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 enterprise instrument modernisation process
Division 1--Enterprise instruments
2 Enterprise instruments
(1) Each of the following is an enterprise instrument :
(a) an enterprise award - based instrument;
(b) an enterprise preserved collective State agreement;
(c) a Division 2B enterprise award.
(2) An enterprise award - based instrument is an award - based transitional instrument, other than a State reference public sector transitional award, to which subitem (2A) or (2B) applies.
(2A) This subitem applies to an award - based transitional instrument that is an award or a State reference transitional award, if the award or State reference transitional award covers employees in:
(a) a single enterprise (or a part of a single enterprise) only; or
(b) one or more enterprises, if the employers all carry on similar business activities under the same franchise and are:
(i) franchisees of the same franchisor; or
(ii) related bodies corporate of the same franchisor; or
(iii) any combination of the above.
(2B) This subitem applies to an award - based transitional instrument that is a notional agreement preserving State awards, if the notional agreement includes terms and conditions from a State award (within the meaning of the WR Act) that covered employees in:
(a) a single enterprise (or a part of a single enterprise) only; or
(b) one or more enterprises, if the employers all carried on similar business activities under the same franchise and were:
(i) franchisees of the same franchisor; or
(ii) related bodies corporate of the same franchisor; or
(iii) any combination of the above.
(3) An enterprise preserved collective State agreement is a transitional instrument that is a preserved collective State agreement in relation to which the following paragraphs are satisfied:
(a) a State or Territory law had, on the day before the commencement of Part 2 of Schedule 4 to the Workplace Relations Amendment (Work Choices) Act 2005 , the effect (however described) of converting a State award (within the meaning of the WR Act) into the relevant State employment agreement (within the meaning of the WR Act);
(b) if the State award had continued to have effect in relation to employees, a notional agreement preserving State awards to which subitem (2B) applies would have been taken to come into operation in relation to those employees.
(4) A Division 2B enterprise award is a Division 2B State award that covers:
(a) a single enterprise (or a part of a single enterprise) only; or
(b) one or more enterprises, if the employers all carry on similar business activities under the same franchise and are:
(i) franchisees of the same franchisor; or
(ii) related bodies corporate of the same franchisor; or
(iii) any combination of the above.
3 Meaning of single enterprise and part of a single enterprise
(1) A single enterprise is:
(a) a business, project or undertaking that is carried on by an employer; or
(b) the activities carried on by:
(i) the Commonwealth, a State or a Territory; or
(ii) a body, association, office or other entity established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or
(iii) any other body in which the Commonwealth, a State or a Territory has a controlling interest.
(2) For the purposes of subitem (1), if 2 or more employers carry on a business, project or undertaking as a joint venture or common enterprise, the employers are taken to be one employer.
(3) For the purposes of subitem (1), if 2 or more related bodies corporate each carry on a single enterprise:
(a) the bodies corporate are taken to be one employer; and
(b) the single enterprises are taken to be one single enterprise.
Note: However, an enterprise instrument or a modern enterprise award could just relate to a part of that single enterprise.
(4) A part of a single enterprise includes, for example:
(a) a geographically distinct part of the single enterprise; or
(b) a distinct operational or organisational unit within the single enterprise.
Division 2--The enterprise instrument modernisation process
4 The enterprise instrument modernisation process
(1) The enterprise instrument modernisation process is the process of making modern awards under this Division to replace enterprise instruments.
(2) On application, the FWC may make a modern award (a modern enterprise award ) to replace an enterprise instrument.
(3) The application may be made only:
(a) by a person covered by the enterprise instrument; and
(b) during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.
(4) A modern enterprise award must be made by a Full Bench.
(5) In deciding whether or not to make a modern enterprise award, and in determining the content of that award, the FWC must take into account the following:
(a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;
(b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;
(c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);
(d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;
(e) the extent to which the enterprise instrument provides enterprise - specific terms and conditions of employment;
(f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;
(g) the views of the persons covered by the enterprise instrument;
(h) any other matter prescribed by the regulations.
Note: A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC's final wage review under the WR Act, or to include transitional arrangements in the modern award.
(5A) If the FWC makes a modern enterprise award before the FW (safety net provisions) commencement day, the modern enterprise award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day.
