Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

required or permitted by this Act to be prescribed; or

necessary or convenient to be prescribed for carrying out or giving effect to this Act.

this Schedule; and

Schedules 2 to 22, other than:

Part 3 of Schedule 6; and

Parts 1, 2 and 3 of Schedule 17; and

items 21 to 22 of Schedule 18; and

Parts 1 to 8 of Schedule 22.

in relation to a transitional instrument: see subitem 3(2) of Schedule 3; and

in relation to a Division 2B State award: see item 4 of Schedule 3A; and

in relation to a Division 2B State employment agreement: see item 6 of Schedule 3A.

starting on the WR Act repeal day; and

ending immediately before the FW (safety net provisions) commencement day.

in relation to an individual agreement‑based transitional instrument: see subitem 18(1) of Schedule 3; and

in relation to an individual Division 2B State employment agreement: see subitem 25(1) of Schedule 3A.

in relation to a transitional instrument: see subitem 3(1) of Schedule 3; and

in relation to a transitional minimum wage instrument: see item 6 of Schedule 9; and

in relation to a Division 2B State award: see item 4 of Schedule 3A; and

in relation to a Division 2B State employment agreement: see item 6 of Schedule 3A.

in Schedule 3: see subitem 4(2) of Schedule 3; and

in Schedule 3A: see subitem 10(2) of Schedule 3A.

in Schedule 3: see subitem 5(2) of Schedule 3; and

in Schedule 3A: see subitem 11(2) of Schedule 3A.

in relation to a workplace agreement—means lodged with the Workplace Authority Director under section 344 of the WR Act; and

in relation to a variation of a workplace agreement—means lodged with the Workplace Authority Director under section 346N or 377 of the WR Act, as the case may be; and

in relation to a termination of a workplace agreement—means lodged with the Workplace Authority Director under section 389 of the WR Act.

in relation to a workplace agreement—has the meaning given by section 333 of the WR Act; and

in relation to a variation of a workplace agreement—has the meaning given by section 368 of the WR Act.

in relation to the Part 10A award modernisation process—see subitems 8(3) and (4) of Schedule 5; and

in relation to the enterprise instrument modernisation process—see subitem 11(3) of Schedule 6; and

in relation to the State reference public sector transitional award modernisation process—has the meaning given by subitem 13(3) of Schedule 6A.

in relation to a Division 2B State award: see subitem 3(1) of Schedule 3A; and

in relation to a Division 2B State employment agreement: see subitem 5(1) of Schedule 3A.

WR Act means the Workplace Relations Act 1996 and, unless the contrary intention appears, means that Act as in force immediately before the WR Act repeal day.

Unless a contrary intention appears, a reference to the WR Act, or to a provision or provisions of the WR Act, includes a reference to regulations made for the purposes of the WR Act, or for the purposes of the provision or provisions of the WR Act.

If an item of the transitional Schedules provides for the WR Act, or a provision or provisions of the WR Act, to continue to apply on and after the WR Act repeal day (or during the bridging period), the WR Act, or the provision or provisions, continue to so apply despite the WR Act repeal.

FW Act means the Fair Work Act 2009.

Unless a contrary intention appears, a reference to the FW Act, or to a provision or provisions of the FW Act, includes a reference to regulations made for the purposes of the FW Act, or for the purposes of the provision or provisions of the FW Act.

Unless a contrary intention appears:

expressions used in a transitional Schedule that were defined in the WR Act (other than Schedule 1 to that Act) have the same meanings in that transitional Schedule as they had in that Act; and

expressions used in a transitional Schedule that are defined in the FW Act have the same meanings in that transitional Schedule as they have in that Act.

If:

a provision of a transitional Schedule uses an expression defined in both the WR Act and the FW Act; and

it is clear from the context of the provision which of those meanings is intended to apply in that provision;

The regulations may define, or clarify the meaning of, an expression used in a transitional Schedule.

This item does not apply to expressions defined in item 2.

If a provision of a transitional Schedule provides for provisions (the applied WR Act provisions) of the WR Act to apply on and after the WR Act repeal day, any other provisions of the WR Act, and any regulations or other instruments made under that Act, that are necessary for the effectual operation of the applied WR Act provisions also apply on and after that day.

This item has effect:

subject to a contrary intention in a provision of a transitional Schedule; and

subject to the regulations.

To avoid doubt, in interpreting provisions of the transitional Schedules, the effect on the WR Act of Part 21 of that Act (which deals with matters referred by Victoria) before the WR Act repeal day is to be taken into account.

For example, a reference in Schedule 3 to a workplace agreement includes a reference to a workplace agreement made under Part 8 of the WR Act, as that Part had effect because of Part 21.

If a provision of the transitional Schedules provides for the application or continued application of provisions of the WR Act on and after the WR Act repeal day, those provisions also have the effect they would have if Part 21 of that Act were still in force.

For example, item 2 of Schedule 4 provides for the continued application during the bridging period of Divisions 3, 4, 5 and 6 of Part 7 of the WR Act. The continued application of those Divisions also includes the extended effect those Divisions would have if Part 21 were still in force.

This item has effect:

subject to a contrary intention; and

subject to the regulations.

The regulations may make provisions of a transitional, application or saving nature in relation to any of the following:

the transition from the regime provided for by the WR Act (and any Acts that amended that Act) to the regime provided for by the FW Act;

the amendments and repeals made by the Schedules to this Act;

the transition from the regime provided for by State industrial laws of Division 2B referring States to the regime provided for by this Act and the FW Act, including:

the transition from State awards and State employment agreements to Division 2B State instruments; and

the transition from Division 2B State instruments to modern awards and enterprise agreements;

the amendments and repeals made by the Fair Work Amendment (State Referrals and Other Measures Act) 2009.

Without limiting subitem (1), regulations made for the purpose of that subitem may do any of the following:

modify provisions of the FW Act, or provide for the application (with or without modifications) of provisions of the FW Act to matters to which they would otherwise not apply;

provide for the application (with or without modifications) of provisions of the WR Act on and after the WR Act repeal day;

provide for the application (with or without modifications), as laws of the Commonwealth, of provisions of State industrial laws of Division 2B referring States on and after the Division 2B referral commencement.

The regulations may modify provisions of the transitional Schedules.

If a provision of a transitional Schedule provides for repealed provisions of the WR Act to apply on and after the WR Act repeal day, the regulations may:

modify the provisions; or

make other provision relating to the application of the provisions.

If a provision of a transitional Schedule provides for provisions of the FW Act to apply in relation to matters to which they would otherwise not apply, the regulations may:

modify the provisions; or

make other provision relating to the application of the provisions.

The regulations may make other provision in relation to the matters dealt with in the transitional Schedules.

The transitional Schedules have effect subject to regulations made for any of the purposes of this item.

The regulations must not:

modify provisions of Part 3‑4 of the FW Act (which deals with right of entry); or

modify provisions of the transitional Schedules that deal with right of entry.

The regulations must not confer compliance powers on an inspector that are additional to the compliance powers under Part 5‑2 of the FW Act.

This item has effect despite items 7 and 8.

This item applies to regulations made for the purpose of any of the provisions of the transitional Schedules (including this Part).

Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to the regulations.

If:

regulations are expressed to commence from a date (the registration date) before the regulations are registered under the Legislation Act 2003; and

a person engaged in conduct before the registration date; and

but for the retrospective effect of the regulations, the conduct would not have contravened a provision of:

the WR Act (as it continues to apply because of this Act); or

this Act; or

the FW Act;

The provisions of the transitional Schedules (including this Part) that provide for regulations to deal with matters do not limit each other.

The WR Act continues to apply, on and after the WR Act repeal day, in relation to conduct that occurred before the WR Act repeal day.

For continuation and cessation of WR Act bodies and offices on and after the WR Act repeal day, see item 7 of Schedule 18.

If:

a process to vary or terminate a WR Act instrument is begun under the WR Act before the WR Act repeal day; and

the WR Act instrument becomes a transitional instrument because of the operation of Part 2 of Schedule 3;

To avoid doubt, the WR Act continues to apply, on and after the WR Act repeal day, in relation to orders made under that Act, including as it continues to apply under subitem (1).

This item applies subject to this Act.

For the purposes of transition from the WR Act to the FW Act, other provisions of this Act:

modify or exclude the operation of the WR Act as it continues to apply under subitem (1); and

provide for the continued operation of the WR Act (including in modified form) in relation to conduct that occurs on or after the WR Act repeal day.

On and after the WR Act repeal day:

an application, other than an interim application, that could have been made to any of the following because of item 11 may be made only to the FWC:

the Commission;

the President;

a member of the Commission;

a Registrar; and

an appeal to the Commission that could have been instituted because of item 11 may be instituted only as an appeal to the FWC; and

a process (however described), other than an interim process, that could have been initiated by the Commission on its own motion because of item 11 may be initiated only by the FWC; and

a matter that could have been referred to the Commission under section 46PW of the Australian Human Rights Commission Act 1986 because of item 11 is to be referred only to the FWC.

For the purposes of subitem (1), a law of the Commonwealth that relates to an application, appeal, process or matter referred to in that subitem is to be read:

as if a reference to a WR Act body or WR Act office were a reference to the FWC, as necessary; and

with any other necessary modifications.

For WR Act body and WR Act office: see subitem 7(1) of Schedule 18.

Subitems (1) and (2) apply subject to this Act.

In this item:

modify the operation of the WR Act as it applies under item 11;

provide that subitem 11(1A) does not apply in relation to specified processes;

provide for any other matter that, because of item 11, could have been dealt with by a WR Act body or a person holding a WR Act office to be dealt with by the FWC, or by the FWC only.

Each WR Act instrument (see subitem (2)) that becomes a transitional instrument (see subitems (3) to (4A)) continues in existence in accordance with this Schedule from when it becomes a transitional instrument, despite the WR Act repeal.

In addition to provisions of this Schedule, the following other provisions affect the continued existence of transitional instruments:

Part 2 of Schedule 5 (which deals with the WR Act award modernisation process);

Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process);

Schedule 8 (which deals with workplace agreements and workplace determinations made under the WR Act, including the making of ITEAs during the bridging period);

Schedule 11 (which deals with transfer of business);

Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).

Each of the following instruments is a WR Act instrument:

an award;

a State reference transitional award or common rule;

a notional agreement preserving State awards;

a workplace agreement;

a workplace determination;

a preserved State agreement;

an AWA;

a pre‑reform certified agreement;

a pre‑reform AWA;

an old IR agreement;

a section 170MX award.

Workplace agreements are either collective agreements or ITEAs.

Preserved State agreements are either preserved collective State agreements or preserved individual State agreements.

For transitional provisions relating to Division 2 of Part 7 of the WR Act (which deals with wages), see Schedule 9.

For transitional provisions relating to other transitional awards, see Schedule 20.

The following WR Act instruments become transitional instruments on the WR Act repeal day:

each WR Act instrument (other than a Division 2B State reference transitional award) that was in operation immediately before the WR Act repeal day;

each workplace agreement or workplace determination made before the WR Act repeal day but that had not yet come into operation by that day;

any other WR Act instrument that, although not in operation immediately before the WR Act repeal day, could come into operation after that day because of an instrument interaction rule.

Victorian employment agreements are not continued as transitional instruments. For provisions relating to these agreements, see Part 7 of this Schedule.

If a State reference common rule comes into effect on or after the WR Act repeal day under the provisions that continue to apply because of item 8A, the State reference common rule becomes a transitional instrument when the common rule comes into effect.

If an ITEA is made during the bridging period under Division 7 of Part 2 of Schedule 8, the ITEA becomes a transitional instrument when it is made.

A Division 2B State reference transitional award becomes a transitional instrument on the Division 2B referral commencement. The Division 2B referral commencement is the time when Division 2B of Part 1‑3 of the FW Act commences.

Transitional instruments are classified as follows:

awards, State reference transitional awards or common rules, and notional agreements preserving State awards, are award‑based transitional instruments;

all other kinds of transitional instruments are agreement‑based transitional instruments;

agreement‑based transitional instruments of the following kinds are collective agreement‑based transitional instruments:

collective agreements;

workplace determinations;

preserved collective State agreements;

pre‑reform certified agreements;

old IR agreements;

section 170MX awards;

agreement‑based transitional instruments of the following kinds are individual agreement‑based transitional instruments:

ITEAs;

preserved individual State agreements;

AWAs;

pre‑reform AWAs.

A State reference transitional award is a transitional award that covers:

one or more specified State reference employers; and

specified State reference employees of those employers.

A transitional award includes a transitional Victorian reference award.

State reference transitional awards are classified as follows:

if the employers and employees covered are Division 2A State reference employers and Division 2A State reference employees—the State reference transitional award is a Division 2A State reference transitional award;

if the employers and employees covered are Division 2B State reference employers and Division 2B State reference employees—the State reference transitional award is a Division 2B State reference transitional award.

A State reference common rule is a common rule that covers:

specified State reference employers; and

specified State reference employees of those employers.

A State reference employee is an employee who is a national system employee only because of section 30C or 30M of the FW Act.

State reference employees are classified as follows:

employees who are national system employees because of section 30C of the FW Act are Division 2A State reference employees;

employees who are national system employees because of section 30M of the FW Act are Division 2B State reference employees.

