Commonwealth Consolidated Acts Commonwealth Consolidated Acts1 Meanings of employer and employee
In this Schedule, employer and employee have their ordinary meanings.
Part 2 -- The State reference public sector transitional award modernisation process
Division 1--State reference public sector transitional awards
2 State reference public sector transitional awards
(1) A State reference public sector transitional award is a State reference transitional award or common rule in relation to which the following conditions are satisfied:
(a) the only employers that are expressed to be covered by the award or common rule are one or more specified State reference public sector employers;
(b) the only employees who are expressed to be covered by the award or common rule are specified State reference public sector employees of those employers.
Note: State reference transitional awards and common rules are continued in existence as transitional instruments by Schedule 3.
(2) A State reference public sector employee is a State reference employee who is a State public sector employee as defined in section 30A or 30K of the FW Act.
(3) A State reference public sector employer is a State reference employer that is a State public sector employer as defined in section 30A or 30K of the FW Act.
(4) If:
(a) a State reference transitional award or common rule (the current award ) covers one or more State reference public sector employers, and State reference public sector employees of those employers; and
(b) the current award also covers:
(i) other employees of those employers; or
(ii) other employers, and employees of those other employers;
then, for the purposes of this Act, the current award is taken instead to constitute 2 separate State reference transitional awards or common rules as follows:
(c) a State reference public sector transitional award covering:
(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
(d) a State reference transitional award or a State reference common rule (as the case requires) covering:
(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.
Division 2--The State reference public sector transitional award modernisation process
3 The State reference public sector transitional award modernisation process
(1) The State reference public sector transitional award modernisation process is the process of making State reference public sector modern awards under this Division covering employers, employees and organisations that are covered by State reference public sector transitional awards.
(2) A State reference public sector modern award is a modern award in relation to which the following conditions are satisfied:
(a) the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers;
(b) the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers.
(3) A State reference public sector modern award must be made by a Full Bench.
4 Making State reference public sector modern awards on application
(1) An employer or organisation that is covered by a State reference public sector transitional award (the current award ) may apply to the FWC for the making of a State reference public sector modern award (the proposed award ).
(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) The application must specify the employers, employees and organisations (the proposed parties ) proposed to be covered by the proposed award.
(4) The FWC must consider the application, and must make a State reference public sector modern award covering the proposed parties if the FWC is satisfied that:
(a) the proposed parties are covered by State reference public sector transitional awards; and
(b) the employers and organisations that are proposed parties have agreed to the making of the application.
Note: The proposed parties will cease to be covered by State reference public sector transitional awards when the State reference public sector modern award comes into operation: see item 29 of Schedule 3.
5 Terminating State reference public sector transitional awards on application
(1) An employer or organisation that is covered by a State reference public sector transitional award (the current award ) may apply to the FWC or the Commission to terminate the current award.
Note: The Commission ceased to exist on 31 December 2009: see item 7 of Schedule 18.
(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) The FWC or the Commission must not terminate the current award unless the FWC or the Commission is satisfied that the employees who are covered by the current award will, if the current award is terminated, be covered by a modern award (other than the miscellaneous modern award) that, at the time of the termination, is or is likely to be in operation and that is appropriate for them.
(4) In deciding whether to terminate the current award, the FWC or the Commission must take into account the following:
(a) the circumstances that led to the making of the current award;
(b) the terms and conditions of employment applying in the industry or occupation in which the persons covered by the current award operate, and the extent to which those terms and conditions are reflected in the current award;
(c) the extent to which the current award facilitates arrangements, and provides terms and conditions of employment, referred to in paragraphs 7(2)(a) and (b);
(d) the likely impact on the persons covered by the current award of a decision to terminate, or not to terminate, the current award;
(e) the views of the persons covered by the current award;
(f) any other matter prescribed by the regulations.
(5) If the FWC or the Commission terminates the current award, the termination operates from the day specified in the decision to terminate the current award, being a day that is not earlier than the FW (safety net provisions) commencement day.
(6) If the Commission terminates the current award, the termination is taken, after the Commission has ceased to exist, to have been made by the FWC.
6 Further obligation of the FWC to make or vary State reference public sector modern awards at end of application period
If, at the end of the period referred to in subitem 4(2), there are one or more State reference public sector transitional awards that still cover some employers and employees, the FWC must make, or (in accordance with section 168L of the FW Act) vary the coverage of, one or more State reference public sector modern awards so that all those employers and employees are covered by State reference public sector modern awards.
Note: The employers and employees will cease to be covered by the State reference public sector transitional awards when they start to be covered by a State reference public sector modern award that is in operation: see item 29 of Schedule 3.
7 The State reference public sector modern awards objective
(1) If the FWC is required by item 4 or 6 to make a State reference public sector modern award, the modern awards objective and the minimum wages objective apply to the making of the modern award.