Note: For when a modern enterprise award is in operation, see item 17.
(6) The regulations may deal with other matters relating to the enterprise instrument modernisation process.
5 Enterprise instruments: termination by the FWC
(1) A person covered by an enterprise instrument may apply to the FWC for the FWC to terminate the instrument.
(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.
(3) If an application for the FWC to terminate the enterprise instrument is made under subitem (1), the FWC may:
(a) terminate the enterprise instrument; or
(b) decide that the enterprise instrument should not be terminated; or
(c) decide to treat the application as if it were an application under item 4.
(4) In making a decision under subitem (3), the FWC must take into account the following:
(a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;
(b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;
(c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);
(d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;
(e) the extent to which the enterprise instrument provides enterprise - specific terms and conditions of employment;
(f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to terminate, or not terminate, the enterprise instrument, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;
(g) the views of the persons covered by the enterprise instrument;
(h) any other matter prescribed by the regulations.
Note: A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC's final wage review under the WR Act, or to include transitional arrangements in the modern award.
(5) If the FWC terminates the enterprise instrument, the termination operates from the day specified in the decision to terminate the instrument, being a day that is not earlier than the FW (safety net provisions) commencement day.
6 The modern enterprise awards objective
(1) The modern awards objective and the minimum wages objective apply to the FWC making a modern enterprise award under this Division.
(2) However, in applying the modern awards objective and the minimum wages objective, the FWC must recognise that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. This is the modern enterprise awards objective .
Note 1: See also item 11 (enterprise instrument modernisation process is not intended to result in reduction in take - home pay).
Note 2: See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day).
7 Terms of modern enterprise awards
(1) Subject to this item and item 8, Division 3 of Part 2 - 3 of the FW Act (which deals with terms of modern awards) applies in relation to a modern enterprise award made under this Division.
Note: See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day).
Increases in entitlements
(2) If the making of a modern enterprise award results in an increase in an employee's entitlements, the modern enterprise award may provide for the increases to take effect in stages.
Industry - specific redundancy schemes
(3) If a modern award includes an industry - specific redundancy scheme in relation to a particular industry, and the FWC makes a modern enterprise award that covers persons who operate in that industry, the FWC may include the industry - specific redundancy scheme in the modern enterprise award.
8 Coverage terms
Coverage terms must be included
(1) A modern enterprise award must include terms ( coverage terms ) setting out, in accordance with this item:
(a) the enterprise or enterprises to which the modern enterprise award relates; and
(b) the employer or employers, employees and organisations that are covered by the modern enterprise award.
Enterprises
(2) A modern enterprise award must be expressed to relate:
(a) to a single enterprise (or a part of a single enterprise) only; or
(b) to one or more enterprises, but only if the employers all carry on similar business activities under the same franchise and are:
(i) franchisees of the same franchisor; or
(ii) related bodies corporate of the same franchisor; or
(iii) any combination of the above.
Employers and employees
(3) A modern enterprise award must be expressed to cover:
(a) a specified employer that carries on, or specified employers that carry on, the enterprise or enterprises referred to in subitem (2); and
(b) specified employees of the employer or employers covered by the modern enterprise award.
Organisations
(4) A modern enterprise award may be expressed to cover one or more specified organisations, in relation to:
(a) all or specified employees covered by the award; or
(b) the employer, or all or specified employers, covered by the award.
Outworker entities
(5) A modern enterprise award must not be expressed to cover outworker entities.
How coverage etc. is expressed
(6) For the purposes of subitem (2), an enterprise must be specified:
(a) if paragraph (2)(a) applies to the enterprise--by name; or
(b) if paragraph (2)(b) applies to the enterprise--by name, or by the name of the franchise.
(7) For the purposes of subitems (3) and (4):
(a) an employer or employers may be specified by name or by inclusion in a specified class or specified classes; and
(b) employees must be specified by inclusion in a specified class or specified classes; and
(c) organisations must be specified by name.
Employees not traditionally covered by awards etc.
(8) A modern enterprise award must not be expressed to cover classes of employees:
(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or
(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.
Note: For example, in some industries, managerial employees have traditionally not been covered by awards.
9 Variation and termination of certain instruments to take account of enterprise instrument modernisation process
(1) If the FWC makes a modern enterprise award to replace an enterprise preserved collective State agreement, the agreement terminates when the modern award comes into operation.