A State reference employer is an employer that is a national system employer only because of section 30D or 30N of the FW Act.

State reference employers are classified as follows:

employers that are national system employers because of section 30D of the FW Act are Division 2A State reference employers;

employers that are national system employers because of section 30N of the FW Act are Division 2B State reference employers.

If:

a transitional award (the current award), as in force on the WR Act repeal day, covers one or more Division 2A State reference employers, and Division 2A State reference 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 Division 2A State reference 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 transitional award 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.

If:

a transitional award (the current award), as in force on the Division 2B referral commencement, covers one or more Division 2B State reference employers, and Division 2B State reference 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 Division 2B State reference 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;

a transitional award 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.

A referring State is:

a State (a Division 2A referring State) that is a referring State as defined in section 30B of the FW Act; or

a State (a Division 2B referring State) that is a referring State as defined in section 30L of the FW Act.

A transitional instrument covers the same employees, employers and any other persons that it would have covered (however described in the instrument or WR Act) if the WR Act had continued in operation.

The expression covers is used to indicate the range of employees, employers etc. to whom the instrument potentially applies (see subitem (2)). The employees, employers etc. who are within this range will depend on terms of the instrument, and on any relevant provisions of the WR Act.

Depending on the terms of a transitional instrument and any relevant provisions of the WR Act, the instrument’s coverage may extend to people who become employees after the instrument becomes a transitional instrument.

A transitional instrument applies to the same employees, employers and any other persons the instrument covers as would, if the WR Act had continued in operation, have been:

required by the WR Act to comply with terms of the instrument; or

entitled under the WR Act to enforce terms of the instrument.

The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of a transitional instrument.

However, an award‑based transitional instrument does not apply to an employee (or to 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 deals with the application of section 329 of the FW Act to award‑based transitional instruments.

This item has effect subject to:

the instrument interaction rules (see item 5); and

the variation or termination of transitional instruments as referred to in item 9;

Division 2 of Part 5 (which deals with interaction between transitional instruments and FW Act modern awards, workplace determinations and enterprise agreements); and

Schedule 11 (which deals with transfer of business); and

Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).

The same instrument content rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.

Certain instrument content rules relating to the standing down of employees do not continue to apply in relation to WR Act instruments that become transitional instruments (see item 3 of Schedule 15).

Instrument content rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, of any of the following kinds:

provisions about what may, must or must not be included in an instrument;

provisions to the effect that a particular term of an instrument is of no effect (however described):

either completely or to a limited extent; and

either permanently or for a limited period;

provisions to the effect that a particular term is taken to be included in an instrument.

Most of the instrument content rules were in the WR Act.

The same instrument interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.

Instrument interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:

one instrument has priority over, or excludes, another instrument:

either completely or to a particular extent; and

either permanently or for a particular period; or

one instrument ceases to operate because of another instrument:

either completely or to a particular extent; and

either permanently or for a particular period.

Most of the instrument interaction rules were in the WR Act.

The same State and Territory interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.

State and Territory interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:

an instrument prevails over, or excludes, a law of a State or Territory; or

an instrument has effect subject to a law of a State or Territory.

Most of the State and Territory interaction rules were in the WR Act.

If a provision of a transitional instrument confers a power or function on the Australian Industrial Relations Commission, that provision has effect on and after the WR Act repeal day as if references in it to the Commission were instead references to the FWC.

If a provision of a transitional instrument confers a power or function on the Industrial Registrar or a Deputy Industrial Registrar, that provision has effect on and after the WR Act repeal day as if references in it to the Industrial Registrar or a Deputy Industrial Registrar were instead references to the General Manager of the FWC.

This item has effect subject to:

a contrary intention in this Act; and

the regulations.

If a transitional instrument terminates, or ceases to apply in relation to a person, that does not affect:

any right or liability that a person acquired, accrued or incurred before the transitional instrument terminated or ceased to apply; 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 instrument had not terminated or ceased to apply.

This item has effect subject to a contrary intention in this Act or in the FW Act.

To the extent of any inconsistency, the following transitional instruments displace prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations:

a workplace agreement;

a pre‑reform certified agreement;

an AWA;

a pre‑reform AWA.

In subitem (1):

If, immediately before the WR Act repeal day, regulations made under section 350 of the WR Act, or that continued to apply under subclause 2(2) or 17(2) of Schedule 7 to the WR Act:

identified a condition as a prescribed condition in relation to an instrument referred to in paragraph (1)(a), (b), (c) or (d); or

prescribed an Act or any regulations or other instrument made under an Act as a Commonwealth law in relation to such an instrument;

Subitem (3) has effect subject to any regulations made for the purposes of subitem (1) or (2).

Subject to this item, clauses 82 to 87 of Schedule 6 to the WR Act continue to apply on and after the WR Act repeal day in relation to State reference common rules.

Clauses 82 to 87 continue to apply as if:

references in the clauses to the transitional period (including references to the end of the transitional period) were omitted; and

a reference in the clauses to the Commission were instead a reference to the FWC; and

a reference in the clauses to a Registrar were instead a reference to the General Manager of the FWC; and

a reference in the clauses to the Rules of the Commission were instead a reference to the procedural rules of the FWC.

Subitem (2) has effect unless the context otherwise requires and subject to the regulations.

For example, paragraph (2)(a) does not apply if the reference is to something that the Commission did before the WR Act repeal day (or before the reform commencement).

A transitional instrument cannot be varied except under:

a provision of this Part or the regulations; or

item 26 (which deals with resolving difficulties with the interaction between transitional instruments and the National Employment Standards); or

Part 2 of Schedule 5 (which deals with the WR Act award modernisation process); or

Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process); or

Schedule 8 (which deals with workplace agreements and workplace determinations made under the WR Act); or

Schedule 11 (which deals with transfer of business); or

Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).

A transitional instrument cannot be terminated (or otherwise brought to an end) except under:

a provision of this Part or the regulations; or

Part 2 of Schedule 5; or

Division 2 of Part 2 of Schedule 6; or

Schedule 8; or

Schedule 11; or

Part 3 of Schedule 2.

The references in paragraphs (1)(a) and (2)(a) to a provision of this Part or the regulations includes a reference to a provision of the WR Act or the FW Act as it applies because of a provision of this Part.

On application by a person covered by a transitional instrument, the FWC may make a determination varying the instrument:

to remove an ambiguity or uncertainty in the instrument; or

to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or

to remove terms that are inconsistent with Part 3‑1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part.

For variation of a transitional instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 26.

A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.

This item applies if a transitional instrument is referred to the FWC under section 46PW of the Australian Human Rights Commission Act 1986 (which deals with discriminatory industrial instruments).

If the instrument is an award‑based transitional instrument, section 161 of the FW Act applies in relation to the referral of the instrument as if the instrument were a modern award.

If the transitional instrument is an agreement‑based transitional instrument, section 218 of the FW Act applies in relation to the referral of the instrument as if the instrument were an enterprise agreement.

Subject to this item, Divisions 5 (other than subsections 554(1) to (4)) and 6 of Part 10 of the WR Act continue to apply on and after the WR Act repeal day in relation to transitional instruments that are awards as if references to the Commission were instead references to the FWC.

Items 10 and 11 apply instead of subsections 554(1) to (4) of the WR Act.

The FWC must perform its powers and functions under Divisions 5 and 6 in a way that furthers the objects of Part 10 of the WR Act.

An award cannot be varied or revoked under Division 5 or 6 after the end of the bridging period, except as follows:

an award can be varied after the end of the bridging period under section 553 of the WR Act;

an award can be varied or revoked after the end of the bridging period as a result of the FWC continuing to deal with a matter that it was dealing with before the end of the bridging period.

Subject to this item, Divisions 5 (other than subsections 554(1) to (4)) and 6 of Part 10 of the WR Act apply on and after the WR Act repeal day in relation to transitional instruments that are State reference transitional awards as if:

references to the Commission were instead references to the FWC; and

references to an award included references to a State reference transitional award.

Items 10 and 11 apply instead of subsections 554(1) to (4) of the WR Act.

For variation of State reference common rules, see the provisions continued in effect by item 8A.

To avoid doubt, for the purpose of sections 552 and 553 of the WR Act, as applied by subitem (1) in relation to State reference transitional awards, “minimum safety net entitlements” includes minimum safety net entitlements relating to wages.

For variation of terms relating to wages after the end of the bridging period, see subitems (4) to (6).

The FWC must perform its powers and functions under Divisions 5 and 6 in a way that furthers the objects of Part 10 of the WR Act.

A State reference transitional award cannot be varied or revoked after the end of the bridging period except as follows:

a State reference transitional award, other than terms relating to wages, can be varied after the end of the bridging period under section 553 of the WR Act;

terms of a State reference transitional award relating to wages can be varied after the end of the bridging period in an annual wage review under the FW Act as provided for in subitem (5);

a State reference transitional award can be varied after the end of the bridging period as a result of the FWC continuing to deal with a matter that it was dealing with before the end of the bridging period.

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

For the purpose of subitem (5), Division 3 of Part 2‑6 of the FW Act (other than section 292) applies to terms of a State reference transitional award relating to wages in the same way as it applies to a modern award.

Subject to this item, clause 2A of Schedule 7 to the WR Act continues to apply on and after the WR Act repeal day in relation to transitional instruments that are pre‑reform certified agreements as if references to the Commission were instead references to FWA.

This subitem has effect subject to Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).

An application under clause 2A cannot be made after the end of the bridging period.

Subject to this item, clause 16A of Schedule 8 to the WR Act continues to apply on and after the WR Act repeal day in relation to transitional instruments that are preserved State agreements as if references to the Commission were instead references to FWA.

This subitem has effect subject to Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).

An application under clause 16A cannot be made after the end of the bridging period.

Subdivision D of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement‑based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument.

For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.

To avoid doubt, subsection 615A(3) of the FW Act does not apply in relation to a collective agreement‑based transitional instrument.

The employee and employer covered by an individual agreement‑based transitional instrument may make a written agreement (a termination agreement) to terminate the agreement in accordance with the following requirements:

the termination agreement must be signed by the employee and the employer;

if the employee is under 18, it must also be signed by a parent or guardian of the employee;

the signatures must be witnessed.

The termination has no effect unless it has been approved by the FWC.

The employer or employee may apply to the FWC for approval of the termination agreement. The application must be made:

within 14 days after the termination agreement was made; or

if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

If an application for the FWC to approve the termination agreement is made under subitem (3), the FWC must approve the termination of the instrument if:

the FWC is satisfied that the requirements of subitem (1) have been complied with; and

the FWC is satisfied that there are no other reasonable grounds for believing that the employee has not agreed to the termination.

If the termination is approved under subitem (4), the termination operates from the day specified in the decision to approve the termination.

This item provides for the making of an instrument (a conditional termination) that will have the effect of terminating an individual agreement‑based transitional instrument if:

an enterprise agreement (the proposed enterprise agreement) is made that covers the employee and the employer; and

the proposed enterprise agreement comes into operation.

If the transitional instrument has not passed its nominal expiry date, the conditional termination must be a written agreement signed by the employer and the employee. The signatures must be witnessed.

If the transitional instrument has passed its nominal expiry date, the conditional termination must be in writing and signed either by the employee or the employer. The signature must be witnessed.

If the conditional termination is signed by the employee, and the employee is under 18, it must also be signed by a parent or guardian of the employee.

Any other requirements of the regulations relating to the form, content or making of the conditional termination must also be complied with.

The employer must give the employee a copy of the conditional termination if:

the conditional termination is an agreement signed by the employee and the employer in the circumstances covered by subitem (2); or

the conditional termination is signed by the employer in the circumstances covered by subitem (3).

For compliance with this obligation, see subitem 3(1) of Schedule 16.

Failure to comply with this obligation does not affect the operation of subitem (8).

The conditional termination must accompany any application to the FWC for approval of the proposed enterprise agreement under section 185 of the FW Act.

For compliance with this obligation, see subitem 3(2) of Schedule 16.

Failure to comply with this obligation does not affect the operation of subitem (8), or the validity of an approval by the FWC of the proposed enterprise agreement.

If the requirements of subitems (2) to (5) have been complied with in relation to the conditional termination, the transitional instrument terminates when the proposed enterprise agreement comes into operation.

This item applies to an employer or employee:

to whom an individual agreement‑based transitional instrument that has passed its nominal expiry date applies; and

who wants to terminate the transitional instrument.

The employer or employee may:

make a written declaration that identifies the transitional instrument and that states that the employer or employee wants to terminate the transitional instrument; and

apply to the FWC for the approval of the termination.

The employer or employee cannot make an application as mentioned in paragraph (2)(b) unless, at least 14 days before the day on which the application is made, the employer or employee gives the other of them a notice complying with the following requirements:

the notice must identify the transitional instrument;

the notice must state that the employer or employee intends to apply to the FWC for approval of the termination of the instrument;

the notice must state that, if the FWC approves the termination, the transitional instrument will terminate on the 90th day after the day on which the FWC makes the approval decision;

if the notice is given by the employer:

the notice must state whether, if the instrument terminates during the bridging period, one or more redundancy provisions in the instrument will continue to apply to the employee as provided for by item 38; and

if one or more redundancy provisions in the instrument will so continue to apply to the employee—the notice must include or be accompanied by a copy of the provision or provisions;

the notice must comply with any other requirements of the regulations.

