Commonwealth Consolidated Acts Commonwealth Consolidated ActsNote: See section 4A.
The object of this Schedule is to provide for the transfer of employer obligations under certain transitional instruments when the whole, or a part, of a person's business is transmitted to another person.
(1) Part 2 of this Schedule describes the general transmission of business situation this Schedule is designed to deal with. It identifies the old employer , the new employer , the business being transferred , the time of transmission and the transferring employees .
(2) Parts 3 to 5 of this Schedule deal with the transmission of particular transitional instruments as follows:
(a) Part 3 deals with the transmission of pre - reform AWAs;
(b) Part 4 deals with the transmission of pre - reform certified agreements;
(c) Part 5 deals with the transmission of State transitional instruments.
(3) Part 6 of this Schedule deals with notification requirements, the lodgment of notices with the Employment Advocate and the enforcement of employer obligations by pecuniary penalties.
(4) Part 7 of this Schedule deals with special rules for Victoria.
(5) Part 8 of this Schedule deals with the interaction between transitional instruments and collective agreements and awards that are transmitted under Part VIAA.
(6) Part 9 of this Schedule allows regulations to be made to deal with other transmission of business issues in relation to transitional industrial instruments.
In this Schedule:
"business being transferred" has the meaning given by subclause 4(2).
"Court" means the Federal Court of Australia or the Federal Magistrates Court.
"Division 2 pre" -reform certified agreement means a pre - reform certified agreement that was made under Division 2 of Part VIB of this Act before the reform commencement.
"Division 3 pre" -reform certified agreement means a pre - reform certified agreement that was made under Division 3 of Part VIB of this Act before the reform commencement.
"exceptional matters order" has the same meaning as in Schedule 14.
"new employer" has the meaning given by subclause 4(1).
"notional agreement preserving State awards" has the same meaning as in Schedule 15.
"old employer" has the meaning given by subclause 4(1).
"operational reasons" has the meaning given by subsection 170CE(5D).
"pre-reform Act" has the same meaning as in Schedule 14.
"pre-reform AWA" has the same meaning as in Schedule 14.
"pre-reform certified agreement" has the same meaning as in Schedule 14.
"preserved collective State agreement" has the same meaning as in Schedule 15.
"preserved individual State agreement" has the same meaning as in Schedule 15.
"preserved State agreement" has the same meaning as in Schedule 15.
"section 170MX award" has the same meaning as in Schedule 14.
"State transitional instrument" means:
(a) a notional agreement preserving State awards; or
(b) a preserved State agreement.
"time of transmission" has the meaning given by subclause 4(3).
"transferring employee" has the meaning given by clauses 5 and 6.
"transitional industrial instrument" means:
(a) a pre - reform AWA; or
(b) a pre - reform certified agreement; or
(c) a section 170MX award; or
(d) an exceptional matters order; or
(e) a notional agreement preserving State awards; or
(f) a preserved State agreement.
"transitional instrument" means:
(a) a pre - reform AWA; or
(b) a pre - reform certified agreement; or
(c) a notional agreement preserving State awards; or
(d) a preserved State agreement.
"transmission period" has the meaning given by subclause 4(4).
Part 2 -- Application of Schedule
(1) This Schedule applies if a person (the new employer ) becomes the successor, transmittee or assignee of the whole, or a part, of a business of another person (the old employer ).
(2) The business, or the part of the business, to which the new employer is successor, transmittee or assignee is the business being transferred for the purposes of this Schedule.
(3) The time at which the new employer becomes the successor, transmittee or assignee of the business being transferred is the time of transmission for the purposes of this Schedule.
(4) The period of 12 months after the time of transmission is the transmission period for the purposes of this Schedule.
(1) A person is a transferring employee for the purposes of this Schedule if:
(a) the person is employed by the old employer immediately before the time of transmission; and
(b) the person:
(i) ceases being employed by the old employer; and
(ii) becomes employed by the new employer in the business being transferred;
within 2 months after the time of transmission.
Note: Clause 6A of this Schedule provides that references to employees and employment have their ordinary meanings in relation to a Division 3 pre - reform certified agreement if the old employer is not an employer (within the meaning of subsection 4AB(1)).
(2) A person is also a transferring employee for the purposes of this Schedule if:
(a) the person is employed by the old employer at any time within the period of 1 month before the time of transmission; and
(b) the person's employment with the old employer is terminated by the old employer before the time of transmission for genuine operational reasons or for reasons that include genuine operational reasons; and
(c) the person becomes employed by the new employer, in the business being transferred, within 2 months after the time of transmission.
Note: Clause 6A of this Schedule provides that references to employees and employment have their ordinary meanings in relation to a Division 3 pre - reform certified agreement if the old employer is not an employer (within the meaning of subsection 4AB(1)).
(3) In applying clause 6 and Parts 3 to 5 of this Schedule in relation to a person who is a transferring employee under subclause (2) of this clause, a reference in those provisions to a particular state of affairs existing immediately before the time of transmission is to be read as a reference to that state of affairs existing immediately before the person last ceased to be an employee of the old employer.
