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 -- Special provisions relating to FWA's first annual wage review
2 Period to which first annual wage review relates
FWA's first annual wage review is to be conducted and completed in the period:
(a) starting on the FW (safety net provisions) commencement day; and
(b) ending at the end of the next 30 June;
even if that period is not a full financial year.
3 Exercise of powers in advance of first annual wage review period
FWA may, before the start of the period referred to in item 2, exercise powers for the purpose of obtaining information to be taken into account in its first annual wage review. Powers that may be exercised include:
(a) inviting persons or bodies to make written submissions to FWA for consideration in the review; and
(b) undertaking or commissioning research for the purposes of the review.
4 First national minimum wage order does not have to set full range of special national minimum wages
(1) In its first annual wage review, FWA does not have to set a full range of special national minimum wages covering all the classes of employees referred to in paragraph 294(1)(b) of the FW Act.
(2) However, FWA must set a special national minimum wage for a class or subclass of those employees in its first annual wage review if the transitional national minimum wage order sets a special national minimum wage order for those employees.
Note: The transitional national minimum wage order is taken to have been made on the FW (safety net provisions) commencement day: see item 12.
(3) If FWA does not set a full range of special national minimum wages in its first annual wage review, the President of FWA must establish a process for the setting of the remaining special national minimum wages in FWA's second annual wage review.
(4) FWA may advise persons or bodies about that process in any way FWA considers appropriate.
(5) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA's powers under subitem (4).
Part 3 -- Continued application of WR Act provisions about minimum wages
Division 1--General provisions
5 Continuation of Australian Fair Pay and Conditions Standard wages provisions
(1) Division 2 (other than as provided in subitem (2)) of Part 7 of the WR Act continues to apply on and after the WR Act repeal day in accordance with this Part. That Division as it continues to apply is the continued AFPCS wages provisions .
Note 1: Part 7 of the WR Act contains the Australian Fair Pay and Conditions Standard. Schedule 4 provides for the continued application of the rest of the Standard during the bridging period. The effect of this Division is not limited just to the bridging period .
Note 2: Schedule 3 provides for the continued application of the rules about the interaction between transitional instruments and the Australian Fair Pay and Conditions Standard.
(2) The continued application of Division 2 of Part 7 of the WR Act has effect subject to the following paragraphs:
(a) subsections 182(1) and (2), and Subdivisions H, I, L and M, cease to apply when there are no longer any employees covered by transitional APCSs (see also item 11);
(b) subsections 182(3) and (4), section 185 and Subdivision G cease to apply at the end of the bridging period (see also item 12;
(c) Subdivision D does not continue to apply at all;
(d) Subdivisions E, F, K and N cease to apply after the AFPC has ceased to exist (see item 7 of Schedule 18).
(3) Without limiting subitem (1) (but subject to subitem (2)), each of the following, as it was under Division 2 of Part 7 of the WR Act immediately before the WR Act repeal day, continues to exist, as a transitional minimum wage instrument , in accordance with this Part on and after that day:
(a) an APCS, which continues as a transitional APCS ;
(b) the rate of the standard FMW, which continues as the transitional standard FMW ;
(c) a special FMW, which continues as a transitional special FMW ;
(d) the rate of the default casual loading, which continues as the transitional default casual loading .
Note: APCS is short for Australian Pay and Classification Scale. FMW is short for Federal Minimum Wage.
(4) Despite item 6 of Schedule 2, the following provisions of Part 21 of the WR Act do not apply in relation to the continued AFPCS wages provisions:
(a) subparagraph 861(1)(d)(iii);
(b) section 865.
Note: Paragraph (a) has a flow - through effect to the reference in subparagraph 885(1)(j) of the WR Act to section 861.
5A References to workplace agreements include references to enterprise agreements
(1) The provisions of the WR Act that continue to apply because of item 5 have effect as if a reference in the provisions to a workplace agreement included a reference to an enterprise agreement.
(2) Subitem (1) has effect unless the context otherwise requires and subject to the regulations.
