Fair Work Act 2009

If a copied State instrument for a transferring employee does not include a term that provides a procedure for settling disputes about matters arising under the instrument, then the instrument is taken to include the model term that is determined under subsection (1A) for settling disputes about matters arising under a copied State instrument for a transferring employee.

This section deals with the situation where the original State award or original State agreement for the copied State instrument did not include a term about settling disputes about matters arising under the award or agreement.

The FWC must determine a model term for the purposes of subsection (1).

For the purposes of subsection (1A), the model term determined for a copied State award for a transferring employee may be the same or different from the model term determined for a copied State employment agreement for a transferring employee.

In determining the model term, the FWC must take into account the following matters:

whether the model term is broadly consistent with comparable terms in modern awards;

best practice workplace relations as determined by the FWC;

whether all persons and bodies have had a reasonable opportunity to be heard and make submissions to the FWC for consideration in determining the model term;

the operation of subsections 739(3), (4), (5) and (6) and 740(3) and (4);

the object of this Act (see section 3);

any other matters the FWC considers relevant.

The FWC must be constituted by a Full Bench to make the model term for settling disputes (see subsection 616(4A)).

For the variation of a determination, see subsection 33(3) of the Acts Interpretation Act 1901.

A determination under subsection (1A) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.