The FWC must approve the termination if the FWC is satisfied that:

the transitional instrument applies to the employer and the employee; and

the requirements of subitems (2) and (3) have been complied with.

If the FWC approves the termination, the transitional instrument terminates on the 90th day after the day on which the FWC makes the approval decision.

A notional agreement preserving State awards (other than a notional agreement that is an enterprise instrument) terminates:

on the 4th anniversary of the FW (safety net provisions) commencement day; or

if the regulations prescribe a later day—on that later day.

If the employer in relation to a Division 3 pre‑reform certified agreement is not a national system employer, the agreement terminates on the earlier of the following:

27 March 2011;

when both of the following conditions are satisfied:

the agreement has passed its nominal expiry date;

it has been replaced by a State employment agreement (within the meaning of the WR Act).

However, if the employer becomes a national system employer before 27 March 2011, subitem (2) does not apply after that time.

If the employer in relation to an old IR agreement is not a national system employer, the agreement terminates on the earlier of the following:

27 March 2011;

when it has been replaced by a State employment agreement (within the meaning of the WR Act).

However, if the employer becomes a national system employer before 27 March 2011, subitem (4) does not apply after that time.

If:

the employer in relation to a section 170MX award is not a national system employer; and

the section 170MX award:

was in force just before 27 March 2006; or

was made on or after that day because of Part 8 of Schedule 7 to the WR Act;

27 March 2011;

when it has been replaced by a State employment agreement (within the meaning of the WR Act).

However, if the employer becomes a national system employer before 27 March 2011, subitem (6) does not apply after that time.

An agreement‑based transitional instrument terminates at the end of the grace period for the instrument if the instrument has not already terminated before that time.

The grace period for an agreement‑based transitional instrument 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 instrument on one or more occasions under subitem (6) or paragraph (11)(e)—the default period as so extended.

An employer covered by an agreement‑based transitional instrument 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 instrument and employed by the employer at the end of that period written notice advising the employee:

that the employee is covered by an agreement‑based transitional instrument; and

that the instrument 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 instrument; 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 agreement‑based transitional instrument, for the FWC to extend the default period for the instrument for a period of no more than 4 years:

an employer covered by the instrument;

an employee covered by the instrument;

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

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

a copy of the instrument; 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 agreement‑based transitional instrument for a period of no more than 4 years if the FWC is satisfied that:

subitem (7), (8) or (9) 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; and

the proposed enterprise agreement will cover:

if the application relates to an individual agreement‑based transitional instrument—the employee covered by the individual agreement‑based transitional instrument; or

if the application relates to a collective agreement‑based transitional instrument—the same, or substantially the same, group of employees as the collective agreement‑based transitional instrument; and

bargaining for the proposed enterprise agreement is occurring.

This subitem applies if:

the application relates to an individual agreement‑based transitional instrument; and

the employee covered by the instrument would be an award covered employee for the instrument under subitem (10) if the instrument were a collective agreement‑based transitional instrument; and

it is likely that, as at the time the application is made, the employee would be better off overall if the instrument applied to the employee than if the relevant modern award referred to in that subitem applied to the employee.

This subitem applies if:

the application relates to a collective agreement‑based transitional instrument; and

it is likely that, as at the time the application is made, the award covered employees for the instrument under subitem (10), viewed as a group, would be better off overall if the instrument 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 subitems (8) and (9), the award covered employees for a collective agreement‑based transitional instrument are the employees who:

are covered by the instrument; and

at the time an application is made under subitem (4) in relation to the instrument, 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 instrument; and

are employed at that time by an employer who is covered by the instrument 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 a collective agreement‑based transitional instrument—the instrument.

Paragraph (10A)(b) applies subject to any order made under section 594 of the FW Act.

The FWC must not publish an individual agreement‑based transitional instrument in relation to which an application under subitem (4) is made.

If:

an application is made under subitem (4) in relation to an agreement‑based transitional instrument; 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 instrument;

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 instrument 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.

Subject to this item, the same AFPCS interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.

Schedule 4 provides for the continued application of the Australian Fair Pay and Conditions Standard (other than minimum wages provisions) during the bridging period.

Schedule 9 provides for the continued application of the minimum wages provisions of the Australian Fair Pay and Conditions Standard on and after the WR Act repeal day.

AFPCS interaction rules of the kind referred to in paragraph (4)(b) do not continue to apply after the end of the bridging period.

This may result in an employee becoming entitled to a rate of pay under a transitional APCS that is higher than was required to be paid to the employee under a transitional instrument during the bridging period. If that occurs, the employer may apply to the FWC for a determination to phase‑in the effect of the increase (see item 14 of Schedule 9).

If, immediately before the end of the bridging period, an AFPCS interaction rule of the kind referred to in paragraph (4)(b) produced the result that an employee to whom a transitional instrument applied was not covered by the obligation in subsection 182(1) or (2) of the WR Act in relation to a transitional APCS, the employee becomes covered by that obligation in relation to that transitional APCS from the end of the bridging period.

AFPCS interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:

the Australian Fair Pay and Conditions Standard prevails over an instrument (or an instrument is of no effect because of the Standard) either completely or to a particular extent; or

an instrument prevails over the Australian Fair Pay and Conditions Standard (or the Standard does not apply because of the instrument) either completely or to a particular extent.

Most of the AFPCS interaction rules were in the WR Act.

To the extent that a term of a transitional instrument is detrimental to an employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards, the term of the transitional instrument is of no effect.

A term of a transitional instrument that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the National Employment Standards will continue to have effect.

Division 3 (which contains other general provisions about how the FW Act applies in relation to transitional instruments) is also relevant to how the National Employment Standards apply in relation to employees to whom transitional instruments apply.

References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).

If there is a dispute about the application of this item which must be resolved by the FWC in accordance with item 26, the FWC may compare the entitlements which are in dispute:

on a ‘line‑by‑line’ basis, comparing individual terms; or

on a ‘like‑by‑like’ basis, comparing entitlements according to particular subject areas; or

using any combination of the above approaches the FWC sees fit.

Subitem (1) does not affect a term of a transitional instrument that is permitted by a provision of the National Employment Standards as it has effect under item 24.

The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a transitional instrument are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards.

The following provisions of the National Employment Standards have effect, on and after the FW (safety net provisions) commencement day, as if a reference to a modern award or an enterprise agreement included a reference to a transitional instrument:

section 63 (which allows terms dealing with averaging of hours of work);

section 93 (which allows terms dealing with cashing out and taking paid annual leave);

section 101 (which allows terms dealing with cashing out paid personal/carer’s leave);

subsection 107(5) (which allows terms dealing with evidence requirements for paid personal/carer’s leave etc.);

subsection 115(3) (which allows terms dealing with substitution of public holidays);

section 118 (which allows terms dealing with an employee giving notice to terminate his or her employment);

subsections 121(2) and (3) (which allow terms specifying situations in which the redundancy pay entitlement under section 119 does not apply);

section 126 (which allows terms providing for school‑based apprentices and trainees to be paid loadings in lieu).

If:

a transitional instrument includes terms referred to in subsection (1) of section 93 or 101 of the National Employment Standards; but

the terms do not include the requirements referred to in subsection (2) of that section;

If:

a transitional instrument applies to an employee; and

the employee is a shift worker as defined in section 228 of the WR Act;

This item has effect subject to subsection 87(4) of the FW Act.

On application by a person covered by a transitional instrument, the FWC may make a determination varying the transitional instrument:

to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards; or

to make the instrument operate effectively with the National Employment Standards.

A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.

While an agreement‑based transitional instrument of any of the following kinds applies to an employee, or to an employer or other person in relation to the employee:

a workplace agreement;

a workplace determination;

a preserved State agreement;

an AWA;

a pre‑reform AWA;

However, a modern award can continue to cover the employee while the agreement‑based transitional instrument continues to apply.

This subitem has effect subject to item 13 of Schedule 9 (which requires that the base rate of pay under an agreement‑based transitional instrument must not be less than the relevant modern award rate).

If:

an agreement‑based transitional instrument of any of the following kinds:

a pre‑reform certified agreement;

an old IR agreement;

a section 170MX award; and

a modern award;

This subitem has effect subject to item 13 of Schedule 9 (which requires that the base rate of pay under an agreement‑based transitional instrument must not be less than the relevant modern award rate).

This item applies if, at a particular time:

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

outworker terms (within the meaning of the FW Act) in a modern award would, but for the transitional instrument, apply to the employee.

Despite item 28 and despite any terms of the agreement‑based transitional instrument that are detrimental to the employee in any respect when compared to the terms of the modern award, the outworker terms apply at that time to the following persons:

the employee;

the employer;

each employee organisation to which the modern award applies.

To avoid doubt, to the extent to which terms of a modern award apply to an employee, an employer or an employee organisation because of subitem (2), the modern award applies to the employee, employer or organisation.

If a modern award (other than the miscellaneous modern award) that covers an employee, or an employer or other person in relation to the employee, comes into operation, then an award‑based transitional instrument ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.

A modern award cannot be expressed to cover an employee who is covered by a transitional instrument that is an enterprise instrument or a State reference public sector transitional award (see subsections 143(8) and (10) of the FW Act).

While an award‑based transitional instrument that covers an employee, or an employer or other person in relation to the employee, is in operation, the miscellaneous modern award does not cover the employee, or the employer or other person in relation to the employee.

If a modern award (other than the miscellaneous modern award) that contains outworker terms that cover an outworker entity comes into operation, then outworker terms in an award‑based transitional instrument cease to cover (and can never again cover) the outworker entity.

While outworker terms in an award‑based transitional instrument that is in operation cover an outworker entity, any outworker terms in the miscellaneous modern award do not cover the outworker entity.

Outworker terms in an award‑based transitional instrument are terms that would be outworker terms as defined in the FW Act if they were in a modern award.

While an individual agreement‑based transitional instrument applies to an employee, or to an employer in relation to the employee, an enterprise agreement or workplace determination (under the FW Act) does not apply to the employee, or the employer in relation to the employee.

If an enterprise agreement or workplace determination (under the FW Act) starts to apply to an employee, or an employer or other person in relation to the employee, then a collective agreement‑based transitional instrument ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.

The fact that a collective agreement‑based transitional instrument applies to employees does not prevent those employees and their employer from replacing that transitional instrument at any time with an enterprise agreement, regardless of whether the transitional instrument has passed its nominal expiry date.

Industrial action must not be taken before the nominal expiry date of an agreement‑based transitional instrument, even if it is being replaced by an enterprise agreement (see item 4 of Schedule 13).

an award‑based transitional instrument ceases to apply to the employee, and the employer or other person in relation to the employee; but

the award‑based transitional instrument can (subject to the other provisions of this Part) continue to cover the employee, and the employer or other person in relation to the employee.

Subject to the other provisions of this Part, the award‑based transitional instrument can again start to apply to the employee, and the employer or other person in relation to the employee, if the enterprise agreement or workplace determination (under the FW Act) ceases to apply to the employee.

This item applies if, at a particular time:

an enterprise agreement or workplace determination (under the FW Act) applies to an employer; and

an award‑based transitional instrument covers the employer (whether the transitional instrument covers the employer in the employer’s capacity as an employer or an outworker entity); and

the transitional instrument includes one or more designated outworker terms.

Despite item 31, the designated outworker terms of the award‑based transitional instrument apply at that time to the following:

the employer;

each employee who is both:

a person to whom the enterprise agreement or workplace determination applies; and

a person who is covered by the transitional instrument;

each employee organisation that is covered by the transitional instrument.

To avoid doubt:

award‑based transitional instruments are taken to be instruments to which the definition of designated outworker term in section 12 of the FW Act applies; and

designated outworker terms of an award‑based transitional instrument can apply to an employer under subitem (2) even if none of the employees of the employer is an outworker; and

to the extent to which designated outworker terms of an award‑based transitional instrument apply to an employer, an employee or an employee organisation because of subitem (2), the transitional instrument applies to the employer, employee or organisation.

An employee is not an award/agreement free employee for the purposes of the FW Act if a transitional instrument applies to the employee.

The regulations may make provision in relation to any of the following in relation to employees to whom transitional instruments apply:

what is the base rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);

what is the full rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);

whether such an employee is a pieceworker for the purposes of the FW Act.

For the purposes of the FW Act, the ordinary hours of work of an employee to whom a transitional instrument applies are to be determined in accordance with this item.

If a transitional instrument that applies to the employee specifies, or provides for the determination of, the employee’s ordinary hours of work, the employee’s ordinary hours of work are as specified in, or determined in accordance with, that instrument.

If subitem (2) does not apply, the employee’s ordinary hours of work are the hours agreed by the employee and his or her employer as the employee’s ordinary hours of work.

If subitem (2) does not apply but there is no agreement under subitem (3), the ordinary hours of work of the employee in a week are:

if the employee is a full time employee—38 hours; or

if the employee is not a full‑time employee—the lesser of:

38 hours; and

the employee’s usual weekly hours of work.

