Fair Work Act 2009

The FWC may make the following orders:

an order that a transferable instrument that would, or would be likely to, cover the new employer and a non‑transferring employee because of subsection 314(1) does not, or will not, cover the non‑transferring employee;

an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer;

an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer.

Orders may be made under paragraphs (1)(b) and (c) in relation to a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non‑transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover the new employer.

The FWC may make the order only on application by any of the following:

the new employer or a person who is likely to be the new employer;

a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer;

if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

In deciding whether to make the order, the FWC must take into account the following:

the views of:

the new employer or a person who is likely to be the new employer; and

the employees who would be affected by the order;

whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

if the order relates to an enterprise agreement—the nominal expiry date of the agreement;

whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;

whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

the public interest.

The order must not come into operation in relation to a particular non‑transferring employee before the later of the following:

the time when the non‑transferring employee starts to perform the transferring work for the new employer;

the day on which the order is made.