{"id":"C2009A00055","name":"Fair Work (Transitional Provisions and Consequential Amendments) Act 2009","slug":"fair-work-transitional-provisions-and-consequential-amendments-act-2009","collection":"act","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":"55 of 2009","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":40377,"registerId":"commonwealth-C2009A00055-current","compilationNumber":null,"startDate":"2026-04-01","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"Div 2","sectionType":"division","heading":"Interaction between transitional instruments and FW Act modern awards, enterprise agreements and workplace determinations","content":"Division 2—Interaction between transitional instruments and FW Act modern awards, enterprise agreements and workplace determinations\n\n(1) While an agreement‑based transitional instrument of any of the following kinds applies to an employee, or to an employer or other person in relation to the employee:\n\nNote 1: However, a modern award can continue to cover the employee while the agreement‑based transitional instrument continues to apply.\n\nNote 2: This subitem has effect subject to item 13 of Schedule 9 (which requires that the base rate of pay under an agreement‑based transitional instrument must not be less than the relevant modern award rate).\n\nboth apply to an employee, or to an employer or other person in relation to the employee, the agreement‑based transitional instrument prevails over the modern award, to the extent of any inconsistency.\n\nNote: This subitem has effect subject to item 13 of Schedule 9 (which requires that the base rate of pay under an agreement‑based transitional instrument must not be less than the relevant modern award rate).\n\n (b) outworker terms (within the meaning of the FW Act) in a modern award would, but for the transitional instrument, apply to the employee.\n\n(2) Despite item 28 and despite any terms of the agreement‑based transitional instrument that are detrimental to the employee in any respect when compared to the terms of the modern award, the outworker terms apply at that time to the following persons:\n\n(3) To avoid doubt, to the extent to which terms of a modern award apply to an employee, an employer or an employee organisation because of subitem (2), the modern award applies to the employee, employer or organisation.\n\n(1) If a modern award (other than the miscellaneous modern award) that covers an employee, or an employer or other person in relation to the employee, comes into operation, then an award‑based transitional instrument ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.\n\nNote: A modern award cannot be expressed to cover an employee who is covered by a transitional instrument that is an enterprise instrument or a State reference public sector transitional award (see subsections 143(8) and (10) of the FW Act).\n\n(2) While an award‑based transitional instrument that covers an employee, or an employer or other person in relation to the employee, is in operation, the miscellaneous modern award does not cover the employee, or the employer or other person in relation to the employee.\n\n(3) If a modern award (other than the miscellaneous modern award) that contains outworker terms that cover an outworker entity comes into operation, then outworker terms in an award‑based transitional instrument cease to cover (and can never again cover) the outworker entity.\n\n(4) While outworker terms in an award‑based transitional instrument that is in operation cover an outworker entity, any outworker terms in the miscellaneous modern award do not cover the outworker entity.\n\n(5) Outworker terms in an award‑based transitional instrument are terms that would be outworker terms as defined in the FW Act if they were in a modern award.\n\n(1) While an individual agreement‑based transitional instrument applies to an employee, or to an employer in relation to the employee, an enterprise agreement or workplace determination (under the FW Act) does not apply to the employee, or the employer in relation to the employee.\n\n(2) If an enterprise agreement or workplace determination (under the FW Act) starts to apply to an employee, or an employer or other person in relation to the employee, then a collective agreement‑based transitional instrument ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.\n\nNote 1: The fact that a collective agreement‑based transitional instrument applies to employees does not prevent those employees and their employer from replacing that transitional instrument at any time with an enterprise agreement, regardless of whether the transitional instrument has passed its nominal expiry date.\n\nNote 2: Industrial action must not be taken before the nominal expiry date of an agreement‑based transitional instrument, even if it is being replaced by an enterprise agreement (see item 4 of Schedule 13).\n\nIf an enterprise agreement or workplace determination (under the FW Act) applies to an employee, or an employer or other person in relation to the employee, then:\n\n (a) an award‑based transitional instrument ceases to apply to the employee, and the employer or other person in relation to the employee; but\n (b) the award‑based transitional instrument can (subject to the other provisions of this Part) continue to cover the employee, and the employer or other person in relation to the employee.\n\nNote: Subject to the other provisions of this Part, the award‑based transitional instrument can again start to apply to the employee, and the employer or other person in relation to the employee, if the enterprise agreement or workplace determination (under the FW Act) ceases to apply to the employee.\n\n (b) an award‑based transitional instrument covers the employer (whether the transitional instrument covers the employer in the employer’s capacity as an employer or an outworker entity); and\n\n(2) Despite item 31, the designated outworker terms of the award‑based transitional instrument apply at that time to the following:\n\n (a) award‑based transitional instruments are taken to be instruments to which the definition of designated outworker term in section 12 of the FW Act applies; and\n (b) designated outworker terms of an award‑based transitional instrument can apply to an employer under subitem (2) even if none of the employees of the employer is an outworker; and\n (c) to the extent to which designated outworker terms of an award‑based transitional instrument apply to an employer, an employee or an employee organisation because of subitem (2), the transitional instrument applies to the employer, employee or organisation.\n\n(1) An employee is not an award/agreement free employee for the purposes of the FW Act if a transitional instrument applies to the employee.\n\n(2) The regulations may make provision in relation to any of the following in relation to employees to whom transitional instruments apply:\n\n (a) what is the base rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);\n (b) what is the full rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);\n\n(1) For the purposes of the FW Act, the ordinary hours of work of an employee to whom a transitional instrument applies are to be determined in accordance with this item.\n\n(2) If a transitional instrument that applies to the employee specifies, or provides for the determination of, the employee’s ordinary hours of work, the employee’s ordinary hours of work are as specified in, or determined in accordance with, that instrument.\n\n(3) If subitem (2) does not apply, the employee’s ordinary hours of work are the hours agreed by the employee and his or her employer as the employee’s ordinary hours of work.\n\n(4) If subitem (2) does not apply but there is no agreement under subitem (3), the ordinary hours of work of the employee in a week are:\n\n (c) there is an agreement under subitem (3) between the employee and his or her employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work;\n\n(6) For an employee who is not a full‑time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of subitems (4) and (5).\n\nDivision 2 of Part 2‑9 of the FW Act (which deals with payment of wages) applies, on and after the WR Act repeal day, in relation to a transitional instrument as if:\n\n","sortOrder":0},{"sectionNumber":"Div 3","sectionType":"division","heading":"of Part 2‑9 of the FW Act (which deals with the guarantee of annual earnings) applies, on and after the FW (safety net provisions) commencement day, as if:","content":"Division 3 of Part 2‑9 of the FW Act (which deals with the guarantee of annual earnings) applies, on and after the FW (safety net provisions) commencement day, as if:\n\n (b) a reference to a modern award included a reference to an award‑based transitional instrument and a transitional APCS.\n\n (a) the reference in subparagraph 382(b)(i) and paragraph 389(1)(b) of that Act to a modern award included a reference to an award‑based transitional instrument; and\n (b) the reference in subparagraph 382(b)(ii) and paragraph 389(1)(b) of that Act to an enterprise agreement included a reference to an agreement‑based transitional instrument.\n\n(1) This item applies if a termination of an agreement‑based transitional instrument (the terminated instrument) takes effect during the bridging period in either of the following circumstances:\n\n (a) the instrument is a preserved collective State agreement or a pre‑reform certified agreement that is terminated by FWA as provided for by item 16 because of an application made by an employer covered by the agreement;\n (b) the instrument is an individual agreement‑based transitional instrument that terminates under item 19 because FWA approves a termination of the instrument by an employer covered by the instrument.\n\n(2) Any redundancy provision that was in the terminated instrument continues to apply to any person to whom the terminated instrument applied immediately before the termination took effect, as if the terminated instrument had continued operating.\n\n(3) A redundancy provision that continues to apply to a person under subitem (2) is taken, for the purpose of this Act, to be a transitional instrument of the same kind as the terminated instrument. However, this does not apply for the purpose of:\n\n(4) Subject to subitem (5), a redundancy provision that continues to apply to a person under subitem (2) prevails over any other redundancy provision included in any other instrument that would otherwise apply (even if the provisions in that other instrument might be more beneficial to the employee).\n\n (b) a redundancy provision that continues to apply to an employee under subitem (2) is detrimental to the employee, in any respect, when compared to the scheme in the modern award;\n\nthen the scheme in the modern award prevails over the redundancy provision, to the extent that the redundancy provision is detrimental to the employee.\n\n(6) A redundancy provision continues under subitem (2) to apply to a person, in relation to an employee to whom the provision applies, until the earliest of the following:\n\n (b) the time when the employee ceases to be employed by the employer (otherwise than in circumstances covered by the provision);\n\n (c) a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment;\n\nwhere the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent.\n\n (b) when the termination takes effect, one or more redundancy provisions in the instrument will continue to apply to persons (affected persons) in accordance with item 38.\n\nNotification requirements if the transitional instrument is a preserved collective State agreement or a pre‑reform certified agreement\n\n (iv) state that the provision or provisions will continue to apply until that date, or an earlier date, in accordance with subitem 38(6); and\n\n(3) An employer that has, under subitem (2), received a copy of a termination decision must take reasonable steps to ensure that all employees to whom the instrument applied immediately before the termination takes effect are given a copy of the decision within 21 days of the employer receiving a copy of the decision.\n\n(4) If the transitional instrument is an individual agreement‑based transitional instrument, the termination decision must:\n\n (d) state that the provision or provisions will continue to apply until that date, or an earlier date, in accordance with subitem 38(6).\n\n(1) This item applies if, immediately before the WR Act repeal day, redundancy provisions that were in a WR Act instrument (the terminated instrument) that was terminated before that day (the actual termination) were continuing to bind persons under any of the following provisions:\n\n (b) a termination of that transitional instrument took effect on the WR Act repeal day as referred to in subitem 38(1); and\n (c) the reference in paragraph 38(6)(a) to 24 months were instead a reference to the unexpired part of the period of 24 months that started on the actual termination.\n\nThis Part applies to a Victorian employment agreement that was in force in relation to an employer and an employee (the parties) under Division 12 of Part 21 of the WR Act immediately before the WR Act repeal. A Victorian employment agreement is an employment agreement within the meaning of that Division.\n\nOn and after the WR Act repeal day the Victorian employment agreement is enforceable by one of the parties against the other party as if it were a contract. The provisions of Division 12 of Part 21 of the WR Act do not continue to apply in relation to the agreement.\n\n(1) On the Division 2B referral commencement, FWA is taken to have made an order (the transitional pay equity order) under this item.\n\n (b) the employer is prescribed by the regulations for the purposes of this paragraph, or is included in a class of employers prescribed by the regulations for the purposes of this paragraph; and\n (c) immediately before the Division 2B referral commencement, a transitional award (the relevant transitional award) applied to the employer.\n\nNote: Transitional award has the same meaning as in Schedule 6 to the WR Act. Schedule 6 is continued in operation by Schedule 20 to this Act.\n\n (a) an order, decision or determination of a State industrial body (the source pay equity order) would have applied to the employer if the relevant transitional award had not applied to the employer; and\n\n (b) provided for increases in rates of pay payable to a particular class of employees (whether the increases were expressed to take effect before, on or after the Division 2B referral commencement); and\n\n(5) If the transitional pay equity order applies to an employer, the employer is required to pay to each affected employee of the employer a base rate of pay, in respect of a period, that is not less than the base rate of pay that the employee would have been entitled to be paid if the source pay equity order had applied to the employer in respect of the period.\n\n(6) An employee of an employer to which this item applies is an affected employee of the employer if the employee performs work of a kind, at a classification level (however described), in relation to which the source pay equity order determines a base rate of pay.\n\n(7) The transitional pay equity order takes effect in relation to the employer immediately after the modern award begins to apply to the employer.\n\n (a) an employee is entitled to be paid by an employer a base rate of pay under the transitional pay equity order in respect of a particular period; and\n (b) the term of the modern award requires the employer to pay a base rate of pay, in respect of that period, that is less than the base rate of pay referred to in paragraph (a).\n\n(9) However, to avoid doubt, a term of a modern award continues to have effect so far as it requires an employer to pay a base rate of pay, in respect of a period, that is equal to or more than the base rate of pay referred to in paragraph (8)(a).\n\n(1) A Division 2B State instrument is a Division 2B State award (see item 3) or a Division 2B State employment agreement (see item 5).\n\nNote: This definition does not apply to a reference in a provision of this Act to a State award if the provision expressly refers to the meaning that was given by the WR Act.\n\n (i) the agreement is between an employer and one or more employees of the employer, or between an employer and an association of employees registered under a State industrial law;\n (iii) the determination was made in a situation in which parties who were negotiating for the making of an agreement of a kind described in paragraph (a) had not been able to reach an agreement;\n\nNote: This definition does not apply to a reference in a provision of this Act to a State employment agreement if the provision expressly refers to the meaning that was given by the WR Act.\n\n (a) it is an agreement of a kind that, under the relevant State industrial law, could only be entered into by a single employee and a single employer; or\n\n (a) a State award (the source award) was in operation under a State industrial law of a Division 2B referring State (the source State); and\n (b) the source award covered (however described in the source award or a relevant law of the source State) employers and employees who become Division 2B State reference employers and Division 2B State reference employees on the Division 2B referral commencement (whether or not the source award also covered other persons);\n\nNote 2: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State awards:\n\n(2) Subject to this Schedule, the Division 2B State award is taken to include the same terms as were in the source award immediately before the Division 2B referral commencement.\n\nNote: For the meanings of Division 2B referral commencement, Division 2B referring State, Division 2B State reference employee and Division 2B State reference employer, see items 2 and 2A of Schedule 3.\n\n(3) If the terms of the source award were affected by an order, decision or determination of a State industrial body or a court of the source State that was in operation immediately before the Division 2B referral commencement, the terms of the Division 2B State award are taken to be similarly affected by the terms of that order, decision or determination.\n\n(1) A Division 2B State award covers the same employees, employers, outworker entities and any other persons that the source award covered (however described in the award or a relevant law of the source State) immediately before the Division 2B referral commencement.\n\nNote: The expression covers is used to indicate the range of employees, employers etc. to whom the Division 2B State award potentially applies (see subitem (5)). The employees, employers etc. who are within this range will depend on the terms of the award, and on any relevant provisions of the law of the source State.\n\n(2) The Division 2B State award also covers any employees who become employed by an employer on or after the Division 2B referral commencement, and who would have been covered by the source award if they had become so employed immediately before that commencement.\n\n (a) any employees, employers or outworker entities that are not Division 2B State reference employees, Division 2B State reference employers or Division 2B State reference outworker entities; or\n\nA Division 2B State reference outworker entity is an entity that is an outworker entity only because of section 30Q of the FW Act.\n\n (a) after the Division 2B referral commencement, a person (the employer) starts to employ employees to do work of a kind that was regulated by the source award immediately before that commencement; and\n\n(5) A Division 2B State award applies to the same employees, employers, outworker entities and any other persons that the Division 2B State award covers as would have been required by the law of the source State to comply with terms of the source award, or entitled under the law of the source State to enforce terms of the source award, if:\n\nNote 1: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of the Division 2B State award.\n\nNote 2: The Division 2B State award does not apply to any employers, employees or other persons that it does not cover, whether because of subitem (3) or (4) or otherwise.\n\n(6) However, a Division 2B State award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act).\n\n (c) Division 2 of Part 5 of this Schedule (which deals with interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations); and\n\n(8) References in this item to the law of a State are references to the law of the State as in force immediately before the Division 2B referral commencement.\n\n (a) a State employment agreement (the source agreement) was in operation under a State industrial law of a Division 2B referring State (the source State); and\n (b) the source agreement covered (however described in the source agreement or a relevant law of the source State) employers and employees who become Division 2B State referral employers and Division 2B State referral employees on the Division 2B referral commencement (whether or not the source agreement also covered other persons);\n\na Division 2B State employment agreement is taken to come into operation immediately after the Division 2B referral commencement.\n\nNote 2: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State employment agreements:\n\nNote 3: For the meanings of Division 2B referral commencement, Division 2B referring State, Division 2B State reference employee and Division 2B State reference employer, see items 2 and 2A of Schedule 3.\n\n(2) Subject to this Schedule, the Division 2B State employment agreement is taken to include the same terms as were in the source agreement immediately before the Division 2B referral commencement.\n\n (a) a State employment agreement (the source agreement) comes into operation under a State industrial law of a Division 2B referring State (the source State); and\n (b) the source agreement covers (however described in the source agreement or a relevant law of the source State) employers and employees who are Division 2B State referral employers and Division 2B State referral employees when the source agreement comes into operation (whether or not the source agreement also covers other persons);\n\na Division 2B State employment agreement is taken to come into operation immediately after the source agreement comes into operation.\n\nNote 2: There is limited scope for State employment agreements that cover Division 2B State referral employers and employees to come into operation on or after the Division 2B referral commencement: see Part 6 of this Schedule.\n\nNote 3: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State employment agreements:\n\n(4) Subject to this Schedule, the Division 2B State employment agreement is taken to include the same terms as were in the source agreement when it came into operation.\n\n(5) If the source agreement in relation to a Division 2B State employment agreement is a collective State employment agreement, the Division 2B State employment agreement is a collective Division 2B State employment agreement.\n\n(6) If the source agreement in relation to a Division 2B State employment agreement is an individual State employment agreement, the Division 2B State employment agreement is an individual Division 2B State employment agreement.\n\n(1) A Division 2B State employment agreement covers the same employees, employers and any other persons that the source agreement covered (however described in the agreement or a relevant law of the source State) immediately before the Division 2B State employment agreement came into operation.\n\nNote: The expression covers is used to indicate the range of employees, employers etc. to whom the Division 2B State employment agreement potentially applies (see subitem (4)). The employees, employers etc. who are within this range will depend on the terms of the agreement, and on any relevant provisions of the law of the source State.\n\n(2) The Division 2B State employment agreement also covers any employees who become employed by an employer on or after the time when the agreement came into operation, and who would have been covered by the source agreement if they had become so employed immediately before that time.\n\n (a) any employees or employers that are not Division 2B State reference employees or Division 2B State reference employers; or\n\n(4) A Division 2B State employment agreement applies to the same employees, employers and any other persons that the Division 2B State employment agreement covers as would have been required by the law of the source State to comply with terms of the source agreement, or entitled under the law of the source State to enforce terms of the source agreement, if:\n\nNote 1: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of the Division 2B State employment agreement.\n\nNote 2: The Division 2B State employment agreement does not apply to any employers, employees or other persons that it does not cover, whether because of subitem (3) or otherwise.\n\n (c) Division 2 of Part 5 of this Schedule (which deals with interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations); and\n\n(6) References in this item to the law of a State are references to the law of the State as in force immediately before the Division 2B referral commencement.\n\n(1) If the source award for a Division 2B State award includes a term that provides for disputes relating to matters arising under the award to be settled by:\n\n(2) Each Division 2B State award is taken to include the model term that is prescribed by the regulations for dealing with disputes relating to matters arising under Division 2B State awards.\n\n(3) The model term does not apply to disputes about matters arising under the source award before the Division 2B referral commencement.\n\n(1) This item applies if the source agreement for a Division 2B State employment agreement includes a term that provides for disputes relating to matters arising under the agreement to be settled by:\n\nNote: Item 13 would otherwise result in references in the term to a State industrial body having effect as if they were references to the FWC.\n\n(2A) However, if the term provides for disputes relating to matters arising under the source agreement to be settled by a State industrial body, then, despite anything in the source agreement or a law of the source State:\n\n (a) by an employer to which the Division 2B State employment agreement applies, or by an organisation that is entitled to represent the industrial interests of such an employer, with the consent of:\n (b) by an employee to whom the Division 2B State employment agreement applies, or by an organisation that is entitled to represent the industrial interests of such an employee, with the consent of:\n\n(1) Subdivision B of Division 2 of Part 6‑2 of the FW Act applies (including for the purpose of section 595 of the FW Act) as follows:\n\n (a) the Subdivision applies in relation to the model term that is taken by item 7 to be included in a Division 2B State award in the same way as the Subdivision applies in relation to a term in a modern award that provides a procedure for dealing with disputes;\n (b) the Subdivision applies in relation to a term to which item 8 applies that is included in a Division 2B State employment agreement in the same way as the Subdivision applies in relation to a term in an enterprise agreement that provides a procedure for dealing with disputes.\n\n(2) The reference in subsections 739(5) and 740(4) of the FW Act to a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties, is taken to include a reference to a decision that is inconsistent with a Division 2B State instrument that applies to the parties.\n\n(1) The instrument content rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State instrument, as if:\n\n (b) any references in the rules to State awards or State employment agreements (however described in the rules) were instead (respectively) references to Division 2B State awards or Division 2B State employment agreements; and\n\n(2) Instrument content rules, in relation to a State, are provisions of a law of the State of any of the following kinds:\n\n(1) The instrument interaction rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State instrument, as if:\n\n (b) any references in the rules to State awards or State employment agreements (however described in the rules) were instead (respectively) references to Division 2B State awards or Division 2B State employment agreements; and\n\n(2) Instrument interaction rules, in relation to a State, are provisions of a law of the State, the effect of which is that:\n\n(1) The outworker interaction rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State award, as if:\n\n (b) any references in the rules to State awards (however described in the rules) were instead references to Division 2B State awards; and\n\n(2) Outworker interaction rules, in relation to a State, are provisions of a law of the State, the effect of which is that:\n\n(1) Subject to subitem (2), if a term of a Division 2B State instrument is expressed to confer a power or function on a State industrial body, that term has effect as if references in it to the body were instead references to the FWC.\n\n(2) If a term of a Division 2B State instrument is expressed to confer a power or function on the registrar, or a deputy registrar, of a State industrial body, that term has effect on and after the Division 2B referral commencement as if references in it to the registrar or a deputy registrar were instead references to the General Manager of the FWC.\n\nNote 1: A Division 2B State award will be taken not to include a term from the source award that provides for the settlement of disputes relating to matters arising under the award: see item 7.\n\nNote 2: This item does not apply to a term of a Division 2B State employment agreement that provides for the settlement of disputes relating to matters arising under the agreement: see item 8.\n\n(1) Subitem (2) applies for the purpose of determining the entitlements of a Division 2B State reference employee under a Division 2B State instrument (other than an entitlement to leave of a kind to which item 15 applies).\n\n(2) Service of the employee with an employer before the Division 2B referral commencement that counted for the purpose of the application to the employee of the source award or source agreement also counts as service of the employee with the employer for the purpose of the application to the employee of the Division 2B State instrument.\n\n(3) If, before the Division 2B referral commencement, the employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service, subitem (2) does not result in that period of service with the employer being counted again when calculating the employee’s entitlements of that kind under the Division 2B State instrument.\n\n(4) To avoid doubt, subitem (3) does not require an employee to serve any initial qualifying period of service for long service leave again.\n\nNote: For how the kinds of matters covered by this item and items 15 and 16 are dealt with in relation to entitlements under the National Employment Standards, see Division 2 of Part 3 of Schedule 4.\n\n(2) If a Division 2B referral employee to whom a Division 2B State instrument applies had, immediately before the Division 2B referral commencement, an accrued entitlement to an amount of leave to which this item applies (whether the leave accrued under the source award or source agreement, or under a State industrial law), the accrued leave is taken to have accrued under the Division 2B State instrument.\n\n(1) If a Division 2B State reference employee was, immediately before the Division 2B referral commencement, taking a period of leave under the source award or source agreement, the employee is entitled to continue on that leave under the Division 2B State instrument for the remainder of the period.\n\n(2) If a Division 2B State reference employee has, before the Division 2B referral commencement, taken a step that the employee is required to take so that the employee can, on or after the Division 2B referral commencement, take a period of leave under the source award or source agreement, the employee is taken to have taken the step under the Division 2B State instrument.\n\n(3) The regulations may deal with other matters relating to how a Division 2B State instrument applies to leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken by a Division 2B State reference employee under the source award or source agreement.\n\n (a) any right or liability that a person acquired, accrued or incurred before the instrument terminated or ceased to apply; or\n\n(2) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the Division 2B State instrument had not terminated or ceased to apply.\n\n (b) item 8 (which deals with terms about disputes relating to matters arising under Division 2B State employment agreements); or\n (c) item 40 (which deals with resolving difficulties with the interaction between Division 2B State instruments and the National Employment Standards); or\n\n(1) On application by a person covered by a Division 2B State instrument, the FWC may make a determination varying the instrument:\n\n (b) if the instrument is a Division 2B State employment agreement—to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or\n (c) to remove terms that are inconsistent with Part 3‑1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part.\n\nNote: For variation of a Division 2B State instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 40.\n\n(2) A variation of a Division 2B State instrument operates from the day specified in the determination, which may be a day before the determination is made.\n\n(1) This item applies if a Division 2B State instrument is referred to the FWC under section 46PW of the Australian Human Rights Commission Act 1986 (which deals with discriminatory industrial instruments).\n\n(2) If the instrument is a Division 2B State award, section 161 of the FW Act applies in relation to the referral of the instrument as if the instrument were a modern award.\n\n(3) If the instrument is a Division 2B State employment agreement, section 218 of the FW Act applies in relation to the referral of the instrument as if the instrument were an enterprise agreement.\n\n(2) A term of a Division 2B State award that provides for the award to terminate before the end of that 12 month period is of no effect.\n\nSubdivision C of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective Division 2B State employment agreement as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement.\n\n(1) Subdivision D of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective Division 2B State employment agreement as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement.\n\n(2) To avoid doubt, subsection 615A(3) of the FW Act does not apply in relation to a collective Division 2B State employment agreement.\n\n(1) The employee and employer covered by an individual Division 2B State employment agreement (the Division 2B agreement) may make a written agreement (a termination agreement) to terminate the Division 2B agreement in accordance with the following requirements:\n\n(3) The employer or employee may apply to the FWC for approval of the termination agreement. The application must be made:\n\n (b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.\n\n(4) If an application for the FWC to approve the termination agreement is made under subitem (3), the FWC must approve the termination of the Division 2B agreement if:\n\n (b) the FWC is satisfied that there are no other reasonable grounds for believing that the employee has not agreed to the termination.\n\n(5) If the termination is approved under subitem (4), the termination operates from the day specified in the decision to approve the termination.\n\n(1) This item provides for the making of an instrument (a conditional termination) that will have the effect of terminating an individual Division 2B State employment agreement (the Division 2B agreement) if:\n\n(2) If the Division 2B agreement has not passed its nominal expiry date, the conditional termination must be a written agreement signed by the employer and the employee. The signatures must be witnessed.\n\n(3) If the Division 2B agreement has passed its nominal expiry date, the conditional termination must be in writing and signed either by the employee or the employer. The signature must be witnessed.\n\n(4) If the conditional termination is signed by the employee, and the employee is under 18, it must also be signed by a parent or guardian of the employee.\n\n(5) Any other requirements of the regulations relating to the form, content or making of the conditional termination must also be complied with.\n\n (a) the conditional termination is an agreement signed by the employee and the employer in the circumstances covered by subitem (2); or\n\n(7) The conditional termination must accompany any application to the FWC for approval of the proposed enterprise agreement under section 185 of the FW Act.\n\nNote 2: Failure to comply with this obligation does not affect the operation of subitem (8), or the validity of an approval by the FWC of the proposed enterprise agreement.\n\n(8) If the requirements of subitems (2) to (5) have been complied with in relation to the conditional termination, the Division 2B agreement terminates when the proposed enterprise agreement comes into operation.\n\n (a) to whom an individual Division 2B State employment agreement (the Division 2B agreement) that has passed its nominal expiry date applies; and\n\n (a) make a written declaration that identifies the Division 2B agreement and that states that the employer or employee wants to terminate the agreement; and\n\n(3) The employer or employee cannot make an application as mentioned in paragraph (2)(b) unless, at least 14 days before the day on which the application is made, the employer or employee gives the other of them a notice complying with the following requirements:\n\n (b) the notice must state that the employer or employee intends to apply to the FWC for approval of the termination of the agreement;\n (c) the notice must state that, if the FWC approves the termination, the agreement will terminate on the 90th day after the day on which the FWC makes the approval decision;\n\n(5) If the FWC approves the termination, the Division 2B agreement terminates on the 90th day after the day on which the FWC makes the approval decision.\n\n(1) A Division 2B State employment agreement terminates at the end of the grace period for the agreement if the agreement has not already terminated before that time.\n\n (a) subject to paragraph (b), the period of 12 months (the default period) beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences; or\n\n (b) if the default period is extended for the agreement on one or more occasions under subitem (6) or paragraph (11)(e)—the default period as so extended.\n\n(3) An employer covered by a Division 2B State employment agreement must, before the end of 6 months beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences, give each employee who is covered by the agreement and employed by the employer at the end of that period written notice advising the employee:\n\n (b) that the agreement will terminate unless an application is made to the FWC under subitem (4), before the end of the period of 12 months beginning on the day that Part commences, for the FWC to extend the default period for the agreement; and\n\n(4) Any of the following may apply to the FWC, before the end of the grace period for a Division 2B State employment agreement, for the FWC to extend the default period for the agreement for a period of no more than 4 years:\n\n (c) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the agreement.\n\n(6) If an application is made under subitem (4), the FWC must extend the default period for the Division 2B State employment agreement for a period of no more than 4 years if the FWC is satisfied that:\n\n (i) if the application relates to an individual Division 2B State employment agreement—the employee covered by the individual Division 2B State employment agreement; or\n\n (ii) if the application relates to a collective Division 2B State employment agreement—the same, or substantially the same, group of employees as the Division 2B State employment agreement; and\n\n (b) the employee covered by the agreement would be an award covered employee for the agreement under subitem (10) if the agreement were a collective Division 2B State employment agreement; and\n\n (c) it is likely that, as at the time the application is made, the employee would be better off overall if the agreement applied to the employee than if the relevant modern award referred to in that subitem applied to the employee.\n\n (b) it is likely that, as at the time the application is made, the award covered employees for the agreement under subitem (10), viewed as a group, would be better off overall if the agreement applied to the employees than if the relevant modern award or awards referred to in that subitem applied to the employees.\n\n(10) For the purposes of subitems (8) and (9), the award covered employees for a collective Division 2B State employment agreement are the employees who:\n\n (b) at the time an application is made under subitem (4) in relation to the agreement, are covered by one or more modern awards (the relevant modern awards) that:\n\n (c) are employed at that time by an employer who is covered by the agreement and by one or more of the relevant modern awards.\n\n (c) if the decision is to extend the default period for a collective Division 2B State employment agreement—the agreement.\n\n(10C) The FWC must not publish an individual Division 2B State employment agreement in relation to which an application under subitem (4) is made.\n\n (b) the FWC has not made a decision on the application at a time (the critical time) that is immediately before what would (apart from this subitem) be the end of the grace period for the agreement;\n\n (e) if the FWC’s decision on the application is to refuse to extend the default period for the agreement under subitem (6)—the FWC must extend the default period until the end of:\n\n (ii) if the refusal decision specifies a later day that is not more than 14 days after the day the refusal decision is made—that later day.\n\n (a) the day on which the source agreement would nominally have expired under the relevant State industrial law of the source State; or\n (b) if that day falls after the end of a period of 3 years beginning on the Division 2B referral commencement—the last day of that 3 year period.\n\nIf a Division 2B State instrument terminates, it ceases to cover (and can never again cover) any employees, employers or other persons.\n\n (a) must consider whether any modern awards should be varied to include terms in relation to which the following conditions are satisfied:\n (i) the purpose of including the terms is to continue (in whole or in part) the effect of terms that are contained in a Division 2B State award, other than a Division 2B enterprise award;\n (iii) the terms deal with matters of a kind that are permitted by section 136 of the FW Act to be included in modern awards; and\n\n (i) the purpose of making the order is to continue (in whole or in part) the effect of terms relating to long service leave that are contained in a Division 2B State award, other than a Division 2B enterprise award;\n\n(4) To the extent that a term of a Division 2B State award, or of an enterprise agreement, is detrimental to an employee, in any respect, when compared to an order under subitem (1), the term of the award or agreement is of no effect.\n\nNote: A term of a Division 2B State award, or of an enterprise agreement, that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the order will continue to have effect.\n\n(5) The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a Division 2B State award or an enterprise agreement are, or are not, detrimental in any respect when compared to an order under subitem (1).\n\n(1) On the Division 2B referral commencement, FWA is taken to have made an order (the transitional pay equity order) under this item.\n\n (a) a Division 2B State award that applies to the employer terminates at a time (the termination time) after the Division 2B referral commencement; and\n (b) the base rate of pay payable immediately before the termination time to some or all of the employees to whom the Division 2B State award applied was determined in whole or part by, or in accordance with, an order, decision or determination (the source pay equity order) of a State industrial body that:\n (ii) provided for increases in rates of pay payable to a particular class of employees (whether the increases were expressed to take effect before, on or after the Division 2B referral commencement); and\n\nNote: After the Division 2B referral commencement, a source pay equity order may have effect either because of subitem 3(3) of this Schedule, or because the terms of the source pay equity order had been incorporated in the source award from which the Division 2B State award was derived.\n\n(3) If the transitional pay equity order applies to an employer, the employer is required to pay to each affected employee of the employer a base rate of pay, in respect of a period, that is not less than the base rate of pay that the employee would have been entitled to be paid under the Division 2B State award in respect of that period, assuming that:\n\n (b) the base rate of pay had continued to be determined in whole or part by, or in accordance with, the source pay equity order in respect of that period.\n\n (iii) the employee’s base rate of pay under the Division 2B State award was determined in whole or part by, or in accordance with, the source pay equity order at the termination time; or\n (ii) a Division 2B State award would have applied to the employee if he or she had been employed by the employer immediately before the termination time;\n (iii) the employee’s base rate of pay under the Division 2B State award would have been determined in whole or part by, or in accordance with, the source pay equity order at the termination time.\n\n(5) The transitional pay equity order takes effect in relation to the employer immediately after the modern award begins to apply to the employer.\n\n (a) an employee is entitled to be paid by an employer a base rate of pay under the transitional pay equity order in respect of a particular period; and\n (b) the term of the modern award requires the employer to pay a base rate of pay, in respect of that period, that is less than the base rate of pay referred to in paragraph (a).\n\n(7) However, to avoid doubt, a term of a modern award continues to have effect so far as it requires an employer to pay a base rate of pay, in respect of a period, that is equal to or more than the base rate of pay referred to in paragraph (6)(a).\n\n(1) The termination of a Division 2B State award by item 21 is not intended to result in a reduction in the take‑home pay of employees or outworkers.\n\nNote: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.\n\n (a) when a Division 2B State award terminates because of item 21, the employee becomes a person to whom a modern award applies; and\n (b) 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 termination of the Division 2B State award; and\n (c) the amount of the employee’s take‑home pay for working particular hours or for a particular quantity of work after the termination of the Division 2B State award is less than what would have been the employee’s take‑home pay for those hours or that quantity of work immediately before the termination; and\n\n (a) when a Division 2B State award terminates because of item 21, the outworker becomes a person to whom outworker terms in a modern award relate; and\n (b) the outworker is performing the same work as (or work that is similar to) the work he or she was performing immediately before the termination of the Division 2B State award; and\n (c) the amount of the outworker’s take‑home pay for working particular hours or for a particular quantity of work after the termination of the Division 2B State award is less than what would have been the outworker’s take‑home pay for those hours or that quantity of work immediately before the termination; and\n\n(1) If the FWC is satisfied that an employee, or a class of employees, to whom a modern award applies has suffered a reduction in take‑home pay to which item 31 applies, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation.\n\n(2) If the FWC is satisfied that an outworker, or a class of outworkers, to whom outworker terms in a modern award relate has suffered a reduction in take‑home pay to which item 31 applies, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the outworker or outworkers that the FWC considers appropriate to remedy the situation.\n\n(4) If the FWC is satisfied that an application for a take‑home pay order has already been made in relation to an employee or a class of employees, or an outworker or a class of outworkers, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees, or the same outworker or outworkers.\n\n(1) The FWC must not make a take‑home pay order under item 32 in relation to an employee or class of employees, or an outworker or a class of outworkers, if:\n\n (b) the FWC is satisfied that the employee or employees, or outworker or outworkers, have been adequately compensated in other ways for the reduction.\n\n (a) it does not apply to an employee or outworker unless the employee or outworker has actually suffered a reduction in take‑home pay to which item 31 applies; and\n (b) if the take‑home pay payable to the employee or outworker under the modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee or outworker under the order.\n\nA take‑home pay order made in relation to an employee or class of employees to whom a particular modern award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the modern award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.\n\nA term of a modern award or an enterprise agreement has no effect in relation to an employee or outworker to the extent that it is less beneficial to the employee or outworker than a term of a take‑home pay order that applies to the employee or outworker.\n\n(1) To the extent that a term of a Division 2B State instrument is detrimental to an employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards, the term of the instrument is of no effect.\n\nNote 1: A term of a Division 2B State instrument that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the National Employment Standards will continue to have effect.\n\nNote 2: Division 3 (which contains other general provisions about how the FW Act applies in relation to Division 2B State instruments) is also relevant to how the National Employment Standards apply in relation to employees to whom Division 2B State instruments apply.\n\nNote 3: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).\n\n(2) If there is a dispute about the application of this item which must be resolved by the FWC in accordance with item 40, the FWC may compare the entitlements which are in dispute:\n\n(3) Subitem (1) does not affect a term of a Division 2B State instrument that is permitted by a provision of the National Employment Standards as it has effect under item 38.\n\n(4) The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a Division 2B State instrument are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards.\n\n(1) The following provisions of the National Employment Standards have effect, on and after the Division 2B referral commencement, as if a reference to a modern award or an enterprise agreement included a reference to a Division 2B State instrument:\n\n (g) subsections 121(2) and (3) (which allow terms specifying situations in which the redundancy pay entitlement under section 119 does not apply);\n\n (a) a Division 2B State instrument includes terms referred to in subsection (1) of section 93 or 101 of the National Employment Standards; but\n\nSubsections 87(3) to (5) of the FW Act apply in relation to an employee to whom a Division 2B State instrument applies in the same way as they apply to an award/agreement free employee.\n\nNote: If the employee qualifies for the shiftworker annual leave entitlement under those subsections, the employee will be entitled to 5 (rather than 4) weeks of paid annual leave.\n\n(1) On application by a person covered by a Division 2B State instrument, the FWC may make a determination varying the instrument:\n\n (a) to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards; or\n\n(2) A variation of a Division 2B State instrument operates from the day specified in the determination, which may be a day before the determination is made.\n\nDivision 2—Interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations\n\n(1) If a collective Division 2B State employment agreement and a modern award both apply to an employee, or to an employer or other person in relation to the employee, the Division 2B State employment agreement prevails over the modern award, to the extent of any inconsistency.\n\nNote: This subitem has effect subject to item 42 of this Schedule, and to item 17 of Schedule 9 (which requires that the base rate of pay under a Division 2B State employment agreement must not be less than the modern award rate).\n\n(2) While an individual Division 2B State employment agreement applies to an employee, or to an employer or other person in relation to an employee, a modern award does not apply to the employee, or to the employer or other person in relation to the employee.\n\nNote 1: However, a modern award can continue to cover the employee while the individual Division 2B State employment agreement continues to apply.\n\nNote 2: This subitem has effect subject to item 42 of this Schedule, and to item 17 of Schedule 9 (which requires that the base rate of pay under a Division 2B State employment agreement must not be less than the modern award rate).\n\n (b) outworker terms (within the meaning of the FW Act) in a modern award would, but for the Division 2B State employment agreement, apply to the employee.\n\n(2) Despite item 41 and despite any terms of the Division 2B State employment agreement that are detrimental to the employee in any respect when compared to the terms of the modern award, the outworker terms apply at that time to the following persons:\n\n(3) To avoid doubt, to the extent to which terms of a modern award apply to an employee, an employer or an employee organisation because of subitem (2), the modern award applies to the employee, employer or organisation.\n\n(1) While a Division 2B State award that covers an employee, or an employer or other person in relation to the employee, is in operation, a modern award does not cover the employee, or the employer or other person in relation to the employee.\n\nNote: When the Division 2B State award terminates, a modern award will start to cover the employee, or the employer or other person in relation to the employee.\n\n(2) While a Division 2B State award that contains outworker terms that cover an outworker entity is in operation, outworker terms in a modern award do not cover the outworker entity.\n\n(3) Outworker terms in a Division 2B State award are terms that would be outworker terms as defined in the FW Act if they were in a modern award.\n\n(1) If an enterprise agreement or workplace determination (under the FW Act) starts to apply to an employee, or an employer or other person in relation to the employee, then a collective Division 2B State employment agreement ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.\n\nNote 1: The fact that a collective Division 2B State employment agreement applies to employees does not prevent those employees and their employer from replacing that agreement at any time with an enterprise agreement, regardless of whether the collective Division 2B State employment agreement has passed its nominal expiry date.\n\nNote 2: Industrial action must not be taken before the nominal expiry date of a collective Division 2B State employment agreement (see item 4 of Schedule 13).\n\n(2) While an individual Division 2B State employment agreement applies to an employee, or to an employer in relation to the employee, an enterprise agreement or workplace determination (under the FW Act) does not apply to the employee, or the employer in relation to the employee.\n\nIf an enterprise agreement or workplace determination (under the FW Act) applies to an employee, or an employer or other person in relation to the employee, then:\n\n (a) a Division 2B State award ceases to apply to the employee, and the employer or other person in relation to the employee; but\n (b) the Division 2B State award can (subject to the other provisions of this Part) continue to cover the employee, and the employer or other person in relation to the employee.\n\nNote: Subject to the other provisions of this Part, the Division 2B State award can again start to apply to the employee, and the employer or other person in relation to the employee, if the enterprise agreement or workplace determination (under the FW Act) ceases to apply to the employee.\n\n (b) a Division 2B State award covers the employer (whether the award covers the employer in the employer’s capacity as an employer or an outworker entity); and\n\n (a) Division 2B State awards are taken to be instruments to which the definition of designated outworker term in section 12 of the FW Act applies; and\n (b) designated outworker terms of a Division 2B State award can apply to an employer under subitem (2) even if none of the employees of the employer is an outworker; and\n (c) to the extent to which designated outworker terms of a Division 2B State award apply to an employer, an employee or an employee organisation because of subitem (2), the award applies to the employer, employee or organisation.\n\n(1) An employee is not an award/agreement free employee for the purposes of the FW Act if a Division 2B State instrument applies to the employee.\n\n(2) The regulations may make provision in relation to any of the following in relation to employees to whom Division 2B State instruments apply:\n\n (a) what is the base rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);\n (b) what is the full rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);\n\n(1) For the purposes of the FW Act, the ordinary hours of work of an employee to whom a Division 2B State instrument applies are to be determined in accordance with this item.\n\n(2) If a Division 2B State instrument that applies to the employee specifies, or provides for the determination of, the employee’s ordinary hours of work, the employee’s ordinary hours of work are as specified in, or determined in accordance with, that instrument.\n\n(3) If subitem (2) does not apply, the employee’s ordinary hours of work are the hours agreed by the employee and his or her employer as the employee’s ordinary hours of work.\n\n(4) If subitem (2) does not apply but there is no agreement under subitem (3), the ordinary hours of work of the employee in a week are:\n\n (c) there is an agreement under subitem (3) between the employee and his or her employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work;\n\n(6) For an employee who is not a full‑time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of subitems (4) and (5).\n\nDivision 2 of Part 2‑9 of the FW Act (which deals with payment of wages) applies, on and after the Division 2B referral commencement, in relation to a Division 2B State instrument as if:\n\nDivision 3 of Part 2‑9 of the FW Act (which deals with the guarantee of annual earnings) applies, on and after the Division 2B referral commencement, as if:\n\nPart 3‑2 of the FW Act (which deals with unfair dismissal) applies, on and after the Division 2B referral commencement, as if:\n\n (a) the reference in subparagraph 382(b)(i) and paragraph 389(1)(b) of that Act to a modern award included a reference to a Division 2B State award; and\n (b) the reference in subparagraph 382(b)(ii) and paragraph 389(1)(b) of that Act to an enterprise agreement included a reference to a Division 2B State employment agreement.\n\nThe regulations may deal with other matters relating to how the FW Act applies in relation to Division 2B State instruments.\n\nagreement appeal means an appeal to a State industrial body against a decision made by a State industrial body in an agreement proceeding.\n\napprove, in relation to a State employment agreement or a variation or termination of a State employment agreement, means:\n\n (a) approve or certify (however described) the agreement, or the variation or termination, under a State industrial law; and\n (b) do any other things (for example, register the agreement) that are required to be done under that law after approval or certification in order for the agreement, or the variation or termination, to come into operation.\n\naward appeal means an appeal to a State industrial body against a decision made by a State industrial body in an award proceeding.\n\ncoverage terms of a source award or source agreement are terms setting out the employees, employers, outworker entities or other persons that are covered (however described) by the award or agreement.\n\nterminate, in relation to a State employment agreement, means terminate or rescind (however described) the agreement under a State industrial law.\n\nvary, in relation to a State employment agreement, means vary or amend (however described) the agreement under a State industrial law.\n\nNothing in this Part affects the application of section 26 of the FW Act to a law of a Division 2B referring State so far as the law provides for the variation or termination of a State award or a State employment agreement because of a proposed transfer of business (however described).\n\n(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the commencement or completion of an award appeal in relation to which the following conditions are satisfied:\n\nNote: The following (to the extent they relate to Division 2B State reference employees and Division 2B State reference employers) are not able to be commenced or completed on or after the Division 2B referral commencement:\n\n (a) does not apply to the commencement of an award appeal more than 21 days after the day on which the decision appealed against was made; and\n (b) ceases to apply to an award appeal if the appeal has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.\n\n(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the completion of an agreement proceeding that had commenced before the Division 2B referral commencement.\n\nNote: Agreement proceedings (to the extent they relate to Division 2B State reference employees and Division 2B State reference employers) are not able to be commenced on or after the Division 2B referral commencement.\n\n(2) Subitem (1) ceases to apply to an agreement proceeding if the proceeding has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.\n\n(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the commencement or completion of an agreement appeal (whether the decision appealed against is or was made before, on or after the Division 2B referral commencement).\n\n (a) does not apply to the commencement of an agreement appeal more than 21 days after the day on which the decision appealed against was made; and\n (b) ceases to apply to an agreement appeal if the appeal has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.\n\n(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law provides for when any of the following decisions (a State decision) come into operation:\n\nNote: If a State employment agreement comes into operation on or after the Division 2B referral commencement under a State industrial law of a Division 2B referring State, a Division 2B State employment agreement is taken to come into operation immediately afterwards: see item 5 of this Schedule.\n\n(2) Subject to subitems (3) and (4), if a State decision affects the source award or source agreement for a Division 2B State instrument, the Division 2B State instrument is taken to be affected by the State decision in the same way, and from the same time, as the source award or source agreement is affected by the State decision.\n\n(3) Subitem (2) does not apply to a State decision that affects the coverage terms of the source award or source agreement.\n\n(4) Any resulting alteration of an entitlement under the Division 2B State instrument takes effect only from the later of the day on which the State decision is made and the day on which the decision comes into operation.\n\n (a) for when a State employment agreement comes into operation, if the State employment agreement was approved by a State industrial body before the Division 2B referral commencement, but the agreement had not yet come into operation by that commencement; or\n (b) for when a variation or termination of a State employment agreement comes into operation, if the variation or termination was approved or made by a State industrial body before the Division 2B referral commencement, but the variation or termination had not yet come into operation by that commencement.\n\nNote: If a State employment agreement comes into operation on or after the Division 2B referral commencement under a State industrial law of a Division 2B referring State, a Division 2B State employment agreement is taken to come into operation immediately afterwards: see item 5 of this Schedule.\n\n(2) Subject to subitem (3), if, at a time when a Division 2B State employment agreement is in operation, a variation or termination of the source agreement comes into operation as mentioned in subitem (1), the Division 2B State employment agreement is taken to have been varied in the same way, or to have been terminated, (as the case requires) immediately after that time.\n\n(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to compliance with an entitlement or obligation:\n\nNote: Orders and injunctions of State industrial bodies relating to industrial action that are in operation immediately before the Division 2B referral commencement can continue to have effect, and be enforced, under State law after the Division 2B referral commencement: see item 61.\n\n(3) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to a termination of employment that occurred before the Division 2B referral commencement.\n\n (b) provides for the variation or setting aside of entitlements and obligations arising under a contract of employment, or another arrangement for employment, that a court or a State industrial body of the State finds is unfair.\n\n (a) an order made, or an injunction granted, by a State industrial body or a court of a Division 2B referring State to prevent or stop industrial action (however described) that was in operation immediately before the Division 2B referral commencement may continue to have effect under the law of the State on and after that day; and\n\nNote 1: Part 7 of the WR Act contains the Australian Fair Pay and Conditions Standard. Part 3 of Schedule 9 to this Act provides for the continued application of Division 2 of Part 7 (which deals with wages).\n\nNote 2: Part 4 of Schedule 3 to this Act provides for the continued application of the rules about the interaction between transitional instruments and the Australian Fair Pay and Conditions Standard.\n\nDivisions 1, 2 (other than sections 615 to 618) and 6 of Part 12 of the WR Act continue to apply during the bridging period.\n\nThe following provisions of the WR Act continue to apply in relation to terminations of employment that occur during the bridging period, or notice of which is given during the bridging period:\n\n(1) The provisions of the WR Act that continue to apply because of this Part have effect as if a reference in the provisions to a workplace agreement included a reference to an enterprise agreement.\n\n(1) An employee’s service with an employer before the FW (safety net provisions) commencement day counts as service of the employee with the employer for the purpose of determining the employee’s entitlements under the National Employment Standards, other than entitlements to:\n\nNote 1: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).\n\nNote 2: Interaction between the National Employment Standards and transitional instruments is dealt with in Division 1 of Part 5 of Schedule 3.\n\n(2) If, before the FW (safety net provisions) commencement day, the employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service, subitem (1) does not result in that period of service with the employer being counted again when calculating the employee’s entitlements of that kind under the National Employment Standards.\n\n(3) To avoid doubt, subitem (2) does not require an employee to serve any initial qualifying period of service for long service leave again.\n\n(4) Subitem (1) does not apply in relation to an employee and an employer for the purposes of Subdivision B of Division 11 of the National Employment Standards (which deals with redundancy pay) if the terms and conditions of employment that applied to the employee’s employment by the employer immediately before the FW (safety net provisions) commencement day did not provide for an entitlement to redundancy pay.\n\n(1) This item applies if, immediately before the FW (safety net provisions) commencement day, an employee has an accrued entitlement to an amount of paid annual leave or paid personal/carer’s leave, whether the leave accrued under Part 7 of the WR Act, a transitional instrument or otherwise.\n\n(2) The provisions of the National Employment Standards relating to taking that kind of leave (including rates of pay while taking leave), or cashing‑out that kind of leave, apply, as a minimum standard, to the accrued leave as if it had accrued under the National Employment Standards.\n\n7 Leave that, immediately before the FW (safety net provisions) commencement day, is being, or is to be, taken under Part 7 of the WR Act\n\n (a) immediately before the FW (safety net provisions) commencement day, an employee is taking a period of a type of leave under Part 7 of the WR Act; and\n\nthe employee is entitled to continue on leave of the equivalent type under the National Employment Standards for the remainder of the period.\n\nNote: For example, if an employee is taking paid annual leave under Part 7 of the WR Act immediately before the FW (safety net provisions) commencement day, the employee is entitled to continue on paid annual leave under the National Employment Standards.\n\n(2) If an employee, or his or her spouse or de facto partner (if the spouse or de facto partner is also an employee), continues on leave under the National Employment Standards in accordance with subitem (1), the employee is entitled to adjust any of the following consistently with the provisions of the National Employment Standards in relation to that type of leave:\n\nNote: If the employee’s spouse or de facto partner is also an employee, the employees will be an employee couple for the purposes of the parental leave provisions of the National Employment Standards.\n\n (a) an employee has taken a step that the employee is required to take so that the employee can, on or after the FW (safety net provisions) commencement day, take a type of leave referred to in subitem (1); and\n\nNote: For example, if an employee has given the employer an application under section 271 of the WR Act so that the employee can take ordinary maternity leave, the employee is taken to have given the employer notice under section 74 of the FW Act of the taking of unpaid parental leave.\n\n(4) If an employee is taken, by subitem (3), to have taken a step, in relation to leave, under the National Employment Standards, the employee is entitled to adjust the step consistently with the provisions of the National Employment Standards in relation to that type of leave.\n\nNote: For example, an employee could vary the content of a notice given to the employer in relation to the leave, or vary the amount of leave the employee has notified the employer that the employee intends to take.\n\n(5) The regulations may deal with other matters relating to how the National Employment Standards apply to leave that, immediately before the FW (safety net provisions) commencement day, is being, or is to be, taken under Part 7 of the WR Act.\n\n(1) An employee may, on or after the FW (safety net provisions) commencement day, be absent from his or her employment under Division 8 of the National Employment Standards even if the period of absence began before that day.\n\n(2) If an employee is absent from his or her employment in accordance with subitem (1), subsection 111(5) of the National Employment Standards applies as if a reference to the first 10 days of absence were a reference to the first 10 days of absence occurring on or after the FW (safety net provisions) commencement day.\n\n(1) Subdivision A of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the FW (safety net provisions) commencement day.\n\n(2) However, that Subdivision does not apply to a termination if notice of the termination was given before the FW (safety net provisions) commencement day.\n\nSubdivision B of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the FW (safety net provisions) commencement day, even if notice of the termination was given before that day.\n\n (b) subsections 22(5) and (6) of the FW Act, as those provisions apply for the purposes of the National Employment Standards;\n\ndo not cover a situation where the employee became employed by the second employer (within the meaning of subsection 22(7) of the FW Act) at a time before the FW (safety net provisions) commencement day.\n\nA body that was established, or continued in existence, for the purpose, or for purposes that include the purpose, of enabling one or more employees to obtain the protection of subsection 659(2) of the WR Act (which dealt with unlawful termination) is not a recognised emergency management body for the purposes of the FW Act.\n\nThe obligation in section 125 of the National Employment Standards for an employer to give an employee the Fair Work Information Statement only applies to an employee who starts employment with the employer on or after the FW (safety net provisions) commencement day.\n\nThe regulations may make provision in relation to how the National Employment Standards apply to, or are affected by, things done or matters occurring before the FW (safety net provisions) commencement day.\n\n(1) An employee’s service with an employer before the Division 2B referral commencement counts as service of the employee with the employer for the purpose of determining the employee’s entitlements under the National Employment Standards, other than entitlements to:\n\nNote 1: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).\n\nNote 2: Interaction between the National Employment Standards and Division 2B State instruments is dealt with in Division 1 of Part 5 of Schedule 3A to this Act.\n\n(2) If, before the Division 2B referral commencement, the employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service, subitem (1) does not result in that period of service with the employer being counted again when calculating the employee’s entitlements of that kind under the National Employment Standards.\n\n(3) To avoid doubt, subitem (2) does not require an employee to serve any initial qualifying period of service for long service leave again.\n\n(4) Subitem (1) does not apply in relation to an employee and an employer for the purposes of Subdivision B of Division 11 of the National Employment Standards (which deals with redundancy pay) if the terms and conditions of employment that applied to the employee’s employment by the employer immediately before the Division 2B referral commencement did not provide for an entitlement to redundancy pay.\n\n(5) If, had an employee’s employment been terminated for redundancy (however described) before the Division 2B referral commencement, a State industrial body could have made an order giving the employee an entitlement to redundancy pay (however described):\n\n (a) the terms and conditions of the employee’s employment referred to in subitem (4) are taken to have provided for an entitlement to redundancy pay; and\n (b) paragraph 121(1)(b) of the FW Act does not apply in relation to the employee during the period of 12 months starting on the Division 2B referral commencement.\n\nNote: Because of paragraph (b), the employee may therefore be entitled to redundancy pay under section 119 of the FW Act if the employee’s employment is terminated during the 12 month period starting on the Division 2B referral commencement, even if the employer is a small business employer.\n\n(1) This item applies if an employee had, immediately before the Division 2B referral commencement, an accrued entitlement to an amount of paid annual leave or paid personal/carer’s leave, whether the leave accrued under a State industrial law, the source award or source agreement for a Division 2B State instrument, or otherwise.\n\n(2) The provisions of the National Employment Standards relating to taking that kind of leave (including rates of pay while taking leave), or cashing‑out that kind of leave, apply, as a minimum standard, to the accrued leave as if it had accrued under the National Employment Standards.\n\n18 Leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken under Division 6 of Part 7 of the WR Act or a State industrial law\n\nthe employee is entitled to continue on leave of the equivalent type under the National Employment Standards for the remainder of the period.\n\nNote: For example, if an employee was taking parental leave under Division 6 of Part 7 of the WR Act immediately before the Division 2B referral commencement, the employee is entitled to continue on unpaid parental leave under the National Employment Standards.\n\n(2) If an employee, or his or her spouse or de facto partner (if the spouse or de facto partner is also an employee), continues on leave under the National Employment Standards in accordance with subitem (1), the employee is entitled to adjust any of the following consistently with the provisions of the National Employment Standards in relation to that type of leave:\n\nNote: If the employee’s spouse or de facto partner is also an employee, the employees will be an employee couple for the purposes of the parental leave provisions of the National Employment Standards.\n\n (a) an employee has taken a step that the employee is required to take so that the employee can, on or after the Division 2B referral commencement, take a type of leave referred to in subitem (1); and\n\nNote: For example, if an employee has given the employer an application under section 271 of the WR Act so that the employee can take ordinary maternity leave, the employee is taken to have given the employer notice under section 74 of the FW Act of the taking of unpaid parental leave.\n\n(4) If an employee is taken, by subitem (3), to have taken a step, in relation to leave, under the National Employment Standards, the employee is entitled to adjust the step consistently with the provisions of the National Employment Standards in relation to that type of leave.\n\nNote: For example, an employee could vary the content of a notice given to the employer in relation to the leave, or vary the amount of leave the employee has notified the employer that the employee intends to take.\n\n(5) The regulations may deal with other matters relating to how the National Employment Standards apply to leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken under Division 6 of Part 7 of the WR Act or under a State industrial law of a Division 2B referring State.\n\n(1) Subdivision A of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the Division 2B referral commencement.\n\n(2) However, that Subdivision does not apply to a termination if notice of the termination was given before the Division 2B referral commencement.\n\nSubdivision B of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the Division 2B referral commencement, even if notice of the termination was given before that day.\n\nThe obligation in section 125 of the National Employment Standards for an employer to give an employee the Fair Work Information Statement only applies to an employee who starts employment with the employer on or after the Division 2B referral commencement.\n\nThe regulations may make provision in relation to how the National Employment Standards apply to, or are affected by, things done or matters occurring before the Division 2B referral commencement.\n\n(1) The Australian Industrial Relations Commission is to continue and complete the award modernisation process provided for by Part 10A of the WR Act (the Part 10A award modernisation process).\n\n(2) For that purpose, Part 10A of the WR Act continues to apply on and after the WR Act repeal day in accordance with this Part.\n\n(3) Without limiting subitem (2), the request under section 576C of the WR Act continues to apply on and after the WR Act repeal day, and may be varied in accordance with that section.\n\n (c) all the words after “eligible entity” in paragraph 576K(2)(b) were omitted and the words “may arrange for work to be performed for the entity (either directly or indirectly), if the work is of a kind that is often performed by outworkers” were substituted; and\n (h) a reference to an outworker in subsection 576K(2) were a reference to an outworker within the meaning of the FW Act; and\n (j) a reference to an outworker term in section 576V were a reference to an outworker term within the meaning of the FW Act.\n\n(4) The Australian Industrial Relations Commission’s power under section 576H of the WR Act to vary a modern award cannot be exercised after the modern award has come into operation.\n\n(5) In continuing and completing the Part 10A award modernisation process, the Australian Industrial Relations Commission must have regard to:\n\n (b) the likely effects on the national economy of any modern award that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation; and\n (c) the likely effects on the relevant industry or industry sector of any modern award that the Commission is considering, or is proposing to make, including on productivity, labour costs and the regulatory burden on businesses.\n\n3 Variation and termination of certain transitional instruments etc. to take account of Part 10A award modernisation process\n\n(1) The FWC must, as soon as practicable after a modern award (other than the miscellaneous modern award) made in the Part 10A award modernisation process comes into operation (and subject to subitem (3)):\n\n (a) terminate any of the following (modernisable instruments) that the FWC considers are completely replaced by the modern award:\n (b) if the FWC considers that the modern award only partly replaces a modernisable instrument—vary the coverage terms of the modernisable instrument accordingly.\n\nNote 1: The main provisions about transitional instruments are in Schedule 3, and the main provisions about transitional APCSs are in Schedule 9.\n\nNote 2: This item does not limit the effect of any other provision of this Act under which a modernisable instrument ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.\n\n(2) As soon as practicable after all modern awards made in the Part 10A modernisation process have come into operation, the FWC must (subject to subitem (3)) terminate any remaining modernisable instruments.\n\n (a) terminate a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award, or that covers employees who are also covered by an enterprise instrument or a State reference public sector transitional award; or\n (b) vary a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award; or\n (c) vary a modernisable instrument so that it ceases to cover employees who are also covered by an enterprise instrument or a State reference public sector transitional award.\n\nNote 1: Item 9 of Schedule 6 deals with termination and variation of modernisable instruments to take account of the enterprise instrument or a State reference public sector transitional award modification process.\n\nNote 2: Item 10 of Schedule 6A deals with termination and variation of State reference public sector transitional awards to take account of the State reference public sector transitional award modernisation process.\n\n(4) The FWC may establish a process for making decisions under this item to terminate or vary one or more modernisable instruments.\n\n(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s powers under subitem (5).\n\n(1) A modern award made in the Part 10A award modernisation process is, for the purposes of the FW Act (and any other law), taken to be a modern award within the meaning of that Act from the later of the following days:\n\n(2) Section 49 of the FW Act does not apply for the purpose of determining when the modern award comes into operation. Instead, the modern award comes into operation on the day on which it is expressed to commence (in accordance with section 576Y of the WR Act).\n\n(3) The regulations may deal with other matters relating to how the FW Act applies in relation to modern awards made in the Part 10A award modernisation process.\n\n(1) If the FWC considers that there is a minor or technical problem with a modern award that is attributable to the fact that the Part 10A award modernisation process started before the enactment of the FW Act, the FWC may make a determination varying the modern award to resolve the problem.\n\nNote: Certain modern awards may, for example, contain references to concepts or provisions that are not consistent with the FW Act as enacted. This variation power allows the FWC to fix such references.\n\n (c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award; or\n (d) if the variation is of outworker terms in the modern award—on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the terms relate.\n\n6 Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years\n\n(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, the FWC must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.\n\nNote: The review required by this item is in addition to the annual wage reviews and 4 yearly reviews of modern awards that the FWC is required to conduct under the FW Act.\n\n (b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.\n\n(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent the FWC from reviewing 2 or more modern awards at the same time.\n\n(3) The FWC may make a determination varying any of the modern awards in any way that the FWC considers appropriate to remedy any issues identified in the review.\n\nNote: Any variation of a modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2‑3 of the FW Act).\n\n(4) The modern awards objective applies to the FWC making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.\n\n(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s powers under subitem (5).\n\n (a) a modern award includes terms (review terms) under which the FWC may review transitional arrangements included in the award; and\n (b) the review terms, and the transitional arrangements, were included in the award in the Part 10A award modernisation process;\n\nNote: Any variation of the modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2‑3 of the FW Act).\n\n(2) The review terms are taken to be terms that are permitted to be included in the modern award by Subdivision B of Division 3 of Part 2‑3 of the FW Act.\n\n(1) The Part 10A award modernisation process is not intended to result in a reduction in the take‑home pay of employees or outworkers.\n\nNote: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.\n\n (a) a modern award made in the Part 10A award modernisation process starts to apply to the employee when the award comes into operation; and\n (b) 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\n (c) the amount of the employee’s take‑home pay for working particular hours or for a particular quantity of work after 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\n\n (a) when a modern award that contains outworker terms comes into operation, the outworker is a person to whom outworker terms in the modern award relate; and\n (b) 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\n (c) the amount of the outworker’s take‑home pay for working particular hours or for a particular quantity of work after 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\n\n(1) If the FWC is satisfied that an employee, or a class of employees, to whom a modern award applies has suffered a modernisation‑related reduction in take‑home pay, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation.\n\n(2) If the FWC is satisfied that an outworker, or a class of outworkers, to whom outworker terms in a modern award relate has suffered a modernisation‑related reduction in take‑home pay, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the outworker or outworkers that the FWC considers appropriate to remedy the situation.\n\n(4) If the FWC is satisfied that an application for a take‑home pay order has already been made in relation to an employee or a class of employees, or an outworker or a class of outworkers, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees, or the same outworker or outworkers.\n\n(1) The FWC must not make a take‑home pay order in relation to an employee or class of employees, or an outworker or a class of outworkers, if:\n\n (b) the FWC is satisfied that the employee or employees, or outworker or outworkers, have been adequately compensated in other ways for the reduction.\n\n (a) it does not apply to an employee or outworker unless the employee or outworker has actually suffered a modernisation‑related reduction in take‑home pay; and\n (b) if the take‑home pay payable to the employee or outworker under the modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee or outworker under the order.\n\nA take‑home pay order made in relation to an employee or class of employees to whom a particular modern award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the modern award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.\n\nA term of a modern award or an enterprise agreement has no effect in relation to an employee or outworker to the extent that it is less beneficial to the employee or outworker than a term of a take‑home pay order that applies to the employee or outworker.\n\n(2) An enterprise award‑based instrument is an award‑based transitional instrument, other than a State reference public sector transitional award, to which subitem (2A) or (2B) applies.\n\n(2A) This subitem applies to an award‑based transitional instrument that is an award or a State reference transitional award, if the award or State reference transitional award covers employees in:\n\n(2B) This subitem applies to an award‑based transitional instrument that is a notional agreement preserving State awards, if the notional agreement includes terms and conditions from a State award (within the meaning of the WR Act) that covered employees in:\n\n (b) one or more enterprises, if the employers all carried on similar business activities under the same franchise and were:\n\n(3) An enterprise preserved collective State agreement is a transitional instrument that is a preserved collective State agreement in relation to which the following paragraphs are satisfied:\n\n (a) a State or Territory law had, on the day before the commencement of Part 2 of Schedule 4 to the Workplace Relations Amendment (Work Choices) Act 2005, the effect (however described) of converting a State award (within the meaning of the WR Act) into the relevant State employment agreement (within the meaning of the WR Act);\n (b) if the State award had continued to have effect in relation to employees, a notional agreement preserving State awards to which subitem (2B) applies would have been taken to come into operation in relation to those employees.\n\n (ii) a body, association, office or other entity established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or\n\n(2) For the purposes of subitem (1), if 2 or more employers carry on a business, project or undertaking as a joint venture or common enterprise, the employers are taken to be one employer.\n\nNote: However, an enterprise instrument or a modern enterprise award could just relate to a part of that single enterprise.\n\n(1) The enterprise instrument modernisation process is the process of making modern awards under this Division to replace enterprise instruments.\n\n(5) In deciding whether or not to make a modern enterprise award, and in determining the content of that award, the FWC must take into account the following:\n\n (a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;\n (b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;\n (c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);\n (d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;\n (f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;\n\nNote: A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC’s final wage review under the WR Act, or to include transitional arrangements in the modern award.\n\n(5A) If the FWC makes a modern enterprise award before the FW (safety net provisions) commencement day, the modern enterprise award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day.\n\n(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.\n\n (a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;\n (b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;\n (c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);\n (d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;\n (f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to terminate, or not terminate, the enterprise instrument, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;\n\nNote: A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC’s final wage review under the WR Act, or to include transitional arrangements in the modern award.\n\n(5) If the FWC terminates the enterprise instrument, the termination operates from the day specified in the decision to terminate the instrument, being a day that is not earlier than the FW (safety net provisions) commencement day.\n\n(1) The modern awards objective and the minimum wages objective apply to the FWC making a modern enterprise award under this Division.\n\n(2) However, in applying the modern awards objective and the minimum wages objective, the FWC must recognise that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. This is the modern enterprise awards objective.\n\nNote 1: See also item 11 (enterprise instrument modernisation process is not intended to result in reduction in take‑home pay).\n\nNote 2: See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day).\n\n(1) Subject to this item and item 8, Division 3 of Part 2‑3 of the FW Act (which deals with terms of modern awards) applies in relation to a modern enterprise award made under this Division.\n\nNote: See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day).\n\n(2) If the making of a modern enterprise award results in an increase in an employee’s entitlements, the modern enterprise award may provide for the increases to take effect in stages.\n\n(3) If a modern award includes an industry‑specific redundancy scheme in relation to a particular industry, and the FWC makes a modern enterprise award that covers persons who operate in that industry, the FWC may include the industry‑specific redundancy scheme in the modern enterprise award.\n\n (b) to one or more enterprises, but only if the employers all carry on similar business activities under the same franchise and are:\n\n (a) a specified employer that carries on, or specified employers that carry on, the enterprise or enterprises referred to in subitem (2); and\n\n (a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or\n\n(1) If the FWC makes a modern enterprise award to replace an enterprise preserved collective State agreement, the agreement terminates when the modern award comes into operation.\n\n(2) The FWC must, as soon as practicable after a modern enterprise award that is made to replace an enterprise instrument comes into operation:\n\nNote 1: The main provisions about transitional instruments are in Schedule 3, the main provisions about transitional APCSs are in Schedule 9, and the main provisions about Division 2B State awards are in Schedule 3A.\n\nNote 2: This item does not limit the effect of any other provision of this Act under which a modernisable instrument ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.\n\n(3) If the FWC decides not to make a modern enterprise award to replace an enterprise instrument, the instrument terminates when that decision comes into operation.\n\n(3A) Despite subitem (3), if, before the FW (safety net provisions) commencement day, the FWC makes a decision not to make a modern enterprise award to replace an enterprise instrument, the decision must not come into operation before the FW (safety net provisions) commencement day.\n\n(4) If, by the end of the period specified in paragraph 4(3)(b), no application under item 4 or 5 has been made in relation to an enterprise instrument, the instrument terminates at the end of that period.\n\n(5) As soon as practicable after all modern enterprise awards made in the enterprise instrument modernisation process have come into operation, the FWC must terminate any remaining modernisable instruments.\n\n(1) The FWC must, at least 6 months before the end of the period specified in paragraph 4(3)(b), advise any persons still covered by an enterprise instrument:\n\n(3) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s functions and powers under this item.\n\n(1) The enterprise instrument modernisation process is not intended to result in a reduction in the take‑home pay of employees.\n\nNote: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.\n\n (a) a modern enterprise award made in the enterprise instrument modernisation process starts to apply to the employee when the award comes into operation; and\n (b) 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 enterprise award came into operation; and\n (c) the amount of the employee’s take‑home pay for working particular hours or for a particular quantity of work after the modern enterprise 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\n\n(1) If the FWC is satisfied that an employee, or a class of employees, to whom a modern enterprise award applies has suffered a modernisation‑related reduction in take‑home pay, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation.\n\n(3) If the FWC is satisfied that an application for a take‑home pay order has already been made in relation to an employee or a class of employees, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees.\n\n (b) the FWC is satisfied that the employee or employees have been adequately compensated in other ways for the reduction.\n\n (a) it does not apply to an employee unless the employee has actually suffered a modernisation‑related reduction in take‑home pay; and\n (b) if the take‑home pay payable to the employee under the modern enterprise award increases after the order is made, there is a corresponding reduction in any amount payable to the employee under the order.\n\n14 Take‑home pay order continues to have effect so long as modern enterprise award continues to cover the employee or employees\n\nA take‑home pay order made in relation to an employee or class of employees to whom a particular modern enterprise award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the modern enterprise award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.\n\nA term of a modern enterprise award or an enterprise agreement has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of a take‑home pay order that applies to the employee.\n\nFor the purposes of making a modern enterprise award before the FW (safety net provisions) commencement day, the following provisions of the FW Act apply as if they had already commenced:\n\n (e) any provisions that are necessary for the effectual operation of the provisions referred to in paragraphs (a) to (d).\n\n(1) A modern enterprise award made under Division 2 is, for the purposes of the FW Act (and any other law), taken to be a modern award (being a modern enterprise award) within the meaning of that Act from the day on which the modern enterprise award is made.\n\n(2) Section 49 of the FW Act does not apply for the purpose of determining when the modern enterprise award comes into operation. Instead, the modern enterprise award comes into operation on the day on which it is expressed to commence, being a day that is not earlier than the day on which the modern enterprise award is made.\n\n(3) The regulations may deal with other matters relating to how the FW Act applies in relation to modern enterprise awards.\n\n (a) the process of making modern awards under Part 10A of the Workplace Relations Act 1996, as continued by Part 2 of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; and\n (b) the enterprise instrument modernisation process provided for by Part 2 of Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.\n\nAdd:\n\n (8) A modern award (other than a modern enterprise award) must be expressed not to cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009), or employers in relation to those employees.\n\n## 143A Coverage terms of modern enterprise awards\n\n (b) to one or more enterprises, but only if the employers all carry on similar business activities under the same franchise and are:\n (a) a specified employer that carries on, or specified employers that carry on, the enterprise or enterprises referred to in subsection (2); and\n (a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or\n\nAdd:\n\n## Division 7 Additional provisions relating to modern enterprise awards\n\nAn Act to amend laws, and deal with transitional matters, in connection with the Fair Work Act 2009, and for other purposes\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 4 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent.

25 June 2009

2. Schedules 1 to 5

The day on which Part 2‑4 of the Fair Work Act 2009 commences.

1 July 2009

3. Schedule 6, Parts 1 and 2

At the same time as the provision(s) covered by table item 2.

1 July 2009

4. Schedule 6, Part 3

Immediately after the commencement of Part 2‑3 of the Fair Work Act 2009.

1 January 2010

4A. Schedule 6A

At the same time as the provision(s) covered by table item 2.

1 July 2009

5. Schedules 7 to 21

At the same time as the provision(s) covered by table item 2.

1 July 2009

6. Schedule 22, items 1 to 90

At the same time as the provision(s) covered by table item 2.

1 July 2009

7. Schedule 22, item 91

Immediately after the commencement of the provisions covered by table item 8.

1 July 2009

8. Schedule 22, items 92 to 627

At the same time as the provision(s) covered by table item 2.

1 July 2009

9. Schedule 23, items 1 to 2E

Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009.

1 July 2009

10. Schedule 23, items 3 to 6

Immediately after the commencement of Part 2‑2 of the Fair Work Act 2009.

1 January 2010

11. Schedule 23, item 7

Immediately after the commencement of Part 2‑3 of the Fair Work Act 2009.

1 January 2010

12. Schedule 23, item 8

Immediately after the commencement of Part 2‑8 of the Fair Work Act 2009.

1 July 2009

13. Schedule 23, item 9

Immediately after the commencement of Division 1 of Part 2‑9 of the Fair Work Act 2009.

1 July 2009

13A. Schedule 23, items 9A and 9B

Immediately after the commencement of Part 3‑1 of the Fair Work Act 2009.

1 July 2009

14. Schedule 23, items 10 to 12

Immediately after the commencement of Part 3‑3 of the Fair Work Act 2009.

1 July 2009

15. Schedule 23, items 13 to 21

Immediately after the commencement of Part 4‑1 of the Fair Work Act 2009.

1 July 2009

15A. Schedule 23, item 21A

Immediately after the commencement of Part 6‑1 of the Fair Work Act 2009.

1 July 2009

15B. Schedule 23, items 21B and 21C

Immediately after the commencement of Part 6‑4 of the Fair Work Act 2009.

1 July 2009

16. Schedule 23, item 22

Immediately after the commencement of section 799 of the Fair Work Act 2009.

