FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) ACT 2009 - SCHEDULE 3 Continued existence of awards, workplace agreements and certain other WR Act instruments

(1) Each WR Act instrument (see subitem (2)) that becomes a transitional instrument (see subitems (3) to (4A)) continues in existence in accordance with this Schedule from when it becomes a transitional instrument, despite the WR Act repeal.

Note: In addition to provisions of this Schedule, the following other provisions affect the continued existence of transitional instruments:

(a) Part 2 of Schedule 5 (which deals with the WR Act award modernisation process);

(b) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process);

(c) Schedule 8 (which deals with workplace agreements and workplace determinations made under the WR Act, including the making of ITEAs during the bridging period);

(e) Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).

Note 2: Preserved State agreements are either preserved collective State agreements or preserved individual State agreements.

Note 3: For transitional provisions relating to Division 2 of Part 7 of the WR Act (which deals with wages), see Schedule 9.

Note 4: For transitional provisions relating to other transitional awards, see Schedule 20.

(3) The following WR Act instruments become transitional instruments on the WR Act repeal day:

(a) each WR Act instrument (other than a Division 2B State reference transitional award) that was in operation immediately before the WR Act repeal day;

(b) each workplace agreement or workplace determination made before the WR Act repeal day but that had not yet come into operation by that day;

(c) any other WR Act instrument that, although not in operation immediately before the WR Act repeal day, could come into operation after that day because of an instrument interaction rule.

Note: Victorian employment agreements are not continued as transitional instruments. For provisions relating to these agreements, see Part 7 of this Schedule.

(3A) If a State reference common rule comes into effect on or after the WR Act repeal day under the provisions that continue to apply because of item 8A, the State reference common rule becomes a transitional instrument when the common rule comes into effect.

(4) If an ITEA is made during the bridging period under Division 7 of Part 2 of Schedule 8, the ITEA becomes a transitional instrument when it is made.

(4A) A Division 2B State reference transitional award becomes a transitional instrument on the Division 2B referral commencement. The Division 2B referral commencement is the time when Division 2B of Part 1 - 3 of the FW Act commences.

(a) awards, State reference transitional awards or common rules, and notional agreements preserving State awards, are award - based transitional instruments ;

(b) all other kinds of transitional instruments are agreement - based transitional instruments ;

(c) agreement - based transitional instruments of the following kinds are collective agreement - based transitional instruments :

(d) agreement - based transitional instruments of the following kinds are individual agreement - based transitional instruments :

2A Meaning of State reference transitional award and various other expressions associated with State references

(a) if the employers and employees covered are Division 2A State reference employers and Division 2A State reference employees--the State reference transitional award is a Division 2A State reference transitional award ;

(b) if the employers and employees covered are Division 2B State reference employers and Division 2B State reference employees--the State reference transitional award is a Division 2B State reference transitional award .

(3) A State reference employee is an employee who is a national system employee only because of section 30C or 30M of the FW Act.

(a) employees who are national system employees because of section 30C of the FW Act are Division 2A State reference employees ;

(b) employees who are national system employees because of section 30M of the FW Act are Division 2B State reference employees .

(4) A State reference employer is an employer that is a national system employer only because of section 30D or 30N of the FW Act.

(a) employers that are national system employers because of section 30D of the FW Act are Division 2A State reference employers ;

(b) employers that are national system employers because of section 30N of the FW Act are Division 2B State reference employers .

(a) a transitional award (the current award ), as in force on the WR Act repeal day, covers one or more Division 2A State reference employers, and Division 2A State reference employees of those employers; and

then, for the purposes of this Act, the current award is taken instead, on and after that day (subject to subitem (6)), to constitute 2 separate transitional awards as follows:

(i) the employers, and the employees of those employers, referred to in paragraph (a); and

(ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a)--that organisation in relation to those employers or employees; and

(i) the employers, and the employees of those employers, referred to in paragraph (b); and

(ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b)--that organisation in relation to those employers or employees.

(a) a transitional award (the current award ), as in force on the Division 2B referral commencement, covers one or more Division 2B State reference employers, and Division 2B State reference employees of those employers; and

then, for the purposes of this Act, the current award is taken instead, on and after the Division 2B referral commencement, to constitute 2 separate transitional awards as follows:

(i) the employers, and the employees of those employers, referred to in paragraph (a); and

(ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a)--that organisation in relation to those employers or employees;

(i) the employers, and the employees of those employers, referred to in paragraph (b); and

(ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b)--that organisation in relation to those employers or employees.

(a) a State (a Division 2A referring State ) that is a referring State as defined in section 30B of the FW Act; or

(b) a State (a Division 2B referring State ) that is a referring State as defined in section 30L of the FW Act.

3 The employees, employers etc. who are covered by a transitional instrument and to whom it applies

(1) A transitional instrument covers the same employees, employers and any other persons that it would have covered (however described in the instrument or WR Act) if the WR Act had continued in operation.

Note 1: The expression covers is used to indicate the range of employees, employers etc. to whom the instrument potentially applies (see subitem (2)). The employees, employers etc. who are within this range will depend on terms of the instrument, and on any relevant provisions of the WR Act.

