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This is a Bill, not an Act. For current law, see the Acts databases.


FAIR WORK AMENDMENT (TRANSFER OF BUSINESS) BILL 2012

2010-2011-2012
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fair Work Amendment (Transfer of
Business) Bill 2012
No. , 2012
(Education, Employment and Workplace Relations)
A Bill for an Act to amend the law relating to
workplace relations, and for related purposes
i Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
1
Schedule 1--Transfer of business from a State public sector
employer
3
Part 1--Main amendments
3
Fair Work Act 2009
3
Part 2--Other amendments
47
Fair Work Act 2009
47
Fair Work (Registered Organisations) Act 2009
57
Fair Work (Transitional Provisions and Consequential Amendments)
Act 2009
59
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 1
A Bill for an Act to amend the law relating to
1
workplace relations, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Fair Work Amendment (Transfer of
5
Business) Act 2012.
6
2 Commencement
7
This Act commences on the day after this Act receives the Royal
8
Assent.
9
3 Schedule(s)
10
Each Act that is specified in a Schedule to this Act is amended or
11
repealed as set out in the applicable items in the Schedule
12
2 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
concerned, and any other item in a Schedule to this Act has effect
1
according to its terms.
2
3
Transfer of business from a State public sector employer Schedule 1
Main amendments Part 1
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 3
Schedule 1--Transfer of business from a State
1
public sector employer
2
Part 1--Main amendments
3
Fair Work Act 2009
4
1 After Part 6-3
5
Insert:
6
Part 6-3A--Transfer of business from a State
7
public sector employer
8
Division 1--Introduction
9
768AA Guide to this Part
10
This Part provides for the transfer of certain terms and conditions
11
of employment when there is a transfer of business from a
12
non-national system employer that is a State public sector
13
employer (called "the old State employer") to a national system
14
employer (called "the new employer").
15
A transfer of business involves the transfer of employment of one
16
or more employees of the old State employer to the new employer.
17
Each of those employees is a "transferring employee".
18
If there is a transfer of business, then this Part provides for certain
19
terms and conditions of employment with the old State employer to
20
be transferred to the employment of the transferring employee with
21
the new employer.
22
This Part achieves the transfer of those terms and conditions by
23
creating a new instrument--a "copied State instrument"--for each
24
transferring employee. The new instrument is a federal instrument
25
and is enforceable under this Act.
26
Schedule 1 Transfer of business from a State public sector employer
Part 1 Main amendments
4 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
768AB Meanings of employee and employer
1
In this Part, employee means a national system employee, and
2
employer means a national system employer.
3
Division 2--Copying terms of State instruments when
4
there is a transfer of business
5
768AC What this Division is about
6
This Division sets out when there is a transfer of business from the
7
old State employer to the new employer.
8
768AD When does a transfer of business occur?
9
When there is a transfer of business
10
(1)
There
is
a
transfer of business from a non-national system
11
employer that is a State public sector employer of a State (the old
12
State employer) to a national system employer (the new employer)
13
if the following requirements are satisfied:
14
(a) the employment of a person who is a State public sector
15
employee of the old State employer has terminated;
16
(b) within 3 months after the termination, the person becomes
17
employed by the new employer;
18
(c) the work (the transferring work) the person performs for the
19
new employer is the same, or substantially the same, as the
20
work the person performed for the old State employer;
21
(d) there is a connection between the old State employer and the
22
new employer as described in subsection (2), (3) or (4).
23
Transfer of assets from old State employer to new employer
24
(2) There is a connection between the old State employer and the new
25
employer if, in accordance with an arrangement between:
26
(a) the old State employer or an associated entity of the old State
27
employer; and
28
(b) the new employer or an associated entity of the new
29
employer;
30
Transfer of business from a State public sector employer Schedule 1
Main amendments Part 1
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 5
the new employer, or the associated entity of the new employer,
1
owns or has the beneficial use of some or all of the assets (whether
2
tangible or intangible):
3
(c) that the old State employer, or the associated entity of the old
4
State employer, owned or had the beneficial use of; and
5
(d) that relate to, or are used in connection with, the transferring
6
work.
7
Old State employer outsources work to new employer
8
(3) There is a connection between the old State employer and the new
9
employer if the transferring work is performed by one or more
10
transferring employees, as employees of the new employer,
11
because the old State employer, or an associated entity of the old
12
State employer, has outsourced the transferring work to the new
13
employer or an associated entity of the new employer.
14
New employer is an associated entity of old employer
15
(4) There is a connection between the old State employer and the new
16
employer if the new employer is an associated entity of the old
17
State employer when the transferring employee becomes employed
18
by the new employer.
19
768AE Meaning of transferring employee, termination time and
20
re-employment time
21
(1) The person referred to in paragraphs 768AD(1)(a), (b) and (c) is a
22
transferring employee in relation to the transfer of business.
23
(2)
The
termination time of a transferring employee is the start of the
24
day the employment of the employee is terminated by the old State
25
employer.
26
(3)
The
re-employment time of a transferring employee is the start of
27
the day the employee becomes employed by the new employer.
28
Schedule 1 Transfer of business from a State public sector employer
Part 1 Main amendments
6 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
Division 3--Copied State instruments
1
Subdivision A--Guide to this Division
2
768AF What this Division is about
3
If there is a transfer of business, then this Division provides for
4
certain terms and conditions of a transferring employee's
5
employment with the old State employer to be transferred to the
6
employment with the new employer.
7
The transfer of those terms and conditions is achieved by creating a
8
new instrument--called a "copied State instrument"--for the
9
transferring employee. The new instrument is a federal instrument
10
that is enforceable under this Act.
11
There are 2 types of copied State instruments--a copied State
12
award and a copied State employment agreement.
13
A copied State award copies the terms of a State award that
14
covered the transferring employee and the old State employer
15
immediately before the termination of the employee's employment
16
with the old State employer.
17
A copied State employment agreement copies the terms of a State
18
employment agreement that covered the transferring employee and
19
the old State employer immediately before the termination of the
20
employee's employment with the old State employer.
21
Subdivision B--Copied State instruments
22
768AG Contravening a copied State instrument
23
A person must not contravene a term of a copied State instrument
24
for a transferring employee that applies to the person.
25
Note 1:
This section is a civil remedy provision (see Part 4-1).
26
Note 2:
For when a copied State instrument for a transferring employee
27
applies to a person, see section 768AM.
28
Transfer of business from a State public sector employer Schedule 1
Main amendments Part 1
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 7
768AH What is a copied State instrument?
1
A
copied State instrument for a transferring employee is the
2
following:
3
(a) a copied State award for the employee;
4
(b) a copied State employment agreement for the employee.
5
768AI What is a copied State award?
6
(1)
If:
7
(a) there is a transfer of business between the old State employer
8
and the new employer; and
9
(b) immediately before the termination time of a transferring
10
employee in relation to the transfer of business:
11
(i) a State award (the original State award) was in
12
operation under the State industrial law of the State; and
13
(ii) the original State award covered (however described in
14
the original State award or a relevant law of the State)
15
the old State employer and the transferring employee
16
(whether or not the original State award also covered
17
other persons);
18
then a copied State award for the transferring employee is taken to
19
come into operation immediately after the termination time.
20
Note 1:
Even though a copied State award comes into operation in relation to
21
the transferring employee, it will not be enforceable by the employee
22
or another person (for example, the new employer) unless and until it
23
applies to the employee or other person. In particular, it will not apply
24
to the employee or new employer before the employee becomes
25
employed by the new employer. For when the copied State award
26
applies to a person, see section 768AM.
27
Note 2:
A copied State employment agreement for the transferring employee
28
may also come into operation immediately after the termination time,
29
see subsection 768AK(1). If it does, then the State's interaction rules
30
that were in force immediately before the termination time apply for
31
the purposes of working out the interaction between the copied State
32
award and the copied State employment agreement (see item 11 of
33
Schedule 3A to the Transitional Act as that item applies in a modified
34
way because of section 768BY).
35
(2) The copied State award is taken to include the same terms as were
36
in the original State award immediately before the termination
37
time.
38
Note:
The State's instrument content rules that were in force immediately
39
before the termination time apply to the copied State award (see
40
Schedule 1 Transfer of business from a State public sector employer
Part 1 Main amendments
8 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
item 10 of Schedule 3A to the Transitional Act as that item applies in
1
a modified way because of section 768BY).
2
(3) If the terms of the original State award were affected by an order, a
3
decision or a determination of a State industrial body or a court of
4
the State that was in operation immediately before the termination
5
time, the terms of the copied State award are taken to be similarly
6
affected by the terms of that order, decision or determination.
7
768AJ What is a State award?
8
(1)
A
State award is an instrument in relation to which the following
9
conditions are satisfied:
10
(a) the instrument regulates terms and conditions of
11
employment;
12
(b) the instrument was made under a State industrial law by a
13
State industrial body;
14
(c) the instrument is referred to in that law as an award.
15
(2) However, the regulations may provide that an instrument of a
16
specified kind:
17
(a)
is
a
State award; or
18
(b) is not a State award.
19
768AK What is a copied State employment agreement?
20
(1)
If:
21
(a) there is a transfer of business between the old State employer
22
and the new employer; and
23
(b) immediately before the termination time of a transferring
24
employee in relation to the transfer of business:
25
(i) a State employment agreement (the original State
26
agreement) was in operation under a State industrial
27
law of the State; and
28
(ii) the original State agreement covered (however
29
described in the original State agreement or a relevant
30
law of the State) the old State employer and the
31
transferring employee (whether or not the original State
32
agreement also covered other persons);
33
Transfer of business from a State public sector employer Schedule 1
Main amendments Part 1
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 9
then a copied State employment agreement for the transferring
1
employee is taken to come into operation immediately after the
2
termination time.
3
Note 1:
Even though a copied State employment agreement comes into
4
operation for the transferring employee, it will not be enforceable by
5
the employee or another person (for example, the new employer)
6
unless and until it applies to the employee or other person. In
7
particular, it will not apply to the employee or new employer before
8
the employee becomes employed by the new employer. For when the
9
copied State employment agreement applies to a person, see
10
section 768AM.
11
Note 2:
A copied State award for the transferring employee may also come
12
into operation immediately after the termination time, see subsection
13
768AI(1). If it does, then the State's interaction rules that were in
14
force immediately before the termination time apply for the purposes
15
of working out the interaction between the copied State employment
16
agreement and the copied State award (see item 11 of Schedule 3A to
17
the Transitional Act as that item applies in a modified way because of
18
section 768BY).