6 Transferring employees in relation to particular instrument
(1) A transferring employee is a transferring employee in relation to a particular transitional instrument if:
(a) the instrument applied to the transferring employee immediately before the time of transmission; and
(b) when the transferring employee becomes employed by the new employer, the transferring employee's employment with the new employer is such that the instrument is capable of applying to that employment.
Note: Clause 6A of this Schedule provides that references to employees and employment have their ordinary meanings in relation to a Division 3 pre - reform certified agreement if the old employer is not an employer (within the meaning of subsection 4AB(1)).
(2) The transferring employee ceases to be a transferring employee in relation to the transitional instrument if:
(a) the transferring employee ceases to be employed by the new employer after the time of transmission; or
(b) the transferring employee's employment with the new employer ceases to be such that the instrument is capable of applying to that employment; or
(c) the transmission period ends.
Note: Clause 6A of this Schedule provides that references to employees and employment have their ordinary meanings in relation to a Division 3 pre - reform certified agreement if the old employer is not an employer (within the meaning of subsection 4AB(1)).
(3) This clause applies to a notional agreement preserving State awards as if it were a transitional instrument.
6A Application of Schedule to certain Division 3 pre - reform certified agreements
(1) This clause applies if the old employer in relation to a Division 3 pre - reform certified agreement is not an employer (within the meaning of subsection 4AB(1)).
(2) In applying this Schedule to the Division 3 pre - reform certified agreement, references in this Schedule to:
(a) an employee; or
(b) employment;
have their ordinary meanings.
Part 3 -- Transmission of pre - reform AWAs
7 Transmission of pre - reform AWA
New employer bound by pre - reform AWA
(1) If:
(a) immediately before the time of transmission:
(i) the old employer; and
(ii) an employee of the old employer;
were bound by a pre - reform AWA; and
(b) the employee is a transferring employee in relation to the pre - reform AWA;
the new employer is bound by the pre - reform AWA by force of this clause.
Note 1: The new employer must notify the transferring employee and lodge a copy of the notice with the Employment Advocate (see clauses 28 and 29).
Note 2: See also clause 8 for the interaction between the pre - reform AWA and other industrial instruments.
Period for which new employer remains bound
(2) The new employer remains bound by the pre - reform AWA, by force of this clause, until whichever of the following first occurs:
(a) the pre - reform AWA ceases to be in operation because it is terminated under subsection 170VM(1) of the pre - reform Act (as applied by subclause 18(2) of Schedule 14);
(b) the pre - reform AWA ceases to be in operation in relation to the transferring employee's employment with the new employer under subclause 18(1) of Schedule 14 (AWA between the new employer and the transferring employee coming into operation);
(c) the transferring employee ceases to be a transferring employee in relation to the pre - reform AWA;
(d) the transmission period ends.
Old employer's rights and obligations that arose before time of transmission not affected
(3) This clause does not affect the rights and obligations of the old employer that arose before the time of transmission.
(1) From the time of transmission, a transitional industrial instrument (other than a pre - reform AWA) does not apply to the transferring employee's employment with the new employer.
(2) Subclause (1) has effect despite section 170VQ of the pre - reform Act (as applied by subclause 17(1) of Schedule 14).
9 Termination of transmitted pre - reform AWA
Transmitted instrument
(1) This clause applies if subclause 7(1) applies to a pre - reform AWA (the transmitted pre - reform AWA ).
Modified operation of subsections 170VM(3) to (7) of the pre - reform Act
(2) The transmitted pre - reform AWA cannot be terminated under subsection 170VM(3) or (6) of the pre - reform Act during the transmission period (even if the transmitted pre - reform AWA has passed its nominal expiry date).
Part 4 -- Transmission of pre - reform certified agreements
10 Transmission of pre - reform certified agreement
New employer bound by Division 2 pre - reform certified agreement
(1) If:
(a) immediately before the time of transmission:
(i) the old employer; and
(ii) employees of the old employer;
were bound by a Division 2 pre - reform certified agreement; and
(b) there is at least one transferring employee in relation to the Division 2 pre - reform certified agreement;
the new employer is bound by the Division 2 pre - reform certified agreement by force of this subclause.
Note 1: The new employer must notify transferring employees and lodge a copy of the notices with the Employment Advocate (see clauses 28 and 29).
Note 2: See also clause 11 for the interaction between the Division 2 pre - reform certified agreement and other industrial instruments.
New employer bound by Division 3 pre - reform certified agreement
(2) If:
(a) the old employer is an employer (within the meaning of subsection 4AB(1)); and
(b) immediately before the time of transmission:
(i) the old employer; and
(ii) employees of the old employer;
were bound by a Division 3 pre - reform certified agreement; and
(c) there is at least one transferring employee in relation to the Division 3 pre - reform certified agreement;
the new employer is bound by the Division 3 pre - reform certified agreement by force of this subclause.
