Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

FWA must not make a determination varying a modern enterprise award so as to extend the coverage of the modern enterprise award so that it ceases to be a modern enterprise award.

In deciding whether to make a determination varying the coverage of a modern enterprise award in some other way, FWA must take into account the following:

the circumstances that led to the making of the modern enterprise award;

whether there is a modern award (other than the miscellaneous modern award or a modern enterprise award) that would, but for the modern enterprise award, cover the persons covered, or proposed to be covered, by the modern enterprise award;

the content of the modern award referred to in paragraph (b);

the terms and conditions of employment applying in the industry in which the persons covered, or proposed to be covered, by the modern award operate, and the extent to which those terms and conditions are reflected in the modern enterprise award;

the extent to which the modern enterprise award provides enterprise‑specific terms and conditions of employment;

the likely impact on the persons covered, or proposed to be covered, by the modern enterprise award, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the variation, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;

the views of the persons covered, or proposed to be covered, by the modern enterprise award;

any other matter prescribed by the regulations.

If FWA makes one or more determinations varying modern award minimum wages in an annual wage review, FWA must publish the rates of those wages as so varied:

for wages in a modern award (other than a modern enterprise award)—before 1 July in the next financial year; and

for wages in a modern enterprise award—as soon as practicable.

FWA must also publish the modern award as varied (see section 168).

The heading to section 292 is altered by omitting “by 1 July”.

A State reference public sector transitional award is a State reference transitional award or common rule in relation to which the following conditions are satisfied:

the only employers that are expressed to be covered by the award or common rule are one or more specified State reference public sector employers;

the only employees who are expressed to be covered by the award or common rule are specified State reference public sector employees of those employers.

State reference transitional awards and common rules are continued in existence as transitional instruments by Schedule 3.

A State reference public sector employee is a State reference employee who is a State public sector employee as defined in section 30A or 30K of the FW Act.

A State reference public sector employer is a State reference employer that is a State public sector employer as defined in section 30A or 30K of the FW Act.

If:

a State reference transitional award or common rule (the current award) covers one or more State reference public sector employers, and State reference public sector employees of those employers; and

the current award also covers:

other employees of those employers; or

other employers, and employees of those other employers;

a State reference public sector transitional award covering:

the employers, and the employees of those employers, referred to in paragraph (a); and

if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a)—that organisation in relation to those employers or employees; and

a State reference transitional award or a State reference common rule (as the case requires) covering:

the employers, and the employees of those employers, referred to in paragraph (b); and

if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b)—that organisation in relation to those employers or employees.

The State reference public sector transitional award modernisation process is the process of making State reference public sector modern awards under this Division covering employers, employees and organisations that are covered by State reference public sector transitional awards.

A State reference public sector modern award is a modern award in relation to which the following conditions are satisfied:

the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers;

the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers.

A State reference public sector modern award must be made by a Full Bench.

An employer or organisation that is covered by a State reference public sector transitional award (the current award) may apply to the FWC for the making of a State reference public sector modern award (the proposed award).

The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.

The application must specify the employers, employees and organisations (the proposed parties) proposed to be covered by the proposed award.

The FWC must consider the application, and must make a State reference public sector modern award covering the proposed parties if the FWC is satisfied that:

the proposed parties are covered by State reference public sector transitional awards; and

the employers and organisations that are proposed parties have agreed to the making of the application.

The proposed parties will cease to be covered by State reference public sector transitional awards when the State reference public sector modern award comes into operation: see item 29 of Schedule 3.

An employer or organisation that is covered by a State reference public sector transitional award (the current award) may apply to the FWC or the Commission to terminate the current award.

The Commission ceased to exist on 31 December 2009: see item 7 of Schedule 18.

The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.

The FWC or the Commission must not terminate the current award unless the FWC or the Commission is satisfied that the employees who are covered by the current award will, if the current award is terminated, be covered by a modern award (other than the miscellaneous modern award) that, at the time of the termination, is or is likely to be in operation and that is appropriate for them.

In deciding whether to terminate the current award, the FWC or the Commission must take into account the following:

the circumstances that led to the making of the current award;

the terms and conditions of employment applying in the industry or occupation in which the persons covered by the current award operate, and the extent to which those terms and conditions are reflected in the current award;

the extent to which the current award facilitates arrangements, and provides terms and conditions of employment, referred to in paragraphs 7(2)(a) and (b);

the likely impact on the persons covered by the current award of a decision to terminate, or not to terminate, the current award;

the views of the persons covered by the current award;

any other matter prescribed by the regulations.

If the FWC or the Commission terminates the current award, the termination operates from the day specified in the decision to terminate the current award, being a day that is not earlier than the FW (safety net provisions) commencement day.

If the Commission terminates the current award, the termination is taken, after the Commission has ceased to exist, to have been made by the FWC.

The employers and employees will cease to be covered by the State reference public sector transitional awards when they start to be covered by a State reference public sector modern award that is in operation: see item 29 of Schedule 3.

If the FWC is required by item 4 or 6 to make a State reference public sector modern award, the modern awards objective and the minimum wages objective apply to the making of the modern award.

However, in applying the modern awards objective and the minimum wages objective, the FWC must recognise:

the need to facilitate arrangements for State reference public sector employers and State reference public sector employees that are appropriately adapted to the effective administration of a State; and

that State reference public sector modern awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to State reference public sector employers and State reference public sector employees.

See also item 13 (State reference public sector transitional award modernisation process is not intended to result in reduction in take‑home pay).

See also item 19 (how the FW Act applies in relation to the State reference public sector transitional award modernisation process before the FW (safety net provisions) commencement day).

Division 3 (other than sections 143 and 154) of Part 2‑3 of the FW Act (which deals with terms of modern awards) applies in relation to a State reference public sector modern award made under this Division.

See also item 19 (how the FW Act applies in relation to the State reference public sector transitional award modernisation process before the FW (safety net provisions) commencement day).

If FWA makes a State reference public sector modern award before the FW (safety net provisions) commencement day, the State reference public sector modern award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day.

A State reference public sector modern award must include terms (coverage terms) setting out, in accordance with this item, the employers, employees and organisations that are covered by the State reference public sector modern award.

The coverage terms must be such that:

the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers; and

the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers.

A State reference public sector modern award may be expressed to cover one or more specified organisations, in relation to:

all or specified employees covered by the modern award; or

the employer, or all or specified employers, covered by the modern award.

A State reference public sector modern award must not be expressed to cover outworker entities.

For the purposes of this item:

an employer or employers may be specified by name or by inclusion in a specified class or specified classes; and

employees must be specified by inclusion in a specified class or specified classes; and

organisations must be specified by name.

If a State reference public sector modern award completely replaces a State reference public sector transitional award, the transitional award terminates when the modern award comes into operation.

If a State reference public sector modern award partially replaces a State reference public sector transitional award, the FWC must, as soon as practicable after the modern award comes into operation, vary the transitional award so that employees who are covered by the modern award are no longer covered by the transitional award.

For the purposes of this item:

the modern award completely replaces the transitional award if all the employees who are covered by the transitional award become covered by the modern award when it comes into operation; and

the modern award partially replaces the transitional award if only some of the employees who are covered by the transitional award become covered by the modern award when it comes into operation.

This item does not limit the effect of any other provision of this Act under which a transitional instrument (a State reference public sector transitional award is a transitional instrument) ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.

The FWC must, at least 6 months before the end of the period specified in subitem 4(2), advise any persons still covered by a State reference public sector transitional award:

that the period for making applications under items 4 and 5 ends on 31 December 2013; and

that the FWC will, at the end of that period, commence the State reference public sector transitional award modernisation process in relation to the transitional award for any employees and employers who are still covered by the transitional award at that time.

The FWC may give that advice by any means it considers appropriate.

Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s functions and powers under this item.

The State reference public sector transitional award modernisation process is not intended to result in a reduction in the take‑home pay of employees.

An employee’s take‑home pay is the pay an employee actually receives:

including wages and incentive‑based payments, and additional amounts such as allowances and overtime; but

disregarding the effect of any deductions that are made as permitted by section 324 of the FW Act.

Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.

An employee suffers a modernisation‑related reduction in take‑home pay if, and only if:

a State reference public sector modern award made in the State reference public sector transitional award modernisation process starts to apply to the employee when the modern award comes into operation; and

the employee is employed in the same position as (or a position that is comparable to) the position he or she was employed in immediately before the State reference public sector modern award came into operation; and

the amount of the employee’s take‑home pay for working particular hours or for a particular quantity of work after the State reference public sector modern award comes into operation is less than what would have been the employee’s take‑home pay for those hours or that quantity of work immediately before the modern award came into operation; and

that reduction in the employee’s take‑home pay is attributable to the State reference public sector transitional award modernisation process.

If the FWC is satisfied that an employee, or a class of employees, to whom a State reference public sector modern award applies has suffered a modernisation‑related reduction in take‑home pay, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation.

The FWC may make a take‑home pay order only on application by:

an employee who has suffered a modernisation‑related reduction in take‑home pay; or

an organisation that is entitled to represent the industrial interests of such an employee; or

a person acting on behalf of a class of such employees.

If the FWC is satisfied that an application for a take‑home pay order has already been made in relation to an employee or a class of employees, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees.

The FWC must not make a take‑home pay order in relation to an employee or class of employees if:

the FWC considers that the modernisation‑related reduction in take‑home pay is minor or insignificant; or

the FWC is satisfied that the employee or employees have been adequately compensated in other ways for the reduction.

The FWC must ensure that a take‑home pay order is expressed so that:

it does not apply to an employee unless the employee has actually suffered a modernisation‑related reduction in take‑home pay; and

if the take‑home pay payable to the employee under the State reference public sector modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee under the order.

subsection 675(2);

subsection 706(2).

For compliance with take‑home pay orders, see item 7 of Schedule 16.

Part 2‑2 (which deals with the National Employment Standards);

section 134 (which deals with the modern awards objective);

Division 3 of Part 2‑3 (which deals with terms of modern awards);

section 284 (which deals with the minimum wages objective);

any provisions that are necessary for the effectual operation of the provisions referred to in paragraphs (a) to (d).

A State reference public sector modern award made under Division 2 is, for the purposes of the FW Act (and any other law), taken to be a modern award (being a State reference public sector modern award) within the meaning of that Act from the day on which the State reference public sector modern award is made.

Section 49 of the FW Act does not apply for the purpose of determining when the State reference public sector modern award comes into operation. Instead, the modern award comes into operation on the day on which it is expressed to commence, being a day that is not earlier than the day on which the modern award is made.

The regulations may deal with other matters relating to how the FW Act applies in relation to State reference public sector modern awards.

Paragraph 186(2)(d) of the FW Act (including as that paragraph has effect under subsection 211(3) of that Act) and subsection 211(5) of that Act apply in relation to:

an enterprise agreement made during the bridging period; and

a variation of an enterprise agreement, if the variation was made during the bridging period;

Paragraph 189(1)(b) of the FW Act applies in relation to an enterprise agreement made during the bridging period as if the words “better off overall test” were omitted and the words “no‑disadvantage test as set out in Division 2 of Part 2 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted.

This means that section 193 (which deals with passing the better off overall test) and subsections 211(4) and (5) (which deal with applying the better off overall test to agreements as proposed to be varied) of the FW Act will have no effect in relation to the approval by FWA of agreements and variations during the bridging period.

In this Division:

an AWA;

a workplace agreement;

a pre‑reform AWA;

a pre‑reform certified agreement;

a workplace determination (within the meaning of the WR Act);

a section 170MX award;

an old IR agreement;

a preserved State agreement.

Unless the contrary intention appears, this Division applies to an enterprise agreement as proposed to be varied in a corresponding way to the way in which it applies to an enterprise agreement.

For the purposes of subitem (2):

a reference in a provision of this Division to an employee who is covered by the agreement is taken to be a reference to an employee who is one of the affected employees for the variation of the agreement (within the meaning of the FW Act); and

a reference in a provision of this Division to the employees who are covered by the agreement is taken to be a reference to the affected employees for the variation; and

a reference in a provision of this Division to an application for approval of the agreement under section 185 of the FW Act is taken to be a reference to an application for approval of a variation of the agreement under section 210 of that Act.

For the purposes of applying this Division to an enterprise agreement, a reference to an employee who is covered by the enterprise agreement is, so far as the context permits, taken to include a reference to a person who may at a future time be covered by the enterprise agreement.

An enterprise agreement passes the no‑disadvantage test if FWA is satisfied that the agreement does not, or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees who are covered by the agreement under any reference instrument relating to one or more of the employees.

For the purposes of subitem (1):

a law of a State or Territory that:

relates to long service leave; and

applied, immediately before the application was made for approval of the agreement under section 185 of the FW Act, to an employee referred to in that subitem, or would have applied to such an employee if he or she had been employed by the employer at that time;

if, apart from this subitem, the only reference instrument relating to the employee is a designated award for the employee—the designated award is to be disregarded to the extent (if any) that it provides for long service leave.

An enterprise agreement made during the bridging period will prevail over a law of a State or Territory, to the extent of any inconsistency, so far as that law deals with long service leave (see item 17).

An enterprise agreement or a variation of an enterprise agreement is taken to pass the no‑disadvantage test if there is no reference instrument in relation to any of the employees who are covered by the agreement.

To avoid doubt, if there is a reference instrument in relation to one or more, but not all, of the employees referred to in subitem (1):

if the agreement passes the no‑disadvantage test under subitem (1)—it passes the test in relation to all employees who are covered by the agreement; or

if the agreement does not pass the no‑disadvantage test under subitem (1)—it does not pass the test in relation to any employees who are covered by the agreement.

In addition to the no‑disadvantage test, during the bridging period, the Australian Fair Pay and Conditions Standard prevails over an enterprise agreement to the extent to which the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee or employees—see subitem 27(1).

From the FW (safety net provisions) commencement day, a term of an enterprise agreement has no effect to the extent it excludes the National Employment Standards or any provision of the National Employment Standards (see sections 55 and 56 of the FW Act).

This item applies to an enterprise agreement as proposed to be varied in a corresponding way to the way in which it applies to an enterprise agreement—see subitems 3(2) and (3).

See item 10 for how FWA makes decisions under this item.

For the purposes of determining whether an enterprise agreement as proposed to be varied passes the no‑disadvantage test, FWA must disregard any individual flexibility arrangement that has been agreed to by an affected employee and his or her employer under the flexibility term in the agreement.