19
(2) The copied State employment agreement is taken to include the
20
same terms as were in the original State agreement immediately
21
before the termination time.
22
Note:
The State's instrument content rules that were in force immediately
23
before the termination time apply to the copied State employment
24
agreement (see item 10 of Schedule 3A to the Transitional Act as that
25
item applies in a modified way because of section 768BY).
26
(3) If the terms of the original State employment agreement were
27
affected by an order, a decision or a determination of a State
28
industrial body or a court of the State that was in operation
29
immediately before the termination time, the terms of the copied
30
State employee agreement are taken to be similarly affected by the
31
terms of that order, decision or determination.
32
(4) If the original State agreement is a collective State employment
33
agreement, the copied State employment agreement is a copied
34
State collective employment agreement.
35
(5) If the original State agreement is an individual State employment
36
agreement, the copied State employment agreement is a copied
37
State individual employment agreement.
38
768AL What is a State employment agreement?
39
(1)
A
State employment agreement is:
40
Schedule 1 Transfer of business from a State public sector employer
Part 1 Main amendments
10 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
(a) an agreement in relation to which the following conditions
1
are satisfied:
2
(i) the agreement is between a non-national system
3
employer and one or more of the employees of the
4
employer, or between a non-national system employer
5
and an association of employees registered under a State
6
industrial law;
7
(ii) the agreement determines terms and conditions of
8
employment of one or more employees of the employer;
9
(iii) the agreement was made under a State industrial law; or
10
(b) a determination in relation to which the following conditions
11
are satisfied:
12
(i) the determination determines terms and conditions of
13
employment;
14
(ii) the determination was made under a State industrial law
15
by a State industrial body;
16
(iii) the determination was made in a situation in which
17
parties who were negotiating for the making of an
18
agreement of a kind described in paragraph (a) had not
19
been able to reach an agreement;
20
(iv) the purpose of the determination was to resolve the
21
matters that were at issue in those negotiations.
22
(2) However, the regulations may provide that an instrument of a
23
specified kind:
24
(a)
is
a
State employment agreement; or
25
(b) is not a State employment agreement.
26
(3) A State employment agreement is a State collective employment
27
agreement unless:
28
(a) it is an agreement of a kind that, under the relevant State
29
industrial law, could only be entered into by a single
30
employee and a single employer; or
31
(b) the agreement is of a kind prescribed by the regulations.
32
(4) A State employment agreement referred to in paragraph (3)(a) or
33
(b) is a State individual employment agreement.
34
Transfer of business from a State public sector employer Schedule 1
Main amendments Part 1
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 11
768AM When does a copied State instrument apply to a person?
1
Transferring employee and organisations
2
(1) A copied State instrument for a transferring employee applies to
3
the transferring employee or an organisation if:
4
(a) the instrument covers the employee or organisation; and
5
(b) the instrument is in operation; and
6
(c) no other provision of this Act provides, or has the effect, that
7
the instrument does not apply to the employee or
8
organisation; and
9
(d) immediately before the employee's termination time, the
10
employee or organisation would have been:
11
(i) required by the law of the State to comply with terms of
12
the original State award or original State agreement for
13
the instrument; or
14
(ii) entitled under the law of the State to enforce terms of
15
the original State award or original State agreement for
16
the instrument.
17
New employer and other employers
18
(2) A copied State instrument for a transferring employee applies to an
19
employer (whether the new employer or another employer) if:
20
(a) the instrument covers the employer; and
21
(b) the instrument is in operation; and
22
(c) no other provision of this Act provides, or has the effect, that
23
the instrument does not apply to the employer; and
24
(d) immediately before the employee's termination time, the old
25
State employer would have been:
26
(i) required by the law of the State to comply with terms of
27
the original State award or original State agreement for
28
the instrument; or
29
(ii) entitled under the law of the State to enforce terms of
30
the original State award or original State agreement for
31
the instrument.
32
Note:
This subsection may operate in relation to an employer that is not the
33
new employer in the situation where there has been a later transfer of
34
business by the new employer (see Part 2-8).
35
Schedule 1 Transfer of business from a State public sector employer
Part 1 Main amendments
12 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
Other circumstances when instrument applies
1
(3) A copied State instrument for a transferring employee also applies
2
to a person if an FWA order made under a provision of this Act
3
provides, or has the effect, that the instrument applies to the
4
person.
5
Instrument only applies in relation to transferring work
6
(4) A reference in this Act to a copied State instrument for a
7
transferring employee applying to the employee is a reference to
8
the instrument applying to the employee in relation to the
9
transferring work of the employee.
10
768AN When does a copied State instrument cover a person?
11
Transferring employee and new employer
12
(1) A copied State instrument for a transferring employee covers the
13
employee and the new employer in relation to the transferring work
14
from the employee's re-employment time.
15
Employee organisation
16
(2) A copied State instrument for a transferring employee covers an
17
employee organisation in relation to the employee if:
18
(a) the instrument covers the employee because of
19
subsection (1); and
20
(b) immediately before the employee's termination time, the
21
original State award or original State agreement for the
22
instrument covered (however described in the original State
23
award or original State agreement or in a relevant law of the
24
State) the organisation in relation to the employee.
25
Employer organisation
26
(3) A copied State instrument for a transferring employee covers an
27
employer organisation in relation to the new employer if:
28
(a) the instrument covers the new employer because of
29
subsection (1); and
30
(b) immediately before the employee's termination time, the
31
original State award or original State agreement for the
32
instrument covered (however described in the original State
33
Transfer of business from a State public sector employer Schedule 1
Main amendments Part 1
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 13
award or original State agreement or in a relevant law of the
1
State) the organisation in relation to the old State employer.
2
Other circumstances when a person is covered
3
(4) A copied State instrument for a transferring employee also covers a
4
person if any of the following provides, or has the effect, that the
5
instrument covers the person:
6
(a) a provision of this Act or of the Registered Organisations
7
Act;
8
(b) an FWA order made under a provision of this Act;
9
(c) an order of a court.
10
Example: FWA may make a consolidation order specifying that the instrument
11
covers a person specified in the order (see subsections 768BE(1) and
12
768BH(1)).
13
Circumstances when a person is not covered
14
(5) Despite subsections (1), (2), (3) and (4), a copied State instrument
15
for a transferring employee does not cover a person if any of the
16
following provides, or has the effect, that the instrument does not
17
cover the person:
18
(a) a provision of this Act;
19
(b) an FWA order made under a provision of this Act;
20
(c) an order of a court.
21
Example: If, after the transferring employee's re-employment time, an enterprise
22
agreement starts to cover the employee, subsection 768AU(2)
23
provides that a copied State instrument for the employee ceases to
24
cover the employee.
25
(6) Despite subsections (1), (2), (3) and (4), a copied State instrument
26
for a transferring employee that has ceased to operate does not
27
cover a person.
28
Covered only in relation to transferring work
29
(7) A reference to a copied State instrument for a transferring
30
employee covering the employee is a reference to the instrument
31
covering the employee in relation to the transferring work of the
32
employee.
33
Schedule 1 Transfer of business from a State public sector employer
Part 1 Main amendments
14 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
768AO When is a copied State instrument in operation?
1
When instrument comes into operation
2
(1) A copied State instrument for a transferring employee comes into
3
operation immediately after the employee's termination time.
4
When copied State award ceases to operate
5
(2) A copied State award for a transferring employee ceases to operate
6
at the following time:
7
(a) unless paragraph (b) applies--the end of the period (the
8
default period) that is 5 years or such longer period as is
9
prescribed by the regulations, starting on the day the
10
employee's termination time occurred;
11
(b) if the regulations allow FWA to make an order to extend the
12
period of operation of a copied State award for a transferring
13
employee and, in accordance with those regulations, FWA
14
makes an order that the award operates for a period that is
15
longer than the default period--the end of that period.
16
(3) The regulations may:
17
(a) prescribe circumstances in which FWA may make an order
18
for the purposes of paragraph (2)(b); and
19
(b) prescribe a maximum period that the order may specify; and
20
(c) otherwise make provision in relation to the making of the
21
order.
22
When copied State agreement ceases to operate
23
(4) A copied State employment agreement for a transferring employee
24
ceases to operate when it is terminated, which may happen before
25
or after the nominal expiry date of the agreement.
26
Note 1:
See section 768AY for how the copied State employment agreement
27
can be terminated.
28
Note 2:
If, after the transferring employee's re-employment time with the new
29
employer, an enterprise agreement is made that covers the employee
30
and the new employer, then the copied State employment agreement
31
will cease to cover the employee and the new employer and will never
32
cover them again, see section 768AU.
33
(5)
The
nominal expiry date of a copied State employment agreement
34
for a transferring employee is:
35
Transfer of business from a State public sector employer Schedule 1
Main amendments Part 1
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 15
(a) the day the original State agreement would nominally have
1
expired under the State industrial law of the State; or
2
(b) if that day falls after the end of 4 years beginning on the day
3
the employee's termination time occurs--the last day of that
4
4-year period.
5
Once instrument ceases operation, can never operate again
6
(6) A copied State instrument for a transferring employee that has
7
ceased to operate can never operate again.
8
Division 4--Interaction between copied State instruments
9
and the NES, modern awards and enterprise
10
agreements
11
Subdivision A--Guide to this Division
12
768AP What this Division is about
13
This Division provides for how copied State instruments interact
14
with the National Employment Standards, modern awards and
15
enterprise agreements.
16
Subdivision B--Interaction with the NES
17
768AQ Interaction between the NES and a copied State instrument
18
To the extent that a term of a copied State instrument for a
19
transferring employee is detrimental to the employee, in any
20
respect, when compared to an entitlement of the employee under
21
the National Employment Standards, the term of the instrument is
22
of no effect.