1 July 2009

\n```\n\n> Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.\n\n (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.\n\n Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.\n\ncommon rule means a common rule within the meaning of clauses 82 to 87 of Schedule 6 to the WR Act (including those clauses as they continue to apply because of item 8A of Schedule 3).\n\nFair Work Australia or FWA means the body referred to in section 575 of the FW Act, as in force immediately before the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012.\n\nFWA member has the same meaning as in the FW Act, as in force immediately before the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012.\n\n (a) in relation to a workplace agreement—means lodged with the Workplace Authority Director under section 344 of the WR Act; and\n (b) in relation to a variation of a workplace agreement—means lodged with the Workplace Authority Director under section 346N or 377 of the WR Act, as the case may be; and\n (c) in relation to a termination of a workplace agreement—means lodged with the Workplace Authority Director under section 389 of the WR Act.\n\n (c) in relation to the State reference public sector transitional award modernisation process—has the meaning given by subitem 13(3) of Schedule 6A.\n\nState industrial body means a commission performing or exercising functions under a State industrial law, and includes a member of such a commission and a registrar or deputy registrar of such a commission.\n\nState industrial law means a law of a State that is a State or Territory industrial law as defined in section 26 of the FW Act.\n\nState reference transitional award or common rule means a State reference transitional award or a State reference common rule.\n\ntake‑home pay: see subitem 31(2) of Schedule 3A, subitem 8(2) of Schedule 5, subitem 11(2) of Schedule 6 and subitem 13(2) of Schedule 6A.\n\ntake‑home pay order: see subitems 32(1) and (2) of Schedule 3A, subitems 9(1) and (2) of Schedule 5, subitem 12(1) of Schedule 6 and subitem 14(1) of Schedule 6A.\n\nunlodged termination, in relation to a workplace agreement, means a termination of a workplace agreement approved in accordance with section 386 of the WR Act, but not lodged as at the WR Act repeal day.\n\nunlodged variation, in relation to a workplace agreement, means a variation of the workplace agreement under Division 8 of Part 8 of the WR Act approved in accordance with section 373 of the WR Act, but not lodged as at the WR Act repeal day.\n\nworkplace agreement that operates from approval means a workplace agreement to which Subdivision C of Division 5A of Part 8 of the WR Act applies (see subsection 346K(1) of that Act).\n\n(1) WR Act means the Workplace Relations Act 1996 and, unless the contrary intention appears, means that Act as in force immediately before the WR Act repeal day.\n\n(2) Unless a contrary intention appears, a reference to the WR Act, or to a provision or provisions of the WR Act, includes a reference to regulations made for the purposes of the WR Act, or for the purposes of the provision or provisions of the WR Act.\n\n(3) If an item of the transitional Schedules provides for the WR Act, or a provision or provisions of the WR Act, to continue to apply on and after the WR Act repeal day (or during the bridging period), the WR Act, or the provision or provisions, continue to so apply despite the WR Act repeal.\n\n(5) Unless a contrary intention appears, a reference to the FW Act, or to a provision or provisions of the FW Act, includes a reference to regulations made for the purposes of the FW Act, or for the purposes of the provision or provisions of the FW Act.\n\n (a) expressions used in a transitional Schedule that were defined in the WR Act (other than Schedule 1 to that Act) have the same meanings in that transitional Schedule as they had in that Act; and\n (b) expressions used in a transitional Schedule that are defined in the FW Act have the same meanings in that transitional Schedule as they have in that Act.\n\n(1) If a provision of a transitional Schedule provides for provisions (the applied WR Act provisions) of the WR Act to apply on and after the WR Act repeal day, any other provisions of the WR Act, and any regulations or other instruments made under that Act, that are necessary for the effectual operation of the applied WR Act provisions also apply on and after that day.\n\n(1) To avoid doubt, in interpreting provisions of the transitional Schedules, the effect on the WR Act of Part 21 of that Act (which deals with matters referred by Victoria) before the WR Act repeal day is to be taken into account.\n\nNote: For example, a reference in Schedule 3 to a workplace agreement includes a reference to a workplace agreement made under Part 8 of the WR Act, as that Part had effect because of Part 21.\n\n(2) If a provision of the transitional Schedules provides for the application or continued application of provisions of the WR Act on and after the WR Act repeal day, those provisions also have the effect they would have if Part 21 of that Act were still in force.\n\nNote: For example, item 2 of Schedule 4 provides for the continued application during the bridging period of Divisions 3, 4, 5 and 6 of Part 7 of the WR Act. The continued application of those Divisions also includes the extended effect those Divisions would have if Part 21 were still in force.\n\n(1) The regulations may make provisions of a transitional, application or saving nature in relation to any of the following:\n\n (a) the transition from the regime provided for by the WR Act (and any Acts that amended that Act) to the regime provided for by the FW Act;\n (c) the transition from the regime provided for by State industrial laws of Division 2B referring States to the regime provided for by this Act and the FW Act, including:\n\n (a) modify provisions of the FW Act, or provide for the application (with or without modifications) of provisions of the FW Act to matters to which they would otherwise not apply;\n (b) provide for the application (with or without modifications) of provisions of the WR Act on and after the WR Act repeal day;\n (c) provide for the application (with or without modifications), as laws of the Commonwealth, of provisions of State industrial laws of Division 2B referring States on and after the Division 2B referral commencement.\n\n(2) If a provision of a transitional Schedule provides for repealed provisions of the WR Act to apply on and after the WR Act repeal day, the regulations may:\n\n(3) If a provision of a transitional Schedule provides for provisions of the FW Act to apply in relation to matters to which they would otherwise not apply, the regulations may:\n\n(2) The regulations must not confer compliance powers on an inspector that are additional to the compliance powers under Part 5‑2 of the FW Act.\n\n(1) This item applies to regulations made for the purpose of any of the provisions of the transitional Schedules (including this Part).\n\n(2) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to the regulations.\n\n (a) regulations are expressed to commence from a date (the registration date) before the regulations are registered under the Legislation Act 2003; and\n\nthen a court must not convict the person of an offence, or order the person to pay a pecuniary penalty, in relation to the conduct on the grounds that it contravened a provision of any of those Acts.\n\n(4) The provisions of the transitional Schedules (including this Part) that provide for regulations to deal with matters do not limit each other.\n\n(1) The WR Act continues to apply, on and after the WR Act repeal day, in relation to conduct that occurred before the WR Act repeal day.\n\nNote: For continuation and cessation of WR Act bodies and offices on and after the WR Act repeal day, see item 7 of Schedule 18.\n\n(2) To avoid doubt, the WR Act continues to apply, on and after the WR Act repeal day, in relation to orders made under that Act, including as it continues to apply under subitem (1).\n\n (b) provide for the continued operation of the WR Act (including in modified form) in relation to conduct that occurs on or after the WR Act repeal day.\n\n (a) an application, other than an interim application, that could have been made to any of the following because of item 11 may be made only to the FWC:\n (b) an appeal to the Commission that could have been instituted because of item 11 may be instituted only as an appeal to the FWC; and\n (c) a process (however described), other than an interim process, that could have been initiated by the Commission on its own motion because of item 11 may be initiated only by the FWC; and\n (d) a matter that could have been referred to the Commission under section 46PW of the Australian Human Rights Commission Act 1986 because of item 11 is to be referred only to the FWC.\n\n(2) For the purposes of subitem (1), a law of the Commonwealth that relates to an application, appeal, process or matter referred to in that subitem is to be read:\n\ninterim application means an application that relates to a matter that is already before, or being dealt with by, the Commission, the President, a member of the Commission or a Registrar before the WR Act repeal day.\n\ninterim process means a process (however described) that relates to a matter that is already before, or being dealt with by, the Commission, the President, a member of the Commission or a Registrar before the WR Act repeal day.\n\n (b) provide for any other matter that, because of item 11, could have been dealt with by a WR Act body or a person holding a WR Act office to be dealt with by the FWC, or by the FWC only.\n\n(1) Each WR Act instrument (see subitem (2)) that becomes a transitional instrument (see subitems (3) to (4A)) continues in existence in accordance with this Schedule from when it becomes a transitional instrument, despite the WR Act repeal.\n\nNote: In addition to provisions of this Schedule, the following other provisions affect the continued existence of transitional instruments:\n\n (c) Schedule 8 (which deals with workplace agreements and workplace determinations made under the WR Act, including the making of ITEAs during the bridging period);\n\nNote 2: Preserved State agreements are either preserved collective State agreements or preserved individual State agreements.\n\nNote 3: For transitional provisions relating to Division 2 of Part 7 of the WR Act (which deals with wages), see Schedule 9.\n\n (a) each WR Act instrument (other than a Division 2B State reference transitional award) that was in operation immediately before the WR Act repeal day;\n (b) each workplace agreement or workplace determination made before the WR Act repeal day but that had not yet come into operation by that day;\n (c) any other WR Act instrument that, although not in operation immediately before the WR Act repeal day, could come into operation after that day because of an instrument interaction rule.\n\nNote: Victorian employment agreements are not continued as transitional instruments. For provisions relating to these agreements, see Part 7 of this Schedule.\n\n(3A) If a State reference common rule comes into effect on or after the WR Act repeal day under the provisions that continue to apply because of item 8A, the State reference common rule becomes a transitional instrument when the common rule comes into effect.\n\n(4) If an ITEA is made during the bridging period under Division 7 of Part 2 of Schedule 8, the ITEA becomes a transitional instrument when it is made.\n\n(4A) A Division 2B State reference transitional award becomes a transitional instrument on the Division 2B referral commencement. The Division 2B referral commencement is the time when Division 2B of Part 1‑3 of the FW Act commences.\n\n (a) awards, State reference transitional awards or common rules, and notional agreements preserving State awards, are award‑based transitional instruments;\n (c) agreement‑based transitional instruments of the following kinds are collective agreement‑based transitional instruments:\n (d) agreement‑based transitional instruments of the following kinds are individual agreement‑based transitional instruments:\n\n (a) if the employers and employees covered are Division 2A State reference employers and Division 2A State reference employees—the State reference transitional award is a Division 2A State reference transitional award;\n (b) if the employers and employees covered are Division 2B State reference employers and Division 2B State reference employees—the State reference transitional award is a Division 2B State reference transitional award.\n\n(3) A State reference employee is an employee who is a national system employee only because of section 30C or 30M of the FW Act.\n\n (a) employees who are national system employees because of section 30C of the FW Act are Division 2A State reference employees;\n (b) employees who are national system employees because of section 30M of the FW Act are Division 2B State reference employees.\n\n(4) A State reference employer is an employer that is a national system employer only because of section 30D or 30N of the FW Act.\n\n (a) employers that are national system employers because of section 30D of the FW Act are Division 2A State reference employers;\n (b) employers that are national system employers because of section 30N of the FW Act are Division 2B State reference employers.\n\n (a) a transitional award (the current award), as in force on the WR Act repeal day, covers one or more Division 2A State reference employers, and Division 2A State reference employees of those employers; and\n\nthen, for the purposes of this Act, the current award is taken instead, on and after that day (subject to subitem (6)), to constitute 2 separate transitional awards as follows:\n\n (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a)—that organisation in relation to those employers or employees; and\n (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b)—that organisation in relation to those employers or employees.\n\n (a) a transitional award (the current award), as in force on the Division 2B referral commencement, covers one or more Division 2B State reference employers, and Division 2B State reference employees of those employers; and\n\nthen, for the purposes of this Act, the current award is taken instead, on and after the Division 2B referral commencement, to constitute 2 separate transitional awards as follows:\n\n (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a)—that organisation in relation to those employers or employees;\n (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b)—that organisation in relation to those employers or employees.\n\n(1) A transitional instrument covers the same employees, employers and any other persons that it would have covered (however described in the instrument or WR Act) if the WR Act had continued in operation.\n\nNote 1: The expression covers is used to indicate the range of employees, employers etc. to whom the instrument potentially applies (see subitem (2)). The employees, employers etc. who are within this range will depend on terms of the instrument, and on any relevant provisions of the WR Act.\n\nNote 2: Depending on the terms of a transitional instrument and any relevant provisions of the WR Act, the instrument’s coverage may extend to people who become employees after the instrument becomes a transitional instrument.\n\n(2) A transitional instrument applies to the same employees, employers and any other persons the instrument covers as would, if the WR Act had continued in operation, have been:\n\nNote: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of a transitional instrument.\n\n(3) However, an award‑based transitional instrument does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act).\n\n (c) Division 2 of Part 5 (which deals with interaction between transitional instruments and FW Act modern awards, workplace determinations and enterprise agreements); and\n\n(1) The same instrument content rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.\n\nNote: Certain instrument content rules relating to the standing down of employees do not continue to apply in relation to WR Act instruments that become transitional instruments (see item 3 of Schedule 15).\n\n(2) Instrument content rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, of any of the following kinds:\n\n(1) The same instrument interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.\n\n(2) Instrument interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:\n\n(1) The same State and Territory interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.\n\n(2) State and Territory interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:\n\n(1) If a provision of a transitional instrument confers a power or function on the Australian Industrial Relations Commission, that provision has effect on and after the WR Act repeal day as if references in it to the Commission were instead references to the FWC.\n\n(2) If a provision of a transitional instrument confers a power or function on the Industrial Registrar or a Deputy Industrial Registrar, that provision has effect on and after the WR Act repeal day as if references in it to the Industrial Registrar or a Deputy Industrial Registrar were instead references to the General Manager of the FWC.\n\n (a) any right or liability that a person acquired, accrued or incurred before the transitional instrument terminated or ceased to apply; or\n\n(2) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the transitional instrument had not terminated or ceased to apply.\n\n(1) To the extent of any inconsistency, the following transitional instruments displace prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations:\n\n(3) If, immediately before the WR Act repeal day, regulations made under section 350 of the WR Act, or that continued to apply under subclause 2(2) or 17(2) of Schedule 7 to the WR Act:\n\n (a) identified a condition as a prescribed condition in relation to an instrument referred to in paragraph (1)(a), (b), (c) or (d); or\n (b) prescribed an Act or any regulations or other instrument made under an Act as a Commonwealth law in relation to such an instrument;\n\n(1) Subject to this item, clauses 82 to 87 of Schedule 6 to the WR Act continue to apply on and after the WR Act repeal day in relation to State reference common rules.\n\n (a) references in the clauses to the transitional period (including references to the end of the transitional period) were omitted; and\n (d) a reference in the clauses to the Rules of the Commission were instead a reference to the procedural rules of the FWC.\n\nNote: For example, paragraph (2)(a) does not apply if the reference is to something that the Commission did before the WR Act repeal day (or before the reform commencement).\n\n (b) item 26 (which deals with resolving difficulties with the interaction between transitional instruments and the National Employment Standards); or\n\nNote: The references in paragraphs (1)(a) and (2)(a) to a provision of this Part or the regulations includes a reference to a provision of the WR Act or the FW Act as it applies because of a provision of this Part.\n\n(1) On application by a person covered by a transitional instrument, the FWC may make a determination varying the instrument:\n\n (c) to remove terms that are inconsistent with Part 3‑1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part.\n\nNote: For variation of a transitional instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 26.\n\n(2) A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.\n\n(1) This item applies if a transitional instrument is referred to the FWC under section 46PW of the Australian Human Rights Commission Act 1986 (which deals with discriminatory industrial instruments).\n\n(2) If the instrument is an award‑based transitional instrument, section 161 of the FW Act applies in relation to the referral of the instrument as if the instrument were a modern award.\n\n(3) If the transitional instrument is an agreement‑based transitional instrument, section 218 of the FW Act applies in relation to the referral of the instrument as if the instrument were an enterprise agreement.\n\n(1) Subject to this item, Divisions 5 (other than subsections 554(1) to (4)) and 6 of Part 10 of the WR Act continue to apply on and after the WR Act repeal day in relation to transitional instruments that are awards as if references to the Commission were instead references to the FWC.\n\n(2) The FWC must perform its powers and functions under Divisions 5 and 6 in a way that furthers the objects of Part 10 of the WR Act.\n\n (b) an award can be varied or revoked after the end of the bridging period as a result of the FWC continuing to deal with a matter that it was dealing with before the end of the bridging period.\n\n(1) Subject to this item, Divisions 5 (other than subsections 554(1) to (4)) and 6 of Part 10 of the WR Act apply on and after the WR Act repeal day in relation to transitional instruments that are State reference transitional awards as if:\n\n(2) To avoid doubt, for the purpose of sections 552 and 553 of the WR Act, as applied by subitem (1) in relation to State reference transitional awards, “minimum safety net entitlements” includes minimum safety net entitlements relating to wages.\n\n(3) The FWC must perform its powers and functions under Divisions 5 and 6 in a way that furthers the objects of Part 10 of the WR Act.\n\n(4) A State reference transitional award cannot be varied or revoked after the end of the bridging period except as follows:\n\n (a) a State reference transitional award, other than terms relating to wages, can be varied after the end of the bridging period under section 553 of the WR Act;\n (b) terms of a State reference transitional award relating to wages can be varied after the end of the bridging period in an annual wage review under the FW Act as provided for in subitem (5);\n (c) a State reference transitional award can be varied after the end of the bridging period as a result of the FWC continuing to deal with a matter that it was dealing with before the end of the bridging period.\n\n(5) In an annual wage review, the FWC may make a determination varying terms of a State reference transitional award relating to wages.\n\n(6) For the purpose of subitem (5), Division 3 of Part 2‑6 of the FW Act (other than section 292) applies to terms of a State reference transitional award relating to wages in the same way as it applies to a modern award.\n\n(1) Subject to this item, clause 2A of Schedule 7 to the WR Act continues to apply on and after the WR Act repeal day in relation to transitional instruments that are pre‑reform certified agreements as if references to the Commission were instead references to FWA.\n\n(1) Subject to this item, clause 16A of Schedule 8 to the WR Act continues to apply on and after the WR Act repeal day in relation to transitional instruments that are preserved State agreements as if references to the Commission were instead references to FWA.\n\nSubdivision C of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective agreement‑based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument.\n\n(1) Subdivision D of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement‑based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument.\n\n(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.\n\n(3) To avoid doubt, subsection 615A(3) of the FW Act does not apply in relation to a collective agreement‑based transitional instrument.\n\n(1) The employee and employer covered by an individual agreement‑based transitional instrument may make a written agreement (a termination agreement) to terminate the agreement in accordance with the following requirements:\n\n(3) The employer or employee may apply to the FWC for approval of the termination agreement. The application must be made:\n\n (b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.\n\n(4) If an application for the FWC to approve the termination agreement is made under subitem (3), the FWC must approve the termination of the instrument if:\n\n (b) the FWC is satisfied that there are no other reasonable grounds for believing that the employee has not agreed to the termination.\n\n(5) If the termination is approved under subitem (4), the termination operates from the day specified in the decision to approve the termination.\n\n(1) This item provides for the making of an instrument (a conditional termination) that will have the effect of terminating an individual agreement‑based transitional instrument if:\n\n(2) If the transitional instrument has not passed its nominal expiry date, the conditional termination must be a written agreement signed by the employer and the employee. The signatures must be witnessed.\n\n(3) If the transitional instrument has passed its nominal expiry date, the conditional termination must be in writing and signed either by the employee or the employer. The signature must be witnessed.\n\n(4) If the conditional termination is signed by the employee, and the employee is under 18, it must also be signed by a parent or guardian of the employee.\n\n(5) Any other requirements of the regulations relating to the form, content or making of the conditional termination must also be complied with.\n\n (a) the conditional termination is an agreement signed by the employee and the employer in the circumstances covered by subitem (2); or\n\n(7) The conditional termination must accompany any application to the FWC for approval of the proposed enterprise agreement under section 185 of the FW Act.\n\nNote 2: Failure to comply with this obligation does not affect the operation of subitem (8), or the validity of an approval by the FWC of the proposed enterprise agreement.\n\n(8) If the requirements of subitems (2) to (5) have been complied with in relation to the conditional termination, the transitional instrument terminates when the proposed enterprise agreement comes into operation.\n\n (a) make a written declaration that identifies the transitional instrument and that states that the employer or employee wants to terminate the transitional instrument; and\n\n(3) The employer or employee cannot make an application as mentioned in paragraph (2)(b) unless, at least 14 days before the day on which the application is made, the employer or employee gives the other of them a notice complying with the following requirements:\n\n (b) the notice must state that the employer or employee intends to apply to the FWC for approval of the termination of the instrument;\n (c) the notice must state that, if the FWC approves the termination, the transitional instrument will terminate on the 90th day after the day on which the FWC makes the approval decision;\n (i) the notice must state whether, if the instrument terminates during the bridging period, one or more redundancy provisions in the instrument will continue to apply to the employee as provided for by item 38; and\n (ii) if one or more redundancy provisions in the instrument will so continue to apply to the employee—the notice must include or be accompanied by a copy of the provision or provisions;\n\n(5) If the FWC approves the termination, the transitional instrument terminates on the 90th day after the day on which the FWC makes the approval decision.\n\n(1) A notional agreement preserving State awards (other than a notional agreement that is an enterprise instrument) terminates:\n\n(2) If the employer in relation to a Division 3 pre‑reform certified agreement is not a national system employer, the agreement terminates on the earlier of the following:\n\n(3) However, if the employer becomes a national system employer before 27 March 2011, subitem (2) does not apply after that time.\n\n(4) If the employer in relation to an old IR agreement is not a national system employer, the agreement terminates on the earlier of the following:\n\n(5) However, if the employer becomes a national system employer before 27 March 2011, subitem (4) does not apply after that time.\n\n(7) However, if the employer becomes a national system employer before 27 March 2011, subitem (6) does not apply after that time.\n\n(1) An agreement‑based transitional instrument terminates at the end of the grace period for the instrument if the instrument has not already terminated before that time.\n\n (a) subject to paragraph (b), the period of 12 months (the default period) beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences; or\n\n (b) if the default period is extended for the instrument on one or more occasions under subitem (6) or paragraph (11)(e)—the default period as so extended.\n\n(3) An employer covered by an agreement‑based transitional instrument must, before the end of 6 months beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences, give each employee who is covered by the instrument and employed by the employer at the end of that period written notice advising the employee:\n\n (b) that the instrument will terminate unless an application is made to the FWC under subitem (4), before the end of the period of 12 months beginning on the day that Part commences, for the FWC to extend the default period for the instrument; and\n\n(4) Any of the following may apply to the FWC, before the end of the grace period for an agreement‑based transitional instrument, for the FWC to extend the default period for the instrument for a period of no more than 4 years:\n\n (c) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the instrument.\n\n(6) If an application is made under subitem (4), the FWC must extend the default period for the agreement‑based transitional instrument for a period of no more than 4 years if the FWC is satisfied that:\n\n (i) if the application relates to an individual agreement‑based transitional instrument—the employee covered by the individual agreement‑based transitional instrument; or\n\n (ii) if the application relates to a collective agreement‑based transitional instrument—the same, or substantially the same, group of employees as the collective agreement‑based transitional instrument; and\n\n (b) the employee covered by the instrument would be an award covered employee for the instrument under subitem (10) if the instrument were a collective agreement‑based transitional instrument; and\n\n (c) it is likely that, as at the time the application is made, the employee would be better off overall if the instrument applied to the employee than if the relevant modern award referred to in that subitem applied to the employee.\n\n (b) it is likely that, as at the time the application is made, the award covered employees for the instrument under subitem (10), viewed as a group, would be better off overall if the instrument applied to the employees than if the relevant modern award or awards referred to in that subitem applied to the employees.\n\n(10) For the purposes of subitems (8) and (9), the award covered employees for a collective agreement‑based transitional instrument are the employees who:\n\n (b) at the time an application is made under subitem (4) in relation to the instrument, are covered by one or more modern awards (the relevant modern awards) that:\n\n (c) are employed at that time by an employer who is covered by the instrument and by one or more of the relevant modern awards.\n\n (c) if the decision is to extend the default period for a collective agreement‑based transitional instrument—the instrument.\n\n(10C) The FWC must not publish an individual agreement‑based transitional instrument in relation to which an application under subitem (4) is made.\n\n (b) the FWC has not made a decision on the application at a time (the critical time) that is immediately before what would (apart from this subitem) be the end of the grace period for the instrument;\n\n (e) if the FWC’s decision on the application is to refuse to extend the default period for the instrument under subitem (6)—the FWC must extend the default period until the end of:\n\n (ii) if the refusal decision specifies a later day that is not more than 14 days after the day the refusal decision is made—that later day.\n\nIf a transitional instrument terminates, it ceases to cover (and can never again cover) any employees, employers or other persons.\n\n(1) Subject to this item, the same AFPCS interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.\n\nNote 1: Schedule 4 provides for the continued application of the Australian Fair Pay and Conditions Standard (other than minimum wages provisions) during the bridging period.\n\nNote 2: Schedule 9 provides for the continued application of the minimum wages provisions of the Australian Fair Pay and Conditions Standard on and after the WR Act repeal day.\n\n(2) AFPCS interaction rules of the kind referred to in paragraph (4)(b) do not continue to apply after the end of the bridging period.\n\nNote: This may result in an employee becoming entitled to a rate of pay under a transitional APCS that is higher than was required to be paid to the employee under a transitional instrument during the bridging period. If that occurs, the employer may apply to the FWC for a determination to phase‑in the effect of the increase (see item 14 of Schedule 9).\n\n(3) If, immediately before the end of the bridging period, an AFPCS interaction rule of the kind referred to in paragraph (4)(b) produced the result that an employee to whom a transitional instrument applied was not covered by the obligation in subsection 182(1) or (2) of the WR Act in relation to a transitional APCS, the employee becomes covered by that obligation in relation to that transitional APCS from the end of the bridging period.\n\n(4) AFPCS interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:\n\n (a) the Australian Fair Pay and Conditions Standard prevails over an instrument (or an instrument is of no effect because of the Standard) either completely or to a particular extent; or\n (b) an instrument prevails over the Australian Fair Pay and Conditions Standard (or the Standard does not apply because of the instrument) either completely or to a particular extent.\n\n(1) To the extent that a term of a transitional instrument is detrimental to an employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards, the term of the transitional instrument is of no effect.\n\nNote 1: A term of a transitional instrument that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the National Employment Standards will continue to have effect.\n\nNote 2: Division 3 (which contains other general provisions about how the FW Act applies in relation to transitional instruments) is also relevant to how the National Employment Standards apply in relation to employees to whom transitional instruments apply.\n\nNote 3: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).\n\n(1A) If there is a dispute about the application of this item which must be resolved by the FWC in accordance with item 26, the FWC may compare the entitlements which are in dispute:\n\n(2) Subitem (1) does not affect a term of a transitional instrument that is permitted by a provision of the National Employment Standards as it has effect under item 24.\n\n(3) The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a transitional instrument are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards.\n\n(1) The following provisions of the National Employment Standards have effect, on and after the FW (safety net provisions) commencement day, as if a reference to a modern award or an enterprise agreement included a reference to a transitional instrument:\n\n (g) subsections 121(2) and (3) (which allow terms specifying situations in which the redundancy pay entitlement under section 119 does not apply);\n\n (a) a transitional instrument includes terms referred to in subsection (1) of section 93 or 101 of the National Employment Standards; but\n\nthe employee is taken to qualify for the shiftworker annual leave entitlement for the purposes of section 87 of the FW Act.\n\n(1) On application by a person covered by a transitional instrument, the FWC may make a determination varying the transitional instrument:\n\n (a) to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards; or\n\n(2) A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.\n\nThis Division (including determinations under item 26) does not affect the operation of a transitional instrument at any time before the FW (safety net provisions) commencement day.\n\nDivision 2—Interaction between transitional instruments and FW Act modern awards, enterprise agreements and workplace determinations\n\n(1) While an agreement‑based transitional instrument of any of the following kinds applies to an employee, or to an employer or other person in relation to the employee:\n\nNote 1: However, a modern award can continue to cover the employee while the agreement‑based transitional instrument continues to apply.\n\nNote 2: This subitem has effect subject to item 13 of Schedule 9 (which requires that the base rate of pay under an agreement‑based transitional instrument must not be less than the relevant modern award rate).\n\nboth apply to an employee, or to an employer or other person in relation to the employee, the agreement‑based transitional instrument prevails over the modern award, to the extent of any inconsistency.\n\nNote: This subitem has effect subject to item 13 of Schedule 9 (which requires that the base rate of pay under an agreement‑based transitional instrument must not be less than the relevant modern award rate).\n\n (b) outworker terms (within the meaning of the FW Act) in a modern award would, but for the transitional instrument, apply to the employee.\n\n(2) Despite item 28 and despite any terms of the agreement‑based transitional instrument that are detrimental to the employee in any respect when compared to the terms of the modern award, the outworker terms apply at that time to the following persons:\n\n(3) To avoid doubt, to the extent to which terms of a modern award apply to an employee, an employer or an employee organisation because of subitem (2), the modern award applies to the employee, employer or organisation.\n\n(1) If a modern award (other than the miscellaneous modern award) that covers an employee, or an employer or other person in relation to the employee, comes into operation, then an award‑based transitional instrument ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.\n\nNote: A modern award cannot be expressed to cover an employee who is covered by a transitional instrument that is an enterprise instrument or a State reference public sector transitional award (see subsections 143(8) and (10) of the FW Act).\n\n(2) While an award‑based transitional instrument that covers an employee, or an employer or other person in relation to the employee, is in operation, the miscellaneous modern award does not cover the employee, or the employer or other person in relation to the employee.\n\n(3) If a modern award (other than the miscellaneous modern award) that contains outworker terms that cover an outworker entity comes into operation, then outworker terms in an award‑based transitional instrument cease to cover (and can never again cover) the outworker entity.\n\n(4) While outworker terms in an award‑based transitional instrument that is in operation cover an outworker entity, any outworker terms in the miscellaneous modern award do not cover the outworker entity.\n\n(5) Outworker terms in an award‑based transitional instrument are terms that would be outworker terms as defined in the FW Act if they were in a modern award.\n\n(1) While an individual agreement‑based transitional instrument applies to an employee, or to an employer in relation to the employee, an enterprise agreement or workplace determination (under the FW Act) does not apply to the employee, or the employer in relation to the employee.\n\n(2) If an enterprise agreement or workplace determination (under the FW Act) starts to apply to an employee, or an employer or other person in relation to the employee, then a collective agreement‑based transitional instrument ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.\n\nNote 1: The fact that a collective agreement‑based transitional instrument applies to employees does not prevent those employees and their employer from replacing that transitional instrument at any time with an enterprise agreement, regardless of whether the transitional instrument has passed its nominal expiry date.\n\nNote 2: Industrial action must not be taken before the nominal expiry date of an agreement‑based transitional instrument, even if it is being replaced by an enterprise agreement (see item 4 of Schedule 13).\n\nIf an enterprise agreement or workplace determination (under the FW Act) applies to an employee, or an employer or other person in relation to the employee, then:\n\n (a) an award‑based transitional instrument ceases to apply to the employee, and the employer or other person in relation to the employee; but\n (b) the award‑based transitional instrument can (subject to the other provisions of this Part) continue to cover the employee, and the employer or other person in relation to the employee.\n\nNote: Subject to the other provisions of this Part, the award‑based transitional instrument can again start to apply to the employee, and the employer or other person in relation to the employee, if the enterprise agreement or workplace determination (under the FW Act) ceases to apply to the employee.\n\n (b) an award‑based transitional instrument covers the employer (whether the transitional instrument covers the employer in the employer’s capacity as an employer or an outworker entity); and\n\n(2) Despite item 31, the designated outworker terms of the award‑based transitional instrument apply at that time to the following:\n\n (a) award‑based transitional instruments are taken to be instruments to which the definition of designated outworker term in section 12 of the FW Act applies; and\n (b) designated outworker terms of an award‑based transitional instrument can apply to an employer under subitem (2) even if none of the employees of the employer is an outworker; and\n (c) to the extent to which designated outworker terms of an award‑based transitional instrument apply to an employer, an employee or an employee organisation because of subitem (2), the transitional instrument applies to the employer, employee or organisation.\n\n(1) An employee is not an award/agreement free employee for the purposes of the FW Act if a transitional instrument applies to the employee.\n\n(2) The regulations may make provision in relation to any of the following in relation to employees to whom transitional instruments apply:\n\n (a) what is the base rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);\n (b) what is the full rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);\n\n(1) For the purposes of the FW Act, the ordinary hours of work of an employee to whom a transitional instrument applies are to be determined in accordance with this item.\n\n(2) If a transitional instrument that applies to the employee specifies, or provides for the determination of, the employee’s ordinary hours of work, the employee’s ordinary hours of work are as specified in, or determined in accordance with, that instrument.\n\n(3) If subitem (2) does not apply, the employee’s ordinary hours of work are the hours agreed by the employee and his or her employer as the employee’s ordinary hours of work.\n\n(4) If subitem (2) does not apply but there is no agreement under subitem (3), the ordinary hours of work of the employee in a week are:\n\n (c) there is an agreement under subitem (3) between the employee and his or her employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work;\n\n(6) For an employee who is not a full‑time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of subitems (4) and (5).\n\nDivision 2 of Part 2‑9 of the FW Act (which deals with payment of wages) applies, on and after the WR Act repeal day, in relation to a transitional instrument as if:\n\nDivision 3 of Part 2‑9 of the FW Act (which deals with the guarantee of annual earnings) applies, on and after the FW (safety net provisions) commencement day, as if:\n\n (b) a reference to a modern award included a reference to an award‑based transitional instrument and a transitional APCS.\n\n (a) the reference in subparagraph 382(b)(i) and paragraph 389(1)(b) of that Act to a modern award included a reference to an award‑based transitional instrument; and\n (b) the reference in subparagraph 382(b)(ii) and paragraph 389(1)(b) of that Act to an enterprise agreement included a reference to an agreement‑based transitional instrument.\n\n(1) This item applies if a termination of an agreement‑based transitional instrument (the terminated instrument) takes effect during the bridging period in either of the following circumstances:\n\n (a) the instrument is a preserved collective State agreement or a pre‑reform certified agreement that is terminated by FWA as provided for by item 16 because of an application made by an employer covered by the agreement;\n (b) the instrument is an individual agreement‑based transitional instrument that terminates under item 19 because FWA approves a termination of the instrument by an employer covered by the instrument.\n\n(2) Any redundancy provision that was in the terminated instrument continues to apply to any person to whom the terminated instrument applied immediately before the termination took effect, as if the terminated instrument had continued operating.\n\n(3) A redundancy provision that continues to apply to a person under subitem (2) is taken, for the purpose of this Act, to be a transitional instrument of the same kind as the terminated instrument. However, this does not apply for the purpose of:\n\n(4) Subject to subitem (5), a redundancy provision that continues to apply to a person under subitem (2) prevails over any other redundancy provision included in any other instrument that would otherwise apply (even if the provisions in that other instrument might be more beneficial to the employee).\n\n (b) a redundancy provision that continues to apply to an employee under subitem (2) is detrimental to the employee, in any respect, when compared to the scheme in the modern award;\n\nthen the scheme in the modern award prevails over the redundancy provision, to the extent that the redundancy provision is detrimental to the employee.\n\n(6) A redundancy provision continues under subitem (2) to apply to a person, in relation to an employee to whom the provision applies, until the earliest of the following:\n\n (b) the time when the employee ceases to be employed by the employer (otherwise than in circumstances covered by the provision);\n\n (c) a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment;\n\nwhere the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent.\n\n (b) when the termination takes effect, one or more redundancy provisions in the instrument will continue to apply to persons (affected persons) in accordance with item 38.\n\nNotification requirements if the transitional instrument is a preserved collective State agreement or a pre‑reform certified agreement\n\n (iv) state that the provision or provisions will continue to apply until that date, or an earlier date, in accordance with subitem 38(6); and\n\n(3) An employer that has, under subitem (2), received a copy of a termination decision must take reasonable steps to ensure that all employees to whom the instrument applied immediately before the termination takes effect are given a copy of the decision within 21 days of the employer receiving a copy of the decision.\n\n(4) If the transitional instrument is an individual agreement‑based transitional instrument, the termination decision must:\n\n (d) state that the provision or provisions will continue to apply until that date, or an earlier date, in accordance with subitem 38(6).\n\n(1) This item applies if, immediately before the WR Act repeal day, redundancy provisions that were in a WR Act instrument (the terminated instrument) that was terminated before that day (the actual termination) were continuing to bind persons under any of the following provisions:\n\n (b) a termination of that transitional instrument took effect on the WR Act repeal day as referred to in subitem 38(1); and\n (c) the reference in paragraph 38(6)(a) to 24 months were instead a reference to the unexpired part of the period of 24 months that started on the actual termination.\n\nThis Part applies to a Victorian employment agreement that was in force in relation to an employer and an employee (the parties) under Division 12 of Part 21 of the WR Act immediately before the WR Act repeal. A Victorian employment agreement is an employment agreement within the meaning of that Division.\n\nOn and after the WR Act repeal day the Victorian employment agreement is enforceable by one of the parties against the other party as if it were a contract. The provisions of Division 12 of Part 21 of the WR Act do not continue to apply in relation to the agreement.\n\n(1) On the Division 2B referral commencement, FWA is taken to have made an order (the transitional pay equity order) under this item.\n\n (b) the employer is prescribed by the regulations for the purposes of this paragraph, or is included in a class of employers prescribed by the regulations for the purposes of this paragraph; and\n (c) immediately before the Division 2B referral commencement, a transitional award (the relevant transitional award) applied to the employer.\n\nNote: Transitional award has the same meaning as in Schedule 6 to the WR Act. Schedule 6 is continued in operation by Schedule 20 to this Act.\n\n (a) an order, decision or determination of a State industrial body (the source pay equity order) would have applied to the employer if the relevant transitional award had not applied to the employer; and\n\n (b) provided for increases in rates of pay payable to a particular class of employees (whether the increases were expressed to take effect before, on or after the Division 2B referral commencement); and\n\n(5) If the transitional pay equity order applies to an employer, the employer is required to pay to each affected employee of the employer a base rate of pay, in respect of a period, that is not less than the base rate of pay that the employee would have been entitled to be paid if the source pay equity order had applied to the employer in respect of the period.\n\n(6) An employee of an employer to which this item applies is an affected employee of the employer if the employee performs work of a kind, at a classification level (however described), in relation to which the source pay equity order determines a base rate of pay.\n\n(7) The transitional pay equity order takes effect in relation to the employer immediately after the modern award begins to apply to the employer.\n\n (a) an employee is entitled to be paid by an employer a base rate of pay under the transitional pay equity order in respect of a particular period; and\n (b) the term of the modern award requires the employer to pay a base rate of pay, in respect of that period, that is less than the base rate of pay referred to in paragraph (a).\n\n(9) However, to avoid doubt, a term of a modern award continues to have effect so far as it requires an employer to pay a base rate of pay, in respect of a period, that is equal to or more than the base rate of pay referred to in paragraph (8)(a).\n\n(1) A Division 2B State instrument is a Division 2B State award (see item 3) or a Division 2B State employment agreement (see item 5).\n\nNote: This definition does not apply to a reference in a provision of this Act to a State award if the provision expressly refers to the meaning that was given by the WR Act.\n\n (i) the agreement is between an employer and one or more employees of the employer, or between an employer and an association of employees registered under a State industrial law;\n (iii) the determination was made in a situation in which parties who were negotiating for the making of an agreement of a kind described in paragraph (a) had not been able to reach an agreement;\n\nNote: This definition does not apply to a reference in a provision of this Act to a State employment agreement if the provision expressly refers to the meaning that was given by the WR Act.\n\n (a) it is an agreement of a kind that, under the relevant State industrial law, could only be entered into by a single employee and a single employer; or\n\n (a) a State award (the source award) was in operation under a State industrial law of a Division 2B referring State (the source State); and\n (b) the source award covered (however described in the source award or a relevant law of the source State) employers and employees who become Division 2B State reference employers and Division 2B State reference employees on the Division 2B referral commencement (whether or not the source award also covered other persons);\n\nNote 2: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State awards:\n\n(2) Subject to this Schedule, the Division 2B State award is taken to include the same terms as were in the source award immediately before the Division 2B referral commencement.\n\nNote: For the meanings of Division 2B referral commencement, Division 2B referring State, Division 2B State reference employee and Division 2B State reference employer, see items 2 and 2A of Schedule 3.\n\n(3) If the terms of the source award were affected by an order, decision or determination of a State industrial body or a court of the source State that was in operation immediately before the Division 2B referral commencement, the terms of the Division 2B State award are taken to be similarly affected by the terms of that order, decision or determination.\n\n(1) A Division 2B State award covers the same employees, employers, outworker entities and any other persons that the source award covered (however described in the award or a relevant law of the source State) immediately before the Division 2B referral commencement.\n\nNote: The expression covers is used to indicate the range of employees, employers etc. to whom the Division 2B State award potentially applies (see subitem (5)). The employees, employers etc. who are within this range will depend on the terms of the award, and on any relevant provisions of the law of the source State.\n\n(2) The Division 2B State award also covers any employees who become employed by an employer on or after the Division 2B referral commencement, and who would have been covered by the source award if they had become so employed immediately before that commencement.\n\n (a) any employees, employers or outworker entities that are not Division 2B State reference employees, Division 2B State reference employers or Division 2B State reference outworker entities; or\n\nA Division 2B State reference outworker entity is an entity that is an outworker entity only because of section 30Q of the FW Act.\n\n (a) after the Division 2B referral commencement, a person (the employer) starts to employ employees to do work of a kind that was regulated by the source award immediately before that commencement; and\n\n(5) A Division 2B State award applies to the same employees, employers, outworker entities and any other persons that the Division 2B State award covers as would have been required by the law of the source State to comply with terms of the source award, or entitled under the law of the source State to enforce terms of the source award, if:\n\nNote 1: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of the Division 2B State award.\n\nNote 2: The Division 2B State award does not apply to any employers, employees or other persons that it does not cover, whether because of subitem (3) or (4) or otherwise.\n\n(6) However, a Division 2B State award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act).\n\n (c) Division 2 of Part 5 of this Schedule (which deals with interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations); and\n\n(8) References in this item to the law of a State are references to the law of the State as in force immediately before the Division 2B referral commencement.\n\n (a) a State employment agreement (the source agreement) was in operation under a State industrial law of a Division 2B referring State (the source State); and\n (b) the source agreement covered (however described in the source agreement or a relevant law of the source State) employers and employees who become Division 2B State referral employers and Division 2B State referral employees on the Division 2B referral commencement (whether or not the source agreement also covered other persons);\n\na Division 2B State employment agreement is taken to come into operation immediately after the Division 2B referral commencement.\n\nNote 2: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State employment agreements:\n\nNote 3: For the meanings of Division 2B referral commencement, Division 2B referring State, Division 2B State reference employee and Division 2B State reference employer, see items 2 and 2A of Schedule 3.\n\n(2) Subject to this Schedule, the Division 2B State employment agreement is taken to include the same terms as were in the source agreement immediately before the Division 2B referral commencement.\n\n (a) a State employment agreement (the source agreement) comes into operation under a State industrial law of a Division 2B referring State (the source State); and\n (b) the source agreement covers (however described in the source agreement or a relevant law of the source State) employers and employees who are Division 2B State referral employers and Division 2B State referral employees when the source agreement comes into operation (whether or not the source agreement also covers other persons);\n\na Division 2B State employment agreement is taken to come into operation immediately after the source agreement comes into operation.\n\nNote 2: There is limited scope for State employment agreements that cover Division 2B State referral employers and employees to come into operation on or after the Division 2B referral commencement: see Part 6 of this Schedule.\n\nNote 3: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State employment agreements:\n\n(4) Subject to this Schedule, the Division 2B State employment agreement is taken to include the same terms as were in the source agreement when it came into operation.\n\n(5) If the source agreement in relation to a Division 2B State employment agreement is a collective State employment agreement, the Division 2B State employment agreement is a collective Division 2B State employment agreement.\n\n(6) If the source agreement in relation to a Division 2B State employment agreement is an individual State employment agreement, the Division 2B State employment agreement is an individual Division 2B State employment agreement.\n\n(1) A Division 2B State employment agreement covers the same employees, employers and any other persons that the source agreement covered (however described in the agreement or a relevant law of the source State) immediately before the Division 2B State employment agreement came into operation.\n\nNote: The expression covers is used to indicate the range of employees, employers etc. to whom the Division 2B State employment agreement potentially applies (see subitem (4)). The employees, employers etc. who are within this range will depend on the terms of the agreement, and on any relevant provisions of the law of the source State.\n\n(2) The Division 2B State employment agreement also covers any employees who become employed by an employer on or after the time when the agreement came into operation, and who would have been covered by the source agreement if they had become so employed immediately before that time.\n\n (a) any employees or employers that are not Division 2B State reference employees or Division 2B State reference employers; or\n\n(4) A Division 2B State employment agreement applies to the same employees, employers and any other persons that the Division 2B State employment agreement covers as would have been required by the law of the source State to comply with terms of the source agreement, or entitled under the law of the source State to enforce terms of the source agreement, if:\n\nNote 1: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of the Division 2B State employment agreement.\n\nNote 2: The Division 2B State employment agreement does not apply to any employers, employees or other persons that it does not cover, whether because of subitem (3) or otherwise.\n\n (c) Division 2 of Part 5 of this Schedule (which deals with interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations); and\n\n(6) References in this item to the law of a State are references to the law of the State as in force immediately before the Division 2B referral commencement.\n\n(1) If the source award for a Division 2B State award includes a term that provides for disputes relating to matters arising under the award to be settled by:\n\n(2) Each Division 2B State award is taken to include the model term that is prescribed by the regulations for dealing with disputes relating to matters arising under Division 2B State awards.\n\n(3) The model term does not apply to disputes about matters arising under the source award before the Division 2B referral commencement.\n\n(1) This item applies if the source agreement for a Division 2B State employment agreement includes a term that provides for disputes relating to matters arising under the agreement to be settled by:\n\nNote: Item 13 would otherwise result in references in the term to a State industrial body having effect as if they were references to the FWC.\n\n(2A) However, if the term provides for disputes relating to matters arising under the source agreement to be settled by a State industrial body, then, despite anything in the source agreement or a law of the source State:\n\n (a) by an employer to which the Division 2B State employment agreement applies, or by an organisation that is entitled to represent the industrial interests of such an employer, with the consent of:\n (b) by an employee to whom the Division 2B State employment agreement applies, or by an organisation that is entitled to represent the industrial interests of such an employee, with the consent of:\n\n(1) Subdivision B of Division 2 of Part 6‑2 of the FW Act applies (including for the purpose of section 595 of the FW Act) as follows:\n\n (a) the Subdivision applies in relation to the model term that is taken by item 7 to be included in a Division 2B State award in the same way as the Subdivision applies in relation to a term in a modern award that provides a procedure for dealing with disputes;\n (b) the Subdivision applies in relation to a term to which item 8 applies that is included in a Division 2B State employment agreement in the same way as the Subdivision applies in relation to a term in an enterprise agreement that provides a procedure for dealing with disputes.\n\n(2) The reference in subsections 739(5) and 740(4) of the FW Act to a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties, is taken to include a reference to a decision that is inconsistent with a Division 2B State instrument that applies to the parties.\n\n(1) The instrument content rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State instrument, as if:\n\n (b) any references in the rules to State awards or State employment agreements (however described in the rules) were instead (respectively) references to Division 2B State awards or Division 2B State employment agreements; and\n\n(2) Instrument content rules, in relation to a State, are provisions of a law of the State of any of the following kinds:\n\n(1) The instrument interaction rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State instrument, as if:\n\n (b) any references in the rules to State awards or State employment agreements (however described in the rules) were instead (respectively) references to Division 2B State awards or Division 2B State employment agreements; and\n\n(2) Instrument interaction rules, in relation to a State, are provisions of a law of the State, the effect of which is that:\n\n(1) The outworker interaction rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State award, as if:\n\n (b) any references in the rules to State awards (however described in the rules) were instead references to Division 2B State awards; and\n\n(2) Outworker interaction rules, in relation to a State, are provisions of a law of the State, the effect of which is that:\n\n(1) Subject to subitem (2), if a term of a Division 2B State instrument is expressed to confer a power or function on a State industrial body, that term has effect as if references in it to the body were instead references to the FWC.\n\n(2) If a term of a Division 2B State instrument is expressed to confer a power or function on the registrar, or a deputy registrar, of a State industrial body, that term has effect on and after the Division 2B referral commencement as if references in it to the registrar or a deputy registrar were instead references to the General Manager of the FWC.\n\nNote 1: A Division 2B State award will be taken not to include a term from the source award that provides for the settlement of disputes relating to matters arising under the award: see item 7.\n\nNote 2: This item does not apply to a term of a Division 2B State employment agreement that provides for the settlement of disputes relating to matters arising under the agreement: see item 8.\n\n(1) Subitem (2) applies for the purpose of determining the entitlements of a Division 2B State reference employee under a Division 2B State instrument (other than an entitlement to leave of a kind to which item 15 applies).\n\n(2) Service of the employee with an employer before the Division 2B referral commencement that counted for the purpose of the application to the employee of the source award or source agreement also counts as service of the employee with the employer for the purpose of the application to the employee of the Division 2B State instrument.\n\n(3) If, before the Division 2B referral commencement, the employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service, subitem (2) does not result in that period of service with the employer being counted again when calculating the employee’s entitlements of that kind under the Division 2B State instrument.\n\n(4) To avoid doubt, subitem (3) does not require an employee to serve any initial qualifying period of service for long service leave again.\n\nNote: For how the kinds of matters covered by this item and items 15 and 16 are dealt with in relation to entitlements under the National Employment Standards, see Division 2 of Part 3 of Schedule 4.\n\n(2) If a Division 2B referral employee to whom a Division 2B State instrument applies had, immediately before the Division 2B referral commencement, an accrued entitlement to an amount of leave to which this item applies (whether the leave accrued under the source award or source agreement, or under a State industrial law), the accrued leave is taken to have accrued under the Division 2B State instrument.\n\n(1) If a Division 2B State reference employee was, immediately before the Division 2B referral commencement, taking a period of leave under the source award or source agreement, the employee is entitled to continue on that leave under the Division 2B State instrument for the remainder of the period.\n\n(2) If a Division 2B State reference employee has, before the Division 2B referral commencement, taken a step that the employee is required to take so that the employee can, on or after the Division 2B referral commencement, take a period of leave under the source award or source agreement, the employee is taken to have taken the step under the Division 2B State instrument.\n\n(3) The regulations may deal with other matters relating to how a Division 2B State instrument applies to leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken by a Division 2B State reference employee under the source award or source agreement.\n\n (a) any right or liability that a person acquired, accrued or incurred before the instrument terminated or ceased to apply; or\n\n(2) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the Division 2B State instrument had not terminated or ceased to apply.\n\n (b) item 8 (which deals with terms about disputes relating to matters arising under Division 2B State employment agreements); or\n (c) item 40 (which deals with resolving difficulties with the interaction between Division 2B State instruments and the National Employment Standards); or\n\n(1) On application by a person covered by a Division 2B State instrument, the FWC may make a determination varying the instrument:\n\n (b) if the instrument is a Division 2B State employment agreement—to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or\n (c) to remove terms that are inconsistent with Part 3‑1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part.\n\nNote: For variation of a Division 2B State instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 40.\n\n(2) A variation of a Division 2B State instrument operates from the day specified in the determination, which may be a day before the determination is made.\n\n(1) This item applies if a Division 2B State instrument is referred to the FWC under section 46PW of the Australian Human Rights Commission Act 1986 (which deals with discriminatory industrial instruments).\n\n(2) If the instrument is a Division 2B State award, section 161 of the FW Act applies in relation to the referral of the instrument as if the instrument were a modern award.\n\n(3) If the instrument is a Division 2B State employment agreement, section 218 of the FW Act applies in relation to the referral of the instrument as if the instrument were an enterprise agreement.\n\n(2) A term of a Division 2B State award that provides for the award to terminate before the end of that 12 month period is of no effect.\n\nSubdivision C of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective Division 2B State employment agreement as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement.\n\n(1) Subdivision D of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective Division 2B State employment agreement as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement.\n\n(2) To avoid doubt, subsection 615A(3) of the FW Act does not apply in relation to a collective Division 2B State employment agreement.\n\n(1) The employee and employer covered by an individual Division 2B State employment agreement (the Division 2B agreement) may make a written agreement (a termination agreement) to terminate the Division 2B agreement in accordance with the following requirements:\n\n(3) The employer or employee may apply to the FWC for approval of the termination agreement. The application must be made:\n\n (b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.\n\n(4) If an application for the FWC to approve the termination agreement is made under subitem (3), the FWC must approve the termination of the Division 2B agreement if:\n\n (b) the FWC is satisfied that there are no other reasonable grounds for believing that the employee has not agreed to the termination.\n\n(5) If the termination is approved under subitem (4), the termination operates from the day specified in the decision to approve the termination.\n\n(1) This item provides for the making of an instrument (a conditional termination) that will have the effect of terminating an individual Division 2B State employment agreement (the Division 2B agreement) if:\n\n(2) If the Division 2B agreement has not passed its nominal expiry date, the conditional termination must be a written agreement signed by the employer and the employee. The signatures must be witnessed.\n\n(3) If the Division 2B agreement has passed its nominal expiry date, the conditional termination must be in writing and signed either by the employee or the employer. The signature must be witnessed.\n\n(4) If the conditional termination is signed by the employee, and the employee is under 18, it must also be signed by a parent or guardian of the employee.\n\n(5) Any other requirements of the regulations relating to the form, content or making of the conditional termination must also be complied with.\n\n (a) the conditional termination is an agreement signed by the employee and the employer in the circumstances covered by subitem (2); or\n\n(7) The conditional termination must accompany any application to the FWC for approval of the proposed enterprise agreement under section 185 of the FW Act.\n\nNote 2: Failure to comply with this obligation does not affect the operation of subitem (8), or the validity of an approval by the FWC of the proposed enterprise agreement.\n\n(8) If the requirements of subitems (2) to (5) have been complied with in relation to the conditional termination, the Division 2B agreement terminates when the proposed enterprise agreement comes into operation.\n\n (a) to whom an individual Division 2B State employment agreement (the Division 2B agreement) that has passed its nominal expiry date applies; and\n\n (a) make a written declaration that identifies the Division 2B agreement and that states that the employer or employee wants to terminate the agreement; and\n\n(3) The employer or employee cannot make an application as mentioned in paragraph (2)(b) unless, at least 14 days before the day on which the application is made, the employer or employee gives the other of them a notice complying with the following requirements:\n\n (b) the notice must state that the employer or employee intends to apply to the FWC for approval of the termination of the agreement;\n (c) the notice must state that, if the FWC approves the termination, the agreement will terminate on the 90th day after the day on which the FWC makes the approval decision;\n\n(5) If the FWC approves the termination, the Division 2B agreement terminates on the 90th day after the day on which the FWC makes the approval decision.\n\n(1) A Division 2B State employment agreement terminates at the end of the grace period for the agreement if the agreement has not already terminated before that time.\n\n (a) subject to paragraph (b), the period of 12 months (the default period) beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences; or\n\n (b) if the default period is extended for the agreement on one or more occasions under subitem (6) or paragraph (11)(e)—the default period as so extended.\n\n(3) An employer covered by a Division 2B State employment agreement must, before the end of 6 months beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences, give each employee who is covered by the agreement and employed by the employer at the end of that period written notice advising the employee:\n\n (b) that the agreement will terminate unless an application is made to the FWC under subitem (4), before the end of the period of 12 months beginning on the day that Part commences, for the FWC to extend the default period for the agreement; and\n\n(4) Any of the following may apply to the FWC, before the end of the grace period for a Division 2B State employment agreement, for the FWC to extend the default period for the agreement for a period of no more than 4 years:\n\n (c) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the agreement.\n\n(6) If an application is made under subitem (4), the FWC must extend the default period for the Division 2B State employment agreement for a period of no more than 4 years if the FWC is satisfied that:\n\n (i) if the application relates to an individual Division 2B State employment agreement—the employee covered by the individual Division 2B State employment agreement; or\n\n (ii) if the application relates to a collective Division 2B State employment agreement—the same, or substantially the same, group of employees as the Division 2B State employment agreement; and\n\n (b) the employee covered by the agreement would be an award covered employee for the agreement under subitem (10) if the agreement were a collective Division 2B State employment agreement; and\n\n (c) it is likely that, as at the time the application is made, the employee would be better off overall if the agreement applied to the employee than if the relevant modern award referred to in that subitem applied to the employee.\n\n (b) it is likely that, as at the time the application is made, the award covered employees for the agreement under subitem (10), viewed as a group, would be better off overall if the agreement applied to the employees than if the relevant modern award or awards referred to in that subitem applied to the employees.\n\n(10) For the purposes of subitems (8) and (9), the award covered employees for a collective Division 2B State employment agreement are the employees who:\n\n (b) at the time an application is made under subitem (4) in relation to the agreement, are covered by one or more modern awards (the relevant modern awards) that:\n\n (c) are employed at that time by an employer who is covered by the agreement and by one or more of the relevant modern awards.\n\n (c) if the decision is to extend the default period for a collective Division 2B State employment agreement—the agreement.\n\n(10C) The FWC must not publish an individual Division 2B State employment agreement in relation to which an application under subitem (4) is made.\n\n (b) the FWC has not made a decision on the application at a time (the critical time) that is immediately before what would (apart from this subitem) be the end of the grace period for the agreement;\n\n (e) if the FWC’s decision on the application is to refuse to extend the default period for the agreement under subitem (6)—the FWC must extend the default period until the end of:\n\n (ii) if the refusal decision specifies a later day that is not more than 14 days after the day the refusal decision is made—that later day.\n\n (a) the day on which the source agreement would nominally have expired under the relevant State industrial law of the source State; or\n (b) if that day falls after the end of a period of 3 years beginning on the Division 2B referral commencement—the last day of that 3 year period.\n\nIf a Division 2B State instrument terminates, it ceases to cover (and can never again cover) any employees, employers or other persons.\n\n (a) must consider whether any modern awards should be varied to include terms in relation to which the following conditions are satisfied:\n (i) the purpose of including the terms is to continue (in whole or in part) the effect of terms that are contained in a Division 2B State award, other than a Division 2B enterprise award;\n (iii) the terms deal with matters of a kind that are permitted by section 136 of the FW Act to be included in modern awards; and\n\n (i) the purpose of making the order is to continue (in whole or in part) the effect of terms relating to long service leave that are contained in a Division 2B State award, other than a Division 2B enterprise award;\n\n(4) To the extent that a term of a Division 2B State award, or of an enterprise agreement, is detrimental to an employee, in any respect, when compared to an order under subitem (1), the term of the award or agreement is of no effect.\n\nNote: A term of a Division 2B State award, or of an enterprise agreement, that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the order will continue to have effect.\n\n(5) The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a Division 2B State award or an enterprise agreement are, or are not, detrimental in any respect when compared to an order under subitem (1).\n\n(1) On the Division 2B referral commencement, FWA is taken to have made an order (the transitional pay equity order) under this item.\n\n (a) a Division 2B State award that applies to the employer terminates at a time (the termination time) after the Division 2B referral commencement; and\n (b) the base rate of pay payable immediately before the termination time to some or all of the employees to whom the Division 2B State award applied was determined in whole or part by, or in accordance with, an order, decision or determination (the source pay equity order) of a State industrial body that:\n (ii) provided for increases in rates of pay payable to a particular class of employees (whether the increases were expressed to take effect before, on or after the Division 2B referral commencement); and\n\nNote: After the Division 2B referral commencement, a source pay equity order may have effect either because of subitem 3(3) of this Schedule, or because the terms of the source pay equity order had been incorporated in the source award from which the Division 2B State award was derived.\n\n(3) If the transitional pay equity order applies to an employer, the employer is required to pay to each affected employee of the employer a base rate of pay, in respect of a period, that is not less than the base rate of pay that the employee would have been entitled to be paid under the Division 2B State award in respect of that period, assuming that:\n\n (b) the base rate of pay had continued to be determined in whole or part by, or in accordance with, the source pay equity order in respect of that period.\n\n (iii) the employee’s base rate of pay under the Division 2B State award was determined in whole or part by, or in accordance with, the source pay equity order at the termination time; or\n (ii) a Division 2B State award would have applied to the employee if he or she had been employed by the employer immediately before the termination time;\n (iii) the employee’s base rate of pay under the Division 2B State award would have been determined in whole or part by, or in accordance with, the source pay equity order at the termination time.\n\n(5) The transitional pay equity order takes effect in relation to the employer immediately after the modern award begins to apply to the employer.\n\n (a) an employee is entitled to be paid by an employer a base rate of pay under the transitional pay equity order in respect of a particular period; and\n (b) the term of the modern award requires the employer to pay a base rate of pay, in respect of that period, that is less than the base rate of pay referred to in paragraph (a).\n\n(7) However, to avoid doubt, a term of a modern award continues to have effect so far as it requires an employer to pay a base rate of pay, in respect of a period, that is equal to or more than the base rate of pay referred to in paragraph (6)(a).\n\n(1) The termination of a Division 2B State award by item 21 is not intended to result in a reduction in the take‑home pay of employees or outworkers.\n\nNote: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.\n\n (a) when a Division 2B State award terminates because of item 21, the employee becomes a person to whom a modern award applies; and\n (b) 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 termination of the Division 2B State award; and\n (c) the amount of the employee’s take‑home pay for working particular hours or for a particular quantity of work after the termination of the Division 2B State award is less than what would have been the employee’s take‑home pay for those hours or that quantity of work immediately before the termination; and\n\n (a) when a Division 2B State award terminates because of item 21, the outworker becomes a person to whom outworker terms in a modern award relate; and\n (b) the outworker is performing the same work as (or work that is similar to) the work he or she was performing immediately before the termination of the Division 2B State award; and\n (c) the amount of the outworker’s take‑home pay for working particular hours or for a particular quantity of work after the termination of the Division 2B State award is less than what would have been the outworker’s take‑home pay for those hours or that quantity of work immediately before the termination; and\n\n(1) If the FWC is satisfied that an employee, or a class of employees, to whom a modern award applies has suffered a reduction in take‑home pay to which item 31 applies, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation.\n\n(2) If the FWC is satisfied that an outworker, or a class of outworkers, to whom outworker terms in a modern award relate has suffered a reduction in take‑home pay to which item 31 applies, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the outworker or outworkers that the FWC considers appropriate to remedy the situation.\n\n(4) If the FWC is satisfied that an application for a take‑home pay order has already been made in relation to an employee or a class of employees, or an outworker or a class of outworkers, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees, or the same outworker or outworkers.\n\n(1) The FWC must not make a take‑home pay order under item 32 in relation to an employee or class of employees, or an outworker or a class of outworkers, if:\n\n (b) the FWC is satisfied that the employee or employees, or outworker or outworkers, have been adequately compensated in other ways for the reduction.\n\n (a) it does not apply to an employee or outworker unless the employee or outworker has actually suffered a reduction in take‑home pay to which item 31 applies; and\n (b) if the take‑home pay payable to the employee or outworker under the modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee or outworker under the order.\n\nA take‑home pay order made in relation to an employee or class of employees to whom a particular modern award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the modern award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.\n\nA term of a modern award or an enterprise agreement has no effect in relation to an employee or outworker to the extent that it is less beneficial to the employee or outworker than a term of a take‑home pay order that applies to the employee or outworker.\n\n(1) To the extent that a term of a Division 2B State instrument is detrimental to an employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards, the term of the instrument is of no effect.\n\nNote 1: A term of a Division 2B State instrument that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the National Employment Standards will continue to have effect.\n\nNote 2: Division 3 (which contains other general provisions about how the FW Act applies in relation to Division 2B State instruments) is also relevant to how the National Employment Standards apply in relation to employees to whom Division 2B State instruments apply.\n\nNote 3: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).\n\n(2) If there is a dispute about the application of this item which must be resolved by the FWC in accordance with item 40, the FWC may compare the entitlements which are in dispute:\n\n(3) Subitem (1) does not affect a term of a Division 2B State instrument that is permitted by a provision of the National Employment Standards as it has effect under item 38.\n\n(4) The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a Division 2B State instrument are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards.\n\n(1) The following provisions of the National Employment Standards have effect, on and after the Division 2B referral commencement, as if a reference to a modern award or an enterprise agreement included a reference to a Division 2B State instrument:\n\n (g) subsections 121(2) and (3) (which allow terms specifying situations in which the redundancy pay entitlement under section 119 does not apply);\n\n (a) a Division 2B State instrument includes terms referred to in subsection (1) of section 93 or 101 of the National Employment Standards; but\n\nSubsections 87(3) to (5) of the FW Act apply in relation to an employee to whom a Division 2B State instrument applies in the same way as they apply to an award/agreement free employee.\n\nNote: If the employee qualifies for the shiftworker annual leave entitlement under those subsections, the employee will be entitled to 5 (rather than 4) weeks of paid annual leave.\n\n(1) On application by a person covered by a Division 2B State instrument, the FWC may make a determination varying the instrument:\n\n (a) to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards; or\n\n(2) A variation of a Division 2B State instrument operates from the day specified in the determination, which may be a day before the determination is made.\n\nDivision 2—Interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations\n\n(1) If a collective Division 2B State employment agreement and a modern award both apply to an employee, or to an employer or other person in relation to the employee, the Division 2B State employment agreement prevails over the modern award, to the extent of any inconsistency.\n\nNote: This subitem has effect subject to item 42 of this Schedule, and to item 17 of Schedule 9 (which requires that the base rate of pay under a Division 2B State employment agreement must not be less than the modern award rate).\n\n(2) While an individual Division 2B State employment agreement applies to an employee, or to an employer or other person in relation to an employee, a modern award does not apply to the employee, or to the employer or other person in relation to the employee.\n\nNote 1: However, a modern award can continue to cover the employee while the individual Division 2B State employment agreement continues to apply.\n\nNote 2: This subitem has effect subject to item 42 of this Schedule, and to item 17 of Schedule 9 (which requires that the base rate of pay under a Division 2B State employment agreement must not be less than the modern award rate).\n\n (b) outworker terms (within the meaning of the FW Act) in a modern award would, but for the Division 2B State employment agreement, apply to the employee.\n\n(2) Despite item 41 and despite any terms of the Division 2B State employment agreement that are detrimental to the employee in any respect when compared to the terms of the modern award, the outworker terms apply at that time to the following persons:\n\n(3) To avoid doubt, to the extent to which terms of a modern award apply to an employee, an employer or an employee organisation because of subitem (2), the modern award applies to the employee, employer or organisation.\n\n(1) While a Division 2B State award that covers an employee, or an employer or other person in relation to the employee, is in operation, a modern award does not cover the employee, or the employer or other person in relation to the employee.\n\nNote: When the Division 2B State award terminates, a modern award will start to cover the employee, or the employer or other person in relation to the employee.\n\n(2) While a Division 2B State award that contains outworker terms that cover an outworker entity is in operation, outworker terms in a modern award do not cover the outworker entity.\n\n(3) Outworker terms in a Division 2B State award are terms that would be outworker terms as defined in the FW Act if they were in a modern award.\n\n(1) If an enterprise agreement or workplace determination (under the FW Act) starts to apply to an employee, or an employer or other person in relation to the employee, then a collective Division 2B State employment agreement ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.\n\nNote 1: The fact that a collective Division 2B State employment agreement applies to employees does not prevent those employees and their employer from replacing that agreement at any time with an enterprise agreement, regardless of whether the collective Division 2B State employment agreement has passed its nominal expiry date.\n\nNote 2: Industrial action must not be taken before the nominal expiry date of a collective Division 2B State employment agreement (see item 4 of Schedule 13).\n\n(2) While an individual Division 2B State employment agreement applies to an employee, or to an employer in relation to the employee, an enterprise agreement or workplace determination (under the FW Act) does not apply to the employee, or the employer in relation to the employee.\n\nIf an enterprise agreement or workplace determination (under the FW Act) applies to an employee, or an employer or other person in relation to the employee, then:\n\n (a) a Division 2B State award ceases to apply to the employee, and the employer or other person in relation to the employee; but\n (b) the Division 2B State award can (subject to the other provisions of this Part) continue to cover the employee, and the employer or other person in relation to the employee.\n\nNote: Subject to the other provisions of this Part, the Division 2B State award can again start to apply to the employee, and the employer or other person in relation to the employee, if the enterprise agreement or workplace determination (under the FW Act) ceases to apply to the employee.\n\n (b) a Division 2B State award covers the employer (whether the award covers the employer in the employer’s capacity as an employer or an outworker entity); and\n\n (a) Division 2B State awards are taken to be instruments to which the definition of designated outworker term in section 12 of the FW Act applies; and\n (b) designated outworker terms of a Division 2B State award can apply to an employer under subitem (2) even if none of the employees of the employer is an outworker; and\n (c) to the extent to which designated outworker terms of a Division 2B State award apply to an employer, an employee or an employee organisation because of subitem (2), the award applies to the employer, employee or organisation.\n\n(1) An employee is not an award/agreement free employee for the purposes of the FW Act if a Division 2B State instrument applies to the employee.\n\n(2) The regulations may make provision in relation to any of the following in relation to employees to whom Division 2B State instruments apply:\n\n (a) what is the base rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);\n (b) what is the full rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);\n\n(1) For the purposes of the FW Act, the ordinary hours of work of an employee to whom a Division 2B State instrument applies are to be determined in accordance with this item.\n\n(2) If a Division 2B State instrument that applies to the employee specifies, or provides for the determination of, the employee’s ordinary hours of work, the employee’s ordinary hours of work are as specified in, or determined in accordance with, that instrument.\n\n(3) If subitem (2) does not apply, the employee’s ordinary hours of work are the hours agreed by the employee and his or her employer as the employee’s ordinary hours of work.\n\n(4) If subitem (2) does not apply but there is no agreement under subitem (3), the ordinary hours of work of the employee in a week are:\n\n (c) there is an agreement under subitem (3) between the employee and his or her employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work;\n\n(6) For an employee who is not a full‑time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of subitems (4) and (5).\n\nDivision 2 of Part 2‑9 of the FW Act (which deals with payment of wages) applies, on and after the Division 2B referral commencement, in relation to a Division 2B State instrument as if:\n\nDivision 3 of Part 2‑9 of the FW Act (which deals with the guarantee of annual earnings) applies, on and after the Division 2B referral commencement, as if:\n\nPart 3‑2 of the FW Act (which deals with unfair dismissal) applies, on and after the Division 2B referral commencement, as if:\n\n (a) the reference in subparagraph 382(b)(i) and paragraph 389(1)(b) of that Act to a modern award included a reference to a Division 2B State award; and\n (b) the reference in subparagraph 382(b)(ii) and paragraph 389(1)(b) of that Act to an enterprise agreement included a reference to a Division 2B State employment agreement.\n\nThe regulations may deal with other matters relating to how the FW Act applies in relation to Division 2B State instruments.\n\nagreement appeal means an appeal to a State industrial body against a decision made by a State industrial body in an agreement proceeding.\n\napprove, in relation to a State employment agreement or a variation or termination of a State employment agreement, means:\n\n (a) approve or certify (however described) the agreement, or the variation or termination, under a State industrial law; and\n (b) do any other things (for example, register the agreement) that are required to be done under that law after approval or certification in order for the agreement, or the variation or termination, to come into operation.\n\naward appeal means an appeal to a State industrial body against a decision made by a State industrial body in an award proceeding.\n\ncoverage terms of a source award or source agreement are terms setting out the employees, employers, outworker entities or other persons that are covered (however described) by the award or agreement.\n\nterminate, in relation to a State employment agreement, means terminate or rescind (however described) the agreement under a State industrial law.\n\nvary, in relation to a State employment agreement, means vary or amend (however described) the agreement under a State industrial law.\n\nNothing in this Part affects the application of section 26 of the FW Act to a law of a Division 2B referring State so far as the law provides for the variation or termination of a State award or a State employment agreement because of a proposed transfer of business (however described).\n\n(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the commencement or completion of an award appeal in relation to which the following conditions are satisfied:\n\nNote: The following (to the extent they relate to Division 2B State reference employees and Division 2B State reference employers) are not able to be commenced or completed on or after the Division 2B referral commencement:\n\n (a) does not apply to the commencement of an award appeal more than 21 days after the day on which the decision appealed against was made; and\n (b) ceases to apply to an award appeal if the appeal has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.\n\n(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the completion of an agreement proceeding that had commenced before the Division 2B referral commencement.\n\nNote: Agreement proceedings (to the extent they relate to Division 2B State reference employees and Division 2B State reference employers) are not able to be commenced on or after the Division 2B referral commencement.\n\n(2) Subitem (1) ceases to apply to an agreement proceeding if the proceeding has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.\n\n(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the commencement or completion of an agreement appeal (whether the decision appealed against is or was made before, on or after the Division 2B referral commencement).\n\n (a) does not apply to the commencement of an agreement appeal more than 21 days after the day on which the decision appealed against was made; and\n (b) ceases to apply to an agreement appeal if the appeal has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.\n\n(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law provides for when any of the following decisions (a State decision) come into operation:\n\nNote: If a State employment agreement comes into operation on or after the Division 2B referral commencement under a State industrial law of a Division 2B referring State, a Division 2B State employment agreement is taken to come into operation immediately afterwards: see item 5 of this Schedule.\n\n(2) Subject to subitems (3) and (4), if a State decision affects the source award or source agreement for a Division 2B State instrument, the Division 2B State instrument is taken to be affected by the State decision in the same way, and from the same time, as the source award or source agreement is affected by the State decision.\n\n(3) Subitem (2) does not apply to a State decision that affects the coverage terms of the source award or source agreement.\n\n(4) Any resulting alteration of an entitlement under the Division 2B State instrument takes effect only from the later of the day on which the State decision is made and the day on which the decision comes into operation.\n\n (a) for when a State employment agreement comes into operation, if the State employment agreement was approved by a State industrial body before the Division 2B referral commencement, but the agreement had not yet come into operation by that commencement; or\n (b) for when a variation or termination of a State employment agreement comes into operation, if the variation or termination was approved or made by a State industrial body before the Division 2B referral commencement, but the variation or termination had not yet come into operation by that commencement.\n\nNote: If a State employment agreement comes into operation on or after the Division 2B referral commencement under a State industrial law of a Division 2B referring State, a Division 2B State employment agreement is taken to come into operation immediately afterwards: see item 5 of this Schedule.\n\n(2) Subject to subitem (3), if, at a time when a Division 2B State employment agreement is in operation, a variation or termination of the source agreement comes into operation as mentioned in subitem (1), the Division 2B State employment agreement is taken to have been varied in the same way, or to have been terminated, (as the case requires) immediately after that time.\n\n(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to compliance with an entitlement or obligation:\n\nNote: Orders and injunctions of State industrial bodies relating to industrial action that are in operation immediately before the Division 2B referral commencement can continue to have effect, and be enforced, under State law after the Division 2B referral commencement: see item 61.\n\n(3) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to a termination of employment that occurred before the Division 2B referral commencement.\n\n (b) provides for the variation or setting aside of entitlements and obligations arising under a contract of employment, or another arrangement for employment, that a court or a State industrial body of the State finds is unfair.\n\n (a) an order made, or an injunction granted, by a State industrial body or a court of a Division 2B referring State to prevent or stop industrial action (however described) that was in operation immediately before the Division 2B referral commencement may continue to have effect under the law of the State on and after that day; and\n\nNote 1: Part 7 of the WR Act contains the Australian Fair Pay and Conditions Standard. Part 3 of Schedule 9 to this Act provides for the continued application of Division 2 of Part 7 (which deals with wages).\n\nNote 2: Part 4 of Schedule 3 to this Act provides for the continued application of the rules about the interaction between transitional instruments and the Australian Fair Pay and Conditions Standard.\n\nDivisions 1, 2 (other than sections 615 to 618) and 6 of Part 12 of the WR Act continue to apply during the bridging period.\n\nThe following provisions of the WR Act continue to apply in relation to terminations of employment that occur during the bridging period, or notice of which is given during the bridging period:\n\n(1) The provisions of the WR Act that continue to apply because of this Part have effect as if a reference in the provisions to a workplace agreement included a reference to an enterprise agreement.\n\n(1) An employee’s service with an employer before the FW (safety net provisions) commencement day counts as service of the employee with the employer for the purpose of determining the employee’s entitlements under the National Employment Standards, other than entitlements to:\n\nNote 1: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).\n\nNote 2: Interaction between the National Employment Standards and transitional instruments is dealt with in Division 1 of Part 5 of Schedule 3.\n\n(2) If, before the FW (safety net provisions) commencement day, the employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service, subitem (1) does not result in that period of service with the employer being counted again when calculating the employee’s entitlements of that kind under the National Employment Standards.\n\n(3) To avoid doubt, subitem (2) does not require an employee to serve any initial qualifying period of service for long service leave again.\n\n(4) Subitem (1) does not apply in relation to an employee and an employer for the purposes of Subdivision B of Division 11 of the National Employment Standards (which deals with redundancy pay) if the terms and conditions of employment that applied to the employee’s employment by the employer immediately before the FW (safety net provisions) commencement day did not provide for an entitlement to redundancy pay.\n\n(1) This item applies if, immediately before the FW (safety net provisions) commencement day, an employee has an accrued entitlement to an amount of paid annual leave or paid personal/carer’s leave, whether the leave accrued under Part 7 of the WR Act, a transitional instrument or otherwise.\n\n(2) The provisions of the National Employment Standards relating to taking that kind of leave (including rates of pay while taking leave), or cashing‑out that kind of leave, apply, as a minimum standard, to the accrued leave as if it had accrued under the National Employment Standards.\n\n7 Leave that, immediately before the FW (safety net provisions) commencement day, is being, or is to be, taken under Part 7 of the WR Act\n\n (a) immediately before the FW (safety net provisions) commencement day, an employee is taking a period of a type of leave under Part 7 of the WR Act; and\n\nthe employee is entitled to continue on leave of the equivalent type under the National Employment Standards for the remainder of the period.\n\nNote: For example, if an employee is taking paid annual leave under Part 7 of the WR Act immediately before the FW (safety net provisions) commencement day, the employee is entitled to continue on paid annual leave under the National Employment Standards.\n\n(2) If an employee, or his or her spouse or de facto partner (if the spouse or de facto partner is also an employee), continues on leave under the National Employment Standards in accordance with subitem (1), the employee is entitled to adjust any of the following consistently with the provisions of the National Employment Standards in relation to that type of leave:\n\nNote: If the employee’s spouse or de facto partner is also an employee, the employees will be an employee couple for the purposes of the parental leave provisions of the National Employment Standards.\n\n (a) an employee has taken a step that the employee is required to take so that the employee can, on or after the FW (safety net provisions) commencement day, take a type of leave referred to in subitem (1); and\n\nNote: For example, if an employee has given the employer an application under section 271 of the WR Act so that the employee can take ordinary maternity leave, the employee is taken to have given the employer notice under section 74 of the FW Act of the taking of unpaid parental leave.\n\n(4) If an employee is taken, by subitem (3), to have taken a step, in relation to leave, under the National Employment Standards, the employee is entitled to adjust the step consistently with the provisions of the National Employment Standards in relation to that type of leave.\n\nNote: For example, an employee could vary the content of a notice given to the employer in relation to the leave, or vary the amount of leave the employee has notified the employer that the employee intends to take.\n\n(5) The regulations may deal with other matters relating to how the National Employment Standards apply to leave that, immediately before the FW (safety net provisions) commencement day, is being, or is to be, taken under Part 7 of the WR Act.\n\n(1) An employee may, on or after the FW (safety net provisions) commencement day, be absent from his or her employment under Division 8 of the National Employment Standards even if the period of absence began before that day.\n\n(2) If an employee is absent from his or her employment in accordance with subitem (1), subsection 111(5) of the National Employment Standards applies as if a reference to the first 10 days of absence were a reference to the first 10 days of absence occurring on or after the FW (safety net provisions) commencement day.\n\n(1) Subdivision A of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the FW (safety net provisions) commencement day.\n\n(2) However, that Subdivision does not apply to a termination if notice of the termination was given before the FW (safety net provisions) commencement day.\n\nSubdivision B of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the FW (safety net provisions) commencement day, even if notice of the termination was given before that day.\n\n (b) subsections 22(5) and (6) of the FW Act, as those provisions apply for the purposes of the National Employment Standards;\n\ndo not cover a situation where the employee became employed by the second employer (within the meaning of subsection 22(7) of the FW Act) at a time before the FW (safety net provisions) commencement day.\n\nA body that was established, or continued in existence, for the purpose, or for purposes that include the purpose, of enabling one or more employees to obtain the protection of subsection 659(2) of the WR Act (which dealt with unlawful termination) is not a recognised emergency management body for the purposes of the FW Act.\n\nThe obligation in section 125 of the National Employment Standards for an employer to give an employee the Fair Work Information Statement only applies to an employee who starts employment with the employer on or after the FW (safety net provisions) commencement day.\n\nThe regulations may make provision in relation to how the National Employment Standards apply to, or are affected by, things done or matters occurring before the FW (safety net provisions) commencement day.\n\n(1) An employee’s service with an employer before the Division 2B referral commencement counts as service of the employee with the employer for the purpose of determining the employee’s entitlements under the National Employment Standards, other than entitlements to:\n\nNote 1: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).\n\nNote 2: Interaction between the National Employment Standards and Division 2B State instruments is dealt with in Division 1 of Part 5 of Schedule 3A to this Act.\n\n(2) If, before the Division 2B referral commencement, the employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service, subitem (1) does not result in that period of service with the employer being counted again when calculating the employee’s entitlements of that kind under the National Employment Standards.\n\n(3) To avoid doubt, subitem (2) does not require an employee to serve any initial qualifying period of service for long service leave again.\n\n(4) Subitem (1) does not apply in relation to an employee and an employer for the purposes of Subdivision B of Division 11 of the National Employment Standards (which deals with redundancy pay) if the terms and conditions of employment that applied to the employee’s employment by the employer immediately before the Division 2B referral commencement did not provide for an entitlement to redundancy pay.\n\n(5) If, had an employee’s employment been terminated for redundancy (however described) before the Division 2B referral commencement, a State industrial body could have made an order giving the employee an entitlement to redundancy pay (however described):\n\n (a) the terms and conditions of the employee’s employment referred to in subitem (4) are taken to have provided for an entitlement to redundancy pay; and\n (b) paragraph 121(1)(b) of the FW Act does not apply in relation to the employee during the period of 12 months starting on the Division 2B referral commencement.\n\nNote: Because of paragraph (b), the employee may therefore be entitled to redundancy pay under section 119 of the FW Act if the employee’s employment is terminated during the 12 month period starting on the Division 2B referral commencement, even if the employer is a small business employer.\n\n(1) This item applies if an employee had, immediately before the Division 2B referral commencement, an accrued entitlement to an amount of paid annual leave or paid personal/carer’s leave, whether the leave accrued under a State industrial law, the source award or source agreement for a Division 2B State instrument, or otherwise.\n\n(2) The provisions of the National Employment Standards relating to taking that kind of leave (including rates of pay while taking leave), or cashing‑out that kind of leave, apply, as a minimum standard, to the accrued leave as if it had accrued under the National Employment Standards.\n\n18 Leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken under Division 6 of Part 7 of the WR Act or a State industrial law\n\nthe employee is entitled to continue on leave of the equivalent type under the National Employment Standards for the remainder of the period.\n\nNote: For example, if an employee was taking parental leave under Division 6 of Part 7 of the WR Act immediately before the Division 2B referral commencement, the employee is entitled to continue on unpaid parental leave under the National Employment Standards.\n\n(2) If an employee, or his or her spouse or de facto partner (if the spouse or de facto partner is also an employee), continues on leave under the National Employment Standards in accordance with subitem (1), the employee is entitled to adjust any of the following consistently with the provisions of the National Employment Standards in relation to that type of leave:\n\nNote: If the employee’s spouse or de facto partner is also an employee, the employees will be an employee couple for the purposes of the parental leave provisions of the National Employment Standards.\n\n (a) an employee has taken a step that the employee is required to take so that the employee can, on or after the Division 2B referral commencement, take a type of leave referred to in subitem (1); and\n\nNote: For example, if an employee has given the employer an application under section 271 of the WR Act so that the employee can take ordinary maternity leave, the employee is taken to have given the employer notice under section 74 of the FW Act of the taking of unpaid parental leave.\n\n(4) If an employee is taken, by subitem (3), to have taken a step, in relation to leave, under the National Employment Standards, the employee is entitled to adjust the step consistently with the provisions of the National Employment Standards in relation to that type of leave.\n\nNote: For example, an employee could vary the content of a notice given to the employer in relation to the leave, or vary the amount of leave the employee has notified the employer that the employee intends to take.\n\n(5) The regulations may deal with other matters relating to how the National Employment Standards apply to leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken under Division 6 of Part 7 of the WR Act or under a State industrial law of a Division 2B referring State.\n\n(1) Subdivision A of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the Division 2B referral commencement.\n\n(2) However, that Subdivision does not apply to a termination if notice of the termination was given before the Division 2B referral commencement.\n\nSubdivision B of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the Division 2B referral commencement, even if notice of the termination was given before that day.\n\nThe obligation in section 125 of the National Employment Standards for an employer to give an employee the Fair Work Information Statement only applies to an employee who starts employment with the employer on or after the Division 2B referral commencement.\n\nThe regulations may make provision in relation to how the National Employment Standards apply to, or are affected by, things done or matters occurring before the Division 2B referral commencement.\n\n(1) The Australian Industrial Relations Commission is to continue and complete the award modernisation process provided for by Part 10A of the WR Act (the Part 10A award modernisation process).\n\n(2) For that purpose, Part 10A of the WR Act continues to apply on and after the WR Act repeal day in accordance with this Part.\n\n(3) Without limiting subitem (2), the request under section 576C of the WR Act continues to apply on and after the WR Act repeal day, and may be varied in accordance with that section.\n\n (c) all the words after “eligible entity” in paragraph 576K(2)(b) were omitted and the words “may arrange for work to be performed for the entity (either directly or indirectly), if the work is of a kind that is often performed by outworkers” were substituted; and\n (h) a reference to an outworker in subsection 576K(2) were a reference to an outworker within the meaning of the FW Act; and\n (j) a reference to an outworker term in section 576V were a reference to an outworker term within the meaning of the FW Act.\n\n(4) The Australian Industrial Relations Commission’s power under section 576H of the WR Act to vary a modern award cannot be exercised after the modern award has come into operation.\n\n(5) In continuing and completing the Part 10A award modernisation process, the Australian Industrial Relations Commission must have regard to:\n\n (b) the likely effects on the national economy of any modern award that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation; and\n (c) the likely effects on the relevant industry or industry sector of any modern award that the Commission is considering, or is proposing to make, including on productivity, labour costs and the regulatory burden on businesses.\n\n3 Variation and termination of certain transitional instruments etc. to take account of Part 10A award modernisation process\n\n(1) The FWC must, as soon as practicable after a modern award (other than the miscellaneous modern award) made in the Part 10A award modernisation process comes into operation (and subject to subitem (3)):\n\n (a) terminate any of the following (modernisable instruments) that the FWC considers are completely replaced by the modern award:\n (b) if the FWC considers that the modern award only partly replaces a modernisable instrument—vary the coverage terms of the modernisable instrument accordingly.\n\nNote 1: The main provisions about transitional instruments are in Schedule 3, and the main provisions about transitional APCSs are in Schedule 9.\n\nNote 2: This item does not limit the effect of any other provision of this Act under which a modernisable instrument ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.\n\n(2) As soon as practicable after all modern awards made in the Part 10A modernisation process have come into operation, the FWC must (subject to subitem (3)) terminate any remaining modernisable instruments.\n\n (a) terminate a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award, or that covers employees who are also covered by an enterprise instrument or a State reference public sector transitional award; or\n (b) vary a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award; or\n (c) vary a modernisable instrument so that it ceases to cover employees who are also covered by an enterprise instrument or a State reference public sector transitional award.\n\nNote 1: Item 9 of Schedule 6 deals with termination and variation of modernisable instruments to take account of the enterprise instrument or a State reference public sector transitional award modification process.\n\nNote 2: Item 10 of Schedule 6A deals with termination and variation of State reference public sector transitional awards to take account of the State reference public sector transitional award modernisation process.\n\n(4) The FWC may establish a process for making decisions under this item to terminate or vary one or more modernisable instruments.\n\n(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s powers under subitem (5).\n\n(1) A modern award made in the Part 10A award modernisation process is, for the purposes of the FW Act (and any other law), taken to be a modern award within the meaning of that Act from the later of the following days:\n\n(2) Section 49 of the FW Act does not apply for the purpose of determining when the modern award comes into operation. Instead, the modern award comes into operation on the day on which it is expressed to commence (in accordance with section 576Y of the WR Act).\n\n(3) The regulations may deal with other matters relating to how the FW Act applies in relation to modern awards made in the Part 10A award modernisation process.\n\n(1) If the FWC considers that there is a minor or technical problem with a modern award that is attributable to the fact that the Part 10A award modernisation process started before the enactment of the FW Act, the FWC may make a determination varying the modern award to resolve the problem.\n\nNote: Certain modern awards may, for example, contain references to concepts or provisions that are not consistent with the FW Act as enacted. This variation power allows the FWC to fix such references.\n\n (c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award; or\n (d) if the variation is of outworker terms in the modern award—on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the terms relate.\n\n6 Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years\n\n(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, the FWC must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.\n\nNote: The review required by this item is in addition to the annual wage reviews and 4 yearly reviews of modern awards that the FWC is required to conduct under the FW Act.\n\n (b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.\n\n(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent the FWC from reviewing 2 or more modern awards at the same time.\n\n(3) The FWC may make a determination varying any of the modern awards in any way that the FWC considers appropriate to remedy any issues identified in the review.\n\nNote: Any variation of a modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2‑3 of the FW Act).\n\n(4) The modern awards objective applies to the FWC making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.\n\n(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s powers under subitem (5).\n\n (a) a modern award includes terms (review terms) under which the FWC may review transitional arrangements included in the award; and\n (b) the review terms, and the transitional arrangements, were included in the award in the Part 10A award modernisation process;\n\nNote: Any variation of the modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2‑3 of the FW Act).\n\n(2) The review terms are taken to be terms that are permitted to be included in the modern award by Subdivision B of Division 3 of Part 2‑3 of the FW Act.\n\n(1) The Part 10A award modernisation process is not intended to result in a reduction in the take‑home pay of employees or outworkers.\n\nNote: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.\n\n (a) a modern award made in the Part 10A award modernisation process starts to apply to the employee when the award comes into operation; and\n (b) 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\n (c) the amount of the employee’s take‑home pay for working particular hours or for a particular quantity of work after 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\n\n (a) when a modern award that contains outworker terms comes into operation, the outworker is a person to whom outworker terms in the modern award relate; and\n (b) 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\n (c) the amount of the outworker’s take‑home pay for working particular hours or for a particular quantity of work after 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\n\n(1) If the FWC is satisfied that an employee, or a class of employees, to whom a modern award applies has suffered a modernisation‑related reduction in take‑home pay, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation.\n\n(2) If the FWC is satisfied that an outworker, or a class of outworkers, to whom outworker terms in a modern award relate has suffered a modernisation‑related reduction in take‑home pay, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the outworker or outworkers that the FWC considers appropriate to remedy the situation.\n\n(4) If the FWC is satisfied that an application for a take‑home pay order has already been made in relation to an employee or a class of employees, or an outworker or a class of outworkers, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees, or the same outworker or outworkers.\n\n(1) The FWC must not make a take‑home pay order in relation to an employee or class of employees, or an outworker or a class of outworkers, if:\n\n (b) the FWC is satisfied that the employee or employees, or outworker or outworkers, have been adequately compensated in other ways for the reduction.\n\n (a) it does not apply to an employee or outworker unless the employee or outworker has actually suffered a modernisation‑related reduction in take‑home pay; and\n (b) if the take‑home pay payable to the employee or outworker under the modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee or outworker under the order.\n\nA take‑home pay order made in relation to an employee or class of employees to whom a particular modern award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the modern award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.\n\nA term of a modern award or an enterprise agreement has no effect in relation to an employee or outworker to the extent that it is less beneficial to the employee or outworker than a term of a take‑home pay order that applies to the employee or outworker.\n\n(2) An enterprise award‑based instrument is an award‑based transitional instrument, other than a State reference public sector transitional award, to which subitem (2A) or (2B) applies.\n\n(2A) This subitem applies to an award‑based transitional instrument that is an award or a State reference transitional award, if the award or State reference transitional award covers employees in:\n\n(2B) This subitem applies to an award‑based transitional instrument that is a notional agreement preserving State awards, if the notional agreement includes terms and conditions from a State award (within the meaning of the WR Act) that covered employees in:\n\n (b) one or more enterprises, if the employers all carried on similar business activities under the same franchise and were:\n\n(3) An enterprise preserved collective State agreement is a transitional instrument that is a preserved collective State agreement in relation to which the following paragraphs are satisfied:\n\n (a) a State or Territory law had, on the day before the commencement of Part 2 of Schedule 4 to the Workplace Relations Amendment (Work Choices) Act 2005, the effect (however described) of converting a State award (within the meaning of the WR Act) into the relevant State employment agreement (within the meaning of the WR Act);\n (b) if the State award had continued to have effect in relation to employees, a notional agreement preserving State awards to which subitem (2B) applies would have been taken to come into operation in relation to those employees.\n\n (ii) a body, association, office or other entity established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or\n\n(2) For the purposes of subitem (1), if 2 or more employers carry on a business, project or undertaking as a joint venture or common enterprise, the employers are taken to be one employer.\n\nNote: However, an enterprise instrument or a modern enterprise award could just relate to a part of that single enterprise.\n\n(1) The enterprise instrument modernisation process is the process of making modern awards under this Division to replace enterprise instruments.\n\n(5) In deciding whether or not to make a modern enterprise award, and in determining the content of that award, the FWC must take into account the following:\n\n (a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;\n (b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;\n (c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);\n (d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;\n (f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;\n\nNote: A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC’s final wage review under the WR Act, or to include transitional arrangements in the modern award.\n\n(5A) If the FWC makes a modern enterprise award before the FW (safety net provisions) commencement day, the modern enterprise award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day.\n\n(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.\n\n (a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;\n (b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;\n (c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);\n (d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;\n (f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to terminate, or not terminate, the enterprise instrument, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;\n\nNote: A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC’s final wage review under the WR Act, or to include transitional arrangements in the modern award.\n\n(5) If the FWC terminates the enterprise instrument, the termination operates from the day specified in the decision to terminate the instrument, being a day that is not earlier than the FW (safety net provisions) commencement day.\n\n(1) The modern awards objective and the minimum wages objective apply to the FWC making a modern enterprise award under this Division.\n\n(2) However, in applying the modern awards objective and the minimum wages objective, the FWC must recognise that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. This is the modern enterprise awards objective.\n\nNote 1: See also item 11 (enterprise instrument modernisation process is not intended to result in reduction in take‑home pay).\n\nNote 2: See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day).\n\n(1) Subject to this item and item 8, Division 3 of Part 2‑3 of the FW Act (which deals with terms of modern awards) applies in relation to a modern enterprise award made under this Division.\n\nNote: See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day).\n\n(2) If the making of a modern enterprise award results in an increase in an employee’s entitlements, the modern enterprise award may provide for the increases to take effect in stages.\n\n(3) If a modern award includes an industry‑specific redundancy scheme in relation to a particular industry, and the FWC makes a modern enterprise award that covers persons who operate in that industry, the FWC may include the industry‑specific redundancy scheme in the modern enterprise award.\n\n (b) to one or more enterprises, but only if the employers all carry on similar business activities under the same franchise and are:\n\n (a) a specified employer that carries on, or specified employers that carry on, the enterprise or enterprises referred to in subitem (2); and\n\n (a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or\n\n(1) If the FWC makes a modern enterprise award to replace an enterprise preserved collective State agreement, the agreement terminates when the modern award comes into operation.\n\n(2) The FWC must, as soon as practicable after a modern enterprise award that is made to replace an enterprise instrument comes into operation:\n\nNote 1: The main provisions about transitional instruments are in Schedule 3, the main provisions about transitional APCSs are in Schedule 9, and the main provisions about Division 2B State awards are in Schedule 3A.\n\nNote 2: This item does not limit the effect of any other provision of this Act under which a modernisable instrument ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.\n\n(3) If the FWC decides not to make a modern enterprise award to replace an enterprise instrument, the instrument terminates when that decision comes into operation.\n\n(3A) Despite subitem (3), if, before the FW (safety net provisions) commencement day, the FWC makes a decision not to make a modern enterprise award to replace an enterprise instrument, the decision must not come into operation before the FW (safety net provisions) commencement day.\n\n(4) If, by the end of the period specified in paragraph 4(3)(b), no application under item 4 or 5 has been made in relation to an enterprise instrument, the instrument terminates at the end of that period.\n\n(5) As soon as practicable after all modern enterprise awards made in the enterprise instrument modernisation process have come into operation, the FWC must terminate any remaining modernisable instruments.\n\n(1) The FWC must, at least 6 months before the end of the period specified in paragraph 4(3)(b), advise any persons still covered by an enterprise instrument:\n\n(3) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s functions and powers under this item.\n\n(1) The enterprise instrument modernisation process is not intended to result in a reduction in the take‑home pay of employees.\n\nNote: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.\n\n (a) a modern enterprise award made in the enterprise instrument modernisation process starts to apply to the employee when the award comes into operation; and\n (b) 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 enterprise award came into operation; and\n (c) the amount of the employee’s take‑home pay for working particular hours or for a particular quantity of work after the modern enterprise 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\n\n(1) If the FWC is satisfied that an employee, or a class of employees, to whom a modern enterprise award applies has suffered a modernisation‑related reduction in take‑home pay, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation.\n\n(3) If the FWC is satisfied that an application for a take‑home pay order has already been made in relation to an employee or a class of employees, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees.\n\n (b) the FWC is satisfied that the employee or employees have been adequately compensated in other ways for the reduction.\n\n (a) it does not apply to an employee unless the employee has actually suffered a modernisation‑related reduction in take‑home pay; and\n (b) if the take‑home pay payable to the employee under the modern enterprise award increases after the order is made, there is a corresponding reduction in any amount payable to the employee under the order.\n\n14 Take‑home pay order continues to have effect so long as modern enterprise award continues to cover the employee or employees\n\nA take‑home pay order made in relation to an employee or class of employees to whom a particular modern enterprise award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the modern enterprise award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.\n\nA term of a modern enterprise award or an enterprise agreement has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of a take‑home pay order that applies to the employee.\n\nFor the purposes of making a modern enterprise award before the FW (safety net provisions) commencement day, the following provisions of the FW Act apply as if they had already commenced:\n\n (e) any provisions that are necessary for the effectual operation of the provisions referred to in paragraphs (a) to (d).\n\n(1) A modern enterprise award made under Division 2 is, for the purposes of the FW Act (and any other law), taken to be a modern award (being a modern enterprise award) within the meaning of that Act from the day on which the modern enterprise award is made.\n\n(2) Section 49 of the FW Act does not apply for the purpose of determining when the modern enterprise award comes into operation. Instead, the modern enterprise award comes into operation on the day on which it is expressed to commence, being a day that is not earlier than the day on which the modern enterprise award is made.\n\n(3) The regulations may deal with other matters relating to how the FW Act applies in relation to modern enterprise awards.\n\n (a) the process of making modern awards under Part 10A of the Workplace Relations Act 1996, as continued by Part 2 of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; and\n (b) the enterprise instrument modernisation process provided for by Part 2 of Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.\n\nAdd:\n\n (8) A modern award (other than a modern enterprise award) must be expressed not to cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009), or employers in relation to those employees.\n\n (b) to one or more enterprises, but only if the employers all carry on similar business activities under the same franchise and are:\n (a) a specified employer that carries on, or specified employers that carry on, the enterprise or enterprises referred to in subsection (2); and\n (a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or\n\nAdd:\n\n### Division 7—Additional provisions relating to modern enterprise awards\n\n (1) This Division contains additional provisions that relate to modern enterprise awards. The provisions in this Division have effect despite anything else in this Part.\n (ii) a body, association, office or other entity established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or\n (4) For the purposes of subsection (3), if 2 or more employers carry on a business, project or undertaking as a joint venture or common enterprise, the employers are taken to be one employer.\n\n (1) FWA must recognise that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. This is the modern enterprise awards objective.\n (2) The modern enterprise awards objective applies to the performance of FWA’s functions or powers under this Act, so far as they relate to modern enterprise awards.\n (3) A reference to the modern awards objective in this Act, other than section 134, is taken to include a reference to the modern enterprise awards objective.\n\n> Note: Modern enterprise awards can be made only in accordance with the enterprise instrument modernisation process provided for by Part 2 of Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.\n\n (b) all the employees covered by the award will, when the revocation comes into operation, be covered by a different modern award (other than the miscellaneous modern award or a modern enterprise award) that is appropriate for them.\n (4) In deciding whether to make a determination revoking a modern enterprise award FWA must take into account the following:\n (c) the terms and conditions of employment applying in the industry in which the persons covered by the modern enterprise award operate, and the extent to which those terms and conditions are reflected in the modern enterprise award;\n (e) the likely impact on the persons covered by the modern enterprise award, and the persons covered by the modern award referred to in paragraph (3)(b), of a decision to revoke, or not revoke, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;\n\n (1) FWA must not make a determination varying a modern enterprise award so as to extend the coverage of the modern enterprise award so that it ceases to be a modern enterprise award.