(2) The FWC must, as soon as practicable after a modern enterprise award that is made to replace an enterprise instrument comes into operation:
(a) terminate the enterprise instrument (if it has not already terminated under subitem (1)); and
(b) vary or terminate (as appropriate) any of the following ( modernisable instruments ):
(i) other award - based transitional instruments;
(ii) transitional APCSs;
(iii) other Division 2B State awards;
so that employees who were covered by the enterprise instrument are no longer covered by those modernisable instruments.
Note 1: The main provisions about transitional instruments are in Schedule 3, the main provisions about transitional APCSs are in Schedule 9, and the main provisions about Division 2B State awards are in Schedule 3A.
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.
(3) If the FWC decides not to make a modern enterprise award to replace an enterprise instrument, the instrument terminates when that decision comes into operation.
(3A) Despite subitem (3), if, before the FW (safety net provisions) commencement day, the FWC makes a decision not to make a modern enterprise award to replace an enterprise instrument, the decision must not come into operation before the FW (safety net provisions) commencement day.
(4) If, by the end of the period specified in paragraph 4(3)(b), no application under item 4 or 5 has been made in relation to an enterprise instrument, the instrument terminates at the end of that period.
(5) As soon as practicable after all modern enterprise awards made in the enterprise instrument modernisation process have come into operation, the FWC must terminate any remaining modernisable instruments.
10 Notification of the cut - off for the enterprise instrument modernisation process
(1) The FWC must, at least 6 months before the end of the period specified in paragraph 4(3)(b), advise any persons still covered by an enterprise instrument:
(a) that the period for making applications under items 4 and 5 ends on 31 December 2013; and
(b) of the consequences for the enterprise instrument if an application in relation to the instrument is not made.
(2) The FWC may give that advice by any means it considers appropriate.
(3) 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 functions and powers under this item.
Division 3--Avoiding reductions in take - home pay
11 Enterprise instrument modernisation process is not intended to result in reduction in take - home pay
(1) The enterprise instrument modernisation process is not intended to result in a reduction in the take - home pay of employees.
(2) An employee's take - home pay is the pay an employee 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 enterprise award made in the enterprise instrument 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 enterprise 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 enterprise 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 enterprise instrument modernisation process.
12 Orders remedying reductions in take - home pay
(1) If the FWC is satisfied that an employee, or a class of employees, to whom a modern enterprise 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.
(2) The FWC may make a take - home pay order only on application by:
(a) an employee 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
(c) a person acting on behalf of a class of such employees.
(3) 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, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees.
13 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 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 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 unless the employee has actually suffered a modernisation - related reduction in take - home pay; and
(b) if the take - home pay payable to the employee under the modern enterprise award increases after the order is made, there is a corresponding reduction in any amount payable to the employee under the order.
14 Take - home pay order continues to have effect so long as modern enterprise 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 enterprise award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the modern enterprise 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.
15 Inconsistency with modern enterprise awards and enterprise agreements
A term of a modern enterprise award or an enterprise agreement has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of a take - home pay order that applies to the employee.
16 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.
Division 4--Application of the FW Act
16A How the FW Act applies to the modernisation process before the FW (safety net provisions) commencement day
For the purposes of making a modern enterprise award before the FW (safety net provisions) commencement day, the following provisions of the FW Act apply as if they had already commenced:
(a) Part 2 - 2 (which deals with the National Employment Standards);
(b) section 134 (which deals with the modern awards objective);
(c) Division 3 of Part 2 - 3 (which deals with terms of modern awards);
(d) section 284 (which deals with the minimum wages objective);
(e) any provisions that are necessary for the effectual operation of the provisions referred to in paragraphs (a) to (d).
17 How the FW Act applies to modern awards made in the enterprise instrument modernisation process
(1) A modern enterprise award made under Division 2 is, for the purposes of the FW Act (and any other law), taken to be a modern award (being a modern enterprise award) within the meaning of that Act from the day on which the modern enterprise award is made.
(2) Section 49 of the FW Act does not apply for the purpose of determining when the modern enterprise award comes into operation. Instead, the modern enterprise award comes into operation on the day on which it is expressed to commence, being a day that is not earlier than the day on which the modern enterprise award is made.
