Commonwealth Numbered Acts Commonwealth Numbered Acts
1 In the appropriate position in Schedule 1
Insert:
Part 10 -- Amendments made by the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021
In this Part:
"amended Act " means this Act as amended by the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021.
"amending Act " means the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021 .
"commencement " means the commencement of this Part.
Division 2 -- Amendments made by Schedule 1 to the amending Act
(1) On application by an employer, employee or employee organisation covered by an enterprise agreement that was made before commencement, the FWC may make a determination varying the agreement:
(a) to resolve an uncertainty or difficulty relating to the interaction between the agreement and any of the following:
(i) the definition of casual employee in section 15A of the amended Act (including to deal with uncertainty or difficulty arising from the circumstances in which employees are to be employed as casual employees under the agreement);
(ii) the provisions of Division 4A of Part 2-2 of the amended Act; or
(b) to make the agreement operate effectively with that section or those provisions.
(2) A variation of an enterprise agreement under this clause operates from the day specified in the determination, which may be a day before the determination is made.
46 Application of certain amendments
(1) Section 15A of the amended Act applies on and after commencement in relation to offers of employment that were given before, on or after commencement.
(2) Subclause (1) does not apply in relation to a person who is an employee of an employer as a result of accepting an offer that was made before commencement if either of the following apply in relation to that person:
(a) a court made a binding decision before commencement that the person is not a casual employee of the employer;
(b) the person converted the employment before commencement to employment other than casual employment under a term of a fair work instrument or contract of employment.
(3) In addition to subclause (1), section 15A of the amended Act (and the amendment made by item 1 of Schedule 1 to the amending Act) also applies before commencement in relation to offers of employment that were given before commencement, unless either of the following apply in relation to a person who is or was an employee of an employer as a result of accepting the offer:
(a) a court made a binding decision before commencement that the person is not a casual employee of the employer;
(b) the person converted the employment before commencement to employment other than casual employment under a term of a fair work instrument or contract of employment.
(4) To avoid doubt, if, apart from subclause (3), an employee could have made a claim for accrued relevant entitlements (within the meaning of subsection 545A(4) of the amended Act), the effect of that subclause is that the employee has not accrued, and cannot make a claim for, those entitlements.
(5) Subject to clause 47, Division 4A of Part 2-2 of the amended Act applies in relation to periods of employment starting before, on or after commencement.
(6) Section 545A of the amended Act applies in relation to entitlements that accrue, and loading amounts paid, on or after commencement.
(7) In addition to subclause (6), section 545A of the amended Act also applies in relation to entitlements that accrue, and loading amounts paid, before commencement.
(8) To avoid doubt, section 545A of the amended Act applies:
(a) to periods of employment starting before, on or after commencement (regardless of whether the employment period ended before commencement); and
(b) regardless of whether a person is, or is not, an employee of the relevant employer at the time a claim to which that section relates is made.
(9) A reference to periods of employment as a casual employee in section 87, 96, 117, 119 or 121 of the amended Act applies to periods of employment starting before, on or after commencement.
(10) A reference to a regular casual employee in section 23, 65, 67 or 384 of the amended Act applies to periods of employment starting before, on or after commencement.
(11) To avoid doubt, nothing in subclause (1) is taken to change the time at which the person became an employee of the employer.
47 Transitioning casual employees
(1) This clause applies in relation to an employee and an employer (other than a small business employer) if any or all of the following apply:
(a) the employee was, immediately before commencement (and disregarding subclause 46(3)), a casual employee of the employer;
(b) the employee was, immediately before commencement (and disregarding subclause 46(3)), designated as a casual employee by the employer for the purposes of:
(i) any fair work instrument that applies to the employee; or
(ii) the employee's contract of employment;
(c) the employee is a casual employee of the employer within the meaning of section 15A of the amended Act because of an offer of an employment made before commencement.
