Commonwealth Consolidated Acts Commonwealth Consolidated ActsNote: See section 4A.
(1) In this Schedule:
"discriminatory" :
(a) in relation to a preserved State agreement--has the meaning given by subclause 18(4); and
(b) in relation to a notional agreement preserving State awards--has the meaning given by subclause 41(4).
"notional agreement preserving State awards" is an agreement that is taken to come into operation under clause 31.
"preserved collective State agreement" is an agreement that is taken to come into operation under clause 10.
"preserved individual State agreement" is an agreement that is taken to come into operation under clause 3.
"preserved notional entitlement" has the meaning given by subclause 46(1).
"preserved notional term" has the meaning given by subclause 45(1).
"preserved State agreement" means:
(a) a preserved individual State agreement; or
(b) a preserved collective State agreement.
(2) A reference in regulations made for the purposes of clause 9, subclause 19(1), clause 37 or subclause 42(1) to an independent contractor is not confined to a natural person.
The objects of this Schedule are:
(a) to preserve for a time the terms and conditions of employment, as they were immediately before the reform commencement, for those employees:
(i) who, but for the reforms commenced at that time, would be bound by a State employment agreement, a State award or a State or Territory industrial law; or
(ii) whose employment, but for the reforms commenced at that time, would be subject to a State employment agreement, a State award or a State or Territory industrial law; and
(b) to encourage employees and employers for whom those terms and conditions have been preserved to enter into workplace agreements during that time.
Part 2 -- Preserved State agreements
Division 1 -- Preserved individual State agreements
Subdivision A -- What is a preserved individual State agreement?
3 Preserved individual State agreements
If, immediately before the reform commencement:
(a) the terms and conditions of employment of an employee were determined, in whole or in part, under a State employment agreement (the original individual agreement ); and
(b) that employee was the only employee who was bound by the agreement, or whose employment was subject to the agreement;
a preserved individual State agreement is taken to come into operation on the reform commencement.
Subdivision B -- Who is bound by or subject to a preserved individual State agreement?
4 Who is bound by or subject to a preserved individual State agreement?
(1) Any person who:
(a) immediately before the reform commencement, was bound by, or a party to, the original individual agreement, under the terms of that agreement or a State or Territory industrial law as in force at that time; and
(b) is one of the following:
(i) an employer;
(ii) an employee;
(iii) an organisation;
is bound by the preserved individual State agreement.
(2) The employment of a person is subject to the preserved individual State agreement if, immediately before the reform commencement, that employment was subject to the original individual agreement.
Subdivision C -- Terms of a preserved individual State agreement
5 Terms of a preserved individual State agreement
(1) A preserved individual State agreement is taken to include the terms of the original individual agreement, as in force immediately before the reform commencement.
(2) If, immediately before the reform commencement, a term of another State employment agreement determined, in whole or in part, a term or condition of employment of the employee who was bound by, or whose employment was subject to, the original individual agreement, then, to that extent, that term of the other State employment agreement, as in force at that time, is taken to be a term of the preserved individual State agreement.
(3) If, immediately before the reform commencement, a term of a State award determined, in whole or in part, a term or condition of the employment of the employee who was bound by, or whose employment was subject to, the original individual agreement, then, to that extent, that term, as in force at that time, is taken to be a term of the preserved individual State agreement.
(4) If, immediately before the reform commencement, a provision of a State or Territory industrial law determined, in whole or in part, a preserved entitlement of the employee who was bound by, or whose employment was subject to, the original individual agreement, then, to that extent, that provision, as in force at that time, is taken to be a term of the preserved individual State agreement.
(5) In this clause:
"preserved entitlement" means:
(a) an entitlement to:
(i) annual leave and annual leave loadings; or
(ii) parental leave, including maternity leave and adoption leave; or
(iii) personal/carer's leave; or
(iv) leave relating to bereavement; or
(v) ceremonial leave; or
(vi) notice of termination; or
(vii) redundancy pay; or
(viii) loadings for working overtime or shift work; or
(ix) penalty rates, including the rate of payment for work on a public holiday; or
(x) rest breaks; or
(b) another prescribed entitlement.
6 Nominal expiry date of a preserved individual State agreement
The nominal expiry date of a preserved individual State agreement is:
(a) the day on which the original individual agreement would nominally have expired under the relevant State or Territory industrial law; or
(b) if that day falls after the end of a period of 3 years beginning on the commencement of the original individual agreement--the last day of that 3 year period.
7 Powers of State industrial authorities
(1) If a preserved individual State agreement confers a function or power on a State industrial authority, that function must not be performed and that power must not be exercised by the State industrial authority on or after the reform commencement.
(2) However, the employer and the persons bound by the preserved individual State agreement may, by agreement, confer such a function or power on the Commission, provided it does not relate to the resolution of a dispute about the application of the agreement.
8 Dispute resolution processes
(1) A preserved individual State agreement is taken to include a term requiring disputes about the application of the agreement to be resolved in accordance with the model dispute resolution process.
(2) Any term of the preserved individual State agreement that would otherwise deal with the resolution of those disputes is void to that extent.
A term of a preserved individual State agreement is void to the extent that it contains prohibited content of a prescribed kind.
Note: The Employment Advocate can alter the document recording the terms of a preserved State agreement to remove prohibited content of a prescribed kind (see clause 19).
Division 2 -- Preserved collective State agreements
Subdivision A -- What is a preserved collective State agreement?
10 Preserved collective State agreements
If, immediately before the reform commencement:
(a) the terms and conditions of employment of an employee were determined, in whole or in part, under a State employment agreement (the original collective agreement ); and
(b) that employee was one of a number of employees who were bound by the agreement, or whose employment was subject to the agreement;
a preserved collective State agreement is taken to come into operation on the reform commencement.
Subdivision B -- Who is bound by or subject to a preserved collective State agreement?
11 Who is bound by a preserved collective State agreement?
Current employees
(1) Any person who:
(a) immediately before the reform commencement, was bound by, or a party to, the original collective agreement, under the terms of that agreement or a State or Territory industrial law as in force at that time; and
(b) is one of the following:
(i) an employer;
(ii) an employee;
(iii) an organisation;
is bound by the preserved collective State agreement.