6 The employees who are covered by transitional minimum wage instruments
(1) Transitional minimum wage instruments cover employees as provided in the following paragraphs:
(a) a transitional APCS covers an employee if, under sections 204 and 205 of the continued AFPCS wages provisions, the APCS covers the employment of the employee;
(b) the transitional standard FMW covers an employee if, under section 194 of the continued AFPCS wages provisions, the FMW for the employee is the standard FMW;
(c) a transitional special FMW covers an employee if, under section 194 of the continued AFPCS wages provisions, the FMW for the employee is that special FMW;
(d) the transitional default casual loading covers an employee who is described in subsection 185(1) of the continued AFPCS wages provisions.
(2) However, a transitional APCS does not cover an employee (or 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 1: Item 35 of Schedule 3 deals with the application of section 329 of the FW Act to transitional APCSs.
Note 2: Divisions 2 and 3 of this Part deal with when transitional minimum wage instruments cease to cover employees.
7 Transitional minimum wage instruments can only be varied or terminated in limited circumstances
(1) Despite anything in the continued AFPCS wages provisions, a transitional minimum wage instrument cannot be varied or terminated (or otherwise brought to an end) except as referred to in one of the following subitems.
(2) The AFPC can exercise its wage - setting powers to vary a transitional minimum wage instrument as necessary depending on the outcome of the AFPC's final wage review under the WR Act. Those exercises of wage - setting powers take effect at the time determined by the AFPC (which may be a time after the AFPC has ceased to exist).
Note: Schedule 18 provides for when the AFPC ceases to exist.
(3) A transitional APCS can be varied in an annual wage review under the FW Act as provided for in item 10.
(4) A transitional APCS can be varied or terminated under:
(a) item 3 of Schedule 5 (which deals with variation and termination of transitional APCSs to take account of the Part 10A award modernisation process); or
(b) item 9 of Schedule 6 (which deals with variation and termination of transitional APCSs to take account of the enterprise instrument modernisation process).
8 Effect of termination
If a transitional minimum wage instrument terminates, it ceases to cover (and can never again cover) any employees.
9 No loss of accrued rights or liabilities when transitional minimum wage instrument terminates or ceases to cover an employee
(1) If a transitional minimum wage instrument terminates, or ceases to cover a person, that does not affect:
(a) any right or liability that a person acquired, accrued or incurred before the transitional minimum wage instrument terminated or ceased to cover the person; 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 minimum wage instrument had not terminated or ceased to cover the person.
Division 2--Special provisions about transitional APCSs
10 Variation of transitional APCS in annual wage reviews under the FW Act
(1) In an annual wage review, the FWC may make a determination varying a transitional APCS.
(2) For that purpose, Division 3 of Part 2 - 6 of the FW Act (other than section 292) applies to a transitional APCS in the same way as it applies to a modern award.
11 Transitional APCS ceases to cover an employee if a modern award starts to cover the employee
A transitional APCS ceases to cover an employee when a modern award that covers the employee comes into operation.
Division 3--Special provisions about the FMW, special FMWs and the default casual loading
12 Cessation of coverage of transitional standard FMW etc.
(1) On the FW (safety net provisions) commencement day, the transitional standard FMW, any transitional special FMWs and the transitional default casual loading cease to cover any employees. Subsections 182(3) and (4), and section 185, of the continued AFPCS wages provisions also cease to cover any employees.
(2) On the FW (safety net provisions) commencement day, FWA is taken to have made a national minimum wage order (the transitional national minimum wage order ) under Part 2 - 6 of the FW Act:
(a) that:
(i) sets the national minimum wage at the rate that was the transitional standard FMW immediately before that day; and
(ii) requires employers to pay employees to whom the national minimum wage applies (see subsection 294(3) of the FW Act) a base rate of pay that at least equals the national minimum wage; and
(b) if, immediately before that day, there was a transitional special FMW for a class of employees--that:
(i) sets a special national minimum wage for that class of employees that is the same as the transitional special FMW immediately before that day; and
(ii) requires employers to pay employees to whom that special national minimum wage applies (see subsection 294(4) of the FW Act) a base rate of pay that at least equals that special national minimum wage; and
(c) that:
(i) sets the casual loading for award/agreement free employees at the rate that was the transitional default casual loading immediately before that day; and
(ii) requires employers to pay, to award/agreement free employees who are casual employees, a casual loading that at least equals the casual loading for award/agreement free employees (as applied to the employees' base rates of pay).