23
768AR Provisions of the NES that allow instruments to contain
24
particular kinds of terms
25
Application of particular provisions of the NES
26
(1) The following provisions have effect, on and after the
27
re-employment time of a transferring employee, as if a reference to
28
Schedule 1 Transfer of business from a State public sector employer
Part 1 Main amendments
16 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
a modern award or an enterprise agreement included a reference to
1
a copied State instrument for the transferring employee:
2
(a) section 63 (which allows terms dealing with averaging of
3
hours of work);
4
(b) section 93 (which allows terms dealing with cashing out and
5
taking paid annual leave);
6
(c) section 101 (which allows terms dealing with cashing out
7
paid personal/carer's leave);
8
(d) subsection 107(5) (which allows terms dealing with evidence
9
requirements for paid personal/carer's leave etc.);
10
(e) subsection 115(3) (which allows terms dealing with
11
substitution of public holidays);
12
(f) section 118 (which allows terms dealing with an employee
13
giving notice to terminate his or her employment);
14
(g) subsections 121(2) and (3) (which allow terms specifying
15
situations in which the redundancy pay entitlement under
16
section 119 does not apply);
17
(h) section 126 (which allows terms providing for school-based
18
apprentices and trainees to be paid loadings in lieu).
19
Terms about paid annual leave and personal/carer's leave
20
(2) If a copied State instrument for a transferring employee:
21
(a) includes terms referred to in subsection 93(1) but the terms
22
do not include the requirements referred to in subsection
23
93(2); or
24
(b) includes terms referred to in subsection 101(1) but the terms
25
do not include the requirements referred to in subsection
26
101(2);
27
then the instrument is taken to include terms that include the
28
requirements.
29
Shiftworker annual leave entitlement
30
(3) If a copied State instrument for a transferring employee applies to
31
the employee, then subsections 87(3) to (5) have effect, on and
32
after the employee's re-employment time, in the same way as they
33
apply to an award/agreement free employee.
34
Note:
If the transferring employee qualifies for the shiftworker annual leave
35
entitlement under those subsections, the employee will be entitled to 5
36
(rather than 4) weeks of paid annual leave.
37
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Subdivision C--Interaction with modern awards
1
768AS Modern awards and copied State awards
2
(1) While a copied State award for a transferring employee:
3
(a) covers the employee, or an employer (whether the new
4
employer or another national system employer) or other
5
person in relation to the employee; and
6
(b) is in operation;
7
a modern award does not cover the employee, or the employer or
8
other person in relation to the employee.
9
Note 1:
When the copied State award for a transferring employee ceases to
10
cover the employee, a modern award will start to cover the employee,
11
or an employer or other person in relation to the employee.
12
Note 2:
This subsection may operate in relation to an employer that is not the
13
new employer in the situation where there has been a later transfer of
14
business by the new employer (see Part 2-8).
15
(2) Subsection (1) does not apply for the purposes of section 193
16
(which is about the better off overall test for enterprise
17
agreements).
18
Note:
For the purposes of determining whether an enterprise agreement that
19
covers a transferring employee passes the better off overall test,
20
subsection (2) allows the enterprise agreement to be compared against
21
a modern award that covers the employee.
22
(3) This section has effect subject to any FWA order about coverage
23
under subsection 768BA(1).
24
768AT Modern awards and copied State employment agreements
25
Copied State collective employment agreements
26
(1) If a copied State collective employment agreement for a
27
transferring employee and a modern award both apply:
28
(a) to the employee; or
29
(b) to an employer (whether the new employer or another
30
national system employer) or another person in relation to the
31
employee;
32
then the copied State collective employment agreement for the
33
employee prevails over the modern award, to the extent of any
34
inconsistency.
35
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18 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
Note 1:
This subsection has effect subject to item 17 of Schedule 9 to the
1
Transitional Act as that item applies in a modified way because of
2
section 768BY. That item, as modified, requires that the base rate of
3
pay under the copied State employment agreement must not be less
4
than the modern award rate.
5
Note 2:
This subsection may operate in relation to an employer that is not the
6
new employer in the situation where there has been a later transfer of
7
business by the new employer (see Part 2-8).
8
Copied State individual employment agreements
9
(2) While a copied State individual employment agreement for a
10
transferring employee applies:
11
(a) to the employee; or
12
(b) to an employer (whether the new employer or another
13
national system employer) or another person in relation to the
14
employee;
15
a modern award does not apply to the employee, or to the employer
16
or other person in relation to the employee.
17
Note 1:
However, a modern award can cover the transferring employee while
18
the copied State individual employment agreement applies.
19
Note 2:
This subsection has effect subject to item 17 of Schedule 9 to the
20
Transitional Act as that item applies in a modified way because of
21
section 768BY. That item, as modified, requires that the base rate of
22
pay under the copied State employment agreement must not be less
23
than the modern award rate.
24
Note 3:
This subsection may operate in relation to an employer that is not the
25
new employer in the situation where there has been a later transfer of
26
business by the new employer (see Part 2-8).
27
FWA coverage orders
28
(3) This section has effect subject to any FWA order about coverage
29
under subsection 768BA(1).
30
Subdivision D--Interaction with enterprise agreements
31
768AU Enterprise agreements and copied State instruments
32
(1) While a copied State instrument for a transferring employee covers
33
the employee and the new employer in relation to the transferring
34
work, an enterprise agreement that covers the new employer at the
35
employee's re-employment time does not cover the employee in
36
relation to that work.
37
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Note 1:
The fact that a copied State collective employment agreement for a
1
transferring employee covers the employee does not prevent the
2
employee and the new employer from replacing that agreement at any
3
time with an enterprise agreement, regardless of whether the
4
employee's copied State collective employment agreement has passed
5
its nominal expiry date.
6
Note 2:
Industrial action must not be taken before the nominal expiry date of a
7
copied State collective employment agreement for a transferring
8
employee (see item 4 of Schedule 13 to the Transitional Act as that
9
item applies in a modified way because of section 768BY).
10
(2) However, if after the re-employment time, another enterprise
11
agreement starts to cover the employee and the new employer in
12
relation to the transferring work, then the copied State instrument
13
for the employee ceases to cover the employee and the new
14
employer and can never cover them again.
15
(3) This section has effect subject to any FWA order about coverage
16
under subsection 768BA(1).
17
Division 5--Variation and termination of copied State
18
instruments
19
Subdivision A--Guide to this Division
20
768AV What this Division is about
21
This Division sets out when a copied State instrument may be
22
varied or terminated.
23
Subdivision B--Variation of copied State instruments
24
768AW Variation in limited circumstances
25
A copied State instrument for a transferring employee cannot be
26
varied except under:
27
(a) section 768AX; or
28
(b) item 20 of Schedule 3A to the Transitional Act (which deals
29
with variation of discriminatory instruments) as that item has
30
effect because of section 768BY; or
31
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20 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
(c) item 20 of Schedule 9 to the Transitional Act (which deals
1
with variation of instruments in annual wage reviews) as that
2
item has effect because of section 768BY; or
3
(d) Division 4 of Part 3 of Schedule 11 to the Transitional Act
4
(which deals with transfer of business) as that Division has
5
effect because of section 768BY.
6
768AX Variation of copied State instruments
7
Variations that may be made
8
(1) FWA may vary a copied State instrument for a transferring
9
employee:
10
(a) to remove terms that FWA is satisfied are not, or will not be,
11
capable of meaningful operation or to vary those terms so
12
that they are capable of meaningful operation; or
13
(b) to remove an ambiguity or uncertainty in the instrument; or
14
(c) to enable the instrument to operate in a way that is better
15
aligned to the working arrangements of the new employer's
16
enterprise; or
17
(d) to resolve an uncertainty or difficulty relating to the
18
interaction between the instrument and the National
19
Employment Standards, or to make the instrument operate
20
effectively with the National Employment Standards; or
21
(e) if the instrument is a copied State employment agreement--
22
to resolve an uncertainty or difficulty relating to the
23
interaction between the instrument and a modern award; or
24
(f) to remove terms that are inconsistent with Part 3-1 (which
25
deals with general protections), or to vary terms to make
26
them consistent with that Part.
27
Note:
Paragraph (d) does not affect a term of the copied State instrument
28
that is permitted by a provision of the National Employment Standards
29
as the provision has effect under section 768AR.
30
Who may apply for a variation
31
(2) FWA may make a variation under subsection (1):
32
(a) on its own initiative; or
33
(b) on application by a person who is, or is likely to be, covered
34
by the copied State instrument; or
35
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(c) on application by an employee organisation that is entitled to
1
represent the industrial interests of:
2
(i) the transferring employee; or
3
(ii) another transferring employee or a non-transferring
4
employee who is, or is likely to be, covered by the
5
copied State instrument.
6
Note:
The copied State instrument for the transferring employee may also
7
cover another transferring employee or a non-transferring employee if
8
a consolidation order is made.
9
Matters that FWA must take into account
10
(3) In deciding whether to make a variation under subsection (1),
11
FWA must take into account the following:
12
(a) the views of:
13
(i) the transferring employee; and
14
(ii) any other transferring employee who is, or will be,
15
covered by the copied State instrument; and
16
(iii) any non-transferring employee who is covered by the
17
copied State instrument; and
18
(iv) the new employer;
19
(b) whether those employees would be disadvantaged by the
20
copied State instrument as varied in relation to their terms
21
and conditions of employment;
22
(c) if the copied State instrument is a copied State employment
23
agreement--the nominal expiry date of the agreement;
24
(d) whether the copied State instrument, without the variation,
25
would have a negative impact on the productivity of the new
26
employer's workplace;
27
(e) whether the new employer would incur significant economic
28
disadvantage as a result of the copied State instrument,
29
without the variation;
30
(f) the degree of business synergy between the copied State
31
instrument, without the variation, and any workplace
32
instrument that already covers the new employer;
33
(g) the public interest.
34
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22 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
Variation relating to the NES
1
(4) If there is a dispute about the making of a variation for the
2
purposes of paragraph (1)(d), FWA may compare the entitlements
3
that are in dispute:
4
(a) on a "line-by-line" basis, comparing individual terms; or
5
(b) on a "like-by-like" basis, comparing entitlements according
6
to particular subject areas; or
7
(c) using any combination of the above approaches FWA sees
8
fit.
9
(5) The regulations may make provisions that apply to determining, for
10
the purposes of paragraph (1)(d), whether terms of a copied State
11
instrument for a transferring employee are, or are not, detrimental
12
in any respect when compared to entitlements under the National
13
Employment Standards.
14
Restriction on when variation may come into operation
15
(6) A variation under subsection (1) operates from the day specified in
16
the determination, which may be a day before the determination is
17
made. However, it must not come into operation in relation to a
18
transferring employee before the re-employment time of the
19
transferring employee.
