Fair Work Act 2009

While a copied State award for a transferring employee:

covers the employee, or an employer (whether the new employer or another national system employer) or other person in relation to the employee; and

is in operation;

When the copied State award for a transferring employee ceases to cover the employee, a modern award will start to cover the employee, or an employer or other person in relation to the employee.

This subsection may operate in relation to an employer that is not the new employer in the situation where there has been a later transfer of business by the new employer (see Part 2‑8).

Subsection (1) does not apply for the purposes of section 193 (which is about the better off overall test for enterprise agreements).

For the purposes of determining whether an enterprise agreement that covers a transferring employee passes the better off overall test, subsection (2) allows the enterprise agreement to be compared against a modern award that covers the employee.

This section has effect subject to any FWC order about coverage under subsection 768BA(1).