Note 2: Depending on the terms of a transitional instrument and any relevant provisions of the WR Act, the instrument's coverage may extend to people who become employees after the instrument becomes a transitional instrument.

(2) A transitional instrument applies to the same employees, employers and any other persons the instrument covers as would, if the WR Act had continued in operation, have been:

Note: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of a transitional instrument.

(3) However, an award - based transitional instrument does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act).

Note: Item 35 deals with the application of section 329 of the FW Act to award - based transitional instruments.

(b) the variation or termination of transitional instruments as referred to in item 9;

(c) Division 2 of Part 5 (which deals with interaction between transitional instruments and FW Act modern awards, workplace determinations and enterprise agreements); and

(e) Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).

4 Transitional instruments continue to be subject to the same instrument content rules

(1) The same instrument content rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.

Note: Certain instrument content rules relating to the standing down of employees do not continue to apply in relation to WR Act instruments that become transitional instruments (see item 3 of Schedule 15).

(2) Instrument content rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, of any of the following kinds:

(b) provisions to the effect that a particular term of an instrument is of no effect (however described):

5 Transitional instruments continue to be subject to the same instrument interaction rules

(1) The same instrument interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.

(2) Instrument interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:

5A Transitional instruments continue to be subject to the same State and Territory interaction rules

(1) The same State and Territory interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.

(2) State and Territory interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:

6 References in transitional instruments to the Australian Industrial Relations Commission etc.

(1) If a provision of a transitional instrument confers a power or function on the Australian Industrial Relations Commission, that provision has effect on and after the WR Act repeal day as if references in it to the Commission were instead references to the FWC.

(2) If a provision of a transitional instrument confers a power or function on the Industrial Registrar or a Deputy Industrial Registrar, that provision has effect on and after the WR Act repeal day as if references in it to the Industrial Registrar or a Deputy Industrial Registrar were instead references to the General Manager of the FWC.

7 No loss of accrued rights or liabilities when transitional instrument terminates or ceases to apply

(1) If a transitional instrument terminates, or ceases to apply in relation to a person, that does not affect:

(a) any right or liability that a person acquired, accrued or incurred before the transitional instrument terminated or ceased to apply; or

(b) any investigation, legal proceeding or remedy in respect of any such right or liability.

(2) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the transitional instrument had not terminated or ceased to apply.

(3) This item has effect subject to a contrary intention in this Act or in the FW Act.

(1) To the extent of any inconsistency, the following transitional instruments displace prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations:

Commonwealth law means an Act or any regulations or other instrument made under an Act.

(3) If, immediately before the WR Act repeal day, regulations made under section 350 of the WR Act, or that continued to apply under subclause 2(2) or 17(2) of Schedule 7 to the WR Act:

(a) identified a condition as a prescribed condition in relation to an instrument referred to in paragraph (1)(a), (b), (c) or (d); or

(b) prescribed an Act or any regulations or other instrument made under an Act as a Commonwealth law in relation to such an instrument;

those regulations continue to have effect on and after that day as if made for the purposes of this item.

(4) Subitem (3) has effect subject to any regulations made for the purposes of subitem (1) or (2).

(1) Subject to this item, clauses 82 to 87 of Schedule 6 to the WR Act continue to apply on and after the WR Act repeal day in relation to State reference common rules.

(a) references in the clauses to the transitional period (including references to the end of the transitional period) were omitted; and

(b) a reference in the clauses to the Commission were instead a reference to the FWC; and

(d) a reference in the clauses to the Rules of the Commission were instead a reference to the procedural rules of the FWC.

(3) Subitem (2) has effect unless the context otherwise requires and subject to the regulations.

Note: For example, paragraph (2)(a) does not apply if the reference is to something that the Commission did before the WR Act repeal day (or before the reform commencement).

9 Transitional instruments can only be varied or terminated in limited circumstances

(b) item 26 (which deals with resolving difficulties with the interaction between transitional instruments and the National Employment Standards); or

(d) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process); or

(e) Schedule 8 (which deals with workplace agreements and workplace determinations made under the WR Act); or

(g) Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).

(2) A transitional instrument cannot be terminated (or otherwise brought to an end) except under:

Note: The references in paragraphs (1)(a) and (2)(a) to a provision of this Part or the regulations includes a reference to a provision of the WR Act or the FW Act as it applies because of a provision of this Part.

(1) On application by a person covered by a transitional instrument, the FWC may make a determination varying the instrument:

(b) to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or

(c) to remove terms that are inconsistent with Part 3 - 1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part.

Note: For variation of a transitional instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 26.

(2) A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.

(1) This item applies if a transitional instrument is referred to the FWC under section 46PW of the Australian Human Rights Commission Act 1986 (which deals with discriminatory industrial instruments).

(2) If the instrument is an award - based transitional instrument, section 161 of the FW Act applies in relation to the referral of the instrument as if the instrument were a modern award.

(3) If the transitional instrument is an agreement - based transitional instrument, section 218 of the FW Act applies in relation to the referral of the instrument as if the instrument were an enterprise agreement.