20
Subdivision C--Termination of copied State instruments
21
768AY Termination in limited circumstances
22
(1) A copied State instrument for a transferring employee cannot be
23
terminated except under items 22, 23, 24, 25 and 26 of
24
Schedule 3A to the Transitional Act (which deal with termination
25
of State employment agreements) as those items have effect
26
because of section 768BY.
27
(2) A copied State instrument for a transferring employee that has been
28
terminated ceases to operate and can never operate again.
29
Note:
A copied State instrument that does not operate cannot cover a person
30
(see subsection 768AN(6)).
31
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Division 6--FWA orders about coverage of copied State
1
instruments and other instruments
2
Subdivision A--Guide to this Division
3
768AZ What this Division is about
4
This Division allows FWA to make an order that a copied State
5
instrument for a transferring employee does not, or will not, cover
6
the employee and that an enterprise agreement or named employer
7
award that covers the new employer covers, or will cover, the
8
employee instead.
9
It also allows FWA to make an order that a copied State instrument
10
for a transferring employee does not, or will not, cover an
11
employee organisation but instead covers, or will cover, another
12
employee organisation.
13
Subdivision B--Coverage orders
14
768BA FWA orders about coverage for transferring employees
15
Orders that FWA may make
16
(1) FWA may make the following orders:
17
(a) an order that a copied State instrument for a transferring
18
employee that would, or would be likely to, cover the
19
transferring employee and the new employer because of
20
subsection 768AN(1) does not, or will not, cover the
21
transferring employee and the new employer;
22
(b) an order that an enterprise agreement or named employer
23
award that covers the new employer at the transferring
24
employee's re-employment time covers, or will cover, the
25
transferring employee.
26
Who may apply for an order
27
(2) FWA may make an order under subsection (1):
28
(a) on its own initiative; or
29
(b) on application by any of the following:
30
Schedule 1 Transfer of business from a State public sector employer
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24 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
(i) the transferring employee;
1
(ii) the new employer;
2
(iii) an employee organisation that is entitled to represent the
3
industrial interests of the transferring employee.
4
Matters that FWA must take into account
5
(3) In deciding whether to make an order under subsection (1), FWA
6
must take into account the following:
7
(a) the views of:
8
(i) the transferring employee; and
9
(ii) the new employer;
10
(b) whether the transferring employee would be disadvantaged
11
by the order in relation to the employee's terms and
12
conditions of employment;
13
(c) if the order relates to a copied State employment agreement
14
for the transferring employee or an enterprise agreement--
15
the nominal expiry date of the agreement;
16
(d) whether the copied State instrument would have a negative
17
impact on the productivity of the new employer's workplace;
18
(e) whether the new employer would incur significant economic
19
disadvantage as a result of the copied State instrument
20
covering the new employer;
21
(f) the degree of business synergy between the copied State
22
instrument and any workplace instrument that already covers
23
the new employer;
24
(g) the public interest.
25
Restriction on when order may come into operation
26
(4) An order under subsection (1) operates from the day specified in
27
the order, which may be any day before the order is made.
28
However, it must not come into operation before the
29
re-employment time of the transferring employee.
30
768BB FWA orders about coverage for employee organisations
31
(1) FWA may make an order that:
32
(a) a copied State instrument for a transferring employee that
33
would, or would be likely to, cover an employee organisation
34
(the first employee organisation) in relation to the
35
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transferring employee because of subsection 768AN(2) does
1
not, or will not, cover the organisation; and
2
(b) another employee organisation (the second employee
3
organisation) is, or will be, covered by the copied State
4
instrument in relation to the employee.
5
(2) When making an order under subsection (1), FWA must consider
6
whether the second employee organisation is a federal counterpart
7
(within the meaning of section 9A of the Registered Organisations
8
Act) of the first employee organisation.
9
(3) The regulations may:
10
(a) prescribe circumstances in which FWA may make an order
11
for the purposes of subsection (1); and
12
(b) otherwise make provision in relation to the making of the
13
order.
14
(4) An order under subsection (1) must be made in accordance with
15
any regulations that are made for the purposes of subsection (3).
16
Division 7--FWA orders about consolidating copied State
17
instruments etc.
18
Subdivision A--Guide to this Division
19
768BC What this Division is about
20
This Division allows FWA to consolidate the various workplace
21
instruments that may apply in the new employer's workplace. It
22
achieves this by allowing FWA to make an order that a copied
23
State instrument for a particular transferring employee is also a
24
copied State instrument for another transferring employee or for a
25
non-transferring employee.
26
Subdivision B deals with consolidating copied State instruments
27
for transferring employees. Under that Subdivision, FWA may
28
make an order that the copied State instrument for a transferring
29
employee ("employee A") is also the copied State instrument for
30
another transferring employee ("employee B"). If FWA makes a
31
consolidation order for employee B, then this Act is modified so
32
Schedule 1 Transfer of business from a State public sector employer
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26 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
that the copied State instrument for employee A is also the copied
1
State instrument for employee B (see section 768BF).
2
Subdivision C deals with non-transferring employees. Under that
3
Subdivision, FWA may make an order that the copied State
4
instrument for employee A (who is a transferring employee) is also
5
the copied State instrument for a non-transferring employee
6
("employee C"). If FWA makes a consolidation order for employee
7
C, then this Act is modified so that the copied State instrument for
8
employee A is also the copied State instrument for employee C
9
(see section 768BI).
10
Subdivision B--Consolidation orders in relation to transferring
11
employees
12
768BD FWA orders to consolidate copied State instruments
13
Consolidation order
14
(1) FWA may make an order (a consolidation order) that a copied
15
State instrument for a transferring employee (employee A) is also a
16
copied State instrument for another transferring employee
17
(employee B).
18
Note:
In addition to making a consolidation order in relation to employee B,
19
FWA may make a similar order in relation to one or more other
20
transferring employees so that the copied State instrument for
21
employee A is also the copied State instrument for each of them.
22
Who may apply for order
23
(2) FWA may make a consolidation order under subsection (1):
24
(a) on its own initiative; or
25
(b) on application by any of the following:
26
(i)
employee
B;
27
(ii) the new employer;
28
(iii) an employee organisation that is entitled to represent the
29
industrial interests of employee B.
30
Matters that FWA must take into account
31
(3) In deciding whether to make a consolidation order under
32
subsection (1), FWA must take into account the following:
33
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(a) the views of:
1
(i) employee B; and
2
(ii) the new employer;
3
(b) whether making the order would disadvantage employee B in
4
relation to his or her terms and conditions of employment;
5
(c) if the copied State instrument for employee A or the copied
6
State instrument for employee B is a copied State
7
employment agreement--the nominal expiry date of the
8
agreement;
9
(d) whether the copied State instrument for employee A would
10
have a negative impact on the productivity of the new
11
employer's workplace;
12
(e) whether the new employer would incur significant economic
13
disadvantage if the order were not made;
14
(f) the degree of business synergy between the copied State
15
instrument for employee A and any workplace instrument
16
that already covers the new employer;
17
(g) the public interest.
18
Restriction on when order may come into operation
19
(4) A consolidation order under subsection (1) operates from the day
20
specified in the order, which may be any day before the order is
21
made. However, it must not come into operation before the
22
re-employment time of employee B.
23
768BE Consolidation order to deal with application and coverage
24
(1) A consolidation order under subsection 768BD(1) must specify
25
when the copied State instrument for employee A applies to, and
26
covers:
27
(a) employee B; and
28
(b) the new employer in relation to employee B; and
29
(c) an employee organisation in relation to employee B;
30
which must not be before employee B's re-employment time.
31
(2) Once the consolidation order is in operation, then the copied State
32
instrument for employee B ceases to operate.
33
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28 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
768BF Effect of this Act after consolidation order made
1
If FWA makes a consolidation order under subsection 768BD(1),
2
then this Act has effect, from the time the order comes into
3
operation, as if a reference in relation to employee B to the copied
4
State instrument for employee B were a reference to the copied
5
State instrument for employee A.
6
Subdivision C--Consolidation orders in relation to
7
non-transferring employees
8
768BG Consolidation orders in relation to non-transferring
9
employees
10
Consolidation order
11
(1) FWA may make an order (a consolidation order) that a copied
12
State instrument for a transferring employee (employee A) is also a
13
copied State instrument for a non-transferring employee (employee
14
C) who performs the transferring work.
15
Note:
In addition to making a consolidation order in relation to employee C,
16
FWA may make a similar order in relation to one or more other
17
non-transferring employees who perform the transferring work so that
18
the copied State instrument for employee A is also the copied State
19
instrument for each of them.
20
Non-transferring employees
21
(2)
A
non-transferring employee of a new employer is an employee of
22
the new employer who is not a transferring employee.
23
Who may apply for order
24
(3) FWA may make a consolidation order under subsection (1):
25
(a) on its own initiative; or
26
(b) on application by any of the following:
27
(i)
employee
C;
28
(ii) the new employer;
29
(iii) an employee organisation that is entitled to represent the
30
industrial interests of employee C.
31
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Matters that FWA must take into account
1
(4) In deciding whether to make a consolidation order under
2
subsection (1), FWA must take into account the following:
3
(a) the views of:
4
(i) employee C; and
5
(ii) the new employer;
6
(b) whether making the order would disadvantage employee C in
7
relation to his or her terms and conditions of employment;
8
(c) if the copied State instrument for employee A is a copied
9
State employment agreement or an enterprise agreement
10
covers employee C--the nominal expiry date of the
11
agreement;
12
(d) whether the copied State instrument for employee A would
13
have a negative impact on the productivity of the new
14
employer's workplace;
15
(e) whether the new employer would incur significant economic
16
disadvantage if the order were not made;
17
(f) the degree of business synergy between the copied State
18
instrument for employee A and any workplace instrument
19
that already covers the new employer;
20
(g) the public interest.
21
Restriction on when order may come into operation
22
(5) A consolidation order under subsection (1) operates from the day
23
specified in the order, which may be a day before the order is
24
made.
25
768BH Consolidation order to deal with application and coverage
26
(1) A consolidation order under subsection 768BG(1) must specify
27
when the copied State instrument for employee A applies to, and
28
covers:
29
(a) employee C; and
30
(b) the new employer in relation to employee C; and
31
(c) an employee organisation in relation to employee C;
32
in relation to the transferring work.
