Commonwealth Consolidated Acts Commonwealth Consolidated ActsPart 1 -- Treatment of transitional awards and common rules as transitional instruments etc.
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
1 Item 2 of Schedule 2
Insert:
common rule means a common rule within the meaning of clauses 82 to 87 of Schedule 6 to the WR Act (including those clauses as they continue to apply because of item 8A of Schedule 3).
2 Item 2 of Schedule 2
Insert:
State reference common rule : see subitem 2A(2) of Schedule 3.
3 Item 2 of Schedule 2
Insert:
State reference employee : see subitem 2A(3) of Schedule 3.
4 Item 2 of Schedule 2
Insert:
State reference employer : see subitem 2A(4) of Schedule 3.
5 Item 2 of Schedule 2
Insert:
State reference transitional award : see subitem 2A(1) of Schedule 3.
6 Item 2 of Schedule 2
Insert:
State reference transitional award or common rule means a State reference transitional award or a State reference common rule.
7 Item 2 of Schedule 2
Insert:
Victorian employment agreement : see item 41 of Schedule 3.
8 After paragraph 2(2)(a) of Schedule 3
Insert:
(aa) a State reference transitional award or common rule;
9 Subitem 2(2) of Schedule 3 (note 4)
Repeal the note, substitute:
Note 4: For transitional provisions relating to other transitional awards, see Schedule 20.
10 At the end of subitem 2(3) of Schedule 3
Add:
Note: Victorian employment agreements are not continued as transitional instruments. For provisions relating to these agreements, see Part 7 of this Schedule.
11 After subitem 2(3) of Schedule 3
Insert:
(3A) If a State reference common rule comes into effect on or after the WR Act repeal day under the provisions that continue to apply because of item 8A, the State reference common rule becomes a transitional instrument when the common rule comes into effect.
12 Paragraph 2(5)(a) of Schedule 3
After "awards," (first occurring), insert "State reference transitional awards or common rules,".
13 After item 2 of Schedule 3
Insert:
2A Meanings of State reference transitional award and State reference common rule
(1) A State reference transitional award is a transitional award that covers:
(a) one or more specified State reference employers; and
(b) specified State reference employees of those employers.
Note: A transitional award includes a transitional Victorian reference award.
(2) A State reference common rule is a common rule that covers:
(a) specified State reference employers; and
(b) specified State reference employees of those employers.
(3) A State reference employee is an employee who is a national system employee only because of section 30C of the FW Act.
(4) A State reference employer is an employer that is a national system employer only because of section 30D of the FW Act.
(5) If:
(a) a transitional award (the current award ) covers one or more State reference employers, and State reference 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 transitional awards as follows:
(c) a State reference 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 transitional award 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.
14 At the end of Part 2 of Schedule 3
Add:
8A Continuing application of provisions of the WR Act about common rules
(1) Subject to this item, clauses 82 to 87 of Schedule 6 to the WR Act continue to apply on and after the WR Act repeal day in relation to State reference common rules.
(2) Clauses 82 to 87 continue to apply as if:
(a) references in the clauses to the transitional period (including references to the end of the transitional period) were omitted; and
(b) a reference in the clauses to the Commission were instead a reference to FWA; and
(c) a reference in the clauses to a Registrar were instead a reference to the General Manager of FWA; and
(d) a reference in the clauses to the Rules of the Commission were instead a reference to the procedural rules of FWA.
(3) Subitem ( 2) has effect unless the context otherwise requires and subject to the regulations.
Note: For example, paragraph ( 2)(a) does not apply if the reference is to something that the Commission did before the WR Act repeal day (or before the reform commencement).
15 After item 12 of Schedule 3
Insert:
12A State reference transitional awards: variation and revocation
General provisions
(1) Subject to this item, Divisions 5 (other than subsections 554(1) to (4)) and 6 of Part 10 of the WR Act apply on and after the WR Act repeal day in relation to transitional instruments that are State reference transitional awards as if:
(a) references to the Commission were instead references to FWA; and
(b) references to an award included references to a State reference transitional award.