12 Awards: continued application of WR Act provisions about variation and revocation

(1) Subject to this item, Divisions 5 (other than subsections 554(1) to (4)) and 6 of Part 10 of the WR Act continue to apply on and after the WR Act repeal day in relation to transitional instruments that are awards as if references to the Commission were instead references to the FWC.

(2) The FWC must perform its powers and functions under Divisions 5 and 6 in a way that furthers the objects of Part 10 of the WR Act.

(3) An award cannot be varied or revoked under Division 5 or 6 after the end of the bridging period, except as follows:

(a) an award can be varied after the end of the bridging period under section 553 of the WR Act;

(b) an award can be varied or revoked after the end of the bridging period as a result of the FWC continuing to deal with a matter that it was dealing with before the end of the bridging period.

(1) Subject to this item, Divisions 5 (other than subsections 554(1) to (4)) and 6 of Part 10 of the WR Act apply on and after the WR Act repeal day in relation to transitional instruments that are State reference transitional awards as if:

(b) references to an award included references to a State reference transitional award.

Note 1: Items 10 and 11 apply instead of subsections 554(1) to (4) of the WR Act.

Note 2: For variation of State reference common rules, see the provisions continued in effect by item 8A.

(2) To avoid doubt, for the purpose of sections 552 and 553 of the WR Act, as applied by subitem (1) in relation to State reference transitional awards, "minimum safety net entitlements" includes minimum safety net entitlements relating to wages.

Note: For variation of terms relating to wages after the end of the bridging period, see subitems (4) to (6).

(3) The FWC must perform its powers and functions under Divisions 5 and 6 in a way that furthers the objects of Part 10 of the WR Act.

Special provisions about variation or revocation after the end of the bridging period

(4) A State reference transitional award cannot be varied or revoked after the end of the bridging period except as follows:

(a) a State reference transitional award, other than terms relating to wages, can be varied after the end of the bridging period under section 553 of the WR Act;

(b) terms of a State reference transitional award relating to wages can be varied after the end of the bridging period in an annual wage review under the FW Act as provided for in subitem (5);

(c) a State reference transitional award can be varied after the end of the bridging period as a result of the FWC continuing to deal with a matter that it was dealing with before the end of the bridging period.

(5) In an annual wage review, the FWC may make a determination varying terms of a State reference transitional award relating to wages.

(6) For the purpose of subitem (5), Division 3 of Part 2 - 6 of the FW Act (other than section 292) applies to terms of a State reference transitional award relating to wages in the same way as it applies to a modern award.

13 Pre - reform certified agreements: continued application of WR Act provisions about variation

(1) Subject to this item, clause 2A of Schedule 7 to the WR Act continues to apply on and after the WR Act repeal day in relation to transitional instruments that are pre - reform certified agreements as if references to the Commission were instead references to FWA.

Note: This subitem has effect subject to Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).

(2) An application under clause 2A cannot be made after the end of the bridging period.

14 Preserved collective State agreements: continued application of WR Act provisions about variation

(1) Subject to this item, clause 16A of Schedule 8 to the WR Act continues to apply on and after the WR Act repeal day in relation to transitional instruments that are preserved State agreements as if references to the Commission were instead references to FWA.

Note: This subitem has effect subject to Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).

(2) An application under clause 16A cannot be made after the end of the bridging period.

15 Collective agreement - based transitional instruments: termination by agreement

Subdivision C of Division 7 of Part 2 - 4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective agreement - based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement - based transitional instrument.

16 Collective agreement - based transitional instruments: termination by the FWC

(1) Subdivision D of Division 7 of Part 2 - 4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement - based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement - based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement's nominal expiry date is taken to be the end of the period of the agreement.

(3) To avoid doubt, subsection 615A(3) of the FW Act does not apply in relation to a collective agreement - based transitional instrument.

17 Individual agreement - based transitional instruments: termination by agreement

(1) The employee and employer covered by an individual agreement - based transitional instrument may make a written agreement (a termination agreement ) to terminate the agreement in accordance with the following requirements:

(b) if the employee is under 18, it must also be signed by a parent or guardian of the employee;

(3) The employer or employee may apply to the FWC for approval of the termination agreement. The application must be made:

(b) if in all the circumstances the FWC considers it fair to extend that period--within such further period as the FWC allows.

(4) If an application for the FWC to approve the termination agreement is made under subitem (3), the FWC must approve the termination of the instrument if:

(a) the FWC is satisfied that the requirements of subitem (1) have been complied with; and

(b) the FWC is satisfied that there are no other reasonable grounds for believing that the employee has not agreed to the termination.

(5) If the termination is approved under subitem (4), the termination operates from the day specified in the decision to approve the termination.

18 Individual agreement - based transitional instruments: termination conditional on enterprise agreement

(1) This item provides for the making of an instrument (a conditional termination ) that will have the effect of terminating an individual agreement - based transitional instrument if:

(a) an enterprise agreement (the proposed enterprise agreement ) is made that covers the employee and the employer; and

(2) If the transitional instrument has not passed its nominal expiry date, the conditional termination must be a written agreement signed by the employer and the employee. The signatures must be witnessed.