33
Schedule 1 Transfer of business from a State public sector employer
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30 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
(2) If an enterprise agreement covers employee C and the new
1
employer in relation to the transferring work, the order must also
2
specify that the agreement does not cover:
3
(a) employee C; or
4
(b) the new employer in relation to employee C; or
5
(c) an employee organisation in relation to employee C;
6
in relation to that work.
7
768BI Effect of this Act after consolidation order made
8
If FWA makes a consolidation order under subsection 768BG(1),
9
then this Act has effect in relation to employee C, from the time the
10
order comes into operation, as if:
11
(a) the copied State instrument for employee A were also the
12
copied State instrument for employee C; and
13
(b) employee C were a transferring employee in relation to that
14
copied State instrument.
15
Division 8--Special rules for copied State instruments
16
Subdivision A--Guide to this Division
17
768BJ What this Division is about
18
This Division has a collection of special rules for copied State
19
instruments for transferring employees.
20
Subdivision B deals with the case where a copied State instrument
21
for a transferring employee does not have a term about settling
22
disputes about matters arising under the instrument. In that case,
23
the model term prescribed by the regulations is taken to be a term
24
of the instrument.
25
Subdivision C is about working out service and entitlements of a
26
transferring employee. This is particularly relevant for working out
27
the employee's entitlements under the National Employment
28
Standards and the copied State instrument for the employee.
29
Subdivision D deals with the case where a copied State award for a
30
transferring employee ceases to operate and the employee suffers a
31
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Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 31
reduction in take home pay. That Subdivision allows FWA to make
1
a take-home pay order to compensate the employee.
2
Subdivision E modifies particular provisions of this Act in relation
3
to copied State instruments.
4
Subdivision F modifies particular provisions of the Transitional
5
Act in relation to copied State instruments.
6
Subdivision G modifies particular provisions of the Registered
7
Organisations Act in relation to copied State instruments.
8
Subdivision B--Terms about disputes
9
768BK Where no term dealing with disputes
10
(1) If a copied State instrument for a transferring employee does not
11
include a term that provides a procedure for settling disputes about
12
matters arising under the instrument, then the instrument is taken to
13
include the model term that is prescribed by the regulations for
14
settling disputes about matters arising under a copied State
15
instrument for a transferring employee.
16
Note:
This section deals with the situation where the original State award or
17
original State agreement for the copied State instrument did not
18
include a term about settling disputes about matters arising under the
19
award or agreement.
20
(2) For the purposes of subsection (1), the model term prescribed for a
21
copied State award for a transferring employee may be the same or
22
different from the model term prescribed for a copied State
23
employment agreement for a transferring employee.
24
Subdivision C--Service and entitlements of a transferring
25
employee
26
768BL Service for the purposes of this Act
27
General rule
28
(1) Service of a transferring employee with the old State employer that
29
occurred before the employee's termination time also counts as
30
service of the employee with the new employer for the purposes of
31
Schedule 1 Transfer of business from a State public sector employer
Part 1 Main amendments
32 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
this Act (including for the purposes of determining the employee's
1
entitlements under the National Employment Standards) after the
2
employee's re-employment time.
3
Gap between termination time and re-employment time
4
(2) If there is a period of time between the employee's termination
5
time with the old State employer and the employee's
6
re-employment time with the new employer, then that period:
7
(a) does not break the employee's continuous service with the
8
new employer (taking account of the effect of
9
subsection (1)); but
10
(b) does not count towards the length of the employee's
11
continuous service with the new employer.
12
768BM NES--working out non-accruing entitlements
13
Application of this section
14
(1) This section applies for the purposes of determining the
15
entitlements of a transferring employee under the National
16
Employment Standards, other than entitlements to:
17
(a) paid annual leave; or
18
(b) paid personal/carer's leave.
19
Note:
For entitlements to paid annual leave and paid personal/carer's leave
20
under the National Employment Standards, see section 768BN.
21
No double entitlement
22
(2) If, before or after the employee's termination time, the employee
23
has the benefit of an entitlement, the amount of which is calculated
24
by reference to a period of service, then subsection 768BL(1) does
25
not result in that period of service with the old State employer
26
being counted again when calculating the employee's entitlements
27
of that kind under the National Employment Standards.
28
(3) To avoid doubt, subsection (2) does not require the employee to
29
serve any initial qualifying period of service for long service leave
30
again.
31
Transfer of business from a State public sector employer Schedule 1
Main amendments Part 1
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 33
Limitation on application of general rule to redundancy pay
1
(4) If the terms and conditions of employment that applied to the
2
employee's employment by the old State employer immediately
3
before the employee's termination time did not provide for an
4
entitlement to redundancy pay, then subsection 768BL(1) does not
5
apply in relation to the employee and the new employer for the
6
purposes of Subdivision B of Division 11 of Part 2-2 (which deals
7
with redundancy pay).
8
(5) If a State industrial body could have made an order giving the
9
employee an entitlement to redundancy pay (however described),
10
had the employee's employment been terminated for redundancy
11
(however described) before the employee's termination time, then:
12
(a) the terms and conditions of the employee's employment
13
referred to in subsection (4) are taken to have provided for an
14
entitlement to redundancy pay; and
15
(b) paragraph 121(1)(b) does not apply in relation to the
16
employee during the 12 months starting at the employee's
17
re-employment time.
18
Note:
Because of paragraph (b), the employee may therefore be entitled to
19
redundancy pay under section 119 if the employee's employment is
20
terminated by the new employer during the 12-month period starting
21
at the employee's termination time, even if the new employer is a
22
small business employer.
23
768BN NES--working out accruing entitlements
24
Application of this section
25
(1) This section applies for the purposes of determining the
26
entitlements of a transferring employee under the National
27
Employment Standards to:
28
(a) paid annual leave; or
29
(b) paid personal/carer's leave;
30
if the employee had, immediately before the employee's
31
termination time, an accrued entitlement to an amount of:
32
(c) paid annual leave (however described); or
33
(d) paid personal or carer's leave (however described).
34
Note:
For other entitlements under the National Employment Standards, see
35
section 768BM.
36
Schedule 1 Transfer of business from a State public sector employer
Part 1 Main amendments
34 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
Leave accrued for purposes of the NES
1
(2) The provisions of the National Employment Standards relating to:
2
(a) taking that kind of leave (including rates of pay while taking
3
leave); or
4
(b) cashing-out that kind of leave;
5
apply as a minimum standard to the accrued leave, after the
6
employee's re-employment time, as if it had accrued under the
7
National Employment Standards.
8
No double entitlement
9
(3) However, if before or after the employee's termination time, the
10
old State employer paid the employee an amount in relation to
11
some or all of the accrued leave, then for the purposes of
12
subsection (2), the amount of accrued leave is reduced accordingly.
13
Working out whether leave accrued
14
(4) For the purposes of subsection (1), it does not matter whether the
15
entitlement to leave accrued under:
16
(a) the original State award or original State agreement for the
17
copied State instrument for the employee; or
18
(b) a State industrial law of the State.
19
768BO Copied State instrument--service
20
General rule
21
(1) Service of a transferring employee with the old State employer
22
that:
23
(a) occurred before the employee's termination time; and
24
(b) counted for the purposes of the application to the employee
25
of the original State award or original State agreement for the
26
copied State instrument for the employee;
27
also counts as service of the employee with the new employer for
28
the purposes of the application to the employee of the copied State
29
instrument after the employee's re-employment time.
30
Transfer of business from a State public sector employer Schedule 1
Main amendments Part 1
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 35
Gap between termination time and re-employment time
1
(2) If there is a period of time between the employee's termination
2
time with the old State employer and the employee's
3
re-employment time with the new employer, then that period:
4
(a) does not break the employee's continuous service with the
5
new employer (taking account of the effect of
6
subsection (1)); but
7
(b) does not count towards the length of the employee's
8
continuous service with the new employer.
9
Effect of consolidation order
10
(3) If FWA makes a consolidation order under subsection 768BD(1),
11
then, despite section 768BF, the original State award or original
12
State agreement referred to in paragraph (1)(b) of this section is the
13
original State award or original State agreement for the copied
14
State instrument for the employee before the consolidation order
15
was made.
16
768BP Copied State instrument--working out non-accruing
17
entitlements
18
Application of this section
19
(1) This section applies for the purposes of determining the
20
entitlements of a transferring employee under a copied State
21
instrument for the employee, other than entitlements to:
22
(a) annual leave (however described); or
23
(b) personal leave or carer's leave (however described).
24
Note:
For entitlements to annual leave or personal leave or carer's leave
25
under the copied State instrument, see section 768BQ.
26
No double entitlement
27
(2) If, before or after the employee's termination time, the employee
28
has the benefit of an entitlement, the amount of which is calculated
29
by reference to a period of service, then subsection 768BO(1) does
30
not result in that period of service with the old State employer
31
being counted again when calculating the employee's entitlements
32
of that kind under the copied State instrument for the employee.
33
Schedule 1 Transfer of business from a State public sector employer
Part 1 Main amendments
36 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
(3) To avoid doubt, subsection (2) does not require the employee to
1
serve any initial qualifying period of service for long service leave
2
again.
3
768BQ Copied State instrument--working out accruing entitlements
4
Application of this section
5
(1) This section applies for the purposes of determining the
6
entitlements of a transferring employee under the copied State
7
instrument for the employee to:
8
(a) annual leave (however described); or
9
(b) personal leave or carer's leave (however described).
10
Note:
For other entitlements under the copied State instrument, see
11
section 768BP.
12
Leave accrued for purposes of the instrument
13
(2) If the employee had, immediately before the employee's
14
termination time, an accrued entitlement to an amount of:
15
(a) annual leave (however described); or
16
(b) personal leave or carer's leave (however described);
17
then the accrued leave is taken to have accrued under the copied
18
State instrument for the employee.
19
No double entitlement
20
(3) However, if before or after the employee's termination time, the
21
old State employer paid the employee an amount in relation to
22
some or all of the accrued leave, then for the purposes of
23
subsection (2), the amount of accrued leave is reduced accordingly.
24
Working out whether leave accrued
25
(4) For the purposes of subsection (2), it does not matter whether the
26
leave accrued under:
27
(a) the original State award or original State agreement for the
28
copied State instrument; or
29
(b) a State industrial law of the State.
30
Transfer of business from a State public sector employer Schedule 1
Main amendments Part 1
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 37
Subdivision D--Cessation of copied State awards: avoiding
1
reductions in take-home pay
2
768BR Cessation not intended to result in reduction in take-home
3
pay
4
(1) If a copied State award for a transferring employee ceases to
5
operate because of subsection 768AO(2), the cessation is not
6
intended to result in a reduction in the take-home pay of the
7
employee.