Future employees
(2) If:
(a) an employer who is bound by a preserved collective State agreement employs a person after the reform commencement; and
(b) under the terms of the original collective agreement, as in force immediately before the reform commencement, the person would have been bound by that agreement;
that person is bound by the preserved collective State agreement.
12 Whose employment is subject to a preserved collective State agreement?
Current employees
(1) The employment of a person is subject to a preserved collective State agreement if that employment was, immediately before the reform commencement, subject to the original collective agreement.
Future employees
(2) If:
(a) an employer who is bound by a preserved collective State agreement employs a person after the reform commencement; and
(b) under the terms of the original collective agreement, as in force immediately before the reform commencement, that person's employment would have been subject to that agreement;
that employment is subject to the preserved collective State agreement.
Subdivision C -- Terms of a preserved collective State agreement
13 Terms of a preserved collective State agreement
(1) A preserved collective State agreement is taken to include the terms of the original collective agreement, as in force immediately before the reform commencement.
(2) If, immediately before the reform commencement, a term of a State award would have determined, in whole or in part, a term or condition of employment of a person who would have been bound by, or whose employment would have been subject to, the original collective agreement, then, to that extent, that term, as in force at that time, is taken to be a term of the preserved collective State agreement.
(3) If, immediately before the reform commencement, a provision of a State or Territory industrial law would have determined, in whole or in part, a preserved entitlement of a person who would have been bound by, or whose employment would have been subject to, the original collective agreement, then, to that extent, that provision, as in force at that time, is taken to be a term of the preserved collective State agreement.
(4) In this clause:
"preserved entitlement" means:
(a) an entitlement to:
(i) annual leave and annual leave loadings; or
(ii) parental leave, including maternity leave and adoption leave; or
(iii) personal/carer's leave; or
(iv) leave relating to bereavement; or
(v) ceremonial leave; or
(vi) notice of termination; or
(vii) redundancy pay; or
(viii) loadings for working overtime or shift work; or
(ix) penalty rates, including the rate of payment for work on a public holiday; or
(x) rest breaks; or
(b) another prescribed entitlement.
14 Nominal expiry date of a preserved collective State agreement
The nominal expiry date of a preserved collective State agreement is:
(a) the day on which the original collective agreement would nominally have expired under the relevant State or Territory industrial law; or
(b) if that day falls after the end of a period of 3 years beginning on the commencement of the original collective agreement--the last day of that 3 year period.
15 Powers of State industrial authorities
(1) If a preserved collective State agreement confers a function or power on a State industrial authority, that function must not be performed and that power must not be exercised by the State industrial authority on or after the reform commencement.
(2) However, the employer and the persons bound by the preserved collective State agreement may, by agreement, confer such a function or power on the Commission, provided it does not relate to the resolution of a dispute about the application of the agreement.
15A Dispute resolution processes
(1) A preserved collective State agreement is taken to include a term requiring disputes about the application of the agreement to be resolved in accordance with the model dispute resolution process.
(2) Any term of the preserved collective State agreement that would otherwise deal with the resolution of those disputes is void to that extent.
A term of a preserved collective State agreement is void to the extent that it contains prohibited content of a prescribed kind.
Note: The Employment Advocate can alter the document recording the terms of a preserved State agreement to remove prohibited content of a prescribed kind (see clause 19).
Division 2A -- Effect and operation of a preserved State agreement
15C Effect of a preserved State agreement
(1) Except as provided in or under this Part, or otherwise in or under this Act, a preserved State agreement has effect according to its terms.
(2) This Part has effect despite the terms of the preserved State agreement itself, or any State award or law of a State or Territory.
(3) None of the terms and conditions of employment included in the preserved State agreement are enforceable under the law of a State or Territory.
15D Effect of awards while a preserved State agreement in operation
An award has no effect in relation to an employee while the terms of a preserved State agreement operate in relation to the employee.
The Australian Fair Pay and Conditions Standard does not apply to an employee if the employee is bound by a preserved State agreement, or the employee's employment is subject to a preserved State agreement.
15F Relationship between a preserved State agreement and public holiday entitlement
Division 1A of Part VIA (public holidays) does not apply to an employee if the employee is bound by a preserved State agreement, or the employee's employment is subject to a preserved State agreement.
15G When preserved State agreements cease to operate
(1) A preserved State agreement ceases to be in operation if it is terminated under clause 21.
(2) A preserved State agreement ceases to be in operation, in relation to an employee, when one of the following comes into operation in relation to the employee:
(a) a workplace agreement;
(b) a workplace determination;
even if the nominal expiry date of the preserved State agreement has not passed.
(3) If a preserved State agreement has ceased operating in relation to an employee because of subclause (2), the agreement can never operate again in relation to that employee.
Division 3 -- Varying a preserved State agreement
16 Varying a preserved State agreement
A preserved State agreement may only be varied on or after the reform commencement in accordance with this Division.
17 Variation to remove ambiguity or uncertainty
The Commission may, on application by any person bound by a preserved State agreement or whose employment is subject to the agreement, by order, vary the agreement for the purpose of removing ambiguity or uncertainty.
18 Variation to remove discrimination
(1) If a preserved State agreement is referred to the Commission under section 46PW of the Human Rights and Equal Opportunity Commission Act 1986 , the Commission must convene a hearing to review the agreement.
(2) In a review under subclause (1):
(a) the Commission must take such steps as it thinks appropriate to ensure that each person bound by the agreement is made aware of the hearing; and
(b) the Sex Discrimination Commissioner is entitled to intervene in the proceeding.
(3) If the Commission considers that a preserved State agreement reviewed under subclause (1) is discriminatory, the Commission must take the necessary action to remove the discrimination by making an order varying the agreement.
(4) A preserved State agreement is discriminatory if:
(a) the agreement has been referred to the Commission under section 46PW of the Human Rights and Equal Opportunity Commission Act 1986 ; and
(b) the agreement requires a person to do any act that would be unlawful under Part II of the Sex Discrimination Act 1984 , except for the fact that the act would be done in direct compliance with the agreement.