\n (2) In deciding whether to make a determination varying the coverage of a modern enterprise award in some other way, FWA must take into account the following:\n (b) whether there is a modern award (other than the miscellaneous modern award or a modern enterprise award) that would, but for the modern enterprise award, cover the persons covered, or proposed to be covered, by the modern enterprise award;\n (d) the terms and conditions of employment applying in the industry in which the persons covered, or proposed to be covered, by the modern award operate, and the extent to which those terms and conditions are reflected in the modern enterprise award;\n (f) the likely impact on the persons covered, or proposed to be covered, by the modern enterprise award, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the variation, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;\n\n (1) If FWA makes one or more determinations varying modern award minimum wages in an annual wage review, FWA must publish the rates of those wages as so varied:\n\n(1) A State reference public sector transitional award is a State reference transitional award or common rule in relation to which the following conditions are satisfied:\n\n (a) the only employers that are expressed to be covered by the award or common rule are one or more specified State reference public sector employers;\n (b) the only employees who are expressed to be covered by the award or common rule are specified State reference public sector employees of those employers.\n\nNote: State reference transitional awards and common rules are continued in existence as transitional instruments by Schedule 3.\n\n(2) A State reference public sector employee is a State reference employee who is a State public sector employee as defined in section 30A or 30K of the FW Act.\n\n(3) A State reference public sector employer is a State reference employer that is a State public sector employer as defined in section 30A or 30K of the FW Act.\n\n (a) a State reference transitional award or common rule (the current award) covers one or more State reference public sector employers, and State reference public sector employees of those employers; and\n\nthen, for the purposes of this Act, the current award is taken instead to constitute 2 separate State reference transitional awards or common rules as follows:\n\n (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a)—that organisation in relation to those employers or employees; and\n (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b)—that organisation in relation to those employers or employees.\n\n(1) The State reference public sector transitional award modernisation process is the process of making State reference public sector modern awards under this Division covering employers, employees and organisations that are covered by State reference public sector transitional awards.\n\n(2) A State reference public sector modern award is a modern award in relation to which the following conditions are satisfied:\n\n (a) the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers;\n (b) the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers.\n\n(1) An employer or organisation that is covered by a State reference public sector transitional award (the current award) may apply to the FWC for the making of a State reference public sector modern award (the proposed award).\n\n(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.\n\n(3) The application must specify the employers, employees and organisations (the proposed parties) proposed to be covered by the proposed award.\n\n(4) The FWC must consider the application, and must make a State reference public sector modern award covering the proposed parties if the FWC is satisfied that:\n\nNote: The proposed parties will cease to be covered by State reference public sector transitional awards when the State reference public sector modern award comes into operation: see item 29 of Schedule 3.\n\n(1) An employer or organisation that is covered by a State reference public sector transitional award (the current award) may apply to the FWC or the Commission to terminate the current award.\n\n(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.\n\n(3) The FWC or the Commission must not terminate the current award unless the FWC or the Commission is satisfied that the employees who are covered by the current award will, if the current award is terminated, be covered by a modern award (other than the miscellaneous modern award) that, at the time of the termination, is or is likely to be in operation and that is appropriate for them.\n\n (b) the terms and conditions of employment applying in the industry or occupation in which the persons covered by the current award operate, and the extent to which those terms and conditions are reflected in the current award;\n (c) the extent to which the current award facilitates arrangements, and provides terms and conditions of employment, referred to in paragraphs 7(2)(a) and (b);\n (d) the likely impact on the persons covered by the current award of a decision to terminate, or not to terminate, the current award;\n\n(5) If the FWC or the Commission terminates the current award, the termination operates from the day specified in the decision to terminate the current award, being a day that is not earlier than the FW (safety net provisions) commencement day.\n\n(6) If the Commission terminates the current award, the termination is taken, after the Commission has ceased to exist, to have been made by the FWC.\n\nIf, at the end of the period referred to in subitem 4(2), there are one or more State reference public sector transitional awards that still cover some employers and employees, the FWC must make, or (in accordance with section 168L of the FW Act) vary the coverage of, one or more State reference public sector modern awards so that all those employers and employees are covered by State reference public sector modern awards.\n\nNote: The employers and employees will cease to be covered by the State reference public sector transitional awards when they start to be covered by a State reference public sector modern award that is in operation: see item 29 of Schedule 3.\n\n(1) If the FWC is required by item 4 or 6 to make a State reference public sector modern award, the modern awards objective and the minimum wages objective apply to the making of the modern award.\n\n (a) the need to facilitate arrangements for State reference public sector employers and State reference public sector employees that are appropriately adapted to the effective administration of a State; and\n (b) that State reference public sector modern awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to State reference public sector employers and State reference public sector employees.\n\nNote 1: See also item 13 (State reference public sector transitional award modernisation process is not intended to result in reduction in take‑home pay).\n\nNote 2: See also item 19 (how the FW Act applies in relation to the State reference public sector transitional award modernisation process before the FW (safety net provisions) commencement day).\n\n(1) Division 3 (other than sections 143 and 154) of Part 2‑3 of the FW Act (which deals with terms of modern awards) applies in relation to a State reference public sector modern award made under this Division.\n\nNote: See also item 19 (how the FW Act applies in relation to the State reference public sector transitional award modernisation process before the FW (safety net provisions) commencement day).\n\n(2) If FWA makes a State reference public sector modern award before the FW (safety net provisions) commencement day, the State reference public sector modern award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day.\n\n(1) A State reference public sector modern award must include terms (coverage terms) setting out, in accordance with this item, the employers, employees and organisations that are covered by the State reference public sector modern award.\n\n (a) the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers; and\n (b) the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers.\n\n(3) A State reference public sector modern award may be expressed to cover one or more specified organisations, in relation to:\n\n10 Variation and termination of State reference public sector transitional awards to take account of the modernisation process\n\n(1) If a State reference public sector modern award completely replaces a State reference public sector transitional award, the transitional award terminates when the modern award comes into operation.\n\n(2) If a State reference public sector modern award partially replaces a State reference public sector transitional award, the FWC must, as soon as practicable after the modern award comes into operation, vary the transitional award so that employees who are covered by the modern award are no longer covered by the transitional award.\n\n (a) the modern award completely replaces the transitional award if all the employees who are covered by the transitional award become covered by the modern award when it comes into operation; and\n (b) the modern award partially replaces the transitional award if only some of the employees who are covered by the transitional award become covered by the modern award when it comes into operation.\n\nNote: This item does not limit the effect of any other provision of this Act under which a transitional instrument (a State reference public sector transitional award is a transitional instrument) ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.\n\n(1) The FWC must, at least 6 months before the end of the period specified in subitem 4(2), advise any persons still covered by a State reference public sector transitional award:\n\n (b) that the FWC will, at the end of that period, commence the State reference public sector transitional award modernisation process in relation to the transitional award for any employees and employers who are still covered by the transitional award at that time.\n\n(3) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s functions and powers under this item.\n\nThe regulations may deal with other matters relating to the State reference public sector transitional award modernisation process.\n\n13 State reference public sector transitional award modernisation process is not intended to result in reduction in take‑home pay\n\n(1) The State reference public sector transitional award modernisation process is not intended to result in a reduction in the take‑home pay of employees.\n\nNote: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.\n\n (a) a State reference public sector modern award made in the State reference public sector transitional award modernisation process starts to apply to the employee when the modern award comes into operation; and\n (b) 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 State reference public sector modern award came into operation; and\n (c) the amount of the employee’s take‑home pay for working particular hours or for a particular quantity of work after the State reference public sector 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 modern award came into operation; and\n (d) that reduction in the employee’s take‑home pay is attributable to the State reference public sector transitional award modernisation process.\n\n(1) If the FWC is satisfied that an employee, or a class of employees, to whom a State reference public sector modern award applies has suffered a modernisation‑related reduction in take‑home pay, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation.\n\n(3) If the FWC is satisfied that an application for a take‑home pay order has already been made in relation to an employee or a class of employees, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees.\n\n (b) the FWC is satisfied that the employee or employees have been adequately compensated in other ways for the reduction.\n\n (a) it does not apply to an employee unless the employee has actually suffered a modernisation‑related reduction in take‑home pay; and\n (b) if the take‑home pay payable to the employee under the State reference public sector modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee under the order.\n\n16 Take‑home pay order continues to have effect so long as State reference public sector modern award continues to cover the employee or employees\n\nA take‑home pay order made in relation to an employee or class of employees to whom a particular State reference public sector modern award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the State reference public sector modern award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.\n\nA term of a State reference public sector modern award or an enterprise agreement has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of a take‑home pay order that applies to the employee.\n\nFor the purposes of making a State reference public sector modern award before the FW (safety net provisions) commencement day, the following provisions of the FW Act apply as if they had already commenced:\n\n (e) any provisions that are necessary for the effectual operation of the provisions referred to in paragraphs (a) to (d).\n\n20 How the FW Act applies to modern awards made in the State reference public sector transitional award modernisation process\n\n(1) A State reference public sector modern award made under Division 2 is, for the purposes of the FW Act (and any other law), taken to be a modern award (being a State reference public sector modern award) within the meaning of that Act from the day on which the State reference public sector modern award is made.\n\n(2) Section 49 of the FW Act does not apply for the purpose of determining when the State reference public sector modern award comes into operation. Instead, the modern award comes into operation on the day on which it is expressed to commence, being a day that is not earlier than the day on which the modern award is made.\n\n(3) The regulations may deal with other matters relating to how the FW Act applies in relation to State reference public sector modern awards.\n\n","sortOrder":1},{"sectionNumber":"Part 2","sectionType":"part","heading":"Transitional provisions relating to the application of the no‑disadvantage test to enterprise agreements made and varied during bridging period","content":"Part 2—Transitional provisions relating to the application of the no‑disadvantage test to enterprise agreements made and varied during bridging period\n\n(1) Paragraph 186(2)(d) of the FW Act (including as that paragraph has effect under subsection 211(3) of that Act) and subsection 211(5) of that Act apply in relation to:\n\nas if the words “better off overall test” were omitted and the words “no‑disadvantage test as set out in Division 2 of Part 2 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted.\n\n(2) Paragraph 189(1)(b) of the FW Act applies in relation to an enterprise agreement made during the bridging period as if the words “better off overall test” were omitted and the words “no‑disadvantage test as set out in Division 2 of Part 2 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted.\n\nNote: This means that section 193 (which deals with passing the better off overall test) and subsections 211(4) and (5) (which deal with applying the better off overall test to agreements as proposed to be varied) of the FW Act will have no effect in relation to the approval by FWA of agreements and variations during the bridging period.\n\ndesignated award, for an employee or employees who are or may be covered by an enterprise agreement, means an award determined by the FWA under item 8, and includes an award taken to be so designated in relation to the employee or employees under item 7 (unless a different award has been designated in relation to the employee or employees under item 8).\n\n(2) Unless the contrary intention appears, this Division applies to an enterprise agreement as proposed to be varied in a corresponding way to the way in which it applies to an enterprise agreement.\n\n (a) a reference in a provision of this Division to an employee who is covered by the agreement is taken to be a reference to an employee who is one of the affected employees for the variation of the agreement (within the meaning of the FW Act); and\n (b) a reference in a provision of this Division to the employees who are covered by the agreement is taken to be a reference to the affected employees for the variation; and\n (c) a reference in a provision of this Division to an application for approval of the agreement under section 185 of the FW Act is taken to be a reference to an application for approval of a variation of the agreement under section 210 of that Act.\n\n(4) For the purposes of applying this Division to an enterprise agreement, a reference to an employee who is covered by the enterprise agreement is, so far as the context permits, taken to include a reference to a person who may at a future time be covered by the enterprise agreement.\n\n(1) An enterprise agreement passes the no‑disadvantage test if FWA is satisfied that the agreement does not, or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees who are covered by the agreement under any reference instrument relating to one or more of the employees.\n\n (ii) applied, immediately before the application was made for approval of the agreement under section 185 of the FW Act, to an employee referred to in that subitem, or would have applied to such an employee if he or she had been employed by the employer at that time;\n is taken, to the extent that it provides for long service leave, to be a reference instrument relating to the employee; and\n (b) if, apart from this subitem, the only reference instrument relating to the employee is a designated award for the employee—the designated award is to be disregarded to the extent (if any) that it provides for long service leave.\n\nNote: An enterprise agreement made during the bridging period will prevail over a law of a State or Territory, to the extent of any inconsistency, so far as that law deals with long service leave (see item 17).\n\n(3) An enterprise agreement or a variation of an enterprise agreement is taken to pass the no‑disadvantage test if there is no reference instrument in relation to any of the employees who are covered by the agreement.\n\n(4) To avoid doubt, if there is a reference instrument in relation to one or more, but not all, of the employees referred to in subitem (1):\n\n (a) if the agreement passes the no‑disadvantage test under subitem (1)—it passes the test in relation to all employees who are covered by the agreement; or\n (b) if the agreement does not pass the no‑disadvantage test under subitem (1)—it does not pass the test in relation to any employees who are covered by the agreement.\n\nNote 1: In addition to the no‑disadvantage test, during the bridging period, the Australian Fair Pay and Conditions Standard prevails over an enterprise agreement to the extent to which the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee or employees—see subitem 27(1).\n\nNote 2: From the FW (safety net provisions) commencement day, a term of an enterprise agreement has no effect to the extent it excludes the National Employment Standards or any provision of the National Employment Standards (see sections 55 and 56 of the FW Act).\n\nNote 3: This item applies to an enterprise agreement as proposed to be varied in a corresponding way to the way in which it applies to an enterprise agreement—see subitems 3(2) and (3).\n\n(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the no‑disadvantage test, FWA must disregard any individual flexibility arrangement that has been agreed to by an affected employee and his or her employer under the flexibility term in the agreement.\n\n(2) A relevant general instrument, for an employee who is covered by an enterprise agreement, is an award‑based transitional instrument:\n\n (a) that regulates, or would but for an enterprise agreement or another industrial instrument having come into operation regulate, any term or condition of employment of persons engaged in the same kind of work as that performed or to be performed by the employee under the enterprise agreement; and\n (b) that applied, or would but for an enterprise agreement or another industrial instrument having come into operation have applied, to the employee’s employer immediately before the day on which the application for approval of the agreement was made under section 185 of the FW Act.\n\n(1) In deciding whether an enterprise agreement passes, or does not pass, the no‑disadvantage test, FWA must consider it as in existence at the test time.\n\n(2) The test time is the time when the application for approval of the agreement was made under section 185 of the FW Act.\n\n(1) FWA may, on application by an employer, determine that an award is a designated award for an employee or class of employees of the employer.\n\n (a) the employee or employees are or may be employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee or employees:\n (ii) would, but for an enterprise agreement or another industrial instrument having come into operation, usually be regulated by an award; and\n (b) unless there is a designated award for the employee or employees, there would be no reference instrument relating to the employee or employees; and\n\n (a) must be an award or awards regulating, or that would, but for an enterprise agreement or another industrial instrument having come into operation, regulate, terms or conditions of employment of employees engaged in the same kind of work as the work performed or to be performed by the employee or employees; and\n (b) must, in the opinion of FWA, be an award or awards that would be appropriate for the purpose referred to in paragraph 8(3)(b) if an application were made for approval of an enterprise agreement under section 185 of the FW Act; and\n (c) must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).\n\n(4) An award determined under this item in relation to an employee or employees is taken to be the designated award determined by FWA under item 8 in relation to the employee or employees if, later, an application is made for approval of an enterprise agreement under section 185 of the FW Act, in relation to the employee or the employees.\n\n(5) Despite subitem (4), FWA may determine under item 8 that another award is a designated award in relation to the employee, or in relation to some or all of the employees, if:\n\n (a) FWA becomes aware of information that was not available to it at the time of the determination under subitem (1); and\n (b) FWA is satisfied that, had that information been available to it at that time, FWA would have determined under subitem (1) the other award to be the designated award.\n\n(7) In this item, a reference to an employee or employees of an employer includes a reference to a person or persons who may become an employee or employees of the employer.\n\n(1) This item applies to an enterprise agreement if there is no relevant general instrument in relation to an employee who is, or a class of employees who are, covered by the agreement.\n\n(2) FWA must determine that an award is a designated award for the employee or employees referred to in subitem (1), if it is satisfied that:\n\n (a) on the date on which the application for approval of the enterprise agreement was made under section 185 of the FW Act, the employee or employees are or would be employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee or employees:\n (ii) would, but for an enterprise agreement or another industrial instrument having come into operation, usually be regulated by an award; and\n\n (a) must be an award or awards regulating, or that would, but for an enterprise agreement or another industrial instrument having come into operation, regulate, terms or conditions of employment of employees engaged in the same kind of work as the work performed by the employee or employees under the enterprise agreement concerned; and\n (b) must, in the opinion of FWA, be appropriate for the purpose of deciding whether an enterprise agreement passes the no‑disadvantage test; and\n (c) must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).\n\nFor the purposes of paragraphs 7(2)(a) and 8(2)(a), an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by an employee are usually regulated by an award is taken to include an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee:\n\n (a) were, immediately before the reform commencement, usually regulated by a State award (within the meaning of the WR Act); or\n (b) would, but for an industrial instrument or a State employment agreement (within the meaning of the WR Act) having come into operation, usually have been so regulated immediately before the reform commencement.\n\n (b) may inform itself in any way it considers appropriate including (but not limited to) contacting any of the following:\n\n(2) In deciding whether to determine that an award is a designated award in relation to an employee or employees of an employer, FWA may inform itself in any way it considers appropriate including (but not limited to) contacting any of the following:\n\n","sortOrder":2},{"sectionNumber":"Part 3","sectionType":"part","heading":"Other requirements and modifications applying to making and varying enterprise agreements during the bridging period","content":"Part 3—Other requirements and modifications applying to making and varying enterprise agreements during the bridging period\n\nParagraph 186(2)(c) of the FW Act (which deals with terms that contravene section 55 of that Act) does not apply in relation to:\n\nNote: Section 55 of the FW Act (which deals with the interaction between the National Employment Standards and enterprise agreements etc.) will apply after the end of the bridging period. Section 56 of that Act provides that a term of an enterprise agreement has no effect to the extent that it contravenes section 55.\n\nSubparagraph 186(6)(a)(ii) of the FW Act (which deals with a requirement for an enterprise agreement to have a term about settling disputes in relation to the National Employment Standards) applies in relation to:\n\nas if the words “as those provisions apply after the end of the bridging period” were added after “National Employment Standards”.\n\nNote: For disputes relating to the Australian Fair Pay and Conditions Standard as it applies during the bridging period, see item 27.\n\n(1) Subsection 187(4) of the FW Act (which deals with requirements relating to particular kinds of employees) does not apply in relation to:\n\n(2) Section 200 of the FW Act (which deals with requirements relating to outworkers) applies in relation to the agreement or variation as if:\n\n (a) references in that section to a modern award were references to an award, a State reference transitional award or common rule, or a notional agreement preserving State awards; and\n (b) references in that section to outworker terms were references to terms that are (or that would be, if the terms were in an award) outworker terms as defined in section 564 of the WR Act.\n\nThe FW Act applies during the bridging period as if section 206 (which deals with base rate of pay under enterprise agreements) were omitted.\n\nParagraph 185(3)(b) of the FW Act (which deals with extending the period within which an application must be made to FWA for approval of an enterprise agreement) does not apply in relation to an enterprise agreement made during the period of 14 days ending at the end of the bridging period.\n\nNote: If an application for approval of an enterprise agreement referred to in this item is not made to FWA within 14 days of it being made:\n\nParagraph 210(3)(b) of the FW Act (which deals with extending the period within which an application must be made to FWA for approval of a variation of an enterprise agreement) does not apply in relation to a variation of an enterprise agreement, if that variation was made during the period of 14 days ending at the end of the bridging period.\n\nNote: If an application for approval of a variation referred to in this item is not made to FWA within 14 days of it being made:\n\n17 Enterprise agreement made during the bridging period prevails over State and Territory laws dealing with long service leave\n\nDespite subsection 29(2) of the FW Act, an enterprise agreement made during the bridging period prevails over a law of a State or Territory, to the extent of any inconsistency, so far as that law deals with long service leave.\n\nNote: A term of such an enterprise agreement will still apply subject to a law of a State or Territory so far as that law is otherwise covered by paragraph 29(2)(a) or (b) of the FW Act.\n\n","sortOrder":3},{"sectionNumber":"Part 4","sectionType":"part","heading":"Transitional provisions to apply the better off overall test after end of bridging period if award modernisation not yet completed","content":"Part 4—Transitional provisions to apply the better off overall test after end of bridging period if award modernisation not yet completed\n\n","sortOrder":4},{"sectionNumber":"18","sectionType":"section","heading":"Application of better off overall test to making of enterprise agreements that cover unmodernised award covered employees","content":"18 Application of better off overall test to making of enterprise agreements that cover unmodernised award covered employees\n\n(1) This item applies in relation to an enterprise agreement made after the end of the bridging period if one or more of the employees covered by the agreement is an unmodernised award covered employee.\n\n(2) Despite section 193 of the FW Act, if the enterprise agreement is not a greenfields agreement, the agreement passes the better off overall test under that section only if:\n\n (b) the FWC is satisfied, as at the test time, that each unmodernised award covered employee, and each prospective unmodernised award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant award‑based transitional instrument and transitional APCS applied to the employee.\n\n(3) Despite section 193 of the FW Act, if the enterprise agreement is a greenfields agreement, the agreement passes the better off overall test under that section only if:\n\n (b) the FWC is satisfied, as at the test time, that each prospective unmodernised award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant award‑based transitional instrument and transitional APCS applied to the employee.\n\n(4) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award or relevant award‑based transitional instrument and transitional APCS applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.\n\n(5) If the relevant award‑based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded.\n\n19 Application of better off overall test to variation of enterprise agreements that cover unmodernised award covered employees\n\n(2) Despite subsections 211(4) and (5) of the FW Act, subitems (3) and (4) apply in relation to the variation for the purposes of the FWC being satisfied that the agreement as proposed to be varied passes the better off overall test.\n\n(3) An enterprise agreement as proposed to be varied passes the better off overall test if the FWC is satisfied, as at the test time, that:\n\n (a) each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee; and\n (b) each unmodernised award covered employee, and each prospective unmodernised award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant award‑based transitional instrument and transitional APCS applied to the employee.\n\n(4) For the purposes of determining whether the enterprise agreement as proposed to be varied passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award or relevant award‑based transitional instrument and transitional APCS applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.\n\n(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by an award covered employee and his or her employer under the flexibility term in the agreement.\n\n(6) If the relevant award‑based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded.\n\nprospective unmodernised award covered employee, for an enterprise agreement, means a person who, if he or she were an employee at the test time of an employer covered by the agreement:\n\n (a) for the purposes of item 18—means the time the application for approval of the agreement by the FWC was made under section 185 of the FW Act; and\n (b) for the purposes of item 19—means the time the application for approval of the variation of the enterprise agreement by the FWC was made under section 210 of that Act.\n\n (b) at the test time, is covered by an award‑based transitional instrument (the relevant award‑based transitional instrument) that:\n\n","sortOrder":5},{"sectionNumber":"Part 4A","sectionType":"part","heading":"Transitional provisions to apply the better off overall test to enterprise agreements that cover Division 2B State award covered employees","content":"Part 4A—Transitional provisions to apply the better off overall test to enterprise agreements that cover Division 2B State award covered employees\n\n20A Application of better off overall test to making of enterprise agreements that cover Division 2B State award covered employees\n\n(1) This item applies in relation to an enterprise agreement made on or after the Division 2B referral commencement, if one or more of the employees covered by the agreement is a Division 2B State award covered employee.\n\n(2) Despite section 193 of the FW Act, if the enterprise agreement is not a greenfields agreement, the agreement passes the better off overall test under that section only if:\n\n (a) the FWC is satisfied as referred to in subsection (1) of that section, and paragraph (2)(b) of item 18 of this Schedule, in relation to the agreement (to the extent that those provisions are applicable); and\n (b) the FWC is satisfied, as at the test time, that each Division 2B State award covered employee, and each prospective Division 2B State award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee.\n\nNote: Section 193 of the FW Act and item 18 of this Schedule deal with testing enterprise agreements against other instruments (such as modern awards). An enterprise agreement to which this subitem applies will not be tested against one or more such other instruments in relation to Division 2B State award covered employees.\n\n(3) Despite section 193 of the FW Act, if the enterprise agreement is a greenfields agreement, the agreement passes the better off overall test under that section only if:\n\n (a) the FWC is satisfied as referred to in subsection (3) of that section and paragraph (3)(b) of item 18 of this Schedule in relation to the agreement (to the extent that those provisions are applicable); and\n (b) the FWC is satisfied, as at the test time, that each prospective Division 2B State award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee.\n\nNote: Section 193 of the FW Act and item 18 of this Schedule deal with testing enterprise agreements against other instruments (such as modern awards). An enterprise agreement to which this subitem applies will not be tested against one or more such other instruments in relation to prospective Division 2B State award covered employees.\n\n(4) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant Division 2B State award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.\n\n20B Application of better off overall test to variation of enterprise agreements that cover Division 2B State award covered employees\n\n(2) Despite subsections 211(4) and (5) of the FW Act, subitems (3) and (4) apply in relation to the variation for the purposes of the FWC being satisfied that the agreement as proposed to be varied passes the better off overall test.\n\n (a) the FWC is satisfied, as at the test time, as mentioned in subitem 19(3) of this Schedule in relation to the agreement as proposed to be varied (to the extent that subitem 19(3) is applicable); and\n (b) the FWC is satisfied, as at the test time, that each Division 2B State award covered employee, and each prospective Division 2B State award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee.\n\nNote: Item 19 of this Schedule deals with testing enterprise agreements as proposed to be varied against other instruments (such as modern awards). A variation to which this subitem applies will not be tested against one or more such other instruments in relation to Division 2B State award covered employees.\n\n(4) For the purposes of determining whether the enterprise agreement as proposed to be varied passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant Division 2B State award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.\n\n(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by a Division 2B State award covered employee and his or her employer under the flexibility term in the agreement.\n\nprospective Division 2B State award covered employee, for an enterprise agreement, means a person who, if he or she were an employee at the test time of an employer covered by the agreement:\n\n (a) for the purposes of item 20A—means the time the application for approval of the enterprise agreement by the FWC was made under section 185 of the FW Act; and\n (b) for the purposes of item 20B—means the time the application for approval of the variation of the enterprise agreement by the FWC was made under section 210 of that Act.\n\n21 Application made during bridging period for special low‑paid workplace determination—general requirement relating to minimum safety net\n\nSubsection 262(3) of the FW Act (which deals with a general requirement relating to the minimum safety net) applies in relation to an application for a special low‑paid workplace determination made during the bridging period as if the words “modern awards together with the National Employment Standards” were omitted and the words “awards (including State reference transitional awards and common rules) together with the Australian Fair Pay and Conditions Standard” were substituted.\n\n22 Special low‑paid workplace determination—employer must not previously have been covered by agreement‑based transitional instrument\n\n(1) Subsection 263(3) of the FW Act (which deals with additional requirements for making a special low‑paid workplace determination) applies in relation to a workplace determination, whether made during or after the bridging period, as if the reference in that subsection to an enterprise agreement included a reference to a collective agreement‑based transitional instrument.\n\n(3) In making a decision for the purposes of paragraph (2)(b) of this item, the FWC must take into account the objects set out in section 241 of the FW Act.\n\n23 Core terms of workplace determinations—assessment of determination made during bridging period against the no disadvantage test\n\nSubsection 272(4) of the FW Act (which deals with workplace determinations passing the better off overall test) applies in relation to a workplace determination made during the bridging period as if the words “better off overall test under section 193” were omitted and the words “no‑disadvantage test as set out in Division 2 of Part 2 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted.\n\n24 Core terms of workplace determinations—assessment of determination made after bridging period that covers unmodernised award covered employees against the better off overall test\n\n(1) This item applies in relation to a workplace determination made after the end of the bridging period if one or more of the employees who will be covered by the determination is an unmodernised award covered employee (within the meaning of Part 4).\n\n(2) Subsection 272(4) of the FW Act (which deals with workplace determinations passing the better off overall test) applies in relation to the workplace determination as if the words “under section 193” were omitted and the words “under item 18 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted.\n\n(2) Subsection 272(5) of the FW Act (which deals with terms relating to safety net requirements) does not apply in relation to the workplace determination, except in so far as that subsection prevents a workplace determination from including a term that would, if the determination were an enterprise agreement, mean that FWA could not approve the agreement because of the operation of section 200 of that Act (which deals with requirements relating to outworkers).\n\nNote: Section 55 of the FW Act (which deals with the interaction between the National Employment Standards and workplace determinations etc.) will apply after the end of the bridging period. Section 56 of that Act provides that a term of a workplace determination has no effect to the extent that it contravenes section 55.\n\n(3) Section 200 of the FW Act (which deals with requirements relating to outworkers) applies in relation to the workplace determination as if:\n\n (a) references in that section to a modern award were references to an award or a State reference transitional award or common rule; and\n (b) references in that section to outworker terms were references to outworker terms as defined in section 564 of the WR Act.\n\n(2) Paragraph 273(2)(b) of the FW Act (which deals with a requirement for a workplace determination to have a term about settling disputes in relation to the National Employment Standards) applies in relation to the workplace determination as if the words “as the National Employment Standards apply after the end of the bridging period” were added after “National Employment Standards”.\n\n(3) Subsection 273(3) of the FW Act (which deals with a requirement for a workplace determination to have a term about settling disputes) applies in relation to the workplace determination as if the reference to paragraph 186(6)(a) of the FW Act were a reference to that paragraph in its application to an enterprise agreement made during the bridging period (see item 12).\n\nNote: For disputes relating to the Australian Fair Pay and Conditions Standard as it applies during the bridging period, see item 27.\n\n(1) The Australian Fair Pay and Conditions Standard, in its application during the bridging period under item 2 of Schedule 4 and item 5 of Schedule 9 prevails over an enterprise agreement or a workplace determination that applies to an employee to the extent to which, in a particular respect, the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee.\n\n (a) whether the Australian Fair Pay and Conditions Standard provides a more favourable outcome for an employee in a particular respect than an enterprise agreement or workplace determination that applies to that employee; or\n (b) what the outcome is for an employee in a particular respect under the Australian Fair Pay and Conditions Standard, where an enterprise agreement or a workplace determination applies to that employee;\n\n(3) For the purposes of subitem (2), Divisions 2 and 3 of Part 13 of the WR Act apply as if a reference in those Divisions to the Commission or the Industrial Registrar were a reference to FWA.\n\n(4) The fact that the model dispute resolution process applies in relation to the dispute does not affect any right of a party to the dispute to take court action to resolve it.\n\n(6) Despite the WR Act repeal, regulations made for the purposes of subsection 172(4) of the WR Act continue to apply during the bridging period as if a reference in those regulations to a workplace agreement were a reference to an enterprise agreement and a workplace determination.\n\n(7) A term of an enterprise agreement or a workplace determination has no effect to the extent to which it purports to exclude the Australian Fair Pay and Conditions Standard or any part of it.\n\n","sortOrder":6},{"sectionNumber":"Part 7","sectionType":"part","heading":"Transitional provision about the operation of the better off overall test if a transitional pay equity order applies","content":"Part 7—Transitional provision about the operation of the better off overall test if a transitional pay equity order applies\n\n (b) the FWC must decide whether the agreement, or the agreement as proposed to be varied, passes the better off overall test; and\n (c) an employer covered by the agreement, or the agreement as proposed to be varied, is an employer to which a transitional pay equity order applies; and\n (d) an employee covered by the agreement, or the agreement as proposed to be varied, is an affected employee of the employer referred to in paragraph (c).\n\n(2) For the purposes of determining whether the affected employee would be better off overall if the agreement, or the agreement as proposed to be varied, applied to the employee than if the relevant modern award applied to the employee, the base rate of pay payable under the relevant modern award to the employee is taken to be increased so that it is equal to the amount payable to the employee under the transitional pay equity order.\n\n","sortOrder":7},{"sectionNumber":"Part 8","sectionType":"part","heading":"Transitional provisions relating to termination and sunsetting of enterprise agreements made during the bridging period","content":"Part 8—Transitional provisions relating to termination and sunsetting of enterprise agreements made during the bridging period\n\n(1) An enterprise agreement made during the bridging period ceases to operate at the end of the grace period for the agreement if the agreement has not already ceased to operate before that time.\n\n (a) subject to paragraph (b), the period of 12 months (the default period) beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences; or\n\n (b) if the default period is extended for the agreement on one or more occasions under subitem (6) or paragraph (10)(e)—the default period as so extended.\n\n(3) An employer covered by an enterprise agreement made during the bridging period must, before the end of 6 months beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences, give each employee who is covered by the agreement and employed by the employer at the end of that period written notice advising the employee:\n\n (b) that the agreement will terminate unless an application is made to the FWC under subitem (4), before the end of the period of 12 months beginning on the day that Part commences, for the FWC to extend the default period for the agreement; and\n\n(4) Any of the following may apply to the FWC, before the end of the grace period for an enterprise agreement made during the bridging period, for the FWC to extend the default period for the agreement for a period of no more than 4 years:\n\n (c) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the agreement.\n\n(6) If an application is made under subitem (4), the FWC must extend the default period for the enterprise agreement made during the bridging period for a period of no more than 4 years if the FWC is satisfied that:\n\n (a) the application is made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the enterprise agreement made during the bridging period; and\n\n(8) This subitem applies if it is likely that, as at the time the application is made, the award covered employees for the agreement under subitem (9), viewed as a group, would be better off overall if the agreement applied to the employees than if the relevant modern award or awards referred to in that subitem applied to the employees.\n\n(9) For the purposes of subitem (8), the award covered employees for an enterprise agreement made during the bridging period are the employees who:\n\n (b) at the time an application is made under subitem (4) in relation to the agreement, are covered by one or more modern awards (the relevant modern awards) that:\n\n (c) are employed at that time by an employer who is covered by the agreement and by one or more of the relevant modern awards.\n\n (b) the FWC has not made a decision on the application at a time (the critical time) that is immediately before what would (apart from this subitem) be the end of the grace period for the agreement;\n\n (e) if the FWC’s decision on the application is to refuse to extend the default period for the agreement under subitem (6)—the FWC must extend the default period until the end of:\n\n (ii) if the refusal decision specifies a later day that is not more than 14 days after the day the refusal decision is made—that later day.\n\n(11) If an enterprise agreement made during the bridging period ceases to operate in accordance with subitem (1), that does not affect:\n\n(12) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the agreement had not ceased to operate.\n\nThe following provisions of Part 8 of the WR Act continue to apply in relation to the collective agreement on and after the WR Act repeal day:\n\n (g) Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void);\n\nNote 1: The general effect of this provision is to preserve the Part 8 rules about lodgment, the no‑disadvantage test and prohibited content for collective agreements made before the WR Act repeal day, subject to the modifications set out in this Division. The rules about variation and termination of such collective agreements, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments).\n\nNote 2: The rules requiring a collective agreement to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).\n\n (a) the Workplace Authority Director must not consider whether the agreement passes the no‑disadvantage test under section 346D of the WR Act, as that section continues to apply because of item 3, unless:\n (i) the agreement is lodged before the end of the period (the cut‑off period) of 14 days referred to in subsection 342(1) or (2) of that Act; and\n (c) subsection 342(3) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 3, does not apply to the lodgment of the agreement.\n\nNote: The general effect of this provision is that unlodged collective agreements (other than union collective agreements) must be lodged within 14 days of being made in order to come into operation. Unlodged union collective agreements must have been approved before the WR Act repeal day and be lodged within 14 days of that approval in order to come into operation. However, late lodgment will not give rise to a civil remedy.\n\n(2) If the collective agreement is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the agreement cannot come into operation because it was lodged after the end of the cut‑off period, to the following:\n\n (b) if the agreement is a union collective agreement or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1) of the WR Act—the organisation or organisations that would have been covered by the agreement if it had come into operation.\n\n5 Modification—limits on variation of a collective agreement that operates from approval for the purpose of passing the no‑disadvantage test\n\n(1) Despite item 3, if the collective agreement is a workplace agreement that operates from approval, the rules in this item also apply.\n\nNote: The general effect of this item is that a collective agreement that operates from approval can only be varied for the purpose of passing the no‑disadvantage test if a variation for that purpose is lodged within a specified period.\n\n (a) a notice under section 346M of the WR Act about whether the agreement passes the no‑disadvantage test has not been given; or\n (b) a notice under subsection 346M(2) of the WR Act stating that the agreement does not pass the no‑disadvantage test has been given but a variation of the agreement, for the purposes of passing that test, has not been made; or\n (c) a notice under subsection 346M(2) of the WR Act stating that the agreement does not pass the no‑disadvantage test has been given and a variation of the agreement, for the purposes of passing that test, has been made but has not been lodged;\n\nthen Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 3, has effect in relation to the collective agreement subject to subitems (3) and (5).\n\n(3) Section 346N of the WR Act, as that section continues to apply because of item 3, has effect in relation to the agreement, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:\n\n(4) The Workplace Authority Director may extend the period referred to in paragraph (3)(b) in relation to a particular agreement in circumstances prescribed by the regulations.\n\n(5) Section 346Q of the WR Act, as that section continues to apply because of item 3, has effect in relation to the agreement, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the agreement as varied passes the no‑disadvantage test unless the variation is lodged within the period referred to in paragraph (3)(a) or (b).\n\nThis Division applies to a variation of a collective agreement under Division 8 of Part 8 of the WR Act, if the variation is made before the WR Act repeal day.\n\nThe following provisions of Part 8 of the WR Act continue to apply in relation to the variation on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules about lodgment and the no‑disadvantage test for variations under Division 8 made before the WR repeal day, subject to the modifications set out in this Division.\n\n (a) the Workplace Authority Director must not consider whether the varied agreement passes the no‑disadvantage test under section 346D of the WR Act, as that section continues to apply because of item 7, unless:\n (i) the variation is lodged before the end of the period (the cut‑off period) of 14 days referred to in subsection 375(1) of that Act; and\n (ii) for a variation of a union collective agreement or a union greenfields agreement—the variation was approved before the WR Act repeal day; and\n (b) subsection 375(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 7, does not apply to the variation.\n\nNote: The general effect of this provision is that unlodged variations of collective agreements must be lodged within 14 days of being approved in order to come into operation. Unlodged variations of union collective agreements and union greenfields agreements must also have been approved before the WR Act repeal day. However, late lodgment will not give rise to a civil remedy.\n\n(2) If the variation is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the variation cannot come into operation because it was lodged after the end of the cut‑off period, to the following:\n\n (b) if the agreement is a union collective agreement or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1) of the WR Act—the organisation or organisations covered by the agreement.\n\n (a) a notice under section 346M of the WR Act about whether the agreement as varied passes the no‑disadvantage test has not been given in relation to the variation; or\n (b) a notice under subsection 346M(2) of the WR Act stating that the agreement as varied does not pass the no‑disadvantage test has been given in relation to the variation, but a variation, for the purposes of passing that test, has not been made; or\n (c) a notice under subsection 346M(2) of the WR Act stating that the agreement as varied does not pass the no‑disadvantage test has been given in relation to the variation and a variation of the agreement, for the purposes of passing that test, has been made but has not been lodged;\n\nthen Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 7, has effect in relation to the variation, on and after the WR Act repeal day, subject to subitems (2) and (4).\n\n(2) Section 346N of the WR Act, as that section continues to apply because of item 7, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:\n\n (ii) the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the agreement as varied; or\n\n(3) The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular variation in circumstances prescribed by the regulations.\n\n(4) Section 346Q of the WR Act, as that section continues to apply because of item 7, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the agreement as varied passes the no‑disadvantage test unless the variation for the purposes of passing that test is lodged within the period referred to in paragraph (2)(a) or (b).\n\n(1) This item applies to a termination of a collective agreement, if the termination has been approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act before that day.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of workplace agreements approved before the WR Act repeal day, subject to the modifications set out in item 11\\. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n (a) the termination does not come into operation unless it is lodged before the end of the 14 day period (the cut‑off period) referred to in subsection 388(1) of the WR Act as that subsection continues to apply because of item 10; and\n (b) subsection 388(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 10, does not apply to the termination.\n\nNote: The general effect of this provision is that unlodged terminations must be lodged within 14 days of being made in order to come into operation. However, late lodgment will not give rise to a civil remedy.\n\n(2) If the termination is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because it was lodged after the end of the cut‑off period, to the following:\n\n (b) if the agreement is a union collective agreement or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1) of the WR Act—the organisation or organisations covered by the agreement.\n\n12 Unilateral termination of collective agreement in manner provided for in agreement general rule—continued application of lodgment provisions\n\n(1) This item applies to a termination of a collective agreement if a declaration to terminate the agreement is lodged under subsection 392(2) of the WR Act (which deals with unilateral termination in the manner provided in the agreement) before the WR Act repeal day.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to unilateral terminations of workplace agreements, if a declaration to terminate the agreement has been lodged before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n(1) This item applies to a collective agreement in relation to which an application has been made under subsection 397A(2) of the WR Act (which deals with termination by the Commission) before the WR Act repeal day.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the agreement on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to applications for terminations of workplace agreements by the Commission made before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the ITEA on and after the WR Act repeal day:\n\n (a) Divisions 1 to 5A of Part 8 (which deal with the making and lodgment of workplace agreements and the no‑disadvantage test);\n (d) Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void);\n\nNote 1: The general effect of this provision is to preserve the Part 8 rules about lodgment, the no‑disadvantage test and prohibited content in relation to ITEAs made before the WR Act repeal day, subject to the modification set out in item 15\\. The rules about making ITEAs after that day are contained in Division 7 of this Part. The rules about variation and termination of ITEAs after that day, and some other rules, are contained in Schedule 3 (which deals with transitional instruments).\n\nNote 2: The rules requiring an ITEA to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).\n\n15 Modification—limits on variation of an ITEA that operates from approval for the purpose of passing the no‑disadvantage test\n\n(1) Despite item 14, if the ITEA is a workplace agreement that operates from approval, the rules in this item also apply.\n\nNote: The general effect of this item is that an ITEA that operates from approval can only be varied for the purpose of passing the no‑disadvantage test if a variation for that purpose is lodged within a specified period.\n\n (a) a notice under section 346M of the WR Act about whether the ITEA passes the no‑disadvantage test has not been given; or\n (b) a notice under subsection 346M(2) of the WR Act stating that the ITEA does not pass the no‑disadvantage test has been given but a variation of the ITEA, for the purposes of passing that test, has not been made; or\n (c) a notice under subsection 346M(2) of the WR Act stating that the ITEA does not pass the no‑disadvantage test has been given and a variation of the ITEA, for the purposes of passing that test, has been made but has not been lodged;\n\nthen Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 14, has effect in relation to the collective agreement subject to subitems (3) and (5).\n\n(3) Section 346N of the WR Act, as that section continues to apply because of item 14, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:\n\n(4) The Workplace Authority Director may extend the period referred to in paragraph (3)(a) in relation to a particular ITEA in circumstances prescribed by the regulations.\n\n(5) Section 346Q of the WR Act, as that section continues to apply because of item 14, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the no‑disadvantage test unless the variation is lodged within the period referred to in paragraph (3)(a) or (b).\n\n(1) This item applies to a variation of an ITEA under Division 8 of Part 8 of the WR Act, if the variation is made before the WR Act repeal day.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the variation on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules about lodgment and the no‑disadvantage test for variations made before the WR Act repeal day of ITEAs, subject to the modification specified in item 17.\n\n (a) a notice under section 346M of the WR Act about whether the ITEA as varied passes the no‑disadvantage test has not been given in relation to the variation; or\n (b) a notice under subsection 346M(2) of the WR Act stating that the ITEA as varied does not pass the no‑disadvantage test has been given in relation to the variation, but a variation, for the purposes of passing that test, has not been made; or\n (c) a notice under subsection 346M(2) of the WR Act stating that the ITEA as varied does not pass the no‑disadvantage test has been given in relation to the variation and a variation of the ITEA, for the purposes of passing that test, has been made but has not been lodged;\n\nthen Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 16, has effect in relation to the variation, on and after the WR Act repeal day, subject to subitems (2) and (4).\n\n(2) Section 346N of the WR Act, as that section continues to apply because of item 16, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N before the end of:\n\n(3) The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular variation in circumstances prescribed by the regulations.\n\n(4) Section 346Q of the WR Act, as that section continues to apply because of item 16, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the no‑disadvantage test unless the variation for the purposes of passing that test is lodged within the period referred to in paragraph (2)(a) or (b).\n\n(1) This item applies to a termination of an ITEA, if the termination is approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act by that time.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs approved before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n(1) This item applies to a termination of an ITEA if a declaration to terminate the ITEA is lodged under subsection 392(2) of the WR Act (which deals with unilateral termination in the manner provided in the ITEA) before the WR Act repeal day.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs, if a declaration to terminate is lodged before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n20 Continued application of lodgment provisions where termination by written notice is given before the WR Act repeal day and lodged within 120 days\n\n(1) This item applies to an ITEA, if notice to terminate the ITEA is given in accordance with subsection 393(4) of the WR Act (which deals with unilateral termination by giving written notice) before the WR Act repeal day.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply on and after the WR Act repeal day in relation to the termination of the ITEA:\n\n (b) sections 393, 394, 395, 396, 397, 397A, 398 and 399A (which deal with matters relating to lodgment of terminations, etc.);\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs by written notice given before the WR Act repeal day, subject to the modifications set out in subitems (3) to (6). Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n(3) A declaration may only be lodged, in relation to the ITEA under subsection 393(2) of the WR Act, as that subsection continues to apply because of subitem (2), before the end of the period (the cut‑off period) of 120 days beginning on the WR Act repeal day.\n\n(4) Section 396 of the WR Act, as that section continues to apply because of subitem (2), does not apply in relation to the ITEA if the declaration is not lodged before the end of the cut‑off period.\n\n(5) Despite subsection 381(2) and section 398 of the WR Act, as those provisions continue to apply because of subitem (2), the termination of the ITEA does not take effect if the declaration is not lodged before the end of the cut‑off period.\n\n(6) If the termination is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because the declaration was lodged after the end of the cut‑off period, to the following:\n\n(1) Despite the repeal of Part 8 of the WR Act, an ITEA may, during the bridging period, be made under Division 2 of that Part as if that Part had not been repealed.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the ITEA on and after the WR Act repeal day:\n\n (a) Divisions 1 to 5A of Part 8 (which deal with the making and lodgment of workplace agreements and the no‑disadvantage test), other than sections 346ZJ and 346ZK (which deal with dismissing an employee if an agreement does not pass that test);\n (d) Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void);\n\nNote 1: The general effect of this provision is to permit ITEAs to be made during the bridging period and to preserve the Part 8 rules about lodgment, the no‑disadvantage test and prohibited content, subject to the modifications set out in this Division. The rules about variation and termination of ITEAs on and after the WR Act repeal day, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments).\n\nNote 2: The rules requiring an ITEA to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).\n\n(4) If the ITEA is lodged after the end of the bridging period, the Workplace Authority Director must give a written notice, stating that the ITEA cannot come into operation because the ITEA was lodged after the end of the bridging period, to the following:\n\n(2) For the purposes of the application to the ITEA of section 346E of the WR Act, as that section continues to apply because of item 21, enterprise agreements and workplace determinations are taken to be specified in subsection 346E(3) (in addition to the other instruments so specified).\n\n(3) For the purposes of the application to the ITEA of section 346ZB of the WR Act, as that section continues to apply because of item 21, enterprise agreements and workplace determinations (within the meaning of the FW Act) are taken to be specified in subsection 346ZB(5) (in addition to the other instruments so specified).\n\n23 Modification—limits on variation of an ITEA that operates from approval for the purpose of passing the no‑disadvantage test\n\n(1) Despite item 21, if the ITEA is a workplace agreement that operates from approval, the rules in this item also apply.\n\n(2) Section 346N of the WR Act, as that section continues to apply because of item 21, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:\n\n (a) the period of 30 days beginning on the seventh day after the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the ITEA; or\n\n(3) The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular ITEA in circumstances prescribed by the regulations.\n\n(4) Section 346Q of the WR Act, as that section continues to apply because of item 21, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the no‑disadvantage test unless the variation is lodged within the period referred to in paragraph (2)(a) or (b).\n\n(2) For the purposes of the application to the ITEA of subsection 400(5) of the WR Act, as that subsection continues to apply because of item 21, the circumstance referred to in subsection 400(6) of that Act is taken to include a reference to the circumstance referred to in subitem 25(2).\n\n(1) Despite section 342 of the FW Act, a prospective employer does not contravene subsection 340(1) of that Act if, during the bridging period, the person refuses to employ a person merely because the person requires another person to make an ITEA as a condition of engagement, other than in the circumstance referred to in subitem (2).\n\n(1) This item applies if the Workplace Authority Director is required, because of the application of this Schedule to a workplace agreement, to decide, on or after the WR Act repeal day, whether the workplace agreement passes the no‑disadvantage test.\n\n(2) Division 7A of Part 11 of the WR Act continues to apply, in relation to the workplace agreement, as if that Division had not been repealed, with the following modifications:\n\n (a) references to a workplace agreement binding an employer or an employee are taken to include references to a workplace agreement that is a transitional instrument covering an employer or employee;\n (b) references to sections 583 and 585 of the WR Act (other than in section 601D) are taken to include references to section 313 of the FW Act;\n (c) enterprise agreements and workplace determinations (within the meaning of the FW Act) are taken to be specified in the definition of instrument in subsection 601D(5) (in addition to the other instruments so specified);\n (d) the reference in subparagraph 601G(1)(b)(i) to the instrument described in paragraph 601D(2)(a) is taken to include a reference to the instrument described in paragraph 27(2)(a) of this Schedule;\n (e) the reference in subparagraph 601G(1)(b)(ii) to section 598A or clause 27A of Schedule 9 is taken to include a reference to item 9 of Schedule 11;\n (f) the reference in paragraph 601H(1)(b) to the time of transmission is taken to include a reference to the time when the new employer first employs a transferring employee;\n (g) paragraph 601H(2)(d) does not apply if the workplace agreement applies to the new employer because of the operation of section 313 of the FW Act.\n\n27 Employment arrangements if there is a transfer of business and a workplace agreement ceases to operate because it does not pass the no‑disadvantage test\n\n (a) on a particular day (the cessation day), a workplace agreement (the original agreement) ceases to operate under section 346W or 346ZA of the WR Act (as those provisions continue to apply because of the operation of this Schedule) because the original agreement does not pass the no‑disadvantage test; and\n (b) during the period beginning when the original agreement was lodged and ending on the cessation day, the original agreement started to cover a new employer and a transferring employee or transferring employees because of the operation of section 313 of the FW Act.\n\n(2) Despite subsection 346ZB(2) of the WR Act (as that provision continues to apply because of the operation of this Schedule), the new employer and the transferring employee or transferring employees who were covered by the original agreement immediately before the cessation day are taken, on and from the cessation day, to be covered by:\n\n (i) that, but for the original agreement having come into operation, would have covered the old employer and the transferring employee or transferring employees immediately before the termination of the employment of the transferring employee or transferring employees with the old employer; and\n (ii) that was capable of covering the new employer after the time the transferring employee or transferring employees became employed by the new employer under Schedule 11; or\n (b) if there is no instrument of a kind referred to in paragraph (a) in relation to the old employer and one or more of the transferring employees—the designated award (within the meaning of Division 5A of Part 8 of the WR Act) in relation to that employee or those employees.\n\n(3) If, but for the original agreement having come into operation, a redundancy provision would, immediately before the termination of the employment of a transferring employee or transferring employees with the old employer, have applied to the old employer in relation to a transferring employee or transferring employees to who the original agreement applied because of a preservation item (within the meaning of item 9 of Schedule 11) relating to the agreement, the redundancy provision is taken:\n\n (a) to apply to the new employer under item 9 of Schedule 11, on and from the cessation day, in relation to the transferring employee or transferring employees; and\n (b) to continue to so apply to the employer, in relation to the transferring employee or transferring employees, until the earliest of the following:\n (i) the end of the period of 24 months beginning on the first day on which the old employer became covered, under the preservation item, by the redundancy provision;\n (iii) the time when an enterprise agreement, workplace determination or ITEA starts to apply to the transferring employee or transferring employees and the new employer.\n\n(4) If the original agreement is a workplace agreement as varied under Division 8 of Part 8 of the WR Act, the workplace agreement as in force before the variation was lodged is, despite section 346ZE of that Act (as that section continues to apply because of the operation of this Schedule), capable of being an instrument described in paragraph (2)(a).\n\n (a) if the termination of the employment of the transferring employee or transferring employees with the old employer occurred before the WR Act repeal day—any of the following:\n (b) if the termination of the employment of the transferring employee or transferring employees with the old employer occurred on or after the WR Act repeal day—any of the following:\n\nTo avoid doubt, a reference in this Part to a variation under Division 8 of Part 8 of the WR Act does not include a reference to a variation made for the purposes of passing the no‑disadvantage test.\n\nDespite any other provision of Division 5A of Part 8 of the WR Act, as that Division continues to apply because of this Schedule in relation to:\n\nonly one variation for the purposes of passing the no‑disadvantage test of the agreement or variation may be lodged with the Workplace Authority Director on or after the WR Act repeal day.\n\nTo avoid doubt, sections 324A, 368A and 381A of the WR Act continue to have effect for the purposes of a provision of the WR Act that continues to apply because of this Act.\n\n(2) Despite the repeal of section 506 of the WR Act, Subdivision B of Division 7 of Part 8 of that Act (which deals with prohibited content), other than section 358 (which deals with prohibited content being void), continues to apply in relation to the workplace determination on and after the WR Act repeal day as if that section had not been repealed.\n\nNote 1: The general effect of this provision is to preserve the Part 8 rules about prohibited content for workplace determinations made before the WR Act repeal day. The rules about variation and termination of such workplace determinations, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments).\n\nNote 2: The rules about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).\n\n(1) This item applies to a termination of a workplace determination, if the termination has been approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act before that day.\n\nNote: Under subsection 506(3) of the WR Act, a workplace determination can only be terminated under Subdivision B of Division 9 of Part 8 of that Act after the determination has passed its nominal expiry date.\n\n(2) Despite the repeal of section 506 of the WR Act, the following provisions of that Act continue to apply in relation to the termination on and after the WR Act repeal day, as if that section had not been repealed:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of workplace determinations approved before the WR Act repeal day, subject to the modification set out in item 32\\. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n (a) the termination does not come into operation unless it is lodged before the end of the 14 day period (the cut‑off period) referred to in subsection 388(1) of the WR Act as that subsection continues to apply because of item 31; and\n (b) subsection 388(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 31, does not apply to the termination.\n\nNote: The general effect of this provision is that unlodged terminations must be lodged within 14 days of being made in order to come into operation. However, late lodgment will not give rise to a civil remedy.\n\n(2) If the termination is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because it was lodged after the end of the cut‑off period, to the following:\n\nunlodged termination, in relation to a workplace determination, means a termination of a workplace determination approved in accordance with section 386 of the WR Act, but not lodged with the Workplace Authority Director under section 389 of that Act as at the WR Act repeal day.\n\n(1) This item applies to a workplace determination in relation to which an application has been made under subsection 397A(2) of the WR Act (which deals with termination by the Commission) before the WR Act repeal day.\n\n(2) Despite the repeal of section 506 of the WR Act, the following provisions of that Act continue to apply in relation to the workplace determination on and after the WR Act repeal day as if that section had not been repealed:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to applications for terminations of workplace determinations by the Commission made before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\nTo avoid doubt, section 381A of the WR Act continues to apply for the purposes of a provision of that Act that continues to apply because of this Part.\n\nFWA may, before the start of the period referred to in item 2, exercise powers for the purpose of obtaining information to be taken into account in its first annual wage review. Powers that may be exercised include:\n\n(1) In its first annual wage review, FWA does not have to set a full range of special national minimum wages covering all the classes of employees referred to in paragraph 294(1)(b) of the FW Act.\n\n(2) However, FWA must set a special national minimum wage for a class or subclass of those employees in its first annual wage review if the transitional national minimum wage order sets a special national minimum wage order for those employees.\n\nNote: The transitional national minimum wage order is taken to have been made on the FW (safety net provisions) commencement day: see item 12.\n\n(3) If FWA does not set a full range of special national minimum wages in its first annual wage review, the President of FWA must establish a process for the setting of the remaining special national minimum wages in FWA’s second annual wage review.\n\n(5) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (4).\n\n(1) Division 2 (other than as provided in subitem (2)) of Part 7 of the WR Act continues to apply on and after the WR Act repeal day in accordance with this Part. That Division as it continues to apply is the continued AFPCS wages provisions.\n\nNote 1: Part 7 of the WR Act contains the Australian Fair Pay and Conditions Standard. Schedule 4 provides for the continued application of the rest of the Standard during the bridging period. The effect of this Division is not limited just to the bridging period.\n\nNote 2: Schedule 3 provides for the continued application of the rules about the interaction between transitional instruments and the Australian Fair Pay and Conditions Standard.\n\n (a) subsections 182(1) and (2), and Subdivisions H, I, L and M, cease to apply when there are no longer any employees covered by transitional APCSs (see also item 11);\n (b) subsections 182(3) and (4), section 185 and Subdivision G cease to apply at the end of the bridging period (see also item 12;\n\n(3) Without limiting subitem (1) (but subject to subitem (2)), each of the following, as it was under Division 2 of Part 7 of the WR Act immediately before the WR Act repeal day, continues to exist, as a transitional minimum wage instrument, in accordance with this Part on and after that day:\n\n(4) Despite item 6 of Schedule 2, the following provisions of Part 21 of the WR Act do not apply in relation to the continued AFPCS wages provisions:\n\n(1) The provisions of the WR Act that continue to apply because of item 5 have effect as if a reference in the provisions to a workplace agreement included a reference to an enterprise agreement.\n\n (a) a transitional APCS covers an employee if, under sections 204 and 205 of the continued AFPCS wages provisions, the APCS covers the employment of the employee;\n (b) the transitional standard FMW covers an employee if, under section 194 of the continued AFPCS wages provisions, the FMW for the employee is the standard FMW;\n (c) a transitional special FMW covers an employee if, under section 194 of the continued AFPCS wages provisions, the FMW for the employee is that special FMW;\n (d) the transitional default casual loading covers an employee who is described in subsection 185(1) of the continued AFPCS wages provisions.\n\n(2) However, a transitional APCS does not cover an employee (or an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act).\n\n(1) Despite anything in the continued AFPCS wages provisions, a transitional minimum wage instrument cannot be varied or terminated (or otherwise brought to an end) except as referred to in one of the following subitems.\n\n(2) The AFPC can exercise its wage‑setting powers to vary a transitional minimum wage instrument as necessary depending on the outcome of the AFPC’s final wage review under the WR Act. Those exercises of wage‑setting powers take effect at the time determined by the AFPC (which may be a time after the AFPC has ceased to exist).\n\n (a) item 3 of Schedule 5 (which deals with variation and termination of transitional APCSs to take account of the Part 10A award modernisation process); or\n (b) item 9 of Schedule 6 (which deals with variation and termination of transitional APCSs to take account of the enterprise instrument modernisation process).\n\n9 No loss of accrued rights or liabilities when transitional minimum wage instrument terminates or ceases to cover an employee\n\n (a) any right or liability that a person acquired, accrued or incurred before the transitional minimum wage instrument terminated or ceased to cover the person; or\n\n(2) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the transitional minimum wage instrument had not terminated or ceased to cover the person.\n\n(2) For that purpose, Division 3 of Part 2‑6 of the FW Act (other than section 292) applies to a transitional APCS in the same way as it applies to a modern award.\n\n(1) On the FW (safety net provisions) commencement day, the transitional standard FMW, any transitional special FMWs and the transitional default casual loading cease to cover any employees. Subsections 182(3) and (4), and section 185, of the continued AFPCS wages provisions also cease to cover any employees.\n\n(2) On the FW (safety net provisions) commencement day, FWA is taken to have made a national minimum wage order (the transitional national minimum wage order) under Part 2‑6 of the FW Act:\n\n (ii) requires employers to pay employees to whom the national minimum wage applies (see subsection 294(3) of the FW Act) a base rate of pay that at least equals the national minimum wage; and\n (i) sets a special national minimum wage for that class of employees that is the same as the transitional special FMW immediately before that day; and\n (ii) requires employers to pay employees to whom that special national minimum wage applies (see subsection 294(4) of the FW Act) a base rate of pay that at least equals that special national minimum wage; and\n (i) sets the casual loading for award/agreement free employees at the rate that was the transitional default casual loading immediately before that day; and\n (ii) requires employers to pay, to award/agreement free employees who are casual employees, a casual loading that at least equals the casual loading for award/agreement free employees (as applied to the employees’ base rates of pay).\n\nNote: The requirement in paragraph 294(1)(b) of the FW Act that a national minimum wage order must set special national minimum wages for all award/agreement free employees in the classes referred to in that paragraph does not apply to the transitional national minimum wage order.\n\n(3) The hours for which a rate set in the transitional national minimum wage order is payable are the same as the hours for which the transitional standard FMW, transitional special FMW or transitional default casual loading (as the case requires) would have been payable under the continued AFPCS wages provisions.\n\n13 Base rate of pay under agreement‑based transitional instrument must not be less than the modern award rate or the national minimum wage order rate etc.\n\nthe base rate of pay payable to the employee under the transitional instrument (the instrument rate) must not be less than the base rate of pay that would be payable to the employee under the modern award (the award rate) if the modern award applied to the employee.\n\n(2) If the instrument rate is less than the award rate, the transitional instrument has effect in relation to the employee as if the instrument rate were equal to the award rate.\n\n (c) a national minimum wage order would, if the employee were an award/agreement free employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;\n\nthe base rate of pay payable to the employee under the transitional instrument (the instrument rate) must not be less than the employee’s order rate.\n\n(4) If the instrument rate is less than the employee’s order rate, the transitional instrument has effect in relation to the employee as if the instrument rate were equal to the employee’s order rate.\n\n(1) On application by an employer to whom a transitional instrument applies, the FWC may make a determination the effect of which is to phase‑in the effect of increases in base rates of pay that would otherwise take effect on a particular day because of:\n\nNote: Under subitem 22(2) of Schedule 3, AFPCS interaction rules that provide for instruments to prevail over the Australian Fair Pay and Conditions Standard stop applying when the bridging period ends. That may result in an employee becoming entitled to a higher rate of pay under a transitional APCS.\n\n(2) The FWC must not make a determination under this item in relation to an employer unless it is satisfied that the determination is necessary to ensure the ongoing viability of the employer’s enterprise.\n\n(3) Item 13, and subitem 22(2) of Schedule 3, have effect in relation to an employer subject to any determinations the FWC makes under this item.\n\nthe base rate of pay payable to the employee under the enterprise agreement (the agreement rate) must not be less than the base rate of pay that is payable to the employee under the transitional minimum wage instrument (the instrument rate).\n\n(2) If the agreement rate is less than the instrument rate, the enterprise agreement has effect in relation to the employee as if the agreement rate were equal to the instrument rate.\n\nNote: If a transitional instrument applies to an employee who is covered by a transitional minimum wage instrument, then (subject to the continued application of the AFPCS interaction rules) the employee must be paid at least the rate required by the continued AFPCS wages provisions.\n\n (b) a national minimum wage order would, if the employee were an award/agreement free employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;\n\nthe base rate of pay payable to the employee under the Division 2B State award (the award rate) must not be less than the employee’s order rate.\n\n(2) If the award rate is less than the employee’s order rate, the Division 2B State award has effect in relation to the employee as if the award rate were equal to the employee’s order rate.\n\n17 Base rate of pay under Division 2B State employment agreement must not be less than Division 2B State award rate or modern award rate, or the national minimum wage order rate etc.\n\nthe base rate of pay payable to the employee under the agreement (the agreement rate) must not be less than the base rate of pay that would be payable to the employee under the Division 2B State award or the modern award (the award rate) if the Division 2B State award or the modern award applied to the employee.\n\n(2) If the agreement rate is less than the award rate, the Division 2B State employment agreement has effect in relation to the employee as if the agreement rate were equal to the award rate.\n\n (c) a national minimum wage order would, if the employee were an award/agreement free employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;\n\nthe base rate of pay payable to the employee under the Division 2B State employment agreement (the agreement rate) must not be less than the employee’s order rate.\n\n(4) If the agreement rate is less than the employee’s order rate, the Division 2B State employment agreement has effect in relation to the employee as if the agreement rate were equal to the employee’s order rate.\n\n(1) On application by an employer to whom a Division 2B State instrument applies, the FWC may make a determination the effect of which is to phase‑in the effect of increases in base rates of pay that would otherwise take effect on a particular day because of item 16 or 17.\n\n(2) The FWC must not make a determination under this item in relation to an employer unless it is satisfied that the determination is necessary to ensure the ongoing viability of the employer’s enterprise.\n\n (b) the transitional national minimum wage order, or another national minimum wage order, is in operation throughout the period; and\n (c) the employee is an award/agreement free employee throughout the period, and no Division 2B State instrument applies to the employee at any time in the period; and\n (d) the amount that is payable to the employee in relation to the period under the national minimum wage order is less than the amount (the State minimum amount) that would be payable to the employee in relation to the period under the State minimum wages instruments (see subitem (4)).\n\n(2) The national minimum wage order has effect, in relation to the employee and the period, as if it instead required the employer to pay the employee the State minimum amount.\n\n(3) In working out the State minimum amount, any increases of rates (whether because of indexation or otherwise) that would have taken effect after the Division 2B State referral commencement under State minimum wages instruments are to be disregarded.\n\n(4) The State minimum wages instruments, in relation to the employee, are orders, decisions or rulings (however described), as in force immediately before the Division 2B referral commencement:\n\n (b) that provide for employees to be paid a minimum wage or a minimum rate of remuneration, or that affect the entitlement of such employees to be paid a minimum wage or a minimum rate of remuneration.\n\n (a) provide for how amounts referred to in paragraph (1)(d) are to be worked out (for example, in relation to casual employees); or\n (c) provide that certain orders, decisions or rulings (however described) made by a State industrial body are, or are not, State minimum wages instruments as defined in subitem (4).\n\n(1) In an annual wage review, the FWC may make a determination varying terms of a Division 2B State award relating to wages.\n\n(2) For that purpose, Division 3 of Part 2‑6 of the FW Act (other than section 292) applies to terms of a Division 2B State award relating to wages in the same way as it applies to a modern award.\n\n(1) This item applies in relation to a decision whether to make an equal remuneration order under Part 2‑7 of the FW Act during the period:\n\n(2) In deciding whether to make the equal remuneration order, FWA must take into account the outcome of the AFPC’s final wage review under the WR Act.\n\n(1) A term of an instrument or order referred to in subitem (2) has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an equal remuneration order that:\n\nNote: A term of a modern award, an enterprise agreement or an FWA order also has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an equal remuneration order that is made under Part 2‑7 of the FW Act and applies to the employee (see section 306 of the FW Act).\n\n(2) A WR Act equal remuneration order may be varied or revoked by the FWC under subsections 603(1) and (2) of the FW Act as if it were an order made under Part 2‑7 of the FW Act.\n\n(1) A term of an instrument or order referred to in subitem (2) has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an order that:\n\n (a) at a time (the time of transmission), a person (the new employer) became the successor, transmittee or assignee of the whole, or a part, of a business of another person (the old employer); and\n\n(2) The following provisions of Part 11 of the WR Act (as modified by items 5 and 6 of this Schedule) continue to apply in relation to the transmission of business on and after the WR Act repeal day:\n\n (c) Division 4 (which deals with the transmission of collective agreements) (other than subsections 585(2), (3) and (5) and subsections 588(1) and (2));\n\n (a) a reference in those provisions to an award is taken to include a reference to a State reference transitional award; and\n\n(3) The following provisions of Schedule 9 to the WR Act (as modified by items 5 and 6 of this Schedule) continue to apply in relation to the transmission of business on and after the WR Act repeal day:\n\n (d) Part 4 (which deals with the transmission of pre‑reform certified agreements) (other than subclauses 10(4), (5), (6) and (8) and clause 12);\n (e) Part 5 (which deals with the transmission of State transitional instruments) (other than subclauses 19(2), (3) and (5) and clause 21);\n\n(1) If the new employer is covered by a transitional instrument in relation to a transferring employee because of a provision of Part 11 of the WR Act or Schedule 9 to that Act, the new employer remains covered by the transitional instrument, by force of this subitem, until whichever of the following first occurs:\n\n (b) the old employer was not an employer within the meaning of subsection 6(1) of the WR Act immediately before the time of transmission; and\n (c) the new employer was an employer within the meaning of subsection 6(1) of the WR Act at the time of transmission; and\n (d) the transmission of business occurs as part of the process of the employer in relation to the business being transferred becoming an employer within the meaning of subsection 6(1) of the WR Act.\n\n(3) If a transferring employee’s employment with the new employer is covered by a transitional APCS because of Division 6 of Part 11 of the WR Act, the transferring employee’s employment with the new employer remains covered by that APCS until whichever of the following first occurs:\n\n(4) If a redundancy provision applies to the new employer and a transferring employee because of Division 6A of Part 11 of the WR Act or Part 5A of Schedule 9 to that Act, the redundancy provision continues to apply to the new employer and the transferring employee until the earliest of the following:\n\n (a) the end of the period of 24 months from the time that the agreement that contained the redundancy provision ceased operating;\n\nIf:\n\n (a) a redundancy provision applies to the new employer and a transferring employee because of Division 6A of Part 11 of the WR Act or Part 5A of Schedule 9 to that Act; and\n (c) the redundancy provision is detrimental to the transferring employee, in any respect, when compared to the scheme in the modern award;\n\nthen, despite subsection 598A(2) of the WR Act or subclause 27A(2) of Schedule 9 to that Act (as the case requires), the scheme in the modern award prevails over the redundancy provision, to the extent that the redundancy provision is detrimental to the transferring employee.\n\n(1) Subsection 585(1) of the WR Act (as it continues to apply because of subitem 2(2) of this Schedule) and subitem 3(1) of this Schedule (to the extent that it applies in relation to a transitional instrument that is a collective agreement) have effect subject to any order of the Commission under section 590 of the WR Act (as that section continues to apply because of subitem 2(2) of this Schedule).\n\n(2) Subsection 595(1) of the WR Act (as it continues to apply because of subitem 2(2) of this Schedule) and subitem 3(1) of this Schedule (to the extent that it applies in relation to a transitional instrument that is an award or a State reference transitional award) have effect subject to any order of the Commission (other than an order that would have the effect of extending the transmission period).\n\n(3) Subclauses 10(1), (2) and (3) of Schedule 9 to the WR Act (as they continue to apply because of subitem 2(3) of this Schedule) and subitems 3(1) and (2) of this Schedule (to the extent that they apply in relation to a transitional instrument that is a pre‑reform certified agreement) have effect subject to any order of the Commission under clause 14 of Schedule 9 to the WR Act (as that clause continues to apply because of subitem 2(3) of this Schedule).\n\n(4) Subclause 19(1) of Schedule 9 to the WR Act (as it continues to apply because of subitem 2(3) of this Schedule) and subitem 3(1) of this Schedule (to the extent that it applies in relation to a transitional instrument that is a State transitional instrument) have effect subject to any order of the Commission under clause 23 of Schedule 9 to the WR Act (as that clause continues to apply because of subitem 2(3) of this Schedule).\n\n(5) The following provisions of the WR Act (as they continue to apply because of item 2 of this Schedule) are modified by omitting “before, at or after the transfer time” and substituting “not later than 90 days after the WR Act repeal day”:\n\n(1) The notes to the following provisions of the WR Act (as they continue to apply because of subitem 2(2) of this Schedule) are modified by omitting “section 605” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”:\n\n(2) Note 1 to the following provisions of the WR Act (as they continue to apply because of subitem 2(2) of this Schedule) is modified by omitting “section 605” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”:\n\n(3) The notes to the following provisions of the WR Act (as they continue to apply because of subitem 2(3) of this Schedule) are modified by omitting “clause 31” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”:\n\n(4) Note 1 to the following provisions of the WR Act (as they continue to apply because of subitem 2(3) of this Schedule) is modified by omitting “clause 31” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”:\n\nThis Division applies in relation to a transfer of business and transferable instruments that are transitional instruments.\n\n (a) there is a transfer of business from an employer (the old employer) to another employer (the new employer), as described in subsection 311(1) of the FW Act; and\n (b) the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs on or after the WR Act repeal day.\n\n (a) the termination of a transferring employee’s employment with the old employer occurs before, on or after the WR Act repeal day; or\n\n(1) Subsection 312(1) of the FW Act applies in relation to the transfer of business as if the following paragraph were added at the end:\n\n ; (d) a transitional instrument (other than a workplace agreement or a workplace determination that has not yet come into operation and other than a State reference common rule).\n\n(2) Except as provided in subitems (3) to (5), Part 2‑8 of the FW Act applies in relation to the transfer of business as if:\n\n (b) a reference to a modern award included a reference to an award‑based transitional instrument, other than a State reference common rule.\n\n(3) Paragraph (2)(a) does not apply in relation to the reference to an enterprise agreement in paragraph 312(1)(a) of the FW Act.\n\n(5) The following provisions of Part 2‑8 of the FW Act apply in relation to the transfer of business as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument:\n\n(6) Paragraph 319(1)(b) of the FW Act applies in relation to the transfer of business as if the words “(other than an individual agreement‑based transitional instrument)” were inserted after the words “a transferable instrument”.\n\n (a) there is a transfer of business from an employer (the old employer) to another employer (the new employer) as described in subsection 311(1) of the FW Act; and\n (b) the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs during the bridging period; and\n (c) immediately before the termination of an employee’s employment with the old employer, a redundancy provision applied to the old employer and the employee because of a preservation item or a previous application of this item; and\n\n (a) the termination of the transferring employee’s employment with the old employer occurs before, on or after the WR Act repeal day; or\n\n(3) The redundancy provision applies to the new employer and the transferring employee after the time the transferring employee becomes employed by the new employer.\n\n(4) Subject to subitem (5), the redundancy provision prevails over any other redundancy provision included in any other instrument that would otherwise have effect, to the extent of any inconsistency (even if the provisions in that other instrument might be more beneficial to the transferring employee).\n\n (b) the redundancy provision is detrimental to the transferring employee, in any respect, when compared to the scheme in the modern award;\n\nthen the scheme in the modern award prevails over the redundancy provision, to the extent that the redundancy provision is detrimental to the transferring employee.\n\n(6) The redundancy provision continues to apply to the new employer and the transferring employee until the earliest of the following:\n\n (a) the end of the period of 24 months from the time that the agreement that contained the redundancy provision ceased operating;\n\n (c) a provision of Division 6A of Part 11 of the WR Act or Part 5A of Schedule 9 to that Act (as those provisions continue to apply because of item 2 of this Schedule).\n\n(1) This item applies if one or more redundancy provisions apply to the new employer and a transferring employee under item 9 of this Schedule.\n\n(2) Within 28 days after the time the transferring employee becomes employed by the new employer, the new employer must take reasonable steps to give the transferring employee a written notice that complies with subitem (3).\n\n (c) specify the date on which the period of 24 months, being the period that applies in relation to the provision or provisions under paragraph 9(6)(a) of this Schedule, ends; and\n (d) state that the provision or provisions will continue to apply to the new employer and the transferring employee until that date, or an earlier date in accordance with subitem 9(6) of this Schedule.\n\n(4) Subitem (2) does not apply if an enterprise agreement, workplace determination or ITEA starts to apply to the transferring employee within 14 days after the time the transferring employee becomes employed by the new employer.\n\n(1) If the new employer gives a notice under subitem 10(2) of this Schedule to a transferring employee, the new employer must lodge a copy of the notice with FWA within the period specified in subitem (2). The copy must be lodged in accordance with subitem (3).\n\n (a) if the new employer gives a notice to a transferring employee in respect of a redundancy provision that was included in an ITEA, a pre‑reform AWA or a preserved individual State agreement—the day on which that notice is given; or\n (b) if the new employer gives one or more notices to one or more transferring employees in respect of a redundancy provision that was included in a collective agreement, a pre‑reform certified agreement or a preserved collective State agreement—the earliest day on which a notice was given.\n\nNote: This means that section 29 of the Acts Interpretation Act 1901 (to the extent that it deals with the time of service of documents) does not apply to lodgment of a notice.\n\n (a) there is a transfer of business from an employer (the old employer) to another employer (the new employer) as described in subsection 311(1) of the FW Act; and\n (b) the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs during the bridging period.\n\n (a) the termination of a transferring employee’s employment with the old employer occurs before, on or after the WR Act repeal day; or\n\n(3) Despite the repeal of Division 7 of Part 11 of the WR Act (which deals with an employee’s entitlements under the Australian Fair Pay and Conditions Standard), that Division applies in relation to the transfer of business as if:\n\n (a) a reference in the following provisions to at the time of transmission were a reference to at the time the transferring employee becomes employed by the new employer:\n (b) a reference in the following provisions to before the time of transmission were a reference to before the termination of the transferring employee’s employment with the old employer:\n (c) a reference in subparagraph 599(4)(a)(ii) to at the time of transmission were a reference to at the time of termination of the transferring employee’s employment with the old employer; and\n (d) a reference in subsection 599(4) to after the time of transmission were a reference to after the time of termination of the transferring employee’s employment with the old employer; and\n (e) a reference in subsections 600(1) and 601(1) to before the time of transmission were a reference to before the time the transferring employee becomes employed by the new employer; and\n (f) the reference to section 605 in the note to subsection 599(4) were a reference to subitem 11(5) of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.\n\nThis Division applies in relation to a transfer of business and transferable instruments that are Division 2B State instruments.\n\n (a) there is a transfer of business from an employer (the old employer) to another employer (the new employer), as described in subsection 311(1) of the FW Act; and\n (b) the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs on or after the Division 2B referral commencement.\n\n(1) Subsection 312(1) of the FW Act applies in relation to the transfer of business as if the following paragraph were added at the end:\n\n(2) Except as provided in subitems (3) to (5), Part 2‑8 of the FW Act applies in relation to the transfer of business as if:\n\n(3) Paragraph (2)(a) does not apply in relation to the reference to an enterprise agreement in paragraph 312(1)(a) or 319(1)(c) of the FW Act.\n\n(4) Paragraph (2)(b) does not apply in relation to the reference to a modern award in subsection 312(2) or paragraph 319(1)(c) of the FW Act.\n\n(5) The following provisions of Part 2‑8 of the FW Act apply in relation to the transfer of business as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement:\n\n(6) Paragraph 319(1)(b) of the FW Act applies in relation to the transfer of business as if the words “(other than an individual Division 2B State employment agreement)” were inserted after the words “a transferable instrument”.\n\n(7) If a transferable instrument that is a Division 2B State award starts to cover the new employer in relation to the transfer of business as mentioned in paragraph 313(1)(a) of the FW Act, the FWC cannot make an order under paragraph 319(1)(c) of the FW Act.\n\nFor the purposes of the operation of Part 3‑1 of the FW Act in relation to the bridging period, a reference in that Part to the National Employment Standards is taken to include a reference to the Australian Fair Pay and Conditions Standard.\n\nNote: References in Part 3‑1 of the FW Act to the National Employment Standards are found in paragraph 344(a) and subparagraph 354(1)(a)(i) of that Act.\n\n (a) a reference in that Part to an enterprise agreement included a reference to an agreement‑based transitional instrument; and\n\n (a) to an enterprise agreement are found in paragraphs 341(2)(e) and (g), paragraph 344(b), subsection 353(3) and subparagraphs 354(1)(a)(iii) and (b)(ii) of that Act; and\n\n(2) Without limiting subitem (1), paragraph 344(b) of the FW Act has effect in relation to the bridging period as if a term referred to in that paragraph were a term of an agreement‑based transitional instrument or an award‑based transitional instrument that dealt with:\n\n (e) the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave; or\n (h) paid loadings for school‑based apprentices and trainees in lieu of paid annual leave, paid annual leave or paid absence on public holidays.\n\nNote: This means, for example, that an employer is prohibited from exerting undue influence or undue pressure on an employee to have the employee agree to a cashing out of annual leave arrangement under a term of a pre‑reform certified agreement.\n\n (a) a reference in that Part to an enterprise agreement included a reference to a Division 2B State employment agreement; and\n\n (a) to an enterprise agreement are found in paragraphs 341(2)(e) and (g), paragraph 344(b), subsection 353(3) and subparagraphs 354(1)(a)(iii) and (b)(ii) of that Act; and\n\n(1) For the purposes of the application of Part 3‑2 of the FW Act in relation to the dismissal of a person before 1 January 2011, a national system employer is a small business employer if, and only if, the employer’s number of full‑time equivalent employees, worked out under this item, is less than 15 at the earlier of the following times (the notice or dismissal time):\n\nStep 1. For each person who was an employee of the employer at any time during the period of 4 weeks immediately preceding the day on which the notice or dismissal time occurs, work out the number of ordinary hours (including parts of hours) of the person as the employer’s employee during the period.\n\nStep 2. If, during the period, the person took leave to which subitem (4) applies, work out the number of hours of leave to which that subitem applies that the person took during the period.\n\nStep 3. Add together all of the numbers of ordinary hours worked out under step 1, and subtract all of the number of hours of leave worked out under step 2.\n\nStep 4. Divide by 152 the number worked out under step 3. The result is the employer’s number of full‑time equivalent employees at the notice or dismissal time.\n\n> Note: The number 152 is based on the maximum number of hours that a full‑time employee would work in 4 weeks (being 38 hours per week) excluding reasonable additional hours.\n\n(3) For the purposes of step 1 of the method statement in subitem (2), the ordinary hours of work of a person as the employer’s employee are:\n\n (a) to the extent that a modern award, enterprise agreement or workplace determination applied to the person, and the person was not a casual employee—the ordinary hours of work specified or provided for in that award, agreement or determination; or\n (b) to the extent that a transitional instrument applied to the person, and the person was not a casual employee—the person’s ordinary hours of work under item 33 of Schedule 3; or\n (ba) to the extent that a Division 2B State instrument applied to the person, and the person was not a casual employee—the person’s ordinary hours of work under item 48 of Schedule 3A; or\n (d) to the extent that no such award, agreement, determination or instrument applied to the person, and the person was not a casual employee:\n (ii) if the person was a non‑national system employee—what would have been the person’s ordinary hours of work under that section if the person had been a national system employee; or\n\n(5) For the purposes of this item, a national system employer and the employer’s associated entities are taken to be one entity.\n\n2 Employee covered by individual agreement‑based transitional instrument or individual Division 2B State employment agreement is taken not to be an employee who will be, or who is, covered by enterprise agreement in certain circumstances\n\n(1) This item applies to an employee at a particular time if, at that time, an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement covers the employee.\n\n(2) The employee is only taken, for the purposes of the FW Act, to be at that time an employee who is or will be covered by an enterprise agreement or a proposed enterprise agreement, if one of the following applies:\n\n (a) the nominal expiry date of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement has passed;\n (b) a conditional termination of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement has been made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A.\n\nNote: The main effect of this subitem is that an employee who is covered by an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement will not be able to do any of the following until the nominal expiry date of the instrument passes or a conditional termination of the instrument is made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A:\n\n(3) Despite subitem (2), an employer must give a notice of employee representational rights to an employee under section 173 of the FW Act, if the employer would have been required to give such a notice but for subitem (2). However, the notice must explain that a person can only become the employee’s bargaining representative for the agreement when one of the following occurs:\n\n (a) the nominal expiry date of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement passes;\n (b) a conditional termination of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement is made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A.\n\n3 Application for bargaining order where certain collective agreement‑based transitional instruments or collective Division 2B State employment agreements have not passed nominal expiry date\n\nDespite subsection 229(3) of the FW Act, if one or more of the following instruments apply to an employee, or employees, who will be covered by a proposed enterprise agreement:\n\n (f) not more than 90 days before the nominal expiry date of the instrument, or the latest nominal expiry date of those instruments (as the case may be); or\n (g) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) of that Act that employees approve the agreement, but before the agreement is so approved.\n\n4 Industrial action must not be taken before the nominal expiry date of agreement‑based transitional instrument or Division 2B State employment agreement\n\napply, on and after the WR Act repeal day, in relation to an agreement‑based transitional instrument or a Division 2B State employment agreement, in a corresponding way to the way that those provisions apply in relation to an enterprise agreement.\n\n(2) Subitem (1) does not apply to an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement if the employee and employer covered by the instrument or agreement have made a conditional termination in relation to the instrument or agreement under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A.\n\nNote: The effect of this provision is that an employee who is covered by an agreement‑based transitional instrument or a Division 2B State employment agreement may not organise or engage in industrial action until after the nominal expiry date of the instrument or agreement has passed. However, this does not apply to an individual agreement‑based transitional instrument, or an individual Division 2B State employment agreement, in relation to which a conditional termination has been made.\n\n(3) For the purposes of subitem (1), the reference in subsection 417(1) of the FW Act to the day on which an enterprise agreement was approved by the FWC is taken to be a reference to the day on which the agreement‑based transitional instrument or the Division 2B State employment agreement became such an instrument or agreement.\n\n (a) before the WR Act repeal day, an application was made to the Commission or the Court under either of those sections; and\n\nthe Commission or the Court, as the case requires, must consider the application on or after that day as if the WR Act had not been repealed.\n\n(2) To avoid doubt, if the Commission or the Court does not make an order, or grant an injunction, under section 496 or 497 of the WR Act, as those sections continue to apply because of subitem (1), the decision not to make the order or grant the injunction does not affect whether or not the industrial action concerned is protected industrial action under the FW Act.\n\n (a) an order made, or an injunction granted, under either of those provisions that was in operation immediately before the WR Act repeal day continues to have effect on and after that day; and\n (b) a person who, immediately before the WR Act repeal day, was required to comply with the order or injunction must not breach the order or injunction on or after the WR repeal day.\n\nNote: For the continuation of orders or injunctions to prevent or stop industrial action that were made by State industrial bodies or courts of Division 2B referring States, see item 61 of Schedule 3A.\n\nSubsections 421(1), (3) and (4) and item 15 of the table in subsection 539(2) of the FW Act have effect, on and after the WR Act repeal day, as if:\n\n (a) references in those provisions to an order under section 418 included references to an order under subsection 496(1) of the WR Act as referred to in item 5 or 6 of this Schedule; and\n (b) references in those provisions to an order under section 419 included references to an order under subsection 496(2) of the WR Act as referred to in item 5 or 6 of this Schedule; and\n (c) references in those provisions to an order under section 420 included references to an order under subsection 496(6) of the WR Act as referred to in item 5 or 6 of this Schedule.\n\n(1) This item applies if one of the following is in force in relation to a proposed collective agreement under the WR Act immediately before the WR Act repeal day:\n\n (a) an order terminating a bargaining period under subsection 430(1) of the WR Act that was made on the ground, or on grounds including the ground, that the Commission was satisfied as mentioned in subsection 430(3) of that Act;\n (b) a declaration by the Minister under section 498 of the WR Act (which deals with industrial action endangering life, etc.).\n\n(2) Divisions 3 and 5 of Part 2‑5 of the FW Act have effect, on and after the WR Act repeal day, in relation to the making of an industrial action related workplace determination, as if:\n\n (a) references to a termination of industrial action instrument included references to the order or declaration referred to in subitem (1); and\n (c) references to the bargaining representatives for a proposed enterprise agreement included references to the persons who were, immediately before the WR Act repeal day, negotiating parties for the proposed collective agreement; and\n (d) references to an employer or employee that would have been covered by a proposed enterprise agreement included references to an employer or employee, as the case requires, that would have been bound by the proposed collective agreement; and\n (e) the reference in paragraph 275(g) to bargaining representatives complying with the good faith bargaining requirements included a reference to the negotiating parties genuinely trying to reach agreement in relation to the proposed collective agreement.\n\nNote: The effect of this provision is that FWA may make an industrial action related workplace determination under the FW Act based on conduct, orders and declarations in relation to negotiations for a proposed collective agreement under the WR Act.\n\nIf:\n\n (a) before the WR Act repeal day, an application was made under Division 2 of Part 9 of the WR Act for the suspension or termination of a bargaining period; and\n\nthe Commission must not, on or after that day, deal with or continue to deal with the application, or any appeal or review relating to the application.\n\nAn order under Division 2 of Part 9 of the WR Act suspending or terminating a bargaining period is of no effect on or after the WR Act repeal day, other than as referred to in item 8.\n\nA notice of intention to take industrial action given under section 441 of the WR Act before the WR Act repeal day is of no effect on or after that day.\n\nThe Commission must not, on or after the WR Act repeal day, deal with or continue to deal with any application, appeal or review relating to a ballot order.\n\n(1) A ballot order under subsection 451(1) of the WR Act, or a ballot or authorisation under such an order, has no effect on or after the WR Act repeal day.\n\nNote: This means that no protected action ballots can be conducted or continued on or after the WR Act repeal day, and any nomination in a ballot order of a person as an authorised ballot agent, or as an authorised independent adviser, will also have no effect.\n\n","sortOrder":8},{"sectionNumber":"14","sectionType":"section","heading":"Continuation of sections 476, 477 and 479 of the WR Act for protected action ballots completed before WR Act repeal day","content":"14 Continuation of sections 476, 477 and 479 of the WR Act for protected action ballots completed before WR Act repeal day\n\nThe following provisions of Part 9 of the WR Act continue to apply in relation to a ballot completed before the WR Act repeal day as if that Part had not been repealed:\n\nNote: A person must not contravene subsection 477(1) or (4) of the WR Act as those sections continue to apply because of this item (see item 14 of Schedule 16).\n\n(1) A person who is a bargaining representative for a proposed enterprise agreement may apply to FWA for an order under this item if, before the WR Act repeal day, the person was an applicant specified in an order for a protected action ballot in relation to a proposed collective agreement.\n\n(3) FWA may order that industrial action that was authorised under section 478 of the WR Act in relation to the proposed collective agreement is taken to be authorised, in relation to the proposed enterprise agreement, by a protected action ballot under subsection 459(1) of the FW Act, if FWA is satisfied that:\n\n (a) on or after 1 March 2009, the person organised or engaged in industrial action, for the purpose of supporting or advancing claims in relation to the proposed collective agreement; and\n (d) no collective agreement covering the employees whose employment would have been subject to the proposed collective agreement was approved by those employees before the WR Act repeal day; and\n\n(4) Industrial action that is taken to be authorised because of the operation of subitem (3) is only taken to be authorised in relation to employees who:\n\n (b) were relevant employees (within the meaning of section 450 of the WR Act) in relation to the proposed collective agreement.\n\n(5) For the purposes of subsection 414(3) of the FW Act, the results of the protected action ballot under that Act are taken to have been declared on the day of the order.\n\nSections 482 and 483 of the WR Act continue to apply on and after the WR Act repeal day in relation to a ballot ordered under Division 4 of Part 9 of the WR Act.\n\nAn authorised ballot agent in relation to a protected action ballot conducted before the WR Act repeal day must keep the following for a period of one year after the day on which the ballot closed:\n\n17 Restriction on when protected action ballot orders may be made—certain agreement‑based transitional instruments and collective Division 2B State employment agreements that cover employees who will be covered by proposed enterprise agreement\n\n(1) This item applies if one or more of the following instruments cover the employees who will be covered by a proposed enterprise agreement:\n\n(2) An application for a protected action ballot order must not be made under subsection 437(1) of the FW Act earlier than 30 days before the nominal expiry date of the instrument, or the latest nominal expiry date of those instruments (as the case may be).\n\n(3) To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.\n\n","sortOrder":9},{"sectionNumber":"Part 5","sectionType":"part","heading":"Effect of conduct engaged in while bargaining for WR Act collective agreement or collective State employment agreement","content":"Part 5—Effect of conduct engaged in while bargaining for WR Act collective agreement or collective State employment agreement\n\n (a) before the WR Act repeal day, a bargaining representative for a proposed enterprise agreement engaged in conduct in relation to a proposed collective agreement; and\n (c) the employment of the employees who would be covered by the proposed enterprise agreement would have been subject to the proposed collective agreement, had it been made; and\n (d) the employers who would be covered by the proposed enterprise agreement would have been bound by the proposed collective agreement, had it come into operation.\n\n (a) before the Division 2B referral commencement, a bargaining representative for a proposed enterprise agreement engaged in conduct in relation to a proposed collective State employment agreement; and\n (b) immediately before that day, the collective State employment agreement had not been made, or had been made but had not been lodged (however described) under a State industrial law of a Division 2B referring State; and\n (c) the employment of the employees who would be covered by the proposed enterprise agreement would have been subject to the proposed collective State employment agreement, had it come into operation; and\n (d) the employers who would be covered by the proposed enterprise agreement would have been bound by the proposed collective State employment agreement, had it come into operation.\n\n(2) If this item applies because of subitem (1) or (1A), the FWC may take into account the conduct referred to in that subitem:\n\n (a) in deciding whether it is reasonable in all the circumstances to make a bargaining order or a scope order in relation to the proposed enterprise agreement; and\n (b) in deciding which terms to include in a workplace determination that relates to the proposed enterprise agreement; and\n (c) in deciding under Part 3‑3 of the FW Act (which deals with industrial action) whether a bargaining representative is genuinely trying to reach an agreement in relation to the proposed enterprise agreement; and\n (d) in deciding under subsection 423(2) or (3) of that Act whether protected industrial action that relates to the proposed enterprise agreement is causing, or threatening to cause, significant economic harm to a person.\n\n(1) If industrial action (whether or not protected action) is engaged in before the commencement of Part 3‑3 of the FW Act then:\n\n (a) Division 9 of Part 9 of the WR Act continues to apply, on and after the WR Act repeal day, in relation to the industrial action; and\n\n (a) industrial action (whether or not protected action) is engaged in during a shift or other period of work that is taken to be a day because of subsection 507(3) of the WR Act; and\n\n (c) Division 9 of Part 9 of the WR Act continues to apply, on and after the WR Act repeal day, in relation to the industrial action until the end of that shift or other period; and\n (d) Part 3‑1 and Division 9 of Part 3‑3 of the FW Act do not apply in relation to the industrial action engaged in during that shift or period.\n\n (a) the reference in paragraph 470(4)(c), subsection 471(2) and paragraph 474(2)(c) of that Act to a modern award included a reference to an award‑based transitional instrument and a Division 2B State award; and\n (b) the reference in those provisions to an enterprise agreement included a reference to an agreement‑based transitional instrument and a Division 2B State agreement.\n\nA permit that is in force immediately before the WR Act repeal day under Part 15 of the WR Act, or that comes into force on or after that day under that Part, has effect:\n\nThe reference in subsections 481(1) and 483A(1) of the FW Act to a suspected contravention of this Act or a term of a fair work instrument is taken to include a reference to a suspected contravention of any of the following:\n\nA notice given under subsection 748(5) of the WR Act to produce, or allow access to, records on a day, or days, on or after the WR Act repeal day has effect, on and after the WR Act repeal day, as if it were given under subsection 483(1) of the FW Act.\n\n (a) the reference in paragraph 510(1)(a) of that Act to the permit holder being found, in proceedings under this Act, to have contravened subsection 503(1) included a reference to the permit holder being found, in proceedings under the WR Act, as in force from time to time, to have contravened section 768 of the WR Act; and\n (b) the reference in paragraph 510(1)(d) of the FW Act to “this Act” (being the FW Act) included a reference to the WR Act as in force from time to time and the reference in that paragraph to “this Part” (being Part 3‑4 of the FW Act) included a reference to Part 15 of the WR Act; and\n (c) the reference in paragraph 510(4)(a) of the FW Act to the FWC not having previously taken action under subsection (1) against the permit holder included a reference to the Registrar not having taken action against the permit holder under subsection 744(4) of the WR Act, as in force from time to time; and\n (d) the references in paragraphs 510(4)(b) and (c) of the FW Act to the FWC having taken action under subsection (1) against the permit holder included a reference to the Registrar having taken action against the permit holder under subsection 744(4) of the WR Act, as in force from time to time.\n\n(1) An instrument that, because of this Schedule, has effect under the FW Act continues, in addition to that effect, to have effect under the WR Act for the purposes of item 11 of Schedule 2.\n\n(2) Any suspension or revocation of, or imposition of conditions on, an entry permit under the WR Act (as it continues to apply because of item 11 of Schedule 2) is also taken to have been done under the FW Act.\n\n(3) Despite item 11 of Schedule 2, disputes about the operation of Part 15 of the WR Act that could, because of that item, have been dealt with under section 772 of that Act, may be dealt with only by the FWC under section 505 of the FW Act.\n\n (a) as if the reference in subsection (1) of that section to “this Part” (being Part 3‑4 of the FW Act) were a reference to Part 15 of the WR Act; and\n\nSubsection 524(2) of the FW Act (which deals with circumstances allowing stand down) applies in relation to a transitional instrument as if a reference to an enterprise agreement included a reference to a transitional instrument.\n\nDespite item 4 of Schedule 3, subsection 691A(5) of the WR Act does not continue to apply in relation to WR Act instruments that become transitional instruments.\n\nNote: This means that a provision of a transitional instrument that is a provision of the kind described in subparagraph 691A(1)(c)(ii) of the WR Act (being a provision requiring an employer to apply to a third party for authorisation to stand down employees in certain circumstances) has effect on and after the WR Act repeal day.\n\nSubsection 524(2) of the FW Act (which deals with circumstances allowing stand down) applies in relation to a Division 2B State instrument as if a reference to an enterprise agreement included a reference to a Division 2B State instrument.\n\nNote 2: An injunction may not be granted in relation to a contravention of an award‑based transitional instrument (see item 17).\n\nNote 2: An injunction may not be granted in relation to a contravention of an agreement‑based transitional instrument (see item 17).\n\n","sortOrder":10},{"sectionNumber":"3","sectionType":"section","heading":"Compliance with obligations relating to conditional terminations of individual agreement‑based transitional instruments","content":"3 Compliance with obligations relating to conditional terminations of individual agreement‑based transitional instruments\n\n(2) A bargaining representative who applies to the FWC for approval of an enterprise agreement must not contravene subitem 18(7) of Schedule 3.\n\nNote 2: An injunction may not be granted in relation to a contravention of a Division 2B State employment agreement instrument (see item 17).\n\n","sortOrder":11},{"sectionNumber":"4B","sectionType":"section","heading":"Compliance with obligations relating to conditional terminations of individual Division 2B State employment agreements","content":"4B Compliance with obligations relating to conditional terminations of individual Division 2B State employment agreements\n\n(2) A bargaining representative who applies to the FWC for approval of an enterprise agreement must not contravene subitem 25(7) of Schedule 3A.\n\nA person must not contravene section 182 or 185 of the WR Act as that section continues to apply under item 5 of Schedule 9.\n\nNote 2: An injunction may not be granted in relation to a contravention of section 182 or 185 of the WR Act (see item 17).\n\n(2) A person must not contravene Division 6 of Part 12 of the WR Act as it continues to apply under item 3 of Schedule 4.\n\n(2) A person must not contravene an order under item 30 of Schedule 3A that continues the effect of terms of a Division 2B State award relating to long service leave.\n\n(1) A person must not contravene any of the following provisions of the WR Act as the provision continues to apply because of Schedule 8:\n\n(2) A person must not contravene any of the following provisions of the WR Act as the provision continues to apply because of Schedule 8:\n\n(3) A person must not contravene subsection 334(2) of the WR Act as that subsection continues to apply because of Schedule 8.\n\n(4) A person must not contravene subsection 365(1), 366(1), 400(3), 400(5) or 401(1) of the WR Act as those subsections continue to apply because of Schedule 8.\n\n(1) This item applies to the following provisions of the WR Act as the provisions continue to apply because of Schedule 8:\n\n(2) Subdivision C of Division 11 of Part 8 of the WR Act continues to apply, on and after the WR Act repeal day, in relation to a contravention of the provision.\n\nA person must not contravene a term of a WR Act equal remuneration order as it continues to apply because of item 4 of Schedule 10.\n\n(1) A person must not contravene subsection 599(4) of the WR Act as it continues to apply because of subitem 2(2) of Schedule 11.\n\n(2) A person must not contravene any of the following provisions of the WR Act as they continue to apply because of subitem 2(2) or (3) of Schedule 11:\n\n12 Non‑disclosure obligation—information acquired under FW Act that identifies an employee as an employee to whom an individual agreement‑based transitional instrument applies\n\n (a) is the protected action ballot agent for a protected action ballot (other than the Australian Electoral Commission); or\n (c) acquires information from, or on behalf of, a person referred to in paragraph (a) or (b) in the course of performing functions or exercising powers for the purposes of the ballot;\n\nmust not disclose to any other person information about an employee if the information will identify whether or not the employee is covered by an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement.\n\n (a) the disclosure is made in the course of performing functions or exercising powers for the purposes of the protected action ballot; or\n\nNote 1: Personal information given to the FWC, the Australian Electoral Commission or another protected action ballot agent under Division 8 of Part 3‑3 of the FW Act may be regulated under the Privacy Act 1988.\n\nNote 2: The President of the FWC may, in certain circumstances, disclose, or authorise the disclosure of, information acquired by the FWC or a member of the staff of the FWC, in the course of performing functions or exercising powers as the FWC (see section 655 of the FW Act).\n\n(1) A person who acquires protected ballot information in the course of performing functions or exercising powers under this Act, the WR Act or the FW Act must not disclose that information to any other person if the information will identify:\n\n (ii) a relevant employee who was one of the prescribed number of employees supporting an application for a ballot order (as required by subsection 451(4) of the WR Act); or\n (iv) a person who is covered by an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement.\n\n (a) the disclosure is made for the purposes of performing functions or exercising powers under this Act, the WR Act (as it continues to apply under this Act) or the FW Act; or\n\nNote 2: The President of the FWC may, in certain circumstances, disclose, or authorise the disclosure of, information acquired by the FWC or a member of the staff of the FWC, in the course of performing functions or exercising powers as the FWC (see section 655 of the FW Act).\n\nA person must not contravene subsection 477(1) or (4) of the WR Act as those subsections continue to apply because of item 14 of Schedule 13.\n\nNote 2: An injunction may not be granted in relation to a contravention of a continuing Schedule 6 instrument (see item 17).\n\n (b) the table in subsection 539(2) included the table below (with the references in column 1 of the table below to be read as references to provisions of this Schedule (being Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009)); and\n (c) a reference to a fair work instrument in that Part included a reference to a transitional instrument, a Division 2B State instrument, a transitional minimum wage instrument or a continuing Schedule 6 instrument; and\n (d) the reference in subsection 540(3) to items 4, 7 and 14 in the table in subsection 539(2) included a reference to items 40, 44C, 44H, 44J and 44K in the table below; and\n (da) the reference in subsections 540(3) and (4) to a term in an enterprise agreement that would be an outworker term if it were included in a modern award included:\n (i) a reference to a term in a collective agreement‑based transitional instrument that would be an outworker term if it were included in an award‑based transitional instrument; and\n (ii) a reference to a term in a collective Division 2B State employment agreement that would be an outworker term if it were included in a Division 2B State award; and\n\n