8
(2) A transferring employee's take-home pay is the pay the employee
9
actually receives:
10
(a) including wages and incentive-based payments, and
11
additional amounts such as allowances and overtime; but
12
(b) disregarding the effect of any deductions that are made as
13
permitted by section 324.
14
Note:
Deductions permitted by section 324 may (for example) include
15
deductions under salary sacrificing arrangements.
16
(3) A transferring employee suffers a reduction in take-home pay if,
17
and only if:
18
(a) when the copied State award for the employee ceases to
19
operate because of subsection 768AO(2), the employee
20
becomes a person to whom a modern award applies; and
21
(b) the employee is employed in the same position as (or a
22
position that is comparable to) the position he or she was
23
employed in immediately before the cessation of the copied
24
State award; and
25
(c) the amount of the employee's take-home pay for working
26
particular hours or for a particular quantity of work after the
27
cessation of the copied State award is less than what would
28
have been the employee's take-home pay for those hours or
29
that quantity of work immediately before the cessation; and
30
(d) that reduction in the employee's take-home pay is
31
attributable to the cessation of the copied State award.
32
768BS Orders remedying reductions in take-home pay
33
(1) If FWA is satisfied that a transferring employee to whom a modern
34
award applies has suffered a reduction in take-home pay, FWA
35
Schedule 1 Transfer of business from a State public sector employer
Part 1 Main amendments
38 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
may make any order (a take-home pay order) requiring, or relating
1
to, the payment of an amount or amounts to the employee that
2
FWA considers appropriate to remedy the situation.
3
(2) FWA may make a take-home pay order:
4
(a) on its own initiative; or
5
(b) on application by either of the following:
6
(i) a transferring employee who has suffered a reduction in
7
take-home pay;
8
(ii) an organisation that is entitled to represent the industrial
9
interests of the employee.
10
(3) FWA must not make a take-home pay order if:
11
(a) FWA considers that the reduction in take-home pay is minor
12
or insignificant; or
13
(b) FWA is satisfied that the employee has been adequately
14
compensated in other ways for the reduction.
15
(4) FWA must ensure that a take-home pay order is expressed so that:
16
(a) it does not apply to a transferring employee unless the
17
employee has actually suffered a reduction in take-home pay;
18
and
19
(b) if the take-home pay payable to the employee under the
20
modern award increases after the order is made, there is a
21
corresponding reduction in any amount payable to the
22
employee under the order.
23
(5) If FWA is satisfied that an application for a take-home pay order
24
has already been made in relation to a transferring employee, FWA
25
may dismiss any later application that is made under these
26
provisions in relation to the same employee.
27
768BT Contravening a take-home pay order
28
A person must not contravene a term of a take-home pay order that
29
applies to the person.
30
Note:
This section is a civil remedy provision (see Part 4-1).
31
768BU How long a take-home pay order continues to apply
32
A take-home pay order made in relation to a transferring employee
33
to whom a particular modern award applies continues to apply in
34
Transfer of business from a State public sector employer Schedule 1
Main amendments Part 1
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 39
relation to the employee (subject to the terms of the order) for so
1
long as the modern award continues to cover the employee.
2
Note:
It does not matter if the modern award stops applying to the employee
3
because an enterprise agreement starts to apply.
4
768BV Interaction of take-home pay orders with modern awards
5
and enterprise agreements
6
A term of a modern award or an enterprise agreement has no effect
7
in relation to a transferring employee to the extent that it is less
8
beneficial to the employee than a term of a take-home pay order
9
that applies to the employee.
10
768BW Application of this Act to take-home pay orders
11
This Act applies as if the following provisions included a reference
12
to a take-home pay order:
13
(a) subsection 675(2) (which is about FWA orders);
14
(b) subsection 706(2) (which is about powers of inspectors).
15
Subdivision E--Modification of this Act
16
768BX Modification of this Act for copied State instruments
17
This Act has effect in relation to a transferring employee on and
18
after the employee's re-employment time as if a reference in a
19
provision referred to in column 1 to a term referred to in column 2
20
included a reference to the term referred to in column 3.
21
22
Modification of this Act for copied State instruments
Item Column
1
Provision of this Act
Column 2
Current term
Column 3
New term
1
Division 2 of Part 2-9
(payment of wages)
modern award
copied State award for the
transferring employee
2
Division 2 of Part 2-9
(payment of wages)
enterprise
agreement
copied State employment
agreement for the transferring
employee
3
Division 3 of Part 2-9
(guarantee of annual
earnings)
modern award
copied State award for the
transferring employee
Schedule 1 Transfer of business from a State public sector employer
Part 1 Main amendments
40 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
Modification of this Act for copied State instruments
Item Column
1
Provision of this Act
Column 2
Current term
Column 3
New term
4
Division 3 of Part 2-9
(guarantee of annual
earnings)
enterprise
agreement
copied State employment
agreement for the transferring
employee
5
Part 3-2 (unfair
dismissal)
modern award
copied State award for the
transferring employee
6
Part 3-2 (unfair
dismissal)
enterprise
agreement
copied State employment
agreement for the transferring
employee
7
Division 9 of Part 3-3
(payments relating to
periods of industrial
action)
modern award
copied State award for the
transferring employee
8
Division 9 of Part 3-3
(payments relating to
periods of industrial
action)
enterprise
agreement
copied State employment
agreement for the transferring
employee
9 subsection
481(1)
(right of entry)
fair work
instrument
copied State instrument for the
transferring employee
10 subsection
524(2)
(stand down)
enterprise
agreement
copied State instrument for the
transferring employee
11
Part 4-1 (compliance)
fair work
instrument
copied State instrument for the
transferring employee
12
section 657 (General
Manager)
fair work
instrument
copied State instrument for the
transferring employee
13
Part 5-2 (Fair Work
Ombudsman)
fair work
instrument
copied State instrument for the
transferring employee
14
Part 5-2 (Fair Work
Ombudsman)
modern award
copied State award for the
transferring employee
15
Part 5-2 (Fair Work
Ombudsman)
enterprise
agreement
copied State employment
agreement for the transferring
employee
16
Part 6-2 (dealing with
disputes)
modern award
copied State award for the
transferring employee
17
Part 6-2 (dealing with
disputes)
enterprise
agreement
copied State employment
agreement for the transferring
employee
Transfer of business from a State public sector employer Schedule 1
Main amendments Part 1
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 41
Modification of this Act for copied State instruments
Item Column
1
Provision of this Act
Column 2
Current term
Column 3
New term
18
Part 6-2 (dealing with
disputes)
fair work
instrument
copied State instrument for the
transferring employee
1
Subdivision F--Modification of the Transitional Act
2
768BY Modification of the Transitional Act for copied State
3
instruments
4
(1) Each relevant transitional provision (see subsection (2)) has effect
5
in relation to a transferring employee as if a reference to a term
6
referred to in column 1 were a reference to the term referred to in
7
column 2. The provision has effect from the time specified in
8
column 3 of the table in subsection (2).
9
10
Modification of the Transitional Act and regulations for copied State
instruments
Item Column
1
Current term
Column 2
New term
1
Division 2B State instrument
copied State instrument for the transferring
employee
2
Division 2B State award
copied State award for the transferring
employee
3
Division 2B State award
applying (within the meaning
of the Transitional Act) to a
person
copied State award for the transferring
employee applying (within the meaning of
this Act) to a person
4
Division 2B State award
covering (within the meaning
of the Transitional Act) a
person
copied State award for the transferring
employee covering (within the meaning of
this Act) a person
5
Division 2B State employment
agreement
copied State employment agreement for
the transferring employee
6
collective Division 2B State
employment agreement
copied State collective employment
agreement for the transferring employee
Schedule 1 Transfer of business from a State public sector employer
Part 1 Main amendments
42 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
Modification of the Transitional Act and regulations for copied State
instruments
Item Column
1
Current term
Column 2
New term
7
individual Division 2B State
employment agreement
copied State individual employment
agreement for the transferring employee
8
Division 2B State employment
agreement applying (within
the meaning of the
Transitional Act) to a person
copied State employment agreement for
the transferring employee applying (within
the meaning of this Act) to a person
9
Division 2B State employment
agreement covering (within
the meaning of the
Transitional Act) a person
copied State employment agreement for
the transferring employee covering (within
the meaning of this Act) a person
10
nominal expiry date of a
Division 2B State employment
agreement
nominal expiry date of a copied State
employment agreement for the transferring
employee
11 Division
2B
referral
commencement
transferring employee's termination time
12
Division 2B State reference
employee
transferring employee
13
Division 2B referring State
the State of the old State employer
14
source State
the State of the old State employer
1
(2) For the purposes of subsection (1), the relevant transitional
2
provisions are:
3
(a) the provisions of the Transitional Act that are listed in
4
column 1; and
5
(b) the regulations made for the purposes of those provisions.