If:

subitem (2) does not apply; and

the employee is not a full‑time employee; and

there is an agreement under subitem (3) between the employee and his or her employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work;

38 hours; and

the employee’s usual weekly hours of work.

For an employee who is not a full‑time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of subitems (4) and (5).

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.

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 and a transitional APCS.

For provisions about transitional APCSs, see Schedule 9.

the reference in subparagraph 382(b)(i) and paragraph 389(1)(b) of that Act to a modern award included a reference to an award‑based transitional instrument; and

the reference in subparagraph 382(b)(ii) and paragraph 389(1)(b) of that Act to an enterprise agreement included a reference to an agreement‑based transitional instrument.

This item applies if a termination of an agreement‑based transitional instrument (the terminated instrument) takes effect during the bridging period in either of the following circumstances:

the instrument is a preserved collective State agreement or a pre‑reform certified agreement that is terminated by FWA as provided for by item 16 because of an application made by an employer covered by the agreement;

the instrument is an individual agreement‑based transitional instrument that terminates under item 19 because FWA approves a termination of the instrument by an employer covered by the instrument.

Any redundancy provision that was in the terminated instrument continues to apply to any person to whom the terminated instrument applied immediately before the termination took effect, as if the terminated instrument had continued operating.

For how long the redundancy provision continues to apply, see subitem (6).

A redundancy provision that continues to apply to a person under subitem (2) is taken, for the purpose of this Act, to be a transitional instrument of the same kind as the terminated instrument. However, this does not apply for the purpose of:

the provisions of Parts 2, 3, 4 and 5 of this Schedule, other than subitems 20(2) and (3) and item 23; or

any other provisions prescribed by the regulations.

Subject to subitem (5), a redundancy provision that continues to apply to a person under subitem (2) prevails over any other redundancy provision included in any other instrument that would otherwise apply (even if the provisions in that other instrument might be more beneficial to the employee).

For how long the redundancy provision continues to apply, see subitem (6).

However, if:

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

a redundancy provision that continues to apply to an employee under subitem (2) is detrimental to the employee, in any respect, when compared to the scheme in the modern award;

A redundancy provision continues under subitem (2) to apply to a person, in relation to an employee to whom the provision applies, until the earliest of the following:

the end of the period of 24 months from the time the termination took effect;

the time when the employee ceases to be employed by the employer (otherwise than in circumstances covered by the provision);

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

In this item:

an award‑based transitional instrument; or

a collective agreement; or

a collective preserved State agreement; or

a pre‑reform certified agreement; or

an old IR agreement.

a provision relating to redundancy pay in relation to a termination of employment;

a provision that is incidental to a provision relating to redundancy pay in relation to a termination of employment;

a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment;

This item applies if:

FWA makes a decision (a termination decision) of either of the following kinds:

a decision to terminate a transitional instrument as referred to in paragraph 38(1)(a);

a decision to approve a termination of a transitional instrument as referred to in paragraph 38(1)(b); and

when the termination takes effect, one or more redundancy provisions in the instrument will continue to apply to persons (affected persons) in accordance with item 38.

If the transitional instrument is a preserved collective State agreement or a pre‑reform certified agreement:

the termination decision must:

identify the redundancy provision or the redundancy provisions; and

state that the provision or provisions will continue to apply to the affected persons; and

specify the date that is 24 months after the time when the termination takes effect; and

state that the provision or provisions will continue to apply until that date, or an earlier date, in accordance with subitem 38(6); and

FWA must give a copy of the termination decision to each affected person that is:

an employer; or

an employee organisation.

An employer that has, under subitem (2), received a copy of a termination decision must take reasonable steps to ensure that all employees to whom the instrument applied immediately before the termination takes effect are given a copy of the decision within 21 days of the employer receiving a copy of the decision.

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

If the transitional instrument is an individual agreement‑based transitional instrument, the termination decision must:

identify the redundancy provision or the redundancy provisions; and

state that the provision or provisions will continue to apply to the affected persons; and

specify the date that is 24 months after the time when the termination takes effect; and

state that the provision or provisions will continue to apply until that date, or an earlier date, in accordance with subitem 38(6).

This item applies if, immediately before the WR Act repeal day, redundancy provisions that were in a WR Act instrument (the terminated instrument) that was terminated before that day (the actual termination) were continuing to bind persons under any of the following provisions:

section 399A of the WR Act;

section 399A of the pre‑transition Act (within the meaning of Schedule 7A to the WR Act);

clause 6A of Schedule 7 to the WR Act;

clause 20A of Schedule 7 to the WR Act;

clause 21A of Schedule 8 to the WR Act;

clause 21D of Schedule 8 to the WR Act.

Item 38 applies as if:

the redundancy provisions were a transitional instrument of the same kind as the terminated instrument; and

a termination of that transitional instrument took effect on the WR Act repeal day as referred to in subitem 38(1); and

the reference in paragraph 38(6)(a) to 24 months were instead a reference to the unexpired part of the period of 24 months that started on the actual termination.

Item 39 does not apply to the termination referred to in paragraph (2)(b).

On the Division 2B referral commencement, FWA is taken to have made an order (the transitional pay equity order) under this item.

The transitional pay equity order applies to an employer if:

a modern award applies to the employer on or after the Division 2B referral commencement; and

the employer is prescribed by the regulations for the purposes of this paragraph, or is included in a class of employers prescribed by the regulations for the purposes of this paragraph; and

immediately before the Division 2B referral commencement, a transitional award (the relevant transitional award) applied to the employer.

Transitional award has the same meaning as in Schedule 6 to the WR Act. Schedule 6 is continued in operation by Schedule 20 to this Act.

An employer must not be prescribed by regulations for the purposes of paragraph (2)(b) unless:

an order, decision or determination of a State industrial body (the source pay equity order) would have applied to the employer if the relevant transitional award had not applied to the employer; and

the source pay equity order satisfies subitem (4).

A source pay equity order satisfies this subitem if it:

was made before 15 September 2009; and

provided for increases in rates of pay payable to a particular class of employees (whether the increases were expressed to take effect before, on or after the Division 2B referral commencement); and

was made wholly or partly on the ground of work value, pay equity or equal remuneration (however described); and

is prescribed by the regulations for the purposes of this paragraph.

If the transitional pay equity order applies to an employer, the employer is required to pay to each affected employee of the employer a base rate of pay, in respect of a period, that is not less than the base rate of pay that the employee would have been entitled to be paid if the source pay equity order had applied to the employer in respect of the period.

An employee of an employer to which this item applies is an affected employee of the employer if the employee performs work of a kind, at a classification level (however described), in relation to which the source pay equity order determines a base rate of pay.

The transitional pay equity order takes effect in relation to the employer immediately after the modern award begins to apply to the employer.

A term of a modern award is of no effect to the extent that:

an employee is entitled to be paid by an employer a base rate of pay under the transitional pay equity order in respect of a particular period; and

the term of the modern award requires the employer to pay a base rate of pay, in respect of that period, that is less than the base rate of pay referred to in paragraph (a).

However, to avoid doubt, a term of a modern award continues to have effect so far as it requires an employer to pay a base rate of pay, in respect of a period, that is equal to or more than the base rate of pay referred to in paragraph (8)(a).

A Division 2B State instrument is a Division 2B State award (see item 3) or a Division 2B State employment agreement (see item 5).

Subject to subitem (3), a State award is an instrument in relation to which the following conditions are satisfied:

the instrument regulates terms and conditions of employment;

the instrument was made under a State industrial law by a State industrial body;

the instrument is referred to in that law as an award.

This definition does not apply to a reference in a provision of this Act to a State award if the provision expressly refers to the meaning that was given by the WR Act.

The regulations may provide that an instrument of a specified kind:

is a State award; or

is not a State award.

Subject to subitem (5), a State employment agreement is:

an agreement in relation to which the following conditions are satisfied:

the agreement is between an employer and one or more employees of the employer, or between an employer and an association of employees registered under a State industrial law;

the agreement determines terms and conditions of employment of one or more employees of the employer;

the agreement was made under a State industrial law; or

a determination in relation to which the following conditions are satisfied:

the determination determines terms and conditions of employment;

the determination was made under a State industrial law by a State industrial body;

the determination was made in a situation in which parties who were negotiating for the making of an agreement of a kind described in paragraph (a) had not been able to reach an agreement;

the purpose of the determination was to resolve the matters that were at issue in those negotiations.

This definition does not apply to a reference in a provision of this Act to a State employment agreement if the provision expressly refers to the meaning that was given by the WR Act.

The regulations may provide that an instrument of a specified kind:

is a State employment agreement; or

is not a State employment agreement.

A State employment agreement is a collective State employment agreement unless:

it is an agreement of a kind that, under the relevant State industrial law, could only be entered into by a single employee and a single employer; or

the agreement is of a kind prescribed by the regulations for the purpose of this paragraph.

A State employment agreement referred to in paragraph (6)(a) or (b) is an individual State employment agreement.

If, immediately before the Division 2B referral commencement:

a State award (the source award) was in operation under a State industrial law of a Division 2B referring State (the source State); and

the source award covered (however described in the source award or a relevant law of the source State) employers and employees who become Division 2B State reference employers and Division 2B State reference employees on the Division 2B referral commencement (whether or not the source award also covered other persons);

A Division 2B State award is a notional federal instrument derived from the source award.

In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State awards:

Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process);

Schedule 11 (which deals with transfer of business).

Subject to this Schedule, the Division 2B State award is taken to include the same terms as were in the source award immediately before the Division 2B referral commencement.

For the meanings of Division 2B referral commencement, Division 2B referring State, Division 2B State reference employee and Division 2B State reference employer, see items 2 and 2A of Schedule 3.

If the terms of the source award were affected by an order, decision or determination of a State industrial body or a court of the source State that was in operation immediately before the Division 2B referral commencement, the terms of the Division 2B State award are taken to be similarly affected by the terms of that order, decision or determination.

A Division 2B State award covers the same employees, employers, outworker entities and any other persons that the source award covered (however described in the award or a relevant law of the source State) immediately before the Division 2B referral commencement.

The expression covers is used to indicate the range of employees, employers etc. to whom the Division 2B State award potentially applies (see subitem (5)). The employees, employers etc. who are within this range will depend on the terms of the award, and on any relevant provisions of the law of the source State.

The Division 2B State award also covers any employees who become employed by an employer on or after the Division 2B referral commencement, and who would have been covered by the source award if they had become so employed immediately before that commencement.

However, the Division 2B State award does not cover:

any employees, employers or outworker entities that are not Division 2B State reference employees, Division 2B State reference employers or Division 2B State reference outworker entities; or

any employees, employers or outworker entities that are covered by an award‑based transitional instrument.

If:

after the Division 2B referral commencement, a person (the employer) starts to employ employees to do work of a kind that was regulated by the source award immediately before that commencement; and

the employer did not employ employees to do that kind of work immediately before that commencement;

the employer;

employees of the employer;

any other persons, in relation to the employer or employees of the employer.

A Division 2B State award applies to the same employees, employers, outworker entities and any other persons that the Division 2B State award covers as would have been required by the law of the source State to comply with terms of the source award, or entitled under the law of the source State to enforce terms of the source award, if:

the State had not been a referring State; and

the law of the source State had continued to apply.

The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of the Division 2B State award.

The Division 2B State award does not apply to any employers, employees or other persons that it does not cover, whether because of subitem (3) or (4) or otherwise.

However, a Division 2B State award does not apply to an employee (or to 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 50 deals with the application of section 329 of the FW Act to Division 2B State awards.

This item has effect subject to:

the instrument interaction rules (see item 11); and

the termination of Division 2B State instruments as referred to in item 18; and

Division 2 of Part 5 of this Schedule (which deals with interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations); and

Schedule 11 (which deals with transfer of business).

References in this item to the law of a State are references to the law of the State as in force immediately before the Division 2B referral commencement.

If, immediately before the Division 2B referral commencement:

a State employment agreement (the source agreement) was in operation under a State industrial law of a Division 2B referring State (the source State); and

the source agreement covered (however described in the source agreement or a relevant law of the source State) employers and employees who become Division 2B State referral employers and Division 2B State referral employees on the Division 2B referral commencement (whether or not the source agreement also covered other persons);

A Division 2B State employment agreement is a notional federal instrument derived from the source agreement.

In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State employment agreements:

Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process);

Schedule 11 (which deals with transfer of business).

For the meanings of Division 2B referral commencement, Division 2B referring State, Division 2B State reference employee and Division 2B State reference employer, see items 2 and 2A of Schedule 3.

Subject to this Schedule, the Division 2B State employment agreement is taken to include the same terms as were in the source agreement immediately before the Division 2B referral commencement.

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

a State employment agreement (the source agreement) comes into operation under a State industrial law of a Division 2B referring State (the source State); and

the source agreement covers (however described in the source agreement or a relevant law of the source State) employers and employees who are Division 2B State referral employers and Division 2B State referral employees when the source agreement comes into operation (whether or not the source agreement also covers other persons);

A Division 2B State employment agreement is a notional federal instrument derived from the source agreement.

There is limited scope for State employment agreements that cover Division 2B State referral employers and employees to come into operation on or after the Division 2B referral commencement: see Part 6 of this Schedule.