Note 1: The new employer must notify transferring employees and lodge a copy of the notices with the Employment Advocate (see clauses 28 and 29).
Note 2: See also clause 11 for the interaction between the Division 3 pre - reform certified agreement and other industrial instruments.
(3) If:
(a) the old employer is not an employer (within the meaning of subsection 4AB(1)); and
(b) immediately before the time of transmission:
(i) the old employer; and
(ii) employees of the old employer;
were bound by a Division 3 pre - reform certified agreement; and
(c) there is at least one transferring employee in relation to the Division 3 pre - reform certified agreement; and
(d) one or more of the following are satisfied:
(i) the new employer is an employer (within the meaning of subsection 4AB(1)) at the time of transmission;
(ii) the new employer is bound by another Division 3 pre - reform certified agreement at the time of transmission;
the new employer is bound by the Division 3 pre - reform certified agreement referred to in paragraph (b) by force of this subclause.
Note 1: Clause 6A of this Schedule provides that references to employees and employment have their ordinary meanings in relation to the Division 3 pre - reform certified agreement. This is because the old employer is not an employer (within the meaning of subsection 4AB(1)).
Note 2: The new employer must notify transferring employees and lodge a copy of the notices with the Employment Advocate (see clauses 28 and 29).
Note 3: See also clause 11 for the interaction between the Division 3 pre - reform certified agreement and other industrial instruments.
Period for which new employer remains bound
(4) The new employer remains bound by the pre - reform certified agreement, by force of subclause (1), (2) or (3), until whichever of the following first occurs:
(a) the pre - reform certified agreement ceases to be in operation because it is terminated under section 170MG of the pre - reform Act (as applied by subclause 2(1) of Schedule 14);
(b) there cease to be any transferring employees in relation to the pre - reform certified agreement;
(c) the new employer ceases to be bound by the pre - reform certified agreement in relation to all the transferring employees in relation to the agreement;
(d) the transmission period ends;
(e) if:
(i) the pre - reform certified agreement is a Division 3 pre - reform certified agreement; and
(ii) the new employer is an excluded employer (within the meaning of Schedule 13) when the period of 5 years beginning on the reform commencement ends;
the period referred to in subparagraph (ii) ends.
Note: Paragraph (c)--see subclause (6).
(5) Paragraph (4)(d) does not apply if:
(a) the pre - reform certified agreement is a Division 3 pre - reform certified agreement; and
(b) the old employer is not an employer within the meaning of subsection 4AB(1) immediately before the time of transmission; and
(c) the new employer is an employer within the meaning of subsection 4AB(1) at the time of transmission; and
(d) the transmission occurs as part of the process of the employer in relation to the business being transferred becoming an employer within the meaning of subsection 4AB(1).
Period for which new employer remains bound in relation to particular transferring employee
(6) The new employer remains bound by the pre - reform certified agreement in relation to a particular transferring employee, by force of subclause (1), (2) or (3), until whichever of the following first occurs:
(a) the pre - reform certified agreement ceases to be in operation in relation to the transferring employee's employment with the new employer because the new employer makes an AWA with the transferring employee (see subclause 12(2));
(b) the pre - reform certified agreement ceases to be in operation in relation to the transferring employee's employment with the new employer because a collective agreement comes into operation in relation to the transferring employee in relation to that employment (see subclause 3(1) of Schedule 14);
(c) the employer ceases to be bound by the pre - reform certified agreement under subclause (4).
New employer bound only in relation to employment of transferring employees in business being transferred
(7) The new employer is bound by the pre - reform certified agreement, by force of subclause (1), (2) or (3), only in relation to the employment, in the business being transferred, of employees who are transferring employees in relation to the pre - reform certified agreement.
New employer bound subject to Commission order
(8) Subclauses (1), (2), (3), (4) and (6) have effect subject to any order of the Commission under clause 14.
Old employer's rights and obligations that arose before time of transmission not affected
(9) This clause does not affect the rights and obligations of the old employer that arose before the time of transmission.
Transmitted certified agreement
(1) This clause applies if subclause 10(1), (2) or (3) applies to a pre - reform certified agreement (the transmitted certified agreement ).
Existing collective agreements
(2) If:
(a) the new employer is bound by a collective agreement (the existing collective agreement ); and
(b) the existing collective agreement would, but for this subclause, apply, according to its terms, to a transferring employee in relation to the transmitted certified agreement when the transferring employee becomes employed by the new employer;
the existing collective agreement does not apply to the transferring employee.
(3) Subclause (2) ceases to apply when whichever of the following first occurs:
(a) the transmission period ends;
(b) if:
(i) the pre - reform certified agreement is a Division 3 pre - reform certified agreement; and
(ii) the new employer is an excluded employer (within the meaning of Schedule 13) when the period of 5 years beginning on the reform commencement ends;
the period referred to in subparagraph (ii) ends.