(3) If the transitional instrument has passed its nominal expiry date, the conditional termination must be in writing and signed either by the employee or the employer. The signature must be witnessed.

(4) If the conditional termination is signed by the employee, and the employee is under 18, it must also be signed by a parent or guardian of the employee.

(5) Any other requirements of the regulations relating to the form, content or making of the conditional termination must also be complied with.

(6) The employer must give the employee a copy of the conditional termination if:

(a) the conditional termination is an agreement signed by the employee and the employer in the circumstances covered by subitem (2); or

(b) the conditional termination is signed by the employer in the circumstances covered by subitem (3).

Note 2: Failure to comply with this obligation does not affect the operation of subitem (8).

(7) The conditional termination must accompany any application to the FWC for approval of the proposed enterprise agreement under section 185 of the FW Act.

Note 2: Failure to comply with this obligation does not affect the operation of subitem (8), or the validity of an approval by the FWC of the proposed enterprise agreement.

(8) If the requirements of subitems (2) to (5) have been complied with in relation to the conditional termination, the transitional instrument terminates when the proposed enterprise agreement comes into operation.

19 Individual agreement - based transitional instruments: unilateral termination with the FWC's approval

(a) to whom an individual agreement - based transitional instrument that has passed its nominal expiry date applies; and

(a) make a written declaration that identifies the transitional instrument and that states that the employer or employee wants to terminate the transitional instrument; and

(3) The employer or employee cannot make an application as mentioned in paragraph (2)(b) unless, at least 14 days before the day on which the application is made, the employer or employee gives the other of them a notice complying with the following requirements:

(b) the notice must state that the employer or employee intends to apply to the FWC for approval of the termination of the instrument;

(c) the notice must state that, if the FWC approves the termination, the transitional instrument will terminate on the 90th day after the day on which the FWC makes the approval decision;

(i) the notice must state whether, if the instrument terminates during the bridging period, one or more redundancy provisions in the instrument will continue to apply to the employee as provided for by item 38; and

(ii) if one or more redundancy provisions in the instrument will so continue to apply to the employee--the notice must include or be accompanied by a copy of the provision or provisions;

(5) If the FWC approves the termination, the transitional instrument terminates on the 90th day after the day on which the FWC makes the approval decision.

(1) A notional agreement preserving State awards (other than a notional agreement that is an enterprise instrument) terminates:

(a) on the 4th anniversary of the FW (safety net provisions) commencement day; or

(2) If the employer in relation to a Division 3 pre - reform certified agreement is not a national system employer, the agreement terminates on the earlier of the following:

(ii) it has been replaced by a State employment agreement (within the meaning of the WR Act).

(3) However, if the employer becomes a national system employer before 27 March 2011, subitem (2) does not apply after that time.

(4) If the employer in relation to an old IR agreement is not a national system employer, the agreement terminates on the earlier of the following:

(b) when it has been replaced by a State employment agreement (within the meaning of the WR Act).

(5) However, if the employer becomes a national system employer before 27 March 2011, subitem (4) does not apply after that time.

(a) the employer in relation to a section 170MX award is not a national system employer; and

(ii) was made on or after that day because of Part 8 of Schedule 7 to the WR Act;

(d) when it has been replaced by a State employment agreement (within the meaning of the WR Act).

(7) However, if the employer becomes a national system employer before 27 March 2011, subitem (6) does not apply after that time.

20A Automatic sunsetting of all remaining agreement - based transitional instruments

(1) An agreement - based transitional instrument terminates at the end of the grace period for the instrument if the instrument has not already terminated before that time.

(2) The grace period for an agreement - based transitional instrument is:

(a) subject to paragraph (b), the period of 12 months (the default period ) beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences; or

(b) if the default period is extended for the instrument on one or more occasions under subitem (6) or paragraph (11)(e)--the default period as so extended.

(3) An employer covered by an agreement - based transitional instrument must, before the end of 6 months beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences, give each employee who is covered by the instrument and employed by the employer at the end of that period written notice advising the employee:

(a) that the employee is covered by an agreement - based transitional instrument; and

(b) that the instrument will terminate unless an application is made to the FWC under subitem (4), before the end of the period of 12 months beginning on the day that Part commences, for the FWC to extend the default period for the instrument; and

Note: For compliance with this obligation, see item 4C of Schedule 16.

(4) Any of the following may apply to the FWC, before the end of the grace period for an agreement - based transitional instrument, for the FWC to extend the default period for the instrument for a period of no more than 4 years:

(a) an employer covered by the instrument;

(b) an employee covered by the instrument;

(c) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the instrument.

(5) An application under subitem (4) must be accompanied by:

(b) any declarations that are required by the procedural rules of the FWC to accompany the application.

(6) If an application is made under subitem (4), the FWC must extend the default period for the agreement - based transitional instrument for a period of no more than 4 years if the FWC is satisfied that:

(a) subitem (7), (8) or (9) applies and it is otherwise appropriate in the circumstances to do so; or

(b) it is reasonable in the circumstances to do so.