In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State employment agreements:

Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process);

Schedule 11 (which deals with transfer of business).

Subject to this Schedule, the Division 2B State employment agreement is taken to include the same terms as were in the source agreement when it came into operation.

If the source agreement in relation to a Division 2B State employment agreement is a collective State employment agreement, the Division 2B State employment agreement is a collective Division 2B State employment agreement.

If the source agreement in relation to a Division 2B State employment agreement is an individual State employment agreement, the Division 2B State employment agreement is an individual Division 2B State employment agreement.

A Division 2B State employment agreement covers the same employees, employers and any other persons that the source agreement covered (however described in the agreement or a relevant law of the source State) immediately before the Division 2B State employment agreement came into operation.

The expression covers is used to indicate the range of employees, employers etc. to whom the Division 2B State employment agreement potentially applies (see subitem (4)). The employees, employers etc. who are within this range will depend on the terms of the agreement, and on any relevant provisions of the law of the source State.

The Division 2B State employment agreement also covers any employees who become employed by an employer on or after the time when the agreement came into operation, and who would have been covered by the source agreement if they had become so employed immediately before that time.

However, the Division 2B State employment agreement does not cover:

any employees or employers that are not Division 2B State reference employees or Division 2B State reference employers; or

any employees or employers that are covered by an award‑based transitional instrument.

A Division 2B State employment agreement applies to the same employees, employers and any other persons that the Division 2B State employment agreement covers as would have been required by the law of the source State to comply with terms of the source agreement, or entitled under the law of the source State to enforce terms of the source agreement, if:

the source State had not been a referring State; and

the law of the source State had continued to apply.

The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of the Division 2B State employment agreement.

The Division 2B State employment agreement does not apply to any employers, employees or other persons that it does not cover, whether because of subitem (3) or otherwise.

This item has effect subject to:

the instrument interaction rules (see item 11); and

the termination of Division 2B State instruments as referred to in item 18; and

Division 2 of Part 5 of this Schedule (which deals with interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations); and

Schedule 11 (which deals with transfer of business).

References in this item to the law of a State are references to the law of the State as in force immediately before the Division 2B referral commencement.

If the source award for a Division 2B State award includes a term that provides for disputes relating to matters arising under the award to be settled by:

a State industrial body; or

a person who is independent of the employers, employees or organisations covered by the source award;

Each Division 2B State award is taken to include the model term that is prescribed by the regulations for dealing with disputes relating to matters arising under Division 2B State awards.

This subitem applies whether or not the source award included a term as mentioned in subitem (1).

The model term does not apply to disputes about matters arising under the source award before the Division 2B referral commencement.

The model term, as taken to be included in a Division 2B State award:

cannot be varied; and

cannot be removed from the award.

This item applies if the source agreement for a Division 2B State employment agreement includes a term that provides for disputes relating to matters arising under the agreement to be settled by:

a State industrial body; or

a person who is independent of the employers, employees or organisations covered by the source agreement.

Item 13 of this Schedule does not apply in relation to the term.

Item 13 would otherwise result in references in the term to a State industrial body having effect as if they were references to the FWC.

However, if the term provides for disputes relating to matters arising under the source agreement to be settled by a State industrial body, then, despite anything in the source agreement or a law of the source State:

the State industrial body may settle, or decline to settle, such a dispute; and

the FWC may settle such a dispute if the State industrial body:

ceases to exist; or

declines to settle the dispute.

The FWC must, on application in accordance with subitem (4), vary the term in accordance with the application.

For the purpose of subitem (3), an application must be made:

by an employer to which the Division 2B State employment agreement applies, or by an organisation that is entitled to represent the industrial interests of such an employer, with the consent of:

one or more employees to whom the agreement applies; or

an organisation that is entitled to represent the industrial interests of one or more such employees; or

by an employee to whom the Division 2B State employment agreement applies, or by an organisation that is entitled to represent the industrial interests of such an employee, with the consent of:

an employer to which the Division 2B State employment agreement applies; or

an organisation that is entitled to represent the industrial interests of such an employer.

Subdivision B of Division 2 of Part 6‑2 of the FW Act applies (including for the purpose of section 595 of the FW Act) as follows:

the Subdivision applies in relation to the model term that is taken by item 7 to be included in a Division 2B State award in the same way as the Subdivision applies in relation to a term in a modern award that provides a procedure for dealing with disputes;

the Subdivision applies in relation to a term to which item 8 applies that is included in a Division 2B State employment agreement in the same way as the Subdivision applies in relation to a term in an enterprise agreement that provides a procedure for dealing with disputes.

The reference in subsections 739(5) and 740(4) of the FW Act to a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties, is taken to include a reference to a decision that is inconsistent with a Division 2B State instrument that applies to the parties.

The instrument content rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State instrument, as if:

the rules were provisions of a law of the Commonwealth; and

any references in the rules to State awards or State employment agreements (however described in the rules) were instead (respectively) references to Division 2B State awards or Division 2B State employment agreements; and

any other modifications of those rules prescribed by the regulations were made.

Instrument content rules, in relation to a State, are provisions of a law of the State of any of the following kinds:

provisions about what may, or must, be included in an instrument;

provisions to the effect that a particular term of an instrument is of no effect (however described):

either completely or to a limited extent; and

either permanently or for a limited period;

provisions to the effect that a particular term is taken to be included in an instrument.

The instrument interaction rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State instrument, as if:

the rules were provisions of a law of the Commonwealth; and

any references in the rules to State awards or State employment agreements (however described in the rules) were instead (respectively) references to Division 2B State awards or Division 2B State employment agreements; and

any other modifications of those rules prescribed by the regulations were made.

Instrument interaction rules, in relation to a State, are provisions of a law of the State, the effect of which is that:

one instrument has priority over, or excludes, another instrument:

either completely or to a particular extent; and

either permanently or for a particular period; or

one instrument ceases to operate because of another instrument:

either completely or to a particular extent; and

either permanently or for a particular period.

The outworker interaction rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State award, as if:

the rules were provisions of a law of the Commonwealth; and

any references in the rules to State awards (however described in the rules) were instead references to Division 2B State awards; and

any other modifications of those rules prescribed by the regulations were made.

Outworker interaction rules, in relation to a State, are provisions of a law of the State, the effect of which is that:

a State award prevails over, or excludes, a law of the State relating to outworkers; or

a State award has effect subject to a law of the State relating to outworkers.

Subject to subitem (2), if a term of a Division 2B State instrument is expressed to confer a power or function on a State industrial body, that term has effect as if references in it to the body were instead references to the FWC.

If a term of a Division 2B State instrument is expressed to confer a power or function on the registrar, or a deputy registrar, of a State industrial body, that term has effect on and after the Division 2B referral commencement as if references in it to the registrar or a deputy registrar were instead references to the General Manager of the FWC.

This item has effect subject to:

a contrary intention in this Act; and

the regulations.

A Division 2B State award will be taken not to include a term from the source award that provides for the settlement of disputes relating to matters arising under the award: see item 7.

This item does not apply to a term of a Division 2B State employment agreement that provides for the settlement of disputes relating to matters arising under the agreement: see item 8.

Subitem (2) applies for the purpose of determining the entitlements of a Division 2B State reference employee under a Division 2B State instrument (other than an entitlement to leave of a kind to which item 15 applies).

Service of the employee with an employer before the Division 2B referral commencement that counted for the purpose of the application to the employee of the source award or source agreement also counts as service of the employee with the employer for the purpose of the application to the employee of the Division 2B State instrument.

If, before the Division 2B referral commencement, the employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service, subitem (2) does not result in that period of service with the employer being counted again when calculating the employee’s entitlements of that kind under the Division 2B State instrument.

To avoid doubt, subitem (3) does not require an employee to serve any initial qualifying period of service for long service leave again.

For how the kinds of matters covered by this item and items 15 and 16 are dealt with in relation to entitlements under the National Employment Standards, see Division 2 of Part 3 of Schedule 4.

This item applies to leave of the following kinds:

annual leave (however described) that accrues to an employee;

personal leave or carer’s leave (however described) that accrues to an employee.

If a Division 2B referral employee to whom a Division 2B State instrument applies had, immediately before the Division 2B referral commencement, an accrued entitlement to an amount of leave to which this item applies (whether the leave accrued under the source award or source agreement, or under a State industrial law), the accrued leave is taken to have accrued under the Division 2B State instrument.

If a Division 2B State reference employee was, immediately before the Division 2B referral commencement, taking a period of leave under the source award or source agreement, the employee is entitled to continue on that leave under the Division 2B State instrument for the remainder of the period.

If a Division 2B State reference employee has, before the Division 2B referral commencement, taken a step that the employee is required to take so that the employee can, on or after the Division 2B referral commencement, take a period of leave under the source award or source agreement, the employee is taken to have taken the step under the Division 2B State instrument.

The regulations may deal with other matters relating to how a Division 2B State instrument applies to leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken by a Division 2B State reference employee under the source award or source agreement.

If a Division 2B State instrument terminates, or ceases to apply in relation to a person, that does not affect:

any right or liability that a person acquired, accrued or incurred before the instrument terminated or ceased to apply; 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 Division 2B State instrument had not terminated or ceased to apply.

This item has effect subject to a contrary intention in this Act or in the FW Act.

A Division 2B State instrument cannot be varied except under:

a provision of this Part or the regulations; or

item 8 (which deals with terms about disputes relating to matters arising under Division 2B State employment agreements); or

item 40 (which deals with resolving difficulties with the interaction between Division 2B State instruments and the National Employment Standards); or

Part 6 of this Schedule (which deals with ongoing operation of State laws for transitional purposes); or

Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process); or

item 20 of Schedule 9 (which deals with variation of Division 2B State awards in annual wage reviews); or

Schedule 11 (which deals with transfer of business).

A Division 2B State instrument cannot be terminated (or otherwise brought to an end) except under:

a provision of this Part or the regulations; or

Part 6 of this Schedule; or

Division 2 of Part 2 of Schedule 6; or

Schedule 11.

On application by a person covered by a Division 2B State instrument, the FWC may make a determination varying the instrument:

to remove an ambiguity or uncertainty in the instrument; or

if the instrument is a Division 2B State employment agreement—to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or

to remove terms that are inconsistent with Part 3‑1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part.

For variation of a Division 2B State instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 40.

A variation of a Division 2B State instrument operates from the day specified in the determination, which may be a day before the determination is made.

This item applies if a Division 2B State instrument is referred to the FWC under section 46PW of the Australian Human Rights Commission Act 1986 (which deals with discriminatory industrial instruments).

If the instrument is a Division 2B State award, section 161 of the FW Act applies in relation to the referral of the instrument as if the instrument were a modern award.

If the instrument is a Division 2B State employment agreement, section 218 of the FW Act applies in relation to the referral of the instrument as if the instrument were an enterprise agreement.

A Division 2B State award terminates at the end of 12 months after the Division 2B referral commencement.

A term of a Division 2B State award that provides for the award to terminate before the end of that 12 month period is of no effect.

This item does not apply to a Division 2B enterprise award.

Schedule 6 (modern enterprise awards) applies to Division 2B enterprise awards.

Subdivision D of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective Division 2B State employment agreement as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement.

To avoid doubt, subsection 615A(3) of the FW Act does not apply in relation to a collective Division 2B State employment agreement.

The employee and employer covered by an individual Division 2B State employment agreement (the Division 2B agreement) may make a written agreement (a termination agreement) to terminate the Division 2B agreement in accordance with the following requirements:

the termination agreement must be signed by the employee and the employer;

if the employee is under 18, it must also be signed by a parent or guardian of the employee;

the signatures must be witnessed.

The termination has no effect unless it has been approved by the FWC.

The employer or employee may apply to the FWC for approval of the termination agreement. The application must be made:

within 14 days after the termination agreement was made; or

if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

If an application for the FWC to approve the termination agreement is made under subitem (3), the FWC must approve the termination of the Division 2B agreement if:

the FWC is satisfied that the requirements of subitem (1) have been complied with; and

the FWC is satisfied that there are no other reasonable grounds for believing that the employee has not agreed to the termination.

If the termination is approved under subitem (4), the termination operates from the day specified in the decision to approve the termination.

This item provides for the making of an instrument (a conditional termination) that will have the effect of terminating an individual Division 2B State employment agreement (the Division 2B agreement) if:

an enterprise agreement (the proposed enterprise agreement) is made that covers the employee and the employer; and

the proposed enterprise agreement comes into operation.

If the Division 2B agreement has not passed its nominal expiry date, the conditional termination must be a written agreement signed by the employer and the employee. The signatures must be witnessed.

If the Division 2B agreement has passed its nominal expiry date, the conditional termination must be in writing and signed either by the employee or the employer. The signature must be witnessed.

If the conditional termination is signed by the employee, and the employee is under 18, it must also be signed by a parent or guardian of the employee.

Any other requirements of the regulations relating to the form, content or making of the conditional termination must also be complied with.

The employer must give the employee a copy of the conditional termination if:

the conditional termination is an agreement signed by the employee and the employer in the circumstances covered by subitem (2); or

the conditional termination is signed by the employer in the circumstances covered by subitem (3).

For compliance with this obligation, see subitem 4B(1) of Schedule 16.