A reference instrument, in relation to employees who are covered by an enterprise agreement, is:

any relevant general instrument; or

if there is no relevant general instrument—any designated award;

A relevant general instrument, for an employee who is covered by an enterprise agreement, is an award‑based transitional instrument:

that regulates, or would but for an enterprise agreement or another industrial instrument having come into operation regulate, any term or condition of employment of persons engaged in the same kind of work as that performed or to be performed by the employee under the enterprise agreement; and

that applied, or would but for an enterprise agreement or another industrial instrument having come into operation have applied, to the employee’s employer immediately before the day on which the application for approval of the agreement was made under section 185 of the FW Act.

In deciding whether an enterprise agreement passes, or does not pass, the no‑disadvantage test, FWA must consider it as in existence at the test time.

The test time is the time when the application for approval of the agreement was made under section 185 of the FW Act.

FWA may, on application by an employer, determine that an award is a designated award for an employee or class of employees of the employer.

FWA may make a determination under this item only if it is satisfied that:

the employee or employees are or may be employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee or employees:

are usually regulated by an award; or

would, but for an enterprise agreement or another industrial instrument having come into operation, usually be regulated by an award; and

unless there is a designated award for the employee or employees, there would be no reference instrument relating to the employee or employees; and

there is an award that satisfies the requirements specified in subitem (3).

An award or awards determined by FWA under this item:

must be an award or awards regulating, or that would, but for an enterprise agreement or another industrial instrument having come into operation, regulate, terms or conditions of employment of employees engaged in the same kind of work as the work performed or to be performed by the employee or employees; and

must, in the opinion of FWA, be an award or awards that would be appropriate for the purpose referred to in paragraph 8(3)(b) if an application were made for approval of an enterprise agreement under section 185 of the FW Act; and

must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).

An award determined under this item in relation to an employee or employees is taken to be the designated award determined by FWA under item 8 in relation to the employee or employees if, later, an application is made for approval of an enterprise agreement under section 185 of the FW Act, in relation to the employee or the employees.

Despite subitem (4), FWA may determine under item 8 that another award is a designated award in relation to the employee, or in relation to some or all of the employees, if:

FWA becomes aware of information that was not available to it at the time of the determination under subitem (1); and

FWA is satisfied that, had that information been available to it at that time, FWA would have determined under subitem (1) the other award to be the designated award.

FWA may determine different awards under subitem (1) in relation to different employees.

In this item, a reference to an employee or employees of an employer includes a reference to a person or persons who may become an employee or employees of the employer.

A determination made under this item is not a legislative instrument.

This item applies to an enterprise agreement if there is no relevant general instrument in relation to an employee who is, or a class of employees who are, covered by the agreement.

FWA must determine that an award is a designated award for the employee or employees referred to in subitem (1), if it is satisfied that:

on the date on which the application for approval of the enterprise agreement was made under section 185 of the FW Act, the employee or employees are or would be employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee or employees:

are usually regulated by an award; or

would, but for an enterprise agreement or another industrial instrument having come into operation, usually be regulated by an award; and

there is an award that satisfies the requirements specified in subitem (3).

An award or awards determined by FWA under this item:

must be an award or awards regulating, or that would, but for an enterprise agreement or another industrial instrument having come into operation, regulate, terms or conditions of employment of employees engaged in the same kind of work as the work performed by the employee or employees under the enterprise agreement concerned; and

must, in the opinion of FWA, be appropriate for the purpose of deciding whether an enterprise agreement passes the no‑disadvantage test; and

must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).

FWA may determine different awards under subitem (2) in relation to different employees.

A determination made under this item is not a legislative instrument.

were, immediately before the reform commencement, usually regulated by a State award (within the meaning of the WR Act); or

would, but for an industrial instrument or a State employment agreement (within the meaning of the WR Act) having come into operation, usually have been so regulated immediately before the reform commencement.

In deciding whether an enterprise agreement passes, or does not pass, the no‑disadvantage test, FWA:

must have regard to the work obligations of the employee or employees under the enterprise agreement; and

may inform itself in any way it considers appropriate including (but not limited to) contacting any of the following:

the employer;

the employee, or some or all of the employees, who are covered by the enterprise agreement;

a bargaining representative in relation to the agreement.

In deciding whether to determine that an award is a designated award in relation to an employee or employees of an employer, FWA may inform itself in any way it considers appropriate including (but not limited to) contacting any of the following:

the employer;

the employee or employees;

if the determination would be made under item 8—a bargaining representative in relation to the agreement.

an enterprise agreement made during the bridging period; or

a variation of an enterprise agreement, if the variation is made during the bridging period.

Section 55 of the FW Act (which deals with the interaction between the National Employment Standards and enterprise agreements etc.) will apply after the end of the bridging period. Section 56 of that Act provides that a term of an enterprise agreement has no effect to the extent that it contravenes section 55.

an enterprise agreement made during the bridging period; or

a variation of an enterprise agreement, if the variation is made during the bridging period;

For disputes relating to the Australian Fair Pay and Conditions Standard as it applies during the bridging period, see item 27.

Subsection 187(4) of the FW Act (which deals with requirements relating to particular kinds of employees) does not apply in relation to:

an enterprise agreement made during the bridging period; or

a variation of an enterprise agreement, if the variation is made during the bridging period;

Section 200 of the FW Act (which deals with requirements relating to outworkers) applies in relation to the agreement or variation as if:

references in that section to a modern award were references to an award, a State reference transitional award or common rule, or a notional agreement preserving State awards; and

references in that section to outworker terms were references to terms that are (or that would be, if the terms were in an award) outworker terms as defined in section 564 of the WR Act.

If an application for approval of an enterprise agreement referred to in this item is not made to FWA within 14 days of it being made:

FWA cannot approve the enterprise agreement; but

another enterprise agreement may be made in accordance with Part 2‑4 of the FW Act.

If an application for approval of a variation referred to in this item is not made to FWA within 14 days of it being made:

FWA cannot approve the variation; but

another variation may be made in accordance with Part 2‑4 of the FW Act.

A term of such an enterprise agreement will still apply subject to a law of a State or Territory so far as that law is otherwise covered by paragraph 29(2)(a) or (b) of the FW Act.

This item applies in relation to an enterprise agreement made after the end of the bridging period if one or more of the employees covered by the agreement is an unmodernised award covered employee.

Despite section 193 of the FW Act, if the enterprise agreement is not a greenfields agreement, the agreement passes the better off overall test under that section only if:

the FWC is satisfied as referred to in subsection (1) of that section in relation to the agreement; and

the FWC is satisfied, as at the test time, that each unmodernised award covered employee, and each prospective unmodernised award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant award‑based transitional instrument and transitional APCS applied to the employee.

Despite section 193 of the FW Act, if the enterprise agreement is a greenfields agreement, the agreement passes the better off overall test under that section only if:

the FWC is satisfied as referred to in subsection (3) of that section in relation to the agreement; and

the FWC is satisfied, as at the test time, that each prospective unmodernised award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant award‑based transitional instrument and transitional APCS applied to the employee.

For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award or relevant award‑based transitional instrument and transitional APCS applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.

If the relevant award‑based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded.

State reference transitional awards or common rules contain terms dealing with wages.

This item applies in relation to a variation of an enterprise agreement if:

the variation is made after the end of the bridging period; and

one or more of the employees who are covered by the agreement is an unmodernised award covered employee.

Despite subsections 211(4) and (5) of the FW Act, subitems (3) and (4) apply in relation to the variation for the purposes of the FWC being satisfied that the agreement as proposed to be varied passes the better off overall test.

An enterprise agreement as proposed to be varied passes the better off overall test if the FWC is satisfied, as at the test time, that:

each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee; and

each unmodernised award covered employee, and each prospective unmodernised award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant award‑based transitional instrument and transitional APCS applied to the employee.

For the purposes of determining whether the enterprise agreement as proposed to be varied passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award or relevant award‑based transitional instrument and transitional APCS applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.

For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by an award covered employee and his or her employer under the flexibility term in the agreement.

If the relevant award‑based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded.

State reference transitional awards or common rules contain terms dealing with wages.

would be covered by the agreement; and

would be covered by an award‑based transitional instrument (the relevant award‑based transitional instrument) that:

is in operation; and

would cover the person in relation to the work that he or she would perform under the agreement; and

covers the employer.

for the purposes of item 18—means the time the application for approval of the agreement by the FWC was made under section 185 of the FW Act; and

for the purposes of item 19—means the time the application for approval of the variation of the enterprise agreement by the FWC was made under section 210 of that Act.

is covered by the agreement; and

at the test time, is covered by an award‑based transitional instrument (the relevant award‑based transitional instrument) that:

is in operation; and

covers the employee in relation to the work that he or she is to perform under the agreement; and

covers his or her employer.

This item applies in relation to an enterprise agreement made on or after the Division 2B referral commencement, if one or more of the employees covered by the agreement is a Division 2B State award covered employee.

Despite section 193 of the FW Act, if the enterprise agreement is not a greenfields agreement, the agreement passes the better off overall test under that section only if:

the FWC is satisfied as referred to in subsection (1) of that section, and paragraph (2)(b) of item 18 of this Schedule, in relation to the agreement (to the extent that those provisions are applicable); and

the FWC is satisfied, as at the test time, that each Division 2B State award covered employee, and each prospective Division 2B State award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee.

Section 193 of the FW Act and item 18 of this Schedule deal with testing enterprise agreements against other instruments (such as modern awards). An enterprise agreement to which this subitem applies will not be tested against one or more such other instruments in relation to Division 2B State award covered employees.

Despite section 193 of the FW Act, if the enterprise agreement is a greenfields agreement, the agreement passes the better off overall test under that section only if:

the FWC is satisfied as referred to in subsection (3) of that section and paragraph (3)(b) of item 18 of this Schedule in relation to the agreement (to the extent that those provisions are applicable); and

the FWC is satisfied, as at the test time, that each prospective Division 2B State award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee.

Section 193 of the FW Act and item 18 of this Schedule deal with testing enterprise agreements against other instruments (such as modern awards). An enterprise agreement to which this subitem applies will not be tested against one or more such other instruments in relation to prospective Division 2B State award covered employees.

For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant Division 2B State award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.

This item applies in relation to a variation of an enterprise agreement if:

the variation is made on or after the Division 2B referral commencement; and

one or more of the employees covered by the agreement is a Division 2B State award covered employee.

Despite subsections 211(4) and (5) of the FW Act, subitems (3) and (4) apply in relation to the variation for the purposes of the FWC being satisfied that the agreement as proposed to be varied passes the better off overall test.

An enterprise agreement as proposed to be varied passes the better off overall test only if:

the FWC is satisfied, as at the test time, as mentioned in subitem 19(3) of this Schedule in relation to the agreement as proposed to be varied (to the extent that subitem 19(3) is applicable); and

the FWC is satisfied, as at the test time, that each Division 2B State award covered employee, and each prospective Division 2B State award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee.

Item 19 of this Schedule deals with testing enterprise agreements as proposed to be varied against other instruments (such as modern awards). A variation to which this subitem applies will not be tested against one or more such other instruments in relation to Division 2B State award covered employees.

For the purposes of determining whether the enterprise agreement as proposed to be varied passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant Division 2B State award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.

For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by a Division 2B State award covered employee and his or her employer under the flexibility term in the agreement.

is covered by the agreement; and

at the test time, is covered by a Division 2B State award (the relevant Division 2B State award) that:

is in operation; and

covers the employee in relation to the work that he or she is to perform under the agreement; and

covers his or her employer.

would be covered by the agreement; and

would be covered by a Division 2B State award (the relevant Division 2B State award) that:

is in operation; and

would cover the person in relation to the work that he or she would perform under the agreement; and

covers the employer.

for the purposes of item 20A—means the time the application for approval of the enterprise agreement by the FWC was made under section 185 of the FW Act; and

for the purposes of item 20B—means the time the application for approval of the variation of the enterprise agreement by the FWC was made under section 210 of that Act.

Subsection 263(3) of the FW Act (which deals with additional requirements for making a special low‑paid workplace determination) applies in relation to a workplace determination, whether made during or after the bridging period, as if the reference in that subsection to an enterprise agreement included a reference to a collective agreement‑based transitional instrument.

However, subitem (1) does not apply in relation to a workplace determination if:

the collective agreement‑based transitional instrument has ceased to operate; and

the FWC considers that it is appropriate in the circumstances to make the workplace determination.

In making a decision for the purposes of paragraph (2)(b) of this item, the FWC must take into account the objects set out in section 241 of the FW Act.

This item applies in relation to a workplace determination made after the end of the bridging period if one or more of the employees who will be covered by the determination is an unmodernised award covered employee (within the meaning of Part 4).

Subsection 272(4) of the FW Act (which deals with workplace determinations passing the better off overall test) applies in relation to the workplace determination as if the words “under section 193” were omitted and the words “under item 18 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted.

This item applies in relation to a workplace determination made during the bridging period.

Subsection 272(5) of the FW Act (which deals with terms relating to safety net requirements) does not apply in relation to the workplace determination, except in so far as that subsection prevents a workplace determination from including a term that would, if the determination were an enterprise agreement, mean that FWA could not approve the agreement because of the operation of section 200 of that Act (which deals with requirements relating to outworkers).

Section 55 of the FW Act (which deals with the interaction between the National Employment Standards and workplace determinations etc.) will apply after the end of the bridging period. Section 56 of that Act provides that a term of a workplace determination has no effect to the extent that it contravenes section 55.

Section 200 of the FW Act (which deals with requirements relating to outworkers) applies in relation to the workplace determination as if:

references in that section to a modern award were references to an award or a State reference transitional award or common rule; and

references in that section to outworker terms were references to outworker terms as defined in section 564 of the WR Act.

This item applies in relation to a workplace determination made during the bridging period.

Paragraph 273(2)(b) of the FW Act (which deals with a requirement for a workplace determination to have a term about settling disputes in relation to the National Employment Standards) applies in relation to the workplace determination as if the words “as the National Employment Standards apply after the end of the bridging period” were added after “National Employment Standards”.

Subsection 273(3) of the FW Act (which deals with a requirement for a workplace determination to have a term about settling disputes) applies in relation to the workplace determination as if the reference to paragraph 186(6)(a) of the FW Act were a reference to that paragraph in its application to an enterprise agreement made during the bridging period (see item 12).