Standing, jurisdiction and maximum penalties

Item

Column 1
Civil remedy provision

Column 2
Persons

Column 3
Courts

Column 4
Maximum penalty

38

2(1) (other than in relation to a contravention or proposed contravention of an outworker term)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

39

2(1) (in relation to a contravention or proposed contravention of an outworker term)

(a) an outworker;

(b) an employer;

(c) an outworker entity;

(d) an employee organisation;

(e) an employer organisation;

(f) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

40

2(2) (in relation to a contravention or proposed contravention of a collective agreement‑based transitional instrument other than a contravention or proposed contravention of a term that would be an outworker term if it were included in an award‑based transitional instrument)

(a) an employee;

(b) an employer;

(c) an employee organisation to which the collective agreement‑based transitional instrument concerned applies;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

40A

2(2) (in relation to a contravention or proposed contravention of a term in a collective agreement‑based transitional instrument that would be an outworker term if it were included in an award‑based transitional instrument)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

41

2(2) (in relation to a contravention of an individual agreement‑based transitional instrument)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

42

3(1)

(a) an employee who the proposed enterprise agreement will cover;

(b) a bargaining representative for the proposed enterprise agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

30 penalty units

43

3(2)

(a) an employee who the proposed enterprise agreement will cover;

(b) a bargaining representative for the proposed enterprise agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

30 penalty units

44

4

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44A

4A(1) (other than in relation to a contravention or proposed contravention of an outworker term)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44B

4A(1) (in relation to a contravention or proposed contravention of an outworker term)

(a) an outworker;

(b) an employer;

(c) an outworker entity;

(d) an employee organisation;

(e) an employer organisation;

(f) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44C

4A(2) (in relation to a contravention or proposed contravention of a collective Division 2B State employment agreement other than a contravention or proposed contravention of a term that would be an outworker term if it were included in a Division 2B State award)

(a) an employee;

(b) an employer;

(c) an employee organisation to which the collective Division 2B State employment agreement concerned applies;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44D

4A(2) (in relation to a contravention or proposed contravention of a term in a collective Division 2B State employment agreement that would be an outworker term if it were included in a Division 2B State award)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44E

4A(2) (in relation to a contravention of an individual Division 2B State employment agreement)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44F

4B(1)

(a) an employee who the proposed enterprise agreement will cover;

(b) a bargaining representative for the proposed enterprise agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

30 penalty units

44G

4B(2)

(a) an employee who the proposed enterprise agreement will cover;

(b) a bargaining representative for the proposed enterprise agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

30 penalty units

44H

4C(1)

(a) an employee;

(b) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the agreement‑
based transitional instrument;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44J

4C(2)

(a) an employee;

(b) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the Division 2B State employment agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44K

4C(3)

(a) an employee;

(b) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the enterprise agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

45

5

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

46

6(1)

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

47

6(2)

(a) an employee;

(b) a registered employee association;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

48

7

(a) an employee;

(b) an outworker;

(c) an employee organisation;

(d) an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the take‑home pay order relates;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

48A

7A(1)

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

48B

7A(2)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

49

8(1)

(a) an employee;

(b) an employee organisation;

(c) an inspector

(d) if the agreement is an ITEA—a bargaining agent

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

30 penalty units

50

8(2)

(a) an employee;

(b) an employee organisation;

(c) an inspector;

(d) if the agreement is an ITEA—a bargaining agent

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

51

8(3)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector;

(e) if the agreement is an ITEA—a bargaining agent

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

30 penalty units

52

8(4)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector;

(e) if the agreement is an ITEA—a bargaining agent

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

53

10

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

54

11(1)

(a) a transferring employee;

(b) the new employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

55

11(2), (3) and (4)

(a) a transferring employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

56

11(5)

(a) a transferring employee;

(b) the new employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

57

12(1)

(a) an employee;

(b) an employer;

(c) an applicant for the protected action ballot order;

(d) the protected action ballot agent;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2)

30 penalty units

58

13(1)

(a) an employee;

(b) an employer;

(c) an applicant for the ballot order to which the protected ballot information relates;

(d) the authorised ballot agent in relation to the ballot to which the protected ballot information relates;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2)

30 penalty units

59

14

(a) an employee;

(b) an employer;

(c) an applicant for the ballot order;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2)

30 penalty units

60

15(1) (other than in relation to a contravention of an outworker term in a continuing Schedule 6 instrument)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

61

15(1) (in relation to a contravention of an outworker term in a continuing Schedule 6 instrument)

(a) an outworker;

(b) an employer;

(c) an outworker entity;

(d) an employee organisation;

(e) an employer organisation;

(f) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

62

15(2)

(a) a transferring transitional employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2)

60 penalty units

\n```\n\n(2) For the purposes of table items 38, 39, 40, 40A, 44A, 44B, 44C, 44D, 48, 60 and 61 in subitem (1), and the operation of subsections 540(3) and (4) of the FW Act in relation to those table items:\n\n (i) references in the section to a modern award were references to an award‑based transitional instrument, a Division 2B State award or a continuing Schedule 6 instrument; and\n\n(3) Section 570 of the FW Act applies in relation to proceedings that relate to any of items 2 to 8 or 10 to 15 of this Schedule as if the reference to this Act (being the FW Act) were a reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.\n\n(4) Section 571 of the FW Act applies as if the reference to a pecuniary penalty imposed under this Act (being the FW Act) were a reference to a pecuniary penalty imposed in relation to any of items 2 to 8 or 10 to 15 of this Schedule.\n\nThe Federal Court and the Federal Circuit and Family Court of Australia (Division 2) may not make an order under Division 2 of Part 4‑1 of the FW Act granting an injunction, or an interim injunction, to prevent, stop or remedy the effects of a contravention of:\n\nNote: Inspectors may exercise powers for the other compliance purposes set out in subsection 706(1) of the FW Act before the FW (safety net provisions) commencement day.\n\n(1) The regulations may provide for civil penalties for contravention of this Act or of the WR Act as the WR Act continues to apply because of this Act.\n\n> Note: A Judge (including the Chief Justice) who is not assigned to either Division of the Court may exercise the powers of the Court in either Division (see subsection 15(1C)).\n\nAdd:\n\n (2) For the purposes of this Act, a person who is performing duties and exercising powers under subsection (1) is taken not to be assigned to either Division of the Court.\n\n> Note: A Judge (including the Chief Justice) who is not assigned to either Division of the Court may exercise the powers of the Court in either Division (see subsection 15(1C)).\n\n> Note: Under section 562 of the Fair Work Act 2009, jurisdiction is required to be exercised in the Fair Work Division of the Court in relation to matters arising under that Act.\n\n (b) jurisdiction that is incidental to such jurisdiction (including jurisdiction that is required by any other Act to be exercised in the Fair Work Division).\n (5) If the Court’s jurisdiction is required to be exercised in both Divisions in relation to particular proceedings or proceedings of a particular kind, the Chief Justice may, at any time (whether before or after the proceedings are instituted), give a direction about the allocation to one or other Division of those proceedings or proceedings of that kind.\n\n (1A) A Judge who is assigned to a Division of the Court must exercise, or participate in exercising, the powers of the Court only in that Division, except as set out in subsection (1B).\n (1B) The Chief Justice may arrange for a Judge who is assigned to a particular Division of the Court to exercise, or participate in exercising, the powers of the Court in the other Division if the Chief Justice considers that circumstances make it desirable to do so.\n (1C) To avoid doubt, a Judge who is not assigned to either Division of the Court may exercise, or participate in exercising, the powers of the Court in either Division.\n (1D) Subsection (1A) does not affect the validity of any exercise of powers by the Court otherwise than in accordance with that subsection.\n\nNote 2: The following heading to subsection 15(2) is inserted “Judges who are also Judges of the Supreme Court of the ACT and the Northern Territory”.\n\nAdd:\n\n (2) If an arrangement under subsection (1) is in force in relation to the performance by an employee of an agency or organisation of a function on behalf of the Court, the employee may perform that function despite any other provision of this Act or any other law of the Commonwealth.\n (3) A function performed on behalf of the Court in accordance with an arrangement under subsection (1) has effect as if the function had been performed by the Court.\n\n (1) For the purpose of the organisation and conduct of the business of the Federal Magistrates Court, the Federal Magistrates Court comprises 2 Divisions:\n\n> Note: Under section 566 of the Fair Work Act 2009, jurisdiction is required to be exercised in the Fair Work Division of the Federal Magistrates Court in relation to matters arising under that Act.\n\n (b) jurisdiction that is incidental to such jurisdiction (including jurisdiction that is required by any other Act to be exercised in the Fair Work Division).\n (5) If the Court’s jurisdiction is required to be exercised in both Divisions in relation to particular proceedings or proceedings of a particular kind, the Chief Federal Magistrate may, at any time (whether before or after the proceedings are instituted), give a direction about the allocation to one or other Division of those proceedings or proceedings of that kind.\n\n (3A) A Federal Magistrate who is assigned to a Division of the Federal Magistrates Court must exercise, or participate in exercising, the powers of the Federal Magistrates Court only in that Division, except as set out in subsection (3B).\n (3B) The Chief Federal Magistrate may arrange for a Federal Magistrate who is assigned to a particular Division of the Federal Magistrates Court to exercise, or participate in exercising, the powers of the Federal Magistrates Court in the other Division if the Chief Federal Magistrate considers that circumstances make it desirable to do so.\n (3C) To avoid doubt, a Federal Magistrate who is not assigned to either Division of the Federal Magistrates Court may exercise, or participate in exercising, the powers of the Federal Magistrates Court in either Division.\n (3D) Subsection (3A) does not affect the validity of any exercise of powers by the Federal Magistrates Court otherwise than in accordance with that subsection.\n\nNote 2: The following heading to subsection 12(4) is inserted “Assignment of Federal Magistrates to locations or registries”.\n\n> Note: A Federal Magistrate (including the Chief Federal Magistrate) who is not assigned to either Division of the Federal Magistrates Court may exercise the powers of the Federal Magistrates Court in either Division (see subsection 12(3C)).\n\nAdd:\n\n (3) For the purposes of this Act, a person who is acting as Chief Federal Magistrate under subclause (1) is taken not to be assigned to either Division of the Federal Magistrates Court.\n\n> Note: A Federal Magistrate who is not assigned to either Division of the Federal Magistrates Court may exercise the powers of the Federal Magistrates Court in either Division (see subsection 12(3C)).\n\nOmit “Conciliation and Arbitration Act 1904,”, substitute “Fair Work Act 2009, the Fair Work (Registered Organisations) Act 2009, the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009,”.\n\n (b) in relation to proceedings that are pending in the Federal Court immediately before that Part commences, as if the reference in subsection 13(2) of the Federal Court of Australia Act 1976 (as inserted by item 6 of this Schedule) to “be instituted, heard and determined” were a reference to “, after item 6 of Schedule 17 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 commences, be heard and determined”.\n\n(2) A person who is a Judge (other than the Chief Justice) of the Federal Court immediately before Part 1 of this Schedule commences, is taken, for all purposes, not to have been assigned under section 6A of the Federal Court of Australia Act 1976 (as inserted by item 3 of this Schedule) to either Division of the Federal Court.\n\nNote: A Judge (including the Chief Justice) who is not assigned to either Division of the Court may exercise the powers of the Court in either Division (see subsection 15(1C) of the Federal Court of Australia Act 1976, as inserted by item 7 of this Schedule).\n\n (b) in relation to proceedings that are pending in the Federal Magistrates Court immediately before that Part commences, as if the reference in subsection 10A(2) of the Federal Magistrates Act 1999 (as inserted by item 12 of this Schedule) to “be instituted, heard and determined” were a reference to “, after item 12 of Schedule 17 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 commences, be heard and determined”.\n\n(2) A person who is a Federal Magistrate (other than the Chief Federal Magistrate) of the Federal Magistrates Court immediately before Part 2 of this Schedule commences, is taken, for all purposes, not to have been assigned under clause 1A of Schedule 1 to the Federal Magistrates Act 1999 (as inserted by item 16 of this Schedule) to either Division of the Federal Magistrates Court.\n\nNote: A Federal Magistrate (including the Chief Federal Magistrate) who is not assigned to either Division of the Federal Magistrates Court may exercise the powers of the Federal Magistrates Court in either Division (see subsection 12(3C) of the Federal Magistrates Act 1999, as inserted by item 13 of this Schedule).\n\nThe jurisdiction conferred on the Federal Court under item 21 is to be exercised in the Fair Work Division of the Federal Court if:\n\n (a) an application is made to the Federal Court under this Act or the WR Act as it continues to apply because of this Act; or\n (b) a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Act or the WR Act as it continues to apply because of this Act; or\n (c) a declaration is sought under section 21 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (d) an injunction is sought under section 23 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (e) a prosecution is instituted in the Federal Court under this Act or the WR Act as it continues to apply because of this Act; or\n (f) an appeal is instituted in the Federal Court from a judgment of the Federal Circuit and Family Court of Australia (Division 2) or a court of a State or Territory in a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (g) proceedings in relation to a matter arising under this Act, or the WR Act as it continues to apply because of this Act, are transferred to the Federal Court from the Federal Circuit and Family Court of Australia (Division 2); or\n (h) the Federal Circuit and Family Court of Australia (Division 2) or a court of a State or Territory states a case or reserves a question for the consideration of the Federal Court in a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (i) the President refers, under section 608 of the FW Act, a question of law to the Federal Court in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (j) the High Court remits a matter arising under this Act or the WR Act as it continues to apply because of this Act to the Federal Court.\n\nTo avoid doubt, nothing in this Act limits the Federal Court’s powers under section 21, 22 or 23 of the Federal Court of Australia Act 1976.\n\n(1) An appeal lies to the Federal Court from a decision of an eligible State or Territory court exercising jurisdiction under this Act or the WR Act as it continues to apply because of this Act.\n\n(2) It is not necessary to obtain the leave of the Federal Court, or the court appealed from, in relation to an appeal under subitem (1).\n\nJurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in relation to any civil matter arising under:\n\nJurisdiction conferred on the Federal Circuit and Family Court of Australia (Division 2) under item 25 is to be exercised in the Fair Work Division of the Court if:\n\n (b) an injunction is sought under section 140 of the Federal Circuit and Family Court of Australia Act 2021 in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (c) a declaration is sought under section 141 of the Federal Circuit and Family Court of Australia Act 2021 in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (d) proceedings in relation to a matter arising under this Act, or the WR Act as it continues to apply because of this Act, are transferred to the Federal Circuit and Family Court of Australia (Division 2) from the Federal Court; or\n (e) the High Court remits a matter arising under this Act or the WR Act as it continues to apply because of this Act to the Federal Circuit and Family Court of Australia (Division 2).\n\nTo avoid doubt, nothing in this Act limits the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 139, 140 or 141 of the Federal Circuit and Family Court of Australia Act 2021.\n\nis taken, after that time, to be an appointment, under section 626 of the FW Act, to the office of FWA mentioned in the table item.\n\n

Appointments to FWA

Item

Column 1

Office of the Commission

Column 2

Office of FWA

Column 3

Commencement time

1

President of the Commission

President of FWA

The day proclaimed for the purposes of item 2 of the table in subsection 2(1) of the FW Act.

2

Vice President of the Commission

Deputy President of FWA

The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of the FW Act.

3

Senior Deputy President of the Commission

Deputy President of FWA

The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of the FW Act.

4

Deputy President of the Commission

Deputy President of FWA

The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of the FW Act.

5

Commissioner of the Commission

Commissioner of FWA

The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of the FW Act.

\n```\n\n (a) was appointed as a member of a prescribed State industrial authority (within the meaning of the WR Act) before being appointed as a member of the Commission; and\n\n(3) Despite any provision of the WR Act or the FW Act, a person who is taken to have been appointed as an FWA Member under this item continues also to hold office under the WR Act.\n\nNote: The terms and conditions of a person who is taken to have been appointed as an FWA Member are the terms and conditions that attach to his or her appointment under the WR Act (see item 2 of this Schedule).\n\n (a) holds office under the FW Act on the same terms and conditions as attach, or attached, to his or her appointment under the WR Act (including under subsections 63(2) and (3) of that Act); and\n (b) is entitled to the same designation as he or she is, or was, entitled to in relation to his or her appointment under the WR Act (including the designation the person has, or had, because of subsection 80(2) of the Industrial Relations (Consequential Provisions) Act 1988).\n\n (b) continues the application of the Judges’ Pensions Act 1968 in relation to a person taken to have been appointed under item 1 of this Schedule and to whom that Act applied as a member of the Commission.\n\n(3) For the purposes of determining the remuneration of a person who is taken to have been appointed as an FWA Member under item 1 of this Schedule:\n\n (b) sections 79 and 81 of the WR Act apply, and continue to apply on and after the WR Act repeal day, in relation to the person’s appointment as both an FWA Member and a member of the Commission.\n\nSection 609 of the FW Act has effect, in relation to any time at which the President is the only FWA Member, as if the words “After consulting the other FWA Members,” were omitted from subsection (1) of that section.\n\nis to be determined in accordance with the precedence assigned to them as members of the Commission under section 65 of the WR Act.\n\nDespite the requirement in subsection 609(1) of the FW Act, the President may make rules under that subsection before the WR Act repeal day without consulting other FWA Members.\n\n(1) The President of the Commission may give directions to a person who is taken to be appointed as an FWA Member under item 1 of this Schedule as to the manner in which the person is to perform his or her functions as a member of the Commission.\n\n(1) This item applies in relation to an FWC member who is a person taken to have been appointed as an FWA Member under item 1 of this Schedule.\n\n(2) Section 581A of the FW Act (which deals with the President handling complaints about FWC Members) applies after the commencement of this item in relation to a complaint made about the performance of the FWC Member as if the following amendments were made:\n\n (a) paragraph (4)(b) of that section—omit “termination of the appointment of the FWC Member”, substitute “removal of the FWC Member from office”;\n (b) the note to subsection (4) of that section—omit “The appointment of an FWC Member may be terminated under section 641”, substitute “An FWC Member may be removed from office under section 82 or 86 of the WR Act (within the meaning of the Transitional Act), as those sections continue to apply because of the operation of item 2 of Schedule 18 to the Transitional Act,”;\n (c) subparagraph (a)(i) of the definition of relevant belief in section 12 of the FW Act—omit “terminating the appointment of the FWC Member in accordance with section 641”, substitute “removing the FWC Member from office in accordance with section 82 or 86 of the WR Act (within the meaning of the Transitional Act), as those sections continue to apply because of the operation of item 2 of Schedule 18 to the Transitional Act”.\n\n(3) Section 641A of the FW Act (which deals with the Minister handling complaints about FWC Members) applies after the commencement of this item in relation to a complaint made about the performance of the FWC Member as if the following amendments were made:\n\n (a) paragraph (a) of that section—omit “termination of the appointment of the FWC Member; and”, substitute “removal of the FWC Member from office.”;\n (c) note 1 to that section—omit “The appointment of an FWC Member may be terminated under section 641”, substitute “An FWC Member may be removed from office under section 82 or 86 of the WR Act (within the meaning of the Transitional Act), as those sections continue to apply because of the operation of item 2 of Schedule 18 to the Transitional Act,”;\n\n(1) Despite the WR Act repeal, a body (the WR Act body) or office (the WR Act office) set out in an item in the following table continues in existence until the cessation time set out in the item.\n\n

WR Act bodies and WR Act offices—continuation and cessation

Item

Column 1

WR Act bodies

Column 2

WR Act offices

Column 3

Cessation time

1

Australian Industrial Relations Commission

Members of the Australian Industrial Relations Commission

31 December 2009

2

Australian Industrial Registry

Industrial Registrar and Deputy Registrars

31 December 2009

3

Australian Fair Pay Commission and AFPC Secretariat

AFPC Chair, AFPC Commissioners and Director of the AFPC Secretariat

31 July 2009

4

Workplace Authority

Workplace Authority Director

31 January 2010

\n```\n\nNote: FWA will begin to take over the work of WR Act bodies and WR Act offices before their cessation times: see item 12 of Schedule 2.\n\n(2) To avoid doubt, an appointment to a WR Act body or a WR Act office in effect immediately before the WR Act repeal continues in force on and after the WR Act repeal day:\n\nNote: As an example of the effect of this Act, at the cessation time for a WR Act body or a WR Act office, related appointments will cease.\n\n(3) Despite subitem (1), the Minister may, by writing, determine that a WR body or a WR Act office ceases to exist at a time that is different from the cessation time set out for the body or office in the table.\n\n(1) The person referred to in column 1 of an item of the following table must arrange for the transfer, on the WR Act repeal day, of assets and liabilities of the body referred to in column 2 of the item of the following table to the body referred to in column 3 of the item of the following table.\n\n

Transfer of assets and liabilities

Item

Column 1

Office‑holder who enters arrangement with FWA

Column 2

Body whose assets and liabilities are transferred

Column 3

Body to which assets and liabilities are transferred

1

Director of the AFPC Secretariat

AFPC Secretariat

FWA

2

Industrial Registrar

Australian Industrial Registry

FWA

3

Workplace Authority Director

Workplace Authority

Office of the Fair Work Ombudsman

4

Workplace Ombudsman

Office of the Workplace Ombudsman

Office of the Fair Work Ombudsman

\n```\n\n(2) Despite subitem (1), the Minister may, before the WR Act repeal day, determine one or more of the following by writing:\n\n (a) that some or all assets and liabilities of the body (as specified in the determination) are to be transferred to a different body (as specified in the determination) from the one referred to in column 3 of the table;\n (b) that some or all assets and liabilities of the body (as specified in the determination) are to be transferred on a different day (as specified in the determination) from the one referred to in subitem (1);\n (c) that some or all assets and liabilities of the body (as specified in the determination) are to be transferred in accordance with regulations made, or to be made, for the purposes of this paragraph.\n\n(4) In this item, a reference to an asset of a body includes a reference to a record or any other information that is in the custody of, or under the control of, the body.\n\nSection 655 of the FW Act has effect as if information acquired, before the WR Act repeal day, by a WR Act body or a person holding a WR Act office in the course of performing functions or exercising powers as such a body or in such an office were information acquired by the FWC in the course of performing functions or exercising powers as the FWC.\n\nNote: Item 16 makes provision for information acquired by a member of the Office of the Workplace Ombudsman to be treated, for the purposes of section 718 of the FW Act, as if it were acquired by the Fair Work Ombudsman.\n\n(1) The General Manager of FWA may enter into an arrangement with the person referred to in column 1 of an item of the following table for FWA to provide assistance to the body referred to in column 2 of the item for the purpose of performing functions on and after the WR Act repeal day.\n\n