Note: The requirement in paragraph 294(1)(b) of the FW Act that a national minimum wage order must set special national minimum wages for all award/agreement free employees in the classes referred to in that paragraph does not apply to the transitional national minimum wage order.
(3) The hours for which a rate set in the transitional national minimum wage order is payable are the same as the hours for which the transitional standard FMW, transitional special FMW or transitional default casual loading (as the case requires) would have been payable under the continued AFPCS wages provisions.
Part 4 -- Universal application of minimum wages to employees: transitional instruments
13 Base rate of pay under agreement - based transitional instrument must not be less than the modern award rate or the national minimum wage order rate etc.
If employee is covered by a modern award that is in operation
(1) If, on or after the FW (safety net provisions) commencement day:
(a) an agreement - based transitional instrument applies to an employee; and
(b) a modern award that is in operation covers the employee;
the base rate of pay payable to the employee under the transitional instrument (the instrument rate ) must not be less than the base rate of pay that would be payable to the employee under the modern award (the award rate ) if the modern award applied to the employee.
(2) If the instrument rate is less than the award rate, the transitional instrument has effect in relation to the employee as if the instrument rate were equal to the award rate.
If employee is not covered by a modern award that is in operation
(3) If, on or after the FW (safety net provisions) commencement day:
(a) an agreement - based transitional instrument applies to an employee; and
(b) the employee is not covered by a modern award that is in operation; and
(c) a national minimum wage order would, if the employee were an award/agreement free employee, require the employee's employer to pay the employee a base rate of pay (the employee's order rate ) that at least equals the national minimum wage, or a special national minimum wage, set by the order;
the base rate of pay payable to the employee under the transitional instrument (the instrument rate ) must not be less than the employee's order rate.
(4) If the instrument rate is less than the employee's order rate, the transitional instrument has effect in relation to the employee as if the instrument rate were equal to the employee's order rate.
Note: The AFPCS interaction rules may affect the base rate of pay payable to an employee (see item 22 of Schedule 3).
14 FWC may make determinations to phase - in the effect of rate increases resulting from item 13 etc.
(1) On application by an employer to whom a transitional instrument applies, the FWC may make a determination the effect of which is to phase - in the effect of increases in base rates of pay that would otherwise take effect on a particular day because of:
(a) item 13; or
(b) subitem 22(2) of Schedule 3.
Note: Under subitem 22(2) of Schedule 3, AFPCS interaction rules that provide for instruments to prevail over the Australian Fair Pay and Conditions Standard stop applying when the bridging period ends. That may result in an employee becoming entitled to a higher rate of pay under a transitional APCS.
(2) The FWC must not make a determination under this item in relation to an employer unless it is satisfied that the determination is necessary to ensure the ongoing viability of the employer's enterprise.
(3) Item 13, and subitem 22(2) of Schedule 3, have effect in relation to an employer subject to any determinations the FWC makes under this item.
15 Enterprise agreement base rate of pay not to be less than transitional minimum wage instrument rate
(1) If:
(a) a transitional minimum wage instrument covers an employee; and
(b) an enterprise agreement applies to the employee;
the base rate of pay payable to the employee under the enterprise agreement (the agreement rate ) must not be less than the base rate of pay that is payable to the employee under the transitional minimum wage instrument (the instrument rate ).
(2) If the agreement rate is less than the instrument rate, the enterprise agreement has effect in relation to the employee as if the agreement rate were equal to the instrument rate.
Note: If a transitional instrument applies to an employee who is covered by a transitional minimum wage instrument, then (subject to the continued application of the AFPCS interaction rules) the employee must be paid at least the rate required by the continued AFPCS wages provisions.
Part 5 -- Provisions relating to Division 2B State instruments
16 Base rate of pay under Division 2B State award must not be less than national minimum wage order rate etc.
(1) If, on or after the Division 2B referral commencement:
(a) a Division 2B State award applies to a Division 2B State reference employee; and
(b) a national minimum wage order would, if the employee were an award/agreement free employee, require the employee's employer to pay the employee a base rate of pay (the employee's order rate ) that at least equals the national minimum wage, or a special national minimum wage, set by the order;
the base rate of pay payable to the employee under the Division 2B State award (the award rate ) must not be less than the employee's order rate.
