determination made under subclause (3) is not a legislative instrument.
29 Transitional provision--General Manager and staff of FWA
(1) The person holding office as the General Manager of FWA immediately before the commencement of Part 1 of Schedule 9 to the amending Act continues to hold office:
(a) as the General Manager of the FWC; and
(b) for the balance of the person's term of appointment that remains immediately before that commencement.
(2) If, before that commencement, a thing was done by, or in relation to, the General Manager of FWA, then, for the purposes of the operation of any law on or after that commencement, the thing is taken to have been done by, or in relation to, the General Manager of the FWC.
(3) For the purposes of subclause (2), a thing done before that commencement under a provision amended by Part 1, 2 or 3 of Schedule 9 to the amending Act has effect from that commencement as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done.
(4) The Minister may, by writing, determine that subclause (2):
(a) does not apply in relation to a specified thing done by, or in relation to, the General Manager of FWA; or
(b) applies as if the reference in that subclause to the General Manager of the FWC were a reference to the Commonwealth.
A determination under this subclause has effect accordingly.
(5) A determination made under subclause (4) is not a legislative instrument.
Staff
(6) A person who, immediately before that commencement, was a member of the staff of FWA, continues, on and after that commencement, as a member of the staff of the FWC.
30 Operation of section 7 and subsection 25B(1) of the Acts Interpretation Act 1901 not limited
This Part and Schedule 9 to the amending Act do not limit the operation of section 7 or subsection 25B(1) of the Acts Interpretation Act 1901 .
Part 10 -- Other amendments (Schedule 10)
31 Part 1 of Schedule 10 to the amending Act
The amendment made by Part 1 of Schedule 10 to the amending Act (which is about costs orders in court proceedings) applies in relation to proceedings commenced after the commencement of that Part.
32 Regulations about application, transitional and saving matters
(1) The regulations may prescribe matters of an application, transitional or saving nature relating to the amendments and repeals made by the amending Act.
(2) Without limiting subclause (1), the regulations may:
(a) provide that Part 9 of this Schedule or Part 4 of Schedule 9 to the amending Act applies with specified modifications; or
(b) provide that the Transitional Act applies with specified modifications.
(3) The provisions referred to in subclause (2) have effect subject to regulations made for the purposes of this clause.
(4) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to:
(a) regulations relating to the amendments and repeals made by Schedule 9 to the amending Act; and
(b) regulations made for the purposes of subclause (2).