6
7
Modification of the Transitional Act and regulations for copied State
instruments
Item Column
1
Relevant transitional
provision
Column 2
Which is about
Column 3
Relevant time
1
item 10 of Schedule 3A
instrument content rules
the transferring
employee's
Transfer of business from a State public sector employer Schedule 1
Main amendments Part 1
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 43
Modification of the Transitional Act and regulations for copied State
instruments
Item Column
1
Relevant transitional
provision
Column 2
Which is about
Column 3
Relevant time
termination time
2
item 11 of Schedule 3A
instrument interaction
rules
the transferring
employee's
termination time
3
item 13 of Schedule 3A
references to State
industrial bodies
the transferring
employee's
termination time
4
item 17 of Schedule 3A
no loss of accrued rights
etc. when instrument
terminates
the transferring
employee's
re-employment time
5
item 20 of Schedule 3A
variation of
discriminatory
instruments
the transferring
employee's
termination time
6
item 22 of Schedule 3A
collective agreements--
termination by agreement
the transferring
employee's
re-employment time
7
item 23 of Schedule 3A
collective agreements--
termination by FWA
the transferring
employee's
re-employment time
8
item 24 of Schedule 3A
individual agreements--
termination by agreement
the transferring
employee's
re-employment time
9
item 25 of Schedule 3A
individual agreements--
termination conditional
on enterprise agreement
the transferring
employee's
re-employment time
10
item 26 of Schedule 3A
individual agreements--
unilateral termination by
FWA
the transferring
employee's
re-employment time
11
item 47 of Schedule 3A
employee not
award/agreement free
the transferring
employee's
re-employment time
12
item 48 of Schedule 3A
calculating an
employee's ordinary
hours of work
the transferring
employee's
re-employment time
13
items 19, 20 and 21 of
interaction with the NES
the transferring
Schedule 1 Transfer of business from a State public sector employer
Part 1 Main amendments
44 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
Modification of the Transitional Act and regulations for copied State
instruments
Item Column
1
Relevant transitional
provision
Column 2
Which is about
Column 3
Relevant time
Schedule 4
employee's
re-employment time
14
Part 5 of Schedule 9
base rates of pay
the transferring
employee's
re-employment time
15
Division 4 of Part 3 of
Schedule 11
transfer of business
the transferring
employee's
re-employment time
16
item 4 of Schedule 12
general protections
the transferring
employee's
termination time
17
items 2, 3, 4 and 17 of
Schedule 13
industrial action
the transferring
employee's
re-employment time
18
item 4B of Schedule 16
(as that item relates to
subitems 25(6) and (7) of
Schedule 3A) and
item 16 of Schedule 16
(as that item relates to
item 4B of Schedule 16)
compliance relating to
conditional terminations
of individual
employment agreements
the transferring
employee's
re-employment time
19
items 12 and 13 of
Schedule 16 and item 16
of Schedule 16 (as that
item relates to those
items)
compliance relating to
non-disclosure
obligations
the transferring
employee's
re-employment time
Transfer of business from a State public sector employer Schedule 1
Main amendments Part 1
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 45
Subdivision G--Modification of the Registered Organisations
1
Act
2
768BZ Modification of the Registered Organisations Act for copied
3
State instruments
4
(1) The Registered Organisations Act has effect in relation to a
5
transferring employee on and after the employee's termination time
6
as if:
7
(a) a reference in that Act to a modern award included a
8
reference to a copied State award for the employee; and
9
(b) a reference in that Act to an enterprise agreement included a
10
reference to a copied State employment agreement for the
11
employee.
12
(2) The regulations may deal with other matters relating to how the
13
Registered Organisations Act applies in relation to a transferring
14
employee.
15
Division 9--Regulations
16
768CA Regulations
17
(1) The regulations may:
18
(a) make provision in relation to the transition from State awards
19
and State employment agreements to copied State
20
instruments; and
21
(b) make provision in relation to the transition from copied State
22
instruments to modern awards and enterprise agreements; and
23
(c) deal with how this Act applies in relation to copied State
24
instruments for transferring employees; and
25
(d) provide that provisions of this Act or the Transitional Act
26
apply in relation to transferring employees or new employers
27
with specified modifications; and
28
(e) otherwise make provision relating to how provisions of this
29
Act or the Transitional Act apply in relation to transferring
30
employees or new employers; and
31
(f) make provision in relation to non-transferring employees of
32
the new employer; and
33
Schedule 1 Transfer of business from a State public sector employer
Part 1 Main amendments
46 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
(g) provide that provisions of this Act or the Transitional Act
1
apply in relation to the non-transferring employees with
2
specified modifications; and
3
(h) make other provision in relation to the matters dealt with in
4
this Part.
5
(2) Without limiting subsection (1), the regulations may:
6
(a) modify provisions of this Act or the Transitional Act, or
7
provide for the application (with or without modifications) of
8
provisions of this Act or the Transitional Act to matters to
9
which they would otherwise not apply; and
10
(b) provide differently for the purposes of different provisions, or
11
in relation to different situations.
12
(3) However, this section does not allow regulations to:
13
(a) modify a provision so as to impose an obligation which, if
14
contravened, constitutes an offence; or
15
(b) include new provisions that create offences.
16
(4) The provisions of this Part (including this section) that provide for
17
regulations to deal with matters do not limit each other.
18
19
Transfer of business from a State public sector employer Schedule 1
Other amendments Part 2
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 47
Part 2--Other amendments
1
Fair Work Act 2009
2
2 After subsection 9(4)
3
Insert:
4
(4A) Part 6-3A provides for the transfer of terms and conditions of
5
employment that are provided for in particular State industrial
6
instruments if there is a transfer of business from a non-national
7
system employer that is a State public sector employer of the State
8
to a national system employer.
9
3 Section 9A (note)
10
Omit "Fair Work (Transitional Provisions and Consequential
11
Amendments) Act 2009", substitute "Transitional Act".
12
4 Section 12 (at the end of the definition of applies)
13
Add:
14
; and (c) in relation to a copied State instrument: see section 768AM.
15
5 Section 12 (paragraphs (a), (b) and (c) of the definition of
16
award modernisation process)
17
Omit "Fair Work (Transitional Provisions and Consequential
18
Amendments) Act 2009", substitute "Transitional Act".
19
6 Section 12
20
Insert:
21
consolidation order:
22
(a) in relation to a transferring employee--see subsection
23
768BD(1); and
24
(b) in relation to a non-transferring employee--see subsection
25
768BG(1).
26
7 Section 12
27
Insert:
28
copied State award: see subsection 768AI(1).
29
Schedule 1 Transfer of business from a State public sector employer
Part 2 Other amendments
48 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
8 Section 12
1
Insert:
2
copied State collective employment agreement: see subsection
3
768AK(4).
4
9 Section 12
5
Insert:
6
copied State employment agreement: see subsection 768AK(1).
7
10 Section 12
8
Insert:
9
copied State individual employment agreement: see subsection
10
768AK(5).
11
11 Section 12
12
Insert:
13
copied State instrument: see section 768AH.
14
12 Section 12 (at the end of the definition of covers)
15
Add:
16
; and (d) in relation to a copied State instrument: see section 768AN.
17
13 Section 12
18
Insert:
19
employee A, in relation to a transfer of business referred to in
20
Part 6-3A: see subsections 768BD(1) and 768BG(1).
21
14 Section 12
22
Insert:
23
employee B, in relation to a transfer of business referred to in
24
Part 6-3A: see subsection 768BD(1).
25
15 Section 12
26
Insert:
27
Transfer of business from a State public sector employer Schedule 1
Other amendments Part 2
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 49
employee C, in relation to a transfer of business referred to in
1
Part 6-3A: see subsection 768BG(1).
2
16 Section 12 (paragraph (c) of the definition of industrial
3
body)
4
Omit "Fair Work (Registered Organisations) Act 2009", substitute
5
"Registered Organisations Act".
6
17 Section 12 (paragraph (b) of the definition of industrial
7
law)
8
Omit "Fair Work (Registered Organisations) Act 2009", substitute
9
"Registered Organisations Act".
10
18 Section 12
11
Insert:
12
law enforcement officer has the same meaning as in subsection
13
30K(1).
14
19 Section 12 (definition of new employer)
15
Repeal the definition, substitute:
16
new employer:
17
(a) in relation to a transfer of business referred to in Part 2-8--
18
see subsection 311(1); and
19
(b) in relation to a transfer of business referred to in Part 6-3A--
20
see subsection 768AD(1).
21
20 Section 12 (at the end of the definition of nominal expiry
22
date)
23
Add:
24
; or (d) of a copied State employment agreement: see subsection
25
768AO(5).
26
21 Section 12 (definition of non-transferring employee)
27
Repeal the definition, substitute:
28
non-transferring employee:
29
(a) in relation to a transfer of business referred to in Part 2-8--
30
see subsection 314(2); and
31
Schedule 1 Transfer of business from a State public sector employer
Part 2 Other amendments
50 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
(b) in relation to a transfer of business referred to in Part 6-3A--
1
see subsection 768BG(2).
2
22 Section 12
3
Insert:
4
old State employer: see subsection 768AD(1).
5
23 Section 12 (definition of organisation)
6
Omit "Fair Work (Registered Organisations) Act 2009", substitute
7
"Registered Organisations Act".
8
24 Section 12
9
Insert:
10
original State agreement, in relation to a copied State employment
11
agreement: see subparagraph 768AK(1)(b)(i).
12
25 Section 12
13
Insert:
14
original State award, in relation to a copied State award: see
15
subparagraph 768AI(1)(b)(i).
16
26 Section 12
17
Insert:
18
reduction in take-home pay: see subsection 768BR(3).
19
27 Section 12
20
Insert:
21
re-employment time, in relation to a transferring employee covered
22
by a transfer of business referred to in Part 6-3A: see subsection
23
768AE(3).
24
28 Section 12
25
Insert:
26
Registered Organisations Act means the Fair Work (Registered
27
Organisations) Act 2009.
28
Transfer of business from a State public sector employer Schedule 1
Other amendments Part 2
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 51
29 Section 12
1
Insert:
2
State award: see section 768AJ.
3
30 Section 12
4
Insert:
5
State collective employment agreement: see subsection 768AL(3).
6
31 Section 12
7
Insert:
8
State employment agreement: see subsections 768AL(1) and (2).
9
32 Section 12
10
Insert:
11
State individual employment agreement: see subsection
12
768AL(4).
13
33 Section 12
14
Insert:
15
State industrial law means a law of a State that is a State or
16
Territory industrial law.
17
34 Section 12
18
Insert:
19
State public sector employee, of a State, means:
20
(a) an employee of a State public sector employer of the State; or
21
(b) any other non-national system employee in the State of a
22
kind specified in the regulations;
23
and includes a law enforcement officer of the State.
24
35 Section 12
25
Insert:
26
State public sector employer, of a State, means a non-national
27
system employer that is:
28
Schedule 1 Transfer of business from a State public sector employer
Part 2 Other amendments
52 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
(a) the State, the Governor of the State or a Minister of the State;
1
or
2
(b) a body corporate that is established for a public purpose by or
3
under a law of the State, by the Governor of the State or by a
4
Minister of the State; or
5
(c) a body corporate in which the State has a controlling interest;
6
or
7
(d) a person who employs individuals for the purposes of an
8
unincorporated body that is established for a public purpose
9
by or under a law of the State, by the Governor of the State or
10
by a Minister of the State; or
11
(e) any other employer in the State of a kind specified in the
12
regulations;
13
and includes a non-national system employer of law enforcement
14
officers of the State.
15
36 Section 12
16
Insert:
17
take-home pay: see subsection 768BR(2).
18
37 Section 12
19
Insert:
20
take-home pay order: see subsection 768BS(1).