(3) The regulations may deal with other matters relating to how the FW Act applies in relation to modern enterprise awards.
18 Section 12 (definition of award modernisation process )
Repeal the definition, substitute:
"award modernisation process" means:
(a) the process of making modern awards under Part 10A of the Workplace Relations Act 1996 , as continued by Part 2 of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ; and
(b) the enterprise instrument modernisation process provided for by Part 2 of Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 .
19 Section 12 (definition of coverage terms )
Repeal the definition, substitute:
"coverage terms" :
(a) in relation to a modern award (other than a modern enterprise award): see section 143; and
(b) in relation to a modern enterprise award: see section 143A.
20 Section 12
Insert:
"modern enterprise award" : see subsection 168A(2).
21 Section 12
Insert:
"modern enterprise awards objective" : see subsection 168B(1).
22 Section 12
Insert:
"part of a single enterprise" : see subsection 168A(6).
23 Section 12
Insert:
"single enterprise" : see section 168A.
24 Section 132 (after the paragraph relating to Division 6)
Insert:
Division 7 contains additional provisions relating to modern enterprise awards.
25 At the end of section 143
Add:
Modern enterprise awards
(8) A modern award (other than a modern enterprise award) must be expressed not to cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ), or employers in relation to those employees.
(9) This section does not apply to modern enterprise awards.
Note: The heading to section 143 is altered by adding at the end " of modern awards other than modern enterprise awards ".
26 After section 143
Insert:
143A Coverage terms of modern enterprise awards
Coverage terms must be included
(1) A modern enterprise award must include terms ( coverage terms ) setting out, in accordance with this section:
(a) the enterprise or enterprises to which the modern enterprise award relates; and
(b) the employers, employees and organisations that are covered by the modern enterprise award.
Enterprises
(2) A modern enterprise award must be expressed to relate:
(a) to a single enterprise (or a part of a single enterprise) only; or
(b) to one or more enterprises, but only if the employers all carry on similar business activities under the same franchise and are:
(i) franchisees of the same franchisor; or
(ii) related bodies corporate of the same franchisor; or
(iii) any combination of the above.
Employers and employees
(3) A modern enterprise award must be expressed to cover:
(a) a specified employer that carries on, or specified employers that carry on, the enterprise or enterprises referred to in subsection (2); and
(b) specified employees of employers covered by the modern enterprise award.
Organisations
(4) A modern enterprise award may be expressed to cover one or more specified organisations, in relation to:
(a) all or specified employees covered by the award; or
(b) the employer, or all or specified employers, covered by the award.
Outworker entities
(5) A modern enterprise award must not be expressed to cover outworker entities.
How coverage etc. is expressed
(6) For the purposes of subsection (2), an enterprise must be specified:
(a) if paragraph (2)(a) applies to the enterprise--by name; or
(b) if paragraph (2)(b) applies to the enterprise--by name, or by the name of the franchise.
(7) For the purposes of subsections (3) and (4):
(a) an employer or employers may be specified by name or by inclusion in a specified class or specified classes; and
(b) employees must be specified by inclusion in a specified class or specified classes; and
(c) organisations must be specified by name.
Employees not traditionally covered by awards etc.
(8) A modern enterprise award must not be expressed to cover classes of employees:
(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or
(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.
Note: For example, in some industries, managerial employees have traditionally not been covered by awards.
27 At the end of Part 2 - 3
Add:
Division 7 -- Additional provisions relating to modern enterprise awards
(1) This Division contains additional provisions that relate to modern enterprise awards. The provisions in this Division have effect despite anything else in this Part.
(2) A modern enterprise award is a modern award that is expressed to relate to:
(a) a single enterprise (or a part of a single enterprise) only; or
(b) one or more enterprises, if the employers all carry on similar business activities under the same franchise and are:
(i) franchisees of the same franchisor; or
(ii) related bodies corporate of the same franchisor; or
(iii) any combination of the above.
(3) A single enterprise is:
(a) a business, project or undertaking that is carried on by an employer; or
(b) the activities carried on by:
(i) the Commonwealth, a State or a Territory; or
(ii) a body, association, office or other entity established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or
(iii) any other body in which the Commonwealth, a State or a Territory has a controlling interest.