Note: The effect of this application provision is to provide a requirement for an employer (other than a small business employer) to assess whether to offer conversion under Division 4A of Part 2-2 of the amended Act (as modified under this clause) to any employee who was, or may have been, a casual employee immediately before commencement, and to any employee who at commencement is a casual employee within the meaning of section 15A of the amended Act.
(2) Division 4A (other than Subdivision C) of Part 2-2 of the amended Act is taken to apply in relation to the employee and employer for the period (the transition period ) of 6 months after commencement only as if:
(a) the employer was required under section 66B of the amended Act to assess, at a time during the transition period, whether the employer was required to make an offer to the employee under that section; and
(b) paragraph 66B(1)(a) of the amended Act were a requirement for the employee to have been employed by the employer for a period of 12 months ending the day the assessment is made; and
(c) paragraph 66B(2)(c) of the amended Act were a requirement to give the offer to the employee within 21 days after making the assessment; and
(d) subsection 66C(3) of the amended Act included a requirement to give a notice under that subsection if, when the assessment is made, the employee does not meet the requirement in paragraph (b) of this clause; and
(e) paragraph 66C(4)(c) of the amended Act were a requirement to give the notice within 21 days of making the assessment but no later than the end of the transition period.
(3) Subdivision C of Part 2-2 of the amended Act does not apply in relation to the employee and employer for the transition period.
(4) Division 4A (including Subdivision C) of Part 2-2 of the amended Act applies in relation to the employee and employer to whom paragraph (1)(a) or (b) applies after the transition period as if the employee were a casual employee of the employer within the meaning of section 15A of the amended Act.
(5) An employer referred to in subclause (1) must give an employee referred to in that subclause a Casual Employment Information Statement as soon as practicable after the end of the transition period.
47A Casual employees of small business employers
(1) This clause applies in relation to an employee and a small business employer if any or all of the following apply:
(a) the employee was, immediately before commencement (and disregarding subclause 46(3)), a casual employee of the employer;
(b) the employee was, immediately before commencement (and disregarding subclause 46(3)), designated as a casual employee by the employer for the purposes of:
(i) any fair work instrument that applies to the employee; or
(ii) the employee's contract of employment;
(c) the employee is a casual employee of the employer within the meaning of section 15A of the amended Act because of an offer of an employment made before commencement.
(2) Division 4A, other than Subdivision B, of Part 2-2 of the amended Act applies in relation to the employee and employer to whom paragraph (1)(a) or (b) applies on and after commencement as if the employee were a casual employee of the employer within the meaning of section 15A of the amended Act.
(3) An employer referred to in subclause (1) must give an employee referred to in that subclause a Casual Employment Information Statement as soon as practicable after commencement.
48 Variations to modern awards
(1) If:
(a) a modern award is made before commencement; and
(b) the modern award is in operation on commencement; and
(c) immediately before commencement, the modern award includes a term (the relevant term ) that:
(i) defines or describes casual employment; or
(ii) deals with the circumstances in which employees are to be employed as casual employees; or
(iii) provides for the manner in which casual employees are to be employed; or
(iv) provides for the conversion of casual employment to another type of employment;
then the FWC must, within 6 months after commencement, review the relevant term in accordance with subclause (2).
(2) The review must consider the following:
(a) whether the relevant term is consistent with this Act as amended by Schedule 1 to the amending Act;
(b) whether there is any uncertainty or difficulty relating to the interaction between the award and the Act as so amended.
(3) If the review of a relevant term under subclause (1) finds that:
(a) the relevant term is not consistent with this Act as amended by Schedule 1 to the amending Act; or
(b) there is a difficulty or uncertainty relating to the interaction between the award and the Act as so amended;
then the FWC must make a determination varying the modern award to make the award consistent or operate effectively with the Act as so amended.
(4) The determination must be made as soon as reasonably practicable after the review is conducted.
(5) A determination under subclause (2) comes into operation on (and takes effect from) the start of the day the determination is made.
(6) Section 168 applies to a determination made under subclause (2) as if it were a determination made under Part 2-3.