21
38 Section 12
22
Insert:
23
termination time, in relation to a transferring employee covered by
24
a transfer of business referred to in Part 6-3A: see subsection
25
768AE(2).
26
39 Section 12 (definition of transfer of business)
27
Repeal the definition, substitute:
28
transfer of business:
29
(a) for a transfer of business between a national system employer
30
and another national system employer--see subsection
31
311(1); and
32
Transfer of business from a State public sector employer Schedule 1
Other amendments Part 2
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 53
(b) for a transfer of business between a non-national system
1
employer that is a State public sector employer and a national
2
system employer--see subsection 768AD(1).
3
40 Section 12 (definition of transferring employee)
4
Repeal the definition, substitute:
5
transferring employee:
6
(a) in relation to a transfer of business referred to in Part 2-8--
7
see subsection 311(2); and
8
(b) in relation to a transfer of business referred to in Part 6-3A--
9
see subsection 768AE(1).
10
41 Section 12 (definition of transferring work)
11
Repeal the definition, substitute:
12
transferring work:
13
(a) in relation to a transfer of business referred to in Part 2-8--
14
see paragraph 311(1)(c); and
15
(b) in relation to a transfer of business referred to in Part 6-3A--
16
see paragraph 768AD(1)(c).
17
42 Section 12
18
Insert:
19
Transitional Act means the Fair Work (Transitional Provisions
20
and Consequential Amendments) Act 2009.
21
43 Section 12 (paragraph (b) of the definition of workplace
22
law)
23
Omit "Fair Work (Registered Organisations) Act 2009", substitute
24
"Registered Organisations Act".
25
44 Paragraphs 14A(2)(a) and (b)
26
Omit "Fair Work (Transitional Provisions and Consequential
27
Amendments) Act 2009", substitute "Transitional Act".
28
45 At the end of subsection 43(1)
29
Add:
30
Schedule 1 Transfer of business from a State public sector employer
Part 2 Other amendments
54 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
Note 3:
Copied State instruments provide the main terms and conditions of
1
employment for an employee to whom the instrument applies. See
2
Part 6-3A generally for the rules about those instruments.
3
46 Paragraph 48(2)(a)
4
Omit "Fair Work (Registered Organisations) Act 2009", substitute
5
"Registered Organisations Act".
6
47 Paragraph 53(3)(a)
7
Omit "Fair Work (Registered Organisations) Act 2009", substitute
8
"Registered Organisations Act".
9
48 Paragraph 113(3A)(b)
10
Omit "Fair Work (Transitional Provisions and Consequential
11
Amendments) Act 2009", substitute "Transitional Act".
12
49 Subsection 113(7)
13
Omit "Fair Work (Transitional Provisions and Consequential
14
Amendments) Act 2009", substitute "Transitional Act".
15
50 Subsection 113A(4)
16
Omit "Fair Work (Transitional Provisions and Consequential
17
Amendments) Act 2009", substitute "Transitional Act".
18
51 Subsections 143(8) and (10)
19
Omit "Fair Work (Transitional Provisions and Consequential
20
Amendments) Act 2009", substitute "Transitional Act".
21
52 Subsection 168C(1) (note)
22
Omit "Fair Work (Transitional Provisions and Consequential
23
Amendments) Act 2009", substitute "Transitional Act".
24
53 Subsection 168G(4)
25
Omit "Fair Work (Transitional Provisions and Consequential
26
Amendments) Act 2009", substitute "Transitional Act".
27
54 Section 307 (at the end of the first paragraph)
28
Add "(For a transfer of business from a non-national system employer
29
that is a State public sector employer to a national system employer, see
30
Part 6-3A.)".
31
Transfer of business from a State public sector employer Schedule 1
Other amendments Part 2
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 55
55 Subsection 539(2) (after table item 34)
1
Insert:
2
3
Part 6-3A--Transfer of business from a State public sector employer
34A 768AG
(a) the transferring
employee;
(b) an employer;
(c) an employee
organisation;
(d) an employer
organisation;
(e) an inspector
(a) the Federal Court;
(b) the Federal
Magistrates
Court;
(c) an eligible State
or Territory court
60 penalty
units
34B 768BT
(a) the transferring
employee;
(b) an employer;
(c) an employee
organisation;
(d) an inspector
(a) the Federal Court;
(b) the Federal
Magistrates
Court;
(c) an eligible State
or Territory court
60 penalty
units
4
56 Section 576 (note)
5
Omit "Fair Work (Registered Organisations) Act 2009", substitute
6
"Registered Organisations Act".
7
57 Subparagraph 596(4)(b)(ii)
8
Omit "Fair Work (Registered Organisations) Act 2009", substitute
9
"Registered Organisations Act".
10
58 Paragraph 604(1)(b)
11
Omit "Fair Work (Registered Organisations) Act 2009", substitute
12
"Registered Organisations Act".
13
59 Subparagraph 613(2)(a)(ii)
14
Omit "Fair Work (Registered Organisations) Act 2009", substitute
15
"Registered Organisations Act".
16
60 After paragraph 789BA(1)(e)
17
Insert:
18
Schedule 1 Transfer of business from a State public sector employer
Part 2 Other amendments
56 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
(ea) Part 6-3A (transfer of business from a State public sector
1
employer);
2
61 Subparagraph 789CA(1)(c)(iv)
3
Omit "Fair Work (Transitional Provisions and Consequential
4
Amendments) Act 2009", substitute "Transitional Act".
5
62 Paragraphs 789DE(2)(c) and 5(c)
6
Omit "Fair Work (Transitional Provisions and Consequential
7
Amendments) Act 2009", substitute "Transitional Act".
8
63 Paragraph 4(1)(b) of Schedule 1
9
Omit "Fair Work (Transitional Provisions and Consequential
10
Amendments) Act 2009", substitute "Transitional Act".
11
64 Subclause 7(3) of Schedule 1 (heading)
12
Repeal the heading, substitute:
13
Application to TCF outworkers of provisions of the Transitional
14
Act
15
65 Subclause 7(3) of Schedule 1
16
Omit "Fair Work (Transitional Provisions and Consequential
17
Amendments) Act 2009", substitute "Transitional Act".
18
66 Paragraph 7(4)(a) of Schedule 1
19
Omit "Fair Work (Transitional Provisions and Consequential
20
Amendments) Act 2009", substitute "Transitional Act".
21
67 After Part 1 of Schedule 1
22
Insert:
23
Transfer of business from a State public sector employer Schedule 1
Other amendments Part 2
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 57
Part 2--Amendments made by the Fair Work
1
Amendment (Transfer of Business) Act
2
2012
3
4
8 Definitions
5
In this Part:
6
amended Act means this Act as amended by the amending Act.
7
amending Act means the Fair Work Amendment (Transfer of
8
Business) Act 2012.
9
commencement means the commencement of this Part.
10
9 Application of the amendments made by the amending Act
11
The amendments made by the amending Act apply in relation to a
12
transfer of business referred to in Part 6-3A of the amended Act,
13
but only if the connection between the old State employer and the
14
new employer referred to in paragraph 768AD(1)(d) of the
15
amended Act occurs on or after commencement.
16
Fair Work (Registered Organisations) Act 2009
17
68 After subclause 2(1) of Schedule 1
18
Insert:
19
(1A) A State-registered association may also apply to the General
20
Manager for transitional recognition under this Schedule if:
21
(a) it has at least one member who is a transferring employee
22
(within the meaning of the Fair Work Act 2009) and who is,
23
or is likely to be, covered by a copied State instrument for the
24
employee (within the meaning of that Act); and
25
(b) immediately before the employee's termination time (within
26
the meaning of that Act), it was entitled to represent the
27
industrial interests of the employee in relation to the
28
transferring work of the employee (within the meaning of
29
that Act); and
30
Schedule 1 Transfer of business from a State public sector employer
Part 2 Other amendments
58 Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012
(c) it is not also an organisation, or a branch of an organisation;
1
and
2
(d) it is not, or has not been, transitionally recognised under this
3
Schedule; and
4
(e) the application is made before:
5
(i) the fifth anniversary of the day the Fair Work
6
Amendment (Transfer of Business) Act 2012
7
commenced; or
8
(ii) if the regulations prescribe a later day--that day.
9
69 Paragraph 2(2)(a) of Schedule 1
10
After "subclause (1)", insert "or (1A)".
11
70 Subclause 2(3) of Schedule 1
12
After "subclause (1)", insert "or (1A)".
13
71 After subclause 5(1) of Schedule 1
14
Insert:
15
(1A) A reference in subclause (1), in relation to a transitionally
16
recognised association that has been granted transitional
17
recognition in relation to an application under subclause 2(1A), to
18
the reform commencement is taken to be a reference to the day the
19
Fair Work Amendment (Transfer of Business) Act 2012
20
commenced.
21
72 Subclause 6(1) of Schedule 1
22
Before "ends", insert "that has been granted transitional recognition in
23
relation to an application under subclause 2(1)".
24
73 After subclause 6(1) of Schedule 1
25
(1A) The recognition under this Schedule of a transitionally recognised
26
association that has been granted transitional recognition in relation
27
to an application under subclause 2(1A) ends:
28
(a) when it is cancelled under clause 5; or
29
(b) when the association becomes an organisation; or
30
(c) in any other case--at the end of the latest of the following
31
days:
32
Transfer of business from a State public sector employer Schedule 1
Other amendments Part 2
Fair Work Amendment (Transfer of Business) Bill 2012 No. , 2012 59
(i) the day (the default day) that is the later of the fifth
1
anniversary of the day the Fair Work Amendment
2
(Transfer of Business) Act 2012 commenced and a day
3
prescribed by the regulations;
4
(ii) if FWA grants the association an extension under
5
subclause (2)--the anniversary of the default day;
6
(iii) if FWA grants the association a further extension under
7
subclause (3)--the second anniversary of the default
8
day.
9
74 Subclause 6(2) of Schedule 1
10
After "subparagraph (1)(c)(ii)", insert "or (1A)(c)(ii)".
11
75 Subclause 6(3) of Schedule 1
12
After "subparagraph (1)(c)(iii)", insert "or (1A)(c)(iii)".
13
Fair Work (Transitional Provisions and Consequential
14
Amendments) Act 2009
15
76 Paragraph 11(1)(b) of Schedule 3A
16
Omit "transitional".
17

 


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