Commonwealth Numbered Regulations Commonwealth Numbered Regulations
[1] After regulation 3B.04
insert
3B.05 Modernisation-related reduction in take-home pay from variation of modern award
(1) For subitem 8 (1) of Schedule 2 to the Act, item 2 of Schedule 2 to the Act is modified by:
(a) inserting in the definition of modernisation-related reduction in take-home pay , after paragraph (a), the following paragraph:
'(aa) in relation to the process of varying modern awards -- see subitems 8A(4) and (5) of Schedule 5; and' ; and
(b) replacing 'subitems 8(2) and 13A(2)' in the definition of take-home pay with 'subitems 8(2), 8A(3) and 13A(2)'.
(2) For subitem 8 (1) of Schedule 2 to the Act, Schedule 5 to the Act is modified by:
(a) omitting the words 'if, and only' in subitems 8 (3) and (4); and
(b) inserting the following item after item 8:
' 8A Variation of modern award not intended to result in reduction in take‑home pay
(1) The process of varying a modern award was not intended to result in a reduction in the take‑home pay of employees or outworkers.
(2) In this item, varying a modern award means varying a modern award:
(a) under item 14; or
(b) under section 157 of the FW Act before 1 July 2010.
Note: Item 14 was inserted into this Act by regulation 3B.01 and ceased to have effect on 31 March 2010.
(3) An employee's or outworker's take‑home pay is the pay an employee or outworker actually receives:
(a) including wages and incentive‑based payments, and additional amounts such as allowances and overtime; but
(b) disregarding the effect of any deductions that are made as permitted by section 324 of the FW Act.
Note: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.
(4) An employee suffers a modernisation‑related reduction in take‑home pay if:
(a) FWA made an order varying a modern award; and
(b) the modern award:
(i) starts to apply to the employee when the award comes into operation; or
(ii) starts to apply to the employee when the order varying the award comes into operation; and
(c) the employee is employed in the same position as (or a position that is comparable to) the position he or she was employed in immediately before the modern award came into operation; and
(d) the amount of the employee's take‑home pay for working particular hours, or for a particular quantity of work, after the order varying the modern award comes into operation is less than what would have been the employee's take‑home pay for those hours, or that quantity of work, immediately before the award came into operation; and
(e) the reduction in the employee's take‑home pay is attributable to the order varying the modern award.
(5) An outworker who is not an employee suffers a modernisation‑related reduction in take‑home pay if:
(a) FWA made an order varying a modern award; and
(b) the modern award contains outworker terms and the outworker is a person to whom the outworker terms apply; and
(c) the modern award:
(i) starts to apply to the outworker when the award comes into operation; or
(ii) starts to apply to the outworker when the order varying the award comes into operation; and
(d) the outworker is performing the same work as (or work that is similar to) the work he or she was performing immediately before the modern award came into operation; and
(e) the amount of the outworker's take‑home pay for working particular hours, or for a particular quantity of work, after the order varying the modern award comes into operation is less than what would have been the outworker's take‑home pay for those hours, or that quantity of work, immediately before the award came into operation; and
(f) the reduction in the outworker's take‑home pay is attributable to the order varying the modern award.' ; and
(c) replacing 'modernisation process.' in item 9A with 'modernisation process or an order varying a modern award within the meaning of subitem 8A (2).'