For disputes relating to the Australian Fair Pay and Conditions Standard as it applies during the bridging period, see item 27.

The Australian Fair Pay and Conditions Standard, in its application during the bridging period under item 2 of Schedule 4 and item 5 of Schedule 9 prevails over an enterprise agreement or a workplace determination that applies to an employee to the extent to which, in a particular respect, the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee.

A dispute about:

whether the Australian Fair Pay and Conditions Standard provides a more favourable outcome for an employee in a particular respect than an enterprise agreement or workplace determination that applies to that employee; or

what the outcome is for an employee in a particular respect under the Australian Fair Pay and Conditions Standard, where an enterprise agreement or a workplace determination applies to that employee;

For the purposes of subitem (2), Divisions 2 and 3 of Part 13 of the WR Act apply as if a reference in those Divisions to the Commission or the Industrial Registrar were a reference to FWA.

The fact that the model dispute resolution process applies in relation to the dispute does not affect any right of a party to the dispute to take court action to resolve it.

To avoid doubt, subitems (2) and (3) apply despite:

subsection 694(2) of the WR Act (which deals with when the model dispute resolution process applies); and

subsection 595(1) of the FW Act (which deals with when FWA may deal with a dispute).

Despite the WR Act repeal, regulations made for the purposes of subsection 172(4) of the WR Act continue to apply during the bridging period as if a reference in those regulations to a workplace agreement were a reference to an enterprise agreement and a workplace determination.

A term of an enterprise agreement or a workplace determination has no effect to the extent to which it purports to exclude the Australian Fair Pay and Conditions Standard or any part of it.

In this item:

This item applies to an enterprise agreement, or a variation of an enterprise agreement, if:

an application for approval of the agreement or variation has been made under the FW Act; and

the FWC must decide whether the agreement, or the agreement as proposed to be varied, passes the better off overall test; and

an employer covered by the agreement, or the agreement as proposed to be varied, is an employer to which a transitional pay equity order applies; and

an employee covered by the agreement, or the agreement as proposed to be varied, is an affected employee of the employer referred to in paragraph (c).

For the purposes of determining whether the affected employee would be better off overall if the agreement, or the agreement as proposed to be varied, applied to the employee than if the relevant modern award applied to the employee, the base rate of pay payable under the relevant modern award to the employee is taken to be increased so that it is equal to the amount payable to the employee under the transitional pay equity order.

For the meanings of transitional pay equity order and affected employee, see item 2 of Schedule 2.

An enterprise agreement made during the bridging period ceases to operate at the end of the grace period for the agreement if the agreement has not already ceased to operate before that time.

The grace period for an enterprise agreement made during the bridging period is:

subject to paragraph (b), the period of 12 months (the default period) beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences; or

if the default period is extended for the agreement on one or more occasions under subitem (6) or paragraph (10)(e)—the default period as so extended.

An employer covered by an enterprise agreement made during the bridging period must, before the end of 6 months beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences, give each employee who is covered by the agreement and employed by the employer at the end of that period written notice advising the employee:

that the employee is covered by an enterprise agreement made during the bridging period; and

that the agreement will terminate unless an application is made to the FWC under subitem (4), before the end of the period of 12 months beginning on the day that Part commences, for the FWC to extend the default period for the agreement; and

of the day on which that Part commences.

For compliance with this obligation, see item 4C of Schedule 16.

Any of the following may apply to the FWC, before the end of the grace period for an enterprise agreement made during the bridging period, for the FWC to extend the default period for the agreement for a period of no more than 4 years:

an employer covered by the agreement;

an employee covered by the agreement;

an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the agreement.

An application under subitem (4) must be accompanied by:

a copy of the agreement; and

any declarations that are required by the procedural rules of the FWC to accompany the application.

If an application is made under subitem (4), the FWC must extend the default period for the enterprise agreement made during the bridging period for a period of no more than 4 years if the FWC is satisfied that:

subitem (7) or (8) applies and it is otherwise appropriate in the circumstances to do so; or

it is reasonable in the circumstances to do so.

This subitem applies if:

the application is made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the enterprise agreement made during the bridging period; and

bargaining for the proposed enterprise agreement is occurring.

This subitem applies if it is likely that, as at the time the application is made, the award covered employees for the agreement under subitem (9), viewed as a group, would be better off overall if the agreement applied to the employees than if the relevant modern award or awards referred to in that subitem applied to the employees.

For the purposes of subitem (8), the award covered employees for an enterprise agreement made during the bridging period are the employees who:

are covered by the agreement; and

at the time an application is made under subitem (4) in relation to the agreement, are covered by one or more modern awards (the relevant modern awards) that:

are in operation; and

cover the employees in relation to the work that the employees are to perform under the agreement; and

are employed at that time by an employer who is covered by the agreement and by one or more of the relevant modern awards.

The FWC must publish the following, on its website or by any other means that the FWC considers appropriate:

a decision under subitem (6);

any written reasons that the FWC gives in relation to such a decision;

if the decision is to extend the default period for the relevant enterprise agreement—the agreement.

Paragraph (9A)(b) applies subject to any order made under section 594 of the FW Act.

If:

an application is made under subitem (4) in relation to an enterprise agreement made during the bridging period; and

the FWC has not made a decision on the application at a time (the critical time) that is immediately before what would (apart from this subitem) be the end of the grace period for the agreement;

the FWC must make the decision on the application after the critical time; and

the decision on the application is taken to have been made at the critical time; and

if the FWC’s decision on the application is to refuse to extend the default period for the agreement under subitem (6)—the FWC must extend the default period until the end of:

subject to subparagraph (ii), the day the refusal decision is made; or

if the refusal decision specifies a later day that is not more than 14 days after the day the refusal decision is made—that later day.

If an enterprise agreement made during the bridging period ceases to operate in accordance with subitem (1), that does not affect:

any right or liability that a person acquired, accrued or incurred before the agreement ceased to operate; or

any investigation, legal proceeding or remedy in respect of any such right or liability.

Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the agreement had not ceased to operate.

Subitems (11) and (12) have effect subject to a contrary intention in this Act or in the FW Act.

Schedule 3 (which deals with transitional instruments) also contains rules that apply to such agreements.

subsections 337(8), (9), (10) and (11) (which deal with non‑compliance with access and information requirements);

section 341 (which deals with lodging unapproved agreements);

Division 5 of Part 8 (which deals with lodgment);

Division 5A of Part 8 (which deals with the no‑disadvantage test);

subsections 347(1) and (3) (which deal with when a workplace agreement comes into operation);

section 347A (which deals with the operation of workplace agreements);

Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void);

subsection 401(1) and section 412A.

The general effect of this provision is to preserve the Part 8 rules about lodgment, the no‑disadvantage test and prohibited content for collective agreements made before the WR Act repeal day, subject to the modifications set out in this Division. The rules about variation and termination of such collective agreements, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments).

The rules requiring a collective agreement to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).

Despite item 3, if the collective agreement is an unlodged collective agreement:

the Workplace Authority Director must not consider whether the agreement passes the no‑disadvantage test under section 346D of the WR Act, as that section continues to apply because of item 3, unless:

the agreement is lodged before the end of the period (the cut‑off period) of 14 days referred to in subsection 342(1) or (2) of that Act; and

for a union collective agreement—the agreement was approved before the WR Act repeal day; and

if the agreement is not lodged before the end of the cut‑off period, it does not come into operation; and

subsection 342(3) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 3, does not apply to the lodgment of the agreement.

The general effect of this provision is that unlodged collective agreements (other than union collective agreements) must be lodged within 14 days of being made in order to come into operation. Unlodged union collective agreements must have been approved before the WR Act repeal day and be lodged within 14 days of that approval in order to come into operation. However, late lodgment will not give rise to a civil remedy.

If the collective agreement is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the agreement cannot come into operation because it was lodged after the end of the cut‑off period, to the following:

the employer to which the agreement would have applied if it had come into operation;

if the agreement is a union collective agreement or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1) of the WR Act—the organisation or organisations that would have been covered by the agreement if it had come into operation.

Despite item 3, if the collective agreement is a workplace agreement that operates from approval, the rules in this item also apply.

The general effect of this item is that a collective agreement that operates from approval can only be varied for the purpose of passing the no‑disadvantage test if a variation for that purpose is lodged within a specified period.

If, as at the WR Act repeal day:

a notice under section 346M of the WR Act about whether the agreement passes the no‑disadvantage test has not been given; or

a notice under subsection 346M(2) of the WR Act stating that the agreement does not pass the no‑disadvantage test has been given but a variation of the agreement, for the purposes of passing that test, has not been made; or

a notice under subsection 346M(2) of the WR Act stating that the agreement does not pass the no‑disadvantage test has been given and a variation of the agreement, for the purposes of passing that test, has been made but has not been lodged;

Section 346N of the WR Act, as that section continues to apply because of item 3, has effect in relation to the agreement, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:

the period of 37 days beginning on whichever of the following days is later:

the WR Act repeal day;

the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the agreement; or

if the period is extended under subitem (4)—the period as extended.

The Workplace Authority Director may extend the period referred to in paragraph (3)(b) in relation to a particular agreement in circumstances prescribed by the regulations.

Section 346Q of the WR Act, as that section continues to apply because of item 3, has effect in relation to the agreement, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the agreement as varied passes the no‑disadvantage test unless the variation is lodged within the period referred to in paragraph (3)(a) or (b).

Division 5A of Part 8 (which deals with the no‑disadvantage test);

subsections 370(8), (9), (10) and (11) (which deal with non‑compliance with access and information requirements);

section 374 (which deals with lodgment of unapproved variations);

Subdivision C of Division 8 of Part 8 (which deals with lodgment);

Subdivision D of Division 8 of Part 8 (which deals with when a variation comes into operation);

subsection 401(1) and section 412A.

The general effect of this provision is to preserve the Part 8 rules about lodgment and the no‑disadvantage test for variations under Division 8 made before the WR repeal day, subject to the modifications set out in this Division.

Despite item 7, if the variation is an unlodged variation:

the Workplace Authority Director must not consider whether the varied agreement passes the no‑disadvantage test under section 346D of the WR Act, as that section continues to apply because of item 7, unless:

the variation is lodged before the end of the period (the cut‑off period) of 14 days referred to in subsection 375(1) of that Act; and

for a variation of a union collective agreement or a union greenfields agreement—the variation was approved before the WR Act repeal day; and

subsection 375(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 7, does not apply to the variation.

The general effect of this provision is that unlodged variations of collective agreements must be lodged within 14 days of being approved in order to come into operation. Unlodged variations of union collective agreements and union greenfields agreements must also have been approved before the WR Act repeal day. However, late lodgment will not give rise to a civil remedy.

If the variation is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the variation cannot come into operation because it was lodged after the end of the cut‑off period, to the following:

the employer to which the agreement applies;

if the agreement is a union collective agreement or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1) of the WR Act—the organisation or organisations covered by the agreement.

Despite item 7, if, as at the WR Act repeal day:

a notice under section 346M of the WR Act about whether the agreement as varied passes the no‑disadvantage test has not been given in relation to the variation; or

a notice under subsection 346M(2) of the WR Act stating that the agreement as varied does not pass the no‑disadvantage test has been given in relation to the variation, but a variation, for the purposes of passing that test, has not been made; or

a notice under subsection 346M(2) of the WR Act stating that the agreement as varied does not pass the no‑disadvantage test has been given in relation to the variation and a variation of the agreement, for the purposes of passing that test, has been made but has not been lodged;

Section 346N of the WR Act, as that section continues to apply because of item 7, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:

the period of 37 days beginning on whichever of the following days is later:

the WR Act repeal day;

the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the agreement as varied; or

if the period is extended under subitem (3)—the period as extended.

The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular variation in circumstances prescribed by the regulations.

Section 346Q of the WR Act, as that section continues to apply because of item 7, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the agreement as varied passes the no‑disadvantage test unless the variation for the purposes of passing that test is lodged within the period referred to in paragraph (2)(a) or (b).

This item applies to a termination of a collective agreement, if the termination has been approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act before that day.

The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:

subsection 381(2) (which deals with when a workplace agreement is terminated);

subsections 384(4), (5) and (6) (which deal with non‑compliance with information requirements);

section 387 (which deals with lodgment of unapproved terminations);

Subdivision C of Division 9 of Part 8 (which deals with lodgment);

section 398 (which deals with the effect of non‑compliance);

subsection 401(1) and section 412A.

The general effect of this provision is to preserve the Part 8 rules in relation to terminations of workplace agreements approved before the WR Act repeal day, subject to the modifications set out in item 11. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).

Despite item 10, if a termination to which that item applies is an unlodged termination:

the termination does not come into operation unless it is lodged before the end of the 14 day period (the cut‑off period) referred to in subsection 388(1) of the WR Act as that subsection continues to apply because of item 10; and

subsection 388(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 10, does not apply to the termination.

The general effect of this provision is that unlodged terminations must be lodged within 14 days of being made in order to come into operation. However, late lodgment will not give rise to a civil remedy.

If the termination is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because it was lodged after the end of the cut‑off period, to the following:

the employer to which the agreement applies;

if the agreement is a union collective agreement or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1) of the WR Act—the organisation or organisations covered by the agreement.

This item applies to a termination of a collective agreement if a declaration to terminate the agreement is lodged under subsection 392(2) of the WR Act (which deals with unilateral termination in the manner provided in the agreement) before the WR Act repeal day.

The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:

subsection 381(2) (which deals with when a workplace agreement is terminated);

section 396 (which deals with receipts for lodgment of declarations);

section 397 (which deals with giving notice after lodging notice of termination);

section 398 (which deals with the effect of non‑compliance);

section 412A.

The general effect of this provision is to preserve the Part 8 rules in relation to unilateral terminations of workplace agreements, if a declaration to terminate the agreement has been lodged before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).

This item applies to a collective agreement in relation to which an application has been made under subsection 397A(2) of the WR Act (which deals with termination by the Commission) before the WR Act repeal day.

The following provisions of Part 8 of the WR Act continue to apply in relation to the agreement on and after the WR Act repeal day:

subsection 381(2) (which deals with when a collective agreement is terminated);

subsections 397A(1) and (3) (which deal with when the Commission may terminate a collective agreement);

section 412A.

The general effect of this provision is to preserve the Part 8 rules in relation to applications for terminations of workplace agreements by the Commission made before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).

This item applies to an ITEA made before the WR Act repeal day.

The following provisions of Part 8 of the WR Act continue to apply in relation to the ITEA on and after the WR Act repeal day:

Divisions 1 to 5A of Part 8 (which deal with the making and lodgment of workplace agreements and the no‑disadvantage test);

subsection 347(1) (which deals with when a workplace agreement comes into operation);

section 347A (which deals with the operation of workplace agreements);

Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void);

subsection 401(1) and section 412A.

The general effect of this provision is to preserve the Part 8 rules about lodgment, the no‑disadvantage test and prohibited content in relation to ITEAs made before the WR Act repeal day, subject to the modification set out in item 15. The rules about making ITEAs after that day are contained in Division 7 of this Part. The rules about variation and termination of ITEAs after that day, and some other rules, are contained in Schedule 3 (which deals with transitional instruments).

The rules requiring an ITEA to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).

Despite item 14, if the ITEA is a workplace agreement that operates from approval, the rules in this item also apply.

The general effect of this item is that an ITEA that operates from approval can only be varied for the purpose of passing the no‑disadvantage test if a variation for that purpose is lodged within a specified period.

If, as at the WR Act repeal day:

a notice under section 346M of the WR Act about whether the ITEA passes the no‑disadvantage test has not been given; or

a notice under subsection 346M(2) of the WR Act stating that the ITEA does not pass the no‑disadvantage test has been given but a variation of the ITEA, for the purposes of passing that test, has not been made; or

a notice under subsection 346M(2) of the WR Act stating that the ITEA does not pass the no‑disadvantage test has been given and a variation of the ITEA, for the purposes of passing that test, has been made but has not been lodged;

Section 346N of the WR Act, as that section continues to apply because of item 14, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:

the period of 37 days beginning on whichever of the following days is later:

the WR Act repeal day;

the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the ITEA; or

if the period is extended under subitem (4)—the period as extended.

The Workplace Authority Director may extend the period referred to in paragraph (3)(a) in relation to a particular ITEA in circumstances prescribed by the regulations.

Section 346Q of the WR Act, as that section continues to apply because of item 14, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the no‑disadvantage test unless the variation is lodged within the period referred to in paragraph (3)(a) or (b).

This item applies to a variation of an ITEA under Division 8 of Part 8 of the WR Act, if the variation is made before the WR Act repeal day.

The following provisions of Part 8 of the WR Act continue to apply in relation to the variation on and after the WR Act repeal day:

Division 5A of Part 8 (which deals with the no‑disadvantage test);

subsections 370(8), (9), (10) and (11) (which deal with non‑compliance with access and information requirements);

section 374 (which deals with lodgment of unapproved variations);

Subdivision C of Division 8 of Part 8 (which deals with lodgment);

Subdivision D of Division 8 of Part 8 (which deal with when a variation comes into operation);

subsection 401(1) and section 412A.

The general effect of this provision is to preserve the Part 8 rules about lodgment and the no‑disadvantage test for variations made before the WR Act repeal day of ITEAs, subject to the modification specified in item 17.

Despite item 16, if, as at the WR Act repeal day:

a notice under section 346M of the WR Act about whether the ITEA as varied passes the no‑disadvantage test has not been given in relation to the variation; or

a notice under subsection 346M(2) of the WR Act stating that the ITEA as varied does not pass the no‑disadvantage test has been given in relation to the variation, but a variation, for the purposes of passing that test, has not been made; or

a notice under subsection 346M(2) of the WR Act stating that the ITEA as varied does not pass the no‑disadvantage test has been given in relation to the variation and a variation of the ITEA, for the purposes of passing that test, has been made but has not been lodged;

Section 346N of the WR Act, as that section continues to apply because of item 16, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N before the end of:

the period of 37 days beginning on whichever of the following days is later:

the WR Act repeal day;

the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the variation; or

if the period is extended under subitem (3)—the period as extended.

The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular variation in circumstances prescribed by the regulations.

Section 346Q of the WR Act, as that section continues to apply because of item 16, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the no‑disadvantage test unless the variation for the purposes of passing that test is lodged within the period referred to in paragraph (2)(a) or (b).

This item applies to a termination of an ITEA, if the termination is approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act by that time.

The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:

subsection 381(2) (which deals with when a workplace agreement is terminated);

subsections 384(4), (5) and (6) (which deal with non‑compliance with information requirements);

section 387 (which deals with lodgment of unapproved terminations);

Subdivision C of Division 9 of Part 8 (which deals with lodgment);

section 398 (which deals with the effect of non‑compliance);

subsection 401(1) and section 412A.

The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs approved before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).

This item applies to a termination of an ITEA if a declaration to terminate the ITEA is lodged under subsection 392(2) of the WR Act (which deals with unilateral termination in the manner provided in the ITEA) before the WR Act repeal day.

The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:

subsection 381(2) (which deals with when a workplace agreement is terminated);

section 396 (which deals with receipts for lodgment of declarations);

section 397 (which deals with giving notice after lodging notice of termination);

section 398 (which deals with effect of non‑compliance).

section 412A.

The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs, if a declaration to terminate is lodged before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).

This item applies to an ITEA, if notice to terminate the ITEA is given in accordance with subsection 393(4) of the WR Act (which deals with unilateral termination by giving written notice) before the WR Act repeal day.

The following provisions of Part 8 of the WR Act continue to apply on and after the WR Act repeal day in relation to the termination of the ITEA:

subsection 381(2) (which deals with when an ITEA is terminated);

sections 393, 394, 395, 396, 397, 397A, 398 and 399A (which deal with matters relating to lodgment of terminations, etc.);

section 412A.

The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs by written notice given before the WR Act repeal day, subject to the modifications set out in subitems (3) to (6). Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).

A declaration may only be lodged, in relation to the ITEA under subsection 393(2) of the WR Act, as that subsection continues to apply because of subitem (2), before the end of the period (the cut‑off period) of 120 days beginning on the WR Act repeal day.

Section 396 of the WR Act, as that section continues to apply because of subitem (2), does not apply in relation to the ITEA if the declaration is not lodged before the end of the cut‑off period.

Despite subsection 381(2) and section 398 of the WR Act, as those provisions continue to apply because of subitem (2), the termination of the ITEA does not take effect if the declaration is not lodged before the end of the cut‑off period.

If the termination is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because the declaration was lodged after the end of the cut‑off period, to the following:

the employer to which the agreement applies;

the employee to whom the agreement applies.

Despite the repeal of Part 8 of the WR Act, an ITEA may, during the bridging period, be made under Division 2 of that Part as if that Part had not been repealed.

The following provisions of Part 8 of the WR Act continue to apply in relation to the ITEA on and after the WR Act repeal day:

Divisions 1 to 5A of Part 8 (which deal with the making and lodgment of workplace agreements and the no‑disadvantage test), other than sections 346ZJ and 346ZK (which deal with dismissing an employee if an agreement does not pass that test);

subsections 347(1) and (3) (which deal with when a workplace agreement comes into operation);

section 347A (which deals with the operation of workplace agreements);

Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void);

subsections 400(3) and (5), subsection 401(1) and section 412A.

The general effect of this provision is to permit ITEAs to be made during the bridging period and to preserve the Part 8 rules about lodgment, the no‑disadvantage test and prohibited content, subject to the modifications set out in this Division. The rules about variation and termination of ITEAs on and after the WR Act repeal day, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments).

The rules requiring an ITEA to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).

The provisions referred to in subitem (2) do not apply to an ITEA lodged after the end of the bridging period.

If the ITEA is lodged after the end of the bridging period, the Workplace Authority Director must give a written notice, stating that the ITEA cannot come into operation because the ITEA was lodged after the end of the bridging period, to the following:

the employer to which the ITEA would have applied if it had come into operation;

the employee to whom the ITEA would have applied if it had come into operation.

This item applies to an ITEA made during the bridging period as referred to in subitem 21(1).

For the purposes of the application to the ITEA of section 346E of the WR Act, as that section continues to apply because of item 21, enterprise agreements and workplace determinations are taken to be specified in subsection 346E(3) (in addition to the other instruments so specified).

For the purposes of the application to the ITEA of section 346ZB of the WR Act, as that section continues to apply because of item 21, enterprise agreements and workplace determinations (within the meaning of the FW Act) are taken to be specified in subsection 346ZB(5) (in addition to the other instruments so specified).

Despite item 21, if the ITEA is a workplace agreement that operates from approval, the rules in this item also apply.

Section 346N of the WR Act, as that section continues to apply because of item 21, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:

the period of 30 days beginning on the seventh day after the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the ITEA; or

if the period is extended under subitem (3)—the period as extended

The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular ITEA in circumstances prescribed by the regulations.

Section 346Q of the WR Act, as that section continues to apply because of item 21, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the no‑disadvantage test unless the variation is lodged within the period referred to in paragraph (2)(a) or (b).

This item applies to an ITEA made during the bridging period as referred to in subitem 21(1).

For the purposes of the application to the ITEA of subsection 400(5) of the WR Act, as that subsection continues to apply because of item 21, the circumstance referred to in subsection 400(6) of that Act is taken to include a reference to the circumstance referred to in subitem 25(2).

Despite section 342 of the FW Act, a prospective employer does not contravene subsection 340(1) of that Act if, during the bridging period, the person refuses to employ a person merely because the person requires another person to make an ITEA as a condition of engagement, other than in the circumstance referred to in subitem (2).

The circumstance referred to in subitem (1) is that:

the first person mentioned in subitem (1) is a new employer; and

the new employer requires another person to make an ITEA; and

the other person would, if employed by the new employer, be a transferring employee; and

the requirement to make the ITEA is a condition of the other person becoming employed by the new employer.

This item applies if the Workplace Authority Director is required, because of the application of this Schedule to a workplace agreement, to decide, on or after the WR Act repeal day, whether the workplace agreement passes the no‑disadvantage test.

Division 7A of Part 11 of the WR Act continues to apply, in relation to the workplace agreement, as if that Division had not been repealed, with the following modifications:

references to a workplace agreement binding an employer or an employee are taken to include references to a workplace agreement that is a transitional instrument covering an employer or employee;

references to sections 583 and 585 of the WR Act (other than in section 601D) are taken to include references to section 313 of the FW Act;

enterprise agreements and workplace determinations (within the meaning of the FW Act) are taken to be specified in the definition of instrument in subsection 601D(5) (in addition to the other instruments so specified);

the reference in subparagraph 601G(1)(b)(i) to the instrument described in paragraph 601D(2)(a) is taken to include a reference to the instrument described in paragraph 27(2)(a) of this Schedule;

the reference in subparagraph 601G(1)(b)(ii) to section 598A or clause 27A of Schedule 9 is taken to include a reference to item 9 of Schedule 11;

the reference in paragraph 601H(1)(b) to the time of transmission is taken to include a reference to the time when the new employer first employs a transferring employee;

paragraph 601H(2)(d) does not apply if the workplace agreement applies to the new employer because of the operation of section 313 of the FW Act.

This item applies if:

on a particular day (the cessation day), a workplace agreement (the original agreement) ceases to operate under section 346W or 346ZA of the WR Act (as those provisions continue to apply because of the operation of this Schedule) because the original agreement does not pass the no‑disadvantage test; and

during the period beginning when the original agreement was lodged and ending on the cessation day, the original agreement started to cover a new employer and a transferring employee or transferring employees because of the operation of section 313 of the FW Act.

Despite subsection 346ZB(2) of the WR Act (as that provision continues to apply because of the operation of this Schedule), the new employer and the transferring employee or transferring employees who were covered by the original agreement immediately before the cessation day are taken, on and from the cessation day, to be covered by:

the instrument:

that, but for the original agreement having come into operation, would have covered the old employer and the transferring employee or transferring employees immediately before the termination of the employment of the transferring employee or transferring employees with the old employer; and

that was capable of covering the new employer after the time the transferring employee or transferring employees became employed by the new employer under Schedule 11; or

if there is no instrument of a kind referred to in paragraph (a) in relation to the old employer and one or more of the transferring employees—the designated award (within the meaning of Division 5A of Part 8 of the WR Act) in relation to that employee or those employees.

If, but for the original agreement having come into operation, a redundancy provision would, immediately before the termination of the employment of a transferring employee or transferring employees with the old employer, have applied to the old employer in relation to a transferring employee or transferring employees to who the original agreement applied because of a preservation item (within the meaning of item 9 of Schedule 11) relating to the agreement, the redundancy provision is taken:

to apply to the new employer under item 9 of Schedule 11, on and from the cessation day, in relation to the transferring employee or transferring employees; and

to continue to so apply to the employer, in relation to the transferring employee or transferring employees, until the earliest of the following:

the end of the period of 24 months beginning on the first day on which the old employer became covered, under the preservation item, by the redundancy provision;

the time when the transferring employee ceases to be employed by the new employer;

the time when an enterprise agreement, workplace determination or ITEA starts to apply to the transferring employee or transferring employees and the new employer.

If the original agreement is a workplace agreement as varied under Division 8 of Part 8 of the WR Act, the workplace agreement as in force before the variation was lodged is, despite section 346ZE of that Act (as that section continues to apply because of the operation of this Schedule), capable of being an instrument described in paragraph (2)(a).

In this item:

if the termination of the employment of the transferring employee or transferring employees with the old employer occurred before the WR Act repeal day—any of the following:

a workplace agreement;

an award;

a pre‑reform certified agreement;

a preserved State agreement;

a notional agreement preserving State awards; and

if the termination of the employment of the transferring employee or transferring employees with the old employer occurred on or after the WR Act repeal day—any of the following:

an instrument referred to in subparagraph (a)(i), (ii), (iii), (iv) or (v) that is a transitional instrument;

an enterprise agreement;

a workplace determination made under the FW Act.

a workplace agreement; or

a variation of such an agreement under Division 8 of that Part;

This item applies to a workplace determination made under the WR Act before the WR Act repeal day.

Despite the repeal of section 506 of the WR Act, Subdivision B of Division 7 of Part 8 of that Act (which deals with prohibited content), other than section 358 (which deals with prohibited content being void), continues to apply in relation to the workplace determination on and after the WR Act repeal day as if that section had not been repealed.

The general effect of this provision is to preserve the Part 8 rules about prohibited content for workplace determinations made before the WR Act repeal day. The rules about variation and termination of such workplace determinations, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments).

The rules about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).

This item applies to a termination of a workplace determination, if the termination has been approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act before that day.

Under subsection 506(3) of the WR Act, a workplace determination can only be terminated under Subdivision B of Division 9 of Part 8 of that Act after the determination has passed its nominal expiry date.

Despite the repeal of section 506 of the WR Act, the following provisions of that Act continue to apply in relation to the termination on and after the WR Act repeal day, as if that section had not been repealed:

subsection 381(2) (which deals with when a workplace determination is terminated);

subsections 384(4), (5) and (6) (which deal with non‑compliance with information requirements);

section 387 (which deals with lodgment of unapproved terminations);

Subdivision C of Division 9 of Part 8 (which deals with lodgment);

section 398 (which deals with the effect of non‑compliance);

subsection 401(1) and section 412A.

The general effect of this provision is to preserve the Part 8 rules in relation to terminations of workplace determinations approved before the WR Act repeal day, subject to the modification set out in item 32. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).

Despite item 31, if a termination to which that item applies is an unlodged termination:

the termination does not come into operation unless it is lodged before the end of the 14 day period (the cut‑off period) referred to in subsection 388(1) of the WR Act as that subsection continues to apply because of item 31; and

subsection 388(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 31, does not apply to the termination.

The general effect of this provision is that unlodged terminations must be lodged within 14 days of being made in order to come into operation. However, late lodgment will not give rise to a civil remedy.

If the termination is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because it was lodged after the end of the cut‑off period, to the following:

the employer to which the workplace determination applies;

the employees to which the workplace determination applies.

In this item:

This item applies to a workplace determination in relation to which an application has been made under subsection 397A(2) of the WR Act (which deals with termination by the Commission) before the WR Act repeal day.

Despite the repeal of section 506 of the WR Act, the following provisions of that Act continue to apply in relation to the workplace determination on and after the WR Act repeal day as if that section had not been repealed:

subsection 381(2) (which deals with when a workplace determination is terminated);

subsections 397A(1) and (3) (which deal with when the Commission may terminate a workplace determination).

The general effect of this provision is to preserve the Part 8 rules in relation to applications for terminations of workplace determinations by the Commission made before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).

starting on the FW (safety net provisions) commencement day; and

ending at the end of the next 30 June;

inviting persons or bodies to make written submissions to FWA for consideration in the review; and

undertaking or commissioning research for the purposes of the review.

In its first annual wage review, FWA does not have to set a full range of special national minimum wages covering all the classes of employees referred to in paragraph 294(1)(b) of the FW Act.

However, FWA must set a special national minimum wage for a class or subclass of those employees in its first annual wage review if the transitional national minimum wage order sets a special national minimum wage order for those employees.

The transitional national minimum wage order is taken to have been made on the FW (safety net provisions) commencement day: see item 12.

If FWA does not set a full range of special national minimum wages in its first annual wage review, the President of FWA must establish a process for the setting of the remaining special national minimum wages in FWA’s second annual wage review.

FWA may advise persons or bodies about that process in any way FWA considers appropriate.

Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (4).

Division 2 (other than as provided in subitem (2)) of Part 7 of the WR Act continues to apply on and after the WR Act repeal day in accordance with this Part. That Division as it continues to apply is the continued AFPCS wages provisions.

Part 7 of the WR Act contains the Australian Fair Pay and Conditions Standard. Schedule 4 provides for the continued application of the rest of the Standard during the bridging period. The effect of this Division is not limited just to the bridging period.

Schedule 3 provides for the continued application of the rules about the interaction between transitional instruments and the Australian Fair Pay and Conditions Standard.

The continued application of Division 2 of Part 7 of the WR Act has effect subject to the following paragraphs:

subsections 182(1) and (2), and Subdivisions H, I, L and M, cease to apply when there are no longer any employees covered by transitional APCSs (see also item 11);

subsections 182(3) and (4), section 185 and Subdivision G cease to apply at the end of the bridging period (see also item 12;

Subdivision D does not continue to apply at all;

Subdivisions E, F, K and N cease to apply after the AFPC has ceased to exist (see item 7 of Schedule 18).

Without limiting subitem (1) (but subject to subitem (2)), each of the following, as it was under Division 2 of Part 7 of the WR Act immediately before the WR Act repeal day, continues to exist, as a transitional minimum wage instrument, in accordance with this Part on and after that day:

an APCS, which continues as a transitional APCS;

the rate of the standard FMW, which continues as the transitional standard FMW;

a special FMW, which continues as a transitional special FMW;

the rate of the default casual loading, which continues as the transitional default casual loading.

APCS is short for Australian Pay and Classification Scale. FMW is short for Federal Minimum Wage.

Despite item 6 of Schedule 2, the following provisions of Part 21 of the WR Act do not apply in relation to the continued AFPCS wages provisions:

subparagraph 861(1)(d)(iii);

section 865.

Paragraph (a) has a flow‑through effect to the reference in subparagraph 885(1)(j) of the WR Act to section 861.

The provisions of the WR Act that continue to apply because of item 5 have effect as if a reference in the provisions to a workplace agreement included a reference to an enterprise agreement.

Subitem (1) has effect unless the context otherwise requires and subject to the regulations.

Transitional minimum wage instruments cover employees as provided in the following paragraphs:

a transitional APCS covers an employee if, under sections 204 and 205 of the continued AFPCS wages provisions, the APCS covers the employment of the employee;

the transitional standard FMW covers an employee if, under section 194 of the continued AFPCS wages provisions, the FMW for the employee is the standard FMW;

a transitional special FMW covers an employee if, under section 194 of the continued AFPCS wages provisions, the FMW for the employee is that special FMW;

the transitional default casual loading covers an employee who is described in subsection 185(1) of the continued AFPCS wages provisions.

However, a transitional APCS does not cover an employee (or an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act).

Item 35 of Schedule 3 deals with the application of section 329 of the FW Act to transitional APCSs.

Divisions 2 and 3 of this Part deal with when transitional minimum wage instruments cease to cover employees.

Despite anything in the continued AFPCS wages provisions, a transitional minimum wage instrument cannot be varied or terminated (or otherwise brought to an end) except as referred to in one of the following subitems.

The AFPC can exercise its wage‑setting powers to vary a transitional minimum wage instrument as necessary depending on the outcome of the AFPC’s final wage review under the WR Act. Those exercises of wage‑setting powers take effect at the time determined by the AFPC (which may be a time after the AFPC has ceased to exist).

Schedule 18 provides for when the AFPC ceases to exist.

A transitional APCS can be varied in an annual wage review under the FW Act as provided for in item 10.

A transitional APCS can be varied or terminated under:

item 3 of Schedule 5 (which deals with variation and termination of transitional APCSs to take account of the Part 10A award modernisation process); or

item 9 of Schedule 6 (which deals with variation and termination of transitional APCSs to take account of the enterprise instrument modernisation process).

If a transitional minimum wage instrument terminates, or ceases to cover a person, that does not affect:

any right or liability that a person acquired, accrued or incurred before the transitional minimum wage instrument terminated or ceased to cover the person; or

any investigation, legal proceeding or remedy in respect of any such right or liability.

Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the transitional minimum wage instrument had not terminated or ceased to cover the person.

In an annual wage review, the FWC may make a determination varying a transitional APCS.

For that purpose, Division 3 of Part 2‑6 of the FW Act (other than section 292) applies to a transitional APCS in the same way as it applies to a modern award.

On the FW (safety net provisions) commencement day, the transitional standard FMW, any transitional special FMWs and the transitional default casual loading cease to cover any employees. Subsections 182(3) and (4), and section 185, of the continued AFPCS wages provisions also cease to cover any employees.

On the FW (safety net provisions) commencement day, FWA is taken to have made a national minimum wage order (the transitional national minimum wage order) under Part 2‑6 of the FW Act:

that:

sets the national minimum wage at the rate that was the transitional standard FMW immediately before that day; and

requires employers to pay employees to whom the national minimum wage applies (see subsection 294(3) of the FW Act) a base rate of pay that at least equals the national minimum wage; and

if, immediately before that day, there was a transitional special FMW for a class of employees—that:

sets a special national minimum wage for that class of employees that is the same as the transitional special FMW immediately before that day; and

requires employers to pay employees to whom that special national minimum wage applies (see subsection 294(4) of the FW Act) a base rate of pay that at least equals that special national minimum wage; and

that:

sets the casual loading for award/agreement free employees at the rate that was the transitional default casual loading immediately before that day; and

requires employers to pay, to award/agreement free employees who are casual employees, a casual loading that at least equals the casual loading for award/agreement free employees (as applied to the employees’ base rates of pay).

The requirement in paragraph 294(1)(b) of the FW Act that a national minimum wage order must set special national minimum wages for all award/agreement free employees in the classes referred to in that paragraph does not apply to the transitional national minimum wage order.

The hours for which a rate set in the transitional national minimum wage order is payable are the same as the hours for which the transitional standard FMW, transitional special FMW or transitional default casual loading (as the case requires) would have been payable under the continued AFPCS wages provisions.

If, on or after the FW (safety net provisions) commencement day:

an agreement‑based transitional instrument applies to an employee; and

a modern award that is in operation covers the employee;

If the instrument rate is less than the award rate, the transitional instrument has effect in relation to the employee as if the instrument rate were equal to the award rate.

If, on or after the FW (safety net provisions) commencement day:

an agreement‑based transitional instrument applies to an employee; and

the employee is not covered by a modern award that is in operation; and

a national minimum wage order would, if the employee were an award/agreement free employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;

If the instrument rate is less than the employee’s order rate, the transitional instrument has effect in relation to the employee as if the instrument rate were equal to the employee’s order rate.

The AFPCS interaction rules may affect the base rate of pay payable to an employee (see item 22 of Schedule 3).

On application by an employer to whom a transitional instrument applies, the FWC may make a determination the effect of which is to phase‑in the effect of increases in base rates of pay that would otherwise take effect on a particular day because of:

item 13; or

subitem 22(2) of Schedule 3.

Under subitem 22(2) of Schedule 3, AFPCS interaction rules that provide for instruments to prevail over the Australian Fair Pay and Conditions Standard stop applying when the bridging period ends. That may result in an employee becoming entitled to a higher rate of pay under a transitional APCS.

The FWC must not make a determination under this item in relation to an employer unless it is satisfied that the determination is necessary to ensure the ongoing viability of the employer’s enterprise.

Item 13, and subitem 22(2) of Schedule 3, have effect in relation to an employer subject to any determinations the FWC makes under this item.

If:

a transitional minimum wage instrument covers an employee; and

an enterprise agreement applies to the employee;

If the agreement rate is less than the instrument rate, the enterprise agreement has effect in relation to the employee as if the agreement rate were equal to the instrument rate.

If a transitional instrument applies to an employee who is covered by a transitional minimum wage instrument, then (subject to the continued application of the AFPCS interaction rules) the employee must be paid at least the rate required by the continued AFPCS wages provisions.

If, on or after the Division 2B referral commencement:

a Division 2B State award applies to a Division 2B State reference employee; and

a national minimum wage order would, if the employee were an award/agreement free employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;

If the award rate is less than the employee’s order rate, the Division 2B State award has effect in relation to the employee as if the award rate were equal to the employee’s order rate.

If, on or after the Division 2B referral commencement:

a Division 2B State employment agreement applies to a Division 2B State reference employee; and

a Division 2B State award or a modern award that is in operation covers the employee;

If the agreement rate is less than the award rate, the Division 2B State employment agreement has effect in relation to the employee as if the agreement rate were equal to the award rate.

If, on or after the Division 2B referral commencement:

a Division 2B State employment agreement applies to a Division 2B State reference employee; and

the employee is not covered by a Division 2B State award or a modern award that is in operation; and

a national minimum wage order would, if the employee were an award/agreement free employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;

If the agreement rate is less than the employee’s order rate, the Division 2B State employment agreement has effect in relation to the employee as if the agreement rate were equal to the employee’s order rate.

On application by an employer to whom a Division 2B State instrument applies, the FWC may make a determination the effect of which is to phase‑in the effect of increases in base rates of pay that would otherwise take effect on a particular day because of item 16 or 17.

The FWC must not make a determination under this item in relation to an employer unless it is satisfied that the determination is necessary to ensure the ongoing viability of the employer’s enterprise.

Items 16 and 17 have effect in relation to an employer subject to any determinations the FWC makes under this item.

This item applies in relation to an employee and a period if:

the employee is a Division 2B State reference employee; and

the transitional national minimum wage order, or another national minimum wage order, is in operation throughout the period; and

the employee is an award/agreement free employee throughout the period, and no Division 2B State instrument applies to the employee at any time in the period; and

the amount that is payable to the employee in relation to the period under the national minimum wage order is less than the amount (the State minimum amount) that would be payable to the employee in relation to the period under the State minimum wages instruments (see subitem (4)).

The national minimum wage order has effect, in relation to the employee and the period, as if it instead required the employer to pay the employee the State minimum amount.

In working out the State minimum amount, any increases of rates (whether because of indexation or otherwise) that would have taken effect after the Division 2B State referral commencement under State minimum wages instruments are to be disregarded.

The State minimum wages instruments, in relation to the employee, are orders, decisions or rulings (however described), as in force immediately before the Division 2B referral commencement:

that were made by a State industrial body under a State industrial law of the Division 2B referring State; and

that provide for employees to be paid a minimum wage or a minimum rate of remuneration, or that affect the entitlement of such employees to be paid a minimum wage or a minimum rate of remuneration.

This item has effect subject to the regulations, which may:

provide for how amounts referred to in paragraph (1)(d) are to be worked out (for example, in relation to casual employees); or

provide for how a national minimum wage order has effect because of subitem (2); or

provide that certain orders, decisions or rulings (however described) made by a State industrial body are, or are not, State minimum wages instruments as defined in subitem (4).

In an annual wage review, the FWC may make a determination varying terms of a Division 2B State award relating to wages.

For that purpose, Division 3 of Part 2‑6 of the FW Act (other than section 292) applies to terms of a Division 2B State award relating to wages in the same way as it applies to a modern award.

This item applies in relation to a decision whether to make an equal remuneration order under Part 2‑7 of the FW Act during the period:

starting on the WR Act repeal day; and

ending on the day FWA completes its first annual wage review.

In deciding whether to make the equal remuneration order, FWA must take into account the outcome of the AFPC’s final wage review under the WR Act.

A term of an instrument or order referred to in subitem (2) has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an equal remuneration order that:

is made under Part 2‑7 of the FW Act; and

applies to the employee.

For the purposes of subitem (1), the instruments and orders are as follows:

a transitional instrument;

an order of the Commission made under the WR Act;

a transitional APCS;

a Division 2B State instrument.

A term of a modern award, an enterprise agreement or an FWA order also has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an equal remuneration order that is made under Part 2‑7 of the FW Act and applies to the employee (see section 306 of the FW Act).

An order (a WR Act equal remuneration order) that was:

made under Division 3 of Part 12 of the WR Act (as in force from time to time); and

in force immediately before the WR Act repeal day;

A WR Act equal remuneration order may be varied or revoked by the FWC under subsections 603(1) and (2) of the FW Act as if it were an order made under Part 2‑7 of the FW Act.

A term of an instrument or order referred to in subitem (2) has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an order that:

was made under Division 3 of Part 12 of the WR Act (as in force from time to time); and

was in force immediately before the WR Act repeal day; and

applies to the employee.

For the purposes of subitem (1), the instruments and orders are as follows:

a modern award;

an enterprise agreement;

an FWC order;

a transitional instrument that is an award or a State reference transitional award or common rule;

a transitional instrument that is a workplace agreement;

an order of the Commission made under the WR Act.

This Part applies if:

at a time (the time of transmission), a person (the new employer) became the successor, transmittee or assignee of the whole, or a part, of a business of another person (the old employer); and

the time of transmission was before the WR Act repeal day.

The following provisions of Part 11 of the WR Act (as modified by items 5 and 6 of this Schedule) continue to apply in relation to the transmission of business on and after the WR Act repeal day:

Divisions 1 and 2 (which deal with introductory matters);

Division 3 (which deals with the transmission of ITEAs) (other than subsection 583(2) and section 584);

Division 4 (which deals with the transmission of collective agreements) (other than subsections 585(2), (3) and (5) and subsections 588(1) and (2));

Division 5 (which deals with the transmission of awards) (other than subsections 595(2), (3), (5) and (6));

Division 6 (which deals with the transmission of APCSs) (other than subsection 598(2));

Division 6A (which deals with the transmission of preserved redundancy provisions) (other than subsection 598A(3));

Division 7 (which deals with entitlements under the Australian Fair Pay and Conditions Standard);

Division 8 (which deals with notice requirements and enforcement) (other than section 605).

For the purpose of the continued application, by subitem (2), of Division 5 of Part 11 of the WR Act:

a reference in those provisions to an award is taken to include a reference to a State reference transitional award; and

despite item 6 of Schedule 2, paragraph 885(1)(e) of that Act does not continue to apply.

Paragraph 885(1)(e) would otherwise have disapplied Division 5 of Part 11 of the WR Act.

The following provisions of Schedule 9 to the WR Act (as modified by items 5 and 6 of this Schedule) continue to apply in relation to the transmission of business on and after the WR Act repeal day:

Parts 1 and 2 (which deal with introductory matters);

Part 2A (which deals with the transmission of AWAs) (other than subclauses 6B(2) and (3) and clause 6C);

Part 3 (which deals with the transmission of pre‑reform AWAs) (other than subclause 7(2) and clause 9);

Part 4 (which deals with the transmission of pre‑reform certified agreements) (other than subclauses 10(4), (5), (6) and (8) and clause 12);

Part 5 (which deals with the transmission of State transitional instruments) (other than subclauses 19(2), (3) and (5) and clause 21);

Part 5A (which deals with the transmission of preserved redundancy provisions) (other than subclause 27A(3));

Part 6 (which deals with notice requirements and enforcement) (other than clause 31).

If the new employer is covered by a transitional instrument in relation to a transferring employee because of a provision of Part 11 of the WR Act or Schedule 9 to that Act, the new employer remains covered by the transitional instrument, by force of this subitem, until whichever of the following first occurs:

the instrument is terminated;

the transmission period ends;

the instrument otherwise ceases to cover the new employer in relation to the transferring employee.

However, paragraph (1)(b) does not apply in relation to a pre‑reform certified agreement if:

the pre‑reform certified agreement is a Division 3 pre‑reform certified agreement; and

the old employer was not an employer within the meaning of subsection 6(1) of the WR Act immediately before the time of transmission; and

the new employer was an employer within the meaning of subsection 6(1) of the WR Act at the time of transmission; and

the transmission of business occurs as part of the process of the employer in relation to the business being transferred becoming an employer within the meaning of subsection 6(1) of the WR Act.

If a transferring employee’s employment with the new employer is covered by a transitional APCS because of Division 6 of Part 11 of the WR Act, the transferring employee’s employment with the new employer remains covered by that APCS until whichever of the following first occurs:

the transitional APCS is terminated;

the transitional APCS otherwise ceases to cover the transferring employee.

If a redundancy provision applies to the new employer and a transferring employee because of Division 6A of Part 11 of the WR Act or Part 5A of Schedule 9 to that Act, the redundancy provision continues to apply to the new employer and the transferring employee until the earliest of the following:

the end of the period of 24 months from the time that the agreement that contained the redundancy provision ceased operating;

the time when the transferring employee ceases to be employed by the new employer;

the time when an enterprise agreement, workplace determination or ITEA starts to apply to the employee.

a redundancy provision applies to the new employer and a transferring employee because of Division 6A of Part 11 of the WR Act or Part 5A of Schedule 9 to that Act; and

an industry‑specific redundancy scheme in a modern award applies to the transferring employee; and

the redundancy provision is detrimental to the transferring employee, in any respect, when compared to the scheme in the modern award;

Subsection 585(1) of the WR Act (as it continues to apply because of subitem 2(2) of this Schedule) and subitem 3(1) of this Schedule (to the extent that it applies in relation to a transitional instrument that is a collective agreement) have effect subject to any order of the Commission under section 590 of the WR Act (as that section continues to apply because of subitem 2(2) of this Schedule).

Subsection 595(1) of the WR Act (as it continues to apply because of subitem 2(2) of this Schedule) and subitem 3(1) of this Schedule (to the extent that it applies in relation to a transitional instrument that is an award or a State reference transitional award) have effect subject to any order of the Commission (other than an order that would have the effect of extending the transmission period).

Subclauses 10(1), (2) and (3) of Schedule 9 to the WR Act (as they continue to apply because of subitem 2(3) of this Schedule) and subitems 3(1) and (2) of this Schedule (to the extent that they apply in relation to a transitional instrument that is a pre‑reform certified agreement) have effect subject to any order of the Commission under clause 14 of Schedule 9 to the WR Act (as that clause continues to apply because of subitem 2(3) of this Schedule).

Subclause 19(1) of Schedule 9 to the WR Act (as it continues to apply because of subitem 2(3) of this Schedule) and subitem 3(1) of this Schedule (to the extent that it applies in relation to a transitional instrument that is a State transitional instrument) have effect subject to any order of the Commission under clause 23 of Schedule 9 to the WR Act (as that clause continues to apply because of subitem 2(3) of this Schedule).

The following provisions of the WR Act (as they continue to apply because of item 2 of this Schedule) are modified by omitting “before, at or after the transfer time” and substituting “not later than 90 days after the WR Act repeal day”:

section 591 (which deals with collective agreements);

clause 15 of Schedule 9 (which deals with pre‑reform certified agreements);

clause 24 of Schedule 9 (which deals with State transitional instruments).

An application for an order under subitem (2) may be made not later than 90 days after the WR Act repeal day.

The notes to the following provisions of the WR Act (as they continue to apply because of subitem 2(2) of this Schedule) are modified by omitting “section 605” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”:

subsection 599(4);

subsections 602(2) and (4);

subsection 603A(2).

Note 1 to the following provisions of the WR Act (as they continue to apply because of subitem 2(2) of this Schedule) is modified by omitting “section 605” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”:

subsections 603(1), (2) and (3);

subsection 603B(1).

The notes to the following provisions of the WR Act (as they continue to apply because of subitem 2(3) of this Schedule) are modified by omitting “clause 31” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”:

subclauses 28(2) and (3A) of Schedule 9;

subclause 29A(2) of Schedule 9.

Note 1 to the following provisions of the WR Act (as they continue to apply because of subitem 2(3) of this Schedule) is modified by omitting “clause 31” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”:

subclauses 29(1), (2) and (3) of Schedule 9;

subclause 29B(1) of Schedule 9.

Transfers of business affecting Division 2B State instruments are dealt with in Division 4 of this Part.

This item applies if:

there is a transfer of business from an employer (the old employer) to another employer (the new employer), as described in subsection 311(1) of the FW Act; and

the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs on or after the WR Act repeal day.

This item applies regardless of whether:

the termination of a transferring employee’s employment with the old employer occurs before, on or after the WR Act repeal day; or

the employment of a transferring employee by the new employer occurs before, on or after the WR Act repeal day.

Part 2‑8 of the FW Act (as modified by item 8 of this Schedule) applies in relation to the transfer of business.

Subsection 312(1) of the FW Act applies in relation to the transfer of business as if the following paragraph were added at the end:

Except as provided in subitems (3) to (5), Part 2‑8 of the FW Act applies in relation to the transfer of business as if:

a reference to an enterprise agreement included a reference to an agreement‑based transitional instrument; and

a reference to a modern award included a reference to an award‑based transitional instrument, other than a State reference common rule.

Paragraph (2)(a) does not apply in relation to the reference to an enterprise agreement in paragraph 312(1)(a) of the FW Act.

Paragraph (2)(b) does not apply in relation to the reference to a modern award in subsection 312(2) of the FW Act.

The following provisions of Part 2‑8 of the FW Act apply in relation to the transfer of business as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument:

subsection 315(3);

paragraphs 318(1)(b) and (2)(c);

paragraphs 319(1)(c) and (2)(c).

Paragraph 319(1)(b) of the FW Act applies in relation to the transfer of business as if the words “(other than an individual agreement‑based transitional instrument)” were inserted after the words “a transferable instrument”.

This item applies if:

there is a transfer of business from an employer (the old employer) to another employer (the new employer) as described in subsection 311(1) of the FW Act; and

the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs during the bridging period; and

immediately before the termination of an employee’s employment with the old employer, a redundancy provision applied to the old employer and the employee because of a preservation item or a previous application of this item; and

the employee is a transferring employee in relation to the transfer of business.

This item applies regardless of whether:

the termination of the transferring employee’s employment with the old employer occurs before, on or after the WR Act repeal day; or

the employment of the transferring employee by the new employer occurs before, on or after the WR Act repeal day.

The redundancy provision applies to the new employer and the transferring employee after the time the transferring employee becomes employed by the new employer.

Subject to subitem (5), the redundancy provision prevails over any other redundancy provision included in any other instrument that would otherwise have effect, to the extent of any inconsistency (even if the provisions in that other instrument might be more beneficial to the transferring employee).

However, if:

an industry‑specific redundancy scheme in a modern award applies to the transferring employee; and

the redundancy provision is detrimental to the transferring employee, in any respect, when compared to the scheme in the modern award;

The redundancy provision continues to apply to the new employer and the transferring employee until the earliest of the following:

the end of the period of 24 months from the time that the agreement that contained the redundancy provision ceased operating;

the time when the transferring employee ceases to be employed by the new employer;

the time when an enterprise agreement, workplace determination or ITEA starts to apply to the transferring employee.

In this item:

item 38 of Schedule 3;

item 40 of Schedule 3;

a provision of Division 6A of Part 11 of the WR Act or Part 5A of Schedule 9 to that Act (as those provisions continue to apply because of item 2 of this Schedule).

This item applies if one or more redundancy provisions apply to the new employer and a transferring employee under item 9 of this Schedule.

Within 28 days after the time the transferring employee becomes employed by the new employer, the new employer must take reasonable steps to give the transferring employee a written notice that complies with subitem (3).

This is a civil remedy provision: see subitem 11(3) of Schedule 16.

The notice must:

identify the redundancy provision or the redundancy provisions; and

state that the provision or provisions apply to the new employer and the transferring employee; and

specify the date on which the period of 24 months, being the period that applies in relation to the provision or provisions under paragraph 9(6)(a) of this Schedule, ends; and

state that the provision or provisions will continue to apply to the new employer and the transferring employee until that date, or an earlier date in accordance with subitem 9(6) of this Schedule.

Subitem (2) does not apply if an enterprise agreement, workplace determination or ITEA starts to apply to the transferring employee within 14 days after the time the transferring employee becomes employed by the new employer.

If the new employer gives a notice under subitem 10(2) of this Schedule to a transferring employee, the new employer must lodge a copy of the notice with FWA within the period specified in subitem (2). The copy must be lodged in accordance with subitem (3).

This is a civil remedy provision: see subitem 11(4) of Schedule 16.

The notice must be lodged within 14 days after the day specified in paragraph (a) or (b) (as the case requires):

if the new employer gives a notice to a transferring employee in respect of a redundancy provision that was included in an ITEA, a pre‑reform AWA or a preserved individual State agreement—the day on which that notice is given; or

if the new employer gives one or more notices to one or more transferring employees in respect of a redundancy provision that was included in a collective agreement, a pre‑reform certified agreement or a preserved collective State agreement—the earliest day on which a notice was given.

A notice is lodged with FWA in accordance with this item only if it is actually received by FWA.

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.

If a notice is lodged under item 11 of this Schedule, FWA must issue a receipt for the lodgment.

The receipt must state that the notice was lodged under item 11 of this Schedule on a particular day.

FWA must give a copy of the receipt to the person who lodged the notice under item 11 of this Schedule.

This item applies if:

there is a transfer of business from an employer (the old employer) to another employer (the new employer) as described in subsection 311(1) of the FW Act; and

the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs during the bridging period.

This item applies regardless of whether:

the termination of a transferring employee’s employment with the old employer occurs before, on or after the WR Act repeal day; or

the employment of a transferring employee by the new employer occurs before, on or after the WR Act repeal day.

Despite the repeal of Division 7 of Part 11 of the WR Act (which deals with an employee’s entitlements under the Australian Fair Pay and Conditions Standard), that Division applies in relation to the transfer of business as if:

a reference in the following provisions to at the time of transmission were a reference to at the time the transferring employee becomes employed by the new employer:

subsection 599(1);

subsection 600(2);

subsection 601(2); and

a reference in the following provisions to before the time of transmission were a reference to before the termination of the transferring employee’s employment with the old employer:

subparagraph 599(1)(a)(ii);

paragraphs 599(3)(a) and (b) and (4)(b);

subparagraphs 600(2)(a)(i) and (iii);

subparagraphs 601(2)(a)(i) and (iii); and

a reference in subparagraph 599(4)(a)(ii) to at the time of transmission were a reference to at the time of termination of the transferring employee’s employment with the old employer; and

a reference in subsection 599(4) to after the time of transmission were a reference to after the time of termination of the transferring employee’s employment with the old employer; and

a reference in subsections 600(1) and 601(1) to before the time of transmission were a reference to before the time the transferring employee becomes employed by the new employer; and

the reference to section 605 in the note to subsection 599(4) were a reference to subitem 11(5) of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

Transfers of business affecting transitional instruments are dealt with in Division 1 of this Part.

This item applies if:

there is a transfer of business from an employer (the old employer) to another employer (the new employer), as described in subsection 311(1) of the FW Act; and

the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs on or after the Division 2B referral commencement.

Part 2‑8 of the FW Act (as modified by item 16 of this Schedule) applies in relation to the transfer of business.

Subsection 312(1) of the FW Act applies in relation to the transfer of business as if the following paragraph were added at the end:

Except as provided in subitems (3) to (5), Part 2‑8 of the FW Act applies in relation to the transfer of business as if:

a reference to an enterprise agreement included a reference to a Division 2B State employment agreement; and

a reference to a modern award included a reference to a Division 2B State award.

Paragraph (2)(a) does not apply in relation to the reference to an enterprise agreement in paragraph 312(1)(a) or 319(1)(c) of the FW Act.

Paragraph (2)(b) does not apply in relation to the reference to a modern award in subsection 312(2) or paragraph 319(1)(c) of the FW Act.

The following provisions of Part 2‑8 of the FW Act apply in relation to the transfer of business as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement:

subsection 315(3);

paragraphs 318(1)(b) and (2)(c);

paragraph 319(2)(c).

Paragraph 319(1)(b) of the FW Act applies in relation to the transfer of business as if the words “(other than an individual Division 2B State employment agreement)” were inserted after the words “a transferable instrument”.

If a transferable instrument that is a Division 2B State award starts to cover the new employer in relation to the transfer of business as mentioned in paragraph 313(1)(a) of the FW Act, the FWC cannot make an order under paragraph 319(1)(c) of the FW Act.

References in Part 3‑1 of the FW Act to the National Employment Standards are found in paragraph 344(a) and subparagraph 354(1)(a)(i) of that Act.

Part 3‑1 of the FW Act has effect as if:

a reference in that Part to an enterprise agreement included a reference to an agreement‑based transitional instrument; and

a reference in that Part to a modern award included a reference to an award‑based transitional instrument.

References in Part 3‑1 of the FW Act:

to an enterprise agreement are found in paragraphs 341(2)(e) and (g), paragraph 344(b), subsection 353(3) and subparagraphs 354(1)(a)(iii) and (b)(ii) of that Act; and

to a modern award are found in paragraphs 341(2)(g) and 344(b) of Part 3‑1 of that Act.

Without limiting subitem (1), paragraph 344(b) of the FW Act has effect in relation to the bridging period as if a term referred to in that paragraph were a term of an agreement‑based transitional instrument or an award‑based transitional instrument that dealt with:

averaging of hours of work; or

cashing out paid annual leave; or

taking paid annual leave; or

cashing out paid personal/carer’s leave; or

the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave; or

the substitution of a day or part‑day for a day or part‑day that would otherwise be a public holiday; or

the period of notice an employee must give in order to terminate his or her employment; or

paid loadings for school‑based apprentices and trainees in lieu of paid annual leave, paid annual leave or paid absence on public holidays.

This means, for example, that an employer is prohibited from exerting undue influence or undue pressure on an employee to have the employee agree to a cashing out of annual leave arrangement under a term of a pre‑reform certified agreement.

a reference in that Part to an enterprise agreement included a reference to a Division 2B State employment agreement; and

a reference in that Part to a modern award included a reference to a Division 2B State award.

References in Part 3‑1 of the FW Act:

to an enterprise agreement are found in paragraphs 341(2)(e) and (g), paragraph 344(b), subsection 353(3) and subparagraphs 354(1)(a)(iii) and (b)(ii) of that Act; and

to a modern award are found in paragraphs 341(2)(g) and 344(b) of that Act.

For the purposes of the application of Part 3‑2 of the FW Act in relation to the dismissal of a person before 1 January 2011, a national system employer is a small business employer if, and only if, the employer’s number of full‑time equivalent employees, worked out under this item, is less than 15 at the earlier of the following times (the notice or dismissal time):

the time when the person is given notice of the dismissal;

immediately before the dismissal.

The employer’s number of full‑time equivalent employees at the notice or dismissal time is worked out as follows:

Subitem (3) sets out what are a person’s ordinary hours.

The number 152 is based on the maximum number of hours that a full‑time employee would work in 4 weeks (being 38 hours per week) excluding reasonable additional hours.

For the purposes of step 1 of the method statement in subitem (2), the ordinary hours of work of a person as the employer’s employee are:

to the extent that a modern award, enterprise agreement or workplace determination applied to the person, and the person was not a casual employee—the ordinary hours of work specified or provided for in that award, agreement or determination; or

to the extent that a transitional instrument applied to the person, and the person was not a casual employee—the person’s ordinary hours of work under item 33 of Schedule 3; or

to the extent that a Division 2B State instrument applied to the person, and the person was not a casual employee—the person’s ordinary hours of work under item 48 of Schedule 3A; or

to the extent that:

a State industrial instrument applied to the person as a non‑national system employee; and

the instrument specified, or provided for the determination of, the person’s ordinary hours of work; and

the person was not a casual employee;

to the extent that no such award, agreement, determination or instrument applied to the person, and the person was not a casual employee:

if the person was a national system employee—the person’s ordinary hours of work under section 20 of the FW Act; or

if the person was a non‑national system employee—what would have been the person’s ordinary hours of work under that section if the person had been a national system employee; or

to the extent that the person was a casual employee—the lesser of:

152 hours; and

the number of hours actually worked by the person.

This subitem applies to leave, whether paid or unpaid, that the person took if:

the person was entitled to the leave in connection with:

the birth of a child of the person or the person’s spouse or de facto partner; or

the placement of a child with the person for adoption; and

the duration of the period of leave has been at least 4 weeks;

For the purposes of this item, a national system employer and the employer’s associated entities are taken to be one entity.

This item has effect despite section 23 of the FW Act.

This item applies to an employee at a particular time if, at that time, an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement covers the employee.

The employee is only taken, for the purposes of the FW Act, to be at that time an employee who is or will be covered by an enterprise agreement or a proposed enterprise agreement, if one of the following applies:

the nominal expiry date of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement has passed;

a conditional termination of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement has been made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A.

The main effect of this subitem is that an employee who is covered by an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement will not be able to do any of the following until the nominal expiry date of the instrument passes or a conditional termination of the instrument is made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A:

be represented in bargaining for an enterprise agreement;

vote on the agreement;

be in a group of employees covered by a protected action ballot order in relation to the agreement;

have the agreement apply to the employee.

Despite subitem (2), an employer must give a notice of employee representational rights to an employee under section 173 of the FW Act, if the employer would have been required to give such a notice but for subitem (2). However, the notice must explain that a person can only become the employee’s bargaining representative for the agreement when one of the following occurs:

the nominal expiry date of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement passes;

a conditional termination of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement is made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A.

any of the following transitional instruments:

a collective agreement;

a workplace determination;

a preserved collective State agreement;

a pre‑reform certified agreement;

a section 170MX award;

a collective Division 2B State employment agreement;

not more than 90 days before the nominal expiry date of the instrument, or the latest nominal expiry date of those instruments (as the case may be); or

after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) of that Act that employees approve the agreement, but before the agreement is so approved.

The following provisions of the FW Act:

section 417 (which prohibits industrial action before the nominal expiry date of enterprise agreements etc.);

item 14 of the table in subsection 539(2) of the FW Act (which deals with civil remedies);

Subitem (1) does not apply to an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement if the employee and employer covered by the instrument or agreement have made a conditional termination in relation to the instrument or agreement under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A.

The effect of this provision is that an employee who is covered by an agreement‑based transitional instrument or a Division 2B State employment agreement may not organise or engage in industrial action until after the nominal expiry date of the instrument or agreement has passed. However, this does not apply to an individual agreement‑based transitional instrument, or an individual Division 2B State employment agreement, in relation to which a conditional termination has been made.

For the purposes of subitem (1), the reference in subsection 417(1) of the FW Act to the day on which an enterprise agreement was approved by the FWC is taken to be a reference to the day on which the agreement‑based transitional instrument or the Division 2B State employment agreement became such an instrument or agreement.

Despite the repeal of sections 496 and 497 of the WR Act, if:

before the WR Act repeal day, an application was made to the Commission or the Court under either of those sections; and

the application had not been finally dealt with as at the WR Act repeal day;

To avoid doubt, if the Commission or the Court does not make an order, or grant an injunction, under section 496 or 497 of the WR Act, as those sections continue to apply because of subitem (1), the decision not to make the order or grant the injunction does not affect whether or not the industrial action concerned is protected industrial action under the FW Act.

an order made, or an injunction granted, under either of those provisions that was in operation immediately before the WR Act repeal day continues to have effect on and after that day; and

a person who, immediately before the WR Act repeal day, was required to comply with the order or injunction must not breach the order or injunction on or after the WR repeal day.

For the continuation of orders or injunctions to prevent or stop industrial action that were made by State industrial bodies or courts of Division 2B referring States, see item 61 of Schedule 3A.

references in those provisions to an order under section 418 included references to an order under subsection 496(1) of the WR Act as referred to in item 5 or 6 of this Schedule; and

references in those provisions to an order under section 419 included references to an order under subsection 496(2) of the WR Act as referred to in item 5 or 6 of this Schedule; and

references in those provisions to an order under section 420 included references to an order under subsection 496(6) of the WR Act as referred to in item 5 or 6 of this Schedule.

This item applies if one of the following is in force in relation to a proposed collective agreement under the WR Act immediately before the WR Act repeal day:

an order terminating a bargaining period under subsection 430(1) of the WR Act that was made on the ground, or on grounds including the ground, that the Commission was satisfied as mentioned in subsection 430(3) of that Act;

a declaration by the Minister under section 498 of the WR Act (which deals with industrial action endangering life, etc.).

Divisions 3 and 5 of Part 2‑5 of the FW Act have effect, on and after the WR Act repeal day, in relation to the making of an industrial action related workplace determination, as if:

references to a termination of industrial action instrument included references to the order or declaration referred to in subitem (1); and

references to a proposed enterprise agreement included references to the proposed collective agreement; and

references to the bargaining representatives for a proposed enterprise agreement included references to the persons who were, immediately before the WR Act repeal day, negotiating parties for the proposed collective agreement; and

references to an employer or employee that would have been covered by a proposed enterprise agreement included references to an employer or employee, as the case requires, that would have been bound by the proposed collective agreement; and

the reference in paragraph 275(g) to bargaining representatives complying with the good faith bargaining requirements included a reference to the negotiating parties genuinely trying to reach agreement in relation to the proposed collective agreement.

The effect of this provision is that FWA may make an industrial action related workplace determination under the FW Act based on conduct, orders and declarations in relation to negotiations for a proposed collective agreement under the WR Act.

before the WR Act repeal day, an application was made under Division 2 of Part 9 of the WR Act for the suspension or termination of a bargaining period; and

the application had not been finally dealt with as at the WR Act repeal day;

A ballot order under subsection 451(1) of the WR Act, or a ballot or authorisation under such an order, has no effect on or after the WR Act repeal day.

This means that no protected action ballots can be conducted or continued on or after the WR Act repeal day, and any nomination in a ballot order of a person as an authorised ballot agent, or as an authorised independent adviser, will also have no effect.

This item has effect subject to items 14A and 15.

section 476;

subsections 477(1) to (6);

section 479.

A person must not contravene subsection 477(1) or (4) of the WR Act as those sections continue to apply because of this item (see item 14 of Schedule 16).

A person who is a bargaining representative for a proposed enterprise agreement may apply to FWA for an order under this item if, before the WR Act repeal day, the person was an applicant specified in an order for a protected action ballot in relation to a proposed collective agreement.

The application must be made within 28 days after the WR Act repeal day.

FWA may order that industrial action that was authorised under section 478 of the WR Act in relation to the proposed collective agreement is taken to be authorised, in relation to the proposed enterprise agreement, by a protected action ballot under subsection 459(1) of the FW Act, if FWA is satisfied that:

on or after 1 March 2009, the person organised or engaged in industrial action, for the purpose of supporting or advancing claims in relation to the proposed collective agreement; and

all such industrial action organised or engaged in by the person was:

authorised by a protected action ballot under section 478 of the WR Act; and

protected action within the meaning of the WR Act; and

the person did not first organise or engage in such industrial action on or after the WR Act repeal day; and

no collective agreement covering the employees whose employment would have been subject to the proposed collective agreement was approved by those employees before the WR Act repeal day; and

the proposed enterprise agreement will cover those employees; and

the person is genuinely trying to reach agreement in relation to the proposed enterprise agreement; and

it is reasonable in all the circumstances to make the order.

Industrial action that is taken to be authorised because of the operation of subitem (3) is only taken to be authorised in relation to employees who:

will be covered by the proposed enterprise agreement; and

were relevant employees (within the meaning of section 450 of the WR Act) in relation to the proposed collective agreement.

For the purposes of subsection 414(3) of the FW Act, the results of the protected action ballot under that Act are taken to have been declared on the day of the order.

the roll of voters;

all the ballot papers, envelopes and other documents and records relevant to the ballot.

This item applies if one or more of the following instruments cover the employees who will be covered by a proposed enterprise agreement:

any of the following transitional instruments:

a collective agreement;

a workplace determination;

a preserved collective State agreement;

a pre‑reform certified agreement;

a section 170MX award;

a collective Division 2B State employment agreement.

An application for a protected action ballot order must not be made under subsection 437(1) of the FW Act earlier than 30 days before the nominal expiry date of the instrument, or the latest nominal expiry date of those instruments (as the case may be).

To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.

This item applies if:

before the WR Act repeal day, a bargaining representative for a proposed enterprise agreement engaged in conduct in relation to a proposed collective agreement; and

immediately before that day, the collective agreement had not been made; and

the employment of the employees who would be covered by the proposed enterprise agreement would have been subject to the proposed collective agreement, had it been made; and

the employers who would be covered by the proposed enterprise agreement would have been bound by the proposed collective agreement, had it come into operation.

This item applies if:

before the Division 2B referral commencement, a bargaining representative for a proposed enterprise agreement engaged in conduct in relation to a proposed collective State employment agreement; and

immediately before that day, the collective State employment agreement had not been made, or had been made but had not been lodged (however described) under a State industrial law of a Division 2B referring State; and

the employment of the employees who would be covered by the proposed enterprise agreement would have been subject to the proposed collective State employment agreement, had it come into operation; and

the employers who would be covered by the proposed enterprise agreement would have been bound by the proposed collective State employment agreement, had it come into operation.

If this item applies because of subitem (1) or (1A), the FWC may take into account the conduct referred to in that subitem:

in deciding whether it is reasonable in all the circumstances to make a bargaining order or a scope order in relation to the proposed enterprise agreement; and

in deciding which terms to include in a workplace determination that relates to the proposed enterprise agreement; and

in deciding under Part 3‑3 of the FW Act (which deals with industrial action) whether a bargaining representative is genuinely trying to reach an agreement in relation to the proposed enterprise agreement; and

in deciding under subsection 423(2) or (3) of that Act whether protected industrial action that relates to the proposed enterprise agreement is causing, or threatening to cause, significant economic harm to a person.

If industrial action (whether or not protected action) is engaged in before the commencement of Part 3‑3 of the FW Act then:

Division 9 of Part 9 of the WR Act continues to apply, on and after the WR Act repeal day, in relation to the industrial action; and

Part 3‑1 and Division 9 of Part 3‑3 of the FW Act do not apply in relation to the industrial action.

If:

industrial action (whether or not protected action) is engaged in during a shift or other period of work that is taken to be a day because of subsection 507(3) of the WR Act; and

Part 3‑3 of the FW Act commences during that shift or other period;

Division 9 of Part 9 of the WR Act continues to apply, on and after the WR Act repeal day, in relation to the industrial action until the end of that shift or other period; and

Part 3‑1 and Division 9 of Part 3‑3 of the FW Act do not apply in relation to the industrial action engaged in during that shift or period.

the reference in paragraph 470(4)(c), subsection 471(2) and paragraph 474(2)(c) of that Act to a modern award included a reference to an award‑based transitional instrument and a Division 2B State award; and

the reference in those provisions to an enterprise agreement included a reference to an agreement‑based transitional instrument and a Division 2B State agreement.

as if it were an entry permit in force under the FW Act; and

subject to terms and conditions (including expiry date) like those to which it was subject under the WR Act.

An entry notice properly given:

before the WR Act repeal day; and

for an entry that has not occurred before that day;

An exemption certificate properly issued by a Registrar:

before the WR Act repeal; and

for an entry that has not occurred before the repeal;

the WR Act, as in force from time to time;

a WR Act instrument;

a transitional instrument;

a Division 2B State instrument.

the reference in paragraph 510(1)(a) of that Act to the permit holder being found, in proceedings under this Act, to have contravened subsection 503(1) included a reference to the permit holder being found, in proceedings under the WR Act, as in force from time to time, to have contravened section 768 of the WR Act; and

the reference in paragraph 510(1)(d) of the FW Act to “this Act” (being the FW Act) included a reference to the WR Act as in force from time to time and the reference in that paragraph to “this Part” (being Part 3‑4 of the FW Act) included a reference to Part 15 of the WR Act; and

the reference in paragraph 510(4)(a) of the FW Act to the FWC not having previously taken action under subsection (1) against the permit holder included a reference to the Registrar not having taken action against the permit holder under subsection 744(4) of the WR Act, as in force from time to time; and

the references in paragraphs 510(4)(b) and (c) of the FW Act to the FWC having taken action under subsection (1) against the permit holder included a reference to the Registrar having taken action against the permit holder under subsection 744(4) of the WR Act, as in force from time to time.

An instrument that, because of this Schedule, has effect under the FW Act continues, in addition to that effect, to have effect under the WR Act for the purposes of item 11 of Schedule 2.

Any suspension or revocation of, or imposition of conditions on, an entry permit under the WR Act (as it continues to apply because of item 11 of Schedule 2) is also taken to have been done under the FW Act.

Despite item 11 of Schedule 2, disputes about the operation of Part 15 of the WR Act that could, because of that item, have been dealt with under section 772 of that Act, may be dealt with only by the FWC under section 505 of the FW Act.

For the purposes of subitem (3), section 505 of the FW Act applies:

as if the reference in subsection (1) of that section to “this Part” (being Part 3‑4 of the FW Act) were a reference to Part 15 of the WR Act; and

in a similar way to the way in which it applies for the purposes of the FW Act.

This means that a provision of a transitional instrument that is a provision of the kind described in subparagraph 691A(1)(c)(ii) of the WR Act (being a provision requiring an employer to apply to a third party for authorisation to stand down employees in certain circumstances) has effect on and after the WR Act repeal day.

A person must not contravene a term of an award‑based transitional instrument that applies to the person.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

An injunction may not be granted in relation to a contravention of an award‑based transitional instrument (see item 17).

A person must not contravene a term of an agreement‑based transitional instrument that applies to the person.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

An injunction may not be granted in relation to a contravention of an agreement‑based transitional instrument (see item 17).

An employer must not contravene subitem 18(6) of Schedule 3.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

A bargaining representative who applies to the FWC for approval of an enterprise agreement must not contravene subitem 18(7) of Schedule 3.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

This item is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

A person must not contravene a term of a Division 2B State award that applies to the person.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

An injunction may not be granted in relation to a contravention of a Division 2B State award (see item 17).

A person must not contravene a term of a Division 2B State employment agreement that applies to the person.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

An injunction may not be granted in relation to a contravention of a Division 2B State employment agreement instrument (see item 17).

An employer must not contravene subitem 25(6) of Schedule 3A.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

A bargaining representative who applies to the FWC for approval of an enterprise agreement must not contravene subitem 25(7) of Schedule 3A.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

An employer must not contravene subitem 20A(3) of Schedule 3.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

An employer must not contravene subitem 26A(3) of Schedule 3A.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

An employer must not contravene subitem 30(3) of Schedule 7.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

This item is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

An injunction may not be granted in relation to a contravention of section 182 or 185 of the WR Act (see item 17).

A person must not contravene any of the following provisions:

Divisions 3, 4, 5, and 6 of Part 7 of the WR Act as they continue to apply under item 2 of Schedule 4;

Divisions 1 and 2 of Part 12 of the WR Act as they continue to apply under item 3 of Schedule 4;

section 661 of the WR Act as it continues to apply under item 4 of Schedule 4.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

An injunction may not be granted in relation to a contravention of section 661 of the WR Act (see item 17).

A person must not contravene Division 6 of Part 12 of the WR Act as it continues to apply under item 3 of Schedule 4.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

This item is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

A person must not contravene a term of a transitional pay equity order that applies to the person.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

A person must not contravene an order under item 30 of Schedule 3A that continues the effect of terms of a Division 2B State award relating to long service leave.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

A person must not contravene any of the following provisions of the WR Act as the provision continues to apply because of Schedule 8:

subsection 335(3);

subsection 337(8) or (9);

subsection 339(1);

subsection 342(1);

subsection 346(1);

subsection 346A(1);

subsection 346ZH(1);

subsection 362(1);

subsection 364(1);

subsection 370(8) or (9);

subsection 372(1);

subsection 375(1);

subsection 379(1);

subsection 385(1);

subsection 388(1);

subsection 391(1);

subsection 394(5);

subsection 397(1);

subsection 601H(2).

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

A person must not contravene any of the following provisions of the WR Act as the provision continues to apply because of Schedule 8:

subsection 341(1);

subsection 343(1);

subsection 357(1);

subsection 365(1);

subsection 366(1);

subsection 374(1);

subsection 376(1);

subsection 387(1).

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

A person must not contravene subsection 334(2) of the WR Act as that subsection continues to apply because of Schedule 8.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

A person must not contravene subsection 365(1), 366(1), 400(3), 400(5) or 401(1) of the WR Act as those subsections continue to apply because of Schedule 8.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

This item applies to the following provisions of the WR Act as the provisions continue to apply because of Schedule 8:

subsection 341(1);

subsection 374(1);

subsection 387(1);

subsection 400(5);

subsection 401(1).

Subdivision C of Division 11 of Part 8 of the WR Act continues to apply, on and after the WR Act repeal day, in relation to a contravention of the provision.

This item is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

A person must not contravene subsection 599(4) of the WR Act as it continues to apply because of subitem 2(2) of Schedule 11.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

A person must not contravene any of the following provisions of the WR Act as they continue to apply because of subitem 2(2) or (3) of Schedule 11:

subsections 602(2) and (4);

subsections 603(1), (2) and (3);

subsection 603A(2);

subsection 603B(1);

subclauses 28(2) and (3A) of Schedule 9;

subclauses 29(1), (2) and (3) of Schedule 9;

subclause 29A(2) of Schedule 9;

subclause 29B(1) of Schedule 9.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

A person must not contravene subitem 10(2) of Schedule 11.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

A person must not contravene subitem 11(1) of Schedule 11.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

A person must not contravene subsection 599(4) of the WR Act as applied by item 13 of Schedule 11.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

A person who:

is the protected action ballot agent for a protected action ballot (other than the Australian Electoral Commission); or

is the independent advisor for a protected action ballot; or

acquires information from, or on behalf of, a person referred to in paragraph (a) or (b) in the course of performing functions or exercising powers for the purposes of the ballot;

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

Subitem (1) does not apply if:

the disclosure is made in the course of performing functions or exercising powers for the purposes of the protected action ballot; or

the disclosure is required or authorised by or under a law; or

the employee has consented, in writing, to the disclosure.

Personal information given to the FWC, the Australian Electoral Commission or another protected action ballot agent under Division 8 of Part 3‑3 of the FW Act may be regulated under the Privacy Act 1988.

The President of the FWC may, in certain circumstances, disclose, or authorise the disclosure of, information acquired by the FWC or a member of the staff of the FWC, in the course of performing functions or exercising powers as the FWC (see section 655 of the FW Act).

In this item:

A person who acquires protected ballot information in the course of performing functions or exercising powers under this Act, the WR Act or the FW Act must not disclose that information to any other person if the information will identify:

whether a person is a member of an employee organisation; or

a person as:

an applicant who was represented by an applicant’s agent; or

a relevant employee who was one of the prescribed number of employees supporting an application for a ballot order (as required by subsection 451(4) of the WR Act); or

a person whose name appears on the roll of voters for a protected action ballot; or

a person who is covered by an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

Subitem (1) does not apply if:

the disclosure is made for the purposes of performing functions or exercising powers under this Act, the WR Act (as it continues to apply under this Act) or the FW Act; or

the disclosure is required or authorised by or under a law; or

the person referred to in paragraph (1)(a) or (b) has consented, in writing, to the disclosure.

If the protected ballot information is personal information, it may be regulated under the Privacy Act 1988.

The President of the FWC may, in certain circumstances, disclose, or authorise the disclosure of, information acquired by the FWC or a member of the staff of the FWC, in the course of performing functions or exercising powers as the FWC (see section 655 of the FW Act).

In this item:

This item is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

A person must not contravene a term of a continuing Schedule 6 instrument that applies to the person.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

An injunction may not be granted in relation to a contravention of a continuing Schedule 6 instrument (see item 17).

A transitional employer must not contravene subclause 72J(2) or 72K(1), (2) or (3) of continued Schedule 6.

This subitem is a civil remedy provision (see item 16, and Part 4‑1 of the FW Act).

Part 4‑1 of the FW Act applies as if:

items 2 to 8 and 10 to 15 of this Schedule were provisions of the FW Act; and

the table in subsection 539(2) included the table below (with the references in column 1 of the table below to be read as references to provisions of this Schedule (being Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009)); and

a reference to a fair work instrument in that Part included a reference to a transitional instrument, a Division 2B State instrument, a transitional minimum wage instrument or a continuing Schedule 6 instrument; and

the reference in subsection 540(3) to items 4, 7 and 14 in the table in subsection 539(2) included a reference to items 40, 44C, 44H, 44J and 44K in the table below; and

the reference in subsections 540(3) and (4) to a term in an enterprise agreement that would be an outworker term if it were included in a modern award included:

a reference to a term in a collective agreement‑based transitional instrument that would be an outworker term if it were included in an award‑based transitional instrument; and

a reference to a term in a collective Division 2B State employment agreement that would be an outworker term if it were included in a Division 2B State award; and

subsection 541(3) included references to items 2, 5, 7, 10, and 15 of this Schedule; and

subsection 557(2) included references to items 2 to 8 and 10 to 15 of this Schedule.

For the purposes of table items 38, 39, 40, 40A, 44A, 44B, 44C, 44D, 48, 60 and 61 in subitem (1), and the operation of subsections 540(3) and (4) of the FW Act in relation to those table items:

outworker has the meaning given by the FW Act; and

outworker term has the meaning that would be given by section 140 of the FW Act if:

references in the section to a modern award were references to an award‑based transitional instrument, a Division 2B State award or a continuing Schedule 6 instrument; and

paragraph 140(3)(b) of that Act did not refer to subsection 142(1); and

paragraph 140(3)(c) of that Act did not refer to subsection 142(2).

Section 570 of the FW Act applies in relation to proceedings that relate to any of items 2 to 8 or 10 to 15 of this Schedule as if the reference to this Act (being the FW Act) were a reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

Section 571 of the FW Act applies as if the reference to a pecuniary penalty imposed under this Act (being the FW Act) were a reference to a pecuniary penalty imposed in relation to any of items 2 to 8 or 10 to 15 of this Schedule.

a transitional instrument; or

a Division 2B State instrument; or

a continuing Schedule 6 instrument; or

section 182 or 185 of the WR Act as that section continues to apply under item 5 of Schedule 9; or

section 661 of the WR Act, as it continues to apply under item 4 of Schedule 4.

sections 541, 542 and 543 of the FW Act;

section 706 of the FW Act as it operates because of paragraph 706(1)(b) that Act.

Inspectors may exercise powers for the other compliance purposes set out in subsection 706(1) of the FW Act before the FW (safety net provisions) commencement day.

The regulations may provide for civil penalties for contravention of this Act or of the WR Act as the WR Act continues to apply because of this Act.

The penalties for contravention must not be more than:

20 penalty units for an individual; and

100 penalty units for a body corporate.