South Australian Numbered Acts South Australian Numbered Acts36—Amendment of section 81—Effect of enterprise agreement
Section 81—After subsection (3) insert:
(4) Subject to
subsection (5), if—
(a) an
enterprise agreement applies to the employees or a particular class of
employees engaged in a particular business or undertaking; and
(b) a
new employer becomes the successor, transmittee or assignee of the whole or
part of the business or undertaking,
the new employer succeeds to the rights and obligations of the employer under
the enterprise agreement.
(5) If—
(a) an
employer is bound by an enterprise agreement (the "outgoing employer ); and
(b)
another employer (the "incoming employer") then becomes, or is likely to
become at a later time, the successor, transmittee or assignee of the whole or
part of the business or undertaking of the outgoing employer,
the Commission may, on application under this subsection, by order—
(c) vary
the enterprise agreement; or
(d)
rescind the enterprise agreement.
(6) An application
under subsection (5) may be made—
(a) by
the outgoing employer (including such an employer who was previously an
incoming employer), while he or she is still the employer under the enterprise
agreement; or
(b) by
the incoming employer after he or she takes over the whole or a part of the
business or undertaking of the outgoing employer; or
(c) by
an employee bound by the enterprise agreement (or a group of such employees)
after the incoming employer takes over the whole or a part of the business or
undertaking of the outgoing employer; or
(d) by a
registered association acting on behalf of an employee or a group of employees
bound by the enterprise agreement after the incoming employer takes over the
whole or a part of the business or undertaking of the outgoing employer.
(7) The Commission may
make an order on application under subsection (5) if (and only if)—
(a) the
order only relates to provisions that regulate the performance of duties by
employees or that relate to the remuneration of employees; and
(b) the
Commission is satisfied that exceptional circumstances exist justifying the
making of the order; and
(c) the
Commission is satisfied—
(i)
that the order will not disadvantage employees in
relation to their terms and conditions of employment; or
(ii)
that the order will assist in a reasonable strategy on
the part of the employer to deal with a short-term crisis in, and to assist in
the revival of, the relevant business or undertaking.
(8) For the purposes
of subsection (7), an order disadvantages an employee or employees in
relation to their terms and conditions of employment if, on balance, its
making would result in a reduction in the overall terms and conditions of
employment of that employee or those employees.
(9) The Commission
must, in making an order under subsection (5), take into account the
length of time remaining until the end of the term of the enterprise
agreement.
(10) An order under
subsection (5)—
(a) must
not take effect before the transfer of the relevant business or undertaking to
the incoming employer;
(b) may
be made on the basis that the incoming employer will only be bound by the
enterprise agreement for a limited period of time (and then the enterprise
agreement will be taken to be rescinded);
(c) may
be made on the basis that any variation to the enterprise agreement will only
have effect for a limited period of time.
(11) Nothing in this
section limits the ability to vary or rescind an enterprise agreement under
another provision.