(2) However, in applying the modern awards objective and the minimum wages objective, the FWC must recognise:
(a) the need to facilitate arrangements for State reference public sector employers and State reference public sector employees that are appropriately adapted to the effective administration of a State; and
(b) that State reference public sector modern awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to State reference public sector employers and State reference public sector employees.
This is the State reference public sector modern awards objective .
Note 1: See also item 13 (State reference public sector transitional award modernisation process is not intended to result in reduction in take - home pay).
Note 2: See also item 19 (how the FW Act applies in relation to the State reference public sector transitional award modernisation process before the FW (safety net provisions) commencement day).
8 Terms of State reference public sector modern awards
(1) Division 3 (other than sections 143 and 154) of Part 2 - 3 of the FW Act (which deals with terms of modern awards) applies in relation to a State reference public sector modern award made under this Division.
Note: See also item 19 (how the FW Act applies in relation to the State reference public sector transitional award modernisation process before the FW (safety net provisions) commencement day).
(2) If FWA makes a State reference public sector modern award before the FW (safety net provisions) commencement day, the State reference public sector modern award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day.
9 Coverage terms
Coverage terms must be included
(1) A State reference public sector modern award must include terms ( coverage terms ) setting out, in accordance with this item, the employers, employees and organisations that are covered by the State reference public sector modern award.
Employers and employees
(2) The coverage terms must be such that:
(a) the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers; and
(b) the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers.
Organisations
(3) A State reference public sector modern award may be expressed to cover one or more specified organisations, in relation to:
(a) all or specified employees covered by the modern award; or
(b) the employer, or all or specified employers, covered by the modern award.
Outworker entities
(4) A State reference public sector modern award must not be expressed to cover outworker entities.
How coverage etc. is expressed
(5) For the purposes of this item:
(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.
10 Variation and termination of State reference public sector transitional awards to take account of the modernisation process
(1) If a State reference public sector modern award completely replaces a State reference public sector transitional award, the transitional award terminates when the modern award comes into operation.
(2) If a State reference public sector modern award partially replaces a State reference public sector transitional award, the FWC must, as soon as practicable after the modern award comes into operation, vary the transitional award so that employees who are covered by the modern award are no longer covered by the transitional award.
(3) For the purposes of this item:
(a) the modern award completely replaces the transitional award if all the employees who are covered by the transitional award become covered by the modern award when it comes into operation; and
(b) the modern award partially replaces the transitional award if only some of the employees who are covered by the transitional award become covered by the modern award when it comes into operation.
Note: This item does not limit the effect of any other provision of this Act under which a transitional instrument (a State reference public sector transitional award is a transitional instrument) ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.
11 Notification of the cut - off for the State reference public sector transitional award modernisation process
(1) The FWC must, at least 6 months before the end of the period specified in subitem 4(2), advise any persons still covered by a State reference public sector transitional award:
(a) that the period for making applications under items 4 and 5 ends on 31 December 2013; and
(b) that the FWC will, at the end of that period, commence the State reference public sector transitional award modernisation process in relation to the transitional award for any employees and employers who are still covered by the transitional award at that time.
(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.
12 Regulations dealing with other matters
The regulations may deal with other matters relating to the State reference public sector transitional award modernisation process.
Division 3--Avoiding reductions in take - home pay
13 State reference public sector transitional award modernisation process is not intended to result in reduction in take - home pay
(1) The State reference public sector transitional award 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 State reference public sector modern award made in the State reference public sector transitional award modernisation process starts to apply to the employee when the modern 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 State reference public sector 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 State reference public sector 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 modern award came into operation; and
(d) that reduction in the employee's take - home pay is attributable to the State reference public sector transitional award modernisation process.
14 Orders remedying reductions in take - home pay
(1) If the FWC is satisfied that an employee, or a class of employees, to whom a State reference public sector 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.
(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.
15 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 State reference public sector modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee under the order.
16 Take - home pay order continues to have effect so long as State reference public sector 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 State reference public sector modern award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the State reference public sector 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.
17 Inconsistency with State reference public sector modern awards and enterprise agreements
A term of a State reference public sector modern 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.
18 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
19 How the FW Act applies to the modernisation process before the FW (safety net provisions) commencement day
For the purposes of making a State reference public sector modern 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).
20 How the FW Act applies to modern awards made in the State reference public sector transitional award modernisation process
(1) A State reference public sector modern 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 State reference public sector modern award) within the meaning of that Act from the day on which the State reference public sector modern award is made.
(2) Section 49 of the FW Act does not apply for the purpose of determining when the State reference public sector modern award comes into operation. Instead, the modern 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 award is made.
(3) The regulations may deal with other matters relating to how the FW Act applies in relation to State reference public sector modern awards.