For the purposes of this definition, the fact that an act is done in direct compliance with the preserved State agreement does not of itself mean that the act is reasonable.
19 Variation to remove prohibited content
Initiating consideration of removal of prohibited content
(1) The Employment Advocate may exercise his or her power under subclause (9) to vary a preserved State agreement to remove prohibited content of a prescribed kind:
(a) on his or her own initiative; or
(b) on application by any person.
(2) This subclause and subclauses (3) to (6) and (9) to (12) are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the Employment Advocate's decision whether to make a variation under subclause (9).
Employment Advocate must give notice that considering variation
(3) If the Employment Advocate is considering making a variation to a preserved State agreement under subclause (9), the Employment Advocate must give the persons mentioned in subclause (4) a written notice meeting the requirements in subclause (5).
(4) The persons are:
(a) an employer that is bound by the preserved State agreement; and
(b) if the agreement is a preserved individual State agreement--the employee; and
(c) if an organisation is bound by the agreement--the organisation.
Matters to be contained in notice
(5) The requirements mentioned in subclause (3) are that the notice must:
(a) be dated; and
(b) state that the Employment Advocate is considering making the variation; and
(c) state the reasons why the Employment Advocate is considering making the variation; and
(d) set out the terms of the variation; and
(e) invite each person mentioned in subclause (6) to make a written submission to the Employment Advocate about whether the Employment Advocate should make the variation; and
(f) state that any submission must be made within the period (the objection period ) of 28 days after the date of the notice.
(6) The persons are:
(a) an employer that is bound by the preserved State agreement; and
(b) each person whose employment is subject to the agreement as at the date of the notice; and
(c) if an organisation is bound by the agreement--the organisation.
Employer must ensure employees have ready access to notice
(7) An employer that has received a notice under subclause (3) in relation to the preserved State agreement must take reasonable steps to ensure that all persons whose employment is subject to the preserved State agreement at a time during the objection period are given a copy of the notice within the period:
(a) starting on the day the employer received the notice; and
(b) ending at the end of the objection period.
(8) Subclause (7) is a civil remedy provision and may be enforced under Division 11 of Part VB as if the preserved State agreement were a workplace agreement.
Employment Advocate must remove prohibited content from agreement
(9) If the Employment Advocate is satisfied that a term of the preserved State agreement contains prohibited content of the prescribed kind, the Employment Advocate must vary the agreement so as to remove that content.
(10) In making a decision under subclause (9), the Employment Advocate must consider all written submissions (if any) received within the objection period from a person mentioned in subclause (6).
(11) The Employment Advocate must not make the variation before the end of the objection period.
(12) If the Employment Advocate decides to make the variation, he or she must:
(a) give the persons mentioned in subclause (4) written notice of the decision, including the terms of the variation; and
(b) if the agreement is a preserved collective State agreement--publish a notice in the Gazette stating that the variation has been made and setting out particulars of the variation.
Employer must give employees notice of removal of prohibited content
(13) An employer that has received a notice under subclause (12) in relation to a preserved collective State agreement must take reasonable steps to ensure that all persons whose employment is subject to the agreement when the employer receives the notice are given a copy of the notice within 21 days.
(14) Subclause (13) is a civil remedy provision and may be enforced under Division 11 of Part VB as if the preserved collective State agreement were a collective agreement.
Division 4 -- Enforcing preserved State agreements
20 Enforcing a preserved State agreement
(1) A preserved collective State agreement may be enforced as if it were a collective agreement.
(2) A workplace inspector has the same functions and powers in relation to a preserved collective State agreement as he or she has in relation to a collective agreement.
(3) A preserved individual State agreement may be enforced as if it were an AWA.
(4) A workplace inspector has the same functions and powers in relation to a preserved individual State agreement as he or she has in relation to an AWA.
Division 5 -- Terminating a preserved State agreement
21 Terminating a preserved State agreement
(1) This clause applies to the termination of a preserved State agreement on or after the reform commencement day.
(2) If the agreement is a preserved collective State agreement, it may only be terminated in the way in which a certified agreement could have been terminated immediately before the reform commencement, and the Commission has the same powers in relation to that termination as it would have had at that time in relation to the termination of a certified agreement.
(3) If the agreement is a preserved individual State agreement, it may only be terminated in the way in which an AWA could have been terminated immediately before the reform commencement, and the Commission has the same powers in relation to that termination as it would have had at that time in relation to the termination of an AWA.
22 Coercion of persons to terminate a preserved State agreement
(1) A person must not:
(a) take or threaten to take any industrial action or other action; or
(b) refrain or threaten to refrain from taking any action;
with intent to coerce another person to agree, or not to agree, to terminate or approve the termination of a preserved State agreement.
(2) Subclause (1) does not apply to protected action (within the meaning of this Act as in force after the reform commencement).
(3) The following provisions in Division 10 of Part VIB of this Act as in force immediately before the reform commencement apply in relation to a contravention of subclause (1) as if it were a contravention of subsection 170CN(1) as in force at that time:
(a) paragraph 170ND(e);
(b) section 170NE;
(c) subsections 170NF(1), (2) and (7);
(d) section 170NG.
Division 6 -- Industrial action
(1) During the period beginning on the reform commencement day and ending on the nominal expiry date of a preserved collective State agreement, an employee, organisation or officer covered by subclause (2) must not organise or engage in industrial action (whether or not that action relates to a matter dealt with in the agreement).
Note 1: This subclause is a civil remedy provision: see subclause (4).
Note 2: Action that contravenes this subclause is not protected action (see clause 25).
(2) For the purposes of subclause (1), the following are covered by this subclause:
(a) an employee who is bound by the agreement;
(b) an organisation of employees that is bound by the agreement;
(c) an officer or employee of such an organisation acting in that capacity.
(3) An employer that is bound by a preserved collective State agreement must not engage in industrial action against an employee whose employment is subject to the agreement (whether or not that industrial action relates to a matter dealt with in the agreement) during the period beginning on the reform commencement and ending on the agreement's nominal expiry date.