(4) Subclause (3) does not apply if:
(a) the pre - reform certified agreement is a Division 3 pre - reform certified agreement; and
(b) the old employer is not an employer within the meaning of subsection 4AB(1) immediately before the time of transmission; and
(c) the new employer is an employer within the meaning of subsection 4AB(1) at the time of transmission; and
(d) the transmission occurs as part of the process of the employer in relation to the business being transferred becoming an employer within the meaning of subsection 4AB(1).
Transitional industrial instruments not to apply
(5) From the time of transmission, a transitional industrial instrument (other than the transmitted certified agreement) does not apply to the transferring employee's employment with the new employer.
(6) Subclause (5) has effect despite section 170LY of the pre - reform Act (as applied by subclause 2(1) of Schedule 14).
12 Termination of transmitted pre - reform certified agreement
Transmitted agreement
(1) This clause applies if subclause 10(1), (2) or (3) applies to a pre - reform certified agreement (the transmitted certified agreement ).
AWA
(2) Despite subclause 3(2) of Schedule 14, the transmitted certified agreement ceases to be in operation in relation to a transferring employee's employment with the new employer if an AWA between the new employer and the transferring employee comes into operation in relation to that employment after the time of transmission.
Note: Subclause 3(2) of Schedule 14 provides that a pre - reform certified agreement is normally only suspended while an AWA operates. The effect of subclause (2) of this clause is to terminate the operation of the transmitted certified agreement in relation to the transferring employee's employment when the AWA is made.
Modified operation of sections 170MH and 170MHA of the pre - reform Act
(3) The transmitted certified agreement cannot be terminated under section 170MH or 170MHA of the pre - reform Act during the transmission period (even if the transmitted certified agreement has passed its nominal expiry date).
Division 2 -- Commission's powers
13 Application and terminology
(1) This Division applies if:
(a) a person is bound by a pre - reform certified agreement; and
(b) another person:
(i) becomes at a later time; or
(ii) is likely to become at a later time;
the successor, transmittee or assignee of the whole, or a part, of the business of the person referred to in paragraph (a).
(2) For the purposes of this Division:
(a) the outgoing employer is the person referred to in paragraph (1)(a); and
(b) the incoming employer is the person first referred to in paragraph (1)(b); and
(c) the business concerned is the business, or the part of the business, to which the incoming employer becomes, or is likely to become, the successor, transmittee or assignee; and
(d) the transfer time is the time at which the incoming employer becomes, or is likely to become, the successor, transmittee or assignee of the business concerned.
(1) The Commission may make an order that the incoming employer:
(a) is not, or will not be, bound by the pre - reform certified agreement; or
(b) is, or will be, bound by the pre - reform certified agreement, but only to the extent specified in the order.
The order must specify the day from which the order takes effect. That day must not be before the day on which the order is made or before the transfer time.
(2) Without limiting paragraph (1)(b), the Commission may make an order under that paragraph that the incoming employer is, or will be, bound by the pre - reform certified agreement but only for the period specified in the order.
(3) To avoid doubt, the Commission cannot make an order under subclause (1) that would have the effect of extending the transmission period.
15 When application for order can be made
An application for an order under subclause 14(1) may be made before, at or after the transfer time.
(1) Before the transfer time, an application for an order under subclause 14(1) may be made only by the outgoing employer.
(2) At or after the transfer time, an application for an order under subclause 14(1) may be made only by:
(a) the incoming employer; or
(b) a transferring employee in relation to the pre - reform certified agreement; or
(c) an organisation of employees that is bound by the pre - reform certified agreement; or
(d) an organisation of employees that:
(i) is entitled, under its eligibility rules, to represent the industrial interests of a transferring employee in relation to the pre - reform certified agreement; and
(ii) has been requested by the transferring employee to apply for the order on the transferring employee's behalf.
17 Applicant to give notice of application
The applicant for an order under subclause 14(1) must take reasonable steps to give written notice of the application to the persons who may make submissions in relation to the application (see clause 18).
18 Submissions in relation to application
(1) Before deciding whether to make an order under subclause 14(1) in relation to the pre - reform certified agreement, the Commission must give the following an opportunity to make submissions:
(a) the applicant;
(b) before the transfer time--the persons covered by subclause (2);
(c) at and after the transfer time--the persons covered by subclause (3).
(2) For the purposes of paragraph (1)(b), this subclause covers:
(a) an employee of the outgoing employer:
(i) who is bound by the pre - reform certified agreement; and
(ii) who is employed in the business concerned; and
(b) the incoming employer; and
(c) an organisation of employees that is bound by the pre - reform certified agreement; and
(d) an organisation of employees that:
(i) is entitled, under its eligibility rules, to represent the industrial interests of an employee referred to in paragraph (a); and
(ii) has been requested by the employee to make submissions on the employee's behalf in relation to the application for the order under subclause 14(1).