(2) If the award rate is less than the employee's order rate, the Division 2B State award has effect in relation to the employee as if the award rate were equal to the employee's order rate.
17 Base rate of pay under Division 2B State employment agreement must not be less than Division 2B State award rate or modern award rate, or the national minimum wage order rate etc.
If employee is covered by a Division 2B State award or modern award that is in operation
(1) If, on or after the Division 2B referral commencement:
(a) a Division 2B State employment agreement applies to a Division 2B State reference employee; and
(b) a Division 2B State award or a modern award that is in operation covers the employee;
the base rate of pay payable to the employee under the agreement (the agreement rate ) must not be less than the base rate of pay that would be payable to the employee under the Division 2B State award or the modern award (the award rate ) if the Division 2B State award or the modern award applied to the employee.
(2) If the agreement rate is less than the award rate, the Division 2B State employment agreement has effect in relation to the employee as if the agreement rate were equal to the award rate.
If employee is not covered by a Division 2B State award or modern award that is in operation
(3) If, on or after the Division 2B referral commencement:
(a) a Division 2B State employment agreement applies to a Division 2B State reference employee; and
(b) the employee is not covered by a Division 2B State award or a modern award that is in operation; and
(c) a national minimum wage order would, if the employee were an award/agreement free employee, require the employee's employer to pay the employee a base rate of pay (the employee's order rate ) that at least equals the national minimum wage, or a special national minimum wage, set by the order;
the base rate of pay payable to the employee under the Division 2B State employment agreement (the agreement rate ) must not be less than the employee's order rate.
(4) If the agreement rate is less than the employee's order rate, the Division 2B State employment agreement has effect in relation to the employee as if the agreement rate were equal to the employee's order rate.
18 FWC may make determinations to phase - in the effect of rate increases resulting from item 16 or 17 etc.
(1) On application by an employer to whom a Division 2B State instrument applies, the FWC may make a determination the effect of which is to phase - in the effect of increases in base rates of pay that would otherwise take effect on a particular day because of item 16 or 17.
(2) The FWC must not make a determination under this item in relation to an employer unless it is satisfied that the determination is necessary to ensure the ongoing viability of the employer's enterprise.
(3) Items 16 and 17 have effect in relation to an employer subject to any determinations the FWC makes under this item.
19 Award/agreement free Division 2B State reference employee not to be paid less than State minimum amount
(1) This item applies in relation to an employee and a period if:
(a) the employee is a Division 2B State reference employee; and
(b) the transitional national minimum wage order, or another national minimum wage order, is in operation throughout the period; and
(c) the employee is an award/agreement free employee throughout the period, and no Division 2B State instrument applies to the employee at any time in the period; and
(d) the amount that is payable to the employee in relation to the period under the national minimum wage order is less than the amount (the State minimum amount ) that would be payable to the employee in relation to the period under the State minimum wages instruments (see subitem (4)).
(2) The national minimum wage order has effect, in relation to the employee and the period, as if it instead required the employer to pay the employee the State minimum amount.
(3) In working out the State minimum amount, any increases of rates (whether because of indexation or otherwise) that would have taken effect after the Division 2B State referral commencement under State minimum wages instruments are to be disregarded.
(4) The State minimum wages instruments , in relation to the employee, are orders, decisions or rulings (however described), as in force immediately before the Division 2B referral commencement:
(a) that were made by a State industrial body under a State industrial law of the Division 2B referring State; and
(b) that provide for employees to be paid a minimum wage or a minimum rate of remuneration, or that affect the entitlement of such employees to be paid a minimum wage or a minimum rate of remuneration.
(5) This item has effect subject to the regulations, which may:
(a) provide for how amounts referred to in paragraph (1)(d) are to be worked out (for example, in relation to casual employees); or
(b) provide for how a national minimum wage order has effect because of subitem (2); or
(c) provide that certain orders, decisions or rulings (however described) made by a State industrial body are, or are not, State minimum wages instruments as defined in subitem (4).
20 Variation of Division 2B State awards in annual wage reviews under the FW Act
(1) In an annual wage review, the FWC may make a determination varying terms of a Division 2B State award relating to wages.
(2) For that purpose, Division 3 of Part 2 - 6 of the FW Act (other than section 292) applies to terms of a Division 2B State award relating to wages in the same way as it applies to a modern award.