Note 1: This subclause is a civil remedy provision: see subclause (4).
Note 2: Action that contravenes this subclause is not protected action (see clause 25).
(4) Subclauses (1) and (3) are civil remedy provisions.
(5) The Court may make one or more of the following orders in relation to a person who has contravened subclause (1) or (3):
(a) an order imposing a pecuniary penalty on the person;
(b) injunctions, and any other orders, that the Court considers necessary to stop the contravention or remedy its effects.
(6) The pecuniary penalty under paragraph (5)(a) cannot be more than 300 penalty units for a body corporate or 60 penalty units in any other case.
(7) An application for an order under subclause (5), in relation to a contravention of subclause (1), may be made by:
(a) the employer concerned; or
(b) a workplace inspector; or
(c) any person affected by the industrial action; or
(d) any other person prescribed by the regulations.
(8) An application for an order under subclause (5), in relation to a contravention of subclause (3), may be made by:
(a) the employee concerned; or
(b) an organisation of employees if:
(i) a member of the organisation is employed by the employer concerned; and
(ii) the contravention relates to, or affects, the member of the organisation, or work carried on by the member for that employer; or
(c) a workplace inspector; or
(d) any person affected by the industrial action; or
(e) any other person prescribed by the regulations.
Note: For other provisions about civil remedy provisions, see Division 4 of Part VIII.
(9) In this section:
"Court" means the Federal Court of Australia or the Federal Magistrates Court.
(1) An employee who is bound by a preserved individual State agreement must not engage in industrial action in relation to the employment to which the agreement relates, during the period beginning on the reform commencement and ending on the agreement's nominal expiry date.
Note 1: This subclause is a civil remedy provision: see subclause (3).
Note 2: Action that contravenes this subclause is not protected action (see clause 25).
(2) An employer that is bound by a preserved individual State agreement must not engage in industrial action in relation to the employment to which the agreement relates, during the period beginning on the reform commencement and ending on the agreement's nominal expiry date.
Note 1: This subclause is a civil remedy provision: see subclause (3).
Note 2: Action that contravenes this subclause is not protected action (see clause 25).
Civil remedy provisions
(3) Subclauses (1) and (2) are civil remedy provisions.
(4) The Court may make one or more of the following orders in relation to a person who has contravened subclause (1) or (2):
(a) an order imposing a pecuniary penalty on the person;
(b) injunctions, and any other orders, that the Court considers necessary to stop the contravention or remedy its effects.
(5) The pecuniary penalty under paragraph (4)(a) cannot be more than 300 penalty units for a body corporate or 60 penalty units in any other case.
(6) An application for an order under subclause (4), in relation to a contravention of subclause (1), may be made by:
(a) the employer concerned; or
(b) a workplace inspector; or
(c) any other person prescribed by the regulations.
(7) An application for an order under subclause (4), in relation to a contravention of subclause (2), may be made by:
(a) the employee concerned; or
(b) an organisation of employees that represents that employee if:
(i) that employee has requested the organisation to apply on that employee's behalf; and
(ii) a member of the organisation is employed by that employee's employer; and
(iii) the organisation is entitled, under its eligibility rules, to represent the industrial interests of that employee in relation to work carried on by that employee for the employer; or
(c) a workplace inspector; or
(d) any other person prescribed by the regulations.
Note: For other provisions about civil remedy provisions, see Division 4 of Part VIII.
(8) In this section:
"Court" means the Federal Court of Australia or the Federal Magistrates Court.
25 Industrial action taken before nominal expiry date not protected action
Engaging in or organising industrial action in contravention of clause 23 or 24 is not protected action for the purposes of this Act.
Division 6A -- Protected conditions
25A Protected conditions where employment was subject to preserved State agreement
(1) This clause applies if:
(a) a person's employment was subject to a preserved State agreement; and
(b) the agreement ceased to operate because a workplace agreement came into operation in relation to the employee.
(2) Protected preserved conditions:
(a) are taken to be included in the workplace agreement; and
(b) have effect in relation to the employment of that person; and
(c) have that effect subject to any terms of the workplace agreement that expressly exclude or modify all or part of them.
(3) Despite paragraph (2)(c), those protected preserved conditions have effect in relation to the employment of that person to the extent that those protected preserved conditions are about outworker conditions, despite any terms of the workplace agreement that provide, in a particular respect, a less favourable outcome for that person.
(4) In this clause:
"outworker" means an employee who, for the purposes of the business of the employer, performs work at private residential premises or at other premises that are not business or commercial premises of the employer.
"outworker conditions" means conditions (other than pay) for outworkers, but only to the extent necessary to ensure that their overall conditions of employment are fair and reasonable in comparison with the conditions of employment specified in a relevant award or awards for employees who perform the same kind of work at an employer's business or commercial premises.
"protected allowable award matters" means the following matters:
(a) rest breaks;
(b) incentive - based payments and bonuses;
(c) annual leave loadings;
(d) observance of days declared by or under a law of a State or Territory to be observed generally within that State or Territory, or a region of that State or Territory, as public holidays by employees who work in that State, Territory or region, and entitlements of employees to payment in respect of those days;
(e) days to be substituted for, or a procedure for substituting, days referred to in paragraph (d);
(f) monetary allowances for:
(i) expenses incurred in the course of employment; or
(ii) responsibilities or skills that are not taken into account in rates of pay for employees; or
(iii) disabilities associated with the performance of particular tasks or work in particular conditions or locations;
(g) loadings for working overtime or for shift work;
(h) penalty rates;
(i) outworker conditions;
(j) any other matter specified in the regulations.
Note: These matters are the same as certain allowable award matters mentioned in section 116.