(3) For the purposes of paragraph (1)(c), this subclause covers:
(a) the incoming employer; and
(b) a transferring employee in relation to the pre - reform certified agreement; and
(c) an organisation of employees that is bound by the pre - reform certified agreement; and
(d) an organisation of employees that:
(i) is entitled, under its eligibility rules, to represent the industrial interests of a transferring employee in relation to the pre - reform certified agreement; and
(ii) has been requested by the transferring employee to make submissions on the transferring employee's behalf in relation to the application for the order under subclause 14(1).
Part 5 -- Transmission of State transitional instruments
19 Transmission of State transitional instrument
New employer bound by State transitional instrument
(1) If:
(a) immediately before the time of transmission:
(i) the old employer; and
(ii) employees of the old employer;
were bound by a State transitional instrument; and
(b) there is at least one transferring employee in relation to the State transitional instrument; and
(c) but for this clause, the new employer would not be bound by the State transitional instrument in relation to the transferring employees;
the new employer is bound by the State transitional instrument by force of this clause.
Note 1: The new employer must notify transferring employees and lodge a copy of the notice with the Employment Advocate (see clauses 28 and 29).
Note 2: See also clause 20 for the interaction between the State transitional instrument and other industrial instruments.
Period for which new employer remains bound
(2) The new employer remains bound by the State transitional instrument, by force of this clause, until whichever of the following first occurs:
(a) if the State transitional instrument is a preserved State agreement--the instrument ceases to be in operation under clauses 15G and 21 of Schedule 15;
(b) if the State transitional instrument is a notional agreement preserving State awards--the instrument ceases to be in operation at the end of the period of 3 years beginning on the reform commencement (see subclause 38A(1) of Schedule 15);
(c) there cease to be any transferring employees in relation to the State transitional instrument;
(d) the new employer ceases to be bound by the State transitional instrument in relation to all the transferring employees in relation to the instrument;
(e) the transmission period ends.
Note: Paragraph (d)--see subclause (3).
Period for which new employer remains bound in relation to particular transferring employee
(3) The new employer remains bound by the State transitional instrument in relation to a particular transferring employee, by force of this clause, until whichever of the following first occurs:
(a) if the State transitional instrument is a preserved State agreement--the instrument ceases to be in operation in relation to the transferring employee's employment with the new employer because a workplace agreement comes into operation in relation to that employment (see subclause 15G(2) of Schedule 15);
(b) if the State transitional instrument is a notional agreement preserving State awards--the instrument ceases to be in operation in relation to the transferring employee's employment with the new employer because a workplace agreement comes into operation in relation to that employment (see subclause 38A(2) of Schedule 15);
(c) if the State transitional instrument is a notional agreement preserving State awards--the instrument ceases to be in operation in relation to the transferring employee's employment with the new employer because the employee becomes bound by an award (see subclause 38A(3) of Schedule 15);
(d) the employer ceases to be bound by the State transitional instrument under subclause (2).
New employer bound only in relation to employment of transferring employees
(4) The new employer is bound by the State transitional instrument by force of this clause only in relation to the employment of employees who are transferring employees in relation to the State transitional instrument.
New employer bound subject to Commission order
(5) Subclauses (1), (2) and (3) have effect subject to any order of the Commission under clause 23.
Old employer's rights and obligations that arose before time of transmission not affected
(6) This clause does not affect the rights and obligations of the old employer that arose before the time of transmission.
Transmitted instrument
(1) This clause applies if subclause 19(1) applies to a State transitional instrument (the transmitted State instrument ).
Collective agreement
(2) If:
(a) the new employer is bound by a collective agreement (the pre - transmission agreement ); and
(b) the transmitted State instrument is a preserved State agreement; and
(c) the pre - transmission agreement would, but for this subclause, apply, according to its terms, to a transferring employee in relation to the transmitted State instrument when the transferring employee becomes employed by the new employer;
the pre - transmission agreement does not apply to the transferring employee.
(3) Subclause (2) ceases to apply at the end of the transmission period.
Other transitional instruments
(4) From the time of transmission, a transitional industrial instrument (other than the transmitted State instrument) does not apply to the transferring employee's employment with the new employer.
(5) Subclause (4) has effect despite the following provisions:
(a) clause 5 of Schedule 14 (pre - reform certified agreement);
(b) subclause 25(3) of Schedule 14 (section 170MX award).
21 Termination of preserved State agreement
Transmitted instrument
(1) This clause applies if subclause 19(1) applies to a preserved State agreement (the transmitted instrument ).
Modified operation of subsections 170VM(3) to (7) of the pre - reform Act
(2) Subclause (3) applies if:
(a) the transmitted instrument is a preserved individual State agreement; and
(b) section 170VM of the pre - reform Act is applied to the transmitted instrument in accordance with subclause 21(3) of Schedule 15.
(3) The transmitted instrument cannot be terminated under subsection 170VM(3) or (6) of the pre - reform Act during the transmission period (even if the transmitted instrument has passed its nominal expiry date).