(a) the application is made at or after the notification time for a proposed enterprise agreement; and

(b) the proposed enterprise agreement will cover:

(i) if the application relates to an individual agreement - based transitional instrument--the employee covered by the individual agreement - based transitional instrument; or

(ii) if the application relates to a collective agreement - based transitional instrument--the same, or substantially the same, group of employees as the collective agreement - based transitional instrument; and

(a) the application relates to an individual agreement - based transitional instrument; and

(b) the employee covered by the instrument would be an award covered employee for the instrument under subitem (10) if the instrument were a collective agreement - based transitional instrument; and

(c) it is likely that, as at the time the application is made, the employee would be better off overall if the instrument applied to the employee than if the relevant modern award referred to in that subitem applied to the employee.

(a) the application relates to a collective agreement - based transitional instrument; and

(b) it is likely that, as at the time the application is made, the award covered employees for the instrument under subitem (10), viewed as a group, would be better off overall if the instrument applied to the employees than if the relevant modern award or awards referred to in that subitem applied to the employees.

(10) For the purposes of subitems (8) and (9), the award covered employees for a collective agreement - based transitional instrument are the employees who:

(a) are covered by the instrument; and

(b) at the time an application is made under subitem (4) in relation to the instrument, are covered by one or more modern awards (the relevant modern awards ) that:

(ii) cover the employees in relation to the work that the employees are to perform under the instrument; and

(c) are employed at that time by an employer who is covered by the instrument and by one or more of the relevant modern awards.

(10A) The FWC must publish the following, on its website or by any other means that the FWC considers appropriate:

(b) any written reasons that the FWC gives in relation to such a decision;

(c) if the decision is to extend the default period for a collective agreement - based transitional instrument--the instrument.

(10B) Paragraph (10A)(b) applies subject to any order made under section 594 of the FW Act.

(10C) The FWC must not publish an individual agreement - based transitional instrument in relation to which an application under subitem (4) is made.

(a) an application is made under subitem (4) in relation to an agreement - based transitional instrument; and

(b) the FWC has not made a decision on the application at a time (the critical time ) that is immediately before what would (apart from this subitem) be the end of the grace period for the instrument;

(d) the decision on the application is taken to have been made at the critical time; and

(e) if the FWC's decision on the application is to refuse to extend the default period for the instrument under subitem (6)--the FWC must extend the default period until the end of:

(i) subject to subparagraph (ii), the day the refusal decision is made; or

(ii) if the refusal decision specifies a later day that is not more than 14 days after the day the refusal decision is made--that later day.

If a transitional instrument terminates, it ceases to cover (and can never again cover) any employees, employers or other persons.

(1) Subject to this item, the same AFPCS interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.

Note 1: Schedule 4 provides for the continued application of the Australian Fair Pay and Conditions Standard (other than minimum wages provisions) during the bridging period.

Note 2: Schedule 9 provides for the continued application of the minimum wages provisions of the Australian Fair Pay and Conditions Standard on and after the WR Act repeal day.

(2) AFPCS interaction rules of the kind referred to in paragraph (4)(b) do not continue to apply after the end of the bridging period.

Note: This may result in an employee becoming entitled to a rate of pay under a transitional APCS that is higher than was required to be paid to the employee under a transitional instrument during the bridging period. If that occurs, the employer may apply to the FWC for a determination to phase - in the effect of the increase (see item 14 of Schedule 9).

(3) If, immediately before the end of the bridging period, an AFPCS interaction rule of the kind referred to in paragraph (4)(b) produced the result that an employee to whom a transitional instrument applied was not covered by the obligation in subsection 182(1) or (2) of the WR Act in relation to a transitional APCS, the employee becomes covered by that obligation in relation to that transitional APCS from the end of the bridging period.

(4) AFPCS interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:

(a) the Australian Fair Pay and Conditions Standard prevails over an instrument (or an instrument is of no effect because of the Standard) either completely or to a particular extent; or

(b) an instrument prevails over the Australian Fair Pay and Conditions Standard (or the Standard does not apply because of the instrument) either completely or to a particular extent.

(1) To the extent that a term of a transitional instrument is detrimental to an employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards, the term of the transitional instrument is of no effect.

Note 1: A term of a transitional instrument that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the National Employment Standards will continue to have effect.

Note 2: Division 3 (which contains other general provisions about how the FW Act applies in relation to transitional instruments) is also relevant to how the National Employment Standards apply in relation to employees to whom transitional instruments apply.

Note 3: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).

(1A) If there is a dispute about the application of this item which must be resolved by the FWC in accordance with item 26, the FWC may compare the entitlements which are in dispute:

(b) on a 'like - by - like' basis, comparing entitlements according to particular subject areas; or

(2) Subitem (1) does not affect a term of a transitional instrument that is permitted by a provision of the National Employment Standards as it has effect under item 24.

(3) The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a transitional instrument are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards.