"protected preserved condition" , in relation to the employment of a person, means a term of a State award or a provision of a State or Territory industrial law, as in force immediately before the reform commencement, that would have determined a term or condition of that employment, had the person been employed at that time and that employment not been subject to a State employment agreement, to the extent that the term or provision:
(a) is:
(i) about protected allowable award matters; or
(ii) incidental to a protected allowable award matter and may be included in an award as permitted by section 116I; or
(iii) a machinery provision that is in respect of a protected allowable award matter and may be included in an award as permitted by section 116I; and
(b) is not about:
(i) matters that are not allowable award matters because of section 116B; or
(ii) any other matters specified in the regulations.
26 Calling up contents of a preserved State agreement in a workplace agreement
(1) A workplace agreement may incorporate by reference under section 101C terms from a preserved State agreement as if the preserved State agreement were a workplace agreement.
(2) Despite subsection 101C(6), a term of a workplace agreement is not void to the extent that it incorporates by reference such terms.
27 Application of section 109B in relation to a preserved State agreement
Section 109B (which deals with applications for orders for protected action ballots) applies at a particular time in relation to a preserved collective State agreement that is in operation at that time as if the agreement were an existing collective agreement.
28 Application of Part IX in relation to a preserved State agreement
Part IX of this Act (which deals with right of entry) applies:
(a) in relation to a preserved collective State agreement in the same way as it applies in relation to a collective agreement; and
(b) in relation to a preserved individual State agreement in the same way as it applies in relation to an AWA.
29 Application of Part XA in relation to a preserved State agreement
Part XA of this Act (which deals with freedom of association) applies in relation to a preserved collective State agreement as if it were a collective agreement.
30 Regulations may apply, modify or adapt Act
(1) The Governor - General may make regulations for the purposes of:
(a) applying provisions of this Act or the Registration and Accountability of Organisations Schedule to preserved State agreements; and
(b) modifying or adapting provisions of this Act or that Schedule that apply to those agreements.
(2) Despite subsection 12(2) of the Legislative Instruments Act 2003 , regulations made under subclause (1) may be expressed to take effect from a date before the regulations are registered under that Act.
Part 3 -- Notional agreements preserving State awards
Division 1 -- What is a notional agreement preserving State awards?
Subdivision A -- What is a notional agreement preserving State awards?
31 Notional agreements preserving State awards
If, immediately before the reform commencement, the terms and conditions of employment of one or more employees in a single business or a part of a single business:
(a) were not determined under a State employment agreement; and
(b) were determined, in whole or in part, under a State award (the original State award ) or a State or Territory industrial law (the original State law );
a notional agreement preserving State awards is taken to come into operation on the reform commencement in respect of the business or that part of the business.
Subdivision B -- Who is bound by or subject to a notional agreement preserving State awards?
32 Who is bound by a notional agreement preserving State awards?
Current employees
(1) Any person who:
(a) immediately before the reform commencement, was bound by, or a party to, the original State award or original State law; and
(b) is one of the following:
(i) an employer in the business, or that part of the business;
(ii) an employee who is employed in the business, or that part of the business, who was so employed immediately before the reform commencement, who was not bound by, or a party to, a State employment agreement at that time and whose employment was not subject to such an agreement at that time;
(iii) an organisation that has at least one member who is such an employee, and that is entitled to represent the industrial interests of at least one such employee;
is bound by the notional agreement.
Future employees
(2) If:
(a) a person is employed in the business or that part of the business after the reform commencement; and
(b) under the terms of the original State award or the original State law, as in force immediately before the reform commencement, the person would have been bound by that award or law; and
(c) the person is not bound by a preserved State agreement;
the person is bound by the notional agreement.
33 Whose employment is subject to a notional agreement preserving State awards?
Current employees
(1) The employment of a person in the business or that part of the business is subject to the notional agreement, if:
(a) that employment was, immediately before the reform commencement, subject to the original State award or the original State law; and
(b) that employment was not subject to a State employment agreement at that time.
Future employees
(2) If:
(a) a person is employed in the business, or that part of the business, after the reform commencement; and
(b) under the terms of the original State award or the original State law, that employment would have been subject to that award or that law; and
(c) that employment is not subject to a preserved State agreement;
that employment is subject to the notional agreement.
Subdivision C -- Terms of a notional agreement preserving State awards
34 Terms of a notional agreement preserving State awards
(1) If, immediately before the reform commencement, a term of the original State award would have determined, in whole or in part, a term or condition of employment in the business or that part of the business of a person who was not bound by or a party to a State employment agreement, or whose employment was not subject to such an agreement, then to that extent, that term, as in force at that time, is taken to be a term of the notional agreement.
(2) If, immediately before the reform commencement, a provision of a State or Territory industrial law would have determined, in whole or in part, a preserved entitlement of a person employed in the business or that part of the business who was not bound by or a party to a State employment agreement, or whose employment was not subject to such an agreement, then to that extent, that provision, as in force at that time, is taken to be a term of the notional agreement.
(3) In this clause:
"preserved entitlement" means:
(a) an entitlement to:
(i) annual leave and annual leave loadings; or
(ii) parental leave, including maternity leave and adoption leave; or
(iii) personal/carer's leave; or
(iv) leave relating to bereavement; or
(v) ceremonial leave; or
(vi) notice of termination; or
(vii) redundancy pay; or
(viii) loadings for working overtime or shift work; or
(ix) penalty rates, including the rate of payment for work on a public holiday; or
(x) rest breaks; or
(b) another prescribed entitlement.
35 Powers of State industrial authorities
(1) If a notional agreement preserving State awards confers a function or power on a State industrial authority, that function must not be performed and that power must not be exercised by the State industrial authority on or after the reform commencement.
(2) However, the employer and the persons bound by the notional agreement may, by agreement, confer such a function or power on the Commission, provided it does not relate to the resolution of a dispute about the application of the agreement.
36 Dispute resolution processes
(1) A notional agreement preserving State awards is taken to include a term requiring disputes about the application of the agreement to be resolved in accordance with the model dispute resolution process.
(2) Any term of the notional agreement that would otherwise deal with the resolution of those disputes is void to that extent.
A term of a notional agreement preserving State awards is void to the extent that it contains prohibited content of a prescribed kind.
Division 2 -- Effect and operation of a notional agreement preserving State awards
38 Effect of a notional agreement preserving State awards
(1) Except as provided in or under this Part, or otherwise in or under this Act, a notional agreement preserving State awards has effect according to its terms.