Modified operation of sections 170MH and 170MHA of the pre - reform Act
(4) Subclause (5) applies if:
(a) the transmitted instrument is a preserved collective State agreement; and
(b) sections 170MH and 170MHA of the pre - reform Act are applied to the transmitted instrument in accordance with subclause 21(2) of Schedule 15.
(5) The transmitted instrument cannot be terminated under section 170MH or 170MHA of the pre - reform Act during the transmission period (even if the transmitted instrument has passed its nominal expiry date).
Division 2 -- Commission's powers
22 Application and terminology
(1) This Division applies if:
(a) a person is bound by a State transitional instrument; and
(b) another person:
(i) becomes at a later time; or
(ii) is likely to become at a later time;
the successor, transmittee or assignee of the whole, or a part, of the business of the person referred to in paragraph (a).
(2) For the purposes of this Division:
(a) the outgoing employer is the person referred to in paragraph (1)(a); and
(b) the incoming employer is the person first referred to in paragraph (1)(b); and
(c) the business concerned is the business, or the part of the business, to which the incoming employer becomes, or is likely to become, the successor, transmittee or assignee; and
(d) the transfer time is the time at which the incoming employer becomes, or is likely to become, the successor, transmittee or assignee of the business concerned.
(1) The Commission may make an order that the incoming employer:
(a) is not, or will not be, bound by the State transitional instrument; or
(b) is, or will be, bound by the State transitional instrument, but only to the extent specified in the order.
The order must specify the day from which the order takes effect. That day must not be before the day on which the order is made or before the transfer time.
(2) Without limiting paragraph (1)(b), the Commission may make an order under that paragraph that the incoming employer is, or will be, bound by the State transitional instrument but only for the period specified in the order.
(3) To avoid doubt, the Commission cannot make an order under subclause (1) that would have the effect of extending the transmission period.
24 When application for order can be made
An application for an order under subclause 23(1) may be made before, at or after the transfer time.
(1) Before the transfer time, an application for an order under subclause 23(1) may be made only by the outgoing employer.
(2) At or after the transfer time, an application for an order under subclause 23(1) may be made only by:
(a) the incoming employer; or
(b) a transferring employee in relation to the State transitional instrument; or
(c) an organisation of employees that is bound by the State transitional instrument; or
(d) an organisation of employees that:
(i) is entitled, under its eligibility rules, to represent the industrial interests of a transferring employee in relation to the State transitional instrument; and
(ii) has been requested by the transferring employee to apply for the order on the transferring employee's behalf.
26 Applicant to give notice of application
The applicant for an order under subclause 23(1) must take reasonable steps to give written notice of the application to the persons who may make submissions in relation to the application (see clause 27).
27 Submissions in relation to application
(1) Before deciding whether to make an order under subclause 23(1) in relation to the State transitional instrument, the Commission must give the following an opportunity to make submissions:
(a) the applicant;
(b) before the transfer time--the persons covered by subclause (2);
(c) at and after the transfer time--the persons covered by subclause (3).
(2) For the purposes of paragraph (1)(b), this subclause covers:
(a) an employee of the outgoing employer:
(i) who is bound by the State transitional instrument; and
(ii) who is employed in the business concerned; and
(b) the incoming employer; and
(c) an organisation of employees that is bound by the State transitional instrument; and
(d) an organisation of employees that:
(i) is entitled, under its eligibility rules, to represent the industrial interests of an employee referred to in paragraph (a); and
(ii) has been requested by the employee to make submissions on the employee's behalf in relation to the application for the order under subclause 23(1).
(3) For the purposes of paragraph (1)(c), this subclause covers:
(a) the incoming employer; and
(b) a transferring employee in relation to the State transitional instrument; and
(c) an organisation of employees that is bound by the State transitional instrument; and
(d) an organisation of employees that:
(i) is entitled, under its eligibility rules, to represent the industrial interests of a transferring employee in relation to the State transitional instrument; and
(ii) has been requested by the transferring employee to make submissions on the transferring employee's behalf in relation to the application for the order under subclause 23(1).
Part 6 -- Notice requirements and enforcement
28 Informing transferring employees about transmission of transitional instrument
(1) This clause applies if:
(a) an employer is bound by a transitional instrument (the transmitted instrument ) in relation to a transferring employee by force of:
(i) clause 7 (pre - reform AWA); or
(ii) subclause 10(1), (2) or (3) (pre - reform certified agreement); or
(iii) clause 19 (State transitional instrument); and
(b) a person is a transferring employee in relation to the transmitted instrument.
The provision referred to in paragraph (a) is the transmission provision .
(2) Within 28 days after the transferring employee starts being employed by the employer, the employer must take reasonable steps to give the transferring employee a written notice that complies with subclause (3).
Note: This is a civil remedy provision, see clause 31.