24 Provisions of the NES that allow instruments to contain particular kinds of terms

(1) The following provisions of the National Employment Standards have effect, on and after the FW (safety net provisions) commencement day, as if a reference to a modern award or an enterprise agreement included a reference to a transitional instrument:

(b) section 93 (which allows terms dealing with cashing out and taking paid annual leave);

(d) subsection 107(5) (which allows terms dealing with evidence requirements for paid personal/carer's leave etc.);

(e) subsection 115(3) (which allows terms dealing with substitution of public holidays);

(f) section 118 (which allows terms dealing with an employee giving notice to terminate his or her employment);

(g) subsections 121(2) and (3) (which allow terms specifying situations in which the redundancy pay entitlement under section 119 does not apply);

(h) section 126 (which allows terms providing for school - based apprentices and trainees to be paid loadings in lieu).

(a) a transitional instrument includes terms referred to in subsection (1) of section 93 or 101 of the National Employment Standards; but

(b) the terms do not include the requirements referred to in subsection (2) of that section;

the employee is taken to qualify for the shiftworker annual leave entitlement for the purposes of section 87 of the FW Act.

(1) On application by a person covered by a transitional instrument, the FWC may make a determination varying the transitional instrument:

(a) to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards; or

(b) to make the instrument operate effectively with the National Employment Standards.

(2) A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.

This Division (including determinations under item 26) does not affect the operation of a transitional instrument at any time before the FW (safety net provisions) commencement day.

(1) While an agreement - based transitional instrument of any of the following kinds applies to an employee, or to an employer or other person in relation to the employee:

a modern award does not apply to the employee, or to the employer or other person in relation to the employee.

Note 1: However, a modern award can continue to cover the employee while the agreement - based transitional instrument continues to apply.

Note 2: This subitem has effect subject to item 13 of Schedule 9 (which requires that the base rate of pay under an agreement - based transitional instrument must not be less than the relevant modern award rate) .

both apply to an employee, or to an employer or other person in relation to the employee, the agreement - based transitional instrument prevails over the modern award, to the extent of any inconsistency.

Note: This subitem has effect subject to item 13 of Schedule 9 (which requires that the base rate of pay under an agreement - based transitional instrument must not be less than the relevant modern award rate) .

(b) outworker terms (within the meaning of the FW Act) in a modern award would, but for the transitional instrument, apply to the employee.

(2) Despite item 28 and despite any terms of the agreement - based transitional instrument that are detrimental to the employee in any respect when compared to the terms of the modern award, the outworker terms apply at that time to the following persons:

(3) To avoid doubt, to the extent to which terms of a modern award apply to an employee, an employer or an employee organisation because of subitem (2), the modern award applies to the employee, employer or organisation.

(1) If a modern award (other than the miscellaneous modern award) that covers an employee, or an employer or other person in relation to the employee, comes into operation, then an award - based transitional instrument ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.

Note: A modern award cannot be expressed to cover an employee who is covered by a transitional instrument that is an enterprise instrument or a State reference public sector transitional award (see subsections 143(8) and (10) of the FW Act).

(2) While an award - based transitional instrument that covers an employee, or an employer or other person in relation to the employee, is in operation, the miscellaneous modern award does not cover the employee, or the employer or other person in relation to the employee.

(3) If a modern award (other than the miscellaneous modern award) that contains outworker terms that cover an outworker entity comes into operation, then outworker terms in an award - based transitional instrument cease to cover (and can never again cover) the outworker entity.

(4) While outworker terms in an award - based transitional instrument that is in operation cover an outworker entity, any outworker terms in the miscellaneous modern award do not cover the outworker entity.

(5) Outworker terms in an award - based transitional instrument are terms that would be outworker terms as defined in the FW Act if they were in a modern award.

30 FW Act enterprise agreements and workplace determinations, and agreement - based transitional instruments

(1) While an individual agreement - based transitional instrument applies to an employee, or to an employer in relation to the employee, an enterprise agreement or workplace determination (under the FW Act) does not apply to the employee, or the employer in relation to the employee.

(2) If an enterprise agreement or workplace determination (under the FW Act) starts to apply to an employee, or an employer or other person in relation to the employee, then a collective agreement - based transitional instrument ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.

Note 1: The fact that a collective agreement - based transitional instrument applies to employees does not prevent those employees and their employer from replacing that transitional instrument at any time with an enterprise agreement, regardless of whether the transitional instrument has passed its nominal expiry date.

Note 2: Industrial action must not be taken before the nominal expiry date of an agreement - based transitional instrument, even if it is being replaced by an enterprise agreement (see item 4 of Schedule 13).

31 FW Act enterprise agreements and workplace determinations, and award - based transitional instruments

If an enterprise agreement or workplace determination (under the FW Act) applies to an employee, or an employer or other person in relation to the employee, then:

(a) an award - based transitional instrument ceases to apply to the employee, and the employer or other person in relation to the employee; but

(b) the award - based transitional instrument can (subject to the other provisions of this Part) continue to cover the employee, and the employer or other person in relation to the employee.

Note: Subject to the other provisions of this Part, the award - based transitional instrument can again start to apply to the employee, and the employer or other person in relation to the employee, if the enterprise agreement or workplace determination (under the FW Act) ceases to apply to the employee.

31A Designated outworker terms of award - based transitional instrument continue to apply

(a) an enterprise agreement or workplace determination (under the FW Act) applies to an employer; and

(b) an award - based transitional instrument covers the employer (whether the transitional instrument covers the employer in the employer's capacity as an employer or an outworker entity); and

(2) Despite item 31, the designated outworker terms of the award - based transitional instrument apply at that time to the following:

(i) a person to whom the enterprise agreement or workplace determination applies; and

(a) award - based transitional instruments are taken to be instruments to which the definition of designated outworker term in section 12 of the FW Act applies; and

(b) designated outworker terms of an award - based transitional instrument can apply to an employer under subitem (2) even if none of the employees of the employer is an outworker; and

(c) to the extent to which designated outworker terms of an award - based transitional instrument apply to an employer, an employee or an employee organisation because of subitem (2), the transitional instrument applies to the employer, employee or organisation.

(1) An employee is not an award/agreement free employee for the purposes of the FW Act if a transitional instrument applies to the employee.

(2) The regulations may make provision in relation to any of the following in relation to employees to whom transitional instruments apply:

(a) what is the base rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);

(b) what is the full rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);

Item applies for purpose of determining employee's ordinary hours of work for the FW Act

(1) For the purposes of the FW Act, the ordinary hours of work of an employee to whom a transitional instrument applies are to be determined in accordance with this item.

(2) If a transitional instrument that applies to the employee specifies, or provides for the determination of, the employee's ordinary hours of work, the employee's ordinary hours of work are as specified in, or determined in accordance with, that instrument.

(3) If subitem (2) does not apply, the employee's ordinary hours of work are the hours agreed by the employee and his or her employer as the employee's ordinary hours of work.

(4) If subitem (2) does not apply but there is no agreement under subitem (3), the ordinary hours of work of the employee in a week are:

(c) there is an agreement under subitem (3) between the employee and his or her employer, but the agreed ordinary hours of work are less than the employee's usual weekly hours of work;

(6) For an employee who is not a full - time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee's usual weekly hours of work for the purposes of subitems (4) and (5).

Division 2 of Part 2 - 9 of the FW Act (which deals with payment of wages) applies, on and after the WR Act repeal day, in relation to a transitional instrument as if:

(a) a reference to an enterprise agreement included a reference to an agreement - based transitional instrument; and

(b) a reference to a modern award included a reference to an award - based transitional instrument.

Division 3 of Part 2 - 9 of the FW Act (which deals with the guarantee of annual earnings) applies, on and after the FW (safety net provisions) commencement day, as if:

(a) a reference to an enterprise agreement included a reference to an agreement - based transitional instrument; and

(b) a reference to a modern award included a reference to an award - based transitional instrument and a transitional APCS.

Part 3 - 2 of the FW Act (which deals with unfair dismissal) applies, on and after the WR Act repeal day, as if:

(a) the reference in subparagraph 382(b)(i) and paragraph 389(1)(b) of that Act to a modern award included a reference to an award - based transitional instrument; and

(b) the reference in subparagraph 382(b)(ii) and paragraph 389(1)(b) of that Act to an enterprise agreement included a reference to an agreement - based transitional instrument.

The regulations may deal with other matters relating to how the FW Act applies in relation to transitional instruments.

38 Preservation of redundancy provisions when agreement - based transitional instrument terminates

(1) This item applies if a termination of an agreement - based transitional instrument (the terminated instrument ) takes effect during the bridging period in either of the following circumstances:

(a) the instrument is a preserved collective State agreement or a pre - reform certified agreement that is terminated by FWA as provided for by item 16 because of an application made by an employer covered by the agreement;

(b) the instrument is an individual agreement - based transitional instrument that terminates under item 19 because FWA approves a termination of the instrument by an employer covered by the instrument.

(2) Any redundancy provision that was in the terminated instrument continues to apply to any person to whom the terminated instrument applied immediately before the termination took effect, as if the terminated instrument had continued operating.

Note: For how long the redundancy provision continues to apply, see subitem (6).

(3) A redundancy provision that continues to apply to a person under subitem (2) is taken, for the purpose of this Act, to be a transitional instrument of the same kind as the terminated instrument. However, this does not apply for the purpose of:

(a) the provisions of Parts 2, 3, 4 and 5 of this Schedule, other than subitems 20(2) and (3) and item 23; or

(4) Subject to subitem (5), a redundancy provision that continues to apply to a person under subitem (2) prevails over any other redundancy provision included in any other instrument that would otherwise apply (even if the provisions in that other instrument might be more beneficial to the employee).

Note: For how long the redundancy provision continues to apply, see subitem (6).

(a) an industry - specific redundancy scheme in a modern award applies to an employee; and

(b) a redundancy provision that continues to apply to an employee under subitem (2) is detrimental to the employee, in any respect, when compared to the scheme in the modern award;

then the scheme in the modern award prevails over the redundancy provision, to the extent that the redundancy provision is detrimental to the employee.

(6) A redundancy provision continues under subitem (2) to apply to a person, in relation to an employee to whom the provision applies, until the earliest of the following:

(a) the end of the period of 24 months from the time the termination took effect;

(b) the time when the employee ceases to be employed by the employer (otherwise than in circumstances covered by the provision);

(a) a provision relating to redundancy pay in relation to a termination of employment;

(b) a provision that is incidental to a provision relating to redundancy pay in relation to a termination of employment;

(c) a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment;

where the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent.

(a) FWA makes a decision (a termination decision ) of either of the following kinds:

(i) a decision to terminate a transitional instrument as referred to in paragraph 38(1)(a);

(ii) a decision to approve a termination of a transitional instrument as referred to in paragraph 38(1)(b); and

(b) when the termination takes effect, one or more redundancy provisions in the instrument will continue to apply to persons ( affected persons ) in accordance with item 38.

Notification requirements if the transitional instrument is a preserved collective State agreement or a pre - reform certified agreement

(2) If the transitional instrument is a preserved collective State agreement or a pre - reform certified agreement:

(ii) state that the provision or provisions will continue to apply to the affected persons; and

(iii) specify the date that is 24 months after the time when the termination takes effect; and

(iv) state that the provision or provisions will continue to apply until that date, or an earlier date, in accordance with subitem 38(6); and

(b) FWA must give a copy of the termination decision to each affected person that is:

(3) An employer that has, under subitem (2), received a copy of a termination decision must take reasonable steps to ensure that all employees to whom the instrument applied immediately before the termination takes effect are given a copy of the decision within 21 days of the employer receiving a copy of the decision.

Notification requirements if the transitional instrument is an individual agreement - based transitional instrument

(4) If the transitional instrument is an individual agreement - based transitional instrument, the termination decision must:

(b) state that the provision or provisions will continue to apply to the affected persons; and

(d) state that the provision or provisions will continue to apply until that date, or an earlier date, in accordance with subitem 38(6).

40 Redundancy provisions that were already preserved as at the WR Act repeal day

(1) This item applies if, immediately before the WR Act repeal day, redundancy provisions that were in a WR Act instrument (the terminated instrument ) that was terminated before that day (the actual termination ) were continuing to bind persons under any of the following provisions:

(b) section 399A of the pre - transition Act (within the meaning of Schedule 7A to the WR Act);

(a) the redundancy provisions were a transitional instrument of the same kind as the terminated instrument; and

(b) a termination of that transitional instrument took effect on the WR Act repeal day as referred to in subitem 38(1); and

(c) the reference in paragraph 38(6)(a) to 24 months were instead a reference to the unexpired part of the period of 24 months that started on the actual termination.

This Part applies to a Victorian employment agreement that was in force in relation to an employer and an employee (the parties ) under Division 12 of Part 21 of the WR Act immediately before the WR Act repeal. A Victorian employment agreement is an employment agreement within the meaning of that Division.

On and after the WR Act repeal day the Victorian employment agreement is enforceable by one of the parties against the other party as if it were a contract. The provisions of Division 12 of Part 21 of the WR Act do not continue to apply in relation to the agreement.

43 FWA taken to have made a transitional pay equity order to continue the effect of State pay equity orders

(1) On the Division 2B referral commencement, FWA is taken to have made an order (the transitional pay equity order ) under this item.

(a) a modern award applies to the employer on or after the Division 2B referral commencement; and

(b) the employer is prescribed by the regulations for the purposes of this paragraph, or is included in a class of employers prescribed by the regulations for the purposes of this paragraph; and

(c) immediately before the Division 2B referral commencement, a transitional award (the relevant transitional award ) applied to the employer.

Note: Transitional award has the same meaning as in Schedule 6 to the WR Act. Schedule 6 is continued in operation by Schedule 20 to this Act.

(3) An employer must not be prescribed by regulations for the purposes of paragraph (2)(b) unless:

(a) an order, decision or determination of a State industrial body (the source pay equity order ) would have applied to the employer if the relevant transitional award had not applied to the employer; and

(b) provided for increases in rates of pay payable to a particular class of employees (whether the increases were expressed to take effect before, on or after the Division 2B referral commencement); and

(5) If the transitional pay equity order applies to an employer, the employer is required to pay to each affected employee of the employer a base rate of pay, in respect of a period, that is not less than the base rate of pay that the employee would have been entitled to be paid if the source pay equity order had applied to the employer in respect of the period.

(6) An employee of an employer to which this item applies is an affected employee of the employer if the employee performs work of a kind, at a classification level (however described), in relation to which the source pay equity order determines a base rate of pay.

(7) The transitional pay equity order takes effect in relation to the employer immediately after the modern award begins to apply to the employer.

(a) an employee is entitled to be paid by an employer a base rate of pay under the transitional pay equity order in respect of a particular period; and

(b) the term of the modern award requires the employer to pay a base rate of pay, in respect of that period, that is less than the base rate of pay referred to in paragraph (a).

(9) However, to avoid doubt, a term of a modern award continues to have effect so far as it requires an employer to pay a base rate of pay, in respect of a period, that is equal to or more than the base rate of pay referred to in paragraph (8)(a).

Commonwealth Consolidated Acts

FAIR WORK (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) ACT 2009 - SCHEDULE 3