Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

FWA;

the General Manager.

The WR Act continues to apply on and after the WR Act repeal day for the purposes of dealing with the following:

disputes in relation to a matter arising under a transitional instrument (including a WR Act instrument that becomes a transitional instrument);

disputes in relation to the Australian Fair Pay and Conditions Standard in Part 7 of the WR Act, including as it continues to apply because of Schedule 4 (other than disputes in relation to Division 2 of Part 7 of that Act);

disputes in relation to Division 1, 2 or 6 of Part 12 of the WR Act, including as it continues to apply because of Schedule 4.

The WR Act applies in relation to a dispute mentioned in any of paragraphs (1)(a) to (c) in the way that it applied, before the WR Act repeal day, in relation to a like dispute.

Anything that could, or would, have been done by, or in relation to, the Commission or the Industrial Registrar because of item 1 may only be done by, or in relation to, the FWC.

For the purposes of subitem (1), the WR Act is to be read:

as if a reference to the Commission or the Industrial Registrar were a reference to the FWC, as necessary; and

with any other necessary modifications.

This item does not apply in relation to a dispute if:

an application has been made to the Commission in relation to the dispute before the WR Act repeal day; and

the Commission is dealing with or has dealt with the dispute.

Subitem (1) applies despite subsection 595(1) of the FW Act.

That subsection allows the FWC to deal with a dispute only if the FWC is expressly authorised to do so under the FW Act.

Schedule 6 to the WR Act (continued Schedule 6) continues to apply on and after the WR Act repeal day in accordance with this Schedule.

Except for instrument content rules and instrument interaction rules, nothing in this Schedule or continued Schedule 6 applies to State reference transitional awards or common rules.

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

Without limiting subitem (1) (but subject to subitem (2)), transitional awards that were in operation under Schedule 6 to the WR Act immediately before the WR Act repeal day continue in operation as continuing Schedule 6 instruments on and after the repeal day in accordance with continued Schedule 6.

In addition to provisions of this Schedule, Part 3 of Schedule 2 may also affect continuing Schedule 6 instruments.

Compliance with continuing Schedule 6 instruments is dealt with in Schedule 16.

Continued Schedule 6 applies as if:

a reference in that Schedule to the Australian Industrial Relations Commission (or the Commission) were a reference to the FWC; and

without limiting paragraph (a)—a reference in that Schedule to a member of the Commission (or a Commissioner) were a reference to an FWC member; and

a reference in that Schedule to the President were a reference to the President of the FWC; and

a reference in that Schedule to a Presidential Member were a reference to the President, or a Deputy President, of the FWC; and

a reference in that Schedule to a Full Bench were a reference to a Full Bench of the FWC; and

a reference in that Schedule to a Registrar or the Industrial Registrar were a reference to the General Manager of the FWC; and

from the time when the FWC completes its first annual wage review:

a reference in that Schedule to the AFPC were a reference to the FWC; and

without limiting subparagraph (i)—a reference in that Schedule to wage‑setting decisions of the AFPC were a reference to determinations made by the FWC in annual wage reviews; and

a reference in that Schedule to the Rules of the Commission were a reference to the procedural rules of the FWC; and

a reference to “this Act” (being the WR Act) in any of the following provisions of that Schedule were a reference to “this Act” as defined in section 12 of the FW Act:

subclause 14(2);

paragraph 44(2)(a);

clause 70;

clause 108.

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

For example, paragraph (1)(a) does not apply if the reference is to something that the Australian Industrial Relations Commission did before the WR Act repeal day (or before the reform commencement).

Section 578 of the FW Act applies to the performance of the FWC’s functions under continued Schedule 6 as if the reference in paragraph 578(a) to “the objects of this Act, and any objects of the part of the Act” were a reference to the objects of continued Schedule 6.

Sections 589 to 597 of the FW Act do not apply to the performance of the FWC’s functions under this Schedule.

the reference to clause 72M in:

the note to subclause 72J(2); and

note 1 to subclauses 72K(1), (2) and (3);

clause 72M were omitted; and

Division 5 of Part 6A were omitted.

Continued Schedule 6 applies as if the reference in clause 19 to Part 16 were a reference to Part 3‑1 of the FW Act.

Continued Schedule 6 applies as if clause 107A were omitted.

note 2 to subclause 3(1) were worded as follows: “In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.”; and

the words in brackets at the end of subclause 3(3) were omitted; and

subclause 3(4), and note 1 to subclause 3(1), were omitted.

The new ballots compliance provisions (see subitem (2)) apply in relation to a secret ballot ordered by the FWC under continued Schedule 6 as if:

the order were a protected action ballot order; and

the ballot were a protected action ballot.

The new ballots compliance provisions are:

Subdivision E of Division 8 of Part 3‑3 of the FW Act; and

Part 4‑1 of the FW Act; and

Division 9 of Part 5‑1 of the FW Act.

Continued Schedule 6 applies as if clause 105 were omitted.

Part 3‑4 of the FW Act applies in relation to a continuing Schedule 6 instrument as if:

a reference in that Part to a fair work instrument were a reference to a continuing Schedule 6 instrument; and

Division 3 of Part 3‑4 were omitted.

For the obligation to comply with continuing Schedule 6 instruments, see item 15 of Schedule 16.

For the role of Fair Work Ombudsman and Inspectors in relation to continuing Schedule 6 instruments, see item 14 of Schedule 18.

The Clothing Trades Award 1999, to the extent that it contains terms relating to outworkers, is taken always to have been made in accordance with Part VI of the Workplace Relations Act 1996. Any variation of those terms is taken always to have been made in accordance with that Part.

Without limiting subitem (1), those terms (as varied from time to time) are taken always to have been terms about allowable award matters of the kind described in paragraph 513(1)(o) of the Workplace Relations Act 1996.