(3) The notice must:
(a) identify the transmitted instrument; and
(b) state that the employer is bound by the transmitted instrument; and
(c) specify the date on which the transmission period for the transmitted instrument ends; and
(d) state that the employer will remain bound by the transmitted instrument until the end of the transmission period unless the transmitted instrument is terminated, or otherwise ceases to be in operation, before the end of that period; and
(e) specify the kinds of instruments (if any) that can replace, or exclude the operation of, the transmitted instrument; and
(f) identify:
(i) any provisions of the Australian Fair Pay and Conditions Standard; or
(ii) any other instrument;
that the employer intends to be the source for terms and conditions that will apply to the matters that are dealt with by the transmitted instrument when the transmitted instrument ceases to bind the employer; and
(g) identify any award or collective agreement that binds:
(i) the employer; and
(ii) employees of the employer who are not transferring employees in relation to the transmitted instrument;
and that would bind the transferring employee but for the transmission provision.
(3A) Subject to subclause (3B), if the notice under subclause (3) identifies an instrument under paragraph (3)(g), the employer must give the transferring employee a copy of the instrument together with the notice.
Note: This is a civil remedy provision, see clause 31.
(3B) Subclause (3A) does not apply if:
(a) the transferring employee is able to easily access a copy of the instrument in a particular way; and
(b) the notice under subclause (3) tells the transferring employee that a copy of the instrument is accessible in that way.
Note: Paragraph (a)--the copy may be available, for example, on the Internet.
(4) Subclause (2) does not apply if:
(a) the transmitted instrument is a pre - reform AWA and the new employer and the transferring employee become bound by an AWA within 14 days after the time of transmission; or
(b) the transmitted instrument is not a pre - reform AWA and the new employer and the transferring employee become bound by an AWA or a collective agreement at the time of transmission or within 14 days after the time of transmission.
29 Lodging copy of notice with Employment Advocate
Only one transferring employee
(1) If an employer:
(a) gives a notice under subclause 28(2) to a transferring employee in relation to a pre - reform AWA; or
(b) gives a notice under subclause 28(2) to the only person who is a transferring employee in relation to a pre - reform certified agreement or State transitional instrument;
the employer must lodge a copy of the notice with the Employment Advocate within 14 days after the notice is given to the transferring employee. The copy must be lodged in accordance with subclause (4).
Note 1: This is a civil remedy provision, see clause 31.
Note 2: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
Multiple transferring employees and notices all given on the one day
(2) If:
(a) an employer gives a number of notices under subclause 28(2) to people who are transferring employees in relation to a pre - reform certified agreement or State transitional instrument; and
(b) all of those notices are given on the one day;
the employer must lodge a copy of one of those notices with the Employment Advocate within 14 days after that notice is given. The copy must be lodged in accordance with subclause (4).
Note 1: This is a civil remedy provision, see clause 31.
Note 2: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
Multiple transferring employees and notices given on different days
(3) If:
(a) an employer gives a number of notices under subclause 28(2) to people who are transferring employees in relation to a pre - reform certified agreement or State transitional instrument; and
(b) the notices are given on different days;
the employer must lodge a copy of the notice, or one of the notices that was given on the earliest of those days, with the Employment Advocate within 14 days after that notice is given. The copy must be lodged in accordance with subclause (4).
Note 1: This is a civil remedy provision, see clause 31.
Note 2: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
(4) A notice is lodged with the Employment Advocate in accordance with this subclause only if it is actually received by the Employment Advocate.
Note: This means that section 29 of the Acts Interpretation Act 1901 (to the extent that it deals with the time of service of documents) does not apply to lodgment of a notice.
30 Employment Advocate must issue receipt for lodgment
(1) If a notice is lodged under clause 29, the Employment Advocate must issue a receipt for the lodgment.
(2) The receipt must state that the notice was lodged under clause 29 on a particular day.
(3) The Employment Advocate must give a copy of the receipt to the person who lodged the notice under clause 29.
(1) The following are civil remedy provisions for the purposes of this clause:
(a) subclauses 28(2) and (3A);
(b) subclauses 29(1), (2) and (3).
Note: Division 4 of Part VIII contains other provisions relevant to civil remedies.
(2) The Court may order a person who has contravened a civil remedy provision to pay a pecuniary penalty.
Note: Division 4 of Part VIII contains other provisions relevant to civil remedies.
(3) The penalty cannot be more than 300 penalty units for a body corporate or 60 penalty units in other cases.
(4) An application for an order under su bclause (2 ) in relation to an instrument listed in the following table may be made by a person specified in the item of the table relating to that kind of instrument:
Item | Instrument | People with standing to apply for order |
1 | pre - reform AWA | (a) the transferring employee; or (b) an organisation of employees that is entitled, under its eligibility rules, to represent the industrial interests of the transferring employee and has been requested by the transferring employee to apply for the order on the transferring employee's behalf; or (c) a workplace inspector |
2 | pre - reform certified agreement | (a) a transferring employee; or (b) an organisation of employees that is bound by the agreement; or (c) an organisation of employees that is entitled, under its eligibility rules, to represent the industrial interests of a transferring employee and has been requested by the transferring employee to apply for the order on the transferring employee's behalf; or (d) a workplace inspector |
3 | notional agreement preserving State awards | (a) a transferring employee; or (b) an organisation of employees that is entitled, under its eligibility rules, to represent the industrial interests of a transferring employee; or (c) a workplace inspector |
4 | preserved State Agreement | (a) a transferring employee; or (b) an organisation of employees that is bound by the agreement; or (c) an organisation of employees that is entitled, under its eligibility rules, to represent the industrial interests of a transferring employee and has been requested by the transferring employee to apply for the order on the transferring employee's behalf; or (d) a workplace inspector |
Part 7 -- Matters relating to Victoria
In this Part:
"employee" has the same meaning as in Division 1 of Part XV of this Act.