(4) For the purposes of subsection (3), if 2 or more employers carry on a business, project or undertaking as a joint venture or common enterprise, the employers are taken to be one employer.
(5) For the purposes of subsection (3), if 2 or more related bodies corporate each carry on a single enterprise:
(a) the bodies corporate are taken to be one employer; and
(b) the single enterprises are taken to be one single enterprise.
Note: However, a modern enterprise award could just relate to a part of that single enterprise.
(6) A part of a single enterprise includes, for example:
(a) a geographically distinct part of the single enterprise; or
(b) a distinct operational or organisational unit within the single enterprise.
168B The modern enterprise awards objective
What is the modern enterprise awards objective?
(1) FWA must recognise that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. This is the modern enterprise awards objective .
When does the modern enterprise awards objective apply?
(2) The modern enterprise awards objective applies to the performance of FWA's functions or powers under this Act, so far as they relate to modern enterprise awards.
References to the modern awards objective
(3) A reference to the modern awards objective in this Act, other than section 134, is taken to include a reference to the modern enterprise awards objective.
168C Rules about making and revoking modern enterprise awards
Making modern enterprise awards
(1) FWA must not, under this Part:
(a) make a modern enterprise award; or
(b) make a determination varying a modern award so that it becomes a modern enterprise award.
Note: Modern enterprise awards can be made only in accordance with the enterprise instrument modernisation process provided for by Part 2 of Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 .
Revoking modern enterprise awards
(2) FWA may make a determination revoking a modern enterprise award only on application under section 158.
(3) FWA must not make a determination revoking a modern enterprise award unless FWA is satisfied that:
(a) the award is obsolete or no longer capable of operating; or
(b) all the employees covered by the award will, when the revocation comes into operation, be covered by a different modern award (other than the miscellaneous modern award or a modern enterprise award) that is appropriate for them.
(4) In deciding whether to make a determination revoking a modern enterprise award FWA must take into account the following:
(a) the circumstances that led to the making of the modern enterprise award;
(b) the content of the modern award referred to in paragraph (3)(b);
(c) the terms and conditions of employment applying in the industry in which the persons covered by the modern enterprise award operate, and the extent to which those terms and conditions are reflected in the modern enterprise award;
(d) the extent to which the modern enterprise award provides enterprise - specific terms and conditions of employment;
(e) the likely impact on the persons covered by the modern enterprise award, and the persons covered by the modern award referred to in paragraph (3)(b), of a decision to revoke, or not revoke, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;
(f) the views of the persons covered by the modern enterprise award;
(g) any other matter prescribed by the regulations.
168D Rules about changing coverage of modern enterprise awards
(1) FWA must not make a determination varying a modern enterprise award so as to extend the coverage of the modern enterprise award so that it ceases to be a modern enterprise award.
(2) In deciding whether to make a determination varying the coverage of a modern enterprise award in some other way, FWA must take into account the following:
(a) the circumstances that led to the making of the modern enterprise award;
(b) whether there is a modern award (other than the miscellaneous modern award or a modern enterprise award) that would, but for the modern enterprise award, cover the persons covered, or proposed to be covered, by the modern enterprise award;
(c) the content of the modern award referred to in paragraph (b);
(d) the terms and conditions of employment applying in the industry in which the persons covered, or proposed to be covered, by the modern award operate, and the extent to which those terms and conditions are reflected in the modern enterprise award;
(e) the extent to which the modern enterprise award provides enterprise - specific terms and conditions of employment;
(f) the likely impact on the persons covered, or proposed to be covered, by the modern enterprise award, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the variation, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;
(g) the views of the persons covered, or proposed to be covered, by the modern enterprise award;
(h) any other matter prescribed by the regulations.
28 Subsection 292(1)
Repeal the subsection, substitute:
(1) If FWA makes one or more determinations varying modern award minimum wages in an annual wage review, FWA must publish the rates of those wages as so varied:
(a) for wages in a modern award (other than a modern enterprise award)--before 1 July in the next financial year; and
(b) for wages in a modern enterprise award--as soon as practicable.
Note: FWA must also publish the modern award as varied (see section 168).
Note: The heading to section 292 is altered by omitting " by 1 July ".