Note 1: Items 10 and 11 apply instead of subsections 554(1) to (4) of the WR Act.
Note 2: For variation of State reference common rules, see the provisions continued in effect by item 8A.
(2) To avoid doubt, for the purpose of sections 552 and 553 of the WR Act, as applied by subitem ( 1) in relation to State reference transitional awards, "minimum safety net entitlements" includes minimum safety net entitlements relating to wages.
Note: For variation of terms relating to wages after the end of the bridging period, see subitems ( 4) to (6).
(3) FWA must perform its powers and functions under Divisions 5 and 6 in a way that furthers the objects of Part 10 of the WR Act.
Special provisions about variation or revocation after the end of the bridging period
(4) A State reference transitional award cannot be varied or revoked after the end of the bridging period except as follows:
(a) a State reference transitional award, other than terms relating to wages, can be varied after the end of the bridging period under section 553 of the WR Act;
(b) terms of a State reference transitional award relating to wages can be varied after the end of the bridging period in an annual wage review under the FW Act as provided for in subitem ( 5);
(c) a State reference transitional award can be varied after the end of the bridging period as a result of FWA continuing to deal with a matter that it was dealing with before the end of the bridging period.
(5) In an annual wage review, FWA may make a determination varying terms of a State reference transitional award relating to wages.
(6) For the purpose of subitem ( 5), Division 3 of Part 2 - 6 of the FW Act (other than section 292) applies to terms of a State reference transitional award relating to wages in the same way as it applies to a modern award.
16 At the end of Schedule 3
Add:
Part 7--Victorian employment agreements
41 Part applies to Victorian employment agreements
This Part applies to a Victorian employment agreement that was in force in relation to an employer and an employee (the parties ) under Division 12 of Part 21 of the WR Act immediately before the WR Act repeal. A Victorian employment agreement is an employment agreement within the meaning of that Division.
42 Victorian employment agreement enforceable as a contract
On and after the WR Act repeal day the Victorian employment agreement is enforceable by one of the parties against the other party as if it were a contract. The provisions of Division 12 of Part 21 of the WR Act do not continue to apply in relation to the agreement.
17 Subitem 2(2A) of Schedule 6
Omit "an award, if the award", substitute "an award or a State reference transitional award, if the award or State reference transitional award".
18 Subitem 3(1) of Schedule 7
Insert:
award includes a State reference transitional award or common rule.
19 Paragraph 13(2)(a) of Schedule 7
After "an award", insert ", a State reference transitional award or common rule,".
20 At the end of item 18 of Schedule 7
Add:
State reference transitional awards or common rules: transitional APCSs not relevant
(5) If the relevant award - based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded.
Note: State reference transitional awards or common rules contain terms dealing with wages.
21 At the end of item 19 of Schedule 7
Add:
State reference transitional awards or common rules: transitional APCSs not relevant
(6) If the relevant award - based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded.
Note: State reference transitional awards or common rules contain terms dealing with wages.
22 Item 21 of Schedule 7
After "awards" (last occurring), insert "(including State reference transitional awards and common rules)".
23 Paragraph 25(3)(a) of Schedule 7
After "an award", insert "or a State reference transitional award or common rule".
24 Subitem 27(5) of Schedule 8
Insert:
award includes a State reference transitional award.
25 At the end of item 5 of Schedule 9
Add:
(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.
26 At the end of paragraph 5(2)(d) of Schedule 10
Add "or a State reference transitional award or common rule".
27 After subitem 2(2) of Schedule 11
Insert:
(2A) For the purpose of the continued application, by subitem ( 2), of Division 5 of Part 11 of the WR Act:
(a) a reference in those provisions to an award is taken to include a reference to a State reference transitional award; and
(b) despite item 6 of Schedule 2, paragraph 885(1)(e) of that Act does not continue to apply.