Failure to comply with this obligation does not affect the operation of subitem (8).

The conditional termination must accompany any application to the FWC for approval of the proposed enterprise agreement under section 185 of the FW Act.

For compliance with this obligation, see subitem 4B(2) of Schedule 16.

Failure to comply with this obligation does not affect the operation of subitem (8), or the validity of an approval by the FWC of the proposed enterprise agreement.

If the requirements of subitems (2) to (5) have been complied with in relation to the conditional termination, the Division 2B agreement terminates when the proposed enterprise agreement comes into operation.

This item applies to an employer or employee:

to whom an individual Division 2B State employment agreement (the Division 2B agreement) that has passed its nominal expiry date applies; and

who wants to terminate the Division 2B agreement.

The employer or employee may:

make a written declaration that identifies the Division 2B agreement and that states that the employer or employee wants to terminate the agreement; and

apply to the FWC for the approval of the termination.

The employer or employee cannot make an application as mentioned in paragraph (2)(b) unless, at least 14 days before the day on which the application is made, the employer or employee gives the other of them a notice complying with the following requirements:

the notice must identify the Division 2B agreement;

the notice must state that the employer or employee intends to apply to the FWC for approval of the termination of the agreement;

the notice must state that, if the FWC approves the termination, the agreement will terminate on the 90th day after the day on which the FWC makes the approval decision;

the notice must comply with any other requirements of the regulations.

The FWC must approve the termination if the FWC is satisfied that:

the Division 2B agreement applies to the employer and the employee; and

the requirements of subitems (2) and (3) have been complied with.

If the FWC approves the termination, the Division 2B agreement terminates on the 90th day after the day on which the FWC makes the approval decision.

A Division 2B State employment agreement terminates at the end of the grace period for the agreement if the agreement has not already terminated before that time.

The grace period for a Division 2B State employment agreement 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 (11)(e)—the default period as so extended.

An employer covered by a Division 2B State employment agreement 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 a Division 2B State employment agreement; 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 a Division 2B State employment agreement, 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 Division 2B State employment agreement for a period of no more than 4 years if the FWC is satisfied that:

subitem (7), (8) or (9) 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; and

the proposed enterprise agreement will cover:

if the application relates to an individual Division 2B State employment agreement—the employee covered by the individual Division 2B State employment agreement; or

if the application relates to a collective Division 2B State employment agreement—the same, or substantially the same, group of employees as the Division 2B State employment agreement; and

bargaining for the proposed enterprise agreement is occurring.

This subitem applies if:

the application relates to an individual Division 2B State employment agreement; and

the employee covered by the agreement would be an award covered employee for the agreement under subitem (10) if the agreement were a collective Division 2B State employment agreement; and

it is likely that, as at the time the application is made, the employee would be better off overall if the agreement applied to the employee than if the relevant modern award referred to in that subitem applied to the employee.

This subitem applies if:

the application relates to a collective Division 2B State employment agreement; and

it is likely that, as at the time the application is made, the award covered employees for the agreement under subitem (10), 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 subitems (8) and (9), the award covered employees for a collective Division 2B State employment agreement 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 a collective Division 2B State employment agreement—the agreement.

Paragraph (10A)(b) applies subject to any order made under section 594 of the FW Act.

The FWC must not publish an individual Division 2B State employment agreement in relation to which an application under subitem (4) is made.

If:

an application is made under subitem (4) in relation to a Division 2B State employment agreement; 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.

the day on which the source agreement would nominally have expired under the relevant State industrial law of the source State; or

if that day falls after the end of a period of 3 years beginning on the Division 2B referral commencement—the last day of that 3 year period.

During the period of 12 months starting on the Division 2B referral commencement, FWA:

must consider whether any modern awards should be varied to include terms in relation to which the following conditions are satisfied:

the purpose of including the terms is to continue (in whole or in part) the effect of terms that are contained in a Division 2B State award, other than a Division 2B enterprise award;

the terms only relate to employees, employers or other persons covered by the Division 2B State award;

the terms deal with matters of a kind that are permitted by section 136 of the FW Act to be included in modern awards; and

may make one or more determinations varying modern awards to include such terms.

Terms may be included in a modern award in accordance with this item despite section 154 of the FW Act.

Terms included in a modern award in accordance with this item:

take effect at the end of 12 months after the Division 2B referral commencement; and

cease to have effect:

at the end of 5 years after the Division 2B referral commencement; or

if the terms are expressed to cease to have effect at an earlier time—at that earlier time.

During the period of 12 months starting on the Division 2B referral commencement, FWA:

must consider whether any orders should be made in relation to which the following conditions are satisfied:

the purpose of making the order is to continue (in whole or in part) the effect of terms relating to long service leave that are contained in a Division 2B State award, other than a Division 2B enterprise award;

the order only relates to employees, employers or other persons covered by the Division 2B State award; and

may make one or more such orders.

An order under subitem (1):

takes effect at the end of 12 months after the Division 2B referral commencement; and

ceases to have effect:

at the end of 5 years after the Division 2B referral commencement; or

if the order is expressed to cease to have effect at an earlier time—at that earlier time.

Paragraph 675(1)(a) of the FW Act has effect as if it also included a reference to an order under subitem (1).

To the extent that a term of a Division 2B State award, or of an enterprise agreement, is detrimental to an employee, in any respect, when compared to an order under subitem (1), the term of the award or agreement is of no effect.

A term of a Division 2B State award, or of an enterprise agreement, that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the order will continue to have effect.

The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a Division 2B State award or an enterprise agreement are, or are not, detrimental in any respect when compared to an order under subitem (1).

On the Division 2B referral commencement, FWA is taken to have made an order (the transitional pay equity order) under this item.

The transitional pay equity order applies to an employer if:

a Division 2B State award that applies to the employer terminates at a time (the termination time) after the Division 2B referral commencement; and

the base rate of pay payable immediately before the termination time to some or all of the employees to whom the Division 2B State award applied was determined in whole or part by, or in accordance with, an order, decision or determination (the source pay equity order) of a State industrial body that:

was made before 15 September 2009; and

provided for increases in rates of pay payable to a particular class of employees (whether the increases were expressed to take effect before, on or after the Division 2B referral commencement); and

was made wholly or partly on the ground of work value, pay equity or equal remuneration (however described); and

immediately after the termination time, a modern award applies to the employer.

After the Division 2B referral commencement, a source pay equity order may have effect either because of subitem 3(3) of this Schedule, or because the terms of the source pay equity order had been incorporated in the source award from which the Division 2B State award was derived.

If the transitional pay equity order applies to an employer, the employer is required to pay to each affected employee of the employer a base rate of pay, in respect of a period, that is not less than the base rate of pay that the employee would have been entitled to be paid under the Division 2B State award in respect of that period, assuming that:

the Division 2B State award had not terminated; and

the base rate of pay had continued to be determined in whole or part by, or in accordance with, the source pay equity order in respect of that period.

An employee of an employer to which this item applies is an affected employee of the employer if:

all of the following conditions are satisfied:

the employee was employed by the employer at the termination time;

the Division 2B State award applied to the employee at the termination time;

the employee’s base rate of pay under the Division 2B State award was determined in whole or part by, or in accordance with, the source pay equity order at the termination time; or

all of the following conditions are satisfied:

the employee becomes employed by the employer after the termination time;

a Division 2B State award would have applied to the employee if he or she had been employed by the employer immediately before the termination time;

the employee’s base rate of pay under the Division 2B State award would have been determined in whole or part by, or in accordance with, the source pay equity order at the termination time.

The transitional pay equity order takes effect in relation to the employer immediately after the modern award begins to apply to the employer.

A term of a modern award is of no effect to the extent that:

an employee is entitled to be paid by an employer a base rate of pay under the transitional pay equity order in respect of a particular period; and

the term of the modern award requires the employer to pay a base rate of pay, in respect of that period, that is less than the base rate of pay referred to in paragraph (a).

However, to avoid doubt, a term of a modern award continues to have effect so far as it requires an employer to pay a base rate of pay, in respect of a period, that is equal to or more than the base rate of pay referred to in paragraph (6)(a).

The termination of a Division 2B State award by item 21 is not intended to result in a reduction in the take‑home pay of employees or outworkers.

An employee’s or outworker’s take‑home pay is the pay an employee or outworker 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 reduction in take‑home pay to which this item applies if, and only if:

when a Division 2B State award terminates because of item 21, the employee becomes a person to whom a modern award applies; 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 termination of the Division 2B State award; and

the amount of the employee’s take‑home pay for working particular hours or for a particular quantity of work after the termination of the Division 2B State award is less than what would have been the employee’s take‑home pay for those hours or that quantity of work immediately before the termination; and

that reduction in the employee’s take‑home pay is attributable to the termination of the Division 2B State award.

An outworker who is not an employee suffers a reduction in take‑home pay to which this item applies if, and only if:

when a Division 2B State award terminates because of item 21, the outworker becomes a person to whom outworker terms in a modern award relate; and

the outworker is performing the same work as (or work that is similar to) the work he or she was performing immediately before the termination of the Division 2B State award; and

the amount of the outworker’s take‑home pay for working particular hours or for a particular quantity of work after the termination of the Division 2B State award is less than what would have been the outworker’s take‑home pay for those hours or that quantity of work immediately before the termination; and

that reduction in the outworker’s take‑home pay is attributable to the termination of the Division 2B State award.

If the FWC is satisfied that an employee, or a class of employees, to whom a modern award applies has suffered a reduction in take‑home pay to which item 31 applies, 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.

If the FWC is satisfied that an outworker, or a class of outworkers, to whom outworker terms in a modern award relate has suffered a reduction in take‑home pay to which item 31 applies, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the outworker or outworkers that the FWC considers appropriate to remedy the situation.

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

an employee or outworker who has suffered a reduction in take‑home pay to which item 31 applies; or

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

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

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, or an outworker or a class of outworkers, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees, or the same outworker or outworkers.

The FWC must not make a take‑home pay order under item 32 in relation to an employee or class of employees, or an outworker or a class of outworkers, if:

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

the FWC is satisfied that the employee or employees, or outworker or outworkers, 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 or outworker unless the employee or outworker has actually suffered a reduction in take‑home pay to which item 31 applies; and

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

subsection 675(2);

subsection 706(2).

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

To the extent that a term of a Division 2B State instrument is detrimental to an employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards, the term of the instrument is of no effect.

A term of a Division 2B State instrument that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the National Employment Standards will continue to have effect.

Division 3 (which contains other general provisions about how the FW Act applies in relation to Division 2B State instruments) is also relevant to how the National Employment Standards apply in relation to employees to whom Division 2B State instruments apply.

References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).

If there is a dispute about the application of this item which must be resolved by the FWC in accordance with item 40, the FWC may compare the entitlements which are in dispute:

on a ‘line‑by‑line’ basis, comparing individual terms; or

on a ‘like‑by‑like’ basis, comparing entitlements according to particular subject areas; or

using any combination of the above approaches the FWC sees fit.

Subitem (1) does not affect a term of a Division 2B State instrument that is permitted by a provision of the National Employment Standards as it has effect under item 38.

The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a Division 2B State instrument are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards.

The following provisions of the National Employment Standards have effect, on and after the Division 2B referral commencement, as if a reference to a modern award or an enterprise agreement included a reference to a Division 2B State instrument:

section 63 (which allows terms dealing with averaging of hours of work);

section 93 (which allows terms dealing with cashing out and taking paid annual leave);

section 101 (which allows terms dealing with cashing out paid personal/carer’s leave);

subsection 107(5) (which allows terms dealing with evidence requirements for paid personal/carer’s leave etc.);

subsection 115(3) (which allows terms dealing with substitution of public holidays);

section 118 (which allows terms dealing with an employee giving notice to terminate his or her employment);

subsections 121(2) and (3) (which allow terms specifying situations in which the redundancy pay entitlement under section 119 does not apply);

section 126 (which allows terms providing for school‑based apprentices and trainees to be paid loadings in lieu).

If:

a Division 2B State instrument includes terms referred to in subsection (1) of section 93 or 101 of the National Employment Standards; but

the terms do not include the requirements referred to in subsection (2) of that section;

If the employee qualifies for the shiftworker annual leave entitlement under those subsections, the employee will be entitled to 5 (rather than 4) weeks of paid annual leave.

On application by a person covered by a Division 2B State instrument, the FWC may make a determination varying the instrument:

to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards; or

to make the instrument operate effectively with the National Employment Standards.

A variation of a Division 2B State instrument operates from the day specified in the determination, which may be a day before the determination is made.

If a collective Division 2B State employment agreement and a modern award both apply to an employee, or to an employer or other person in relation to the employee, the Division 2B State employment agreement prevails over the modern award, to the extent of any inconsistency.

This subitem has effect subject to item 42 of this Schedule, and to item 17 of Schedule 9 (which requires that the base rate of pay under a Division 2B State employment agreement must not be less than the modern award rate).

While an individual Division 2B State employment agreement applies to an employee, or to an employer or other person in relation to an employee, a modern award does not apply to the employee, or to the employer or other person in relation to the employee.

However, a modern award can continue to cover the employee while the individual Division 2B State employment agreement continues to apply.