Arrangements between FWA and body

Item

Column 1

Office‑holder who enters arrangement with FWA

Column 2

Body to which assistance is provided

1

Industrial Registrar

Australian Industrial Registry

2

Workplace Authority Director

Workplace Authority

3

Director of the AFPC Secretariat

AFPC Secretariat

\n```\n\n(2) The Fair Work Ombudsman may enter into an arrangement with the Workplace Authority Director to provide assistance to the Workplace Authority Director for the purpose of performing functions on and after the WR Act repeal day.\n\n(1) After the cessation time for a WR Act body or a WR Act office, the powers, functions and duties of the body or office are to be exercised and performed by the FWC.\n\n(2) For the purposes of subitem (1), a law of the Commonwealth that relates to the body or office is, for the purposes of its application after the cessation time, to be read:\n\n(3) Despite subitem (1), the Minister may, by writing, determine that a power, function or duty of a WR Act body or a WR Act office is to be exercised or performed, after the cessation time for the body or office, by a body or person other than the FWC.\n\n(5) If the FWC, or another body or person, deals after the cessation time for a WR Act body or a WR Act office with a matter that was being dealt with by the WR Act body or a person holding the WR Act office, the FWC or the other body or person, as the case requires, must take into account everything done by, or in relation to, the WR Act body or a person holding the WR Act office, in relation to the matter.\n\n(1) An appointment of a person as a workplace inspector that is in force under section 167 of the WR Act immediately before the WR Act repeal day has effect, for the remainder of the term of the appointment, as if it were an appointment of the person as a Fair Work Inspector under section 700 of the FW Act.\n\n(2) An identity card issued under section 168 of the WR Act to a person covered by subitem (1) has effect, for the remainder of the person’s term of appointment, as if it were an identity card issued under section 702 of the FW Act.\n\n(1) Parts 5A and 6 of the WR Act (which deal with the Workplace Ombudsman and workplace inspectors) have no application after the WR Act repeal.\n\n(1) For the purposes of the application of the WR Act in relation to conduct that occurred before the WR Act repeal day (including the application of the WR Act because of subitem 11(2) of Schedule 2), an application that could have been made or continued by a workplace inspector (disregarding item 12 of this Schedule) may be made or continued, on and after the WR Act repeal day, by a Fair Work Inspector.\n\n (a) a reference in that Part to a fair work instrument were a reference to a WR Act instrument or a transitional award that is not a WR Act instrument; and\n (b) a reference (other than a reference in a note to a section or subsection, or a reference in section 716) in that Part to a civil remedy provision were a reference to a civil remedy provision or a civil penalty provision within the meaning of the WR Act, as in force from time to time; and\n (c) a reference in that Part to “this Act” (being the FW Act) were a reference to the WR Act, as in force from time to time before the WR Act repeal day; and\n (d) the reference in paragraph 706(1)(c) to the regulations were a reference to regulations, as in force from time to time, under the WR Act, as in force from time to time before the WR Act repeal day; and\n\n (a) a reference in that Part to a fair work instrument included a reference to a transitional instrument, a transitional minimum wage instrument or a continuing Schedule 6 instrument; and\n (b) a reference in that Part to “this Act” (being the FW Act) included a reference to the WR Act as it continues to apply because of this Act; and\n (c) a reference in that Part to “this Act” (being the FW Act) included a reference to this Act (being the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009); and\n (iii) subsection 182(1) or (2) of the WR Act, as it continues to apply under item 5 of Schedule 9 (which deals with continuation of Australian Fair Pay and Conditions Standard wages provisions);\n\n(1) Part 5‑2 of the FW Act applies in relation to conduct that occurs on or after the Division 2B referral commencement as if:\n\nA direction, given by the Workplace Ombudsman to a workplace inspector under subsection 167(7) of the WR Act, that is in force immediately before the WR Act repeal day is taken, on and after that day, to have been given by the Fair Work Ombudsman to a Fair Work Inspector under section 704 or 705 (as the case requires) of the FW Act.\n\nSection 718 of the FW Act has effect as if information acquired, before the WR Act repeal day, by a member of the Office of the Workplace Ombudsman in the course of performing functions or exercising powers as such a member were information acquired by the Fair Work Ombudsman in the course of performing functions or exercising powers as the Fair Work Ombudsman.\n\nNote: The effect of this item is to allow the Fair Work Ombudsman to disclose, under section 718 of the FW Act, information acquired by a member of the Office of the Workplace Ombudsman.\n\n (a) the annual report on the operations of FWA prepared for the 2009‑2010 financial year under section 652 of the FW Act must include a report on the operations of FWA during the period:\n\n (a) the annual report on the operations of the Office of the Fair Work Ombudsman prepared for the 2009‑2010 financial year under section 686 of the FW Act must include a report on the operations of the Office during the period:\n\n(1) The Fair Work Ombudsman (instead of the Workplace Ombudsman) must prepare the annual report on the operations of the Office of the Workplace Ombudsman under section 166S of the WR Act for the 2008‑2009 financial year.\n\n(1) The General Manager of the FWC must prepare a written report about the first 3 years operation of the unfair dismissal system.\n\n(2) The report must deal with the experiences employers, and in particular small and medium‑sized enterprise employers, and employees have had with the unfair dismissal system.\n\n (b) conduct surveys of employers, employees and any other persons affected by, or who have had experience with, the unfair dismissal system;\n\n (d) the number of applicants employed by small business employers whose dismissals were not consistent with the Small Business Fair Dismissal Code; and\n (f) the number of unfair dismissal applications that were made after the period of 14 days specified in paragraph 394(2)(a) of the FW Act and the number of those applications that were allowed by the FWC under subsection 394(3) of the FW Act; and\n (g) the number of unfair dismissal applications discontinued, and the stages at which those applications were discontinued; and\n\n(5) The General Manager of the FWC must give the Minister the report as soon as practicable and, in any event, within 6 months after the end of the period mentioned in subitem (1).\n\n(6) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.\n\n(7) Subsections 34C(4) to (7) of the Acts Interpretation Act 1901 apply to the report as if it were a periodic report within the meaning of that definition in subsection 34C(1) of that Act.\n\n (a) an APS employee is moved, under paragraph 72(1)(a) of the Public Service Act 1999, from an old Agency to a new Agency; and\n (ii) an AWA or pre‑reform AWA (and therefore also a collective agreement which had no effect while the AWA or pre‑reform AWA operated in relation to the employee).\n\n(2) The collective agreement, AWA or pre‑reform AWA, as the case requires, has effect after the move in relation to the employee’s employment as if it had been made with the Agency Head of the new Agency on behalf of the Commonwealth.\n\n (b) more than one collective agreement‑based transitional instrument applies to the employment of employees in that Agency;\n\n(4) The regulations may provide for other matters of a transitional nature in relation to the transfer of employees from an old Agency to a new Agency.\n\nnew employee, in a new Agency, means an employee who was not moved to the new Agency from an old Agency as mentioned in paragraph (1)(a).\n\n (a) disputes in relation to a matter arising under a transitional instrument (including a WR Act instrument that becomes a transitional instrument);\n (b) disputes in relation to the Australian Fair Pay and Conditions Standard in Part 7 of the WR Act, including as it continues to apply because of Schedule 4 (other than disputes in relation to Division 2 of Part 7 of that Act);\n (c) disputes in relation to Division 1, 2 or 6 of Part 12 of the WR Act, including as it continues to apply because of Schedule 4.\n\n(2) The WR Act applies in relation to a dispute mentioned in any of paragraphs (1)(a) to (c) in the way that it applied, before the WR Act repeal day, in relation to a like dispute.\n\n(1) Anything that could, or would, have been done by, or in relation to, the Commission or the Industrial Registrar because of item 1 may only be done by, or in relation to, the FWC.\n\nNote: That subsection allows the FWC to deal with a dispute only if the FWC is expressly authorised to do so under the FW Act.\n\n(1) Schedule 6 to the WR Act (continued Schedule 6) continues to apply on and after the WR Act repeal day in accordance with this Schedule.\n\n(2) Except for instrument content rules and instrument interaction rules, nothing in this Schedule or continued Schedule 6 applies to State reference transitional awards or common rules.\n\nNote: State reference transitional awards or common rules are continued in existence by Schedule 3 as transitional instruments.\n\n(3) Without limiting subitem (1) (but subject to subitem (2)), transitional awards that were in operation under Schedule 6 to the WR Act immediately before the WR Act repeal day continue in operation as continuing Schedule 6 instruments on and after the repeal day in accordance with continued Schedule 6.\n\nNote 1: In addition to provisions of this Schedule, Part 3 of Schedule 2 may also affect continuing Schedule 6 instruments.\n\n (a) a reference in that Schedule to the Australian Industrial Relations Commission (or the Commission) were a reference to the FWC; and\n (b) without limiting paragraph (a)—a reference in that Schedule to a member of the Commission (or a Commissioner) were a reference to an FWC member; and\n (d) a reference in that Schedule to a Presidential Member were a reference to the President, or a Deputy President, of the FWC; and\n (f) a reference in that Schedule to a Registrar or the Industrial Registrar were a reference to the General Manager of the FWC; and\n (ii) without limiting subparagraph (i)—a reference in that Schedule to wage‑setting decisions of the AFPC were a reference to determinations made by the FWC in annual wage reviews; and\n (i) a reference to “this Act” (being the WR Act) in any of the following provisions of that Schedule were a reference to “this Act” as defined in section 12 of the FW Act:\n\nNote: For example, paragraph (1)(a) does not apply if the reference is to something that the Australian Industrial Relations Commission did before the WR Act repeal day (or before the reform commencement).\n\n(1) Section 578 of the FW Act applies to the performance of the FWC’s functions under continued Schedule 6 as if the reference in paragraph 578(a) to “the objects of this Act, and any objects of the part of the Act” were a reference to the objects of continued Schedule 6.\n\n were a reference to item 15 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; and\n\n (a) note 2 to subclause 3(1) were worded as follows: “In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.”; and\n\n(1) The new ballots compliance provisions (see subitem (2)) apply in relation to a secret ballot ordered by the FWC under continued Schedule 6 as if:\n\nContinued Schedule 6 applies as if the reference in clause 107C to section 836 of the WR Act were a reference to sections 535 and 536 of the FW Act.\n\nNote 2: For the role of Fair Work Ombudsman and Inspectors in relation to continuing Schedule 6 instruments, see item 14 of Schedule 18.\n\nThe regulations may deal with other matters relating to how the FW Act applies in relation to continuing Schedule 6 instruments.\n\n(1) The Clothing Trades Award 1999, to the extent that it contains terms relating to outworkers, is taken always to have been made in accordance with Part VI of the Workplace Relations Act 1996. Any variation of those terms is taken always to have been made in accordance with that Part.\n\n(2) Without limiting subitem (1), those terms (as varied from time to time) are taken always to have been terms about allowable award matters of the kind described in paragraph 513(1)(o) of the Workplace Relations Act 1996.\n\nNote: This item amends the short title of the Act. If another amendment of the Act is described by reference to the Act’s previous short title, that other amendment has effect after the commencement of this item as an amendment of the Act under its amended short title (see section 10 of the Acts Interpretation Act 1901).\n\n> employee has its ordinary meaning, and includes a person who is usually such an employee, but does not include a person on a vocational placement.\n\n> FWA Member has the same meaning as in the Fair Work Act, but does not include a Minimum Wage Panel Member (within the meaning of that Act).\n\nOmit “paragraphs (a) to (g) of the definition of federal system employer in section 6”, substitute “paragraphs (a) to (f) of the definition of national system employer in section 14 of the Fair Work Act”.\n\n If:\n (a) an association was purportedly registered as an organisation under this Act before the commencement of this section; and\n (b) the association’s purported registration would, but for this section, have been invalid merely because, at any time, the association’s rules did not have the effect of terminating the membership of, or precluding from membership, persons who were persons of a particular kind or kinds;\n\n (a) if the organisation is an association of employers—a person of a kind mentioned in paragraph 18A(3)(a), (b), (c) or (d); or\n (b) if the organisation is an association of employees—a person of a kind mentioned in paragraph 18B(3)(a), (b), (c) or (d); or\n (c) if the organisation is an enterprise association—a person of a kind mentioned in paragraph 18C(3)(a), (b), (c) or (d);\n\n the General Manager must reduce the order to writing, sign it and seal it with the seal of FWA, and the order has effect as if it had been signed by the FWA Member.\n\n Jurisdiction is conferred on the Federal Court in relation to any matter (whether civil or criminal) arising under this Act.\n\n The jurisdiction conferred on the Federal Court under this Act is to be exercised in the Fair Work Division of the Federal Court if:\n (b) a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Act; or\n (c) a declaration is sought under section 21 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or\n (d) an injunction is sought under section 23 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or\n\nAdd:\n\nAdd:\n\n (1) The General Manager may, in writing, delegate to a member of the staff of FWA all or any of the General Manager’s functions or powers under this Act.\n (2) Despite subsection (1), the General Manager’s functions or powers under the following provisions cannot be delegated:\n (3) Despite subsection (1), the General Manager’s functions or powers under the following provisions can only be delegated to a member of the staff of FWA who is an SES employee or an acting SES employee, or who is in a class of employees prescribed by the regulations:\n\n> Note: The expressions SES employee and acting SES employee are defined in section 17AA of the Acts Interpretation Act 1901.\n\n (4) In exercising powers or functions under a delegation, the delegate must comply with any directions of the General Manager.\n\n (1) The Minister may intervene on behalf of the Commonwealth in proceedings before a court (including a court of a State or Territory) in relation to a matter arising under this Act if the Minister believes it is in the public interest to do so.\n (2) If the Minister intervenes, the Minister is taken to be a party to the proceedings for the purposes of instituting an appeal from a judgment given in the proceedings.\n\n (1) This section applies in relation to a proceeding in the Fair Work Division of the Federal Court, or of the Federal Magistrates Court, other than:\n (b) a member, officer or employee of a peak council to which an organisation of which the party is a member is affiliated.\n (4) If the proceeding is a proceeding in relation to a question of law referred to the Federal Court under section 608 of the Fair Work Act, a party to the proceeding may only be represented as permitted by subsection (2) or (3) if the Court grants leave.\n\n> Note: Regulations made under the Fair Work Act may also be relevant to the operation of this Act. For example, regulations about FWA’s practice and procedure may be made for the purposes of section 610 of the Fair Work Act.\n\n (1) For the purposes of this Act, a federal counterpart for a particular association of employers or employees registered under a State or Territory industrial law is an organisation prescribed by the regulations to be a federal counterpart of that association.\n (2) For the purposes of this Act, if subsection (1) does not apply in relation to a particular association of employers or employees registered under a State or Territory industrial law, a federal counterpart for the association is:\n (a) an organisation that has a branch (including a division of such a branch or a constituent part of such a branch) in that State or Territory that has or purports to have:\n (b) if paragraph (a) does not apply—an organisation of which the association has purported to function as a branch (including a division of a branch or a constituent part of a branch).\n\nAdd:\n\n (5) FWA must not, under this section, grant an application for registration of an association of employers or employees registered under a State or Territory industrial law if the association has a federal counterpart.\n\n#### Subdivision BA—Branches of organisations\n\n The rules of an organisation may provide for the autonomy of a branch in matters affecting members of the branch only and matters concerning the participation of the branch in a State workplace relations system.\n\n (1) The rules of an organisation may provide for a fund of the branch that is to be managed and controlled under rules of the branch, and may make provision in relation to the fund in accordance with subsection (2).\n (a) real or personal property of which the branch of the organisation, by the rules or by any established practice not inconsistent with the rules, has, or in the absence of a limited term lease, bailment or arrangement, would have, the right of custody, control or management; and\n (b) the amounts of entrance fees, subscriptions, fines, fees or levies received by a branch, less so much of the amounts as is payable by the branch to the organisation; and\n (d) a superannuation or long service leave or other fund operated or controlled by the branch for the benefit of its officers or employees; and\n (e) a sick pay fund, accident pay fund, funeral fund, tool benefit fund or similar fund operated or controlled by the branch for the benefit of its members; and\n (f) property acquired wholly or mainly by expenditure of the money of the fund or derived from other assets of the fund; and\n\n (1) A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:\n\n (1) The General Manager must, on application by an organisation in accordance with subsection (2), consent to an alteration of the eligibility rules of the organisation to extend them to apply to persons within the eligibility rules of an association of employers or employees that is registered under a State or Territory industrial law, if the General Manager is satisfied:\n (d) that the alteration will not apply outside the limits of the State or Territory for which the association is registered; and\n\n> Note: If the General Manager consents to the alteration, FWA may make orders that reflect State representation orders (see section 137F).\n\n (3) A declaration made under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the declaration.\n\nAdd:\n\n (b) a right to represent its members’ industrial interests outside the State in relation to which it is a State‑registered association.\n\n (i) unless subparagraph (ii) or (iii) applies—the fifth anniversary of the earliest day on which an organisation can make an application in accordance with subsection 158A(2); or\n (ii) if FWA grants the association an extension under subclause (2) of this clause and subparagraph (iii) does not apply—the sixth anniversary of that day; or\n (iii) if FWA grants the association a further extension under subclause (3) of this clause—the seventh anniversary of that day.\n\nAdd:\n\n (2) FWA may, on application by a transitionally recognised association, grant the association an extension for the purposes of subparagraph (1)(c)(ii) if FWA is satisfied that the association has made progress towards:\n (3) FWA may, on application by a transitionally recognised association, grant the association a further extension for the purposes of subparagraph (1)(c)(iii) if FWA is satisfied that:\n\nAdd:\n\n (4) If the General Manager is satisfied that the association satisfies subclause (1), the General Manager must, by written instrument, grant the application and record the fact that he or she is so satisfied.\n (7) A State‑registered association is taken to be recognised under this Schedule when the General Manager grants the application.\n\n (1) The provisions of the Fair Work Act 2009 and Part 3 of Chapter 4 of this Act apply in relation to a recognised State‑registered association:\n (b) a right to represent its members’ industrial interests outside the State in relation to which it is a State‑registered association.\n\n (1) A person interested or the Minister may apply to the Federal Court for an order cancelling the recognition under this Schedule of a recognised State‑registered association on the ground that:\n (i) the association (in relation to its continued breach of an order of FWA or an industrial instrument, or its continued failure to ensure that its members comply with and observe an order of FWA or an industrial instrument, or in any other respect); or\n (ii) a substantial number of the members of the association (in relation to their continued breach of an order of FWA or an industrial instrument, or in any other respect);\n has, on or after the commencement of this Schedule, prevented or hindered the achievement of an object of this Act as in force at that time; or\n (b) the association, or a substantial number of the members of the association or of a section or class of members of the association, has engaged in industrial action (other than protected industrial action) that has, on or after the commencement of this Schedule, prevented, hindered or interfered with:\n (ii) the provision of any public service by the Commonwealth or a State or Territory or an authority of the Commonwealth or a State or Territory; or\n (c) the association, or a substantial number of the members of the association or of a section or class of members of the association, has or have been, or is or are, engaged, on or after the commencement of this Schedule, in industrial action (other than protected industrial action) that has had, is having or is likely to have a substantial adverse effect on the safety, health or welfare of the community or a part of the community; or\n (d) the association, or a substantial number of the members of the association or of a section or class of members of the association, has or have failed to comply with one of the following, made on or after the commencement of this Schedule:\n (i) an injunction granted under subsection 421(3) of the Fair Work Act (which deals with orders to stop industrial action);\n (ii) an order made under the Fair Work Act in relation to a contravention of Part 3‑1 of that Act (which deals with general protections);\n (iii) an interim injunction granted under section 545 of the Fair Work Act so far as it relates to conduct or proposed conduct that could be the subject of an injunction under a provision mentioned in subparagraph (i) or (ii);\n (b) does not consider that it would be unjust to do so having regard to the degree of gravity of the matters constituting the ground and the action (if any) that has been taken by or against the association in relation to the matters;\n (iii) that the association has been found by another industrial body (within the meaning of the Fair Work Act) to have contravened a State or Territory industrial law, and that the contravention constitutes serious misconduct.\n (6) The General Manager may, by written instrument, cancel the recognition under this Schedule of a recognised State‑registered association if he or she is satisfied that the association no longer exists.\n (8) The recognition under this Schedule of a recognised State‑registered association is taken to be cancelled if the law of a State under which the association is registered ceases to be a law to which subclause 1(2) applies.\n\nPart 3 provides for the orders to be made in relation to employees who perform work for the same employer and/or at the same premises or workplace.\n\nNote: In addition to registered organisations, this Part also applies to transitionally recognised associations (see clause 3 of Schedule 1) and recognised State‑registered associations (see clause 2 of Schedule 2).\n\n (1) Subject to this Part, Part 4 and subsection 151(6), FWA may, on the application of an organisation, an employer or the Minister, make the following orders in relation to a dispute (including a threatened, impending or probable dispute) about the entitlement of an organisation of employees to represent, under this Act or the Fair Work Act, the industrial interests of employees:\n (a) an order that an organisation of employees is to have the right, to the exclusion of another organisation or other organisations, to represent under this Act or the Fair Work Act the industrial interests of the employees in a particular workplace group who are eligible for membership of the organisation;\n (b) an order that an organisation of employees is not to have the right to represent under this Act or the Fair Work Act the industrial interests of the employees in a particular workplace group.\n\n (2) FWA may make an interim order in relation to an application under subsection (1) on application by a person or organisation who would have been eligible to make the application under subsection (1).\n (3) FWA must not make an order under subsection (2) if FWA considers that the making of the order would be unfair to a person or organisation other than the applicant.\n (4) An interim order made under subsection (2) ceases to have effect if the application under subsection (1) is determined.\n (5) FWA may, on application by an organisation, an employer or the Minister, vary an order made under subsection (1) or (2).\n (6) FWA may, on its own initiative, vary an order made under subsection (1) or (2) if the order is inconsistent with an order that is in force under subsection 133(1).\n (7) FWA must not make an order under subsection (1) or (2) if the order would be inconsistent with an order that is in force under subsection 133(1).\n\n (1) In considering whether to make an order under subsection 137A(1) in relation to a particular workplace group, FWA must have regard to:\n (c) the extent to which particular organisations of employees represent the employees in the workplace group, and the nature of that representation; and\n (d) any agreement or understanding of which FWA becomes aware that deals with the right of an organisation of employees to represent under this Act or the Fair Work Act the industrial interests of a particular class or group of employees; and\n (a) the workplace group relates to a genuine new enterprise (within the meaning of the Fair Work Act) that one or more employers are establishing or propose to establish; and\n (b) the employer or employees have not employed any of the persons who will be necessary for the normal conduct of that enterprise;\n FWA must, as far as practicable, have regard to the matters set out in subsection (1) as they would apply in relation to the persons who would be the employees in the workplace group.\n\n> Note: The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12 of the Fair Work Act).\n\n (a) the eligibility rules of an organisation of employees have been altered with the consent of the General Manager under section 158A; and\n (b) because of the alteration, members of an association of employees registered under a State or Territory industrial law have become eligible for membership of the organisation;\n a reference in this section to the organisation includes a reference to the association referred to in paragraph (b) of this subsection.\n\n (1) A peak council is entitled to make a submission for consideration in relation to the proposed making of an order under subsection 137A(1).\n\n (2) The Federal Court may, on application by the Minister or a person or organisation affected by an order made under subsection 137A(1) or (2), make such orders as it thinks fit to ensure compliance with that order.\n\n (a) the eligibility rules of an organisation of employees have been altered with the consent of the General Manager under section 158A; and\n (b) because of the alteration, members of an association of employees that is registered under a State or Territory industrial law (a State registered association) have become eligible for membership of the organisation; and\n (ii) was an order of the same kind as, or of a similar kind to, an order that FWA could make under this Chapter in relation to an organisation;\n FWA may, on application by the organisation or by a party to the State representation order, make an order in relation to the organisation that is to the same effect, or substantially the same effect, as the State representation order.\n\nNote: The heading to clause 7 of Schedule 10 is altered by omitting “Registration and Accountability of Organisations Schedule” and substituting “this Act”.\n\n (ii) an order made under the Fair Work Act in relation to a contravention of Part 3‑1 of that Act (which deals with general protections); or\n\nOmit “this Act apply, on and after the reform commencement”, substitute “the Fair Work Act apply, on and after the commencement of those provisions”.\n\nAfter “at that time”, insert “, or has, on or after the commencement of section 3 of the Fair Work Act, prevented or hindered the achievement of the object set out in that section”.\n\nAdd:\n\n ; or (e) the association, or a substantial number of the members of the association or of a section or class of members of the association, has or have failed to comply with an order under section 23 of this Act (which deals with contraventions of the employee associations provisions) made on or after the reform commencement; or\n (f) the association, or a substantial number of the members of the association or of a section or class of members of the association, has or have failed to comply with one of the following made on or after the commencement of the relevant provision:\n (i) an injunction granted under subsection 421(3) of the Fair Work Act (which deals with orders to stop industrial action);\n (ii) an order made under the Fair Work Act in relation to a contravention of Part 3‑1 of that Act (which deals with general protections);\n (iii) an interim injunction granted under section 545 of the Fair Work Act so far as it relates to conduct or proposed conduct that could be the subject of an injunction or order under a provision mentioned in subparagraph (i) or (ii).\n\n (4) A finding of fact in proceedings under section 496, 508, 509 or 807 of the Workplace Relations Act 1996 commenced on or after the reform commencement is admissible as prima facie evidence of that fact in an application made on a ground specified in paragraph (1)(d).\n (4A) A finding of fact in proceedings under section 23 of this Act is admissible as prima facie evidence of that fact in an application made on a ground specified in paragraph (1)(e).\n\nNote: The heading to section 33 of Schedule 1 is altered by omitting “Presidential Member” and substituting “President or a Deputy President”.\n\nOmit “or the Rules of the Commission”, substitute “, or the procedural rules of FWA made under section 609 of the Fair Work Act”.\n\nNote: The headings to subsections 55(5) and (7) of Schedule 1 are altered by omitting “Commission” and substituting “FWA”.\n\nNote: The headings to subsections 57(6) and (8) of Schedule 1 are altered by omitting “Commission” and substituting “FWA”.\n\nOmit “the Rules of the Commission”, substitute “the procedural rules of FWA made under section 609 of the Fair Work Act”.\n\nAdd:\n\nNote: The heading to section 156 of Schedule 1 is altered by omitting “Industrial Registrar” and substituting “General Manager”.\n\nOmit “Industrial Registrar to arrange, for the purposes of the inquiry, for a designated Registry official”, substitute “General Manager”.\n\nNote: The heading to section 202 of Schedule 1 is altered by omitting “Industrial Registrar” and substituting “General Manager”.\n\nOmit “a Registry official is designated by the Industrial Registrar for the purposes of subsection (1), the actions that the official may take are as follows”, substitute “the General Manager is authorised for the purposes of subsection (1), he or she may take the following actions”.\n\nOmit “designated Registry official”, substitute “member of the staff of FWA (an official) to whom powers of the General Manager under section 202 have been delegated under section 343A”.\n\nOmit “Registry official”, substitute “member of the staff of FWA to whom powers of the General Manager under section 202 have been delegated under section 343A”.\n\nNote: The heading to section 207 of Schedule 1 is altered by omitting “Industrial Registrar” and substituting “General Manager”.\n\nNote: The heading to section 233 of Schedule 1 is altered by omitting “in Industrial Registry” and substituting “with FWA”.\n\nNote: The heading to section 247 of Schedule 1 is altered by omitting “Industrial Registrar” and substituting “General Manager”.\n\nNote: The heading to section 268 of Schedule 1 is altered by omitting “in Industrial Registry” and substituting “with FWA”.\n\nNote: The heading to subsection 310(1) of Schedule 1 is altered by omitting “Industrial Registrar” and substituting “General Manager”.\n\nNote: The heading to section 330 of Schedule 1 is altered by omitting “Registrar or staff” and substituting “General Manager”.\n\nNote: The heading to subclause 5(6) of Schedule 10 is altered by omitting “Registrar” and substituting “General Manager”.\n\n (a) a modern award or an enterprise agreement that, immediately before that day, covered a proposed de‑registering organisation and its members covers, by force of this section, the proposed amalgamated organisation and its members; and\n (aa) a modern award, an order of FWA or an enterprise agreement that, immediately before that day, applied to a proposed de‑registering organisation and its members applies to, by force of this section, the proposed amalgamated organisation and its members; and\n\nNote: The heading to section 76 of Schedule 1 is altered by omitting “awards, orders and collective agreements” and substituting “modern awards, orders and enterprise agreements”.\n\nOmit “an award or a collective agreement that was, immediately before the day the registration takes effect, binding on ”, substitute “a modern award or an enterprise agreement that, immediately before the day the registration takes effect, covered”.\n\n (a) before the commencement of this item, a thing was done under, or for the purposes of, a provision of Schedule 1 to the WR Act (as in force from time to time) by, or in relation to, a person or body mentioned in column 1 of the table; and\n\n

Things done before the commencement of this item

Item

If the thing was done by, or in relation to ...

then, after that commencement, the thing has effect as if it had been done by, or in relation to ...

1

the Commission

FWA.

2

the Industrial Registry

FWA.

3

the Industrial Registrar

the General Manager.

4

a Registrar

the General Manager.

5

a member of the Commission

an FWA member.

6

a Presidential Member

the President or a Deputy President.

7

a Registry official

the General Manager.

8

a designated Registry official

a member of the staff of FWA.

\n```\n\nNote: For how the thing has effect after the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012 (which changes the name of Fair Work Australia to become the Fair Work Commission, etc.), see Part 10 of Schedule 3 to the FW Act.\n\n(2) Without limiting subitem (1), a reference in that subitem to a thing being done in relation to a person or body includes a reference to:\n\n (a) an application, request, statement, objection, disclosure, direction or referral being made or given to, or lodged with, the person or body; and\n\n (a) before the commencement of this item, an instrument was made under, or for the purposes of, a provision of Schedule 1 to the WR Act (as in force from time to time); and\n\n

Instruments in force immediately before the commencement of this item

Item

A reference in the instrument to ...

has effect after that commencement as if it were a reference to ...

1

the Commission

FWA.

2

the Industrial Registry

FWA.

3

the Industrial Registrar

the General Manager.

4

a Registrar

the General Manager.

5

a member of the Commission

an FWA member.

6

a Presidential Member

the President or a Deputy President.

7

a Registry official

the General Manager.

8

a designated Registry official

a member of the staff of FWA.

\n```\n\nNote: For how the instrument has effect after the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012 (which changes the name of Fair Work Australia to become the Fair Work Commission, etc.), see section 25B of the Acts Interpretation Act 1901.\n\n(2) Subject to subitem (3), a reference in the instrument to a provision of Schedule 1 to the WR Act is to be construed, after the commencement of this item, as a reference to the same provision of the Fair Work (Registered Organisations) Act 2009.\n\n(3) Subitem (2) does not apply to a reference that is expressed as a reference to a provision as in force at a time that is before the commencement of this item.\n\n (b) references in that Act to an enterprise agreement included a reference to an agreement‑based transitional instrument.\n\nThe register of organisations kept by the Industrial Registry under paragraph 13(1)(a) of Schedule 1 to the WR Act in its form immediately before the commencement of this item is taken, after that commencement, to be the register of organisations kept by the FWC under paragraph 13(1)(a) of the Fair Work (Registered Organisations) Act 2009.\n\n (a) subparagraph 73(2)(c)(i) of the Fair Work (Registered Organisations) Act 2009 applies in relation to contraventions of the WR Act (as in force from time to time) that occurred before the commencement of this item; and\n (b) subparagraph 73(2)(c)(ii) of that Act applies in relation to breaches of orders made under the WR Act (as in force from time to time) that occurred before the commencement of this item.\n\n(1) Part 4A of Chapter 11 of the Fair Work (Registered Organisations) Act 2009 applies as if a disclosure of information made to a person referred to in subparagraph 337A(b)(i) or (ii) of Schedule 1 to the WR Act:\n\n (i) if the person is of a kind referred to in subparagraph 337A(b)(i) of that Schedule 1 to the WR Act—the cessation time for the Industrial Registrar under item 7 of Schedule 18 to this Act; or\n (ii) if the person is of a kind referred to in subparagraph 337A(b)(ii) of Schedule 1 to the WR Act—the cessation time for the Workplace Authority Director under item 7 of Schedule 18 to this Act;\n\n(2) Paragraph 337A(d) of the Fair Work (Registered Organisations) Act 2009 applies as if references in that paragraph to contraventions of the FW Act included references to contraventions of the WR Act (as in force from time to time) that occurred before the commencement of this item.\n\nFor the purposes of the Fair Work (Registered Organisations) Act 2009, an association that, immediately before the commencement of this item, was a transitionally registered association is taken, on that commencement, to be a transitionally recognised association.\n\nAdd:\n\nAdd:\n\n (3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.\n\n (a) a period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include:\n\n (4A) Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly.\n\n (2) The terms of a modern award or enterprise agreement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).\n\n> Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with averaging terms in a modern award or enterprise agreement (whether the terms comply with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62\\. The averaging terms will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).\n\n (2) The agreed averaging arrangement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).\n\n> Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with an agreed averaging arrangement (whether the arrangement complies with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62\\. The averaging arrangement will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).\n\nAdd:\n\n> Note: A person who is an employer may also be an outworker entity (see the definition of outworker entity in section 12).\n\n (b) a modern enterprise award that is expressed to cover one or more specified classes of employers (other than a modern enterprise award that is expressed to relate to one or more enterprises as described in paragraph 168A(2)(b)).\n\nAdd:\n\n> Note: In Brodie‑Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.\n\nAdd:\n\n Employer response action for a proposed enterprise agreement does not affect the continuity of employment of the employees who will be covered by the agreement, for such purposes as are prescribed by the regulations.\n\n| 50 (other than in relation to a contravention or proposed contravention of a term that would be an outworker term if it were included in a modern award) |\n| -------------------------------------------------------------------------------------------------------------------------------------------------------- |\n\n| 5 | 50 (in relation to a contravention or proposed contravention of a term that would be an outworker term if it were included in a modern award) | (a) an 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 |\n| --- | --------------------------------------------------------------------------------------------------------------------------------------------- | ----------------------------------------------------------------------------- | ------------------------------------------------------------------------------------------------ | ---------------- |\n\nAdd:\n\n (b) this Part has effect as if the matters referred to subparagraphs (a)(i) to (iii) were set out in such an item in the table.\n\n to:\n\n of:\n only if the employee organisation is entitled to represent the industrial interests of an outworker to whom the term relates.\n\nOmit “referred to in the relevant item in column 4 of the table in subsection 539(2) for contravening”, substitute “that a court could have ordered the person to pay under section 546 if the court was satisfied that the person had contravened”.\n\nAdd:\n\n> Note: In Brodie‑Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.\n\n## 168A Modern enterprise awards\n\n (1) This Division contains additional provisions that relate to modern enterprise awards. The provisions in this Division have effect despite anything else in this Part.\n (ii) a body, association, office or other entity established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or\n (4) For the purposes of subsection (3), if 2 or more employers carry on a business, project or undertaking as a joint venture or common enterprise, the employers are taken to be one employer.\n\n## 168B The modern enterprise awards objective\n\n (1) FWA must recognise that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. This is the modern enterprise awards objective.\n (2) The modern enterprise awards objective applies to the performance of FWA’s functions or powers under this Act, so far as they relate to modern enterprise awards.\n (3) A reference to the modern awards objective in this Act, other than section 134, is taken to include a reference to the modern enterprise awards objective.\n\n## 168C Rules about making and revoking modern enterprise awards\n\n> Note: Modern enterprise awards can be made only in accordance with the enterprise instrument modernisation process provided for by Part 2 of Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.\n\n (b) all the employees covered by the award will, when the revocation comes into operation, be covered by a different modern award (other than the miscellaneous modern award or a modern enterprise award) that is appropriate for them.\n (4) In deciding whether to make a determination revoking a modern enterprise award FWA must take into account the following:\n (c) the terms and conditions of employment applying in the industry in which the persons covered by the modern enterprise award operate, and the extent to which those terms and conditions are reflected in the modern enterprise award;\n (e) the likely impact on the persons covered by the modern enterprise award, and the persons covered by the modern award referred to in paragraph (3)(b), of a decision to revoke, or not revoke, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;\n\n## 168D Rules about changing coverage of modern enterprise awards\n\n (1) FWA must not make a determination varying a modern enterprise award so as to extend the coverage of the modern enterprise award so that it ceases to be a modern enterprise award.\n (2) In deciding whether to make a determination varying the coverage of a modern enterprise award in some other way, FWA must take into account the following:\n (b) whether there is a modern award (other than the miscellaneous modern award or a modern enterprise award) that would, but for the modern enterprise award, cover the persons covered, or proposed to be covered, by the modern enterprise award;\n (d) the terms and conditions of employment applying in the industry in which the persons covered, or proposed to be covered, by the modern award operate, and the extent to which those terms and conditions are reflected in the modern enterprise award;\n (f) the likely impact on the persons covered, or proposed to be covered, by the modern enterprise award, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the variation, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;\n\n (1) If FWA makes one or more determinations varying modern award minimum wages in an annual wage review, FWA must publish the rates of those wages as so varied:\n\n(1) A State reference public sector transitional award is a State reference transitional award or common rule in relation to which the following conditions are satisfied:\n\n (a) the only employers that are expressed to be covered by the award or common rule are one or more specified State reference public sector employers;\n (b) the only employees who are expressed to be covered by the award or common rule are specified State reference public sector employees of those employers.\n\nNote: State reference transitional awards and common rules are continued in existence as transitional instruments by Schedule 3.\n\n(2) A State reference public sector employee is a State reference employee who is a State public sector employee as defined in section 30A or 30K of the FW Act.\n\n(3) A State reference public sector employer is a State reference employer that is a State public sector employer as defined in section 30A or 30K of the FW Act.\n\n (a) a State reference transitional award or common rule (the current award) covers one or more State reference public sector employers, and State reference public sector employees of those employers; and\n\nthen, for the purposes of this Act, the current award is taken instead to constitute 2 separate State reference transitional awards or common rules as follows:\n\n (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a)—that organisation in relation to those employers or employees; and\n (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b)—that organisation in relation to those employers or employees.\n\n(1) The State reference public sector transitional award modernisation process is the process of making State reference public sector modern awards under this Division covering employers, employees and organisations that are covered by State reference public sector transitional awards.\n\n(2) A State reference public sector modern award is a modern award in relation to which the following conditions are satisfied:\n\n (a) the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers;\n (b) the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers.\n\n(1) An employer or organisation that is covered by a State reference public sector transitional award (the current award) may apply to the FWC for the making of a State reference public sector modern award (the proposed award).\n\n(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.\n\n(3) The application must specify the employers, employees and organisations (the proposed parties) proposed to be covered by the proposed award.\n\n(4) The FWC must consider the application, and must make a State reference public sector modern award covering the proposed parties if the FWC is satisfied that:\n\nNote: The proposed parties will cease to be covered by State reference public sector transitional awards when the State reference public sector modern award comes into operation: see item 29 of Schedule 3.\n\n(1) An employer or organisation that is covered by a State reference public sector transitional award (the current award) may apply to the FWC or the Commission to terminate the current award.\n\n(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.\n\n(3) The FWC or the Commission must not terminate the current award unless the FWC or the Commission is satisfied that the employees who are covered by the current award will, if the current award is terminated, be covered by a modern award (other than the miscellaneous modern award) that, at the time of the termination, is or is likely to be in operation and that is appropriate for them.\n\n (b) the terms and conditions of employment applying in the industry or occupation in which the persons covered by the current award operate, and the extent to which those terms and conditions are reflected in the current award;\n (c) the extent to which the current award facilitates arrangements, and provides terms and conditions of employment, referred to in paragraphs 7(2)(a) and (b);\n (d) the likely impact on the persons covered by the current award of a decision to terminate, or not to terminate, the current award;\n\n(5) If the FWC or the Commission terminates the current award, the termination operates from the day specified in the decision to terminate the current award, being a day that is not earlier than the FW (safety net provisions) commencement day.\n\n(6) If the Commission terminates the current award, the termination is taken, after the Commission has ceased to exist, to have been made by the FWC.\n\nIf, at the end of the period referred to in subitem 4(2), there are one or more State reference public sector transitional awards that still cover some employers and employees, the FWC must make, or (in accordance with section 168L of the FW Act) vary the coverage of, one or more State reference public sector modern awards so that all those employers and employees are covered by State reference public sector modern awards.\n\nNote: The employers and employees will cease to be covered by the State reference public sector transitional awards when they start to be covered by a State reference public sector modern award that is in operation: see item 29 of Schedule 3.\n\n(1) If the FWC is required by item 4 or 6 to make a State reference public sector modern award, the modern awards objective and the minimum wages objective apply to the making of the modern award.\n\n (a) the need to facilitate arrangements for State reference public sector employers and State reference public sector employees that are appropriately adapted to the effective administration of a State; and\n (b) that State reference public sector modern awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to State reference public sector employers and State reference public sector employees.\n\nNote 1: See also item 13 (State reference public sector transitional award modernisation process is not intended to result in reduction in take‑home pay).\n\nNote 2: See also item 19 (how the FW Act applies in relation to the State reference public sector transitional award modernisation process before the FW (safety net provisions) commencement day).\n\n(1) Division 3 (other than sections 143 and 154) of Part 2‑3 of the FW Act (which deals with terms of modern awards) applies in relation to a State reference public sector modern award made under this Division.\n\nNote: See also item 19 (how the FW Act applies in relation to the State reference public sector transitional award modernisation process before the FW (safety net provisions) commencement day).\n\n(2) If FWA makes a State reference public sector modern award before the FW (safety net provisions) commencement day, the State reference public sector modern award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day.\n\n(1) A State reference public sector modern award must include terms (coverage terms) setting out, in accordance with this item, the employers, employees and organisations that are covered by the State reference public sector modern award.\n\n (a) the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers; and\n (b) the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers.\n\n(3) A State reference public sector modern award may be expressed to cover one or more specified organisations, in relation to:\n\n10 Variation and termination of State reference public sector transitional awards to take account of the modernisation process\n\n(1) If a State reference public sector modern award completely replaces a State reference public sector transitional award, the transitional award terminates when the modern award comes into operation.\n\n(2) If a State reference public sector modern award partially replaces a State reference public sector transitional award, the FWC must, as soon as practicable after the modern award comes into operation, vary the transitional award so that employees who are covered by the modern award are no longer covered by the transitional award.\n\n (a) the modern award completely replaces the transitional award if all the employees who are covered by the transitional award become covered by the modern award when it comes into operation; and\n (b) the modern award partially replaces the transitional award if only some of the employees who are covered by the transitional award become covered by the modern award when it comes into operation.\n\nNote: This item does not limit the effect of any other provision of this Act under which a transitional instrument (a State reference public sector transitional award is a transitional instrument) ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.\n\n(1) The FWC must, at least 6 months before the end of the period specified in subitem 4(2), advise any persons still covered by a State reference public sector transitional award:\n\n (b) that the FWC will, at the end of that period, commence the State reference public sector transitional award modernisation process in relation to the transitional award for any employees and employers who are still covered by the transitional award at that time.\n\n(3) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s functions and powers under this item.\n\nThe regulations may deal with other matters relating to the State reference public sector transitional award modernisation process.\n\n13 State reference public sector transitional award modernisation process is not intended to result in reduction in take‑home pay\n\n(1) The State reference public sector transitional award modernisation process is not intended to result in a reduction in the take‑home pay of employees.\n\nNote: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.\n\n (a) a State reference public sector modern award made in the State reference public sector transitional award modernisation process starts to apply to the employee when the modern award comes into operation; and\n (b) 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 State reference public sector modern award came into operation; and\n (c) the amount of the employee’s take‑home pay for working particular hours or for a particular quantity of work after the State reference public sector 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 modern award came into operation; and\n (d) that reduction in the employee’s take‑home pay is attributable to the State reference public sector transitional award modernisation process.\n\n(1) If the FWC is satisfied that an employee, or a class of employees, to whom a State reference public sector modern award applies has suffered a modernisation‑related reduction in take‑home pay, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation.\n\n(3) If the FWC is satisfied that an application for a take‑home pay order has already been made in relation to an employee or a class of employees, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees.\n\n (b) the FWC is satisfied that the employee or employees have been adequately compensated in other ways for the reduction.\n\n (a) it does not apply to an employee unless the employee has actually suffered a modernisation‑related reduction in take‑home pay; and\n (b) if the take‑home pay payable to the employee under the State reference public sector modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee under the order.\n\n16 Take‑home pay order continues to have effect so long as State reference public sector modern award continues to cover the employee or employees\n\nA take‑home pay order made in relation to an employee or class of employees to whom a particular State reference public sector modern award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the State reference public sector modern award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.\n\nA term of a State reference public sector modern award or an enterprise agreement has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of a take‑home pay order that applies to the employee.\n\nFor the purposes of making a State reference public sector modern award before the FW (safety net provisions) commencement day, the following provisions of the FW Act apply as if they had already commenced:\n\n (e) any provisions that are necessary for the effectual operation of the provisions referred to in paragraphs (a) to (d).\n\n20 How the FW Act applies to modern awards made in the State reference public sector transitional award modernisation process\n\n(1) A State reference public sector modern award made under Division 2 is, for the purposes of the FW Act (and any other law), taken to be a modern award (being a State reference public sector modern award) within the meaning of that Act from the day on which the State reference public sector modern award is made.\n\n(2) Section 49 of the FW Act does not apply for the purpose of determining when the State reference public sector modern award comes into operation. Instead, the modern award comes into operation on the day on which it is expressed to commence, being a day that is not earlier than the day on which the modern award is made.\n\n(3) The regulations may deal with other matters relating to how the FW Act applies in relation to State reference public sector modern awards.\n\nPart 2—Transitional provisions relating to the application of the no‑disadvantage test to enterprise agreements made and varied during bridging period\n\n(1) Paragraph 186(2)(d) of the FW Act (including as that paragraph has effect under subsection 211(3) of that Act) and subsection 211(5) of that Act apply in relation to:\n\nas if the words “better off overall test” were omitted and the words “no‑disadvantage test as set out in Division 2 of Part 2 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted.\n\n(2) Paragraph 189(1)(b) of the FW Act applies in relation to an enterprise agreement made during the bridging period as if the words “better off overall test” were omitted and the words “no‑disadvantage test as set out in Division 2 of Part 2 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted.\n\nNote: This means that section 193 (which deals with passing the better off overall test) and subsections 211(4) and (5) (which deal with applying the better off overall test to agreements as proposed to be varied) of the FW Act will have no effect in relation to the approval by FWA of agreements and variations during the bridging period.\n\ndesignated award, for an employee or employees who are or may be covered by an enterprise agreement, means an award determined by the FWA under item 8, and includes an award taken to be so designated in relation to the employee or employees under item 7 (unless a different award has been designated in relation to the employee or employees under item 8).\n\n(2) Unless the contrary intention appears, this Division applies to an enterprise agreement as proposed to be varied in a corresponding way to the way in which it applies to an enterprise agreement.\n\n (a) a reference in a provision of this Division to an employee who is covered by the agreement is taken to be a reference to an employee who is one of the affected employees for the variation of the agreement (within the meaning of the FW Act); and\n (b) a reference in a provision of this Division to the employees who are covered by the agreement is taken to be a reference to the affected employees for the variation; and\n (c) a reference in a provision of this Division to an application for approval of the agreement under section 185 of the FW Act is taken to be a reference to an application for approval of a variation of the agreement under section 210 of that Act.\n\n(4) For the purposes of applying this Division to an enterprise agreement, a reference to an employee who is covered by the enterprise agreement is, so far as the context permits, taken to include a reference to a person who may at a future time be covered by the enterprise agreement.\n\n(1) An enterprise agreement passes the no‑disadvantage test if FWA is satisfied that the agreement does not, or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees who are covered by the agreement under any reference instrument relating to one or more of the employees.\n\n (ii) applied, immediately before the application was made for approval of the agreement under section 185 of the FW Act, to an employee referred to in that subitem, or would have applied to such an employee if he or she had been employed by the employer at that time;\n is taken, to the extent that it provides for long service leave, to be a reference instrument relating to the employee; and\n (b) if, apart from this subitem, the only reference instrument relating to the employee is a designated award for the employee—the designated award is to be disregarded to the extent (if any) that it provides for long service leave.\n\nNote: An enterprise agreement made during the bridging period will prevail over a law of a State or Territory, to the extent of any inconsistency, so far as that law deals with long service leave (see item 17).\n\n(3) An enterprise agreement or a variation of an enterprise agreement is taken to pass the no‑disadvantage test if there is no reference instrument in relation to any of the employees who are covered by the agreement.\n\n(4) To avoid doubt, if there is a reference instrument in relation to one or more, but not all, of the employees referred to in subitem (1):\n\n (a) if the agreement passes the no‑disadvantage test under subitem (1)—it passes the test in relation to all employees who are covered by the agreement; or\n (b) if the agreement does not pass the no‑disadvantage test under subitem (1)—it does not pass the test in relation to any employees who are covered by the agreement.\n\nNote 1: In addition to the no‑disadvantage test, during the bridging period, the Australian Fair Pay and Conditions Standard prevails over an enterprise agreement to the extent to which the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee or employees—see subitem 27(1).\n\nNote 2: From the FW (safety net provisions) commencement day, a term of an enterprise agreement has no effect to the extent it excludes the National Employment Standards or any provision of the National Employment Standards (see sections 55 and 56 of the FW Act).\n\nNote 3: This item applies to an enterprise agreement as proposed to be varied in a corresponding way to the way in which it applies to an enterprise agreement—see subitems 3(2) and (3).\n\n(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the no‑disadvantage test, FWA must disregard any individual flexibility arrangement that has been agreed to by an affected employee and his or her employer under the flexibility term in the agreement.\n\n(2) A relevant general instrument, for an employee who is covered by an enterprise agreement, is an award‑based transitional instrument:\n\n (a) that regulates, or would but for an enterprise agreement or another industrial instrument having come into operation regulate, any term or condition of employment of persons engaged in the same kind of work as that performed or to be performed by the employee under the enterprise agreement; and\n (b) that applied, or would but for an enterprise agreement or another industrial instrument having come into operation have applied, to the employee’s employer immediately before the day on which the application for approval of the agreement was made under section 185 of the FW Act.\n\n(1) In deciding whether an enterprise agreement passes, or does not pass, the no‑disadvantage test, FWA must consider it as in existence at the test time.\n\n(2) The test time is the time when the application for approval of the agreement was made under section 185 of the FW Act.\n\n(1) FWA may, on application by an employer, determine that an award is a designated award for an employee or class of employees of the employer.\n\n (a) the employee or employees are or may be employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee or employees:\n (ii) would, but for an enterprise agreement or another industrial instrument having come into operation, usually be regulated by an award; and\n (b) unless there is a designated award for the employee or employees, there would be no reference instrument relating to the employee or employees; and\n\n (a) must be an award or awards regulating, or that would, but for an enterprise agreement or another industrial instrument having come into operation, regulate, terms or conditions of employment of employees engaged in the same kind of work as the work performed or to be performed by the employee or employees; and\n (b) must, in the opinion of FWA, be an award or awards that would be appropriate for the purpose referred to in paragraph 8(3)(b) if an application were made for approval of an enterprise agreement under section 185 of the FW Act; and\n (c) must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).\n\n(4) An award determined under this item in relation to an employee or employees is taken to be the designated award determined by FWA under item 8 in relation to the employee or employees if, later, an application is made for approval of an enterprise agreement under section 185 of the FW Act, in relation to the employee or the employees.\n\n(5) Despite subitem (4), FWA may determine under item 8 that another award is a designated award in relation to the employee, or in relation to some or all of the employees, if:\n\n (a) FWA becomes aware of information that was not available to it at the time of the determination under subitem (1); and\n (b) FWA is satisfied that, had that information been available to it at that time, FWA would have determined under subitem (1) the other award to be the designated award.\n\n(7) In this item, a reference to an employee or employees of an employer includes a reference to a person or persons who may become an employee or employees of the employer.\n\n(1) This item applies to an enterprise agreement if there is no relevant general instrument in relation to an employee who is, or a class of employees who are, covered by the agreement.\n\n(2) FWA must determine that an award is a designated award for the employee or employees referred to in subitem (1), if it is satisfied that:\n\n (a) on the date on which the application for approval of the enterprise agreement was made under section 185 of the FW Act, the employee or employees are or would be employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee or employees:\n (ii) would, but for an enterprise agreement or another industrial instrument having come into operation, usually be regulated by an award; and\n\n (a) must be an award or awards regulating, or that would, but for an enterprise agreement or another industrial instrument having come into operation, regulate, terms or conditions of employment of employees engaged in the same kind of work as the work performed by the employee or employees under the enterprise agreement concerned; and\n (b) must, in the opinion of FWA, be appropriate for the purpose of deciding whether an enterprise agreement passes the no‑disadvantage test; and\n (c) must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).\n\nFor the purposes of paragraphs 7(2)(a) and 8(2)(a), an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by an employee are usually regulated by an award is taken to include an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee:\n\n (a) were, immediately before the reform commencement, usually regulated by a State award (within the meaning of the WR Act); or\n (b) would, but for an industrial instrument or a State employment agreement (within the meaning of the WR Act) having come into operation, usually have been so regulated immediately before the reform commencement.\n\n (b) may inform itself in any way it considers appropriate including (but not limited to) contacting any of the following:\n\n(2) In deciding whether to determine that an award is a designated award in relation to an employee or employees of an employer, FWA may inform itself in any way it considers appropriate including (but not limited to) contacting any of the following:\n\nPart 3—Other requirements and modifications applying to making and varying enterprise agreements during the bridging period\n\nParagraph 186(2)(c) of the FW Act (which deals with terms that contravene section 55 of that Act) does not apply in relation to:\n\nNote: Section 55 of the FW Act (which deals with the interaction between the National Employment Standards and enterprise agreements etc.) will apply after the end of the bridging period. Section 56 of that Act provides that a term of an enterprise agreement has no effect to the extent that it contravenes section 55.\n\nSubparagraph 186(6)(a)(ii) of the FW Act (which deals with a requirement for an enterprise agreement to have a term about settling disputes in relation to the National Employment Standards) applies in relation to:\n\nas if the words “as those provisions apply after the end of the bridging period” were added after “National Employment Standards”.\n\nNote: For disputes relating to the Australian Fair Pay and Conditions Standard as it applies during the bridging period, see item 27.\n\n(1) Subsection 187(4) of the FW Act (which deals with requirements relating to particular kinds of employees) does not apply in relation to:\n\n(2) Section 200 of the FW Act (which deals with requirements relating to outworkers) applies in relation to the agreement or variation as if:\n\n (a) references in that section to a modern award were references to an award, a State reference transitional award or common rule, or a notional agreement preserving State awards; and\n (b) references in that section to outworker terms were references to terms that are (or that would be, if the terms were in an award) outworker terms as defined in section 564 of the WR Act.\n\nThe FW Act applies during the bridging period as if section 206 (which deals with base rate of pay under enterprise agreements) were omitted.\n\nParagraph 185(3)(b) of the FW Act (which deals with extending the period within which an application must be made to FWA for approval of an enterprise agreement) does not apply in relation to an enterprise agreement made during the period of 14 days ending at the end of the bridging period.\n\nNote: If an application for approval of an enterprise agreement referred to in this item is not made to FWA within 14 days of it being made:\n\nParagraph 210(3)(b) of the FW Act (which deals with extending the period within which an application must be made to FWA for approval of a variation of an enterprise agreement) does not apply in relation to a variation of an enterprise agreement, if that variation was made during the period of 14 days ending at the end of the bridging period.\n\nNote: If an application for approval of a variation referred to in this item is not made to FWA within 14 days of it being made:\n\n17 Enterprise agreement made during the bridging period prevails over State and Territory laws dealing with long service leave\n\nDespite subsection 29(2) of the FW Act, an enterprise agreement made during the bridging period prevails over a law of a State or Territory, to the extent of any inconsistency, so far as that law deals with long service leave.\n\nNote: A term of such an enterprise agreement will still apply subject to a law of a State or Territory so far as that law is otherwise covered by paragraph 29(2)(a) or (b) of the FW Act.\n\nPart 4—Transitional provisions to apply the better off overall test after end of bridging period if award modernisation not yet completed\n\n18 Application of better off overall test to making of enterprise agreements that cover unmodernised award covered employees\n\n(1) This item applies in relation to an enterprise agreement made after the end of the bridging period if one or more of the employees covered by the agreement is an unmodernised award covered employee.\n\n(2) Despite section 193 of the FW Act, if the enterprise agreement is not a greenfields agreement, the agreement passes the better off overall test under that section only if:\n\n (b) the FWC is satisfied, as at the test time, that each unmodernised award covered employee, and each prospective unmodernised award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant award‑based transitional instrument and transitional APCS applied to the employee.\n\n(3) Despite section 193 of the FW Act, if the enterprise agreement is a greenfields agreement, the agreement passes the better off overall test under that section only if:\n\n (b) the FWC is satisfied, as at the test time, that each prospective unmodernised award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant award‑based transitional instrument and transitional APCS applied to the employee.\n\n(4) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award or relevant award‑based transitional instrument and transitional APCS applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.\n\n(5) If the relevant award‑based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded.\n\n19 Application of better off overall test to variation of enterprise agreements that cover unmodernised award covered employees\n\n(2) Despite subsections 211(4) and (5) of the FW Act, subitems (3) and (4) apply in relation to the variation for the purposes of the FWC being satisfied that the agreement as proposed to be varied passes the better off overall test.\n\n(3) An enterprise agreement as proposed to be varied passes the better off overall test if the FWC is satisfied, as at the test time, that:\n\n (a) each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee; and\n (b) each unmodernised award covered employee, and each prospective unmodernised award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant award‑based transitional instrument and transitional APCS applied to the employee.\n\n(4) For the purposes of determining whether the enterprise agreement as proposed to be varied passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award or relevant award‑based transitional instrument and transitional APCS applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.\n\n(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by an award covered employee and his or her employer under the flexibility term in the agreement.\n\n(6) If the relevant award‑based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded.\n\nprospective unmodernised award covered employee, for an enterprise agreement, means a person who, if he or she were an employee at the test time of an employer covered by the agreement:\n\n (a) for the purposes of item 18—means the time the application for approval of the agreement by the FWC was made under section 185 of the FW Act; and\n (b) for the purposes of item 19—means the time the application for approval of the variation of the enterprise agreement by the FWC was made under section 210 of that Act.\n\n (b) at the test time, is covered by an award‑based transitional instrument (the relevant award‑based transitional instrument) that:\n\nPart 4A—Transitional provisions to apply the better off overall test to enterprise agreements that cover Division 2B State award covered employees\n\n20A Application of better off overall test to making of enterprise agreements that cover Division 2B State award covered employees\n\n(1) This item applies in relation to an enterprise agreement made on or after the Division 2B referral commencement, if one or more of the employees covered by the agreement is a Division 2B State award covered employee.\n\n(2) Despite section 193 of the FW Act, if the enterprise agreement is not a greenfields agreement, the agreement passes the better off overall test under that section only if:\n\n (a) the FWC is satisfied as referred to in subsection (1) of that section, and paragraph (2)(b) of item 18 of this Schedule, in relation to the agreement (to the extent that those provisions are applicable); and\n (b) the FWC is satisfied, as at the test time, that each Division 2B State award covered employee, and each prospective Division 2B State award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee.\n\nNote: Section 193 of the FW Act and item 18 of this Schedule deal with testing enterprise agreements against other instruments (such as modern awards). An enterprise agreement to which this subitem applies will not be tested against one or more such other instruments in relation to Division 2B State award covered employees.\n\n(3) Despite section 193 of the FW Act, if the enterprise agreement is a greenfields agreement, the agreement passes the better off overall test under that section only if:\n\n (a) the FWC is satisfied as referred to in subsection (3) of that section and paragraph (3)(b) of item 18 of this Schedule in relation to the agreement (to the extent that those provisions are applicable); and\n (b) the FWC is satisfied, as at the test time, that each prospective Division 2B State award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee.\n\nNote: Section 193 of the FW Act and item 18 of this Schedule deal with testing enterprise agreements against other instruments (such as modern awards). An enterprise agreement to which this subitem applies will not be tested against one or more such other instruments in relation to prospective Division 2B State award covered employees.\n\n(4) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant Division 2B State award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.\n\n20B Application of better off overall test to variation of enterprise agreements that cover Division 2B State award covered employees\n\n(2) Despite subsections 211(4) and (5) of the FW Act, subitems (3) and (4) apply in relation to the variation for the purposes of the FWC being satisfied that the agreement as proposed to be varied passes the better off overall test.\n\n (a) the FWC is satisfied, as at the test time, as mentioned in subitem 19(3) of this Schedule in relation to the agreement as proposed to be varied (to the extent that subitem 19(3) is applicable); and\n (b) the FWC is satisfied, as at the test time, that each Division 2B State award covered employee, and each prospective Division 2B State award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee.\n\nNote: Item 19 of this Schedule deals with testing enterprise agreements as proposed to be varied against other instruments (such as modern awards). A variation to which this subitem applies will not be tested against one or more such other instruments in relation to Division 2B State award covered employees.\n\n(4) For the purposes of determining whether the enterprise agreement as proposed to be varied passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant Division 2B State award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.\n\n(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by a Division 2B State award covered employee and his or her employer under the flexibility term in the agreement.\n\nprospective Division 2B State award covered employee, for an enterprise agreement, means a person who, if he or she were an employee at the test time of an employer covered by the agreement:\n\n (a) for the purposes of item 20A—means the time the application for approval of the enterprise agreement by the FWC was made under section 185 of the FW Act; and\n (b) for the purposes of item 20B—means the time the application for approval of the variation of the enterprise agreement by the FWC was made under section 210 of that Act.\n\n21 Application made during bridging period for special low‑paid workplace determination—general requirement relating to minimum safety net\n\nSubsection 262(3) of the FW Act (which deals with a general requirement relating to the minimum safety net) applies in relation to an application for a special low‑paid workplace determination made during the bridging period as if the words “modern awards together with the National Employment Standards” were omitted and the words “awards (including State reference transitional awards and common rules) together with the Australian Fair Pay and Conditions Standard” were substituted.\n\n22 Special low‑paid workplace determination—employer must not previously have been covered by agreement‑based transitional instrument\n\n(1) Subsection 263(3) of the FW Act (which deals with additional requirements for making a special low‑paid workplace determination) applies in relation to a workplace determination, whether made during or after the bridging period, as if the reference in that subsection to an enterprise agreement included a reference to a collective agreement‑based transitional instrument.\n\n(3) In making a decision for the purposes of paragraph (2)(b) of this item, the FWC must take into account the objects set out in section 241 of the FW Act.\n\n23 Core terms of workplace determinations—assessment of determination made during bridging period against the no disadvantage test\n\nSubsection 272(4) of the FW Act (which deals with workplace determinations passing the better off overall test) applies in relation to a workplace determination made during the bridging period as if the words “better off overall test under section 193” were omitted and the words “no‑disadvantage test as set out in Division 2 of Part 2 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted.\n\n24 Core terms of workplace determinations—assessment of determination made after bridging period that covers unmodernised award covered employees against the better off overall test\n\n(1) This item applies in relation to a workplace determination made after the end of the bridging period if one or more of the employees who will be covered by the determination is an unmodernised award covered employee (within the meaning of Part 4).\n\n(2) Subsection 272(4) of the FW Act (which deals with workplace determinations passing the better off overall test) applies in relation to the workplace determination as if the words “under section 193” were omitted and the words “under item 18 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted.\n\n(2) Subsection 272(5) of the FW Act (which deals with terms relating to safety net requirements) does not apply in relation to the workplace determination, except in so far as that subsection prevents a workplace determination from including a term that would, if the determination were an enterprise agreement, mean that FWA could not approve the agreement because of the operation of section 200 of that Act (which deals with requirements relating to outworkers).\n\nNote: Section 55 of the FW Act (which deals with the interaction between the National Employment Standards and workplace determinations etc.) will apply after the end of the bridging period. Section 56 of that Act provides that a term of a workplace determination has no effect to the extent that it contravenes section 55.\n\n(3) Section 200 of the FW Act (which deals with requirements relating to outworkers) applies in relation to the workplace determination as if:\n\n (a) references in that section to a modern award were references to an award or a State reference transitional award or common rule; and\n (b) references in that section to outworker terms were references to outworker terms as defined in section 564 of the WR Act.\n\n(2) Paragraph 273(2)(b) of the FW Act (which deals with a requirement for a workplace determination to have a term about settling disputes in relation to the National Employment Standards) applies in relation to the workplace determination as if the words “as the National Employment Standards apply after the end of the bridging period” were added after “National Employment Standards”.\n\n(3) Subsection 273(3) of the FW Act (which deals with a requirement for a workplace determination to have a term about settling disputes) applies in relation to the workplace determination as if the reference to paragraph 186(6)(a) of the FW Act were a reference to that paragraph in its application to an enterprise agreement made during the bridging period (see item 12).\n\nNote: For disputes relating to the Australian Fair Pay and Conditions Standard as it applies during the bridging period, see item 27.\n\n(1) The Australian Fair Pay and Conditions Standard, in its application during the bridging period under item 2 of Schedule 4 and item 5 of Schedule 9 prevails over an enterprise agreement or a workplace determination that applies to an employee to the extent to which, in a particular respect, the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee.\n\n (a) whether the Australian Fair Pay and Conditions Standard provides a more favourable outcome for an employee in a particular respect than an enterprise agreement or workplace determination that applies to that employee; or\n (b) what the outcome is for an employee in a particular respect under the Australian Fair Pay and Conditions Standard, where an enterprise agreement or a workplace determination applies to that employee;\n\n(3) For the purposes of subitem (2), Divisions 2 and 3 of Part 13 of the WR Act apply as if a reference in those Divisions to the Commission or the Industrial Registrar were a reference to FWA.\n\n(4) The fact that the model dispute resolution process applies in relation to the dispute does not affect any right of a party to the dispute to take court action to resolve it.\n\n(6) Despite the WR Act repeal, regulations made for the purposes of subsection 172(4) of the WR Act continue to apply during the bridging period as if a reference in those regulations to a workplace agreement were a reference to an enterprise agreement and a workplace determination.\n\n(7) A term of an enterprise agreement or a workplace determination has no effect to the extent to which it purports to exclude the Australian Fair Pay and Conditions Standard or any part of it.\n\nPart 7—Transitional provision about the operation of the better off overall test if a transitional pay equity order applies\n\n (b) the FWC must decide whether the agreement, or the agreement as proposed to be varied, passes the better off overall test; and\n (c) an employer covered by the agreement, or the agreement as proposed to be varied, is an employer to which a transitional pay equity order applies; and\n (d) an employee covered by the agreement, or the agreement as proposed to be varied, is an affected employee of the employer referred to in paragraph (c).\n\n(2) For the purposes of determining whether the affected employee would be better off overall if the agreement, or the agreement as proposed to be varied, applied to the employee than if the relevant modern award applied to the employee, the base rate of pay payable under the relevant modern award to the employee is taken to be increased so that it is equal to the amount payable to the employee under the transitional pay equity order.\n\nPart 8—Transitional provisions relating to termination and sunsetting of enterprise agreements made during the bridging period\n\n(1) An enterprise agreement made during the bridging period ceases to operate at the end of the grace period for the agreement if the agreement has not already ceased to operate before that time.\n\n (a) subject to paragraph (b), the period of 12 months (the default period) beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences; or\n\n (b) if the default period is extended for the agreement on one or more occasions under subitem (6) or paragraph (10)(e)—the default period as so extended.\n\n(3) An employer covered by an enterprise agreement made during the bridging period must, before the end of 6 months beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences, give each employee who is covered by the agreement and employed by the employer at the end of that period written notice advising the employee:\n\n (b) that the agreement will terminate unless an application is made to the FWC under subitem (4), before the end of the period of 12 months beginning on the day that Part commences, for the FWC to extend the default period for the agreement; and\n\n(4) Any of the following may apply to the FWC, before the end of the grace period for an enterprise agreement made during the bridging period, for the FWC to extend the default period for the agreement for a period of no more than 4 years:\n\n (c) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the agreement.\n\n(6) If an application is made under subitem (4), the FWC must extend the default period for the enterprise agreement made during the bridging period for a period of no more than 4 years if the FWC is satisfied that:\n\n (a) the application is made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the enterprise agreement made during the bridging period; and\n\n(8) This subitem applies if it is likely that, as at the time the application is made, the award covered employees for the agreement under subitem (9), viewed as a group, would be better off overall if the agreement applied to the employees than if the relevant modern award or awards referred to in that subitem applied to the employees.\n\n(9) For the purposes of subitem (8), the award covered employees for an enterprise agreement made during the bridging period are the employees who:\n\n (b) at the time an application is made under subitem (4) in relation to the agreement, are covered by one or more modern awards (the relevant modern awards) that:\n\n (c) are employed at that time by an employer who is covered by the agreement and by one or more of the relevant modern awards.\n\n (b) the FWC has not made a decision on the application at a time (the critical time) that is immediately before what would (apart from this subitem) be the end of the grace period for the agreement;\n\n (e) if the FWC’s decision on the application is to refuse to extend the default period for the agreement under subitem (6)—the FWC must extend the default period until the end of:\n\n (ii) if the refusal decision specifies a later day that is not more than 14 days after the day the refusal decision is made—that later day.\n\n(11) If an enterprise agreement made during the bridging period ceases to operate in accordance with subitem (1), that does not affect:\n\n(12) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the agreement had not ceased to operate.\n\nThe following provisions of Part 8 of the WR Act continue to apply in relation to the collective agreement on and after the WR Act repeal day:\n\n (g) Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void);\n\nNote 1: The general effect of this provision is to preserve the Part 8 rules about lodgment, the no‑disadvantage test and prohibited content for collective agreements made before the WR Act repeal day, subject to the modifications set out in this Division. The rules about variation and termination of such collective agreements, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments).\n\nNote 2: The rules requiring a collective agreement to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).\n\n (a) the Workplace Authority Director must not consider whether the agreement passes the no‑disadvantage test under section 346D of the WR Act, as that section continues to apply because of item 3, unless:\n (i) the agreement is lodged before the end of the period (the cut‑off period) of 14 days referred to in subsection 342(1) or (2) of that Act; and\n (c) subsection 342(3) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 3, does not apply to the lodgment of the agreement.\n\nNote: The general effect of this provision is that unlodged collective agreements (other than union collective agreements) must be lodged within 14 days of being made in order to come into operation. Unlodged union collective agreements must have been approved before the WR Act repeal day and be lodged within 14 days of that approval in order to come into operation. However, late lodgment will not give rise to a civil remedy.\n\n(2) If the collective agreement is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the agreement cannot come into operation because it was lodged after the end of the cut‑off period, to the following:\n\n (b) if the agreement is a union collective agreement or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1) of the WR Act—the organisation or organisations that would have been covered by the agreement if it had come into operation.\n\n5 Modification—limits on variation of a collective agreement that operates from approval for the purpose of passing the no‑disadvantage test\n\n(1) Despite item 3, if the collective agreement is a workplace agreement that operates from approval, the rules in this item also apply.\n\nNote: The general effect of this item is that a collective agreement that operates from approval can only be varied for the purpose of passing the no‑disadvantage test if a variation for that purpose is lodged within a specified period.\n\n (a) a notice under section 346M of the WR Act about whether the agreement passes the no‑disadvantage test has not been given; or\n (b) a notice under subsection 346M(2) of the WR Act stating that the agreement does not pass the no‑disadvantage test has been given but a variation of the agreement, for the purposes of passing that test, has not been made; or\n (c) a notice under subsection 346M(2) of the WR Act stating that the agreement does not pass the no‑disadvantage test has been given and a variation of the agreement, for the purposes of passing that test, has been made but has not been lodged;\n\nthen Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 3, has effect in relation to the collective agreement subject to subitems (3) and (5).\n\n(3) Section 346N of the WR Act, as that section continues to apply because of item 3, has effect in relation to the agreement, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:\n\n(4) The Workplace Authority Director may extend the period referred to in paragraph (3)(b) in relation to a particular agreement in circumstances prescribed by the regulations.\n\n(5) Section 346Q of the WR Act, as that section continues to apply because of item 3, has effect in relation to the agreement, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the agreement as varied passes the no‑disadvantage test unless the variation is lodged within the period referred to in paragraph (3)(a) or (b).\n\nThis Division applies to a variation of a collective agreement under Division 8 of Part 8 of the WR Act, if the variation is made before the WR Act repeal day.\n\nThe following provisions of Part 8 of the WR Act continue to apply in relation to the variation on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules about lodgment and the no‑disadvantage test for variations under Division 8 made before the WR repeal day, subject to the modifications set out in this Division.\n\n (a) the Workplace Authority Director must not consider whether the varied agreement passes the no‑disadvantage test under section 346D of the WR Act, as that section continues to apply because of item 7, unless:\n (i) the variation is lodged before the end of the period (the cut‑off period) of 14 days referred to in subsection 375(1) of that Act; and\n (ii) for a variation of a union collective agreement or a union greenfields agreement—the variation was approved before the WR Act repeal day; and\n (b) subsection 375(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 7, does not apply to the variation.\n\nNote: The general effect of this provision is that unlodged variations of collective agreements must be lodged within 14 days of being approved in order to come into operation. Unlodged variations of union collective agreements and union greenfields agreements must also have been approved before the WR Act repeal day. However, late lodgment will not give rise to a civil remedy.\n\n(2) If the variation is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the variation cannot come into operation because it was lodged after the end of the cut‑off period, to the following:\n\n (b) if the agreement is a union collective agreement or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1) of the WR Act—the organisation or organisations covered by the agreement.\n\n (a) a notice under section 346M of the WR Act about whether the agreement as varied passes the no‑disadvantage test has not been given in relation to the variation; or\n (b) a notice under subsection 346M(2) of the WR Act stating that the agreement as varied does not pass the no‑disadvantage test has been given in relation to the variation, but a variation, for the purposes of passing that test, has not been made; or\n (c) a notice under subsection 346M(2) of the WR Act stating that the agreement as varied does not pass the no‑disadvantage test has been given in relation to the variation and a variation of the agreement, for the purposes of passing that test, has been made but has not been lodged;\n\nthen Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 7, has effect in relation to the variation, on and after the WR Act repeal day, subject to subitems (2) and (4).\n\n(2) Section 346N of the WR Act, as that section continues to apply because of item 7, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:\n\n (ii) the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the agreement as varied; or\n\n(3) The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular variation in circumstances prescribed by the regulations.\n\n(4) Section 346Q of the WR Act, as that section continues to apply because of item 7, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the agreement as varied passes the no‑disadvantage test unless the variation for the purposes of passing that test is lodged within the period referred to in paragraph (2)(a) or (b).\n\n(1) This item applies to a termination of a collective agreement, if the termination has been approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act before that day.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of workplace agreements approved before the WR Act repeal day, subject to the modifications set out in item 11\\. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n (a) the termination does not come into operation unless it is lodged before the end of the 14 day period (the cut‑off period) referred to in subsection 388(1) of the WR Act as that subsection continues to apply because of item 10; and\n (b) subsection 388(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 10, does not apply to the termination.\n\nNote: The general effect of this provision is that unlodged terminations must be lodged within 14 days of being made in order to come into operation. However, late lodgment will not give rise to a civil remedy.\n\n(2) If the termination is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because it was lodged after the end of the cut‑off period, to the following:\n\n (b) if the agreement is a union collective agreement or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1) of the WR Act—the organisation or organisations covered by the agreement.\n\n12 Unilateral termination of collective agreement in manner provided for in agreement general rule—continued application of lodgment provisions\n\n(1) This item applies to a termination of a collective agreement if a declaration to terminate the agreement is lodged under subsection 392(2) of the WR Act (which deals with unilateral termination in the manner provided in the agreement) before the WR Act repeal day.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to unilateral terminations of workplace agreements, if a declaration to terminate the agreement has been lodged before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n(1) This item applies to a collective agreement in relation to which an application has been made under subsection 397A(2) of the WR Act (which deals with termination by the Commission) before the WR Act repeal day.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the agreement on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to applications for terminations of workplace agreements by the Commission made before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the ITEA on and after the WR Act repeal day:\n\n (a) Divisions 1 to 5A of Part 8 (which deal with the making and lodgment of workplace agreements and the no‑disadvantage test);\n (d) Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void);\n\nNote 1: The general effect of this provision is to preserve the Part 8 rules about lodgment, the no‑disadvantage test and prohibited content in relation to ITEAs made before the WR Act repeal day, subject to the modification set out in item 15\\. The rules about making ITEAs after that day are contained in Division 7 of this Part. The rules about variation and termination of ITEAs after that day, and some other rules, are contained in Schedule 3 (which deals with transitional instruments).\n\nNote 2: The rules requiring an ITEA to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).\n\n15 Modification—limits on variation of an ITEA that operates from approval for the purpose of passing the no‑disadvantage test\n\n(1) Despite item 14, if the ITEA is a workplace agreement that operates from approval, the rules in this item also apply.\n\nNote: The general effect of this item is that an ITEA that operates from approval can only be varied for the purpose of passing the no‑disadvantage test if a variation for that purpose is lodged within a specified period.\n\n (a) a notice under section 346M of the WR Act about whether the ITEA passes the no‑disadvantage test has not been given; or\n (b) a notice under subsection 346M(2) of the WR Act stating that the ITEA does not pass the no‑disadvantage test has been given but a variation of the ITEA, for the purposes of passing that test, has not been made; or\n (c) a notice under subsection 346M(2) of the WR Act stating that the ITEA does not pass the no‑disadvantage test has been given and a variation of the ITEA, for the purposes of passing that test, has been made but has not been lodged;\n\nthen Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 14, has effect in relation to the collective agreement subject to subitems (3) and (5).\n\n(3) Section 346N of the WR Act, as that section continues to apply because of item 14, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:\n\n(4) The Workplace Authority Director may extend the period referred to in paragraph (3)(a) in relation to a particular ITEA in circumstances prescribed by the regulations.\n\n(5) Section 346Q of the WR Act, as that section continues to apply because of item 14, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the no‑disadvantage test unless the variation is lodged within the period referred to in paragraph (3)(a) or (b).\n\n(1) This item applies to a variation of an ITEA under Division 8 of Part 8 of the WR Act, if the variation is made before the WR Act repeal day.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the variation on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules about lodgment and the no‑disadvantage test for variations made before the WR Act repeal day of ITEAs, subject to the modification specified in item 17.\n\n (a) a notice under section 346M of the WR Act about whether the ITEA as varied passes the no‑disadvantage test has not been given in relation to the variation; or\n (b) a notice under subsection 346M(2) of the WR Act stating that the ITEA as varied does not pass the no‑disadvantage test has been given in relation to the variation, but a variation, for the purposes of passing that test, has not been made; or\n (c) a notice under subsection 346M(2) of the WR Act stating that the ITEA as varied does not pass the no‑disadvantage test has been given in relation to the variation and a variation of the ITEA, for the purposes of passing that test, has been made but has not been lodged;\n\nthen Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 16, has effect in relation to the variation, on and after the WR Act repeal day, subject to subitems (2) and (4).\n\n(2) Section 346N of the WR Act, as that section continues to apply because of item 16, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N before the end of:\n\n(3) The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular variation in circumstances prescribed by the regulations.\n\n(4) Section 346Q of the WR Act, as that section continues to apply because of item 16, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the no‑disadvantage test unless the variation for the purposes of passing that test is lodged within the period referred to in paragraph (2)(a) or (b).\n\n(1) This item applies to a termination of an ITEA, if the termination is approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act by that time.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs approved before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n(1) This item applies to a termination of an ITEA if a declaration to terminate the ITEA is lodged under subsection 392(2) of the WR Act (which deals with unilateral termination in the manner provided in the ITEA) before the WR Act repeal day.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs, if a declaration to terminate is lodged before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n20 Continued application of lodgment provisions where termination by written notice is given before the WR Act repeal day and lodged within 120 days\n\n(1) This item applies to an ITEA, if notice to terminate the ITEA is given in accordance with subsection 393(4) of the WR Act (which deals with unilateral termination by giving written notice) before the WR Act repeal day.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply on and after the WR Act repeal day in relation to the termination of the ITEA:\n\n (b) sections 393, 394, 395, 396, 397, 397A, 398 and 399A (which deal with matters relating to lodgment of terminations, etc.);\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs by written notice given before the WR Act repeal day, subject to the modifications set out in subitems (3) to (6). Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n(3) A declaration may only be lodged, in relation to the ITEA under subsection 393(2) of the WR Act, as that subsection continues to apply because of subitem (2), before the end of the period (the cut‑off period) of 120 days beginning on the WR Act repeal day.\n\n(4) Section 396 of the WR Act, as that section continues to apply because of subitem (2), does not apply in relation to the ITEA if the declaration is not lodged before the end of the cut‑off period.\n\n(5) Despite subsection 381(2) and section 398 of the WR Act, as those provisions continue to apply because of subitem (2), the termination of the ITEA does not take effect if the declaration is not lodged before the end of the cut‑off period.\n\n(6) If the termination is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because the declaration was lodged after the end of the cut‑off period, to the following:\n\n(1) Despite the repeal of Part 8 of the WR Act, an ITEA may, during the bridging period, be made under Division 2 of that Part as if that Part had not been repealed.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the ITEA on and after the WR Act repeal day:\n\n (a) Divisions 1 to 5A of Part 8 (which deal with the making and lodgment of workplace agreements and the no‑disadvantage test), other than sections 346ZJ and 346ZK (which deal with dismissing an employee if an agreement does not pass that test);\n (d) Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void);\n\nNote 1: The general effect of this provision is to permit ITEAs to be made during the bridging period and to preserve the Part 8 rules about lodgment, the no‑disadvantage test and prohibited content, subject to the modifications set out in this Division. The rules about variation and termination of ITEAs on and after the WR Act repeal day, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments).\n\nNote 2: The rules requiring an ITEA to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).\n\n(4) If the ITEA is lodged after the end of the bridging period, the Workplace Authority Director must give a written notice, stating that the ITEA cannot come into operation because the ITEA was lodged after the end of the bridging period, to the following:\n\n(2) For the purposes of the application to the ITEA of section 346E of the WR Act, as that section continues to apply because of item 21, enterprise agreements and workplace determinations are taken to be specified in subsection 346E(3) (in addition to the other instruments so specified).\n\n(3) For the purposes of the application to the ITEA of section 346ZB of the WR Act, as that section continues to apply because of item 21, enterprise agreements and workplace determinations (within the meaning of the FW Act) are taken to be specified in subsection 346ZB(5) (in addition to the other instruments so specified).\n\n23 Modification—limits on variation of an ITEA that operates from approval for the purpose of passing the no‑disadvantage test\n\n(1) Despite item 21, if the ITEA is a workplace agreement that operates from approval, the rules in this item also apply.\n\n(2) Section 346N of the WR Act, as that section continues to apply because of item 21, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:\n\n (a) the period of 30 days beginning on the seventh day after the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the ITEA; or\n\n(3) The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular ITEA in circumstances prescribed by the regulations.\n\n(4) Section 346Q of the WR Act, as that section continues to apply because of item 21, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the no‑disadvantage test unless the variation is lodged within the period referred to in paragraph (2)(a) or (b).\n\n(2) For the purposes of the application to the ITEA of subsection 400(5) of the WR Act, as that subsection continues to apply because of item 21, the circumstance referred to in subsection 400(6) of that Act is taken to include a reference to the circumstance referred to in subitem 25(2).\n\n(1) Despite section 342 of the FW Act, a prospective employer does not contravene subsection 340(1) of that Act if, during the bridging period, the person refuses to employ a person merely because the person requires another person to make an ITEA as a condition of engagement, other than in the circumstance referred to in subitem (2).\n\n(1) This item applies if the Workplace Authority Director is required, because of the application of this Schedule to a workplace agreement, to decide, on or after the WR Act repeal day, whether the workplace agreement passes the no‑disadvantage test.\n\n(2) Division 7A of Part 11 of the WR Act continues to apply, in relation to the workplace agreement, as if that Division had not been repealed, with the following modifications:\n\n (a) references to a workplace agreement binding an employer or an employee are taken to include references to a workplace agreement that is a transitional instrument covering an employer or employee;\n (b) references to sections 583 and 585 of the WR Act (other than in section 601D) are taken to include references to section 313 of the FW Act;\n (c) enterprise agreements and workplace determinations (within the meaning of the FW Act) are taken to be specified in the definition of instrument in subsection 601D(5) (in addition to the other instruments so specified);\n (d) the reference in subparagraph 601G(1)(b)(i) to the instrument described in paragraph 601D(2)(a) is taken to include a reference to the instrument described in paragraph 27(2)(a) of this Schedule;\n (e) the reference in subparagraph 601G(1)(b)(ii) to section 598A or clause 27A of Schedule 9 is taken to include a reference to item 9 of Schedule 11;\n (f) the reference in paragraph 601H(1)(b) to the time of transmission is taken to include a reference to the time when the new employer first employs a transferring employee;\n (g) paragraph 601H(2)(d) does not apply if the workplace agreement applies to the new employer because of the operation of section 313 of the FW Act.\n\n27 Employment arrangements if there is a transfer of business and a workplace agreement ceases to operate because it does not pass the no‑disadvantage test\n\n (a) on a particular day (the cessation day), a workplace agreement (the original agreement) ceases to operate under section 346W or 346ZA of the WR Act (as those provisions continue to apply because of the operation of this Schedule) because the original agreement does not pass the no‑disadvantage test; and\n (b) during the period beginning when the original agreement was lodged and ending on the cessation day, the original agreement started to cover a new employer and a transferring employee or transferring employees because of the operation of section 313 of the FW Act.\n\n(2) Despite subsection 346ZB(2) of the WR Act (as that provision continues to apply because of the operation of this Schedule), the new employer and the transferring employee or transferring employees who were covered by the original agreement immediately before the cessation day are taken, on and from the cessation day, to be covered by:\n\n (i) that, but for the original agreement having come into operation, would have covered the old employer and the transferring employee or transferring employees immediately before the termination of the employment of the transferring employee or transferring employees with the old employer; and\n (ii) that was capable of covering the new employer after the time the transferring employee or transferring employees became employed by the new employer under Schedule 11; or\n (b) if there is no instrument of a kind referred to in paragraph (a) in relation to the old employer and one or more of the transferring employees—the designated award (within the meaning of Division 5A of Part 8 of the WR Act) in relation to that employee or those employees.\n\n(3) If, but for the original agreement having come into operation, a redundancy provision would, immediately before the termination of the employment of a transferring employee or transferring employees with the old employer, have applied to the old employer in relation to a transferring employee or transferring employees to who the original agreement applied because of a preservation item (within the meaning of item 9 of Schedule 11) relating to the agreement, the redundancy provision is taken:\n\n (a) to apply to the new employer under item 9 of Schedule 11, on and from the cessation day, in relation to the transferring employee or transferring employees; and\n (b) to continue to so apply to the employer, in relation to the transferring employee or transferring employees, until the earliest of the following:\n (i) the end of the period of 24 months beginning on the first day on which the old employer became covered, under the preservation item, by the redundancy provision;\n (iii) the time when an enterprise agreement, workplace determination or ITEA starts to apply to the transferring employee or transferring employees and the new employer.\n\n(4) If the original agreement is a workplace agreement as varied under Division 8 of Part 8 of the WR Act, the workplace agreement as in force before the variation was lodged is, despite section 346ZE of that Act (as that section continues to apply because of the operation of this Schedule), capable of being an instrument described in paragraph (2)(a).\n\n (a) if the termination of the employment of the transferring employee or transferring employees with the old employer occurred before the WR Act repeal day—any of the following:\n (b) if the termination of the employment of the transferring employee or transferring employees with the old employer occurred on or after the WR Act repeal day—any of the following:\n\nTo avoid doubt, a reference in this Part to a variation under Division 8 of Part 8 of the WR Act does not include a reference to a variation made for the purposes of passing the no‑disadvantage test.\n\nDespite any other provision of Division 5A of Part 8 of the WR Act, as that Division continues to apply because of this Schedule in relation to:\n\nonly one variation for the purposes of passing the no‑disadvantage test of the agreement or variation may be lodged with the Workplace Authority Director on or after the WR Act repeal day.\n\nTo avoid doubt, sections 324A, 368A and 381A of the WR Act continue to have effect for the purposes of a provision of the WR Act that continues to apply because of this Act.\n\n(2) Despite the repeal of section 506 of the WR Act, Subdivision B of Division 7 of Part 8 of that Act (which deals with prohibited content), other than section 358 (which deals with prohibited content being void), continues to apply in relation to the workplace determination on and after the WR Act repeal day as if that section had not been repealed.\n\nNote 1: The general effect of this provision is to preserve the Part 8 rules about prohibited content for workplace determinations made before the WR Act repeal day. The rules about variation and termination of such workplace determinations, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments).\n\nNote 2: The rules about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).\n\n(1) This item applies to a termination of a workplace determination, if the termination has been approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act before that day.\n\nNote: Under subsection 506(3) of the WR Act, a workplace determination can only be terminated under Subdivision B of Division 9 of Part 8 of that Act after the determination has passed its nominal expiry date.\n\n(2) Despite the repeal of section 506 of the WR Act, the following provisions of that Act continue to apply in relation to the termination on and after the WR Act repeal day, as if that section had not been repealed:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of workplace determinations approved before the WR Act repeal day, subject to the modification set out in item 32\\. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n (a) the termination does not come into operation unless it is lodged before the end of the 14 day period (the cut‑off period) referred to in subsection 388(1) of the WR Act as that subsection continues to apply because of item 31; and\n (b) subsection 388(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 31, does not apply to the termination.\n\nNote: The general effect of this provision is that unlodged terminations must be lodged within 14 days of being made in order to come into operation. However, late lodgment will not give rise to a civil remedy.\n\n(2) If the termination is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because it was lodged after the end of the cut‑off period, to the following:\n\nunlodged termination, in relation to a workplace determination, means a termination of a workplace determination approved in accordance with section 386 of the WR Act, but not lodged with the Workplace Authority Director under section 389 of that Act as at the WR Act repeal day.\n\n(1) This item applies to a workplace determination in relation to which an application has been made under subsection 397A(2) of the WR Act (which deals with termination by the Commission) before the WR Act repeal day.\n\n(2) Despite the repeal of section 506 of the WR Act, the following provisions of that Act continue to apply in relation to the workplace determination on and after the WR Act repeal day as if that section had not been repealed:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to applications for terminations of workplace determinations by the Commission made before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\nTo avoid doubt, section 381A of the WR Act continues to apply for the purposes of a provision of that Act that continues to apply because of this Part.\n\nFWA may, before the start of the period referred to in item 2, exercise powers for the purpose of obtaining information to be taken into account in its first annual wage review. Powers that may be exercised include:\n\n(1) In its first annual wage review, FWA does not have to set a full range of special national minimum wages covering all the classes of employees referred to in paragraph 294(1)(b) of the FW Act.\n\n(2) However, FWA must set a special national minimum wage for a class or subclass of those employees in its first annual wage review if the transitional national minimum wage order sets a special national minimum wage order for those employees.\n\nNote: The transitional national minimum wage order is taken to have been made on the FW (safety net provisions) commencement day: see item 12.\n\n(3) If FWA does not set a full range of special national minimum wages in its first annual wage review, the President of FWA must establish a process for the setting of the remaining special national minimum wages in FWA’s second annual wage review.\n\n(5) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (4).\n\n(1) Division 2 (other than as provided in subitem (2)) of Part 7 of the WR Act continues to apply on and after the WR Act repeal day in accordance with this Part. That Division as it continues to apply is the continued AFPCS wages provisions.\n\nNote 1: Part 7 of the WR Act contains the Australian Fair Pay and Conditions Standard. Schedule 4 provides for the continued application of the rest of the Standard during the bridging period. The effect of this Division is not limited just to the bridging period.\n\nNote 2: Schedule 3 provides for the continued application of the rules about the interaction between transitional instruments and the Australian Fair Pay and Conditions Standard.\n\n (a) subsections 182(1) and (2), and Subdivisions H, I, L and M, cease to apply when there are no longer any employees covered by transitional APCSs (see also item 11);\n (b) subsections 182(3) and (4), section 185 and Subdivision G cease to apply at the end of the bridging period (see also item 12;\n\n(3) Without limiting subitem (1) (but subject to subitem (2)), each of the following, as it was under Division 2 of Part 7 of the WR Act immediately before the WR Act repeal day, continues to exist, as a transitional minimum wage instrument, in accordance with this Part on and after that day:\n\n(4) Despite item 6 of Schedule 2, the following provisions of Part 21 of the WR Act do not apply in relation to the continued AFPCS wages provisions:\n\n(1) The provisions of the WR Act that continue to apply because of item 5 have effect as if a reference in the provisions to a workplace agreement included a reference to an enterprise agreement.\n\n (a) a transitional APCS covers an employee if, under sections 204 and 205 of the continued AFPCS wages provisions, the APCS covers the employment of the employee;\n (b) the transitional standard FMW covers an employee if, under section 194 of the continued AFPCS wages provisions, the FMW for the employee is the standard FMW;\n (c) a transitional special FMW covers an employee if, under section 194 of the continued AFPCS wages provisions, the FMW for the employee is that special FMW;\n (d) the transitional default casual loading covers an employee who is described in subsection 185(1) of the continued AFPCS wages provisions.\n\n(2) However, a transitional APCS does not cover an employee (or an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act).\n\n(1) Despite anything in the continued AFPCS wages provisions, a transitional minimum wage instrument cannot be varied or terminated (or otherwise brought to an end) except as referred to in one of the following subitems.\n\n(2) The AFPC can exercise its wage‑setting powers to vary a transitional minimum wage instrument as necessary depending on the outcome of the AFPC’s final wage review under the WR Act. Those exercises of wage‑setting powers take effect at the time determined by the AFPC (which may be a time after the AFPC has ceased to exist).\n\n (a) item 3 of Schedule 5 (which deals with variation and termination of transitional APCSs to take account of the Part 10A award modernisation process); or\n (b) item 9 of Schedule 6 (which deals with variation and termination of transitional APCSs to take account of the enterprise instrument modernisation process).\n\n9 No loss of accrued rights or liabilities when transitional minimum wage instrument terminates or ceases to cover an employee\n\n (a) any right or liability that a person acquired, accrued or incurred before the transitional minimum wage instrument terminated or ceased to cover the person; or\n\n(2) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the transitional minimum wage instrument had not terminated or ceased to cover the person.\n\n(2) For that purpose, Division 3 of Part 2‑6 of the FW Act (other than section 292) applies to a transitional APCS in the same way as it applies to a modern award.\n\n(1) On the FW (safety net provisions) commencement day, the transitional standard FMW, any transitional special FMWs and the transitional default casual loading cease to cover any employees. Subsections 182(3) and (4), and section 185, of the continued AFPCS wages provisions also cease to cover any employees.\n\n(2) On the FW (safety net provisions) commencement day, FWA is taken to have made a national minimum wage order (the transitional national minimum wage order) under Part 2‑6 of the FW Act:\n\n (ii) requires employers to pay employees to whom the national minimum wage applies (see subsection 294(3) of the FW Act) a base rate of pay that at least equals the national minimum wage; and\n (i) sets a special national minimum wage for that class of employees that is the same as the transitional special FMW immediately before that day; and\n (ii) requires employers to pay employees to whom that special national minimum wage applies (see subsection 294(4) of the FW Act) a base rate of pay that at least equals that special national minimum wage; and\n (i) sets the casual loading for award/agreement free employees at the rate that was the transitional default casual loading immediately before that day; and\n (ii) requires employers to pay, to award/agreement free employees who are casual employees, a casual loading that at least equals the casual loading for award/agreement free employees (as applied to the employees’ base rates of pay).\n\nNote: The requirement in paragraph 294(1)(b) of the FW Act that a national minimum wage order must set special national minimum wages for all award/agreement free employees in the classes referred to in that paragraph does not apply to the transitional national minimum wage order.\n\n(3) The hours for which a rate set in the transitional national minimum wage order is payable are the same as the hours for which the transitional standard FMW, transitional special FMW or transitional default casual loading (as the case requires) would have been payable under the continued AFPCS wages provisions.\n\n13 Base rate of pay under agreement‑based transitional instrument must not be less than the modern award rate or the national minimum wage order rate etc.\n\nthe base rate of pay payable to the employee under the transitional instrument (the instrument rate) must not be less than the base rate of pay that would be payable to the employee under the modern award (the award rate) if the modern award applied to the employee.\n\n(2) If the instrument rate is less than the award rate, the transitional instrument has effect in relation to the employee as if the instrument rate were equal to the award rate.\n\n (c) a national minimum wage order would, if the employee were an award/agreement free employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;\n\nthe base rate of pay payable to the employee under the transitional instrument (the instrument rate) must not be less than the employee’s order rate.\n\n(4) If the instrument rate is less than the employee’s order rate, the transitional instrument has effect in relation to the employee as if the instrument rate were equal to the employee’s order rate.\n\n(1) On application by an employer to whom a transitional instrument applies, the FWC may make a determination the effect of which is to phase‑in the effect of increases in base rates of pay that would otherwise take effect on a particular day because of:\n\nNote: Under subitem 22(2) of Schedule 3, AFPCS interaction rules that provide for instruments to prevail over the Australian Fair Pay and Conditions Standard stop applying when the bridging period ends. That may result in an employee becoming entitled to a higher rate of pay under a transitional APCS.\n\n(2) The FWC must not make a determination under this item in relation to an employer unless it is satisfied that the determination is necessary to ensure the ongoing viability of the employer’s enterprise.\n\n(3) Item 13, and subitem 22(2) of Schedule 3, have effect in relation to an employer subject to any determinations the FWC makes under this item.\n\nthe base rate of pay payable to the employee under the enterprise agreement (the agreement rate) must not be less than the base rate of pay that is payable to the employee under the transitional minimum wage instrument (the instrument rate).\n\n(2) If the agreement rate is less than the instrument rate, the enterprise agreement has effect in relation to the employee as if the agreement rate were equal to the instrument rate.\n\nNote: If a transitional instrument applies to an employee who is covered by a transitional minimum wage instrument, then (subject to the continued application of the AFPCS interaction rules) the employee must be paid at least the rate required by the continued AFPCS wages provisions.\n\n (b) a national minimum wage order would, if the employee were an award/agreement free employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;\n\nthe base rate of pay payable to the employee under the Division 2B State award (the award rate) must not be less than the employee’s order rate.\n\n(2) If the award rate is less than the employee’s order rate, the Division 2B State award has effect in relation to the employee as if the award rate were equal to the employee’s order rate.\n\n17 Base rate of pay under Division 2B State employment agreement must not be less than Division 2B State award rate or modern award rate, or the national minimum wage order rate etc.\n\nthe base rate of pay payable to the employee under the agreement (the agreement rate) must not be less than the base rate of pay that would be payable to the employee under the Division 2B State award or the modern award (the award rate) if the Division 2B State award or the modern award applied to the employee.\n\n(2) If the agreement rate is less than the award rate, the Division 2B State employment agreement has effect in relation to the employee as if the agreement rate were equal to the award rate.\n\n (c) a national minimum wage order would, if the employee were an award/agreement free employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;\n\nthe base rate of pay payable to the employee under the Division 2B State employment agreement (the agreement rate) must not be less than the employee’s order rate.\n\n(4) If the agreement rate is less than the employee’s order rate, the Division 2B State employment agreement has effect in relation to the employee as if the agreement rate were equal to the employee’s order rate.\n\n(1) On application by an employer to whom a Division 2B State instrument applies, the FWC may make a determination the effect of which is to phase‑in the effect of increases in base rates of pay that would otherwise take effect on a particular day because of item 16 or 17.\n\n(2) The FWC must not make a determination under this item in relation to an employer unless it is satisfied that the determination is necessary to ensure the ongoing viability of the employer’s enterprise.\n\n (b) the transitional national minimum wage order, or another national minimum wage order, is in operation throughout the period; and\n (c) the employee is an award/agreement free employee throughout the period, and no Division 2B State instrument applies to the employee at any time in the period; and\n (d) the amount that is payable to the employee in relation to the period under the national minimum wage order is less than the amount (the State minimum amount) that would be payable to the employee in relation to the period under the State minimum wages instruments (see subitem (4)).\n\n(2) The national minimum wage order has effect, in relation to the employee and the period, as if it instead required the employer to pay the employee the State minimum amount.\n\n(3) In working out the State minimum amount, any increases of rates (whether because of indexation or otherwise) that would have taken effect after the Division 2B State referral commencement under State minimum wages instruments are to be disregarded.\n\n(4) The State minimum wages instruments, in relation to the employee, are orders, decisions or rulings (however described), as in force immediately before the Division 2B referral commencement:\n\n (b) that provide for employees to be paid a minimum wage or a minimum rate of remuneration, or that affect the entitlement of such employees to be paid a minimum wage or a minimum rate of remuneration.\n\n (a) provide for how amounts referred to in paragraph (1)(d) are to be worked out (for example, in relation to casual employees); or\n (c) provide that certain orders, decisions or rulings (however described) made by a State industrial body are, or are not, State minimum wages instruments as defined in subitem (4).\n\n(1) In an annual wage review, the FWC may make a determination varying terms of a Division 2B State award relating to wages.\n\n(2) For that purpose, Division 3 of Part 2‑6 of the FW Act (other than section 292) applies to terms of a Division 2B State award relating to wages in the same way as it applies to a modern award.\n\n(1) This item applies in relation to a decision whether to make an equal remuneration order under Part 2‑7 of the FW Act during the period:\n\n(2) In deciding whether to make the equal remuneration order, FWA must take into account the outcome of the AFPC’s final wage review under the WR Act.\n\n(1) A term of an instrument or order referred to in subitem (2) has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an equal remuneration order that:\n\nNote: A term of a modern award, an enterprise agreement or an FWA order also has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an equal remuneration order that is made under Part 2‑7 of the FW Act and applies to the employee (see section 306 of the FW Act).\n\n(2) A WR Act equal remuneration order may be varied or revoked by the FWC under subsections 603(1) and (2) of the FW Act as if it were an order made under Part 2‑7 of the FW Act.\n\n(1) A term of an instrument or order referred to in subitem (2) has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an order that:\n\n (a) at a time (the time of transmission), a person (the new employer) became the successor, transmittee or assignee of the whole, or a part, of a business of another person (the old employer); and\n\n(2) The following provisions of Part 11 of the WR Act (as modified by items 5 and 6 of this Schedule) continue to apply in relation to the transmission of business on and after the WR Act repeal day:\n\n (c) Division 4 (which deals with the transmission of collective agreements) (other than subsections 585(2), (3) and (5) and subsections 588(1) and (2));\n\n (a) a reference in those provisions to an award is taken to include a reference to a State reference transitional award; and\n\n(3) The following provisions of Schedule 9 to the WR Act (as modified by items 5 and 6 of this Schedule) continue to apply in relation to the transmission of business on and after the WR Act repeal day:\n\n (d) Part 4 (which deals with the transmission of pre‑reform certified agreements) (other than subclauses 10(4), (5), (6) and (8) and clause 12);\n (e) Part 5 (which deals with the transmission of State transitional instruments) (other than subclauses 19(2), (3) and (5) and clause 21);\n\n(1) If the new employer is covered by a transitional instrument in relation to a transferring employee because of a provision of Part 11 of the WR Act or Schedule 9 to that Act, the new employer remains covered by the transitional instrument, by force of this subitem, until whichever of the following first occurs:\n\n (b) the old employer was not an employer within the meaning of subsection 6(1) of the WR Act immediately before the time of transmission; and\n (c) the new employer was an employer within the meaning of subsection 6(1) of the WR Act at the time of transmission; and\n (d) the transmission of business occurs as part of the process of the employer in relation to the business being transferred becoming an employer within the meaning of subsection 6(1) of the WR Act.\n\n(3) If a transferring employee’s employment with the new employer is covered by a transitional APCS because of Division 6 of Part 11 of the WR Act, the transferring employee’s employment with the new employer remains covered by that APCS until whichever of the following first occurs:\n\n(4) If a redundancy provision applies to the new employer and a transferring employee because of Division 6A of Part 11 of the WR Act or Part 5A of Schedule 9 to that Act, the redundancy provision continues to apply to the new employer and the transferring employee until the earliest of the following:\n\n (a) the end of the period of 24 months from the time that the agreement that contained the redundancy provision ceased operating;\n\nIf:\n\n (a) a redundancy provision applies to the new employer and a transferring employee because of Division 6A of Part 11 of the WR Act or Part 5A of Schedule 9 to that Act; and\n (c) the redundancy provision is detrimental to the transferring employee, in any respect, when compared to the scheme in the modern award;\n\nthen, despite subsection 598A(2) of the WR Act or subclause 27A(2) of Schedule 9 to that Act (as the case requires), the scheme in the modern award prevails over the redundancy provision, to the extent that the redundancy provision is detrimental to the transferring employee.\n\n(1) Subsection 585(1) of the WR Act (as it continues to apply because of subitem 2(2) of this Schedule) and subitem 3(1) of this Schedule (to the extent that it applies in relation to a transitional instrument that is a collective agreement) have effect subject to any order of the Commission under section 590 of the WR Act (as that section continues to apply because of subitem 2(2) of this Schedule).\n\n(2) Subsection 595(1) of the WR Act (as it continues to apply because of subitem 2(2) of this Schedule) and subitem 3(1) of this Schedule (to the extent that it applies in relation to a transitional instrument that is an award or a State reference transitional award) have effect subject to any order of the Commission (other than an order that would have the effect of extending the transmission period).\n\n(3) Subclauses 10(1), (2) and (3) of Schedule 9 to the WR Act (as they continue to apply because of subitem 2(3) of this Schedule) and subitems 3(1) and (2) of this Schedule (to the extent that they apply in relation to a transitional instrument that is a pre‑reform certified agreement) have effect subject to any order of the Commission under clause 14 of Schedule 9 to the WR Act (as that clause continues to apply because of subitem 2(3) of this Schedule).\n\n(4) Subclause 19(1) of Schedule 9 to the WR Act (as it continues to apply because of subitem 2(3) of this Schedule) and subitem 3(1) of this Schedule (to the extent that it applies in relation to a transitional instrument that is a State transitional instrument) have effect subject to any order of the Commission under clause 23 of Schedule 9 to the WR Act (as that clause continues to apply because of subitem 2(3) of this Schedule).\n\n(5) The following provisions of the WR Act (as they continue to apply because of item 2 of this Schedule) are modified by omitting “before, at or after the transfer time” and substituting “not later than 90 days after the WR Act repeal day”:\n\n(1) The notes to the following provisions of the WR Act (as they continue to apply because of subitem 2(2) of this Schedule) are modified by omitting “section 605” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”:\n\n(2) Note 1 to the following provisions of the WR Act (as they continue to apply because of subitem 2(2) of this Schedule) is modified by omitting “section 605” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”:\n\n(3) The notes to the following provisions of the WR Act (as they continue to apply because of subitem 2(3) of this Schedule) are modified by omitting “clause 31” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”:\n\n(4) Note 1 to the following provisions of the WR Act (as they continue to apply because of subitem 2(3) of this Schedule) is modified by omitting “clause 31” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”:\n\nThis Division applies in relation to a transfer of business and transferable instruments that are transitional instruments.\n\n (a) there is a transfer of business from an employer (the old employer) to another employer (the new employer), as described in subsection 311(1) of the FW Act; and\n (b) the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs on or after the WR Act repeal day.\n\n (a) the termination of a transferring employee’s employment with the old employer occurs before, on or after the WR Act repeal day; or\n\n(1) Subsection 312(1) of the FW Act applies in relation to the transfer of business as if the following paragraph were added at the end:\n\n ; (d) a transitional instrument (other than a workplace agreement or a workplace determination that has not yet come into operation and other than a State reference common rule).\n\n(2) Except as provided in subitems (3) to (5), Part 2‑8 of the FW Act applies in relation to the transfer of business as if:\n\n (b) a reference to a modern award included a reference to an award‑based transitional instrument, other than a State reference common rule.\n\n(3) Paragraph (2)(a) does not apply in relation to the reference to an enterprise agreement in paragraph 312(1)(a) of the FW Act.\n\n(5) The following provisions of Part 2‑8 of the FW Act apply in relation to the transfer of business as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument:\n\n(6) Paragraph 319(1)(b) of the FW Act applies in relation to the transfer of business as if the words “(other than an individual agreement‑based transitional instrument)” were inserted after the words “a transferable instrument”.\n\n (a) there is a transfer of business from an employer (the old employer) to another employer (the new employer) as described in subsection 311(1) of the FW Act; and\n (b) the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs during the bridging period; and\n (c) immediately before the termination of an employee’s employment with the old employer, a redundancy provision applied to the old employer and the employee because of a preservation item or a previous application of this item; and\n\n (a) the termination of the transferring employee’s employment with the old employer occurs before, on or after the WR Act repeal day; or\n\n(3) The redundancy provision applies to the new employer and the transferring employee after the time the transferring employee becomes employed by the new employer.\n\n(4) Subject to subitem (5), the redundancy provision prevails over any other redundancy provision included in any other instrument that would otherwise have effect, to the extent of any inconsistency (even if the provisions in that other instrument might be more beneficial to the transferring employee).\n\n (b) the redundancy provision is detrimental to the transferring employee, in any respect, when compared to the scheme in the modern award;\n\nthen the scheme in the modern award prevails over the redundancy provision, to the extent that the redundancy provision is detrimental to the transferring employee.\n\n(6) The redundancy provision continues to apply to the new employer and the transferring employee until the earliest of the following:\n\n (a) the end of the period of 24 months from the time that the agreement that contained the redundancy provision ceased operating;\n\n (c) a provision of Division 6A of Part 11 of the WR Act or Part 5A of Schedule 9 to that Act (as those provisions continue to apply because of item 2 of this Schedule).\n\n(1) This item applies if one or more redundancy provisions apply to the new employer and a transferring employee under item 9 of this Schedule.\n\n(2) Within 28 days after the time the transferring employee becomes employed by the new employer, the new employer must take reasonable steps to give the transferring employee a written notice that complies with subitem (3).\n\n (c) specify the date on which the period of 24 months, being the period that applies in relation to the provision or provisions under paragraph 9(6)(a) of this Schedule, ends; and\n (d) state that the provision or provisions will continue to apply to the new employer and the transferring employee until that date, or an earlier date in accordance with subitem 9(6) of this Schedule.\n\n(4) Subitem (2) does not apply if an enterprise agreement, workplace determination or ITEA starts to apply to the transferring employee within 14 days after the time the transferring employee becomes employed by the new employer.\n\n(1) If the new employer gives a notice under subitem 10(2) of this Schedule to a transferring employee, the new employer must lodge a copy of the notice with FWA within the period specified in subitem (2). The copy must be lodged in accordance with subitem (3).\n\n (a) if the new employer gives a notice to a transferring employee in respect of a redundancy provision that was included in an ITEA, a pre‑reform AWA or a preserved individual State agreement—the day on which that notice is given; or\n (b) if the new employer gives one or more notices to one or more transferring employees in respect of a redundancy provision that was included in a collective agreement, a pre‑reform certified agreement or a preserved collective State agreement—the earliest day on which a notice was given.\n\nNote: This means that section 29 of the Acts Interpretation Act 1901 (to the extent that it deals with the time of service of documents) does not apply to lodgment of a notice.\n\n (a) there is a transfer of business from an employer (the old employer) to another employer (the new employer) as described in subsection 311(1) of the FW Act; and\n (b) the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs during the bridging period.\n\n (a) the termination of a transferring employee’s employment with the old employer occurs before, on or after the WR Act repeal day; or\n\n(3) Despite the repeal of Division 7 of Part 11 of the WR Act (which deals with an employee’s entitlements under the Australian Fair Pay and Conditions Standard), that Division applies in relation to the transfer of business as if:\n\n (a) a reference in the following provisions to at the time of transmission were a reference to at the time the transferring employee becomes employed by the new employer:\n (b) a reference in the following provisions to before the time of transmission were a reference to before the termination of the transferring employee’s employment with the old employer:\n (c) a reference in subparagraph 599(4)(a)(ii) to at the time of transmission were a reference to at the time of termination of the transferring employee’s employment with the old employer; and\n (d) a reference in subsection 599(4) to after the time of transmission were a reference to after the time of termination of the transferring employee’s employment with the old employer; and\n (e) a reference in subsections 600(1) and 601(1) to before the time of transmission were a reference to before the time the transferring employee becomes employed by the new employer; and\n (f) the reference to section 605 in the note to subsection 599(4) were a reference to subitem 11(5) of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.\n\nThis Division applies in relation to a transfer of business and transferable instruments that are Division 2B State instruments.\n\n (a) there is a transfer of business from an employer (the old employer) to another employer (the new employer), as described in subsection 311(1) of the FW Act; and\n (b) the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs on or after the Division 2B referral commencement.\n\n(1) Subsection 312(1) of the FW Act applies in relation to the transfer of business as if the following paragraph were added at the end:\n\n(2) Except as provided in subitems (3) to (5), Part 2‑8 of the FW Act applies in relation to the transfer of business as if:\n\n(3) Paragraph (2)(a) does not apply in relation to the reference to an enterprise agreement in paragraph 312(1)(a) or 319(1)(c) of the FW Act.\n\n(4) Paragraph (2)(b) does not apply in relation to the reference to a modern award in subsection 312(2) or paragraph 319(1)(c) of the FW Act.\n\n(5) The following provisions of Part 2‑8 of the FW Act apply in relation to the transfer of business as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement:\n\n(6) Paragraph 319(1)(b) of the FW Act applies in relation to the transfer of business as if the words “(other than an individual Division 2B State employment agreement)” were inserted after the words “a transferable instrument”.\n\n(7) If a transferable instrument that is a Division 2B State award starts to cover the new employer in relation to the transfer of business as mentioned in paragraph 313(1)(a) of the FW Act, the FWC cannot make an order under paragraph 319(1)(c) of the FW Act.\n\nFor the purposes of the operation of Part 3‑1 of the FW Act in relation to the bridging period, a reference in that Part to the National Employment Standards is taken to include a reference to the Australian Fair Pay and Conditions Standard.\n\nNote: References in Part 3‑1 of the FW Act to the National Employment Standards are found in paragraph 344(a) and subparagraph 354(1)(a)(i) of that Act.\n\n (a) a reference in that Part to an enterprise agreement included a reference to an agreement‑based transitional instrument; and\n\n (a) to an enterprise agreement are found in paragraphs 341(2)(e) and (g), paragraph 344(b), subsection 353(3) and subparagraphs 354(1)(a)(iii) and (b)(ii) of that Act; and\n\n(2) Without limiting subitem (1), paragraph 344(b) of the FW Act has effect in relation to the bridging period as if a term referred to in that paragraph were a term of an agreement‑based transitional instrument or an award‑based transitional instrument that dealt with:\n\n (e) the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave; or\n (h) paid loadings for school‑based apprentices and trainees in lieu of paid annual leave, paid annual leave or paid absence on public holidays.\n\nNote: This means, for example, that an employer is prohibited from exerting undue influence or undue pressure on an employee to have the employee agree to a cashing out of annual leave arrangement under a term of a pre‑reform certified agreement.\n\n (a) a reference in that Part to an enterprise agreement included a reference to a Division 2B State employment agreement; and\n\n (a) to an enterprise agreement are found in paragraphs 341(2)(e) and (g), paragraph 344(b), subsection 353(3) and subparagraphs 354(1)(a)(iii) and (b)(ii) of that Act; and\n\n(1) For the purposes of the application of Part 3‑2 of the FW Act in relation to the dismissal of a person before 1 January 2011, a national system employer is a small business employer if, and only if, the employer’s number of full‑time equivalent employees, worked out under this item, is less than 15 at the earlier of the following times (the notice or dismissal time):\n\nStep 1. For each person who was an employee of the employer at any time during the period of 4 weeks immediately preceding the day on which the notice or dismissal time occurs, work out the number of ordinary hours (including parts of hours) of the person as the employer’s employee during the period.\n\nStep 2. If, during the period, the person took leave to which subitem (4) applies, work out the number of hours of leave to which that subitem applies that the person took during the period.\n\nStep 3. Add together all of the numbers of ordinary hours worked out under step 1, and subtract all of the number of hours of leave worked out under step 2.\n\nStep 4. Divide by 152 the number worked out under step 3. The result is the employer’s number of full‑time equivalent employees at the notice or dismissal time.\n\n> Note: The number 152 is based on the maximum number of hours that a full‑time employee would work in 4 weeks (being 38 hours per week) excluding reasonable additional hours.\n\n(3) For the purposes of step 1 of the method statement in subitem (2), the ordinary hours of work of a person as the employer’s employee are:\n\n (a) to the extent that a modern award, enterprise agreement or workplace determination applied to the person, and the person was not a casual employee—the ordinary hours of work specified or provided for in that award, agreement or determination; or\n (b) to the extent that a transitional instrument applied to the person, and the person was not a casual employee—the person’s ordinary hours of work under item 33 of Schedule 3; or\n (ba) to the extent that a Division 2B State instrument applied to the person, and the person was not a casual employee—the person’s ordinary hours of work under item 48 of Schedule 3A; or\n (d) to the extent that no such award, agreement, determination or instrument applied to the person, and the person was not a casual employee:\n (ii) if the person was a non‑national system employee—what would have been the person’s ordinary hours of work under that section if the person had been a national system employee; or\n\n(5) For the purposes of this item, a national system employer and the employer’s associated entities are taken to be one entity.\n\n2 Employee covered by individual agreement‑based transitional instrument or individual Division 2B State employment agreement is taken not to be an employee who will be, or who is, covered by enterprise agreement in certain circumstances\n\n(1) This item applies to an employee at a particular time if, at that time, an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement covers the employee.\n\n(2) The employee is only taken, for the purposes of the FW Act, to be at that time an employee who is or will be covered by an enterprise agreement or a proposed enterprise agreement, if one of the following applies:\n\n (a) the nominal expiry date of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement has passed;\n (b) a conditional termination of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement has been made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A.\n\nNote: The main effect of this subitem is that an employee who is covered by an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement will not be able to do any of the following until the nominal expiry date of the instrument passes or a conditional termination of the instrument is made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A:\n\n(3) Despite subitem (2), an employer must give a notice of employee representational rights to an employee under section 173 of the FW Act, if the employer would have been required to give such a notice but for subitem (2). However, the notice must explain that a person can only become the employee’s bargaining representative for the agreement when one of the following occurs:\n\n (a) the nominal expiry date of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement passes;\n (b) a conditional termination of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement is made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A.\n\n3 Application for bargaining order where certain collective agreement‑based transitional instruments or collective Division 2B State employment agreements have not passed nominal expiry date\n\nDespite subsection 229(3) of the FW Act, if one or more of the following instruments apply to an employee, or employees, who will be covered by a proposed enterprise agreement:\n\n (f) not more than 90 days before the nominal expiry date of the instrument, or the latest nominal expiry date of those instruments (as the case may be); or\n (g) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) of that Act that employees approve the agreement, but before the agreement is so approved.\n\n4 Industrial action must not be taken before the nominal expiry date of agreement‑based transitional instrument or Division 2B State employment agreement\n\napply, on and after the WR Act repeal day, in relation to an agreement‑based transitional instrument or a Division 2B State employment agreement, in a corresponding way to the way that those provisions apply in relation to an enterprise agreement.\n\n(2) Subitem (1) does not apply to an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement if the employee and employer covered by the instrument or agreement have made a conditional termination in relation to the instrument or agreement under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A.\n\nNote: The effect of this provision is that an employee who is covered by an agreement‑based transitional instrument or a Division 2B State employment agreement may not organise or engage in industrial action until after the nominal expiry date of the instrument or agreement has passed. However, this does not apply to an individual agreement‑based transitional instrument, or an individual Division 2B State employment agreement, in relation to which a conditional termination has been made.\n\n(3) For the purposes of subitem (1), the reference in subsection 417(1) of the FW Act to the day on which an enterprise agreement was approved by the FWC is taken to be a reference to the day on which the agreement‑based transitional instrument or the Division 2B State employment agreement became such an instrument or agreement.\n\n (a) before the WR Act repeal day, an application was made to the Commission or the Court under either of those sections; and\n\nthe Commission or the Court, as the case requires, must consider the application on or after that day as if the WR Act had not been repealed.\n\n(2) To avoid doubt, if the Commission or the Court does not make an order, or grant an injunction, under section 496 or 497 of the WR Act, as those sections continue to apply because of subitem (1), the decision not to make the order or grant the injunction does not affect whether or not the industrial action concerned is protected industrial action under the FW Act.\n\n (a) an order made, or an injunction granted, under either of those provisions that was in operation immediately before the WR Act repeal day continues to have effect on and after that day; and\n (b) a person who, immediately before the WR Act repeal day, was required to comply with the order or injunction must not breach the order or injunction on or after the WR repeal day.\n\nNote: For the continuation of orders or injunctions to prevent or stop industrial action that were made by State industrial bodies or courts of Division 2B referring States, see item 61 of Schedule 3A.\n\nSubsections 421(1), (3) and (4) and item 15 of the table in subsection 539(2) of the FW Act have effect, on and after the WR Act repeal day, as if:\n\n (a) references in those provisions to an order under section 418 included references to an order under subsection 496(1) of the WR Act as referred to in item 5 or 6 of this Schedule; and\n (b) references in those provisions to an order under section 419 included references to an order under subsection 496(2) of the WR Act as referred to in item 5 or 6 of this Schedule; and\n (c) references in those provisions to an order under section 420 included references to an order under subsection 496(6) of the WR Act as referred to in item 5 or 6 of this Schedule.\n\n(1) This item applies if one of the following is in force in relation to a proposed collective agreement under the WR Act immediately before the WR Act repeal day:\n\n (a) an order terminating a bargaining period under subsection 430(1) of the WR Act that was made on the ground, or on grounds including the ground, that the Commission was satisfied as mentioned in subsection 430(3) of that Act;\n (b) a declaration by the Minister under section 498 of the WR Act (which deals with industrial action endangering life, etc.).\n\n(2) Divisions 3 and 5 of Part 2‑5 of the FW Act have effect, on and after the WR Act repeal day, in relation to the making of an industrial action related workplace determination, as if:\n\n (a) references to a termination of industrial action instrument included references to the order or declaration referred to in subitem (1); and\n (c) references to the bargaining representatives for a proposed enterprise agreement included references to the persons who were, immediately before the WR Act repeal day, negotiating parties for the proposed collective agreement; and\n (d) references to an employer or employee that would have been covered by a proposed enterprise agreement included references to an employer or employee, as the case requires, that would have been bound by the proposed collective agreement; and\n (e) the reference in paragraph 275(g) to bargaining representatives complying with the good faith bargaining requirements included a reference to the negotiating parties genuinely trying to reach agreement in relation to the proposed collective agreement.\n\nNote: The effect of this provision is that FWA may make an industrial action related workplace determination under the FW Act based on conduct, orders and declarations in relation to negotiations for a proposed collective agreement under the WR Act.\n\nIf:\n\n (a) before the WR Act repeal day, an application was made under Division 2 of Part 9 of the WR Act for the suspension or termination of a bargaining period; and\n\nthe Commission must not, on or after that day, deal with or continue to deal with the application, or any appeal or review relating to the application.\n\nAn order under Division 2 of Part 9 of the WR Act suspending or terminating a bargaining period is of no effect on or after the WR Act repeal day, other than as referred to in item 8.\n\nA notice of intention to take industrial action given under section 441 of the WR Act before the WR Act repeal day is of no effect on or after that day.\n\nThe Commission must not, on or after the WR Act repeal day, deal with or continue to deal with any application, appeal or review relating to a ballot order.\n\n(1) A ballot order under subsection 451(1) of the WR Act, or a ballot or authorisation under such an order, has no effect on or after the WR Act repeal day.\n\nNote: This means that no protected action ballots can be conducted or continued on or after the WR Act repeal day, and any nomination in a ballot order of a person as an authorised ballot agent, or as an authorised independent adviser, will also have no effect.\n\n14 Continuation of sections 476, 477 and 479 of the WR Act for protected action ballots completed before WR Act repeal day\n\nThe following provisions of Part 9 of the WR Act continue to apply in relation to a ballot completed before the WR Act repeal day as if that Part had not been repealed:\n\nNote: A person must not contravene subsection 477(1) or (4) of the WR Act as those sections continue to apply because of this item (see item 14 of Schedule 16).\n\n(1) A person who is a bargaining representative for a proposed enterprise agreement may apply to FWA for an order under this item if, before the WR Act repeal day, the person was an applicant specified in an order for a protected action ballot in relation to a proposed collective agreement.\n\n(3) FWA may order that industrial action that was authorised under section 478 of the WR Act in relation to the proposed collective agreement is taken to be authorised, in relation to the proposed enterprise agreement, by a protected action ballot under subsection 459(1) of the FW Act, if FWA is satisfied that:\n\n (a) on or after 1 March 2009, the person organised or engaged in industrial action, for the purpose of supporting or advancing claims in relation to the proposed collective agreement; and\n (d) no collective agreement covering the employees whose employment would have been subject to the proposed collective agreement was approved by those employees before the WR Act repeal day; and\n\n(4) Industrial action that is taken to be authorised because of the operation of subitem (3) is only taken to be authorised in relation to employees who:\n\n (b) were relevant employees (within the meaning of section 450 of the WR Act) in relation to the proposed collective agreement.\n\n(5) For the purposes of subsection 414(3) of the FW Act, the results of the protected action ballot under that Act are taken to have been declared on the day of the order.\n\nSections 482 and 483 of the WR Act continue to apply on and after the WR Act repeal day in relation to a ballot ordered under Division 4 of Part 9 of the WR Act.\n\nAn authorised ballot agent in relation to a protected action ballot conducted before the WR Act repeal day must keep the following for a period of one year after the day on which the ballot closed:\n\n17 Restriction on when protected action ballot orders may be made—certain agreement‑based transitional instruments and collective Division 2B State employment agreements that cover employees who will be covered by proposed enterprise agreement\n\n(1) This item applies if one or more of the following instruments cover the employees who will be covered by a proposed enterprise agreement:\n\n(2) An application for a protected action ballot order must not be made under subsection 437(1) of the FW Act earlier than 30 days before the nominal expiry date of the instrument, or the latest nominal expiry date of those instruments (as the case may be).\n\n(3) To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.\n\nPart 5—Effect of conduct engaged in while bargaining for WR Act collective agreement or collective State employment agreement\n\n (a) before the WR Act repeal day, a bargaining representative for a proposed enterprise agreement engaged in conduct in relation to a proposed collective agreement; and\n (c) the employment of the employees who would be covered by the proposed enterprise agreement would have been subject to the proposed collective agreement, had it been made; and\n (d) the employers who would be covered by the proposed enterprise agreement would have been bound by the proposed collective agreement, had it come into operation.\n\n (a) before the Division 2B referral commencement, a bargaining representative for a proposed enterprise agreement engaged in conduct in relation to a proposed collective State employment agreement; and\n (b) immediately before that day, the collective State employment agreement had not been made, or had been made but had not been lodged (however described) under a State industrial law of a Division 2B referring State; and\n (c) the employment of the employees who would be covered by the proposed enterprise agreement would have been subject to the proposed collective State employment agreement, had it come into operation; and\n (d) the employers who would be covered by the proposed enterprise agreement would have been bound by the proposed collective State employment agreement, had it come into operation.\n\n(2) If this item applies because of subitem (1) or (1A), the FWC may take into account the conduct referred to in that subitem:\n\n (a) in deciding whether it is reasonable in all the circumstances to make a bargaining order or a scope order in relation to the proposed enterprise agreement; and\n (b) in deciding which terms to include in a workplace determination that relates to the proposed enterprise agreement; and\n (c) in deciding under Part 3‑3 of the FW Act (which deals with industrial action) whether a bargaining representative is genuinely trying to reach an agreement in relation to the proposed enterprise agreement; and\n (d) in deciding under subsection 423(2) or (3) of that Act whether protected industrial action that relates to the proposed enterprise agreement is causing, or threatening to cause, significant economic harm to a person.\n\n(1) If industrial action (whether or not protected action) is engaged in before the commencement of Part 3‑3 of the FW Act then:\n\n (a) Division 9 of Part 9 of the WR Act continues to apply, on and after the WR Act repeal day, in relation to the industrial action; and\n\n (a) industrial action (whether or not protected action) is engaged in during a shift or other period of work that is taken to be a day because of subsection 507(3) of the WR Act; and\n\n (c) Division 9 of Part 9 of the WR Act continues to apply, on and after the WR Act repeal day, in relation to the industrial action until the end of that shift or other period; and\n (d) Part 3‑1 and Division 9 of Part 3‑3 of the FW Act do not apply in relation to the industrial action engaged in during that shift or period.\n\n (a) the reference in paragraph 470(4)(c), subsection 471(2) and paragraph 474(2)(c) of that Act to a modern award included a reference to an award‑based transitional instrument and a Division 2B State award; and\n (b) the reference in those provisions to an enterprise agreement included a reference to an agreement‑based transitional instrument and a Division 2B State agreement.\n\nA permit that is in force immediately before the WR Act repeal day under Part 15 of the WR Act, or that comes into force on or after that day under that Part, has effect:\n\nThe reference in subsections 481(1) and 483A(1) of the FW Act to a suspected contravention of this Act or a term of a fair work instrument is taken to include a reference to a suspected contravention of any of the following:\n\nA notice given under subsection 748(5) of the WR Act to produce, or allow access to, records on a day, or days, on or after the WR Act repeal day has effect, on and after the WR Act repeal day, as if it were given under subsection 483(1) of the FW Act.\n\n (a) the reference in paragraph 510(1)(a) of that Act to the permit holder being found, in proceedings under this Act, to have contravened subsection 503(1) included a reference to the permit holder being found, in proceedings under the WR Act, as in force from time to time, to have contravened section 768 of the WR Act; and\n (b) the reference in paragraph 510(1)(d) of the FW Act to “this Act” (being the FW Act) included a reference to the WR Act as in force from time to time and the reference in that paragraph to “this Part” (being Part 3‑4 of the FW Act) included a reference to Part 15 of the WR Act; and\n (c) the reference in paragraph 510(4)(a) of the FW Act to the FWC not having previously taken action under subsection (1) against the permit holder included a reference to the Registrar not having taken action against the permit holder under subsection 744(4) of the WR Act, as in force from time to time; and\n (d) the references in paragraphs 510(4)(b) and (c) of the FW Act to the FWC having taken action under subsection (1) against the permit holder included a reference to the Registrar having taken action against the permit holder under subsection 744(4) of the WR Act, as in force from time to time.\n\n(1) An instrument that, because of this Schedule, has effect under the FW Act continues, in addition to that effect, to have effect under the WR Act for the purposes of item 11 of Schedule 2.\n\n(2) Any suspension or revocation of, or imposition of conditions on, an entry permit under the WR Act (as it continues to apply because of item 11 of Schedule 2) is also taken to have been done under the FW Act.\n\n(3) Despite item 11 of Schedule 2, disputes about the operation of Part 15 of the WR Act that could, because of that item, have been dealt with under section 772 of that Act, may be dealt with only by the FWC under section 505 of the FW Act.\n\n (a) as if the reference in subsection (1) of that section to “this Part” (being Part 3‑4 of the FW Act) were a reference to Part 15 of the WR Act; and\n\nSubsection 524(2) of the FW Act (which deals with circumstances allowing stand down) applies in relation to a transitional instrument as if a reference to an enterprise agreement included a reference to a transitional instrument.\n\nDespite item 4 of Schedule 3, subsection 691A(5) of the WR Act does not continue to apply in relation to WR Act instruments that become transitional instruments.\n\nNote: This means that a provision of a transitional instrument that is a provision of the kind described in subparagraph 691A(1)(c)(ii) of the WR Act (being a provision requiring an employer to apply to a third party for authorisation to stand down employees in certain circumstances) has effect on and after the WR Act repeal day.\n\nSubsection 524(2) of the FW Act (which deals with circumstances allowing stand down) applies in relation to a Division 2B State instrument as if a reference to an enterprise agreement included a reference to a Division 2B State instrument.\n\nNote 2: An injunction may not be granted in relation to a contravention of an award‑based transitional instrument (see item 17).\n\nNote 2: An injunction may not be granted in relation to a contravention of an agreement‑based transitional instrument (see item 17).\n\n3 Compliance with obligations relating to conditional terminations of individual agreement‑based transitional instruments\n\n(2) A bargaining representative who applies to the FWC for approval of an enterprise agreement must not contravene subitem 18(7) of Schedule 3.\n\nNote 2: An injunction may not be granted in relation to a contravention of a Division 2B State employment agreement instrument (see item 17).\n\n4B Compliance with obligations relating to conditional terminations of individual Division 2B State employment agreements\n\n(2) A bargaining representative who applies to the FWC for approval of an enterprise agreement must not contravene subitem 25(7) of Schedule 3A.\n\nA person must not contravene section 182 or 185 of the WR Act as that section continues to apply under item 5 of Schedule 9.\n\nNote 2: An injunction may not be granted in relation to a contravention of section 182 or 185 of the WR Act (see item 17).\n\n(2) A person must not contravene Division 6 of Part 12 of the WR Act as it continues to apply under item 3 of Schedule 4.\n\n(2) A person must not contravene an order under item 30 of Schedule 3A that continues the effect of terms of a Division 2B State award relating to long service leave.\n\n(1) A person must not contravene any of the following provisions of the WR Act as the provision continues to apply because of Schedule 8:\n\n(2) A person must not contravene any of the following provisions of the WR Act as the provision continues to apply because of Schedule 8:\n\n(3) A person must not contravene subsection 334(2) of the WR Act as that subsection continues to apply because of Schedule 8.\n\n(4) A person must not contravene subsection 365(1), 366(1), 400(3), 400(5) or 401(1) of the WR Act as those subsections continue to apply because of Schedule 8.\n\n(1) This item applies to the following provisions of the WR Act as the provisions continue to apply because of Schedule 8:\n\n(2) Subdivision C of Division 11 of Part 8 of the WR Act continues to apply, on and after the WR Act repeal day, in relation to a contravention of the provision.\n\nA person must not contravene a term of a WR Act equal remuneration order as it continues to apply because of item 4 of Schedule 10.\n\n(1) A person must not contravene subsection 599(4) of the WR Act as it continues to apply because of subitem 2(2) of Schedule 11.\n\n(2) A person must not contravene any of the following provisions of the WR Act as they continue to apply because of subitem 2(2) or (3) of Schedule 11:\n\n12 Non‑disclosure obligation—information acquired under FW Act that identifies an employee as an employee to whom an individual agreement‑based transitional instrument applies\n\n (a) is the protected action ballot agent for a protected action ballot (other than the Australian Electoral Commission); or\n (c) acquires information from, or on behalf of, a person referred to in paragraph (a) or (b) in the course of performing functions or exercising powers for the purposes of the ballot;\n\nmust not disclose to any other person information about an employee if the information will identify whether or not the employee is covered by an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement.\n\n (a) the disclosure is made in the course of performing functions or exercising powers for the purposes of the protected action ballot; or\n\nNote 1: Personal information given to the FWC, the Australian Electoral Commission or another protected action ballot agent under Division 8 of Part 3‑3 of the FW Act may be regulated under the Privacy Act 1988.\n\nNote 2: The President of the FWC may, in certain circumstances, disclose, or authorise the disclosure of, information acquired by the FWC or a member of the staff of the FWC, in the course of performing functions or exercising powers as the FWC (see section 655 of the FW Act).\n\n(1) A person who acquires protected ballot information in the course of performing functions or exercising powers under this Act, the WR Act or the FW Act must not disclose that information to any other person if the information will identify:\n\n (ii) a relevant employee who was one of the prescribed number of employees supporting an application for a ballot order (as required by subsection 451(4) of the WR Act); or\n (iv) a person who is covered by an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement.\n\n (a) the disclosure is made for the purposes of performing functions or exercising powers under this Act, the WR Act (as it continues to apply under this Act) or the FW Act; or\n\nNote 2: The President of the FWC may, in certain circumstances, disclose, or authorise the disclosure of, information acquired by the FWC or a member of the staff of the FWC, in the course of performing functions or exercising powers as the FWC (see section 655 of the FW Act).\n\nA person must not contravene subsection 477(1) or (4) of the WR Act as those subsections continue to apply because of item 14 of Schedule 13.\n\nNote 2: An injunction may not be granted in relation to a contravention of a continuing Schedule 6 instrument (see item 17).\n\n (b) the table in subsection 539(2) included the table below (with the references in column 1 of the table below to be read as references to provisions of this Schedule (being Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009)); and\n (c) a reference to a fair work instrument in that Part included a reference to a transitional instrument, a Division 2B State instrument, a transitional minimum wage instrument or a continuing Schedule 6 instrument; and\n (d) the reference in subsection 540(3) to items 4, 7 and 14 in the table in subsection 539(2) included a reference to items 40, 44C, 44H, 44J and 44K in the table below; and\n (da) the reference in subsections 540(3) and (4) to a term in an enterprise agreement that would be an outworker term if it were included in a modern award included:\n (i) a reference to a term in a collective agreement‑based transitional instrument that would be an outworker term if it were included in an award‑based transitional instrument; and\n (ii) a reference to a term in a collective Division 2B State employment agreement that would be an outworker term if it were included in a Division 2B State award; and\n\n

Standing, jurisdiction and maximum penalties

Item

Column 1
Civil remedy provision

Column 2
Persons

Column 3
Courts

Column 4
Maximum penalty

38

2(1) (other than in relation to a contravention or proposed contravention of an outworker term)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

39

2(1) (in relation to a contravention or proposed contravention of an outworker term)

(a) an outworker;

(b) an employer;

(c) an outworker entity;

(d) an employee organisation;

(e) an employer organisation;

(f) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

40

2(2) (in relation to a contravention or proposed contravention of a collective agreement‑based transitional instrument other than a contravention or proposed contravention of a term that would be an outworker term if it were included in an award‑based transitional instrument)

(a) an employee;

(b) an employer;

(c) an employee organisation to which the collective agreement‑based transitional instrument concerned applies;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

40A

2(2) (in relation to a contravention or proposed contravention of a term in a collective agreement‑based transitional instrument that would be an outworker term if it were included in an award‑based transitional instrument)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

41

2(2) (in relation to a contravention of an individual agreement‑based transitional instrument)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

42

3(1)

(a) an employee who the proposed enterprise agreement will cover;

(b) a bargaining representative for the proposed enterprise agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

30 penalty units

43

3(2)

(a) an employee who the proposed enterprise agreement will cover;

(b) a bargaining representative for the proposed enterprise agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

30 penalty units

44

4

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44A

4A(1) (other than in relation to a contravention or proposed contravention of an outworker term)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44B

4A(1) (in relation to a contravention or proposed contravention of an outworker term)

(a) an outworker;

(b) an employer;

(c) an outworker entity;

(d) an employee organisation;

(e) an employer organisation;

(f) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44C

4A(2) (in relation to a contravention or proposed contravention of a collective Division 2B State employment agreement other than a contravention or proposed contravention of a term that would be an outworker term if it were included in a Division 2B State award)

(a) an employee;

(b) an employer;

(c) an employee organisation to which the collective Division 2B State employment agreement concerned applies;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44D

4A(2) (in relation to a contravention or proposed contravention of a term in a collective Division 2B State employment agreement that would be an outworker term if it were included in a Division 2B State award)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44E

4A(2) (in relation to a contravention of an individual Division 2B State employment agreement)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44F

4B(1)

(a) an employee who the proposed enterprise agreement will cover;

(b) a bargaining representative for the proposed enterprise agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

30 penalty units

44G

4B(2)

(a) an employee who the proposed enterprise agreement will cover;

(b) a bargaining representative for the proposed enterprise agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

30 penalty units

44H

4C(1)

(a) an employee;

(b) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the agreement‑
based transitional instrument;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44J

4C(2)

(a) an employee;

(b) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the Division 2B State employment agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44K

4C(3)

(a) an employee;

(b) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the enterprise agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

45

5

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

46

6(1)

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

47

6(2)

(a) an employee;

(b) a registered employee association;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

48

7

(a) an employee;

(b) an outworker;

(c) an employee organisation;

(d) an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the take‑home pay order relates;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

48A

7A(1)

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

48B

7A(2)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

49

8(1)

(a) an employee;

(b) an employee organisation;

(c) an inspector

(d) if the agreement is an ITEA—a bargaining agent

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

30 penalty units

50

8(2)

(a) an employee;

(b) an employee organisation;

(c) an inspector;

(d) if the agreement is an ITEA—a bargaining agent

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

51

8(3)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector;

(e) if the agreement is an ITEA—a bargaining agent

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

30 penalty units

52

8(4)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector;

(e) if the agreement is an ITEA—a bargaining agent

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

53

10

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

54

11(1)

(a) a transferring employee;

(b) the new employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

55

11(2), (3) and (4)

(a) a transferring employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

56

11(5)

(a) a transferring employee;

(b) the new employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

57

12(1)

(a) an employee;

(b) an employer;

(c) an applicant for the protected action ballot order;

(d) the protected action ballot agent;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2)

30 penalty units

58

13(1)

(a) an employee;

(b) an employer;

(c) an applicant for the ballot order to which the protected ballot information relates;

(d) the authorised ballot agent in relation to the ballot to which the protected ballot information relates;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2)

30 penalty units

59

14

(a) an employee;

(b) an employer;

(c) an applicant for the ballot order;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2)

30 penalty units

60

15(1) (other than in relation to a contravention of an outworker term in a continuing Schedule 6 instrument)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

61

15(1) (in relation to a contravention of an outworker term in a continuing Schedule 6 instrument)

(a) an outworker;

(b) an employer;

(c) an outworker entity;

(d) an employee organisation;

(e) an employer organisation;

(f) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

62

15(2)

(a) a transferring transitional employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2)

60 penalty units

\n```\n\n(2) For the purposes of table items 38, 39, 40, 40A, 44A, 44B, 44C, 44D, 48, 60 and 61 in subitem (1), and the operation of subsections 540(3) and (4) of the FW Act in relation to those table items:\n\n (i) references in the section to a modern award were references to an award‑based transitional instrument, a Division 2B State award or a continuing Schedule 6 instrument; and\n\n(3) Section 570 of the FW Act applies in relation to proceedings that relate to any of items 2 to 8 or 10 to 15 of this Schedule as if the reference to this Act (being the FW Act) were a reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.\n\n(4) Section 571 of the FW Act applies as if the reference to a pecuniary penalty imposed under this Act (being the FW Act) were a reference to a pecuniary penalty imposed in relation to any of items 2 to 8 or 10 to 15 of this Schedule.\n\nThe Federal Court and the Federal Circuit and Family Court of Australia (Division 2) may not make an order under Division 2 of Part 4‑1 of the FW Act granting an injunction, or an interim injunction, to prevent, stop or remedy the effects of a contravention of:\n\nNote: Inspectors may exercise powers for the other compliance purposes set out in subsection 706(1) of the FW Act before the FW (safety net provisions) commencement day.\n\n(1) The regulations may provide for civil penalties for contravention of this Act or of the WR Act as the WR Act continues to apply because of this Act.\n\n## 6A Assignment of Judges to Divisions\n\n> Note: A Judge (including the Chief Justice) who is not assigned to either Division of the Court may exercise the powers of the Court in either Division (see subsection 15(1C)).\n\nAdd:\n\n (2) For the purposes of this Act, a person who is performing duties and exercising powers under subsection (1) is taken not to be assigned to either Division of the Court.\n\n> Note: A Judge (including the Chief Justice) who is not assigned to either Division of the Court may exercise the powers of the Court in either Division (see subsection 15(1C)).\n\n## 13 General and Fair Work Divisions of the Court\n\n> Note: Under section 562 of the Fair Work Act 2009, jurisdiction is required to be exercised in the Fair Work Division of the Court in relation to matters arising under that Act.\n\n (b) jurisdiction that is incidental to such jurisdiction (including jurisdiction that is required by any other Act to be exercised in the Fair Work Division).\n (5) If the Court’s jurisdiction is required to be exercised in both Divisions in relation to particular proceedings or proceedings of a particular kind, the Chief Justice may, at any time (whether before or after the proceedings are instituted), give a direction about the allocation to one or other Division of those proceedings or proceedings of that kind.\n\n (1A) A Judge who is assigned to a Division of the Court must exercise, or participate in exercising, the powers of the Court only in that Division, except as set out in subsection (1B).\n (1B) The Chief Justice may arrange for a Judge who is assigned to a particular Division of the Court to exercise, or participate in exercising, the powers of the Court in the other Division if the Chief Justice considers that circumstances make it desirable to do so.\n (1C) To avoid doubt, a Judge who is not assigned to either Division of the Court may exercise, or participate in exercising, the powers of the Court in either Division.\n (1D) Subsection (1A) does not affect the validity of any exercise of powers by the Court otherwise than in accordance with that subsection.\n\nNote 2: The following heading to subsection 15(2) is inserted “Judges who are also Judges of the Supreme Court of the ACT and the Northern Territory”.\n\nAdd:\n\n## 18BA Arrangements with agencies or organisations\n\n (2) If an arrangement under subsection (1) is in force in relation to the performance by an employee of an agency or organisation of a function on behalf of the Court, the employee may perform that function despite any other provision of this Act or any other law of the Commonwealth.\n (3) A function performed on behalf of the Court in accordance with an arrangement under subsection (1) has effect as if the function had been performed by the Court.\n\n## 10A General and Fair Work Divisions of the Federal Magistrates Court\n\n (1) For the purpose of the organisation and conduct of the business of the Federal Magistrates Court, the Federal Magistrates Court comprises 2 Divisions:\n\n> Note: Under section 566 of the Fair Work Act 2009, jurisdiction is required to be exercised in the Fair Work Division of the Federal Magistrates Court in relation to matters arising under that Act.\n\n (b) jurisdiction that is incidental to such jurisdiction (including jurisdiction that is required by any other Act to be exercised in the Fair Work Division).\n (5) If the Court’s jurisdiction is required to be exercised in both Divisions in relation to particular proceedings or proceedings of a particular kind, the Chief Federal Magistrate may, at any time (whether before or after the proceedings are instituted), give a direction about the allocation to one or other Division of those proceedings or proceedings of that kind.\n\n (3A) A Federal Magistrate who is assigned to a Division of the Federal Magistrates Court must exercise, or participate in exercising, the powers of the Federal Magistrates Court only in that Division, except as set out in subsection (3B).\n (3B) The Chief Federal Magistrate may arrange for a Federal Magistrate who is assigned to a particular Division of the Federal Magistrates Court to exercise, or participate in exercising, the powers of the Federal Magistrates Court in the other Division if the Chief Federal Magistrate considers that circumstances make it desirable to do so.\n (3C) To avoid doubt, a Federal Magistrate who is not assigned to either Division of the Federal Magistrates Court may exercise, or participate in exercising, the powers of the Federal Magistrates Court in either Division.\n (3D) Subsection (3A) does not affect the validity of any exercise of powers by the Federal Magistrates Court otherwise than in accordance with that subsection.\n\nNote 2: The following heading to subsection 12(4) is inserted “Assignment of Federal Magistrates to locations or registries”.\n\n## 1A Assignment of Federal Magistrates to Divisions\n\n> Note: A Federal Magistrate (including the Chief Federal Magistrate) who is not assigned to either Division of the Federal Magistrates Court may exercise the powers of the Federal Magistrates Court in either Division (see subsection 12(3C)).\n\nAdd:\n\n (3) For the purposes of this Act, a person who is acting as Chief Federal Magistrate under subclause (1) is taken not to be assigned to either Division of the Federal Magistrates Court.\n\n> Note: A Federal Magistrate who is not assigned to either Division of the Federal Magistrates Court may exercise the powers of the Federal Magistrates Court in either Division (see subsection 12(3C)).\n\nOmit “Conciliation and Arbitration Act 1904,”, substitute “Fair Work Act 2009, the Fair Work (Registered Organisations) Act 2009, the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009,”.\n\n (b) in relation to proceedings that are pending in the Federal Court immediately before that Part commences, as if the reference in subsection 13(2) of the Federal Court of Australia Act 1976 (as inserted by item 6 of this Schedule) to “be instituted, heard and determined” were a reference to “, after item 6 of Schedule 17 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 commences, be heard and determined”.\n\n(2) A person who is a Judge (other than the Chief Justice) of the Federal Court immediately before Part 1 of this Schedule commences, is taken, for all purposes, not to have been assigned under section 6A of the Federal Court of Australia Act 1976 (as inserted by item 3 of this Schedule) to either Division of the Federal Court.\n\nNote: A Judge (including the Chief Justice) who is not assigned to either Division of the Court may exercise the powers of the Court in either Division (see subsection 15(1C) of the Federal Court of Australia Act 1976, as inserted by item 7 of this Schedule).\n\n (b) in relation to proceedings that are pending in the Federal Magistrates Court immediately before that Part commences, as if the reference in subsection 10A(2) of the Federal Magistrates Act 1999 (as inserted by item 12 of this Schedule) to “be instituted, heard and determined” were a reference to “, after item 12 of Schedule 17 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 commences, be heard and determined”.\n\n(2) A person who is a Federal Magistrate (other than the Chief Federal Magistrate) of the Federal Magistrates Court immediately before Part 2 of this Schedule commences, is taken, for all purposes, not to have been assigned under clause 1A of Schedule 1 to the Federal Magistrates Act 1999 (as inserted by item 16 of this Schedule) to either Division of the Federal Magistrates Court.\n\nNote: A Federal Magistrate (including the Chief Federal Magistrate) who is not assigned to either Division of the Federal Magistrates Court may exercise the powers of the Federal Magistrates Court in either Division (see subsection 12(3C) of the Federal Magistrates Act 1999, as inserted by item 13 of this Schedule).\n\nThe jurisdiction conferred on the Federal Court under item 21 is to be exercised in the Fair Work Division of the Federal Court if:\n\n (a) an application is made to the Federal Court under this Act or the WR Act as it continues to apply because of this Act; or\n (b) a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Act or the WR Act as it continues to apply because of this Act; or\n (c) a declaration is sought under section 21 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (d) an injunction is sought under section 23 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (e) a prosecution is instituted in the Federal Court under this Act or the WR Act as it continues to apply because of this Act; or\n (f) an appeal is instituted in the Federal Court from a judgment of the Federal Circuit and Family Court of Australia (Division 2) or a court of a State or Territory in a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (g) proceedings in relation to a matter arising under this Act, or the WR Act as it continues to apply because of this Act, are transferred to the Federal Court from the Federal Circuit and Family Court of Australia (Division 2); or\n (h) the Federal Circuit and Family Court of Australia (Division 2) or a court of a State or Territory states a case or reserves a question for the consideration of the Federal Court in a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (i) the President refers, under section 608 of the FW Act, a question of law to the Federal Court in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (j) the High Court remits a matter arising under this Act or the WR Act as it continues to apply because of this Act to the Federal Court.\n\nTo avoid doubt, nothing in this Act limits the Federal Court’s powers under section 21, 22 or 23 of the Federal Court of Australia Act 1976.\n\n(1) An appeal lies to the Federal Court from a decision of an eligible State or Territory court exercising jurisdiction under this Act or the WR Act as it continues to apply because of this Act.\n\n(2) It is not necessary to obtain the leave of the Federal Court, or the court appealed from, in relation to an appeal under subitem (1).\n\nJurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in relation to any civil matter arising under:\n\nJurisdiction conferred on the Federal Circuit and Family Court of Australia (Division 2) under item 25 is to be exercised in the Fair Work Division of the Court if:\n\n (b) an injunction is sought under section 140 of the Federal Circuit and Family Court of Australia Act 2021 in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (c) a declaration is sought under section 141 of the Federal Circuit and Family Court of Australia Act 2021 in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (d) proceedings in relation to a matter arising under this Act, or the WR Act as it continues to apply because of this Act, are transferred to the Federal Circuit and Family Court of Australia (Division 2) from the Federal Court; or\n (e) the High Court remits a matter arising under this Act or the WR Act as it continues to apply because of this Act to the Federal Circuit and Family Court of Australia (Division 2).\n\nTo avoid doubt, nothing in this Act limits the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 139, 140 or 141 of the Federal Circuit and Family Court of Australia Act 2021.\n\nis taken, after that time, to be an appointment, under section 626 of the FW Act, to the office of FWA mentioned in the table item.\n\n

Appointments to FWA

Item

Column 1

Office of the Commission

Column 2

Office of FWA

Column 3

Commencement time

1

President of the Commission

President of FWA

The day proclaimed for the purposes of item 2 of the table in subsection 2(1) of the FW Act.

2

Vice President of the Commission

Deputy President of FWA

The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of the FW Act.

3

Senior Deputy President of the Commission

Deputy President of FWA

The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of the FW Act.

4

Deputy President of the Commission

Deputy President of FWA

The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of the FW Act.

5

Commissioner of the Commission

Commissioner of FWA

The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of the FW Act.

\n```\n\n (a) was appointed as a member of a prescribed State industrial authority (within the meaning of the WR Act) before being appointed as a member of the Commission; and\n\n(3) Despite any provision of the WR Act or the FW Act, a person who is taken to have been appointed as an FWA Member under this item continues also to hold office under the WR Act.\n\nNote: The terms and conditions of a person who is taken to have been appointed as an FWA Member are the terms and conditions that attach to his or her appointment under the WR Act (see item 2 of this Schedule).\n\n (a) holds office under the FW Act on the same terms and conditions as attach, or attached, to his or her appointment under the WR Act (including under subsections 63(2) and (3) of that Act); and\n (b) is entitled to the same designation as he or she is, or was, entitled to in relation to his or her appointment under the WR Act (including the designation the person has, or had, because of subsection 80(2) of the Industrial Relations (Consequential Provisions) Act 1988).\n\n (b) continues the application of the Judges’ Pensions Act 1968 in relation to a person taken to have been appointed under item 1 of this Schedule and to whom that Act applied as a member of the Commission.\n\n(3) For the purposes of determining the remuneration of a person who is taken to have been appointed as an FWA Member under item 1 of this Schedule:\n\n (b) sections 79 and 81 of the WR Act apply, and continue to apply on and after the WR Act repeal day, in relation to the person’s appointment as both an FWA Member and a member of the Commission.\n\nSection 609 of the FW Act has effect, in relation to any time at which the President is the only FWA Member, as if the words “After consulting the other FWA Members,” were omitted from subsection (1) of that section.\n\nis to be determined in accordance with the precedence assigned to them as members of the Commission under section 65 of the WR Act.\n\nDespite the requirement in subsection 609(1) of the FW Act, the President may make rules under that subsection before the WR Act repeal day without consulting other FWA Members.\n\n(1) The President of the Commission may give directions to a person who is taken to be appointed as an FWA Member under item 1 of this Schedule as to the manner in which the person is to perform his or her functions as a member of the Commission.\n\n(1) This item applies in relation to an FWC member who is a person taken to have been appointed as an FWA Member under item 1 of this Schedule.\n\n(2) Section 581A of the FW Act (which deals with the President handling complaints about FWC Members) applies after the commencement of this item in relation to a complaint made about the performance of the FWC Member as if the following amendments were made:\n\n (a) paragraph (4)(b) of that section—omit “termination of the appointment of the FWC Member”, substitute “removal of the FWC Member from office”;\n (b) the note to subsection (4) of that section—omit “The appointment of an FWC Member may be terminated under section 641”, substitute “An FWC Member may be removed from office under section 82 or 86 of the WR Act (within the meaning of the Transitional Act), as those sections continue to apply because of the operation of item 2 of Schedule 18 to the Transitional Act,”;\n (c) subparagraph (a)(i) of the definition of relevant belief in section 12 of the FW Act—omit “terminating the appointment of the FWC Member in accordance with section 641”, substitute “removing the FWC Member from office in accordance with section 82 or 86 of the WR Act (within the meaning of the Transitional Act), as those sections continue to apply because of the operation of item 2 of Schedule 18 to the Transitional Act”.\n\n(3) Section 641A of the FW Act (which deals with the Minister handling complaints about FWC Members) applies after the commencement of this item in relation to a complaint made about the performance of the FWC Member as if the following amendments were made:\n\n (a) paragraph (a) of that section—omit “termination of the appointment of the FWC Member; and”, substitute “removal of the FWC Member from office.”;\n (c) note 1 to that section—omit “The appointment of an FWC Member may be terminated under section 641”, substitute “An FWC Member may be removed from office under section 82 or 86 of the WR Act (within the meaning of the Transitional Act), as those sections continue to apply because of the operation of item 2 of Schedule 18 to the Transitional Act,”;\n\n(1) Despite the WR Act repeal, a body (the WR Act body) or office (the WR Act office) set out in an item in the following table continues in existence until the cessation time set out in the item.\n\n

WR Act bodies and WR Act offices—continuation and cessation

Item

Column 1

WR Act bodies

Column 2

WR Act offices

Column 3

Cessation time

1

Australian Industrial Relations Commission

Members of the Australian Industrial Relations Commission

31 December 2009

2

Australian Industrial Registry

Industrial Registrar and Deputy Registrars

31 December 2009

3

Australian Fair Pay Commission and AFPC Secretariat

AFPC Chair, AFPC Commissioners and Director of the AFPC Secretariat

31 July 2009

4

Workplace Authority

Workplace Authority Director

31 January 2010

\n```\n\nNote: FWA will begin to take over the work of WR Act bodies and WR Act offices before their cessation times: see item 12 of Schedule 2.\n\n(2) To avoid doubt, an appointment to a WR Act body or a WR Act office in effect immediately before the WR Act repeal continues in force on and after the WR Act repeal day:\n\nNote: As an example of the effect of this Act, at the cessation time for a WR Act body or a WR Act office, related appointments will cease.\n\n(3) Despite subitem (1), the Minister may, by writing, determine that a WR body or a WR Act office ceases to exist at a time that is different from the cessation time set out for the body or office in the table.\n\n(1) The person referred to in column 1 of an item of the following table must arrange for the transfer, on the WR Act repeal day, of assets and liabilities of the body referred to in column 2 of the item of the following table to the body referred to in column 3 of the item of the following table.\n\n

Transfer of assets and liabilities

Item

Column 1

Office‑holder who enters arrangement with FWA

Column 2

Body whose assets and liabilities are transferred

Column 3

Body to which assets and liabilities are transferred

1

Director of the AFPC Secretariat

AFPC Secretariat

FWA

2

Industrial Registrar

Australian Industrial Registry

FWA

3

Workplace Authority Director

Workplace Authority

Office of the Fair Work Ombudsman

4

Workplace Ombudsman

Office of the Workplace Ombudsman

Office of the Fair Work Ombudsman

\n```\n\n(2) Despite subitem (1), the Minister may, before the WR Act repeal day, determine one or more of the following by writing:\n\n (a) that some or all assets and liabilities of the body (as specified in the determination) are to be transferred to a different body (as specified in the determination) from the one referred to in column 3 of the table;\n (b) that some or all assets and liabilities of the body (as specified in the determination) are to be transferred on a different day (as specified in the determination) from the one referred to in subitem (1);\n (c) that some or all assets and liabilities of the body (as specified in the determination) are to be transferred in accordance with regulations made, or to be made, for the purposes of this paragraph.\n\n(4) In this item, a reference to an asset of a body includes a reference to a record or any other information that is in the custody of, or under the control of, the body.\n\nSection 655 of the FW Act has effect as if information acquired, before the WR Act repeal day, by a WR Act body or a person holding a WR Act office in the course of performing functions or exercising powers as such a body or in such an office were information acquired by the FWC in the course of performing functions or exercising powers as the FWC.\n\nNote: Item 16 makes provision for information acquired by a member of the Office of the Workplace Ombudsman to be treated, for the purposes of section 718 of the FW Act, as if it were acquired by the Fair Work Ombudsman.\n\n(1) The General Manager of FWA may enter into an arrangement with the person referred to in column 1 of an item of the following table for FWA to provide assistance to the body referred to in column 2 of the item for the purpose of performing functions on and after the WR Act repeal day.\n\n

Arrangements between FWA and body

Item

Column 1

Office‑holder who enters arrangement with FWA

Column 2

Body to which assistance is provided

1

Industrial Registrar

Australian Industrial Registry

2

Workplace Authority Director

Workplace Authority

3

Director of the AFPC Secretariat

AFPC Secretariat

\n```\n\n(2) The Fair Work Ombudsman may enter into an arrangement with the Workplace Authority Director to provide assistance to the Workplace Authority Director for the purpose of performing functions on and after the WR Act repeal day.\n\n(1) After the cessation time for a WR Act body or a WR Act office, the powers, functions and duties of the body or office are to be exercised and performed by the FWC.\n\n(2) For the purposes of subitem (1), a law of the Commonwealth that relates to the body or office is, for the purposes of its application after the cessation time, to be read:\n\n(3) Despite subitem (1), the Minister may, by writing, determine that a power, function or duty of a WR Act body or a WR Act office is to be exercised or performed, after the cessation time for the body or office, by a body or person other than the FWC.\n\n(5) If the FWC, or another body or person, deals after the cessation time for a WR Act body or a WR Act office with a matter that was being dealt with by the WR Act body or a person holding the WR Act office, the FWC or the other body or person, as the case requires, must take into account everything done by, or in relation to, the WR Act body or a person holding the WR Act office, in relation to the matter.\n\n(1) An appointment of a person as a workplace inspector that is in force under section 167 of the WR Act immediately before the WR Act repeal day has effect, for the remainder of the term of the appointment, as if it were an appointment of the person as a Fair Work Inspector under section 700 of the FW Act.\n\n(2) An identity card issued under section 168 of the WR Act to a person covered by subitem (1) has effect, for the remainder of the person’s term of appointment, as if it were an identity card issued under section 702 of the FW Act.\n\n(1) Parts 5A and 6 of the WR Act (which deal with the Workplace Ombudsman and workplace inspectors) have no application after the WR Act repeal.\n\n(1) For the purposes of the application of the WR Act in relation to conduct that occurred before the WR Act repeal day (including the application of the WR Act because of subitem 11(2) of Schedule 2), an application that could have been made or continued by a workplace inspector (disregarding item 12 of this Schedule) may be made or continued, on and after the WR Act repeal day, by a Fair Work Inspector.\n\n (a) a reference in that Part to a fair work instrument were a reference to a WR Act instrument or a transitional award that is not a WR Act instrument; and\n (b) a reference (other than a reference in a note to a section or subsection, or a reference in section 716) in that Part to a civil remedy provision were a reference to a civil remedy provision or a civil penalty provision within the meaning of the WR Act, as in force from time to time; and\n (c) a reference in that Part to “this Act” (being the FW Act) were a reference to the WR Act, as in force from time to time before the WR Act repeal day; and\n (d) the reference in paragraph 706(1)(c) to the regulations were a reference to regulations, as in force from time to time, under the WR Act, as in force from time to time before the WR Act repeal day; and\n\n (a) a reference in that Part to a fair work instrument included a reference to a transitional instrument, a transitional minimum wage instrument or a continuing Schedule 6 instrument; and\n (b) a reference in that Part to “this Act” (being the FW Act) included a reference to the WR Act as it continues to apply because of this Act; and\n (c) a reference in that Part to “this Act” (being the FW Act) included a reference to this Act (being the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009); and\n (iii) subsection 182(1) or (2) of the WR Act, as it continues to apply under item 5 of Schedule 9 (which deals with continuation of Australian Fair Pay and Conditions Standard wages provisions);\n\n(1) Part 5‑2 of the FW Act applies in relation to conduct that occurs on or after the Division 2B referral commencement as if:\n\nA direction, given by the Workplace Ombudsman to a workplace inspector under subsection 167(7) of the WR Act, that is in force immediately before the WR Act repeal day is taken, on and after that day, to have been given by the Fair Work Ombudsman to a Fair Work Inspector under section 704 or 705 (as the case requires) of the FW Act.\n\nSection 718 of the FW Act has effect as if information acquired, before the WR Act repeal day, by a member of the Office of the Workplace Ombudsman in the course of performing functions or exercising powers as such a member were information acquired by the Fair Work Ombudsman in the course of performing functions or exercising powers as the Fair Work Ombudsman.\n\nNote: The effect of this item is to allow the Fair Work Ombudsman to disclose, under section 718 of the FW Act, information acquired by a member of the Office of the Workplace Ombudsman.\n\n (a) the annual report on the operations of FWA prepared for the 2009‑2010 financial year under section 652 of the FW Act must include a report on the operations of FWA during the period:\n\n (a) the annual report on the operations of the Office of the Fair Work Ombudsman prepared for the 2009‑2010 financial year under section 686 of the FW Act must include a report on the operations of the Office during the period:\n\n(1) The Fair Work Ombudsman (instead of the Workplace Ombudsman) must prepare the annual report on the operations of the Office of the Workplace Ombudsman under section 166S of the WR Act for the 2008‑2009 financial year.\n\n(1) The General Manager of the FWC must prepare a written report about the first 3 years operation of the unfair dismissal system.\n\n(2) The report must deal with the experiences employers, and in particular small and medium‑sized enterprise employers, and employees have had with the unfair dismissal system.\n\n (b) conduct surveys of employers, employees and any other persons affected by, or who have had experience with, the unfair dismissal system;\n\n (d) the number of applicants employed by small business employers whose dismissals were not consistent with the Small Business Fair Dismissal Code; and\n (f) the number of unfair dismissal applications that were made after the period of 14 days specified in paragraph 394(2)(a) of the FW Act and the number of those applications that were allowed by the FWC under subsection 394(3) of the FW Act; and\n (g) the number of unfair dismissal applications discontinued, and the stages at which those applications were discontinued; and\n\n(5) The General Manager of the FWC must give the Minister the report as soon as practicable and, in any event, within 6 months after the end of the period mentioned in subitem (1).\n\n(6) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.\n\n(7) Subsections 34C(4) to (7) of the Acts Interpretation Act 1901 apply to the report as if it were a periodic report within the meaning of that definition in subsection 34C(1) of that Act.\n\n (a) an APS employee is moved, under paragraph 72(1)(a) of the Public Service Act 1999, from an old Agency to a new Agency; and\n (ii) an AWA or pre‑reform AWA (and therefore also a collective agreement which had no effect while the AWA or pre‑reform AWA operated in relation to the employee).\n\n(2) The collective agreement, AWA or pre‑reform AWA, as the case requires, has effect after the move in relation to the employee’s employment as if it had been made with the Agency Head of the new Agency on behalf of the Commonwealth.\n\n (b) more than one collective agreement‑based transitional instrument applies to the employment of employees in that Agency;\n\n(4) The regulations may provide for other matters of a transitional nature in relation to the transfer of employees from an old Agency to a new Agency.\n\nnew employee, in a new Agency, means an employee who was not moved to the new Agency from an old Agency as mentioned in paragraph (1)(a).\n\n## 629A Status of the President\n\n## 796A Regulations conferring functions\n\n (a) disputes in relation to a matter arising under a transitional instrument (including a WR Act instrument that becomes a transitional instrument);\n (b) disputes in relation to the Australian Fair Pay and Conditions Standard in Part 7 of the WR Act, including as it continues to apply because of Schedule 4 (other than disputes in relation to Division 2 of Part 7 of that Act);\n (c) disputes in relation to Division 1, 2 or 6 of Part 12 of the WR Act, including as it continues to apply because of Schedule 4.\n\n(2) The WR Act applies in relation to a dispute mentioned in any of paragraphs (1)(a) to (c) in the way that it applied, before the WR Act repeal day, in relation to a like dispute.\n\n(1) Anything that could, or would, have been done by, or in relation to, the Commission or the Industrial Registrar because of item 1 may only be done by, or in relation to, the FWC.\n\nNote: That subsection allows the FWC to deal with a dispute only if the FWC is expressly authorised to do so under the FW Act.\n\n(1) Schedule 6 to the WR Act (continued Schedule 6) continues to apply on and after the WR Act repeal day in accordance with this Schedule.\n\n(2) Except for instrument content rules and instrument interaction rules, nothing in this Schedule or continued Schedule 6 applies to State reference transitional awards or common rules.\n\nNote: State reference transitional awards or common rules are continued in existence by Schedule 3 as transitional instruments.\n\n(3) Without limiting subitem (1) (but subject to subitem (2)), transitional awards that were in operation under Schedule 6 to the WR Act immediately before the WR Act repeal day continue in operation as continuing Schedule 6 instruments on and after the repeal day in accordance with continued Schedule 6.\n\nNote 1: In addition to provisions of this Schedule, Part 3 of Schedule 2 may also affect continuing Schedule 6 instruments.\n\n (a) a reference in that Schedule to the Australian Industrial Relations Commission (or the Commission) were a reference to the FWC; and\n (b) without limiting paragraph (a)—a reference in that Schedule to a member of the Commission (or a Commissioner) were a reference to an FWC member; and\n (d) a reference in that Schedule to a Presidential Member were a reference to the President, or a Deputy President, of the FWC; and\n (f) a reference in that Schedule to a Registrar or the Industrial Registrar were a reference to the General Manager of the FWC; and\n (ii) without limiting subparagraph (i)—a reference in that Schedule to wage‑setting decisions of the AFPC were a reference to determinations made by the FWC in annual wage reviews; and\n (i) a reference to “this Act” (being the WR Act) in any of the following provisions of that Schedule were a reference to “this Act” as defined in section 12 of the FW Act:\n\nNote: For example, paragraph (1)(a) does not apply if the reference is to something that the Australian Industrial Relations Commission did before the WR Act repeal day (or before the reform commencement).\n\n(1) Section 578 of the FW Act applies to the performance of the FWC’s functions under continued Schedule 6 as if the reference in paragraph 578(a) to “the objects of this Act, and any objects of the part of the Act” were a reference to the objects of continued Schedule 6.\n\n were a reference to item 15 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; and\n\n (a) note 2 to subclause 3(1) were worded as follows: “In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.”; and\n\n(1) The new ballots compliance provisions (see subitem (2)) apply in relation to a secret ballot ordered by the FWC under continued Schedule 6 as if:\n\nContinued Schedule 6 applies as if the reference in clause 107C to section 836 of the WR Act were a reference to sections 535 and 536 of the FW Act.\n\nNote 2: For the role of Fair Work Ombudsman and Inspectors in relation to continuing Schedule 6 instruments, see item 14 of Schedule 18.\n\nThe regulations may deal with other matters relating to how the FW Act applies in relation to continuing Schedule 6 instruments.\n\n(1) The Clothing Trades Award 1999, to the extent that it contains terms relating to outworkers, is taken always to have been made in accordance with Part VI of the Workplace Relations Act 1996. Any variation of those terms is taken always to have been made in accordance with that Part.\n\n(2) Without limiting subitem (1), those terms (as varied from time to time) are taken always to have been terms about allowable award matters of the kind described in paragraph 513(1)(o) of the Workplace Relations Act 1996.\n\nNote: This item amends the short title of the Act. If another amendment of the Act is described by reference to the Act’s previous short title, that other amendment has effect after the commencement of this item as an amendment of the Act under its amended short title (see section 10 of the Acts Interpretation Act 1901).\n\n## 5B Schedule 1 has effect\n\n> employee has its ordinary meaning, and includes a person who is usually such an employee, but does not include a person on a vocational placement.\n\n> FWA Member has the same meaning as in the Fair Work Act, but does not include a Minimum Wage Panel Member (within the meaning of that Act).\n\nOmit “paragraphs (a) to (g) of the definition of federal system employer in section 6”, substitute “paragraphs (a) to (f) of the definition of national system employer in section 14 of the Fair Work Act”.\n\n## 26A Validation of registration\n\n If:\n (a) an association was purportedly registered as an organisation under this Act before the commencement of this section; and\n (b) the association’s purported registration would, but for this section, have been invalid merely because, at any time, the association’s rules did not have the effect of terminating the membership of, or precluding from membership, persons who were persons of a particular kind or kinds;\n\n## 171A Cessation of membership if member is not an employee etc.\n\n (a) if the organisation is an association of employers—a person of a kind mentioned in paragraph 18A(3)(a), (b), (c) or (d); or\n (b) if the organisation is an association of employees—a person of a kind mentioned in paragraph 18B(3)(a), (b), (c) or (d); or\n (c) if the organisation is an enterprise association—a person of a kind mentioned in paragraph 18C(3)(a), (b), (c) or (d);\n\n the General Manager must reduce the order to writing, sign it and seal it with the seal of FWA, and the order has effect as if it had been signed by the FWA Member.\n\n## 338 Conferring jurisdiction on the Federal Court\n\n Jurisdiction is conferred on the Federal Court in relation to any matter (whether civil or criminal) arising under this Act.\n\n## 339A Exercising jurisdiction in the Fair Work Division of the Federal Court\n\n The jurisdiction conferred on the Federal Court under this Act is to be exercised in the Fair Work Division of the Federal Court if:\n (b) a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Act; or\n (c) a declaration is sought under section 21 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or\n (d) an injunction is sought under section 23 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or\n\nAdd:\n\nAdd:\n\n## 343A Delegation by General Manager to staff\n\n (1) The General Manager may, in writing, delegate to a member of the staff of FWA all or any of the General Manager’s functions or powers under this Act.\n (2) Despite subsection (1), the General Manager’s functions or powers under the following provisions cannot be delegated:\n (3) Despite subsection (1), the General Manager’s functions or powers under the following provisions can only be delegated to a member of the staff of FWA who is an SES employee or an acting SES employee, or who is in a class of employees prescribed by the regulations:\n\n> Note: The expressions SES employee and acting SES employee are defined in section 17AA of the Acts Interpretation Act 1901.\n\n (4) In exercising powers or functions under a delegation, the delegate must comply with any directions of the General Manager.\n\n## 351A Minister’s entitlement to intervene\n\n (1) The Minister may intervene on behalf of the Commonwealth in proceedings before a court (including a court of a State or Territory) in relation to a matter arising under this Act if the Minister believes it is in the public interest to do so.\n (2) If the Minister intervenes, the Minister is taken to be a party to the proceedings for the purposes of instituting an appeal from a judgment given in the proceedings.\n\n## 353A Representation in proceedings in the Fair Work Division of the Federal Court and Federal Magistrates Court\n\n (1) This section applies in relation to a proceeding in the Fair Work Division of the Federal Court, or of the Federal Magistrates Court, other than:\n (b) a member, officer or employee of a peak council to which an organisation of which the party is a member is affiliated.\n (4) If the proceeding is a proceeding in relation to a question of law referred to the Federal Court under section 608 of the Fair Work Act, a party to the proceeding may only be represented as permitted by subsection (2) or (3) if the Court grants leave.\n\n> Note: Regulations made under the Fair Work Act may also be relevant to the operation of this Act. For example, regulations about FWA’s practice and procedure may be made for the purposes of section 610 of the Fair Work Act.\n\n## 5C Schedule 2 has effect\n\n## 9A Meaning of federal counterpart\n\n (1) For the purposes of this Act, a federal counterpart for a particular association of employers or employees registered under a State or Territory industrial law is an organisation prescribed by the regulations to be a federal counterpart of that association.\n (2) For the purposes of this Act, if subsection (1) does not apply in relation to a particular association of employers or employees registered under a State or Territory industrial law, a federal counterpart for the association is:\n (a) an organisation that has a branch (including a division of such a branch or a constituent part of such a branch) in that State or Territory that has or purports to have:\n (b) if paragraph (a) does not apply—an organisation of which the association has purported to function as a branch (including a division of a branch or a constituent part of a branch).\n\nAdd:\n\n (5) FWA must not, under this section, grant an application for registration of an association of employers or employees registered under a State or Territory industrial law if the association has a federal counterpart.\n\n## Subdivision BA Branches of organisations\n\nAn Act to amend laws, and deal with transitional matters, in connection with the Fair Work Act 2009, and for other purposes\n\n (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 4 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent.

25 June 2009

2. Schedules 1 to 5

The day on which Part 2‑4 of the Fair Work Act 2009 commences.

1 July 2009

3. Schedule 6, Parts 1 and 2

At the same time as the provision(s) covered by table item 2.

1 July 2009

4. Schedule 6, Part 3

Immediately after the commencement of Part 2‑3 of the Fair Work Act 2009.

1 January 2010

4A. Schedule 6A

At the same time as the provision(s) covered by table item 2.

1 July 2009

5. Schedules 7 to 21

At the same time as the provision(s) covered by table item 2.

1 July 2009

6. Schedule 22, items 1 to 90

At the same time as the provision(s) covered by table item 2.

1 July 2009

7. Schedule 22, item 91

Immediately after the commencement of the provisions covered by table item 8.

1 July 2009

8. Schedule 22, items 92 to 627

At the same time as the provision(s) covered by table item 2.

1 July 2009

9. Schedule 23, items 1 to 2E

Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009.

1 July 2009

10. Schedule 23, items 3 to 6

Immediately after the commencement of Part 2‑2 of the Fair Work Act 2009.

1 January 2010

11. Schedule 23, item 7

Immediately after the commencement of Part 2‑3 of the Fair Work Act 2009.

1 January 2010

12. Schedule 23, item 8

Immediately after the commencement of Part 2‑8 of the Fair Work Act 2009.

1 July 2009

13. Schedule 23, item 9

Immediately after the commencement of Division 1 of Part 2‑9 of the Fair Work Act 2009.

1 July 2009

13A. Schedule 23, items 9A and 9B

Immediately after the commencement of Part 3‑1 of the Fair Work Act 2009.

1 July 2009

14. Schedule 23, items 10 to 12

Immediately after the commencement of Part 3‑3 of the Fair Work Act 2009.

1 July 2009

15. Schedule 23, items 13 to 21

Immediately after the commencement of Part 4‑1 of the Fair Work Act 2009.

1 July 2009

15A. Schedule 23, item 21A

Immediately after the commencement of Part 6‑1 of the Fair Work Act 2009.

1 July 2009

15B. Schedule 23, items 21B and 21C

Immediately after the commencement of Part 6‑4 of the Fair Work Act 2009.

1 July 2009

16. Schedule 23, item 22

Immediately after the commencement of section 799 of the Fair Work Act 2009.