Note: Paragraph 885(1)(e) would otherwise have disapplied Division 5 of Part 11 of the WR Act.
28 Subitem 5(2) of Schedule 11
After "award", insert "or a State reference transitional award".
29 Subitem 8(1) of Schedule 11
After "operation", insert "and other than a State reference common rule".
30 At the end of paragraph 8(2)(b) of Schedule 11
Add ", other than a State reference common rule".
31 Paragraph 13(2)(a) of Schedule 18
Omit ", a transitional award (including a transitional Victorian reference award) or a common rule", substitute "or a transitional award that is not a WR Act instrument".
32 Item 1 of Schedule 20
Repeal the item, substitute:
1 Schedule 6 to the WR Act
(1) Schedule 6 to the WR Act ( continued Schedule 6 ) continues to apply on and after the WR Act repeal day in accordance with this Schedule.
(2) Except for instrument content rules and instrument interaction rules, nothing in this Schedule or continued Schedule 6 applies to State reference transitional awards or common rules.
Note: State reference transitional awards or common rules are continued in existence by Schedule 3 as transitional instruments.
(3) Without limiting subitem ( 1) (but subject to subitem ( 2)), transitional awards that were in operation under Schedule 6 to the WR Act immediately before the WR Act repeal day continue in operation as continuing Schedule 6 instruments on and after the repeal day in accordance with continued Schedule 6.
Note 1: In addition to provisions of this Schedule, Part 3 of Schedule 2 may also affect continuing Schedule 6 instruments.
Note 2: Compliance with continuing Schedule 6 instruments is dealt with in Schedule 16.
Part 2 -- State reference public sector modern awards
Division 1--State reference public sector transitional award modernisation
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
33 Subsection 2(1)(after table item 4)
Insert:
4A. Schedule 6A | At the same time as the provision(s) covered by table item 2. |
|
34 Item 2 of Schedule 2 (at the end of the definition of modernisation - related reduction in take - home pay )
Add:
; and (c) in relation to the State reference public sector transitional award modernisation process--has the meaning given by subitem 13(3) of Schedule 6A.
35 Item 2 of Schedule 2
Insert:
State reference public sector employee : see subitem 2(2) of Schedule 6A.
36 Item 2 of Schedule 2
Insert:
State reference public sector employer : see subitem 2(3) of Schedule 6A.
37 Item 2 of Schedule 2
Insert:
State reference public sector modern award : see subitem 3(2) of Schedule 6A.
38 Item 2 of Schedule 2
Insert:
State reference public sector modern awards objective : see subitem 7(2) of Schedule 6A.
39 Item 2 of Schedule 2
Insert:
State reference public sector transitional award : see subitem 2(1) of Schedule 6A.
40 Item 2 of Schedule 2
Insert:
State reference public sector transitional award modernisation process : see subitem 3(1) of Schedule 6A.
41 Item 2 of Schedule 2 (definition of take - home pay )
Omit "and subitem 11(2) of Schedule 6", substitute ", subitem 11(2) of Schedule 6 and subitem 13(2) of Schedule 6A".
42 Item 2 of Schedule 2 (definition of take - home pay order )
Omit "and subitem 12(1) of Schedule 6", substitute ", subitem 12(1) of Schedule 6 and subitem 14(1) of Schedule 6A".
43 Subitem 29(1) of Schedule 3 (note)
Repeal the note, substitute:
Note: A modern award cannot be expressed to cover an employee who is covered by a transitional instrument that is an enterprise instrument or a State reference public sector transitional award (see subsections 143(8) and (10) of the FW Act).
44 Schedule 5 (heading)
Repeal the heading, substitute:
Schedule 5--Modern awards (other than modern enterprise awards and State reference public sector modern awards)
45 Subitem 3(3) of Schedule 5
After "enterprise instrument" (wherever occurring), insert "or a State reference public sector transitional award".
46 Subitem 3(3) of Schedule 5 (note)
After "Note", insert "1.".
47 At the end of subitem 3(3) of Schedule 5
Add:
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.
48 Item 6 of Schedule 5 (heading)
After " modern enterprise awards ", insert " and State reference public sector modern awards ".
49 Subitem 6(1) of Schedule 5
After "modern enterprise awards", insert "and State reference public sector modern awards".
50 Subitem 2(2) of Schedule 6
After "award - based transitional instrument", insert ", other than a State reference public sector transitional award,".
51 After Schedule 6
Insert:
Schedule 6A--State reference public sector modern awards
Part 1--Preliminary
1 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 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 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 FWA 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) FWA must consider the application, and must make a State reference public sector modern award covering the proposed parties if FWA 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 FWA to terminate the current 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) FWA must not terminate the current award unless FWA 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 is in operation and that is appropriate for them.
(4) In deciding whether to terminate the current award, FWA 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 FWA 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 Further obligation of FWA 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, FWA 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 FWA 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, FWA 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, FWA 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) FWA 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 FWA 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) FWA 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 FWA) has effect as if subsection ( 2) of that section included a reference to FWA'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 FWA 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, FWA 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 FWA considers appropriate to remedy the situation.
(2) FWA 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 FWA 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, FWA 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) FWA must not make a take - home pay order in relation to an employee or class of employees if:
(a) FWA considers that the modernisation - related reduction in take - home pay is minor or insignificant; or
(b) FWA is satisfied that the employee or employees have been adequately compensated in other ways for the reduction.
(2) FWA 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.
Division 2--Other amendments related to State reference public sector modern awards
52 Section 12 (at the end of the definition of award modernisation process )
add:
; and (c) the State reference public sector transitional award modernisation process provided for by Part 2 of Schedule 6A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 .
53 Section 12 (at the end of the definition of coverage terms )
add:
; and (c) in relation to a State reference public sector modern award: see section 143B.
54 Section 12
Insert:
"State reference public sector employee" : see subsection 168E(3).
55 Section 12
Insert:
"State reference public sector employer" : see subsection 168E(4).
56 Section 12
Insert:
"State reference public sector modern award" : see subsection 168E(2).
57 Section 12
Insert:
"State reference public sector modern awards objective" : see section 168F.
58 At the end of subsection 49(3)
Insert:
Note: For when a State reference public sector modern award comes into operation, see section 168J.
59 Section 132 (after the paragraph relating to Division 7)
Insert:
Division 8 contains additional provisions relating to State reference public sector modern awards.
60 At the end of section 143
Add:
State reference public sector modern awards
(10) A modern award (other than a State reference public sector modern award) must be expressed not to cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ), or employers in relation to those employees.
(11) This section does not apply to State reference public sector modern awards.
Note: The heading to section 143 is altered by adding at the end " and State reference public sector modern awards ".
61 After section 143A
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143B Coverage terms of State reference public sector modern awards
Coverage terms must be included
(1) A State reference public sector modern award must include terms ( coverage terms ) setting out, in accordance with this section, the employers, employees and organisations that are covered by the 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 section:
(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.
62 At the end of Part 2 - 3
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Division 8 -- Additional provisions relating to State reference public sector modern awards
168E State reference public sector modern awards
(1) This Division contains additional provisions that relate to State reference public sector modern awards. The provisions in this Division have effect despite anything else in this Part.
(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 employee is an employee:
(a) who is a national system employee only because of section 30C; and
(b) who is a State public sector employee as defined in section 30A.
(4) A State reference public sector employer is an employer:
(a) that is a national system employer only because of section 30D; and
(b) that is a State public sector employer as defined in section 30A.
168F The State reference public sector modern awards objective
The State reference public sector modern awards objective
(1) FWA 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 .
When does the State reference public sector modern awards objective apply?