This subitem has effect subject to item 42 of this Schedule, and to item 17 of Schedule 9 (which requires that the base rate of pay under a Division 2B State employment agreement must not be less than the modern award rate).

This item applies if, at a particular time:

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

outworker terms (within the meaning of the FW Act) in a modern award would, but for the Division 2B State employment agreement, apply to the employee.

Despite item 41 and despite any terms of the Division 2B State employment agreement that are detrimental to the employee in any respect when compared to the terms of the modern award, the outworker terms apply at that time to the following persons:

the employee;

the employer;

each employee organisation to which the modern award applies.

To avoid doubt, to the extent to which terms of a modern award apply to an employee, an employer or an employee organisation because of subitem (2), the modern award applies to the employee, employer or organisation.

While a Division 2B State award that covers an employee, or an employer or other person in relation to the employee, is in operation, a modern award does not cover the employee, or the employer or other person in relation to the employee.

When the Division 2B State award terminates, a modern award will start to cover the employee, or the employer or other person in relation to the employee.

While a Division 2B State award that contains outworker terms that cover an outworker entity is in operation, outworker terms in a modern award do not cover the outworker entity.

When the Division 2B State award terminates, a modern award will start to cover the outworker entity.

Outworker terms in a Division 2B State award are terms that would be outworker terms as defined in the FW Act if they were in a modern award.

If an enterprise agreement or workplace determination (under the FW Act) starts to apply to an employee, or an employer or other person in relation to the employee, then a collective Division 2B State employment agreement ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.

The fact that a collective Division 2B State employment agreement applies to employees does not prevent those employees and their employer from replacing that agreement at any time with an enterprise agreement, regardless of whether the collective Division 2B State employment agreement has passed its nominal expiry date.

Industrial action must not be taken before the nominal expiry date of a collective Division 2B State employment agreement (see item 4 of Schedule 13).

While an individual Division 2B State employment agreement applies to an employee, or to an employer in relation to the employee, an enterprise agreement or workplace determination (under the FW Act) does not apply to the employee, or the employer in relation to the employee.

a Division 2B State award ceases to apply to the employee, and the employer or other person in relation to the employee; but

the Division 2B State award can (subject to the other provisions of this Part) continue to cover the employee, and the employer or other person in relation to the employee.

Subject to the other provisions of this Part, the Division 2B State award can again start to apply to the employee, and the employer or other person in relation to the employee, if the enterprise agreement or workplace determination (under the FW Act) ceases to apply to the employee.

This item applies if, at a particular time:

an enterprise agreement or workplace determination (under the FW Act) applies to an employer; and

a Division 2B State award covers the employer (whether the award covers the employer in the employer’s capacity as an employer or an outworker entity); and

the Division 2B State award includes one or more designated outworker terms.

Despite item 45, the designated outworker terms of the Division 2B State award apply at that time to the following:

the employer;

each employee who is both:

a person to whom the enterprise agreement or workplace determination applies; and

a person who is covered by the Division 2B State award;

each employee organisation that is covered by the Division 2B State award.

To avoid doubt:

Division 2B State awards are taken to be instruments to which the definition of designated outworker term in section 12 of the FW Act applies; and

designated outworker terms of a Division 2B State award can apply to an employer under subitem (2) even if none of the employees of the employer is an outworker; and

to the extent to which designated outworker terms of a Division 2B State award apply to an employer, an employee or an employee organisation because of subitem (2), the award applies to the employer, employee or organisation.

An employee is not an award/agreement free employee for the purposes of the FW Act if a Division 2B State instrument applies to the employee.

The regulations may make provision in relation to any of the following in relation to employees to whom Division 2B State instruments apply:

what is the base rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);

what is the full rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);

whether such an employee is a pieceworker for the purposes of the FW Act.

For the purposes of the FW Act, the ordinary hours of work of an employee to whom a Division 2B State instrument applies are to be determined in accordance with this item.

If a Division 2B State instrument that applies to the employee specifies, or provides for the determination of, the employee’s ordinary hours of work, the employee’s ordinary hours of work are as specified in, or determined in accordance with, that instrument.

If subitem (2) does not apply, the employee’s ordinary hours of work are the hours agreed by the employee and his or her employer as the employee’s ordinary hours of work.

If subitem (2) does not apply but there is no agreement under subitem (3), the ordinary hours of work of the employee in a week are:

if the employee is a full time employee—38 hours; or

if the employee is not a full‑time employee—the lesser of:

38 hours; and

the employee’s usual weekly hours of work.

If:

subitem (2) does not apply; and

the employee is not a full‑time employee; and

there is an agreement under subitem (3) between the employee and his or her employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work;

38 hours; and

the employee’s usual weekly hours of work.

For an employee who is not a full‑time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of subitems (4) and (5).

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.

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.

the reference in subparagraph 382(b)(i) and paragraph 389(1)(b) of that Act to a modern award included a reference to a Division 2B State award; and

the reference in subparagraph 382(b)(ii) and paragraph 389(1)(b) of that Act to an enterprise agreement included a reference to a Division 2B State employment agreement.

Subject to subitem (2), in this Part:

approve a State employment agreement; or

approve a variation or termination of a State employment agreement; or

vary or terminate a State employment agreement.

approve or certify (however described) the agreement, or the variation or termination, under a State industrial law; and

do any other things (for example, register the agreement) that are required to be done under that law after approval or certification in order for the agreement, or the variation or termination, to come into operation.

make a State award; or

vary or terminate a State award.

The regulations may provide that a certain proceeding:

is, or is not, an agreement appeal as defined in subitem (1); or

is, or is not, an agreement proceeding as defined in subitem (1); or

is, or is not, an award appeal as defined in subitem (1); or

is, or is not, an award proceeding as defined in subitem (1).

Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the commencement or completion of an award appeal in relation to which the following conditions are satisfied:

the decision appealed against was made before the Division 2B referral commencement in an award proceeding;

the decision was:

to vary, or not to vary, an award; or

to terminate, or not to terminate, an award.

The following (to the extent they relate to Division 2B State reference employees and Division 2B State reference employers) are not able to be commenced or completed on or after the Division 2B referral commencement:

award proceedings;

award appeals, if the appeal is against a decision to make, or not make, an award.

Subitem (1):

does not apply to the commencement of an award appeal more than 21 days after the day on which the decision appealed against was made; and

ceases to apply to an award appeal if the appeal has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.

Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the completion of an agreement proceeding that had commenced before the Division 2B referral commencement.

Agreement proceedings (to the extent they relate to Division 2B State reference employees and Division 2B State reference employers) are not able to be commenced on or after the Division 2B referral commencement.

Subitem (1) ceases to apply to an agreement proceeding if the proceeding has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.

Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the commencement or completion of an agreement appeal (whether the decision appealed against is or was made before, on or after the Division 2B referral commencement).

Subitem (1):

does not apply to the commencement of an agreement appeal more than 21 days after the day on which the decision appealed against was made; and

ceases to apply to an agreement appeal if the appeal has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.

Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law provides for when any of the following decisions (a State decision) come into operation:

a decision made in award appeal to which subitem 55(1) applies;

a decision made in an agreement proceeding to which subitem 56(1) applies;

a decision made in an agreement appeal to which subitem 57(1) applies.

If a State employment agreement comes into operation on or after the Division 2B referral commencement under a State industrial law of a Division 2B referring State, a Division 2B State employment agreement is taken to come into operation immediately afterwards: see item 5 of this Schedule.

Subject to subitems (3) and (4), if a State decision affects the source award or source agreement for a Division 2B State instrument, the Division 2B State instrument is taken to be affected by the State decision in the same way, and from the same time, as the source award or source agreement is affected by the State decision.

Subitem (2) does not apply to a State decision that affects the coverage terms of the source award or source agreement.

Any resulting alteration of an entitlement under the Division 2B State instrument takes effect only from the later of the day on which the State decision is made and the day on which the decision comes into operation.

Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law provides:

for when a State employment agreement comes into operation, if the State employment agreement was approved by a State industrial body before the Division 2B referral commencement, but the agreement had not yet come into operation by that commencement; or

for when a variation or termination of a State employment agreement comes into operation, if the variation or termination was approved or made by a State industrial body before the Division 2B referral commencement, but the variation or termination had not yet come into operation by that commencement.

If a State employment agreement comes into operation on or after the Division 2B referral commencement under a State industrial law of a Division 2B referring State, a Division 2B State employment agreement is taken to come into operation immediately afterwards: see item 5 of this Schedule.

Subject to subitem (3), if, at a time when a Division 2B State employment agreement is in operation, a variation or termination of the source agreement comes into operation as mentioned in subitem (1), the Division 2B State employment agreement is taken to have been varied in the same way, or to have been terminated, (as the case requires) immediately after that time.

Subitem (2) does not apply to a variation that affects the coverage terms of the source agreement.

Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to compliance with an entitlement or obligation:

that arose before the Division 2B referral commencement under a State industrial law; and

that relates to an act or omission which occurred before that commencement.

Subitem (1) does not apply to entitlements or obligations relating to any of the following:

the making, variation or termination of State awards or State employment agreements;

bargaining or industrial action.

Orders and injunctions of State industrial bodies relating to industrial action that are in operation immediately before the Division 2B referral commencement can continue to have effect, and be enforced, under State law after the Division 2B referral commencement: see item 61.

Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to a termination of employment that occurred before the Division 2B referral commencement.

Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law:

relates to proceedings that commenced before the Division 2B referral commencement; and

provides for the variation or setting aside of entitlements and obligations arising under a contract of employment, or another arrangement for employment, that a court or a State industrial body of the State finds is unfair.

an order made, or an injunction granted, by a State industrial body or a court of a Division 2B referring State to prevent or stop industrial action (however described) that was in operation immediately before the Division 2B referral commencement may continue to have effect under the law of the State on and after that day; and

the order or injunction may continue to be enforced under the law of the State on or after that day.

Part 7 of the WR Act contains the Australian Fair Pay and Conditions Standard. Part 3 of Schedule 9 to this Act provides for the continued application of Division 2 of Part 7 (which deals with wages).

Part 4 of Schedule 3 to this Act provides for the continued application of the rules about the interaction between transitional instruments and the Australian Fair Pay and Conditions Standard.

section 661;

the following other provisions, as they relate to section 661:

subsections 637(3), (4) and (5);

section 638;

section 640;

section 642;

section 662.

The provisions of the WR Act that continue to apply because of this Part 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.

An employee’s service with an employer before the FW (safety net provisions) commencement day counts as service of the employee with the employer for the purpose of determining the employee’s entitlements under the National Employment Standards, other than entitlements to:

paid annual leave; and

paid personal/carer’s leave.

References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).

Interaction between the National Employment Standards and transitional instruments is dealt with in Division 1 of Part 5 of Schedule 3.

If, before the FW (safety net provisions) commencement day, the employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service, subitem (1) does not result in that period of service with the employer being counted again when calculating the employee’s entitlements of that kind under the National Employment Standards.

To avoid doubt, subitem (2) does not require an employee to serve any initial qualifying period of service for long service leave again.

Subitem (1) does not apply in relation to an employee and an employer for the purposes of Subdivision B of Division 11 of the National Employment Standards (which deals with redundancy pay) if the terms and conditions of employment that applied to the employee’s employment by the employer immediately before the FW (safety net provisions) commencement day did not provide for an entitlement to redundancy pay.

This item applies if, immediately before the FW (safety net provisions) commencement day, an employee has an accrued entitlement to an amount of paid annual leave or paid personal/carer’s leave, whether the leave accrued under Part 7 of the WR Act, a transitional instrument or otherwise.

The provisions of the National Employment Standards relating to taking that kind of leave (including rates of pay while taking leave), or cashing‑out that kind of leave, apply, as a minimum standard, to the accrued leave as if it had accrued under the National Employment Standards.

If:

immediately before the FW (safety net provisions) commencement day, an employee is taking a period of a type of leave under Part 7 of the WR Act; and

there is an equivalent type of leave under the National Employment Standards;

For example, if an employee is taking paid annual leave under Part 7 of the WR Act immediately before the FW (safety net provisions) commencement day, the employee is entitled to continue on paid annual leave under the National Employment Standards.

If an employee, or his or her spouse or de facto partner (if the spouse or de facto partner is also an employee), continues on leave under the National Employment Standards in accordance with subitem (1), the employee is entitled to adjust any of the following consistently with the provisions of the National Employment Standards in relation to that type of leave:

the amount of leave the employee is taking or will take;

the time at which the leave is taken;

the arrangements for taking the leave.

If the employee’s spouse or de facto partner is also an employee, the employees will be an employee couple for the purposes of the parental leave provisions of the National Employment Standards.

If, before the FW (safety net provisions) commencement day:

an employee has taken a step that the employee is required to take so that the employee can, on or after the FW (safety net provisions) commencement day, take a type of leave referred to in subitem (1); and

an equivalent step is required under the National Employment Standards;

For example, if an employee has given the employer an application under section 271 of the WR Act so that the employee can take ordinary maternity leave, the employee is taken to have given the employer notice under section 74 of the FW Act of the taking of unpaid parental leave.

If an employee is taken, by subitem (3), to have taken a step, in relation to leave, under the National Employment Standards, the employee is entitled to adjust the step consistently with the provisions of the National Employment Standards in relation to that type of leave.