(2) This Part has effect despite the terms of the original State award, the original State law or any other law of a State or Territory.
(3) None of the terms and conditions of employment included in the notional agreement are enforceable under the law of a State or Territory.
38A Operation of a notional agreement preserving State awards
(1) A notional agreement preserving State awards ceases to be in operation at the end of a period of 3 years beginning on the reform commencement.
(2) A notional agreement preserving State awards ceases to be in operation in relation to an employee if a workplace agreement comes into operation in relation to the employee.
Note: The reference in sub clause (2) to a workplace agreement includes a reference to a workplace determination (see section 113F).
(3) A notional agreement preserving State awards ceases to be in operation in relation to an employee if the employee becomes bound by an award.
(4) If the notional agreement has ceased operating in relation to an employee because of subclause (2) or (3), the agreement can never operate again in relation to that employee.
Division 3 -- Varying a notional agreement preserving State awards
39 Varying a notional agreement preserving State awards
A notional agreement preserving State awards may only be varied on or after the reform commencement in accordance with this Division.
40 Variation to remove ambiguity or uncertainty
The Commission may, on application by any person bound by a notional agreement preserving State awards or whose employment is subject to such an agreement, by order, vary the notional agreement for the purpose of removing ambiguity or uncertainty.
41 Variation to remove discrimination
(1) If a notional agreement preserving State awards is referred to the Commission under section 46PW of the Human Rights and Equal Opportunity Commission Act 1986 , the Commission must convene a hearing to review the agreement.
(2) In a review under subclause (1):
(a) the Commission must take such steps as it thinks appropriate to ensure that each person bound by the agreement is made aware of the hearing; and
(b) the Sex Discrimination Commissioner is entitled to intervene in the proceeding.
(3) If the Commission considers that a notional agreement preserving State awards reviewed under subclause (1) is discriminatory, the Commission must take the necessary action to remove the discrimination by making an order varying the agreement.
(4) A notional agreement preserving State awards is discriminatory if:
(a) the agreement has been referred to the Commission under section 46PW of the Human Rights and Equal Opportunity Commission Act 1986 ; and
(b) the agreement requires a person to do any act that would be unlawful under Part II of the Sex Discrimination Act 1984 , except for the fact that the act would be done in direct compliance with the agreement.
For the purposes of this definition, the fact that an act is done in direct compliance with the notional agreement does not of itself mean that the act is reasonable.
42 Variation to remove prohibited content
Initiating consideration of removal of prohibited content
(1) The Employment Advocate may exercise his or her power under subclause (9) to vary a notional agreement preserving State awards to remove prohibited content of a prescribed kind:
(a) on his or her own initiative; or
(b) on application by any person.
(2) This subclause and subclauses (3) to (6) and (9) to (12) are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the Employment Advocate's decision whether to make a variation under subclause (9).
Employment Advocate must give notice that considering variation
(3) If the Employment Advocate is considering making a variation to a notional agreement preserving State awards under subclause (9), the Employment Advocate must give the persons mentioned in subclause (4) a written notice meeting the requirements in subclause (5).
(4) The persons are:
(a) an employer that is bound by the notional agreement; and
(b) if an organisation is bound by the agreement--the organisation.
Matters to be contained in notice
(5) The requirements mentioned in subclause (3) are that the notice must:
(a) be dated; and
(b) state that the Employment Advocate is considering making the variation; and
(c) state the reasons why the Employment Advocate is considering making the variation; and
(d) set out the terms of the variation; and
(e) invite each person mentioned in subclause (6) to make a written submission to the Employment Advocate about whether the Employment Advocate should make the variation; and
(f) state that any submission must be made within the period (the objection period ) of 28 days after the date of the notice.
(6) The persons are:
(a) an employer that is bound by the notional agreement; and
(b) each person whose employment is subject to the notional agreement as at the date of the notice; and
(c) if an organisation is a party to the notional agreement--the organisation.
Employer must ensure employees have ready access to notice
(7) An employer that has received a notice under subclause (3) in relation to the notional agreement must take reasonable steps to ensure that all persons whose employment is subject to the notional agreement at a time during the objection period are given a copy of the notice within the period:
(a) starting on the day the employer received the notice; and
(b) ending at the end of the objection period.
(8) Subclause (7) is a civil remedy provision and may be enforced under Division 11 of Part VB as if the notional agreement were a workplace agreement.
Employment Advocate must remove prohibited content from agreement
(9) If the Employment Advocate is satisfied that a term of the notional agreement contains prohibited content of the prescribed kind, the Employment Advocate must vary the agreement so as to remove that content.
(10) In making a decision under subclause (9), the Employment Advocate must consider all written submissions (if any) received within the objection period from a person mentioned in subclause (6).
(11) The Employment Advocate must not make the variation before the end of the objection period.
(12) If the Employment Advocate decides to make the variation, he or she must:
(a) give the persons mentioned in subclause (4) written notice of the decision, including the terms of the variation; and
(b) publish a notice in the Gazette stating that the variation has been made and setting out particulars of the variation.
Employer must give employees notice of removal of prohibited content
(13) An employer that has received a notice under subclause (12) must take reasonable steps to ensure that all persons whose employment is subject to the agreement when the employer receives the notice are given a copy of the notice within 21 days.
(14) Subclause (13) is a civil remedy provision and may be enforced under Division 11 of Part VB as if the notional agreement were a collective agreement.
Division 4 -- Enforcing the notional agreement
43 Enforcing the notional agreement
(1) A notional agreement preserving State awards may be enforced as if it were a collective agreement.
(2) A workplace inspector has the same functions and powers in relation to a notional agreement preserving State awards as he or she has in relation to a collective agreement.
44 Matters provided for by the Australian Fair Pay and Conditions Standard
Subject to Division 5 of this Schedule, if the Australian Fair Pay and Conditions Standard makes provision for a matter, then a term (other than a preserved notional term) of the notional agreement that also deals with that matter is unenforceable.