"employer" has the same meaning as in Division 1 of Part XV of this Act.
"employment" has the same meaning as in Division 1 of Part XV of this Act, and employed has a corresponding meaning.
"this Schedule" does not include this Part.
"Victorian reference Division 3 pre-reform certified agreement" has the same meaning as in Part 9 of Schedule 14.
33 Additional effect of Schedule
(1) Without affecting its operation apart from this clause, this Schedule also has the effect it would have if:
(a) each reference in this Schedule to an employer (within the meaning of this Schedule) included a reference to an employer (within the meaning of this Part) in Victoria; and
(b) each reference in this Schedule to an employee (within the meaning of this Schedule) included a reference to an employee (within the meaning of this Part) in Victoria; and
(c) each reference in this Schedule to employment (within the meaning of this Schedule) included a reference to the employment of an employee (within the meaning of this Part) in Victoria by an employer (within the meaning of this Part) in Victoria; and
(d) each reference in this Schedule to employed (within the meaning of this Schedule) included a reference to employed (within the meaning of this Part) in Victoria by an employer (within the meaning of this Part) in Victoria; and
(e) Part 5 of this Schedule had not been enacted.
(2) To the extent to which this Schedule (as it has effect because of subclause (1)) applies if an employer (within the meaning of this Part) in Victoria becomes the successor, transmittee or assignee of the whole, or a part, of a business of:
(a) another employer (within the meaning of subsection 4AB(1)); or
(b) another employer (within the meaning of this Part) in Victoria;
this Schedule has effect only for so long, and in so far, as the Commonwealth Powers (Industrial Relations) Act 1996 of Victoria refers to the Parliament of the Commonwealth a matter or matters that result in the Parliament of the Commonwealth having sufficient legislative power for this Schedule so to have effect.
(3) To the extent to which Division 2 of Part 4 of this Schedule (as it has effect because of subclause (1)) applies if an employer (within the meaning of this Part) in Victoria is likely to become the successor, transmittee or assignee of the whole, or a part, of a business of:
(a) another employer (within the meaning of subsection 4AB(1)); or
(b) another employer (within the meaning of this Part) in Victoria;
that Division has effect only for so long, and in so far, as the Commonwealth Powers (Industrial Relations) Act 1996 of Victoria refers to the Parliament of the Commonwealth a matter or matters that result in the Parliament of the Commonwealth having sufficient legislative power for that Division so to have effect.
33A Victorian reference Division 3 pre - reform certified agreements
(1) Clause 6A, subclauses 10(2), (3) and (5), paragraph 11(3)(b) and subclause 11(4) do not apply to a Victorian reference Division 3 pre - reform certified agreement.
(2) Division 1 of Part 4 of this Schedule applies to a Victorian reference Division 3 pre - reform certified agreement as if the agreement had been made under section 170LJ of the pre - reform Act in that section's operation in accordance with repealed Division 2 of Part XV .
Part 8 -- Transitional instruments and transmitted post - reform instruments
34 Relationship between transitional instruments and transmitted collective agreement
(1) This clause applies if subsection 125(1) applies to a collective agreement (the transmitted collective agreement ).
(2) From the time of transmission, a transitional industrial instrument does not apply to a transferring employee's employment with the new employer.
(3) In subclause (2):
"new employer" has the same meaning as in Part VIAA.
"time of transmission" has the same meaning as in Part VIAA.
"transferring employee" has the same meaning as in Part VIAA.
35 Relationship between transitional instruments and transmitted award
(1) This clause applies if subsection 126(1) applies to an award (the transmitted award ).
(2) From the time of transmission, a transitional industrial instrument does not apply to the transferring employee's employment with the new employer.
(3) Subclause (2) has effect despite the following provisions:
(a) clause 5 of Schedule 14 (pre - reform certified agreement);
(b) subclause 25(3) of Schedule 14 (section 170MX award);
(c) clause 15D of Schedule 15 (preserved State agreement).
(4) In subclause (2):
"new employer" has the same meaning as in Part VIAA.
"time of transmission" has the same meaning as in Part VIAA.
"transferring employee" has the same meaning as in Part VIAA.
The regulations may make provision in relation to the effects that the succession, transmission or assignment of a business, or a part of a business, have on the obligation of employers and the terms and conditions of employees under transitional industrial instruments.