For example, an employee could vary the content of a notice given to the employer in relation to the leave, or vary the amount of leave the employee has notified the employer that the employee intends to take.

The regulations may deal with other matters relating to how the National Employment Standards apply to leave that, immediately before the FW (safety net provisions) commencement day, is being, or is to be, taken under Part 7 of the WR Act.

An employee may, on or after the FW (safety net provisions) commencement day, be absent from his or her employment under Division 8 of the National Employment Standards even if the period of absence began before that day.

If an employee is absent from his or her employment in accordance with subitem (1), subsection 111(5) of the National Employment Standards applies as if a reference to the first 10 days of absence were a reference to the first 10 days of absence occurring on or after the FW (safety net provisions) commencement day.

Subdivision A of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the FW (safety net provisions) commencement day.

However, that Subdivision does not apply to a termination if notice of the termination was given before the FW (safety net provisions) commencement day.

provisions of the National Employment Standards; and

subsections 22(5) and (6) of the FW Act, as those provisions apply for the purposes of the National Employment Standards;

An employee’s service with an employer before the Division 2B referral commencement counts as service of the employee with the employer for the purpose of determining the employee’s entitlements under the National Employment Standards, other than entitlements to:

paid annual leave; and

paid personal/carer’s leave.

References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).

Interaction between the National Employment Standards and Division 2B State instruments is dealt with in Division 1 of Part 5 of Schedule 3A to this Act.

If, before the Division 2B referral commencement, the employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service, subitem (1) does not result in that period of service with the employer being counted again when calculating the employee’s entitlements of that kind under the National Employment Standards.

To avoid doubt, subitem (2) does not require an employee to serve any initial qualifying period of service for long service leave again.

Subitem (1) does not apply in relation to an employee and an employer for the purposes of Subdivision B of Division 11 of the National Employment Standards (which deals with redundancy pay) if the terms and conditions of employment that applied to the employee’s employment by the employer immediately before the Division 2B referral commencement did not provide for an entitlement to redundancy pay.

If, had an employee’s employment been terminated for redundancy (however described) before the Division 2B referral commencement, a State industrial body could have made an order giving the employee an entitlement to redundancy pay (however described):

the terms and conditions of the employee’s employment referred to in subitem (4) are taken to have provided for an entitlement to redundancy pay; and

paragraph 121(1)(b) of the FW Act does not apply in relation to the employee during the period of 12 months starting on the Division 2B referral commencement.

Because of paragraph (b), the employee may therefore be entitled to redundancy pay under section 119 of the FW Act if the employee’s employment is terminated during the 12 month period starting on the Division 2B referral commencement, even if the employer is a small business employer.

This item applies if an employee had, immediately before the Division 2B referral commencement, an accrued entitlement to an amount of paid annual leave or paid personal/carer’s leave, whether the leave accrued under a State industrial law, the source award or source agreement for a Division 2B State instrument, or otherwise.

The provisions of the National Employment Standards relating to taking that kind of leave (including rates of pay while taking leave), or cashing‑out that kind of leave, apply, as a minimum standard, to the accrued leave as if it had accrued under the National Employment Standards.

If:

an employee was, immediately before the Division 2B referral commencement, taking a period of a type of leave under:

Division 6 of Part 7 of the WR Act; or

a State industrial law; and

there is an equivalent type of leave under the National Employment Standards;

For example, if an employee was taking parental leave under Division 6 of Part 7 of the WR Act immediately before the Division 2B referral commencement, the employee is entitled to continue on unpaid parental leave under the National Employment Standards.

If an employee, or his or her spouse or de facto partner (if the spouse or de facto partner is also an employee), continues on leave under the National Employment Standards in accordance with subitem (1), the employee is entitled to adjust any of the following consistently with the provisions of the National Employment Standards in relation to that type of leave:

the amount of leave the employee is taking or will take;

the time at which the leave is taken;

the arrangements for taking the leave.

If the employee’s spouse or de facto partner is also an employee, the employees will be an employee couple for the purposes of the parental leave provisions of the National Employment Standards.

If, before the Division 2B referral commencement:

an employee has taken a step that the employee is required to take so that the employee can, on or after the Division 2B referral commencement, take a type of leave referred to in subitem (1); and

an equivalent step is required under the National Employment Standards;

For example, if an employee has given the employer an application under section 271 of the WR Act so that the employee can take ordinary maternity leave, the employee is taken to have given the employer notice under section 74 of the FW Act of the taking of unpaid parental leave.

If an employee is taken, by subitem (3), to have taken a step, in relation to leave, under the National Employment Standards, the employee is entitled to adjust the step consistently with the provisions of the National Employment Standards in relation to that type of leave.

For example, an employee could vary the content of a notice given to the employer in relation to the leave, or vary the amount of leave the employee has notified the employer that the employee intends to take.

The regulations may deal with other matters relating to how the National Employment Standards apply to leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken under Division 6 of Part 7 of the WR Act or under a State industrial law of a Division 2B referring State.

Subdivision A of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the Division 2B referral commencement.

However, that Subdivision does not apply to a termination if notice of the termination was given before the Division 2B referral commencement.

The Australian Industrial Relations Commission is to continue and complete the award modernisation process provided for by Part 10A of the WR Act (the Part 10A award modernisation process).

Enterprise award etc. modernisation is provided for in Schedule 6.

For that purpose, Part 10A of the WR Act continues to apply on and after the WR Act repeal day in accordance with this Part.

Without limiting subitem (2), the request under section 576C of the WR Act continues to apply on and after the WR Act repeal day, and may be varied in accordance with that section.

Part 10A of the WR Act applies as if:

a reference to an employee were a reference to a national system employee; and

a reference to an employer were a reference to a national system employer; and

all the words after “eligible entity” in paragraph 576K(2)(b) were omitted and the words “may arrange for work to be performed for the entity (either directly or indirectly), if the work is of a kind that is often performed by outworkers” were substituted; and

the definition of eligible entity in section 576U were omitted; and

subsection 576Z(4) were omitted; and

a reference to an eligible entity were a reference to an outworker entity within the meaning of the FW Act; and

subsection 576K(1) were omitted; and

a reference to an outworker in subsection 576K(2) were a reference to an outworker within the meaning of the FW Act; and

the definition of outworker term in section 576U were omitted; and

a reference to an outworker term in section 576V were a reference to an outworker term within the meaning of the FW Act.

The Australian Industrial Relations Commission’s power under section 576H of the WR Act to vary a modern award cannot be exercised after the modern award has come into operation.

In continuing and completing the Part 10A award modernisation process, the Australian Industrial Relations Commission must have regard to:

the state of the national economy; and

the likely effects on the national economy of any modern award that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation; and

the likely effects on the relevant industry or industry sector of any modern award that the Commission is considering, or is proposing to make, including on productivity, labour costs and the regulatory burden on businesses.

The FWC must, as soon as practicable after a modern award (other than the miscellaneous modern award) made in the Part 10A award modernisation process comes into operation (and subject to subitem (3)):

terminate any of the following (modernisable instruments) that the FWC considers are completely replaced by the modern award:

award‑based transitional instruments;

transitional APCSs; and

if the FWC considers that the modern award only partly replaces a modernisable instrument—vary the coverage terms of the modernisable instrument accordingly.

The main provisions about transitional instruments are in Schedule 3, and the main provisions about transitional APCSs are in Schedule 9.

This item does not limit the effect of any other provision of this Act under which a modernisable instrument ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.

As soon as practicable after all modern awards made in the Part 10A modernisation process have come into operation, the FWC must (subject to subitem (3)) terminate any remaining modernisable instruments.

However, the FWC must not, under this item:

terminate a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award, or that covers employees who are also covered by an enterprise instrument or a State reference public sector transitional award; or

vary a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award; or

vary a modernisable instrument so that it ceases to cover employees who are also covered by an enterprise instrument or a State reference public sector transitional award.

Item 9 of Schedule 6 deals with termination and variation of modernisable instruments to take account of the enterprise instrument or a State reference public sector transitional award modification process.

Item 10 of Schedule 6A deals with termination and variation of State reference public sector transitional awards to take account of the State reference public sector transitional award modernisation process.

The FWC may establish a process for making decisions under this item to terminate or vary one or more modernisable instruments.

The FWC may advise persons or bodies about that process in any way the FWC 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 powers under subitem (5).

A modern award made in the Part 10A award modernisation process is, for the purposes of the FW Act (and any other law), taken to be a modern award within the meaning of that Act from the later of the following days:

the day on which the award is made;

the FW (safety net provisions) commencement day.

Section 49 of the FW Act does not apply for the purpose of determining when the modern award comes into operation. Instead, the modern award comes into operation on the day on which it is expressed to commence (in accordance with section 576Y of the WR Act).

The regulations may deal with other matters relating to how the FW Act applies in relation to modern awards made in the Part 10A award modernisation process.

If the FWC considers that there is a minor or technical problem with a modern award that is attributable to the fact that the Part 10A award modernisation process started before the enactment of the FW Act, the FWC may make a determination varying the modern award to resolve the problem.

Certain modern awards may, for example, contain references to concepts or provisions that are not consistent with the FW Act as enacted. This variation power allows the FWC to fix such references.

The FWC may make the determination:

on its own initiative; or

on application by an employer, employee, organisation or outworker entity covered by the modern award; or

on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award; or

if the variation is of outworker terms in the modern award—on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the terms relate.

As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, the FWC must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.

The review required by this item is in addition to the annual wage reviews and 4 yearly reviews of modern awards that the FWC is required to conduct under the FW Act.

In the review, the FWC must consider whether the modern awards:

achieve the modern awards objective; and

are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.

The review must be such that each modern award is reviewed in its own right. However, this does not prevent the FWC from reviewing 2 or more modern awards at the same time.

The FWC may make a determination varying any of the modern awards in any way that the FWC considers appropriate to remedy any issues identified in the review.

Any variation of a modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2‑3 of the FW Act).

The modern awards objective applies to the FWC making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.

The FWC may advise persons or bodies about the review in any way the FWC 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 powers under subitem (5).

If:

a modern award includes terms (review terms) under which the FWC may review transitional arrangements included in the award; and

the review terms, and the transitional arrangements, were included in the award in the Part 10A award modernisation process;

review the award in accordance with the review terms; and

make a determination varying the award in any way it considers necessary, having regard to that review.

Any variation of the modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2‑3 of the FW Act).

The review terms are taken to be terms that are permitted to be included in the modern award by Subdivision B of Division 3 of Part 2‑3 of the FW Act.

The Part 10A award modernisation process is not intended to result in a reduction in the take‑home pay of employees or outworkers.

An employee’s or outworker’s take‑home pay is the pay an employee or outworker 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 modern award made in the Part 10A award modernisation process starts to apply to the employee when the 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 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 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 award came into operation; and

that reduction in the employee’s take‑home pay is attributable to the Part 10A award modernisation process.

An outworker who is not an employee suffers a modernisation‑related reduction in take‑home pay if, and only if:

when a modern award that contains outworker terms comes into operation, the outworker is a person to whom outworker terms in the modern award relate; and

the outworker is performing the same work as (or work that is similar to) the work he or she was performing immediately before the modern award came into operation; and

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

that reduction in the outworker’s take‑home pay is attributable to the Part 10A award modernisation process.

If the FWC is satisfied that an employee, or a class of employees, to whom a 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.

If the FWC is satisfied that an outworker, or a class of outworkers, to whom outworker terms in a modern award relate 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 outworker or outworkers that the FWC considers appropriate to remedy the situation.

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

an employee or outworker 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 outworker; or

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

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, or an outworker or a class of outworkers, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees, or the same outworker or outworkers.

The FWC must not make a take‑home pay order in relation to an employee or class of employees, or an outworker or a class of outworkers, 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, or outworker or outworkers, 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 or outworker unless the employee or outworker has actually suffered a modernisation‑related reduction in take‑home pay; and

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

subsection 675(2);

subsection 706(2).

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

Each of the following is an enterprise instrument:

an enterprise award‑based instrument;

an enterprise preserved collective State agreement;

a Division 2B enterprise award.

An enterprise award‑based instrument is an award‑based transitional instrument, other than a State reference public sector transitional award, to which subitem (2A) or (2B) applies.

This subitem applies to an award‑based transitional instrument that is an award or a State reference transitional award, if the award or State reference transitional award covers employees in:

a single enterprise (or a part of a single enterprise) only; or

one or more enterprises, if the employers all carry on similar business activities under the same franchise and are:

franchisees of the same franchisor; or

related bodies corporate of the same franchisor; or

any combination of the above.

This subitem applies to an award‑based transitional instrument that is a notional agreement preserving State awards, if the notional agreement includes terms and conditions from a State award (within the meaning of the WR Act) that covered employees in:

a single enterprise (or a part of a single enterprise) only; or

one or more enterprises, if the employers all carried on similar business activities under the same franchise and were:

franchisees of the same franchisor; or

related bodies corporate of the same franchisor; or

any combination of the above.

An enterprise preserved collective State agreement is a transitional instrument that is a preserved collective State agreement in relation to which the following paragraphs are satisfied: