Commonwealth Consolidated Acts Commonwealth Consolidated Acts1 Meanings of employee and employer
In this Schedule, employee means a national system employee and employer means a national system employer.
Part 2 -- The WR Act award modernisation process
2 AIRC to continue and complete the award modernisation process
(1) The Australian Industrial Relations Commission is to continue and complete the award modernisation process provided for by Part 10A of the WR Act (the Part 10A award modernisation process ).
Note: Enterprise award etc. modernisation is provided for in Schedule 6.
(2) For that purpose, Part 10A of the WR Act continues to apply on and after the WR Act repeal day in accordance with this Part.
(3) Without limiting subitem (2), the request under section 576C of the WR Act continues to apply on and after the WR Act repeal day, and may be varied in accordance with that section.
(3A) Part 10A of the WR Act applies as if:
(a) a reference to an employee were a reference to a national system employee; and
(b) a reference to an employer were a reference to a national system employer; and
(c) all the words after "eligible entity" in paragraph 576K(2)(b) were omitted and the words "may arrange for work to be performed for the entity (either directly or indirectly), if the work is of a kind that is often performed by outworkers" were substituted; and
(d) the definition of eligible entity in section 576U were omitted; and
(e) subsection 576Z(4) were omitted; and
(f) a reference to an eligible entity were a reference to an outworker entity within the meaning of the FW Act; and
(g) subsection 576K(1) were omitted; and
(h) a reference to an outworker in subsection 576K(2) were a reference to an outworker within the meaning of the FW Act; and
(i) the definition of outworker term in section 576U were omitted; and
(j) a reference to an outworker term in section 576V were a reference to an outworker term within the meaning of the FW Act.
(4) The Australian Industrial Relations Commission's power under section 576H of the WR Act to vary a modern award cannot be exercised after the modern award has come into operation.
(5) In continuing and completing the Part 10A award modernisation process, the Australian Industrial Relations Commission must have regard to:
(a) the state of the national economy; and
(b) the likely effects on the national economy of any modern award that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation; and
(c) the likely effects on the relevant industry or industry sector of any modern award that the Commission is considering, or is proposing to make, including on productivity, labour costs and the regulatory burden on businesses.
3 Variation and termination of certain transitional instruments etc. to take account of Part 10A award modernisation process
(1) The FWC must, as soon as practicable after a modern award (other than the miscellaneous modern award) made in the Part 10A award modernisation process comes into operation (and subject to subitem (3)):
(a) terminate any of the following ( modernisable instruments ) that the FWC considers are completely replaced by the modern award:
(i) award - based transitional instruments;
(ii) transitional APCSs; and
(b) if the FWC considers that the modern award only partly replaces a modernisable instrument--vary the coverage terms of the modernisable instrument accordingly.
Note 1: The main provisions about transitional instruments are in Schedule 3, and the main provisions about transitional APCSs are in Schedule 9.
Note 2: This item does not limit the effect of any other provision of this Act under which a modernisable instrument ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.
(2) As soon as practicable after all modern awards made in the Part 10A modernisation process have come into operation, the FWC must (subject to subitem (3)) terminate any remaining modernisable instruments.
(3) However, the FWC must not, under this item:
(a) terminate a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award, or that covers employees who are also covered by an enterprise instrument or a State reference public sector transitional award; or
(b) vary a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award; or
(c) vary a modernisable instrument so that it ceases to cover employees who are also covered by an enterprise instrument or a State reference public sector transitional award.
Note 1: Item 9 of Schedule 6 deals with termination and variation of modernisable instruments to take account of the enterprise instrument or a State reference public sector transitional award modification process.
Note 2: Item 10 of Schedule 6A deals with termination and variation of State reference public sector transitional awards to take account of the State reference public sector transitional award modernisation process.
(4) The FWC may establish a process for making decisions under this item to terminate or vary one or more modernisable instruments.
(5) The FWC may advise persons or bodies about that process in any way the FWC considers appropriate.
(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC's powers under subitem (5).
4 How the FW Act applies to modern awards made in the Part 10A award modernisation process
(1) A modern award made in the Part 10A award modernisation process is, for the purposes of the FW Act (and any other law), taken to be a modern award within the meaning of that Act from the later of the following days:
(a) the day on which the award is made;
(b) the FW (safety net provisions) commencement day.
(2) Section 49 of the FW Act does not apply for the purpose of determining when the modern award comes into operation. Instead, the modern award comes into operation on the day on which it is expressed to commence (in accordance with section 576Y of the WR Act).
(3) The regulations may deal with other matters relating to how the FW Act applies in relation to modern awards made in the Part 10A award modernisation process.
5 Variations to deal with minor problems attributable to award modernisation starting before enactment of FW Act
(1) If the FWC considers that there is a minor or technical problem with a modern award that is attributable to the fact that the Part 10A award modernisation process started before the enactment of the FW Act, the FWC may make a determination varying the modern award to resolve the problem.
Note: Certain modern awards may, for example, contain references to concepts or provisions that are not consistent with the FW Act as enacted. This variation power allows the FWC to fix such references.
(2) The FWC may make the determination:
(a) on its own initiative; or
(b) on application by an employer, employee, organisation or outworker entity covered by the modern award; or
(c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award; or
(d) if the variation is of outworker terms in the modern award--on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the terms relate.
6 Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years
(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, the FWC must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.
Note: The review required by this item is in addition to the annual wage reviews and 4 yearly reviews of modern awards that the FWC is required to conduct under the FW Act.
(2) In the review, the FWC must consider whether the modern awards:
(a) achieve the modern awards objective; and
(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.
(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent the FWC from reviewing 2 or more modern awards at the same time.
(3) The FWC may make a determination varying any of the modern awards in any way that the FWC considers appropriate to remedy any issues identified in the review.
Note: Any variation of a modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2 - 3 of the FW Act).
(4) The modern awards objective applies to the FWC making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.
(5) The FWC may advise persons or bodies about the review in any way the FWC considers appropriate.
(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC's powers under subitem (5).
7 Review of transitional arrangements included in modern awards
(1) If:
(a) a modern award includes terms ( review terms ) under which the FWC may review transitional arrangements included in the award; and
(b) the review terms, and the transitional arrangements, were included in the award in the Part 10A award modernisation process;
the FWC may:
(c) review the award in accordance with the review terms; and
(d) make a determination varying the award in any way it considers necessary, having regard to that review.
Note: Any variation of the modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2 - 3 of the FW Act).
(2) The review terms are taken to be terms that are permitted to be included in the modern award by Subdivision B of Division 3 of Part 2 - 3 of the FW Act.
Part 3 -- Avoiding reductions in take - home pay
8 Part 10A award modernisation process is not intended to result in reduction in take - home pay
(1) The Part 10A award modernisation process is not intended to result in a reduction in the take - home pay of employees or outworkers.
(2) An employee's or outworker's take - home pay is the pay an employee or outworker actually receives:
(a) including wages and incentive - based payments, and additional amounts such as allowances and overtime; but
(b) disregarding the effect of any deductions that are made as permitted by section 324 of the FW Act.
Note: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.
(3) An employee suffers a modernisation - related reduction in take - home pay if, and only if:
(a) a modern award made in the Part 10A award modernisation process starts to apply to the employee when the award comes into operation; and
(b) the employee is employed in the same position as (or a position that is comparable to) the position he or she was employed in immediately before the modern award came into operation; and
(c) the amount of the employee's take - home pay for working particular hours or for a particular quantity of work after the modern award comes into operation is less than what would have been the employee's take - home pay for those hours or that quantity of work immediately before the award came into operation; and
(d) that reduction in the employee's take - home pay is attributable to the Part 10A award modernisation process.
(4) An outworker who is not an employee suffers a modernisation - related reduction in take - home pay if, and only if:
(a) when a modern award that contains outworker terms comes into operation, the outworker is a person to whom outworker terms in the modern award relate; and
(b) the outworker is performing the same work as (or work that is similar to) the work he or she was performing immediately before the modern award came into operation; and
(c) the amount of the outworker's take - home pay for working particular hours or for a particular quantity of work after the modern award comes into operation is less than what would have been the outworker's take - home pay for those hours or that quantity of work immediately before the award came into operation; and
(d) that reduction in the outworker's take - home pay is attributable to the Part 10A award modernisation process.
9 Orders remedying reductions in take - home pay
Employees
(1) If the FWC is satisfied that an employee, or a class of employees, to whom a modern award applies has suffered a modernisation - related reduction in take - home pay, the FWC may make any order (a take - home pay order ) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation.
Outworkers
(2) If the FWC is satisfied that an outworker, or a class of outworkers, to whom outworker terms in a modern award relate has suffered a modernisation - related reduction in take - home pay, the FWC may make any order (a take - home pay order ) requiring, or relating to, the payment of an amount or amounts to the outworker or outworkers that the FWC considers appropriate to remedy the situation.
General provisions
(3) The FWC may make a take - home pay order only on application by:
(a) an employee or outworker who has suffered a modernisation - related reduction in take - home pay; or
(b) an organisation that is entitled to represent the industrial interests of such an employee or outworker; or
(c) a person acting on behalf of a class of such employees or outworkers.
(4) If the FWC is satisfied that an application for a take - home pay order has already been made in relation to an employee or a class of employees, or an outworker or a class of outworkers, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees, or the same outworker or outworkers.
10 Ensuring that take - home pay orders are confined to the circumstances for which they are needed
(1) The FWC must not make a take - home pay order in relation to an employee or class of employees, or an outworker or a class of outworkers, if:
(a) the FWC considers that the modernisation - related reduction in take - home pay is minor or insignificant; or
(b) the FWC is satisfied that the employee or employees, or outworker or outworkers, have been adequately compensated in other ways for the reduction.
(2) The FWC must ensure that a take - home pay order is expressed so that:
(a) it does not apply to an employee or outworker unless the employee or outworker has actually suffered a modernisation - related reduction in take - home pay; and
(b) if the take - home pay payable to the employee or outworker under the modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee or outworker under the order.
11 Take - home pay order continues to have effect so long as modern award continues to cover the employee or employees
A take - home pay order made in relation to an employee or class of employees to whom a particular modern award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the modern award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.
12 Inconsistency with modern awards and enterprise agreements
A term of a modern award or an enterprise agreement has no effect in relation to an employee or outworker to the extent that it is less beneficial to the employee or outworker than a term of a take - home pay order that applies to the employee or outworker.
13 Application of provisions of FW Act to take - home pay orders
The FW Act applies as if the following provisions of that Act included a reference to a take - home pay order:
(a) subsection 675(2);
(b) subsection 706(2).
Note: For compliance with take - home pay orders, see item 7 of Schedule 16.