Note 1: See section 90ZD (deeming there to be a preserved APCS if rate provisions are contained in a pre - reform wage instrument).
Note 2: See also section 90ZC (deeming APCS rates to at least equal FMW rates after the first exercise of powers under Division 2 of Part VA by the AFPC).
Division 5 -- Preserved notional terms and preserved notional entitlements
45 Preserved notional terms of notional agreement
(1) A preserved notional term is a term , or more than one term, of a notional agreement preserving State awards that is about any or all of the following matters:
(a) annual leave;
(b) personal/carer's leave;
(c) parental leave, including maternity and adoption leave;
(d) long service leave;
(e) notice of termination;
(f) jury service;
(g) superannuation.
(2) If a term of a notional agreement preserving State awards is about both matters referred to in paragraphs (1)(a) to (g) and other matters, it is taken to be a preserved notional term only to the extent that it is about the matters referred to in those paragraphs.
(3) A preserved notional term about the matter referred to in paragraph (1)(g) (superannuation) ceases to have effect at the end of 30 June 2008.
(3A) If more than one term of a notional agreement preserving State awards is about a matter referred to in subclause (2), then those terms, taken together, constitute the preserved notional term of that notional agreement about that matter.
(4) In this clause:
"personal/carer's leave" includes war service sick leave, infectious diseases sick leave and other like forms of sick leave.
(5) The regulations may provide that for the purposes of subclause (1):
(a) the matter referred to in paragraph (1)(c) does not include one or both of the following:
(i) special maternity leave (within the meaning of section 94C);
(ii) the entitlement under section 94F to transfer to a safe job or to take paid leave; and
(b) personal/carer's leave does not include one or both of the following:
(i) compassionate leave (within the meaning of section 93Q);
(ii) unpaid carer's leave (within the meaning of section 93D).
Note: The effect of excluding a form of leave or an entitlement in relation to a matter is that the entitlement in relation to that form of leave or matter under the Australian Fair Pay and Conditions Standard will automatically apply.
(6) Regulations under subclause (5) may be expressed to apply generally or in respect of employees engaged in specified types of employment, such as full - time employment, part - time employment, casual employment, regular part - time employment or shift work.
46 When preserved notional entitlements have effect
(1) This clause applies to an employee if:
(a) the employee is bound by, or the employee's employment is subject to, a notional agreement preserving State awards that includes a preserved notional term about a matter; and
(b) the employee has an entitlement (the preserved notional entitlement ) in relation to that matter under the preserved notional term.
(2) If:
(a) the preserved notional term is about a matter referred to in paragraph 45(1)(a), (b) or (c); and
(b) the employee's preserved notional entitlement in relation to the matter is more generous than the employee's entitlement in relation to the corresponding matter under the Australian Fair Pay and Conditions Standard;
the employee's entitlement under the Australian Fair Pay and Conditions Standard is excluded, and the employee's preserved notional entitlement has effect in accordance with the preserved notional term. Otherwise, the employee's entitlement under the Australian Fair Pay and Conditions Standard has effect.
Note: See clause 47 for the meaning of more generous .
(3) If:
(a) the preserved notional term is about a matter referred to in paragraph 45(1)(a), (b) or (c) and the employee has no entitlement in relation to the corresponding matter under the Australian Fair Pay and Conditions Standard; or
(b) the preserved notional term is about a matter referred to in paragraph 45(1)(d), (e), (f) or (g);
the employee's preserved notional entitlement has effect in accordance with the preserved notional term.
Note: Preserved notional terms about matters referred to in paragraph 45(1)(g) cease to have effect at the end of 30 June 2008--see subclause 45(3).
(1) Whether an employee's entitlement under a preserved notional term in relation to a matter is more generous than the employee's entitlement in relation to the corresponding matter under the Australian Fair Pay and Conditions Standard:
(a) is as specified in, or as worked out in accordance with a method specified in, regulations made under this paragraph; or
(b) to the extent that regulations made under paragraph (a) do not so specify--is to be ascertained in accordance with the ordinary meaning of the term more generous .
(2) If a matter to which an entitlement under a preserved notional term relates does not correspond directly to a matter to which the Australian Fair Pay and Conditions Standard relates, regulations made under paragraph (1)(a) may nevertheless specify that the matters correspond for the purposes of this Division.
48 Modifications that may be prescribed--personal/carer's leave
(1) The regulations may provide that a preserved notional term about personal/carer's leave is to be treated as a separate preserved notional term about separate matters, to the extent that the preserved notional term is about any of the following:
(a) war service sick leave;
(b) infectious diseases sick leave;
(c) any other like form of sick leave.
(2) If the regulations so provide, clauses 45, 46, 47 and 50 have effect in relation to each separate matter.
49 Modifications that may be prescribed--parental leave
(1) The regulations may provide that a preserved notional term about parental leave is to be treated as being about separate matters to the extent that it is about paid and unpaid parental leave.
(2) If the regulations provide that a preserved notional term about parental leave is to be treated as being about separate matters to the extent that it is about paid and unpaid parental leave:
(a) clauses 45, 46 and 50 have effect in relation to each separate matter; and
(b) in accordance with section 94D, the entitlement that an employee would have to unpaid parental leave under the Australian Fair Pay and Conditions Standard is reduced by any amount of paid parental leave to which the employee is entitled under the preserved notional term.
Note 1: There is no entitlement in relation to paid parental leave under the Australian Fair Pay and Conditions Standard, so there is no corresponding matter for the purposes of subclause 46(3).
Note 2: Paragraph (b) does not have the effect of reducing entitlements. It simply ensures that the operation of section 94D is not affected by treating paid and unpaid parental leave separately under the regulations.
50 Preserved notional terms taken to be included in awards
(1) This clause applies to an award if:
(a) an award is made under section 118E or is varied under section 118J, 120A or 120B; and
(b) the award is binding on:
(i) an employer that was bound by a notional agreement preserving State awards immediately before the making or variation of the award; or
(ii) an employee who was bound by, or whose employment was subject to, a notional agreement preserving State awards immediately before the making or variation of the award; and
(c) the notional agreement contained a preserved notional term.