(2) The State reference public sector modern awards objective applies to the performance of FWA's functions or powers under this Act, so far as they relate to State reference public sector modern 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 State reference public sector modern awards objective.
168G Making State reference public sector modern awards on application
(1) FWA may make a State reference public sector modern award (the proposed award ) only on application under section 158 by:
(a) a State reference public sector employer; or
(b) an organisation that is entitled to represent the industrial interests of a State reference public sector employer or of a State reference public sector employee.
(2) The application must specify the employers, employees and organisations (the proposed parties ) proposed to be covered by the proposed award.
(3) FWA must consider the application, and must make a State reference public sector modern award covering the proposed parties if FWA is satisfied that:
(a) the employers and organisations that are proposed parties have agreed to the making of the application; and
(b) either:
(i) none of the employers and employees that are proposed parties are already covered by a State reference public sector modern award; or
(ii) if there are employers and employees that are proposed parties and that are already covered by a State reference public sector modern award (the current award )--it is appropriate (in accordance with section 168L) to vary the coverage of the current award so that the employers or employees cease to be covered by the current award.
(4) FWA must not make a State reference public sector modern award otherwise than in accordance with this Division or in accordance with Part 2 of Schedule 6A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 .
168H State reference public sector modern awards may contain State - based differences
Section 154 (which deals with terms that contain State - based differences) does not apply in relation to State reference public sector modern awards.
168J When State reference public sector modern awards come into operation
Section 49 does not apply for the purpose of determining when a 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.
168K Rules about revoking State reference public sector modern awards
(1) FWA may make a determination revoking a State reference public sector modern award only on application under section 158 by:
(a) a State reference public sector employer; or
(b) an organisation that is entitled to represent the industrial interests of a State reference public sector employer or of a State reference public sector employee.
(2) FWA must not make a determination revoking a State reference public sector modern award unless FWA is satisfied that:
(a) the modern award is obsolete or no longer capable of operating; or
(b) all the employees covered by the modern award will, when the revocation comes into operation, be covered by a different modern award (other than the miscellaneous modern award) that is appropriate for them.
(3) In deciding whether to revoke a State reference public sector modern award, FWA must take into account the following:
(a) the circumstances that led to the making of the modern award;
(b) the terms and conditions of employment applying in the industry or occupation in which the persons covered by the modern award operate, and the extent to which those terms and conditions are reflected in the modern award;
(c) the extent to which the modern award facilitates arrangements, and provides terms and conditions of employment, referred to in paragraphs 168F(1)(a) and (b);
(d) the likely impact on the persons covered by the modern award of a decision to revoke, or not to revoke, the modern award;
(e) the views of the persons covered by the modern award;
(f) any other matter prescribed by the regulations.
168L Rules about varying coverage of State reference public sector modern awards
(1) FWA may make a determination varying the coverage of a State reference public sector modern award only on application under section 158 by:
(a) a State reference public sector employer; or
(b) an organisation that is entitled to represent the industrial interests of a State reference public sector employer or of a State reference public sector employee.
(2) FWA must not make a determination varying the coverage of a State reference public sector modern award so that it ceases to be a State reference public sector modern award.
(3) In deciding whether to make a determination varying the coverage of a State reference public sector modern award in some other way, FWA must take into account the following:
(a) the circumstances that led to the making of the modern award;
(b) the terms and conditions of employment applying in the industry or occupation 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 award;
(c) the likely impact on the persons covered, or proposed to be covered, by the modern award of a decision to make, or not make, the variation;
(d) if the variation would result in the modern award covering one or more additional classes of employers or employees--whether it is appropriate for that modern award to cover those classes of employers or employees, as well as the classes of employers and employees that it already covers;
(e) the views of the persons covered, or proposed to be covered, by the modern award;
(f) any other matter prescribed by the regulations.
63 Subsection 292(1)
After "modern enterprise award" (wherever occurring), insert "or a State reference public sector modern award".