(2) The preserved notional term is taken to be included in the award.
(3) The preserved notional term is taken to have the effect that:
(a) employees belonging to the class of employees that had entitlements under the preserved notional term of the notional agreement have corresponding entitlements under the award; and
(b) employees belonging to any class of employees that did not have entitlements under the preserved notional term of the notional agreement do not gain entitlements under the award.
(4) The preserved notional term is taken to have the effect that:
(a) only an employer bound by the preserved notional term of the notional agreement is bound by the corresponding preserved notional term of the award; and
(b) other employers are not so bound.
Note: The operation of this subclause is affected by Part VIAA, which deals with transmission of business.
(5) For the purposes of subclause (3), whether an employee belongs to a class of employees that had entitlements under a preserved notional term of a notional agreement preserving State awards is to be determined without reference to whether the employee was employed before or after the making of the award.
(6) The Commission must not vary a preserved notional term that has been included in an award under this clause.
(7) Section 118P applies in relation to a preserved notional term included in an award under this clause in the same way as it applies in relation to a preserved award term included in an award made under section 118E or varied under section 118J.
Division 3 of Part VA (hours of work) does not apply to the employment of an employee while the employee is bound by, or that employment is subject to, a notional agreement preserving State awards that is in operation.
Division 6 -- Protected conditions
52 Protected conditions in notional agreements preserving State awards
(1) This clause applies if:
(a) a person's employment is subject to a workplace agreement; and
(b) protected notional conditions would have effect (but for the agreement) in relation to the employment of the person.
(2) Those protected notional conditions:
(a) are taken to be included in the workplace agreement; and
(b) have effect in relation to the employment of that person; and
(c) have that effect subject to any terms of the workplace agreement that expressly exclude or modify all or part of them.
(2A) Despite paragraph (2)(c), those protected notional conditions have effect in relation to the employment of that person to the extent that those protected notional conditions are about outworker conditions, despite any terms of the workplace agreement that provide, in a particular respect, a less favourable outcome for that person.
(3) In this clause:
"outworker" means an employee who, for the purposes of the business of the employer, performs work at private residential premises or at other premises that are not business or commercial premises of the employer.
"outworker conditions" means conditions (other than pay) for outworkers, but only to the extent necessary to ensure that their overall conditions of employment are fair and reasonable in comparison with the conditions of employment specified in a relevant award or awards for employees who perform the same kind of work at an employer's business or commercial premises.
"protected allowable award matters" means the following matters:
(a) rest breaks;
(b) incentive - based payments and bonuses;
(c) annual leave loadings;
(d) observance of days declared by or under a law of a State or Territory to be observed generally within that State or Territory, or a region of that State or Territory, as public holidays by employees who work in that State, Territory or region, and entitlements of employees to payment in respect of those days;
(da) days to be substituted for, or a procedure for substituting, days referred to in paragraph (d);
(e) monetary allowances for:
(i) expenses incurred in the course of employment; or
(ii) responsibilities or skills that are not taken into account in rates of pay for employees; or
(iii) disabilities associated with the performance of particular tasks or work in particular conditions or locations;
(f) loadings for working overtime or for shift work;
(g) penalty rates;
(h) outworker conditions;
(i) any other matter specified in the regulations.
Note: These matters are the same as certain allowable award matters mentioned in section 116.
"protected notional conditions" means the terms of a notional agreement preserving State awards, to the extent that those terms:
(a) are:
(i) about protected allowable award matters; or
(ii) incidental to protected allowable award matters and may be included in an award as permitted by section 116I; or
(iii) machinery provisions that are in respect of protected allowable award matters and may be included in an award as permitted by section 116I; and
(b) are not about:
(i) matters that are not allowable award matters because of section 116B; or
(ii) any other matters specified in the regulations.
Division 6A -- Industrial action during the life of an enterprise award
52AA Action taken during life of enterprise award not protected
(1) Engaging in or organising industrial action is not protected action if:
(a) either:
(i) the person engaging in the industrial action is bound by a notional agreement preserving State awards that includes terms and conditions from an enterprise award; or
(ii) the employment of the person engaging in the industrial action is subject to such a notional agreement; and
(b) a term or condition of the enterprise award included in the notional agreement relates to industrial action; and
(c) engaging in the industrial action would breach that term or condition; and
(d) the nominal expiry date of the enterprise award has not yet passed.
(2) In this clause:
"enterprise award" means a State award:
(a) that regulates a term or condition of employment of a person or persons by an employer in a single business or a part of a single business specified in the award; and
(b) that is specified to have effect for a period, either by reference to an actual or nominal expiry date or by reference to an actual or nominal period; and
(c) a term of which provides that one or more of the parties will not make further claims before the nominal expiry date for the award.
"nominal expiry date" for an enterprise award, means the last day of the actual or nominal period during which the enterprise award is specified to have effect.
52A Calling up a notional agreement preserving State awards in a workplace agreement
(1) A workplace agreement may incorporate by reference under section 101C terms from a notional agreement preserving State awards as if the notional agreement were a workplace agreement.
(2) Despite subsection 101C(6), a term of a workplace agreement is not void to the extent that it incorporates by reference such terms.
53 Application of Part IX in relation to a notional agreement preserving State awards
Part IX of this Act (which deals with right of entry) applies in relation to a notional agreement preserving State awards in the same way as it applies in relation to a collective agreement.
54 Application of Part XA in relation to a notional agreement preserving State awards
Part XA of this Act (which deals with freedom of association) applies in relation to a notional agreement preserving State awards as if it were a collective agreement.
55 Regulations may apply, modify or adapt Act
(1) The Governor - General may make regulations for the purposes of:
(a) applying provisions of this Act or the Registration and Accountability of Organisations Schedule to notional agreements preserving State awards; and
(b) modifying or adapting provisions of this Act or that Schedule that apply to those agreements.
(2) Despite subsection 12(2) of the Legislative Instruments Act 2003 , regulations made under subclause (1) may be expressed to take effect from a date before the regulations are registered under that Act.