1 July 2009

\n```\n\n> Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.\n\n (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.\n\n Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.\n\ncommon rule means a common rule within the meaning of clauses 82 to 87 of Schedule 6 to the WR Act (including those clauses as they continue to apply because of item 8A of Schedule 3).\n\nFair Work Australia or FWA means the body referred to in section 575 of the FW Act, as in force immediately before the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012.\n\nFWA member has the same meaning as in the FW Act, as in force immediately before the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012.\n\n (a) in relation to a workplace agreement—means lodged with the Workplace Authority Director under section 344 of the WR Act; and\n (b) in relation to a variation of a workplace agreement—means lodged with the Workplace Authority Director under section 346N or 377 of the WR Act, as the case may be; and\n (c) in relation to a termination of a workplace agreement—means lodged with the Workplace Authority Director under section 389 of the WR Act.\n\n (c) in relation to the State reference public sector transitional award modernisation process—has the meaning given by subitem 13(3) of Schedule 6A.\n\nState industrial body means a commission performing or exercising functions under a State industrial law, and includes a member of such a commission and a registrar or deputy registrar of such a commission.\n\nState industrial law means a law of a State that is a State or Territory industrial law as defined in section 26 of the FW Act.\n\nState reference transitional award or common rule means a State reference transitional award or a State reference common rule.\n\ntake‑home pay: see subitem 31(2) of Schedule 3A, subitem 8(2) of Schedule 5, subitem 11(2) of Schedule 6 and subitem 13(2) of Schedule 6A.\n\ntake‑home pay order: see subitems 32(1) and (2) of Schedule 3A, subitems 9(1) and (2) of Schedule 5, subitem 12(1) of Schedule 6 and subitem 14(1) of Schedule 6A.\n\nunlodged termination, in relation to a workplace agreement, means a termination of a workplace agreement approved in accordance with section 386 of the WR Act, but not lodged as at the WR Act repeal day.\n\nunlodged variation, in relation to a workplace agreement, means a variation of the workplace agreement under Division 8 of Part 8 of the WR Act approved in accordance with section 373 of the WR Act, but not lodged as at the WR Act repeal day.\n\nworkplace agreement that operates from approval means a workplace agreement to which Subdivision C of Division 5A of Part 8 of the WR Act applies (see subsection 346K(1) of that Act).\n\n(1) WR Act means the Workplace Relations Act 1996 and, unless the contrary intention appears, means that Act as in force immediately before the WR Act repeal day.\n\n(2) Unless a contrary intention appears, a reference to the WR Act, or to a provision or provisions of the WR Act, includes a reference to regulations made for the purposes of the WR Act, or for the purposes of the provision or provisions of the WR Act.\n\n(3) If an item of the transitional Schedules provides for the WR Act, or a provision or provisions of the WR Act, to continue to apply on and after the WR Act repeal day (or during the bridging period), the WR Act, or the provision or provisions, continue to so apply despite the WR Act repeal.\n\n(5) Unless a contrary intention appears, a reference to the FW Act, or to a provision or provisions of the FW Act, includes a reference to regulations made for the purposes of the FW Act, or for the purposes of the provision or provisions of the FW Act.\n\n (a) expressions used in a transitional Schedule that were defined in the WR Act (other than Schedule 1 to that Act) have the same meanings in that transitional Schedule as they had in that Act; and\n (b) expressions used in a transitional Schedule that are defined in the FW Act have the same meanings in that transitional Schedule as they have in that Act.\n\n(1) If a provision of a transitional Schedule provides for provisions (the applied WR Act provisions) of the WR Act to apply on and after the WR Act repeal day, any other provisions of the WR Act, and any regulations or other instruments made under that Act, that are necessary for the effectual operation of the applied WR Act provisions also apply on and after that day.\n\n(1) To avoid doubt, in interpreting provisions of the transitional Schedules, the effect on the WR Act of Part 21 of that Act (which deals with matters referred by Victoria) before the WR Act repeal day is to be taken into account.\n\nNote: For example, a reference in Schedule 3 to a workplace agreement includes a reference to a workplace agreement made under Part 8 of the WR Act, as that Part had effect because of Part 21.\n\n(2) If a provision of the transitional Schedules provides for the application or continued application of provisions of the WR Act on and after the WR Act repeal day, those provisions also have the effect they would have if Part 21 of that Act were still in force.\n\nNote: For example, item 2 of Schedule 4 provides for the continued application during the bridging period of Divisions 3, 4, 5 and 6 of Part 7 of the WR Act. The continued application of those Divisions also includes the extended effect those Divisions would have if Part 21 were still in force.\n\n(1) The regulations may make provisions of a transitional, application or saving nature in relation to any of the following:\n\n (a) the transition from the regime provided for by the WR Act (and any Acts that amended that Act) to the regime provided for by the FW Act;\n (c) the transition from the regime provided for by State industrial laws of Division 2B referring States to the regime provided for by this Act and the FW Act, including:\n\n (a) modify provisions of the FW Act, or provide for the application (with or without modifications) of provisions of the FW Act to matters to which they would otherwise not apply;\n (b) provide for the application (with or without modifications) of provisions of the WR Act on and after the WR Act repeal day;\n (c) provide for the application (with or without modifications), as laws of the Commonwealth, of provisions of State industrial laws of Division 2B referring States on and after the Division 2B referral commencement.\n\n(2) If a provision of a transitional Schedule provides for repealed provisions of the WR Act to apply on and after the WR Act repeal day, the regulations may:\n\n(3) If a provision of a transitional Schedule provides for provisions of the FW Act to apply in relation to matters to which they would otherwise not apply, the regulations may:\n\n(2) The regulations must not confer compliance powers on an inspector that are additional to the compliance powers under Part 5‑2 of the FW Act.\n\n(1) This item applies to regulations made for the purpose of any of the provisions of the transitional Schedules (including this Part).\n\n(2) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to the regulations.\n\n (a) regulations are expressed to commence from a date (the registration date) before the regulations are registered under the Legislation Act 2003; and\n\nthen a court must not convict the person of an offence, or order the person to pay a pecuniary penalty, in relation to the conduct on the grounds that it contravened a provision of any of those Acts.\n\n(4) The provisions of the transitional Schedules (including this Part) that provide for regulations to deal with matters do not limit each other.\n\n(1) The WR Act continues to apply, on and after the WR Act repeal day, in relation to conduct that occurred before the WR Act repeal day.\n\nNote: For continuation and cessation of WR Act bodies and offices on and after the WR Act repeal day, see item 7 of Schedule 18.\n\n(2) To avoid doubt, the WR Act continues to apply, on and after the WR Act repeal day, in relation to orders made under that Act, including as it continues to apply under subitem (1).\n\n (b) provide for the continued operation of the WR Act (including in modified form) in relation to conduct that occurs on or after the WR Act repeal day.\n\n (a) an application, other than an interim application, that could have been made to any of the following because of item 11 may be made only to the FWC:\n (b) an appeal to the Commission that could have been instituted because of item 11 may be instituted only as an appeal to the FWC; and\n (c) a process (however described), other than an interim process, that could have been initiated by the Commission on its own motion because of item 11 may be initiated only by the FWC; and\n (d) a matter that could have been referred to the Commission under section 46PW of the Australian Human Rights Commission Act 1986 because of item 11 is to be referred only to the FWC.\n\n(2) For the purposes of subitem (1), a law of the Commonwealth that relates to an application, appeal, process or matter referred to in that subitem is to be read:\n\ninterim application means an application that relates to a matter that is already before, or being dealt with by, the Commission, the President, a member of the Commission or a Registrar before the WR Act repeal day.\n\ninterim process means a process (however described) that relates to a matter that is already before, or being dealt with by, the Commission, the President, a member of the Commission or a Registrar before the WR Act repeal day.\n\n (b) provide for any other matter that, because of item 11, could have been dealt with by a WR Act body or a person holding a WR Act office to be dealt with by the FWC, or by the FWC only.\n\n(1) Each WR Act instrument (see subitem (2)) that becomes a transitional instrument (see subitems (3) to (4A)) continues in existence in accordance with this Schedule from when it becomes a transitional instrument, despite the WR Act repeal.\n\nNote: In addition to provisions of this Schedule, the following other provisions affect the continued existence of transitional instruments:\n\n (c) Schedule 8 (which deals with workplace agreements and workplace determinations made under the WR Act, including the making of ITEAs during the bridging period);\n\nNote 2: Preserved State agreements are either preserved collective State agreements or preserved individual State agreements.\n\nNote 3: For transitional provisions relating to Division 2 of Part 7 of the WR Act (which deals with wages), see Schedule 9.\n\n (a) each WR Act instrument (other than a Division 2B State reference transitional award) that was in operation immediately before the WR Act repeal day;\n (b) each workplace agreement or workplace determination made before the WR Act repeal day but that had not yet come into operation by that day;\n (c) any other WR Act instrument that, although not in operation immediately before the WR Act repeal day, could come into operation after that day because of an instrument interaction rule.\n\nNote: Victorian employment agreements are not continued as transitional instruments. For provisions relating to these agreements, see Part 7 of this Schedule.\n\n(3A) If a State reference common rule comes into effect on or after the WR Act repeal day under the provisions that continue to apply because of item 8A, the State reference common rule becomes a transitional instrument when the common rule comes into effect.\n\n(4) If an ITEA is made during the bridging period under Division 7 of Part 2 of Schedule 8, the ITEA becomes a transitional instrument when it is made.\n\n(4A) A Division 2B State reference transitional award becomes a transitional instrument on the Division 2B referral commencement. The Division 2B referral commencement is the time when Division 2B of Part 1‑3 of the FW Act commences.\n\n (a) awards, State reference transitional awards or common rules, and notional agreements preserving State awards, are award‑based transitional instruments;\n (c) agreement‑based transitional instruments of the following kinds are collective agreement‑based transitional instruments:\n (d) agreement‑based transitional instruments of the following kinds are individual agreement‑based transitional instruments:\n\n (a) if the employers and employees covered are Division 2A State reference employers and Division 2A State reference employees—the State reference transitional award is a Division 2A State reference transitional award;\n (b) if the employers and employees covered are Division 2B State reference employers and Division 2B State reference employees—the State reference transitional award is a Division 2B State reference transitional award.\n\n(3) A State reference employee is an employee who is a national system employee only because of section 30C or 30M of the FW Act.\n\n (a) employees who are national system employees because of section 30C of the FW Act are Division 2A State reference employees;\n (b) employees who are national system employees because of section 30M of the FW Act are Division 2B State reference employees.\n\n(4) A State reference employer is an employer that is a national system employer only because of section 30D or 30N of the FW Act.\n\n (a) employers that are national system employers because of section 30D of the FW Act are Division 2A State reference employers;\n (b) employers that are national system employers because of section 30N of the FW Act are Division 2B State reference employers.\n\n (a) a transitional award (the current award), as in force on the WR Act repeal day, covers one or more Division 2A State reference employers, and Division 2A State reference employees of those employers; and\n\nthen, for the purposes of this Act, the current award is taken instead, on and after that day (subject to subitem (6)), to constitute 2 separate transitional awards as follows:\n\n (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a)—that organisation in relation to those employers or employees; and\n (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b)—that organisation in relation to those employers or employees.\n\n (a) a transitional award (the current award), as in force on the Division 2B referral commencement, covers one or more Division 2B State reference employers, and Division 2B State reference employees of those employers; and\n\nthen, for the purposes of this Act, the current award is taken instead, on and after the Division 2B referral commencement, to constitute 2 separate transitional awards as follows:\n\n (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a)—that organisation in relation to those employers or employees;\n (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b)—that organisation in relation to those employers or employees.\n\n(1) A transitional instrument covers the same employees, employers and any other persons that it would have covered (however described in the instrument or WR Act) if the WR Act had continued in operation.\n\nNote 1: The expression covers is used to indicate the range of employees, employers etc. to whom the instrument potentially applies (see subitem (2)). The employees, employers etc. who are within this range will depend on terms of the instrument, and on any relevant provisions of the WR Act.\n\nNote 2: Depending on the terms of a transitional instrument and any relevant provisions of the WR Act, the instrument’s coverage may extend to people who become employees after the instrument becomes a transitional instrument.\n\n(2) A transitional instrument applies to the same employees, employers and any other persons the instrument covers as would, if the WR Act had continued in operation, have been:\n\nNote: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of a transitional instrument.\n\n(3) However, an award‑based transitional instrument does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act).\n\n (c) Division 2 of Part 5 (which deals with interaction between transitional instruments and FW Act modern awards, workplace determinations and enterprise agreements); and\n\n(1) The same instrument content rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.\n\nNote: Certain instrument content rules relating to the standing down of employees do not continue to apply in relation to WR Act instruments that become transitional instruments (see item 3 of Schedule 15).\n\n(2) Instrument content rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, of any of the following kinds:\n\n(1) The same instrument interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.\n\n(2) Instrument interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:\n\n(1) The same State and Territory interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.\n\n(2) State and Territory interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:\n\n(1) If a provision of a transitional instrument confers a power or function on the Australian Industrial Relations Commission, that provision has effect on and after the WR Act repeal day as if references in it to the Commission were instead references to the FWC.\n\n(2) If a provision of a transitional instrument confers a power or function on the Industrial Registrar or a Deputy Industrial Registrar, that provision has effect on and after the WR Act repeal day as if references in it to the Industrial Registrar or a Deputy Industrial Registrar were instead references to the General Manager of the FWC.\n\n (a) any right or liability that a person acquired, accrued or incurred before the transitional instrument terminated or ceased to apply; or\n\n(2) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the transitional instrument had not terminated or ceased to apply.\n\n(1) To the extent of any inconsistency, the following transitional instruments displace prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations:\n\n(3) If, immediately before the WR Act repeal day, regulations made under section 350 of the WR Act, or that continued to apply under subclause 2(2) or 17(2) of Schedule 7 to the WR Act:\n\n (a) identified a condition as a prescribed condition in relation to an instrument referred to in paragraph (1)(a), (b), (c) or (d); or\n (b) prescribed an Act or any regulations or other instrument made under an Act as a Commonwealth law in relation to such an instrument;\n\n(1) Subject to this item, clauses 82 to 87 of Schedule 6 to the WR Act continue to apply on and after the WR Act repeal day in relation to State reference common rules.\n\n (a) references in the clauses to the transitional period (including references to the end of the transitional period) were omitted; and\n (d) a reference in the clauses to the Rules of the Commission were instead a reference to the procedural rules of the FWC.\n\nNote: For example, paragraph (2)(a) does not apply if the reference is to something that the Commission did before the WR Act repeal day (or before the reform commencement).\n\n (b) item 26 (which deals with resolving difficulties with the interaction between transitional instruments and the National Employment Standards); or\n\nNote: The references in paragraphs (1)(a) and (2)(a) to a provision of this Part or the regulations includes a reference to a provision of the WR Act or the FW Act as it applies because of a provision of this Part.\n\n(1) On application by a person covered by a transitional instrument, the FWC may make a determination varying the instrument:\n\n (c) to remove terms that are inconsistent with Part 3‑1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part.\n\nNote: For variation of a transitional instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 26.\n\n(2) A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.\n\n(1) This item applies if a transitional instrument is referred to the FWC under section 46PW of the Australian Human Rights Commission Act 1986 (which deals with discriminatory industrial instruments).\n\n(2) If the instrument is an award‑based transitional instrument, section 161 of the FW Act applies in relation to the referral of the instrument as if the instrument were a modern award.\n\n(3) If the transitional instrument is an agreement‑based transitional instrument, section 218 of the FW Act applies in relation to the referral of the instrument as if the instrument were an enterprise agreement.\n\n(1) Subject to this item, Divisions 5 (other than subsections 554(1) to (4)) and 6 of Part 10 of the WR Act continue to apply on and after the WR Act repeal day in relation to transitional instruments that are awards as if references to the Commission were instead references to the FWC.\n\n(2) The FWC must perform its powers and functions under Divisions 5 and 6 in a way that furthers the objects of Part 10 of the WR Act.\n\n (b) an award can be varied or revoked after the end of the bridging period as a result of the FWC continuing to deal with a matter that it was dealing with before the end of the bridging period.\n\n(1) Subject to this item, Divisions 5 (other than subsections 554(1) to (4)) and 6 of Part 10 of the WR Act apply on and after the WR Act repeal day in relation to transitional instruments that are State reference transitional awards as if:\n\n(2) To avoid doubt, for the purpose of sections 552 and 553 of the WR Act, as applied by subitem (1) in relation to State reference transitional awards, “minimum safety net entitlements” includes minimum safety net entitlements relating to wages.\n\n(3) The FWC must perform its powers and functions under Divisions 5 and 6 in a way that furthers the objects of Part 10 of the WR Act.\n\n(4) A State reference transitional award cannot be varied or revoked after the end of the bridging period except as follows:\n\n (a) a State reference transitional award, other than terms relating to wages, can be varied after the end of the bridging period under section 553 of the WR Act;\n (b) terms of a State reference transitional award relating to wages can be varied after the end of the bridging period in an annual wage review under the FW Act as provided for in subitem (5);\n (c) a State reference transitional award can be varied after the end of the bridging period as a result of the FWC continuing to deal with a matter that it was dealing with before the end of the bridging period.\n\n(5) In an annual wage review, the FWC may make a determination varying terms of a State reference transitional award relating to wages.\n\n(6) For the purpose of subitem (5), Division 3 of Part 2‑6 of the FW Act (other than section 292) applies to terms of a State reference transitional award relating to wages in the same way as it applies to a modern award.\n\n(1) Subject to this item, clause 2A of Schedule 7 to the WR Act continues to apply on and after the WR Act repeal day in relation to transitional instruments that are pre‑reform certified agreements as if references to the Commission were instead references to FWA.\n\n(1) Subject to this item, clause 16A of Schedule 8 to the WR Act continues to apply on and after the WR Act repeal day in relation to transitional instruments that are preserved State agreements as if references to the Commission were instead references to FWA.\n\nSubdivision C of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective agreement‑based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument.\n\n(1) Subdivision D of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement‑based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument.\n\n(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.\n\n(3) To avoid doubt, subsection 615A(3) of the FW Act does not apply in relation to a collective agreement‑based transitional instrument.\n\n(1) The employee and employer covered by an individual agreement‑based transitional instrument may make a written agreement (a termination agreement) to terminate the agreement in accordance with the following requirements:\n\n(3) The employer or employee may apply to the FWC for approval of the termination agreement. The application must be made:\n\n (b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.\n\n(4) If an application for the FWC to approve the termination agreement is made under subitem (3), the FWC must approve the termination of the instrument if:\n\n (b) the FWC is satisfied that there are no other reasonable grounds for believing that the employee has not agreed to the termination.\n\n(5) If the termination is approved under subitem (4), the termination operates from the day specified in the decision to approve the termination.\n\n(1) This item provides for the making of an instrument (a conditional termination) that will have the effect of terminating an individual agreement‑based transitional instrument if:\n\n(2) If the transitional instrument has not passed its nominal expiry date, the conditional termination must be a written agreement signed by the employer and the employee. The signatures must be witnessed.\n\n(3) If the transitional instrument has passed its nominal expiry date, the conditional termination must be in writing and signed either by the employee or the employer. The signature must be witnessed.\n\n(4) If the conditional termination is signed by the employee, and the employee is under 18, it must also be signed by a parent or guardian of the employee.\n\n(5) Any other requirements of the regulations relating to the form, content or making of the conditional termination must also be complied with.\n\n (a) the conditional termination is an agreement signed by the employee and the employer in the circumstances covered by subitem (2); or\n\n(7) The conditional termination must accompany any application to the FWC for approval of the proposed enterprise agreement under section 185 of the FW Act.\n\nNote 2: Failure to comply with this obligation does not affect the operation of subitem (8), or the validity of an approval by the FWC of the proposed enterprise agreement.\n\n(8) If the requirements of subitems (2) to (5) have been complied with in relation to the conditional termination, the transitional instrument terminates when the proposed enterprise agreement comes into operation.\n\n (a) make a written declaration that identifies the transitional instrument and that states that the employer or employee wants to terminate the transitional instrument; and\n\n(3) The employer or employee cannot make an application as mentioned in paragraph (2)(b) unless, at least 14 days before the day on which the application is made, the employer or employee gives the other of them a notice complying with the following requirements:\n\n (b) the notice must state that the employer or employee intends to apply to the FWC for approval of the termination of the instrument;\n (c) the notice must state that, if the FWC approves the termination, the transitional instrument will terminate on the 90th day after the day on which the FWC makes the approval decision;\n (i) the notice must state whether, if the instrument terminates during the bridging period, one or more redundancy provisions in the instrument will continue to apply to the employee as provided for by item 38; and\n (ii) if one or more redundancy provisions in the instrument will so continue to apply to the employee—the notice must include or be accompanied by a copy of the provision or provisions;\n\n(5) If the FWC approves the termination, the transitional instrument terminates on the 90th day after the day on which the FWC makes the approval decision.\n\n(1) A notional agreement preserving State awards (other than a notional agreement that is an enterprise instrument) terminates:\n\n(2) If the employer in relation to a Division 3 pre‑reform certified agreement is not a national system employer, the agreement terminates on the earlier of the following:\n\n(3) However, if the employer becomes a national system employer before 27 March 2011, subitem (2) does not apply after that time.\n\n(4) If the employer in relation to an old IR agreement is not a national system employer, the agreement terminates on the earlier of the following:\n\n(5) However, if the employer becomes a national system employer before 27 March 2011, subitem (4) does not apply after that time.\n\n(7) However, if the employer becomes a national system employer before 27 March 2011, subitem (6) does not apply after that time.\n\n(1) An agreement‑based transitional instrument terminates at the end of the grace period for the instrument if the instrument has not already terminated before that time.\n\n (a) subject to paragraph (b), the period of 12 months (the default period) beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences; or\n\n (b) if the default period is extended for the instrument on one or more occasions under subitem (6) or paragraph (11)(e)—the default period as so extended.\n\n(3) An employer covered by an agreement‑based transitional instrument must, before the end of 6 months beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences, give each employee who is covered by the instrument and employed by the employer at the end of that period written notice advising the employee:\n\n (b) that the instrument will terminate unless an application is made to the FWC under subitem (4), before the end of the period of 12 months beginning on the day that Part commences, for the FWC to extend the default period for the instrument; and\n\n(4) Any of the following may apply to the FWC, before the end of the grace period for an agreement‑based transitional instrument, for the FWC to extend the default period for the instrument for a period of no more than 4 years:\n\n (c) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the instrument.\n\n(6) If an application is made under subitem (4), the FWC must extend the default period for the agreement‑based transitional instrument for a period of no more than 4 years if the FWC is satisfied that:\n\n (i) if the application relates to an individual agreement‑based transitional instrument—the employee covered by the individual agreement‑based transitional instrument; or\n\n (ii) if the application relates to a collective agreement‑based transitional instrument—the same, or substantially the same, group of employees as the collective agreement‑based transitional instrument; and\n\n (b) the employee covered by the instrument would be an award covered employee for the instrument under subitem (10) if the instrument were a collective agreement‑based transitional instrument; and\n\n (c) it is likely that, as at the time the application is made, the employee would be better off overall if the instrument applied to the employee than if the relevant modern award referred to in that subitem applied to the employee.\n\n (b) it is likely that, as at the time the application is made, the award covered employees for the instrument under subitem (10), viewed as a group, would be better off overall if the instrument applied to the employees than if the relevant modern award or awards referred to in that subitem applied to the employees.\n\n(10) For the purposes of subitems (8) and (9), the award covered employees for a collective agreement‑based transitional instrument are the employees who:\n\n (b) at the time an application is made under subitem (4) in relation to the instrument, are covered by one or more modern awards (the relevant modern awards) that:\n\n (c) are employed at that time by an employer who is covered by the instrument and by one or more of the relevant modern awards.\n\n (c) if the decision is to extend the default period for a collective agreement‑based transitional instrument—the instrument.\n\n(10C) The FWC must not publish an individual agreement‑based transitional instrument in relation to which an application under subitem (4) is made.\n\n (b) the FWC has not made a decision on the application at a time (the critical time) that is immediately before what would (apart from this subitem) be the end of the grace period for the instrument;\n\n (e) if the FWC’s decision on the application is to refuse to extend the default period for the instrument under subitem (6)—the FWC must extend the default period until the end of:\n\n (ii) if the refusal decision specifies a later day that is not more than 14 days after the day the refusal decision is made—that later day.\n\nIf a transitional instrument terminates, it ceases to cover (and can never again cover) any employees, employers or other persons.\n\n(1) Subject to this item, the same AFPCS interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments.\n\nNote 1: Schedule 4 provides for the continued application of the Australian Fair Pay and Conditions Standard (other than minimum wages provisions) during the bridging period.\n\nNote 2: Schedule 9 provides for the continued application of the minimum wages provisions of the Australian Fair Pay and Conditions Standard on and after the WR Act repeal day.\n\n(2) AFPCS interaction rules of the kind referred to in paragraph (4)(b) do not continue to apply after the end of the bridging period.\n\nNote: This may result in an employee becoming entitled to a rate of pay under a transitional APCS that is higher than was required to be paid to the employee under a transitional instrument during the bridging period. If that occurs, the employer may apply to the FWC for a determination to phase‑in the effect of the increase (see item 14 of Schedule 9).\n\n(3) If, immediately before the end of the bridging period, an AFPCS interaction rule of the kind referred to in paragraph (4)(b) produced the result that an employee to whom a transitional instrument applied was not covered by the obligation in subsection 182(1) or (2) of the WR Act in relation to a transitional APCS, the employee becomes covered by that obligation in relation to that transitional APCS from the end of the bridging period.\n\n(4) AFPCS interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that:\n\n (a) the Australian Fair Pay and Conditions Standard prevails over an instrument (or an instrument is of no effect because of the Standard) either completely or to a particular extent; or\n (b) an instrument prevails over the Australian Fair Pay and Conditions Standard (or the Standard does not apply because of the instrument) either completely or to a particular extent.\n\n(1) To the extent that a term of a transitional instrument is detrimental to an employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards, the term of the transitional instrument is of no effect.\n\nNote 1: A term of a transitional instrument that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the National Employment Standards will continue to have effect.\n\nNote 2: Division 3 (which contains other general provisions about how the FW Act applies in relation to transitional instruments) is also relevant to how the National Employment Standards apply in relation to employees to whom transitional instruments apply.\n\nNote 3: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).\n\n(1A) If there is a dispute about the application of this item which must be resolved by the FWC in accordance with item 26, the FWC may compare the entitlements which are in dispute:\n\n(2) Subitem (1) does not affect a term of a transitional instrument that is permitted by a provision of the National Employment Standards as it has effect under item 24.\n\n(3) The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a transitional instrument are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards.\n\n(1) The following provisions of the National Employment Standards have effect, on and after the FW (safety net provisions) commencement day, as if a reference to a modern award or an enterprise agreement included a reference to a transitional instrument:\n\n (g) subsections 121(2) and (3) (which allow terms specifying situations in which the redundancy pay entitlement under section 119 does not apply);\n\n (a) a transitional instrument includes terms referred to in subsection (1) of section 93 or 101 of the National Employment Standards; but\n\nthe employee is taken to qualify for the shiftworker annual leave entitlement for the purposes of section 87 of the FW Act.\n\n(1) On application by a person covered by a transitional instrument, the FWC may make a determination varying the transitional instrument:\n\n (a) to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards; or\n\n(2) A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.\n\nThis Division (including determinations under item 26) does not affect the operation of a transitional instrument at any time before the FW (safety net provisions) commencement day.\n\nDivision 2—Interaction between transitional instruments and FW Act modern awards, enterprise agreements and workplace determinations\n\n(1) While an agreement‑based transitional instrument of any of the following kinds applies to an employee, or to an employer or other person in relation to the employee:\n\nNote 1: However, a modern award can continue to cover the employee while the agreement‑based transitional instrument continues to apply.\n\nNote 2: This subitem has effect subject to item 13 of Schedule 9 (which requires that the base rate of pay under an agreement‑based transitional instrument must not be less than the relevant modern award rate).\n\nboth apply to an employee, or to an employer or other person in relation to the employee, the agreement‑based transitional instrument prevails over the modern award, to the extent of any inconsistency.\n\nNote: This subitem has effect subject to item 13 of Schedule 9 (which requires that the base rate of pay under an agreement‑based transitional instrument must not be less than the relevant modern award rate).\n\n (b) outworker terms (within the meaning of the FW Act) in a modern award would, but for the transitional instrument, apply to the employee.\n\n(2) Despite item 28 and despite any terms of the agreement‑based transitional instrument that are detrimental to the employee in any respect when compared to the terms of the modern award, the outworker terms apply at that time to the following persons:\n\n(3) To avoid doubt, to the extent to which terms of a modern award apply to an employee, an employer or an employee organisation because of subitem (2), the modern award applies to the employee, employer or organisation.\n\n(1) If a modern award (other than the miscellaneous modern award) that covers an employee, or an employer or other person in relation to the employee, comes into operation, then an award‑based transitional instrument ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.\n\nNote: A modern award cannot be expressed to cover an employee who is covered by a transitional instrument that is an enterprise instrument or a State reference public sector transitional award (see subsections 143(8) and (10) of the FW Act).\n\n(2) While an award‑based transitional instrument that covers an employee, or an employer or other person in relation to the employee, is in operation, the miscellaneous modern award does not cover the employee, or the employer or other person in relation to the employee.\n\n(3) If a modern award (other than the miscellaneous modern award) that contains outworker terms that cover an outworker entity comes into operation, then outworker terms in an award‑based transitional instrument cease to cover (and can never again cover) the outworker entity.\n\n(4) While outworker terms in an award‑based transitional instrument that is in operation cover an outworker entity, any outworker terms in the miscellaneous modern award do not cover the outworker entity.\n\n(5) Outworker terms in an award‑based transitional instrument are terms that would be outworker terms as defined in the FW Act if they were in a modern award.\n\n(1) While an individual agreement‑based transitional instrument applies to an employee, or to an employer in relation to the employee, an enterprise agreement or workplace determination (under the FW Act) does not apply to the employee, or the employer in relation to the employee.\n\n(2) If an enterprise agreement or workplace determination (under the FW Act) starts to apply to an employee, or an employer or other person in relation to the employee, then a collective agreement‑based transitional instrument ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.\n\nNote 1: The fact that a collective agreement‑based transitional instrument applies to employees does not prevent those employees and their employer from replacing that transitional instrument at any time with an enterprise agreement, regardless of whether the transitional instrument has passed its nominal expiry date.\n\nNote 2: Industrial action must not be taken before the nominal expiry date of an agreement‑based transitional instrument, even if it is being replaced by an enterprise agreement (see item 4 of Schedule 13).\n\nIf an enterprise agreement or workplace determination (under the FW Act) applies to an employee, or an employer or other person in relation to the employee, then:\n\n (a) an award‑based transitional instrument ceases to apply to the employee, and the employer or other person in relation to the employee; but\n (b) the award‑based transitional instrument can (subject to the other provisions of this Part) continue to cover the employee, and the employer or other person in relation to the employee.\n\nNote: Subject to the other provisions of this Part, the award‑based transitional instrument can again start to apply to the employee, and the employer or other person in relation to the employee, if the enterprise agreement or workplace determination (under the FW Act) ceases to apply to the employee.\n\n (b) an award‑based transitional instrument covers the employer (whether the transitional instrument covers the employer in the employer’s capacity as an employer or an outworker entity); and\n\n(2) Despite item 31, the designated outworker terms of the award‑based transitional instrument apply at that time to the following:\n\n (a) award‑based transitional instruments are taken to be instruments to which the definition of designated outworker term in section 12 of the FW Act applies; and\n (b) designated outworker terms of an award‑based transitional instrument can apply to an employer under subitem (2) even if none of the employees of the employer is an outworker; and\n (c) to the extent to which designated outworker terms of an award‑based transitional instrument apply to an employer, an employee or an employee organisation because of subitem (2), the transitional instrument applies to the employer, employee or organisation.\n\n(1) An employee is not an award/agreement free employee for the purposes of the FW Act if a transitional instrument applies to the employee.\n\n(2) The regulations may make provision in relation to any of the following in relation to employees to whom transitional instruments apply:\n\n (a) what is the base rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);\n (b) what is the full rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);\n\n(1) For the purposes of the FW Act, the ordinary hours of work of an employee to whom a transitional instrument applies are to be determined in accordance with this item.\n\n(2) If a transitional instrument that applies to the employee specifies, or provides for the determination of, the employee’s ordinary hours of work, the employee’s ordinary hours of work are as specified in, or determined in accordance with, that instrument.\n\n(3) If subitem (2) does not apply, the employee’s ordinary hours of work are the hours agreed by the employee and his or her employer as the employee’s ordinary hours of work.\n\n(4) If subitem (2) does not apply but there is no agreement under subitem (3), the ordinary hours of work of the employee in a week are:\n\n (c) there is an agreement under subitem (3) between the employee and his or her employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work;\n\n(6) For an employee who is not a full‑time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of subitems (4) and (5).\n\nDivision 2 of Part 2‑9 of the FW Act (which deals with payment of wages) applies, on and after the WR Act repeal day, in relation to a transitional instrument as if:\n\nDivision 3 of Part 2‑9 of the FW Act (which deals with the guarantee of annual earnings) applies, on and after the FW (safety net provisions) commencement day, as if:\n\n (b) a reference to a modern award included a reference to an award‑based transitional instrument and a transitional APCS.\n\n (a) the reference in subparagraph 382(b)(i) and paragraph 389(1)(b) of that Act to a modern award included a reference to an award‑based transitional instrument; and\n (b) the reference in subparagraph 382(b)(ii) and paragraph 389(1)(b) of that Act to an enterprise agreement included a reference to an agreement‑based transitional instrument.\n\n(1) This item applies if a termination of an agreement‑based transitional instrument (the terminated instrument) takes effect during the bridging period in either of the following circumstances:\n\n (a) the instrument is a preserved collective State agreement or a pre‑reform certified agreement that is terminated by FWA as provided for by item 16 because of an application made by an employer covered by the agreement;\n (b) the instrument is an individual agreement‑based transitional instrument that terminates under item 19 because FWA approves a termination of the instrument by an employer covered by the instrument.\n\n(2) Any redundancy provision that was in the terminated instrument continues to apply to any person to whom the terminated instrument applied immediately before the termination took effect, as if the terminated instrument had continued operating.\n\n(3) A redundancy provision that continues to apply to a person under subitem (2) is taken, for the purpose of this Act, to be a transitional instrument of the same kind as the terminated instrument. However, this does not apply for the purpose of:\n\n(4) Subject to subitem (5), a redundancy provision that continues to apply to a person under subitem (2) prevails over any other redundancy provision included in any other instrument that would otherwise apply (even if the provisions in that other instrument might be more beneficial to the employee).\n\n (b) a redundancy provision that continues to apply to an employee under subitem (2) is detrimental to the employee, in any respect, when compared to the scheme in the modern award;\n\nthen the scheme in the modern award prevails over the redundancy provision, to the extent that the redundancy provision is detrimental to the employee.\n\n(6) A redundancy provision continues under subitem (2) to apply to a person, in relation to an employee to whom the provision applies, until the earliest of the following:\n\n (b) the time when the employee ceases to be employed by the employer (otherwise than in circumstances covered by the provision);\n\n (c) a machinery provision that is in respect of a provision relating to redundancy pay in relation to a termination of employment;\n\nwhere the termination is at the initiative of the employer and on the grounds of operational requirements, or because the employer is insolvent.\n\n (b) when the termination takes effect, one or more redundancy provisions in the instrument will continue to apply to persons (affected persons) in accordance with item 38.\n\nNotification requirements if the transitional instrument is a preserved collective State agreement or a pre‑reform certified agreement\n\n (iv) state that the provision or provisions will continue to apply until that date, or an earlier date, in accordance with subitem 38(6); and\n\n(3) An employer that has, under subitem (2), received a copy of a termination decision must take reasonable steps to ensure that all employees to whom the instrument applied immediately before the termination takes effect are given a copy of the decision within 21 days of the employer receiving a copy of the decision.\n\n(4) If the transitional instrument is an individual agreement‑based transitional instrument, the termination decision must:\n\n (d) state that the provision or provisions will continue to apply until that date, or an earlier date, in accordance with subitem 38(6).\n\n(1) This item applies if, immediately before the WR Act repeal day, redundancy provisions that were in a WR Act instrument (the terminated instrument) that was terminated before that day (the actual termination) were continuing to bind persons under any of the following provisions:\n\n (b) a termination of that transitional instrument took effect on the WR Act repeal day as referred to in subitem 38(1); and\n (c) the reference in paragraph 38(6)(a) to 24 months were instead a reference to the unexpired part of the period of 24 months that started on the actual termination.\n\nThis Part applies to a Victorian employment agreement that was in force in relation to an employer and an employee (the parties) under Division 12 of Part 21 of the WR Act immediately before the WR Act repeal. A Victorian employment agreement is an employment agreement within the meaning of that Division.\n\nOn and after the WR Act repeal day the Victorian employment agreement is enforceable by one of the parties against the other party as if it were a contract. The provisions of Division 12 of Part 21 of the WR Act do not continue to apply in relation to the agreement.\n\n(1) On the Division 2B referral commencement, FWA is taken to have made an order (the transitional pay equity order) under this item.\n\n (b) the employer is prescribed by the regulations for the purposes of this paragraph, or is included in a class of employers prescribed by the regulations for the purposes of this paragraph; and\n (c) immediately before the Division 2B referral commencement, a transitional award (the relevant transitional award) applied to the employer.\n\nNote: Transitional award has the same meaning as in Schedule 6 to the WR Act. Schedule 6 is continued in operation by Schedule 20 to this Act.\n\n (a) an order, decision or determination of a State industrial body (the source pay equity order) would have applied to the employer if the relevant transitional award had not applied to the employer; and\n\n (b) provided for increases in rates of pay payable to a particular class of employees (whether the increases were expressed to take effect before, on or after the Division 2B referral commencement); and\n\n(5) If the transitional pay equity order applies to an employer, the employer is required to pay to each affected employee of the employer a base rate of pay, in respect of a period, that is not less than the base rate of pay that the employee would have been entitled to be paid if the source pay equity order had applied to the employer in respect of the period.\n\n(6) An employee of an employer to which this item applies is an affected employee of the employer if the employee performs work of a kind, at a classification level (however described), in relation to which the source pay equity order determines a base rate of pay.\n\n(7) The transitional pay equity order takes effect in relation to the employer immediately after the modern award begins to apply to the employer.\n\n (a) an employee is entitled to be paid by an employer a base rate of pay under the transitional pay equity order in respect of a particular period; and\n (b) the term of the modern award requires the employer to pay a base rate of pay, in respect of that period, that is less than the base rate of pay referred to in paragraph (a).\n\n(9) However, to avoid doubt, a term of a modern award continues to have effect so far as it requires an employer to pay a base rate of pay, in respect of a period, that is equal to or more than the base rate of pay referred to in paragraph (8)(a).\n\n(1) A Division 2B State instrument is a Division 2B State award (see item 3) or a Division 2B State employment agreement (see item 5).\n\nNote: This definition does not apply to a reference in a provision of this Act to a State award if the provision expressly refers to the meaning that was given by the WR Act.\n\n (i) the agreement is between an employer and one or more employees of the employer, or between an employer and an association of employees registered under a State industrial law;\n (iii) the determination was made in a situation in which parties who were negotiating for the making of an agreement of a kind described in paragraph (a) had not been able to reach an agreement;\n\nNote: This definition does not apply to a reference in a provision of this Act to a State employment agreement if the provision expressly refers to the meaning that was given by the WR Act.\n\n (a) it is an agreement of a kind that, under the relevant State industrial law, could only be entered into by a single employee and a single employer; or\n\n (a) a State award (the source award) was in operation under a State industrial law of a Division 2B referring State (the source State); and\n (b) the source award covered (however described in the source award or a relevant law of the source State) employers and employees who become Division 2B State reference employers and Division 2B State reference employees on the Division 2B referral commencement (whether or not the source award also covered other persons);\n\nNote 2: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State awards:\n\n(2) Subject to this Schedule, the Division 2B State award is taken to include the same terms as were in the source award immediately before the Division 2B referral commencement.\n\nNote: For the meanings of Division 2B referral commencement, Division 2B referring State, Division 2B State reference employee and Division 2B State reference employer, see items 2 and 2A of Schedule 3.\n\n(3) If the terms of the source award were affected by an order, decision or determination of a State industrial body or a court of the source State that was in operation immediately before the Division 2B referral commencement, the terms of the Division 2B State award are taken to be similarly affected by the terms of that order, decision or determination.\n\n(1) A Division 2B State award covers the same employees, employers, outworker entities and any other persons that the source award covered (however described in the award or a relevant law of the source State) immediately before the Division 2B referral commencement.\n\nNote: The expression covers is used to indicate the range of employees, employers etc. to whom the Division 2B State award potentially applies (see subitem (5)). The employees, employers etc. who are within this range will depend on the terms of the award, and on any relevant provisions of the law of the source State.\n\n(2) The Division 2B State award also covers any employees who become employed by an employer on or after the Division 2B referral commencement, and who would have been covered by the source award if they had become so employed immediately before that commencement.\n\n (a) any employees, employers or outworker entities that are not Division 2B State reference employees, Division 2B State reference employers or Division 2B State reference outworker entities; or\n\nA Division 2B State reference outworker entity is an entity that is an outworker entity only because of section 30Q of the FW Act.\n\n (a) after the Division 2B referral commencement, a person (the employer) starts to employ employees to do work of a kind that was regulated by the source award immediately before that commencement; and\n\n(5) A Division 2B State award applies to the same employees, employers, outworker entities and any other persons that the Division 2B State award covers as would have been required by the law of the source State to comply with terms of the source award, or entitled under the law of the source State to enforce terms of the source award, if:\n\nNote 1: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of the Division 2B State award.\n\nNote 2: The Division 2B State award does not apply to any employers, employees or other persons that it does not cover, whether because of subitem (3) or (4) or otherwise.\n\n(6) However, a Division 2B State award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act).\n\n (c) Division 2 of Part 5 of this Schedule (which deals with interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations); and\n\n(8) References in this item to the law of a State are references to the law of the State as in force immediately before the Division 2B referral commencement.\n\n (a) a State employment agreement (the source agreement) was in operation under a State industrial law of a Division 2B referring State (the source State); and\n (b) the source agreement covered (however described in the source agreement or a relevant law of the source State) employers and employees who become Division 2B State referral employers and Division 2B State referral employees on the Division 2B referral commencement (whether or not the source agreement also covered other persons);\n\na Division 2B State employment agreement is taken to come into operation immediately after the Division 2B referral commencement.\n\nNote 2: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State employment agreements:\n\nNote 3: For the meanings of Division 2B referral commencement, Division 2B referring State, Division 2B State reference employee and Division 2B State reference employer, see items 2 and 2A of Schedule 3.\n\n(2) Subject to this Schedule, the Division 2B State employment agreement is taken to include the same terms as were in the source agreement immediately before the Division 2B referral commencement.\n\n (a) a State employment agreement (the source agreement) comes into operation under a State industrial law of a Division 2B referring State (the source State); and\n (b) the source agreement covers (however described in the source agreement or a relevant law of the source State) employers and employees who are Division 2B State referral employers and Division 2B State referral employees when the source agreement comes into operation (whether or not the source agreement also covers other persons);\n\na Division 2B State employment agreement is taken to come into operation immediately after the source agreement comes into operation.\n\nNote 2: There is limited scope for State employment agreements that cover Division 2B State referral employers and employees to come into operation on or after the Division 2B referral commencement: see Part 6 of this Schedule.\n\nNote 3: In addition to provisions of this Schedule, the following other provisions affect the existence of Division 2B State employment agreements:\n\n(4) Subject to this Schedule, the Division 2B State employment agreement is taken to include the same terms as were in the source agreement when it came into operation.\n\n(5) If the source agreement in relation to a Division 2B State employment agreement is a collective State employment agreement, the Division 2B State employment agreement is a collective Division 2B State employment agreement.\n\n(6) If the source agreement in relation to a Division 2B State employment agreement is an individual State employment agreement, the Division 2B State employment agreement is an individual Division 2B State employment agreement.\n\n(1) A Division 2B State employment agreement covers the same employees, employers and any other persons that the source agreement covered (however described in the agreement or a relevant law of the source State) immediately before the Division 2B State employment agreement came into operation.\n\nNote: The expression covers is used to indicate the range of employees, employers etc. to whom the Division 2B State employment agreement potentially applies (see subitem (4)). The employees, employers etc. who are within this range will depend on the terms of the agreement, and on any relevant provisions of the law of the source State.\n\n(2) The Division 2B State employment agreement also covers any employees who become employed by an employer on or after the time when the agreement came into operation, and who would have been covered by the source agreement if they had become so employed immediately before that time.\n\n (a) any employees or employers that are not Division 2B State reference employees or Division 2B State reference employers; or\n\n(4) A Division 2B State employment agreement applies to the same employees, employers and any other persons that the Division 2B State employment agreement covers as would have been required by the law of the source State to comply with terms of the source agreement, or entitled under the law of the source State to enforce terms of the source agreement, if:\n\nNote 1: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of the Division 2B State employment agreement.\n\nNote 2: The Division 2B State employment agreement does not apply to any employers, employees or other persons that it does not cover, whether because of subitem (3) or otherwise.\n\n (c) Division 2 of Part 5 of this Schedule (which deals with interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations); and\n\n(6) References in this item to the law of a State are references to the law of the State as in force immediately before the Division 2B referral commencement.\n\n(1) If the source award for a Division 2B State award includes a term that provides for disputes relating to matters arising under the award to be settled by:\n\n(2) Each Division 2B State award is taken to include the model term that is prescribed by the regulations for dealing with disputes relating to matters arising under Division 2B State awards.\n\n(3) The model term does not apply to disputes about matters arising under the source award before the Division 2B referral commencement.\n\n(1) This item applies if the source agreement for a Division 2B State employment agreement includes a term that provides for disputes relating to matters arising under the agreement to be settled by:\n\nNote: Item 13 would otherwise result in references in the term to a State industrial body having effect as if they were references to the FWC.\n\n(2A) However, if the term provides for disputes relating to matters arising under the source agreement to be settled by a State industrial body, then, despite anything in the source agreement or a law of the source State:\n\n (a) by an employer to which the Division 2B State employment agreement applies, or by an organisation that is entitled to represent the industrial interests of such an employer, with the consent of:\n (b) by an employee to whom the Division 2B State employment agreement applies, or by an organisation that is entitled to represent the industrial interests of such an employee, with the consent of:\n\n(1) Subdivision B of Division 2 of Part 6‑2 of the FW Act applies (including for the purpose of section 595 of the FW Act) as follows:\n\n (a) the Subdivision applies in relation to the model term that is taken by item 7 to be included in a Division 2B State award in the same way as the Subdivision applies in relation to a term in a modern award that provides a procedure for dealing with disputes;\n (b) the Subdivision applies in relation to a term to which item 8 applies that is included in a Division 2B State employment agreement in the same way as the Subdivision applies in relation to a term in an enterprise agreement that provides a procedure for dealing with disputes.\n\n(2) The reference in subsections 739(5) and 740(4) of the FW Act to a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties, is taken to include a reference to a decision that is inconsistent with a Division 2B State instrument that applies to the parties.\n\n(1) The instrument content rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State instrument, as if:\n\n (b) any references in the rules to State awards or State employment agreements (however described in the rules) were instead (respectively) references to Division 2B State awards or Division 2B State employment agreements; and\n\n(2) Instrument content rules, in relation to a State, are provisions of a law of the State of any of the following kinds:\n\n(1) The instrument interaction rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State instrument, as if:\n\n (b) any references in the rules to State awards or State employment agreements (however described in the rules) were instead (respectively) references to Division 2B State awards or Division 2B State employment agreements; and\n\n(2) Instrument interaction rules, in relation to a State, are provisions of a law of the State, the effect of which is that:\n\n(1) The outworker interaction rules (as in force immediately before the Division 2B referral commencement) of the source State apply, in relation to a Division 2B State award, as if:\n\n (b) any references in the rules to State awards (however described in the rules) were instead references to Division 2B State awards; and\n\n(2) Outworker interaction rules, in relation to a State, are provisions of a law of the State, the effect of which is that:\n\n(1) Subject to subitem (2), if a term of a Division 2B State instrument is expressed to confer a power or function on a State industrial body, that term has effect as if references in it to the body were instead references to the FWC.\n\n(2) If a term of a Division 2B State instrument is expressed to confer a power or function on the registrar, or a deputy registrar, of a State industrial body, that term has effect on and after the Division 2B referral commencement as if references in it to the registrar or a deputy registrar were instead references to the General Manager of the FWC.\n\nNote 1: A Division 2B State award will be taken not to include a term from the source award that provides for the settlement of disputes relating to matters arising under the award: see item 7.\n\nNote 2: This item does not apply to a term of a Division 2B State employment agreement that provides for the settlement of disputes relating to matters arising under the agreement: see item 8.\n\n(1) Subitem (2) applies for the purpose of determining the entitlements of a Division 2B State reference employee under a Division 2B State instrument (other than an entitlement to leave of a kind to which item 15 applies).\n\n(2) Service of the employee with an employer before the Division 2B referral commencement that counted for the purpose of the application to the employee of the source award or source agreement also counts as service of the employee with the employer for the purpose of the application to the employee of the Division 2B State instrument.\n\n(3) If, before the Division 2B referral commencement, the employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service, subitem (2) does not result in that period of service with the employer being counted again when calculating the employee’s entitlements of that kind under the Division 2B State instrument.\n\n(4) To avoid doubt, subitem (3) does not require an employee to serve any initial qualifying period of service for long service leave again.\n\nNote: For how the kinds of matters covered by this item and items 15 and 16 are dealt with in relation to entitlements under the National Employment Standards, see Division 2 of Part 3 of Schedule 4.\n\n(2) If a Division 2B referral employee to whom a Division 2B State instrument applies had, immediately before the Division 2B referral commencement, an accrued entitlement to an amount of leave to which this item applies (whether the leave accrued under the source award or source agreement, or under a State industrial law), the accrued leave is taken to have accrued under the Division 2B State instrument.\n\n(1) If a Division 2B State reference employee was, immediately before the Division 2B referral commencement, taking a period of leave under the source award or source agreement, the employee is entitled to continue on that leave under the Division 2B State instrument for the remainder of the period.\n\n(2) If a Division 2B State reference employee has, before the Division 2B referral commencement, taken a step that the employee is required to take so that the employee can, on or after the Division 2B referral commencement, take a period of leave under the source award or source agreement, the employee is taken to have taken the step under the Division 2B State instrument.\n\n(3) The regulations may deal with other matters relating to how a Division 2B State instrument applies to leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken by a Division 2B State reference employee under the source award or source agreement.\n\n (a) any right or liability that a person acquired, accrued or incurred before the instrument terminated or ceased to apply; or\n\n(2) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the Division 2B State instrument had not terminated or ceased to apply.\n\n (b) item 8 (which deals with terms about disputes relating to matters arising under Division 2B State employment agreements); or\n (c) item 40 (which deals with resolving difficulties with the interaction between Division 2B State instruments and the National Employment Standards); or\n\n(1) On application by a person covered by a Division 2B State instrument, the FWC may make a determination varying the instrument:\n\n (b) if the instrument is a Division 2B State employment agreement—to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or\n (c) to remove terms that are inconsistent with Part 3‑1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part.\n\nNote: For variation of a Division 2B State instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 40.\n\n(2) A variation of a Division 2B State instrument operates from the day specified in the determination, which may be a day before the determination is made.\n\n(1) This item applies if a Division 2B State instrument is referred to the FWC under section 46PW of the Australian Human Rights Commission Act 1986 (which deals with discriminatory industrial instruments).\n\n(2) If the instrument is a Division 2B State award, section 161 of the FW Act applies in relation to the referral of the instrument as if the instrument were a modern award.\n\n(3) If the instrument is a Division 2B State employment agreement, section 218 of the FW Act applies in relation to the referral of the instrument as if the instrument were an enterprise agreement.\n\n(2) A term of a Division 2B State award that provides for the award to terminate before the end of that 12 month period is of no effect.\n\nSubdivision C of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective Division 2B State employment agreement as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement.\n\n(1) Subdivision D of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective Division 2B State employment agreement as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement.\n\n(2) To avoid doubt, subsection 615A(3) of the FW Act does not apply in relation to a collective Division 2B State employment agreement.\n\n(1) The employee and employer covered by an individual Division 2B State employment agreement (the Division 2B agreement) may make a written agreement (a termination agreement) to terminate the Division 2B agreement in accordance with the following requirements:\n\n(3) The employer or employee may apply to the FWC for approval of the termination agreement. The application must be made:\n\n (b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.\n\n(4) If an application for the FWC to approve the termination agreement is made under subitem (3), the FWC must approve the termination of the Division 2B agreement if:\n\n (b) the FWC is satisfied that there are no other reasonable grounds for believing that the employee has not agreed to the termination.\n\n(5) If the termination is approved under subitem (4), the termination operates from the day specified in the decision to approve the termination.\n\n(1) This item provides for the making of an instrument (a conditional termination) that will have the effect of terminating an individual Division 2B State employment agreement (the Division 2B agreement) if:\n\n(2) If the Division 2B agreement has not passed its nominal expiry date, the conditional termination must be a written agreement signed by the employer and the employee. The signatures must be witnessed.\n\n(3) If the Division 2B agreement has passed its nominal expiry date, the conditional termination must be in writing and signed either by the employee or the employer. The signature must be witnessed.\n\n(4) If the conditional termination is signed by the employee, and the employee is under 18, it must also be signed by a parent or guardian of the employee.\n\n(5) Any other requirements of the regulations relating to the form, content or making of the conditional termination must also be complied with.\n\n (a) the conditional termination is an agreement signed by the employee and the employer in the circumstances covered by subitem (2); or\n\n(7) The conditional termination must accompany any application to the FWC for approval of the proposed enterprise agreement under section 185 of the FW Act.\n\nNote 2: Failure to comply with this obligation does not affect the operation of subitem (8), or the validity of an approval by the FWC of the proposed enterprise agreement.\n\n(8) If the requirements of subitems (2) to (5) have been complied with in relation to the conditional termination, the Division 2B agreement terminates when the proposed enterprise agreement comes into operation.\n\n (a) to whom an individual Division 2B State employment agreement (the Division 2B agreement) that has passed its nominal expiry date applies; and\n\n (a) make a written declaration that identifies the Division 2B agreement and that states that the employer or employee wants to terminate the agreement; and\n\n(3) The employer or employee cannot make an application as mentioned in paragraph (2)(b) unless, at least 14 days before the day on which the application is made, the employer or employee gives the other of them a notice complying with the following requirements:\n\n (b) the notice must state that the employer or employee intends to apply to the FWC for approval of the termination of the agreement;\n (c) the notice must state that, if the FWC approves the termination, the agreement will terminate on the 90th day after the day on which the FWC makes the approval decision;\n\n(5) If the FWC approves the termination, the Division 2B agreement terminates on the 90th day after the day on which the FWC makes the approval decision.\n\n(1) A Division 2B State employment agreement terminates at the end of the grace period for the agreement if the agreement has not already terminated before that time.\n\n (a) subject to paragraph (b), the period of 12 months (the default period) beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences; or\n\n (b) if the default period is extended for the agreement on one or more occasions under subitem (6) or paragraph (11)(e)—the default period as so extended.\n\n(3) An employer covered by a Division 2B State employment agreement must, before the end of 6 months beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences, give each employee who is covered by the agreement and employed by the employer at the end of that period written notice advising the employee:\n\n (b) that the agreement will terminate unless an application is made to the FWC under subitem (4), before the end of the period of 12 months beginning on the day that Part commences, for the FWC to extend the default period for the agreement; and\n\n(4) Any of the following may apply to the FWC, before the end of the grace period for a Division 2B State employment agreement, for the FWC to extend the default period for the agreement for a period of no more than 4 years:\n\n (c) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the agreement.\n\n(6) If an application is made under subitem (4), the FWC must extend the default period for the Division 2B State employment agreement for a period of no more than 4 years if the FWC is satisfied that:\n\n (i) if the application relates to an individual Division 2B State employment agreement—the employee covered by the individual Division 2B State employment agreement; or\n\n (ii) if the application relates to a collective Division 2B State employment agreement—the same, or substantially the same, group of employees as the Division 2B State employment agreement; and\n\n (b) the employee covered by the agreement would be an award covered employee for the agreement under subitem (10) if the agreement were a collective Division 2B State employment agreement; and\n\n (c) it is likely that, as at the time the application is made, the employee would be better off overall if the agreement applied to the employee than if the relevant modern award referred to in that subitem applied to the employee.\n\n (b) it is likely that, as at the time the application is made, the award covered employees for the agreement under subitem (10), viewed as a group, would be better off overall if the agreement applied to the employees than if the relevant modern award or awards referred to in that subitem applied to the employees.\n\n(10) For the purposes of subitems (8) and (9), the award covered employees for a collective Division 2B State employment agreement are the employees who:\n\n (b) at the time an application is made under subitem (4) in relation to the agreement, are covered by one or more modern awards (the relevant modern awards) that:\n\n (c) are employed at that time by an employer who is covered by the agreement and by one or more of the relevant modern awards.\n\n (c) if the decision is to extend the default period for a collective Division 2B State employment agreement—the agreement.\n\n(10C) The FWC must not publish an individual Division 2B State employment agreement in relation to which an application under subitem (4) is made.\n\n (b) the FWC has not made a decision on the application at a time (the critical time) that is immediately before what would (apart from this subitem) be the end of the grace period for the agreement;\n\n (e) if the FWC’s decision on the application is to refuse to extend the default period for the agreement under subitem (6)—the FWC must extend the default period until the end of:\n\n (ii) if the refusal decision specifies a later day that is not more than 14 days after the day the refusal decision is made—that later day.\n\n (a) the day on which the source agreement would nominally have expired under the relevant State industrial law of the source State; or\n (b) if that day falls after the end of a period of 3 years beginning on the Division 2B referral commencement—the last day of that 3 year period.\n\nIf a Division 2B State instrument terminates, it ceases to cover (and can never again cover) any employees, employers or other persons.\n\n (a) must consider whether any modern awards should be varied to include terms in relation to which the following conditions are satisfied:\n (i) the purpose of including the terms is to continue (in whole or in part) the effect of terms that are contained in a Division 2B State award, other than a Division 2B enterprise award;\n (iii) the terms deal with matters of a kind that are permitted by section 136 of the FW Act to be included in modern awards; and\n\n (i) the purpose of making the order is to continue (in whole or in part) the effect of terms relating to long service leave that are contained in a Division 2B State award, other than a Division 2B enterprise award;\n\n(4) To the extent that a term of a Division 2B State award, or of an enterprise agreement, is detrimental to an employee, in any respect, when compared to an order under subitem (1), the term of the award or agreement is of no effect.\n\nNote: A term of a Division 2B State award, or of an enterprise agreement, that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the order will continue to have effect.\n\n(5) The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a Division 2B State award or an enterprise agreement are, or are not, detrimental in any respect when compared to an order under subitem (1).\n\n(1) On the Division 2B referral commencement, FWA is taken to have made an order (the transitional pay equity order) under this item.\n\n (a) a Division 2B State award that applies to the employer terminates at a time (the termination time) after the Division 2B referral commencement; and\n (b) the base rate of pay payable immediately before the termination time to some or all of the employees to whom the Division 2B State award applied was determined in whole or part by, or in accordance with, an order, decision or determination (the source pay equity order) of a State industrial body that:\n (ii) provided for increases in rates of pay payable to a particular class of employees (whether the increases were expressed to take effect before, on or after the Division 2B referral commencement); and\n\nNote: After the Division 2B referral commencement, a source pay equity order may have effect either because of subitem 3(3) of this Schedule, or because the terms of the source pay equity order had been incorporated in the source award from which the Division 2B State award was derived.\n\n(3) If the transitional pay equity order applies to an employer, the employer is required to pay to each affected employee of the employer a base rate of pay, in respect of a period, that is not less than the base rate of pay that the employee would have been entitled to be paid under the Division 2B State award in respect of that period, assuming that:\n\n (b) the base rate of pay had continued to be determined in whole or part by, or in accordance with, the source pay equity order in respect of that period.\n\n (iii) the employee’s base rate of pay under the Division 2B State award was determined in whole or part by, or in accordance with, the source pay equity order at the termination time; or\n (ii) a Division 2B State award would have applied to the employee if he or she had been employed by the employer immediately before the termination time;\n (iii) the employee’s base rate of pay under the Division 2B State award would have been determined in whole or part by, or in accordance with, the source pay equity order at the termination time.\n\n(5) The transitional pay equity order takes effect in relation to the employer immediately after the modern award begins to apply to the employer.\n\n (a) an employee is entitled to be paid by an employer a base rate of pay under the transitional pay equity order in respect of a particular period; and\n (b) the term of the modern award requires the employer to pay a base rate of pay, in respect of that period, that is less than the base rate of pay referred to in paragraph (a).\n\n(7) However, to avoid doubt, a term of a modern award continues to have effect so far as it requires an employer to pay a base rate of pay, in respect of a period, that is equal to or more than the base rate of pay referred to in paragraph (6)(a).\n\n(1) The termination of a Division 2B State award by item 21 is not intended to result in a reduction in the take‑home pay of employees or outworkers.\n\nNote: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.\n\n (a) when a Division 2B State award terminates because of item 21, the employee becomes a person to whom a modern award applies; and\n (b) 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 termination of the Division 2B State award; and\n (c) the amount of the employee’s take‑home pay for working particular hours or for a particular quantity of work after the termination of the Division 2B State award is less than what would have been the employee’s take‑home pay for those hours or that quantity of work immediately before the termination; and\n\n (a) when a Division 2B State award terminates because of item 21, the outworker becomes a person to whom outworker terms in a modern award relate; and\n (b) the outworker is performing the same work as (or work that is similar to) the work he or she was performing immediately before the termination of the Division 2B State award; and\n (c) the amount of the outworker’s take‑home pay for working particular hours or for a particular quantity of work after the termination of the Division 2B State award is less than what would have been the outworker’s take‑home pay for those hours or that quantity of work immediately before the termination; and\n\n(1) If the FWC is satisfied that an employee, or a class of employees, to whom a modern award applies has suffered a reduction in take‑home pay to which item 31 applies, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation.\n\n(2) If the FWC is satisfied that an outworker, or a class of outworkers, to whom outworker terms in a modern award relate has suffered a reduction in take‑home pay to which item 31 applies, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the outworker or outworkers that the FWC considers appropriate to remedy the situation.\n\n(4) If the FWC is satisfied that an application for a take‑home pay order has already been made in relation to an employee or a class of employees, or an outworker or a class of outworkers, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees, or the same outworker or outworkers.\n\n(1) The FWC must not make a take‑home pay order under item 32 in relation to an employee or class of employees, or an outworker or a class of outworkers, if:\n\n (b) the FWC is satisfied that the employee or employees, or outworker or outworkers, have been adequately compensated in other ways for the reduction.\n\n (a) it does not apply to an employee or outworker unless the employee or outworker has actually suffered a reduction in take‑home pay to which item 31 applies; and\n (b) if the take‑home pay payable to the employee or outworker under the modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee or outworker under the order.\n\nA take‑home pay order made in relation to an employee or class of employees to whom a particular modern award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the modern award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.\n\nA term of a modern award or an enterprise agreement has no effect in relation to an employee or outworker to the extent that it is less beneficial to the employee or outworker than a term of a take‑home pay order that applies to the employee or outworker.\n\n(1) To the extent that a term of a Division 2B State instrument is detrimental to an employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards, the term of the instrument is of no effect.\n\nNote 1: A term of a Division 2B State instrument that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the National Employment Standards will continue to have effect.\n\nNote 2: Division 3 (which contains other general provisions about how the FW Act applies in relation to Division 2B State instruments) is also relevant to how the National Employment Standards apply in relation to employees to whom Division 2B State instruments apply.\n\nNote 3: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).\n\n(2) If there is a dispute about the application of this item which must be resolved by the FWC in accordance with item 40, the FWC may compare the entitlements which are in dispute:\n\n(3) Subitem (1) does not affect a term of a Division 2B State instrument that is permitted by a provision of the National Employment Standards as it has effect under item 38.\n\n(4) The regulations may make provisions that apply to determining, for the purpose of this item, whether terms of a Division 2B State instrument are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards.\n\n(1) The following provisions of the National Employment Standards have effect, on and after the Division 2B referral commencement, as if a reference to a modern award or an enterprise agreement included a reference to a Division 2B State instrument:\n\n (g) subsections 121(2) and (3) (which allow terms specifying situations in which the redundancy pay entitlement under section 119 does not apply);\n\n (a) a Division 2B State instrument includes terms referred to in subsection (1) of section 93 or 101 of the National Employment Standards; but\n\nSubsections 87(3) to (5) of the FW Act apply in relation to an employee to whom a Division 2B State instrument applies in the same way as they apply to an award/agreement free employee.\n\nNote: If the employee qualifies for the shiftworker annual leave entitlement under those subsections, the employee will be entitled to 5 (rather than 4) weeks of paid annual leave.\n\n(1) On application by a person covered by a Division 2B State instrument, the FWC may make a determination varying the instrument:\n\n (a) to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards; or\n\n(2) A variation of a Division 2B State instrument operates from the day specified in the determination, which may be a day before the determination is made.\n\nDivision 2—Interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations\n\n(1) If a collective Division 2B State employment agreement and a modern award both apply to an employee, or to an employer or other person in relation to the employee, the Division 2B State employment agreement prevails over the modern award, to the extent of any inconsistency.\n\nNote: This subitem has effect subject to item 42 of this Schedule, and to item 17 of Schedule 9 (which requires that the base rate of pay under a Division 2B State employment agreement must not be less than the modern award rate).\n\n(2) While an individual Division 2B State employment agreement applies to an employee, or to an employer or other person in relation to an employee, a modern award does not apply to the employee, or to the employer or other person in relation to the employee.\n\nNote 1: However, a modern award can continue to cover the employee while the individual Division 2B State employment agreement continues to apply.\n\nNote 2: This subitem has effect subject to item 42 of this Schedule, and to item 17 of Schedule 9 (which requires that the base rate of pay under a Division 2B State employment agreement must not be less than the modern award rate).\n\n (b) outworker terms (within the meaning of the FW Act) in a modern award would, but for the Division 2B State employment agreement, apply to the employee.\n\n(2) Despite item 41 and despite any terms of the Division 2B State employment agreement that are detrimental to the employee in any respect when compared to the terms of the modern award, the outworker terms apply at that time to the following persons:\n\n(3) To avoid doubt, to the extent to which terms of a modern award apply to an employee, an employer or an employee organisation because of subitem (2), the modern award applies to the employee, employer or organisation.\n\n(1) While a Division 2B State award that covers an employee, or an employer or other person in relation to the employee, is in operation, a modern award does not cover the employee, or the employer or other person in relation to the employee.\n\nNote: When the Division 2B State award terminates, a modern award will start to cover the employee, or the employer or other person in relation to the employee.\n\n(2) While a Division 2B State award that contains outworker terms that cover an outworker entity is in operation, outworker terms in a modern award do not cover the outworker entity.\n\n(3) Outworker terms in a Division 2B State award are terms that would be outworker terms as defined in the FW Act if they were in a modern award.\n\n(1) If an enterprise agreement or workplace determination (under the FW Act) starts to apply to an employee, or an employer or other person in relation to the employee, then a collective Division 2B State employment agreement ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.\n\nNote 1: The fact that a collective Division 2B State employment agreement applies to employees does not prevent those employees and their employer from replacing that agreement at any time with an enterprise agreement, regardless of whether the collective Division 2B State employment agreement has passed its nominal expiry date.\n\nNote 2: Industrial action must not be taken before the nominal expiry date of a collective Division 2B State employment agreement (see item 4 of Schedule 13).\n\n(2) While an individual Division 2B State employment agreement applies to an employee, or to an employer in relation to the employee, an enterprise agreement or workplace determination (under the FW Act) does not apply to the employee, or the employer in relation to the employee.\n\nIf an enterprise agreement or workplace determination (under the FW Act) applies to an employee, or an employer or other person in relation to the employee, then:\n\n (a) a Division 2B State award ceases to apply to the employee, and the employer or other person in relation to the employee; but\n (b) the Division 2B State award can (subject to the other provisions of this Part) continue to cover the employee, and the employer or other person in relation to the employee.\n\nNote: Subject to the other provisions of this Part, the Division 2B State award can again start to apply to the employee, and the employer or other person in relation to the employee, if the enterprise agreement or workplace determination (under the FW Act) ceases to apply to the employee.\n\n (b) a Division 2B State award covers the employer (whether the award covers the employer in the employer’s capacity as an employer or an outworker entity); and\n\n (a) Division 2B State awards are taken to be instruments to which the definition of designated outworker term in section 12 of the FW Act applies; and\n (b) designated outworker terms of a Division 2B State award can apply to an employer under subitem (2) even if none of the employees of the employer is an outworker; and\n (c) to the extent to which designated outworker terms of a Division 2B State award apply to an employer, an employee or an employee organisation because of subitem (2), the award applies to the employer, employee or organisation.\n\n(1) An employee is not an award/agreement free employee for the purposes of the FW Act if a Division 2B State instrument applies to the employee.\n\n(2) The regulations may make provision in relation to any of the following in relation to employees to whom Division 2B State instruments apply:\n\n (a) what is the base rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);\n (b) what is the full rate of pay of such an employee for the purposes of the FW Act (either generally or for the purposes of entitlements under the National Employment Standards);\n\n(1) For the purposes of the FW Act, the ordinary hours of work of an employee to whom a Division 2B State instrument applies are to be determined in accordance with this item.\n\n(2) If a Division 2B State instrument that applies to the employee specifies, or provides for the determination of, the employee’s ordinary hours of work, the employee’s ordinary hours of work are as specified in, or determined in accordance with, that instrument.\n\n(3) If subitem (2) does not apply, the employee’s ordinary hours of work are the hours agreed by the employee and his or her employer as the employee’s ordinary hours of work.\n\n(4) If subitem (2) does not apply but there is no agreement under subitem (3), the ordinary hours of work of the employee in a week are:\n\n (c) there is an agreement under subitem (3) between the employee and his or her employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work;\n\n(6) For an employee who is not a full‑time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of subitems (4) and (5).\n\nDivision 2 of Part 2‑9 of the FW Act (which deals with payment of wages) applies, on and after the Division 2B referral commencement, in relation to a Division 2B State instrument as if:\n\nDivision 3 of Part 2‑9 of the FW Act (which deals with the guarantee of annual earnings) applies, on and after the Division 2B referral commencement, as if:\n\nPart 3‑2 of the FW Act (which deals with unfair dismissal) applies, on and after the Division 2B referral commencement, as if:\n\n (a) the reference in subparagraph 382(b)(i) and paragraph 389(1)(b) of that Act to a modern award included a reference to a Division 2B State award; and\n (b) the reference in subparagraph 382(b)(ii) and paragraph 389(1)(b) of that Act to an enterprise agreement included a reference to a Division 2B State employment agreement.\n\nThe regulations may deal with other matters relating to how the FW Act applies in relation to Division 2B State instruments.\n\nagreement appeal means an appeal to a State industrial body against a decision made by a State industrial body in an agreement proceeding.\n\napprove, in relation to a State employment agreement or a variation or termination of a State employment agreement, means:\n\n (a) approve or certify (however described) the agreement, or the variation or termination, under a State industrial law; and\n (b) do any other things (for example, register the agreement) that are required to be done under that law after approval or certification in order for the agreement, or the variation or termination, to come into operation.\n\naward appeal means an appeal to a State industrial body against a decision made by a State industrial body in an award proceeding.\n\ncoverage terms of a source award or source agreement are terms setting out the employees, employers, outworker entities or other persons that are covered (however described) by the award or agreement.\n\nterminate, in relation to a State employment agreement, means terminate or rescind (however described) the agreement under a State industrial law.\n\nvary, in relation to a State employment agreement, means vary or amend (however described) the agreement under a State industrial law.\n\nNothing in this Part affects the application of section 26 of the FW Act to a law of a Division 2B referring State so far as the law provides for the variation or termination of a State award or a State employment agreement because of a proposed transfer of business (however described).\n\n(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the commencement or completion of an award appeal in relation to which the following conditions are satisfied:\n\nNote: The following (to the extent they relate to Division 2B State reference employees and Division 2B State reference employers) are not able to be commenced or completed on or after the Division 2B referral commencement:\n\n (a) does not apply to the commencement of an award appeal more than 21 days after the day on which the decision appealed against was made; and\n (b) ceases to apply to an award appeal if the appeal has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.\n\n(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the completion of an agreement proceeding that had commenced before the Division 2B referral commencement.\n\nNote: Agreement proceedings (to the extent they relate to Division 2B State reference employees and Division 2B State reference employers) are not able to be commenced on or after the Division 2B referral commencement.\n\n(2) Subitem (1) ceases to apply to an agreement proceeding if the proceeding has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.\n\n(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to the commencement or completion of an agreement appeal (whether the decision appealed against is or was made before, on or after the Division 2B referral commencement).\n\n (a) does not apply to the commencement of an agreement appeal more than 21 days after the day on which the decision appealed against was made; and\n (b) ceases to apply to an agreement appeal if the appeal has not been completed by the end of the period of 6 months starting on the Division 2B referral commencement.\n\n(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law provides for when any of the following decisions (a State decision) come into operation:\n\nNote: If a State employment agreement comes into operation on or after the Division 2B referral commencement under a State industrial law of a Division 2B referring State, a Division 2B State employment agreement is taken to come into operation immediately afterwards: see item 5 of this Schedule.\n\n(2) Subject to subitems (3) and (4), if a State decision affects the source award or source agreement for a Division 2B State instrument, the Division 2B State instrument is taken to be affected by the State decision in the same way, and from the same time, as the source award or source agreement is affected by the State decision.\n\n(3) Subitem (2) does not apply to a State decision that affects the coverage terms of the source award or source agreement.\n\n(4) Any resulting alteration of an entitlement under the Division 2B State instrument takes effect only from the later of the day on which the State decision is made and the day on which the decision comes into operation.\n\n (a) for when a State employment agreement comes into operation, if the State employment agreement was approved by a State industrial body before the Division 2B referral commencement, but the agreement had not yet come into operation by that commencement; or\n (b) for when a variation or termination of a State employment agreement comes into operation, if the variation or termination was approved or made by a State industrial body before the Division 2B referral commencement, but the variation or termination had not yet come into operation by that commencement.\n\nNote: If a State employment agreement comes into operation on or after the Division 2B referral commencement under a State industrial law of a Division 2B referring State, a Division 2B State employment agreement is taken to come into operation immediately afterwards: see item 5 of this Schedule.\n\n(2) Subject to subitem (3), if, at a time when a Division 2B State employment agreement is in operation, a variation or termination of the source agreement comes into operation as mentioned in subitem (1), the Division 2B State employment agreement is taken to have been varied in the same way, or to have been terminated, (as the case requires) immediately after that time.\n\n(1) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to compliance with an entitlement or obligation:\n\nNote: Orders and injunctions of State industrial bodies relating to industrial action that are in operation immediately before the Division 2B referral commencement can continue to have effect, and be enforced, under State law after the Division 2B referral commencement: see item 61.\n\n(3) Section 26 of the FW Act does not apply to a law of a Division 2B referring State so far as the law relates to a termination of employment that occurred before the Division 2B referral commencement.\n\n (b) provides for the variation or setting aside of entitlements and obligations arising under a contract of employment, or another arrangement for employment, that a court or a State industrial body of the State finds is unfair.\n\n (a) an order made, or an injunction granted, by a State industrial body or a court of a Division 2B referring State to prevent or stop industrial action (however described) that was in operation immediately before the Division 2B referral commencement may continue to have effect under the law of the State on and after that day; and\n\nNote 1: Part 7 of the WR Act contains the Australian Fair Pay and Conditions Standard. Part 3 of Schedule 9 to this Act provides for the continued application of Division 2 of Part 7 (which deals with wages).\n\nNote 2: Part 4 of Schedule 3 to this Act provides for the continued application of the rules about the interaction between transitional instruments and the Australian Fair Pay and Conditions Standard.\n\nDivisions 1, 2 (other than sections 615 to 618) and 6 of Part 12 of the WR Act continue to apply during the bridging period.\n\nThe following provisions of the WR Act continue to apply in relation to terminations of employment that occur during the bridging period, or notice of which is given during the bridging period:\n\n(1) The provisions of the WR Act that continue to apply because of this Part have effect as if a reference in the provisions to a workplace agreement included a reference to an enterprise agreement.\n\n(1) An employee’s service with an employer before the FW (safety net provisions) commencement day counts as service of the employee with the employer for the purpose of determining the employee’s entitlements under the National Employment Standards, other than entitlements to:\n\nNote 1: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).\n\nNote 2: Interaction between the National Employment Standards and transitional instruments is dealt with in Division 1 of Part 5 of Schedule 3.\n\n(2) If, before the FW (safety net provisions) commencement day, the employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service, subitem (1) does not result in that period of service with the employer being counted again when calculating the employee’s entitlements of that kind under the National Employment Standards.\n\n(3) To avoid doubt, subitem (2) does not require an employee to serve any initial qualifying period of service for long service leave again.\n\n(4) Subitem (1) does not apply in relation to an employee and an employer for the purposes of Subdivision B of Division 11 of the National Employment Standards (which deals with redundancy pay) if the terms and conditions of employment that applied to the employee’s employment by the employer immediately before the FW (safety net provisions) commencement day did not provide for an entitlement to redundancy pay.\n\n(1) This item applies if, immediately before the FW (safety net provisions) commencement day, an employee has an accrued entitlement to an amount of paid annual leave or paid personal/carer’s leave, whether the leave accrued under Part 7 of the WR Act, a transitional instrument or otherwise.\n\n(2) The provisions of the National Employment Standards relating to taking that kind of leave (including rates of pay while taking leave), or cashing‑out that kind of leave, apply, as a minimum standard, to the accrued leave as if it had accrued under the National Employment Standards.\n\n7 Leave that, immediately before the FW (safety net provisions) commencement day, is being, or is to be, taken under Part 7 of the WR Act\n\n (a) immediately before the FW (safety net provisions) commencement day, an employee is taking a period of a type of leave under Part 7 of the WR Act; and\n\nthe employee is entitled to continue on leave of the equivalent type under the National Employment Standards for the remainder of the period.\n\nNote: For example, if an employee is taking paid annual leave under Part 7 of the WR Act immediately before the FW (safety net provisions) commencement day, the employee is entitled to continue on paid annual leave under the National Employment Standards.\n\n(2) If an employee, or his or her spouse or de facto partner (if the spouse or de facto partner is also an employee), continues on leave under the National Employment Standards in accordance with subitem (1), the employee is entitled to adjust any of the following consistently with the provisions of the National Employment Standards in relation to that type of leave:\n\nNote: If the employee’s spouse or de facto partner is also an employee, the employees will be an employee couple for the purposes of the parental leave provisions of the National Employment Standards.\n\n (a) an employee has taken a step that the employee is required to take so that the employee can, on or after the FW (safety net provisions) commencement day, take a type of leave referred to in subitem (1); and\n\nNote: For example, if an employee has given the employer an application under section 271 of the WR Act so that the employee can take ordinary maternity leave, the employee is taken to have given the employer notice under section 74 of the FW Act of the taking of unpaid parental leave.\n\n(4) If an employee is taken, by subitem (3), to have taken a step, in relation to leave, under the National Employment Standards, the employee is entitled to adjust the step consistently with the provisions of the National Employment Standards in relation to that type of leave.\n\nNote: For example, an employee could vary the content of a notice given to the employer in relation to the leave, or vary the amount of leave the employee has notified the employer that the employee intends to take.\n\n(5) The regulations may deal with other matters relating to how the National Employment Standards apply to leave that, immediately before the FW (safety net provisions) commencement day, is being, or is to be, taken under Part 7 of the WR Act.\n\n(1) An employee may, on or after the FW (safety net provisions) commencement day, be absent from his or her employment under Division 8 of the National Employment Standards even if the period of absence began before that day.\n\n(2) If an employee is absent from his or her employment in accordance with subitem (1), subsection 111(5) of the National Employment Standards applies as if a reference to the first 10 days of absence were a reference to the first 10 days of absence occurring on or after the FW (safety net provisions) commencement day.\n\n(1) Subdivision A of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the FW (safety net provisions) commencement day.\n\n(2) However, that Subdivision does not apply to a termination if notice of the termination was given before the FW (safety net provisions) commencement day.\n\nSubdivision B of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the FW (safety net provisions) commencement day, even if notice of the termination was given before that day.\n\n (b) subsections 22(5) and (6) of the FW Act, as those provisions apply for the purposes of the National Employment Standards;\n\ndo not cover a situation where the employee became employed by the second employer (within the meaning of subsection 22(7) of the FW Act) at a time before the FW (safety net provisions) commencement day.\n\nA body that was established, or continued in existence, for the purpose, or for purposes that include the purpose, of enabling one or more employees to obtain the protection of subsection 659(2) of the WR Act (which dealt with unlawful termination) is not a recognised emergency management body for the purposes of the FW Act.\n\nThe obligation in section 125 of the National Employment Standards for an employer to give an employee the Fair Work Information Statement only applies to an employee who starts employment with the employer on or after the FW (safety net provisions) commencement day.\n\nThe regulations may make provision in relation to how the National Employment Standards apply to, or are affected by, things done or matters occurring before the FW (safety net provisions) commencement day.\n\n(1) An employee’s service with an employer before the Division 2B referral commencement counts as service of the employee with the employer for the purpose of determining the employee’s entitlements under the National Employment Standards, other than entitlements to:\n\nNote 1: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).\n\nNote 2: Interaction between the National Employment Standards and Division 2B State instruments is dealt with in Division 1 of Part 5 of Schedule 3A to this Act.\n\n(2) If, before the Division 2B referral commencement, the employee has already had the benefit of an entitlement, the amount of which was calculated by reference to a period of service, subitem (1) does not result in that period of service with the employer being counted again when calculating the employee’s entitlements of that kind under the National Employment Standards.\n\n(3) To avoid doubt, subitem (2) does not require an employee to serve any initial qualifying period of service for long service leave again.\n\n(4) Subitem (1) does not apply in relation to an employee and an employer for the purposes of Subdivision B of Division 11 of the National Employment Standards (which deals with redundancy pay) if the terms and conditions of employment that applied to the employee’s employment by the employer immediately before the Division 2B referral commencement did not provide for an entitlement to redundancy pay.\n\n(5) If, had an employee’s employment been terminated for redundancy (however described) before the Division 2B referral commencement, a State industrial body could have made an order giving the employee an entitlement to redundancy pay (however described):\n\n (a) the terms and conditions of the employee’s employment referred to in subitem (4) are taken to have provided for an entitlement to redundancy pay; and\n (b) paragraph 121(1)(b) of the FW Act does not apply in relation to the employee during the period of 12 months starting on the Division 2B referral commencement.\n\nNote: Because of paragraph (b), the employee may therefore be entitled to redundancy pay under section 119 of the FW Act if the employee’s employment is terminated during the 12 month period starting on the Division 2B referral commencement, even if the employer is a small business employer.\n\n(1) This item applies if an employee had, immediately before the Division 2B referral commencement, an accrued entitlement to an amount of paid annual leave or paid personal/carer’s leave, whether the leave accrued under a State industrial law, the source award or source agreement for a Division 2B State instrument, or otherwise.\n\n(2) The provisions of the National Employment Standards relating to taking that kind of leave (including rates of pay while taking leave), or cashing‑out that kind of leave, apply, as a minimum standard, to the accrued leave as if it had accrued under the National Employment Standards.\n\n18 Leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken under Division 6 of Part 7 of the WR Act or a State industrial law\n\nthe employee is entitled to continue on leave of the equivalent type under the National Employment Standards for the remainder of the period.\n\nNote: For example, if an employee was taking parental leave under Division 6 of Part 7 of the WR Act immediately before the Division 2B referral commencement, the employee is entitled to continue on unpaid parental leave under the National Employment Standards.\n\n(2) If an employee, or his or her spouse or de facto partner (if the spouse or de facto partner is also an employee), continues on leave under the National Employment Standards in accordance with subitem (1), the employee is entitled to adjust any of the following consistently with the provisions of the National Employment Standards in relation to that type of leave:\n\nNote: If the employee’s spouse or de facto partner is also an employee, the employees will be an employee couple for the purposes of the parental leave provisions of the National Employment Standards.\n\n (a) an employee has taken a step that the employee is required to take so that the employee can, on or after the Division 2B referral commencement, take a type of leave referred to in subitem (1); and\n\nNote: For example, if an employee has given the employer an application under section 271 of the WR Act so that the employee can take ordinary maternity leave, the employee is taken to have given the employer notice under section 74 of the FW Act of the taking of unpaid parental leave.\n\n(4) If an employee is taken, by subitem (3), to have taken a step, in relation to leave, under the National Employment Standards, the employee is entitled to adjust the step consistently with the provisions of the National Employment Standards in relation to that type of leave.\n\nNote: For example, an employee could vary the content of a notice given to the employer in relation to the leave, or vary the amount of leave the employee has notified the employer that the employee intends to take.\n\n(5) The regulations may deal with other matters relating to how the National Employment Standards apply to leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken under Division 6 of Part 7 of the WR Act or under a State industrial law of a Division 2B referring State.\n\n(1) Subdivision A of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the Division 2B referral commencement.\n\n(2) However, that Subdivision does not apply to a termination if notice of the termination was given before the Division 2B referral commencement.\n\nSubdivision B of Division 11 of the National Employment Standards applies only to terminations of employment occurring on or after the Division 2B referral commencement, even if notice of the termination was given before that day.\n\nThe obligation in section 125 of the National Employment Standards for an employer to give an employee the Fair Work Information Statement only applies to an employee who starts employment with the employer on or after the Division 2B referral commencement.\n\nThe regulations may make provision in relation to how the National Employment Standards apply to, or are affected by, things done or matters occurring before the Division 2B referral commencement.\n\n(1) The Australian Industrial Relations Commission is to continue and complete the award modernisation process provided for by Part 10A of the WR Act (the Part 10A award modernisation process).\n\n(2) For that purpose, Part 10A of the WR Act continues to apply on and after the WR Act repeal day in accordance with this Part.\n\n(3) Without limiting subitem (2), the request under section 576C of the WR Act continues to apply on and after the WR Act repeal day, and may be varied in accordance with that section.\n\n (c) all the words after “eligible entity” in paragraph 576K(2)(b) were omitted and the words “may arrange for work to be performed for the entity (either directly or indirectly), if the work is of a kind that is often performed by outworkers” were substituted; and\n (h) a reference to an outworker in subsection 576K(2) were a reference to an outworker within the meaning of the FW Act; and\n (j) a reference to an outworker term in section 576V were a reference to an outworker term within the meaning of the FW Act.\n\n(4) The Australian Industrial Relations Commission’s power under section 576H of the WR Act to vary a modern award cannot be exercised after the modern award has come into operation.\n\n(5) In continuing and completing the Part 10A award modernisation process, the Australian Industrial Relations Commission must have regard to:\n\n (b) the likely effects on the national economy of any modern award that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation; and\n (c) the likely effects on the relevant industry or industry sector of any modern award that the Commission is considering, or is proposing to make, including on productivity, labour costs and the regulatory burden on businesses.\n\n3 Variation and termination of certain transitional instruments etc. to take account of Part 10A award modernisation process\n\n(1) The FWC must, as soon as practicable after a modern award (other than the miscellaneous modern award) made in the Part 10A award modernisation process comes into operation (and subject to subitem (3)):\n\n (a) terminate any of the following (modernisable instruments) that the FWC considers are completely replaced by the modern award:\n (b) if the FWC considers that the modern award only partly replaces a modernisable instrument—vary the coverage terms of the modernisable instrument accordingly.\n\nNote 1: The main provisions about transitional instruments are in Schedule 3, and the main provisions about transitional APCSs are in Schedule 9.\n\nNote 2: This item does not limit the effect of any other provision of this Act under which a modernisable instrument ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.\n\n(2) As soon as practicable after all modern awards made in the Part 10A modernisation process have come into operation, the FWC must (subject to subitem (3)) terminate any remaining modernisable instruments.\n\n (a) terminate a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award, or that covers employees who are also covered by an enterprise instrument or a State reference public sector transitional award; or\n (b) vary a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award; or\n (c) vary a modernisable instrument so that it ceases to cover employees who are also covered by an enterprise instrument or a State reference public sector transitional award.\n\nNote 1: Item 9 of Schedule 6 deals with termination and variation of modernisable instruments to take account of the enterprise instrument or a State reference public sector transitional award modification process.\n\nNote 2: Item 10 of Schedule 6A deals with termination and variation of State reference public sector transitional awards to take account of the State reference public sector transitional award modernisation process.\n\n(4) The FWC may establish a process for making decisions under this item to terminate or vary one or more modernisable instruments.\n\n(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s powers under subitem (5).\n\n(1) A modern award made in the Part 10A award modernisation process is, for the purposes of the FW Act (and any other law), taken to be a modern award within the meaning of that Act from the later of the following days:\n\n(2) Section 49 of the FW Act does not apply for the purpose of determining when the modern award comes into operation. Instead, the modern award comes into operation on the day on which it is expressed to commence (in accordance with section 576Y of the WR Act).\n\n(3) The regulations may deal with other matters relating to how the FW Act applies in relation to modern awards made in the Part 10A award modernisation process.\n\n(1) If the FWC considers that there is a minor or technical problem with a modern award that is attributable to the fact that the Part 10A award modernisation process started before the enactment of the FW Act, the FWC may make a determination varying the modern award to resolve the problem.\n\nNote: Certain modern awards may, for example, contain references to concepts or provisions that are not consistent with the FW Act as enacted. This variation power allows the FWC to fix such references.\n\n (c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award; or\n (d) if the variation is of outworker terms in the modern award—on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the terms relate.\n\n6 Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years\n\n(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, the FWC must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.\n\nNote: The review required by this item is in addition to the annual wage reviews and 4 yearly reviews of modern awards that the FWC is required to conduct under the FW Act.\n\n (b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.\n\n(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent the FWC from reviewing 2 or more modern awards at the same time.\n\n(3) The FWC may make a determination varying any of the modern awards in any way that the FWC considers appropriate to remedy any issues identified in the review.\n\nNote: Any variation of a modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2‑3 of the FW Act).\n\n(4) The modern awards objective applies to the FWC making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.\n\n(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s powers under subitem (5).\n\n (a) a modern award includes terms (review terms) under which the FWC may review transitional arrangements included in the award; and\n (b) the review terms, and the transitional arrangements, were included in the award in the Part 10A award modernisation process;\n\nNote: Any variation of the modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2‑3 of the FW Act).\n\n(2) The review terms are taken to be terms that are permitted to be included in the modern award by Subdivision B of Division 3 of Part 2‑3 of the FW Act.\n\n(1) The Part 10A award modernisation process is not intended to result in a reduction in the take‑home pay of employees or outworkers.\n\nNote: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.\n\n (a) a modern award made in the Part 10A award modernisation process starts to apply to the employee when the award comes into operation; and\n (b) 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\n (c) the amount of the employee’s take‑home pay for working particular hours or for a particular quantity of work after 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\n\n (a) when a modern award that contains outworker terms comes into operation, the outworker is a person to whom outworker terms in the modern award relate; and\n (b) 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\n (c) the amount of the outworker’s take‑home pay for working particular hours or for a particular quantity of work after 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\n\n(1) If the FWC is satisfied that an employee, or a class of employees, to whom a modern award applies has suffered a modernisation‑related reduction in take‑home pay, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation.\n\n(2) If the FWC is satisfied that an outworker, or a class of outworkers, to whom outworker terms in a modern award relate has suffered a modernisation‑related reduction in take‑home pay, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the outworker or outworkers that the FWC considers appropriate to remedy the situation.\n\n(4) If the FWC is satisfied that an application for a take‑home pay order has already been made in relation to an employee or a class of employees, or an outworker or a class of outworkers, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees, or the same outworker or outworkers.\n\n(1) The FWC must not make a take‑home pay order in relation to an employee or class of employees, or an outworker or a class of outworkers, if:\n\n (b) the FWC is satisfied that the employee or employees, or outworker or outworkers, have been adequately compensated in other ways for the reduction.\n\n (a) it does not apply to an employee or outworker unless the employee or outworker has actually suffered a modernisation‑related reduction in take‑home pay; and\n (b) if the take‑home pay payable to the employee or outworker under the modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee or outworker under the order.\n\nA take‑home pay order made in relation to an employee or class of employees to whom a particular modern award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the modern award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.\n\nA term of a modern award or an enterprise agreement has no effect in relation to an employee or outworker to the extent that it is less beneficial to the employee or outworker than a term of a take‑home pay order that applies to the employee or outworker.\n\n(2) An enterprise award‑based instrument is an award‑based transitional instrument, other than a State reference public sector transitional award, to which subitem (2A) or (2B) applies.\n\n(2A) This subitem applies to an award‑based transitional instrument that is an award or a State reference transitional award, if the award or State reference transitional award covers employees in:\n\n(2B) This subitem applies to an award‑based transitional instrument that is a notional agreement preserving State awards, if the notional agreement includes terms and conditions from a State award (within the meaning of the WR Act) that covered employees in:\n\n (b) one or more enterprises, if the employers all carried on similar business activities under the same franchise and were:\n\n(3) An enterprise preserved collective State agreement is a transitional instrument that is a preserved collective State agreement in relation to which the following paragraphs are satisfied:\n\n (a) a State or Territory law had, on the day before the commencement of Part 2 of Schedule 4 to the Workplace Relations Amendment (Work Choices) Act 2005, the effect (however described) of converting a State award (within the meaning of the WR Act) into the relevant State employment agreement (within the meaning of the WR Act);\n (b) if the State award had continued to have effect in relation to employees, a notional agreement preserving State awards to which subitem (2B) applies would have been taken to come into operation in relation to those employees.\n\n (ii) a body, association, office or other entity established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or\n\n(2) For the purposes of subitem (1), if 2 or more employers carry on a business, project or undertaking as a joint venture or common enterprise, the employers are taken to be one employer.\n\nNote: However, an enterprise instrument or a modern enterprise award could just relate to a part of that single enterprise.\n\n(1) The enterprise instrument modernisation process is the process of making modern awards under this Division to replace enterprise instruments.\n\n(5) In deciding whether or not to make a modern enterprise award, and in determining the content of that award, the FWC must take into account the following:\n\n (a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;\n (b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;\n (c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);\n (d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;\n (f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;\n\nNote: A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC’s final wage review under the WR Act, or to include transitional arrangements in the modern award.\n\n(5A) If the FWC makes a modern enterprise award before the FW (safety net provisions) commencement day, the modern enterprise award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day.\n\n(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.\n\n (a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;\n (b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;\n (c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);\n (d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;\n (f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to terminate, or not terminate, the enterprise instrument, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;\n\nNote: A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC’s final wage review under the WR Act, or to include transitional arrangements in the modern award.\n\n(5) If the FWC terminates the enterprise instrument, the termination operates from the day specified in the decision to terminate the instrument, being a day that is not earlier than the FW (safety net provisions) commencement day.\n\n(1) The modern awards objective and the minimum wages objective apply to the FWC making a modern enterprise award under this Division.\n\n(2) However, in applying the modern awards objective and the minimum wages objective, the FWC must recognise that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. This is the modern enterprise awards objective.\n\nNote 1: See also item 11 (enterprise instrument modernisation process is not intended to result in reduction in take‑home pay).\n\nNote 2: See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day).\n\n(1) Subject to this item and item 8, Division 3 of Part 2‑3 of the FW Act (which deals with terms of modern awards) applies in relation to a modern enterprise award made under this Division.\n\nNote: See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day).\n\n(2) If the making of a modern enterprise award results in an increase in an employee’s entitlements, the modern enterprise award may provide for the increases to take effect in stages.\n\n(3) If a modern award includes an industry‑specific redundancy scheme in relation to a particular industry, and the FWC makes a modern enterprise award that covers persons who operate in that industry, the FWC may include the industry‑specific redundancy scheme in the modern enterprise award.\n\n (b) to one or more enterprises, but only if the employers all carry on similar business activities under the same franchise and are:\n\n (a) a specified employer that carries on, or specified employers that carry on, the enterprise or enterprises referred to in subitem (2); and\n\n (a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or\n\n(1) If the FWC makes a modern enterprise award to replace an enterprise preserved collective State agreement, the agreement terminates when the modern award comes into operation.\n\n(2) The FWC must, as soon as practicable after a modern enterprise award that is made to replace an enterprise instrument comes into operation:\n\nNote 1: The main provisions about transitional instruments are in Schedule 3, the main provisions about transitional APCSs are in Schedule 9, and the main provisions about Division 2B State awards are in Schedule 3A.\n\nNote 2: This item does not limit the effect of any other provision of this Act under which a modernisable instrument ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.\n\n(3) If the FWC decides not to make a modern enterprise award to replace an enterprise instrument, the instrument terminates when that decision comes into operation.\n\n(3A) Despite subitem (3), if, before the FW (safety net provisions) commencement day, the FWC makes a decision not to make a modern enterprise award to replace an enterprise instrument, the decision must not come into operation before the FW (safety net provisions) commencement day.\n\n(4) If, by the end of the period specified in paragraph 4(3)(b), no application under item 4 or 5 has been made in relation to an enterprise instrument, the instrument terminates at the end of that period.\n\n(5) As soon as practicable after all modern enterprise awards made in the enterprise instrument modernisation process have come into operation, the FWC must terminate any remaining modernisable instruments.\n\n(1) The FWC must, at least 6 months before the end of the period specified in paragraph 4(3)(b), advise any persons still covered by an enterprise instrument:\n\n(3) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s functions and powers under this item.\n\n(1) The enterprise instrument modernisation process is not intended to result in a reduction in the take‑home pay of employees.\n\nNote: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.\n\n (a) a modern enterprise award made in the enterprise instrument modernisation process starts to apply to the employee when the award comes into operation; and\n (b) 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 enterprise award came into operation; and\n (c) the amount of the employee’s take‑home pay for working particular hours or for a particular quantity of work after the modern enterprise 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\n\n(1) If the FWC is satisfied that an employee, or a class of employees, to whom a modern enterprise award applies has suffered a modernisation‑related reduction in take‑home pay, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation.\n\n(3) If the FWC is satisfied that an application for a take‑home pay order has already been made in relation to an employee or a class of employees, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees.\n\n (b) the FWC is satisfied that the employee or employees have been adequately compensated in other ways for the reduction.\n\n (a) it does not apply to an employee unless the employee has actually suffered a modernisation‑related reduction in take‑home pay; and\n (b) if the take‑home pay payable to the employee under the modern enterprise award increases after the order is made, there is a corresponding reduction in any amount payable to the employee under the order.\n\n14 Take‑home pay order continues to have effect so long as modern enterprise award continues to cover the employee or employees\n\nA take‑home pay order made in relation to an employee or class of employees to whom a particular modern enterprise award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the modern enterprise award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.\n\nA term of a modern enterprise award or an enterprise agreement has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of a take‑home pay order that applies to the employee.\n\nFor the purposes of making a modern enterprise award before the FW (safety net provisions) commencement day, the following provisions of the FW Act apply as if they had already commenced:\n\n (e) any provisions that are necessary for the effectual operation of the provisions referred to in paragraphs (a) to (d).\n\n(1) A modern enterprise award made under Division 2 is, for the purposes of the FW Act (and any other law), taken to be a modern award (being a modern enterprise award) within the meaning of that Act from the day on which the modern enterprise award is made.\n\n(2) Section 49 of the FW Act does not apply for the purpose of determining when the modern enterprise award comes into operation. Instead, the modern enterprise award comes into operation on the day on which it is expressed to commence, being a day that is not earlier than the day on which the modern enterprise award is made.\n\n(3) The regulations may deal with other matters relating to how the FW Act applies in relation to modern enterprise awards.\n\n (a) the process of making modern awards under Part 10A of the Workplace Relations Act 1996, as continued by Part 2 of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; and\n (b) the enterprise instrument modernisation process provided for by Part 2 of Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.\n\nAdd:\n\n (8) A modern award (other than a modern enterprise award) must be expressed not to cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009), or employers in relation to those employees.\n\n (b) to one or more enterprises, but only if the employers all carry on similar business activities under the same franchise and are:\n (a) a specified employer that carries on, or specified employers that carry on, the enterprise or enterprises referred to in subsection (2); and\n (a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or\n\nAdd:\n\n### Division 7—Additional provisions relating to modern enterprise awards\n\n (1) This Division contains additional provisions that relate to modern enterprise awards. The provisions in this Division have effect despite anything else in this Part.\n (ii) a body, association, office or other entity established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or\n (4) For the purposes of subsection (3), if 2 or more employers carry on a business, project or undertaking as a joint venture or common enterprise, the employers are taken to be one employer.\n\n (1) FWA must recognise that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. This is the modern enterprise awards objective.\n (2) The modern enterprise awards objective applies to the performance of FWA’s functions or powers under this Act, so far as they relate to modern enterprise awards.\n (3) A reference to the modern awards objective in this Act, other than section 134, is taken to include a reference to the modern enterprise awards objective.\n\n> Note: Modern enterprise awards can be made only in accordance with the enterprise instrument modernisation process provided for by Part 2 of Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.\n\n (b) all the employees covered by the award will, when the revocation comes into operation, be covered by a different modern award (other than the miscellaneous modern award or a modern enterprise award) that is appropriate for them.\n (4) In deciding whether to make a determination revoking a modern enterprise award FWA must take into account the following:\n (c) the terms and conditions of employment applying in the industry in which the persons covered by the modern enterprise award operate, and the extent to which those terms and conditions are reflected in the modern enterprise award;\n (e) the likely impact on the persons covered by the modern enterprise award, and the persons covered by the modern award referred to in paragraph (3)(b), of a decision to revoke, or not revoke, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;\n\n (1) FWA must not make a determination varying a modern enterprise award so as to extend the coverage of the modern enterprise award so that it ceases to be a modern enterprise award.\n (2) In deciding whether to make a determination varying the coverage of a modern enterprise award in some other way, FWA must take into account the following:\n (b) whether there is a modern award (other than the miscellaneous modern award or a modern enterprise award) that would, but for the modern enterprise award, cover the persons covered, or proposed to be covered, by the modern enterprise award;\n (d) the terms and conditions of employment applying in the industry in which the persons covered, or proposed to be covered, by the modern award operate, and the extent to which those terms and conditions are reflected in the modern enterprise award;\n (f) the likely impact on the persons covered, or proposed to be covered, by the modern enterprise award, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the variation, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;\n\n (1) If FWA makes one or more determinations varying modern award minimum wages in an annual wage review, FWA must publish the rates of those wages as so varied:\n\n(1) A State reference public sector transitional award is a State reference transitional award or common rule in relation to which the following conditions are satisfied:\n\n (a) the only employers that are expressed to be covered by the award or common rule are one or more specified State reference public sector employers;\n (b) the only employees who are expressed to be covered by the award or common rule are specified State reference public sector employees of those employers.\n\nNote: State reference transitional awards and common rules are continued in existence as transitional instruments by Schedule 3.\n\n(2) A State reference public sector employee is a State reference employee who is a State public sector employee as defined in section 30A or 30K of the FW Act.\n\n(3) A State reference public sector employer is a State reference employer that is a State public sector employer as defined in section 30A or 30K of the FW Act.\n\n (a) a State reference transitional award or common rule (the current award) covers one or more State reference public sector employers, and State reference public sector employees of those employers; and\n\nthen, for the purposes of this Act, the current award is taken instead to constitute 2 separate State reference transitional awards or common rules as follows:\n\n (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a)—that organisation in relation to those employers or employees; and\n (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b)—that organisation in relation to those employers or employees.\n\n(1) The State reference public sector transitional award modernisation process is the process of making State reference public sector modern awards under this Division covering employers, employees and organisations that are covered by State reference public sector transitional awards.\n\n(2) A State reference public sector modern award is a modern award in relation to which the following conditions are satisfied:\n\n (a) the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers;\n (b) the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers.\n\n(1) An employer or organisation that is covered by a State reference public sector transitional award (the current award) may apply to the FWC for the making of a State reference public sector modern award (the proposed award).\n\n(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.\n\n(3) The application must specify the employers, employees and organisations (the proposed parties) proposed to be covered by the proposed award.\n\n(4) The FWC must consider the application, and must make a State reference public sector modern award covering the proposed parties if the FWC is satisfied that:\n\nNote: The proposed parties will cease to be covered by State reference public sector transitional awards when the State reference public sector modern award comes into operation: see item 29 of Schedule 3.\n\n(1) An employer or organisation that is covered by a State reference public sector transitional award (the current award) may apply to the FWC or the Commission to terminate the current award.\n\n(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.\n\n(3) The FWC or the Commission must not terminate the current award unless the FWC or the Commission is satisfied that the employees who are covered by the current award will, if the current award is terminated, be covered by a modern award (other than the miscellaneous modern award) that, at the time of the termination, is or is likely to be in operation and that is appropriate for them.\n\n (b) the terms and conditions of employment applying in the industry or occupation in which the persons covered by the current award operate, and the extent to which those terms and conditions are reflected in the current award;\n (c) the extent to which the current award facilitates arrangements, and provides terms and conditions of employment, referred to in paragraphs 7(2)(a) and (b);\n (d) the likely impact on the persons covered by the current award of a decision to terminate, or not to terminate, the current award;\n\n(5) If the FWC or the Commission terminates the current award, the termination operates from the day specified in the decision to terminate the current award, being a day that is not earlier than the FW (safety net provisions) commencement day.\n\n(6) If the Commission terminates the current award, the termination is taken, after the Commission has ceased to exist, to have been made by the FWC.\n\nIf, at the end of the period referred to in subitem 4(2), there are one or more State reference public sector transitional awards that still cover some employers and employees, the FWC must make, or (in accordance with section 168L of the FW Act) vary the coverage of, one or more State reference public sector modern awards so that all those employers and employees are covered by State reference public sector modern awards.\n\nNote: The employers and employees will cease to be covered by the State reference public sector transitional awards when they start to be covered by a State reference public sector modern award that is in operation: see item 29 of Schedule 3.\n\n(1) If the FWC is required by item 4 or 6 to make a State reference public sector modern award, the modern awards objective and the minimum wages objective apply to the making of the modern award.\n\n (a) the need to facilitate arrangements for State reference public sector employers and State reference public sector employees that are appropriately adapted to the effective administration of a State; and\n (b) that State reference public sector modern awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to State reference public sector employers and State reference public sector employees.\n\nNote 1: See also item 13 (State reference public sector transitional award modernisation process is not intended to result in reduction in take‑home pay).\n\nNote 2: See also item 19 (how the FW Act applies in relation to the State reference public sector transitional award modernisation process before the FW (safety net provisions) commencement day).\n\n(1) Division 3 (other than sections 143 and 154) of Part 2‑3 of the FW Act (which deals with terms of modern awards) applies in relation to a State reference public sector modern award made under this Division.\n\nNote: See also item 19 (how the FW Act applies in relation to the State reference public sector transitional award modernisation process before the FW (safety net provisions) commencement day).\n\n(2) If FWA makes a State reference public sector modern award before the FW (safety net provisions) commencement day, the State reference public sector modern award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day.\n\n(1) A State reference public sector modern award must include terms (coverage terms) setting out, in accordance with this item, the employers, employees and organisations that are covered by the State reference public sector modern award.\n\n (a) the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers; and\n (b) the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers.\n\n(3) A State reference public sector modern award may be expressed to cover one or more specified organisations, in relation to:\n\n10 Variation and termination of State reference public sector transitional awards to take account of the modernisation process\n\n(1) If a State reference public sector modern award completely replaces a State reference public sector transitional award, the transitional award terminates when the modern award comes into operation.\n\n(2) If a State reference public sector modern award partially replaces a State reference public sector transitional award, the FWC must, as soon as practicable after the modern award comes into operation, vary the transitional award so that employees who are covered by the modern award are no longer covered by the transitional award.\n\n (a) the modern award completely replaces the transitional award if all the employees who are covered by the transitional award become covered by the modern award when it comes into operation; and\n (b) the modern award partially replaces the transitional award if only some of the employees who are covered by the transitional award become covered by the modern award when it comes into operation.\n\nNote: This item does not limit the effect of any other provision of this Act under which a transitional instrument (a State reference public sector transitional award is a transitional instrument) ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.\n\n(1) The FWC must, at least 6 months before the end of the period specified in subitem 4(2), advise any persons still covered by a State reference public sector transitional award:\n\n (b) that the FWC will, at the end of that period, commence the State reference public sector transitional award modernisation process in relation to the transitional award for any employees and employers who are still covered by the transitional award at that time.\n\n(3) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s functions and powers under this item.\n\nThe regulations may deal with other matters relating to the State reference public sector transitional award modernisation process.\n\n13 State reference public sector transitional award modernisation process is not intended to result in reduction in take‑home pay\n\n(1) The State reference public sector transitional award modernisation process is not intended to result in a reduction in the take‑home pay of employees.\n\nNote: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.\n\n (a) a State reference public sector modern award made in the State reference public sector transitional award modernisation process starts to apply to the employee when the modern award comes into operation; and\n (b) 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 State reference public sector modern award came into operation; and\n (c) the amount of the employee’s take‑home pay for working particular hours or for a particular quantity of work after the State reference public sector 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 modern award came into operation; and\n (d) that reduction in the employee’s take‑home pay is attributable to the State reference public sector transitional award modernisation process.\n\n(1) If the FWC is satisfied that an employee, or a class of employees, to whom a State reference public sector modern award applies has suffered a modernisation‑related reduction in take‑home pay, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the employee or employees that the FWC considers appropriate to remedy the situation.\n\n(3) If the FWC is satisfied that an application for a take‑home pay order has already been made in relation to an employee or a class of employees, the FWC may dismiss any later application that is made under these provisions in relation to the same employee or employees.\n\n (b) the FWC is satisfied that the employee or employees have been adequately compensated in other ways for the reduction.\n\n (a) it does not apply to an employee unless the employee has actually suffered a modernisation‑related reduction in take‑home pay; and\n (b) if the take‑home pay payable to the employee under the State reference public sector modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee under the order.\n\n16 Take‑home pay order continues to have effect so long as State reference public sector modern award continues to cover the employee or employees\n\nA take‑home pay order made in relation to an employee or class of employees to whom a particular State reference public sector modern award applies continues to have effect in relation to those employees (subject to the terms of the order) for so long as the State reference public sector modern award continues to cover the employee or employees, even if it stops applying to the employee or employees because an enterprise agreement starts to apply.\n\nA term of a State reference public sector modern award or an enterprise agreement has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of a take‑home pay order that applies to the employee.\n\nFor the purposes of making a State reference public sector modern award before the FW (safety net provisions) commencement day, the following provisions of the FW Act apply as if they had already commenced:\n\n (e) any provisions that are necessary for the effectual operation of the provisions referred to in paragraphs (a) to (d).\n\n20 How the FW Act applies to modern awards made in the State reference public sector transitional award modernisation process\n\n(1) A State reference public sector modern award made under Division 2 is, for the purposes of the FW Act (and any other law), taken to be a modern award (being a State reference public sector modern award) within the meaning of that Act from the day on which the State reference public sector modern award is made.\n\n(2) Section 49 of the FW Act does not apply for the purpose of determining when the State reference public sector modern award comes into operation. Instead, the modern award comes into operation on the day on which it is expressed to commence, being a day that is not earlier than the day on which the modern award is made.\n\n(3) The regulations may deal with other matters relating to how the FW Act applies in relation to State reference public sector modern awards.\n\nPart 2—Transitional provisions relating to the application of the no‑disadvantage test to enterprise agreements made and varied during bridging period\n\n(1) Paragraph 186(2)(d) of the FW Act (including as that paragraph has effect under subsection 211(3) of that Act) and subsection 211(5) of that Act apply in relation to:\n\nas if the words “better off overall test” were omitted and the words “no‑disadvantage test as set out in Division 2 of Part 2 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted.\n\n(2) Paragraph 189(1)(b) of the FW Act applies in relation to an enterprise agreement made during the bridging period as if the words “better off overall test” were omitted and the words “no‑disadvantage test as set out in Division 2 of Part 2 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted.\n\nNote: This means that section 193 (which deals with passing the better off overall test) and subsections 211(4) and (5) (which deal with applying the better off overall test to agreements as proposed to be varied) of the FW Act will have no effect in relation to the approval by FWA of agreements and variations during the bridging period.\n\ndesignated award, for an employee or employees who are or may be covered by an enterprise agreement, means an award determined by the FWA under item 8, and includes an award taken to be so designated in relation to the employee or employees under item 7 (unless a different award has been designated in relation to the employee or employees under item 8).\n\n(2) Unless the contrary intention appears, this Division applies to an enterprise agreement as proposed to be varied in a corresponding way to the way in which it applies to an enterprise agreement.\n\n (a) a reference in a provision of this Division to an employee who is covered by the agreement is taken to be a reference to an employee who is one of the affected employees for the variation of the agreement (within the meaning of the FW Act); and\n (b) a reference in a provision of this Division to the employees who are covered by the agreement is taken to be a reference to the affected employees for the variation; and\n (c) a reference in a provision of this Division to an application for approval of the agreement under section 185 of the FW Act is taken to be a reference to an application for approval of a variation of the agreement under section 210 of that Act.\n\n(4) For the purposes of applying this Division to an enterprise agreement, a reference to an employee who is covered by the enterprise agreement is, so far as the context permits, taken to include a reference to a person who may at a future time be covered by the enterprise agreement.\n\n(1) An enterprise agreement passes the no‑disadvantage test if FWA is satisfied that the agreement does not, or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees who are covered by the agreement under any reference instrument relating to one or more of the employees.\n\n (ii) applied, immediately before the application was made for approval of the agreement under section 185 of the FW Act, to an employee referred to in that subitem, or would have applied to such an employee if he or she had been employed by the employer at that time;\n is taken, to the extent that it provides for long service leave, to be a reference instrument relating to the employee; and\n (b) if, apart from this subitem, the only reference instrument relating to the employee is a designated award for the employee—the designated award is to be disregarded to the extent (if any) that it provides for long service leave.\n\nNote: An enterprise agreement made during the bridging period will prevail over a law of a State or Territory, to the extent of any inconsistency, so far as that law deals with long service leave (see item 17).\n\n(3) An enterprise agreement or a variation of an enterprise agreement is taken to pass the no‑disadvantage test if there is no reference instrument in relation to any of the employees who are covered by the agreement.\n\n(4) To avoid doubt, if there is a reference instrument in relation to one or more, but not all, of the employees referred to in subitem (1):\n\n (a) if the agreement passes the no‑disadvantage test under subitem (1)—it passes the test in relation to all employees who are covered by the agreement; or\n (b) if the agreement does not pass the no‑disadvantage test under subitem (1)—it does not pass the test in relation to any employees who are covered by the agreement.\n\nNote 1: In addition to the no‑disadvantage test, during the bridging period, the Australian Fair Pay and Conditions Standard prevails over an enterprise agreement to the extent to which the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee or employees—see subitem 27(1).\n\nNote 2: From the FW (safety net provisions) commencement day, a term of an enterprise agreement has no effect to the extent it excludes the National Employment Standards or any provision of the National Employment Standards (see sections 55 and 56 of the FW Act).\n\nNote 3: This item applies to an enterprise agreement as proposed to be varied in a corresponding way to the way in which it applies to an enterprise agreement—see subitems 3(2) and (3).\n\n(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the no‑disadvantage test, FWA must disregard any individual flexibility arrangement that has been agreed to by an affected employee and his or her employer under the flexibility term in the agreement.\n\n(2) A relevant general instrument, for an employee who is covered by an enterprise agreement, is an award‑based transitional instrument:\n\n (a) that regulates, or would but for an enterprise agreement or another industrial instrument having come into operation regulate, any term or condition of employment of persons engaged in the same kind of work as that performed or to be performed by the employee under the enterprise agreement; and\n (b) that applied, or would but for an enterprise agreement or another industrial instrument having come into operation have applied, to the employee’s employer immediately before the day on which the application for approval of the agreement was made under section 185 of the FW Act.\n\n(1) In deciding whether an enterprise agreement passes, or does not pass, the no‑disadvantage test, FWA must consider it as in existence at the test time.\n\n(2) The test time is the time when the application for approval of the agreement was made under section 185 of the FW Act.\n\n(1) FWA may, on application by an employer, determine that an award is a designated award for an employee or class of employees of the employer.\n\n (a) the employee or employees are or may be employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee or employees:\n (ii) would, but for an enterprise agreement or another industrial instrument having come into operation, usually be regulated by an award; and\n (b) unless there is a designated award for the employee or employees, there would be no reference instrument relating to the employee or employees; and\n\n (a) must be an award or awards regulating, or that would, but for an enterprise agreement or another industrial instrument having come into operation, regulate, terms or conditions of employment of employees engaged in the same kind of work as the work performed or to be performed by the employee or employees; and\n (b) must, in the opinion of FWA, be an award or awards that would be appropriate for the purpose referred to in paragraph 8(3)(b) if an application were made for approval of an enterprise agreement under section 185 of the FW Act; and\n (c) must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).\n\n(4) An award determined under this item in relation to an employee or employees is taken to be the designated award determined by FWA under item 8 in relation to the employee or employees if, later, an application is made for approval of an enterprise agreement under section 185 of the FW Act, in relation to the employee or the employees.\n\n(5) Despite subitem (4), FWA may determine under item 8 that another award is a designated award in relation to the employee, or in relation to some or all of the employees, if:\n\n (a) FWA becomes aware of information that was not available to it at the time of the determination under subitem (1); and\n (b) FWA is satisfied that, had that information been available to it at that time, FWA would have determined under subitem (1) the other award to be the designated award.\n\n(7) In this item, a reference to an employee or employees of an employer includes a reference to a person or persons who may become an employee or employees of the employer.\n\n(1) This item applies to an enterprise agreement if there is no relevant general instrument in relation to an employee who is, or a class of employees who are, covered by the agreement.\n\n(2) FWA must determine that an award is a designated award for the employee or employees referred to in subitem (1), if it is satisfied that:\n\n (a) on the date on which the application for approval of the enterprise agreement was made under section 185 of the FW Act, the employee or employees are or would be employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee or employees:\n (ii) would, but for an enterprise agreement or another industrial instrument having come into operation, usually be regulated by an award; and\n\n (a) must be an award or awards regulating, or that would, but for an enterprise agreement or another industrial instrument having come into operation, regulate, terms or conditions of employment of employees engaged in the same kind of work as the work performed by the employee or employees under the enterprise agreement concerned; and\n (b) must, in the opinion of FWA, be appropriate for the purpose of deciding whether an enterprise agreement passes the no‑disadvantage test; and\n (c) must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).\n\nFor the purposes of paragraphs 7(2)(a) and 8(2)(a), an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by an employee are usually regulated by an award is taken to include an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee:\n\n (a) were, immediately before the reform commencement, usually regulated by a State award (within the meaning of the WR Act); or\n (b) would, but for an industrial instrument or a State employment agreement (within the meaning of the WR Act) having come into operation, usually have been so regulated immediately before the reform commencement.\n\n (b) may inform itself in any way it considers appropriate including (but not limited to) contacting any of the following:\n\n(2) In deciding whether to determine that an award is a designated award in relation to an employee or employees of an employer, FWA may inform itself in any way it considers appropriate including (but not limited to) contacting any of the following:\n\nPart 3—Other requirements and modifications applying to making and varying enterprise agreements during the bridging period\n\nParagraph 186(2)(c) of the FW Act (which deals with terms that contravene section 55 of that Act) does not apply in relation to:\n\nNote: Section 55 of the FW Act (which deals with the interaction between the National Employment Standards and enterprise agreements etc.) will apply after the end of the bridging period. Section 56 of that Act provides that a term of an enterprise agreement has no effect to the extent that it contravenes section 55.\n\nSubparagraph 186(6)(a)(ii) of the FW Act (which deals with a requirement for an enterprise agreement to have a term about settling disputes in relation to the National Employment Standards) applies in relation to:\n\nas if the words “as those provisions apply after the end of the bridging period” were added after “National Employment Standards”.\n\nNote: For disputes relating to the Australian Fair Pay and Conditions Standard as it applies during the bridging period, see item 27.\n\n(1) Subsection 187(4) of the FW Act (which deals with requirements relating to particular kinds of employees) does not apply in relation to:\n\n(2) Section 200 of the FW Act (which deals with requirements relating to outworkers) applies in relation to the agreement or variation as if:\n\n (a) references in that section to a modern award were references to an award, a State reference transitional award or common rule, or a notional agreement preserving State awards; and\n (b) references in that section to outworker terms were references to terms that are (or that would be, if the terms were in an award) outworker terms as defined in section 564 of the WR Act.\n\nThe FW Act applies during the bridging period as if section 206 (which deals with base rate of pay under enterprise agreements) were omitted.\n\nParagraph 185(3)(b) of the FW Act (which deals with extending the period within which an application must be made to FWA for approval of an enterprise agreement) does not apply in relation to an enterprise agreement made during the period of 14 days ending at the end of the bridging period.\n\nNote: If an application for approval of an enterprise agreement referred to in this item is not made to FWA within 14 days of it being made:\n\nParagraph 210(3)(b) of the FW Act (which deals with extending the period within which an application must be made to FWA for approval of a variation of an enterprise agreement) does not apply in relation to a variation of an enterprise agreement, if that variation was made during the period of 14 days ending at the end of the bridging period.\n\nNote: If an application for approval of a variation referred to in this item is not made to FWA within 14 days of it being made:\n\n17 Enterprise agreement made during the bridging period prevails over State and Territory laws dealing with long service leave\n\nDespite subsection 29(2) of the FW Act, an enterprise agreement made during the bridging period prevails over a law of a State or Territory, to the extent of any inconsistency, so far as that law deals with long service leave.\n\nNote: A term of such an enterprise agreement will still apply subject to a law of a State or Territory so far as that law is otherwise covered by paragraph 29(2)(a) or (b) of the FW Act.\n\nPart 4—Transitional provisions to apply the better off overall test after end of bridging period if award modernisation not yet completed\n\n18 Application of better off overall test to making of enterprise agreements that cover unmodernised award covered employees\n\n(1) This item applies in relation to an enterprise agreement made after the end of the bridging period if one or more of the employees covered by the agreement is an unmodernised award covered employee.\n\n(2) Despite section 193 of the FW Act, if the enterprise agreement is not a greenfields agreement, the agreement passes the better off overall test under that section only if:\n\n (b) the FWC is satisfied, as at the test time, that each unmodernised award covered employee, and each prospective unmodernised award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant award‑based transitional instrument and transitional APCS applied to the employee.\n\n(3) Despite section 193 of the FW Act, if the enterprise agreement is a greenfields agreement, the agreement passes the better off overall test under that section only if:\n\n (b) the FWC is satisfied, as at the test time, that each prospective unmodernised award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant award‑based transitional instrument and transitional APCS applied to the employee.\n\n(4) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award or relevant award‑based transitional instrument and transitional APCS applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.\n\n(5) If the relevant award‑based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded.\n\n19 Application of better off overall test to variation of enterprise agreements that cover unmodernised award covered employees\n\n(2) Despite subsections 211(4) and (5) of the FW Act, subitems (3) and (4) apply in relation to the variation for the purposes of the FWC being satisfied that the agreement as proposed to be varied passes the better off overall test.\n\n(3) An enterprise agreement as proposed to be varied passes the better off overall test if the FWC is satisfied, as at the test time, that:\n\n (a) each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee; and\n (b) each unmodernised award covered employee, and each prospective unmodernised award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant award‑based transitional instrument and transitional APCS applied to the employee.\n\n(4) For the purposes of determining whether the enterprise agreement as proposed to be varied passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award or relevant award‑based transitional instrument and transitional APCS applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.\n\n(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by an award covered employee and his or her employer under the flexibility term in the agreement.\n\n(6) If the relevant award‑based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded.\n\nprospective unmodernised award covered employee, for an enterprise agreement, means a person who, if he or she were an employee at the test time of an employer covered by the agreement:\n\n (a) for the purposes of item 18—means the time the application for approval of the agreement by the FWC was made under section 185 of the FW Act; and\n (b) for the purposes of item 19—means the time the application for approval of the variation of the enterprise agreement by the FWC was made under section 210 of that Act.\n\n (b) at the test time, is covered by an award‑based transitional instrument (the relevant award‑based transitional instrument) that:\n\nPart 4A—Transitional provisions to apply the better off overall test to enterprise agreements that cover Division 2B State award covered employees\n\n20A Application of better off overall test to making of enterprise agreements that cover Division 2B State award covered employees\n\n(1) This item applies in relation to an enterprise agreement made on or after the Division 2B referral commencement, if one or more of the employees covered by the agreement is a Division 2B State award covered employee.\n\n(2) Despite section 193 of the FW Act, if the enterprise agreement is not a greenfields agreement, the agreement passes the better off overall test under that section only if:\n\n (a) the FWC is satisfied as referred to in subsection (1) of that section, and paragraph (2)(b) of item 18 of this Schedule, in relation to the agreement (to the extent that those provisions are applicable); and\n (b) the FWC is satisfied, as at the test time, that each Division 2B State award covered employee, and each prospective Division 2B State award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee.\n\nNote: Section 193 of the FW Act and item 18 of this Schedule deal with testing enterprise agreements against other instruments (such as modern awards). An enterprise agreement to which this subitem applies will not be tested against one or more such other instruments in relation to Division 2B State award covered employees.\n\n(3) Despite section 193 of the FW Act, if the enterprise agreement is a greenfields agreement, the agreement passes the better off overall test under that section only if:\n\n (a) the FWC is satisfied as referred to in subsection (3) of that section and paragraph (3)(b) of item 18 of this Schedule in relation to the agreement (to the extent that those provisions are applicable); and\n (b) the FWC is satisfied, as at the test time, that each prospective Division 2B State award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee.\n\nNote: Section 193 of the FW Act and item 18 of this Schedule deal with testing enterprise agreements against other instruments (such as modern awards). An enterprise agreement to which this subitem applies will not be tested against one or more such other instruments in relation to prospective Division 2B State award covered employees.\n\n(4) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant Division 2B State award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.\n\n20B Application of better off overall test to variation of enterprise agreements that cover Division 2B State award covered employees\n\n(2) Despite subsections 211(4) and (5) of the FW Act, subitems (3) and (4) apply in relation to the variation for the purposes of the FWC being satisfied that the agreement as proposed to be varied passes the better off overall test.\n\n (a) the FWC is satisfied, as at the test time, as mentioned in subitem 19(3) of this Schedule in relation to the agreement as proposed to be varied (to the extent that subitem 19(3) is applicable); and\n (b) the FWC is satisfied, as at the test time, that each Division 2B State award covered employee, and each prospective Division 2B State award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee.\n\nNote: Item 19 of this Schedule deals with testing enterprise agreements as proposed to be varied against other instruments (such as modern awards). A variation to which this subitem applies will not be tested against one or more such other instruments in relation to Division 2B State award covered employees.\n\n(4) For the purposes of determining whether the enterprise agreement as proposed to be varied passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant Division 2B State award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.\n\n(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by a Division 2B State award covered employee and his or her employer under the flexibility term in the agreement.\n\nprospective Division 2B State award covered employee, for an enterprise agreement, means a person who, if he or she were an employee at the test time of an employer covered by the agreement:\n\n (a) for the purposes of item 20A—means the time the application for approval of the enterprise agreement by the FWC was made under section 185 of the FW Act; and\n (b) for the purposes of item 20B—means the time the application for approval of the variation of the enterprise agreement by the FWC was made under section 210 of that Act.\n\n21 Application made during bridging period for special low‑paid workplace determination—general requirement relating to minimum safety net\n\nSubsection 262(3) of the FW Act (which deals with a general requirement relating to the minimum safety net) applies in relation to an application for a special low‑paid workplace determination made during the bridging period as if the words “modern awards together with the National Employment Standards” were omitted and the words “awards (including State reference transitional awards and common rules) together with the Australian Fair Pay and Conditions Standard” were substituted.\n\n22 Special low‑paid workplace determination—employer must not previously have been covered by agreement‑based transitional instrument\n\n(1) Subsection 263(3) of the FW Act (which deals with additional requirements for making a special low‑paid workplace determination) applies in relation to a workplace determination, whether made during or after the bridging period, as if the reference in that subsection to an enterprise agreement included a reference to a collective agreement‑based transitional instrument.\n\n(3) In making a decision for the purposes of paragraph (2)(b) of this item, the FWC must take into account the objects set out in section 241 of the FW Act.\n\n23 Core terms of workplace determinations—assessment of determination made during bridging period against the no disadvantage test\n\nSubsection 272(4) of the FW Act (which deals with workplace determinations passing the better off overall test) applies in relation to a workplace determination made during the bridging period as if the words “better off overall test under section 193” were omitted and the words “no‑disadvantage test as set out in Division 2 of Part 2 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted.\n\n24 Core terms of workplace determinations—assessment of determination made after bridging period that covers unmodernised award covered employees against the better off overall test\n\n(1) This item applies in relation to a workplace determination made after the end of the bridging period if one or more of the employees who will be covered by the determination is an unmodernised award covered employee (within the meaning of Part 4).\n\n(2) Subsection 272(4) of the FW Act (which deals with workplace determinations passing the better off overall test) applies in relation to the workplace determination as if the words “under section 193” were omitted and the words “under item 18 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted.\n\n(2) Subsection 272(5) of the FW Act (which deals with terms relating to safety net requirements) does not apply in relation to the workplace determination, except in so far as that subsection prevents a workplace determination from including a term that would, if the determination were an enterprise agreement, mean that FWA could not approve the agreement because of the operation of section 200 of that Act (which deals with requirements relating to outworkers).\n\nNote: Section 55 of the FW Act (which deals with the interaction between the National Employment Standards and workplace determinations etc.) will apply after the end of the bridging period. Section 56 of that Act provides that a term of a workplace determination has no effect to the extent that it contravenes section 55.\n\n(3) Section 200 of the FW Act (which deals with requirements relating to outworkers) applies in relation to the workplace determination as if:\n\n (a) references in that section to a modern award were references to an award or a State reference transitional award or common rule; and\n (b) references in that section to outworker terms were references to outworker terms as defined in section 564 of the WR Act.\n\n(2) Paragraph 273(2)(b) of the FW Act (which deals with a requirement for a workplace determination to have a term about settling disputes in relation to the National Employment Standards) applies in relation to the workplace determination as if the words “as the National Employment Standards apply after the end of the bridging period” were added after “National Employment Standards”.\n\n(3) Subsection 273(3) of the FW Act (which deals with a requirement for a workplace determination to have a term about settling disputes) applies in relation to the workplace determination as if the reference to paragraph 186(6)(a) of the FW Act were a reference to that paragraph in its application to an enterprise agreement made during the bridging period (see item 12).\n\nNote: For disputes relating to the Australian Fair Pay and Conditions Standard as it applies during the bridging period, see item 27.\n\n(1) The Australian Fair Pay and Conditions Standard, in its application during the bridging period under item 2 of Schedule 4 and item 5 of Schedule 9 prevails over an enterprise agreement or a workplace determination that applies to an employee to the extent to which, in a particular respect, the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee.\n\n (a) whether the Australian Fair Pay and Conditions Standard provides a more favourable outcome for an employee in a particular respect than an enterprise agreement or workplace determination that applies to that employee; or\n (b) what the outcome is for an employee in a particular respect under the Australian Fair Pay and Conditions Standard, where an enterprise agreement or a workplace determination applies to that employee;\n\n(3) For the purposes of subitem (2), Divisions 2 and 3 of Part 13 of the WR Act apply as if a reference in those Divisions to the Commission or the Industrial Registrar were a reference to FWA.\n\n(4) The fact that the model dispute resolution process applies in relation to the dispute does not affect any right of a party to the dispute to take court action to resolve it.\n\n(6) Despite the WR Act repeal, regulations made for the purposes of subsection 172(4) of the WR Act continue to apply during the bridging period as if a reference in those regulations to a workplace agreement were a reference to an enterprise agreement and a workplace determination.\n\n(7) A term of an enterprise agreement or a workplace determination has no effect to the extent to which it purports to exclude the Australian Fair Pay and Conditions Standard or any part of it.\n\nPart 7—Transitional provision about the operation of the better off overall test if a transitional pay equity order applies\n\n (b) the FWC must decide whether the agreement, or the agreement as proposed to be varied, passes the better off overall test; and\n (c) an employer covered by the agreement, or the agreement as proposed to be varied, is an employer to which a transitional pay equity order applies; and\n (d) an employee covered by the agreement, or the agreement as proposed to be varied, is an affected employee of the employer referred to in paragraph (c).\n\n(2) For the purposes of determining whether the affected employee would be better off overall if the agreement, or the agreement as proposed to be varied, applied to the employee than if the relevant modern award applied to the employee, the base rate of pay payable under the relevant modern award to the employee is taken to be increased so that it is equal to the amount payable to the employee under the transitional pay equity order.\n\nPart 8—Transitional provisions relating to termination and sunsetting of enterprise agreements made during the bridging period\n\n(1) An enterprise agreement made during the bridging period ceases to operate at the end of the grace period for the agreement if the agreement has not already ceased to operate before that time.\n\n (a) subject to paragraph (b), the period of 12 months (the default period) beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences; or\n\n (b) if the default period is extended for the agreement on one or more occasions under subitem (6) or paragraph (10)(e)—the default period as so extended.\n\n(3) An employer covered by an enterprise agreement made during the bridging period must, before the end of 6 months beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 commences, give each employee who is covered by the agreement and employed by the employer at the end of that period written notice advising the employee:\n\n (b) that the agreement will terminate unless an application is made to the FWC under subitem (4), before the end of the period of 12 months beginning on the day that Part commences, for the FWC to extend the default period for the agreement; and\n\n(4) Any of the following may apply to the FWC, before the end of the grace period for an enterprise agreement made during the bridging period, for the FWC to extend the default period for the agreement for a period of no more than 4 years:\n\n (c) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the agreement.\n\n(6) If an application is made under subitem (4), the FWC must extend the default period for the enterprise agreement made during the bridging period for a period of no more than 4 years if the FWC is satisfied that:\n\n (a) the application is made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the enterprise agreement made during the bridging period; and\n\n(8) This subitem applies if it is likely that, as at the time the application is made, the award covered employees for the agreement under subitem (9), viewed as a group, would be better off overall if the agreement applied to the employees than if the relevant modern award or awards referred to in that subitem applied to the employees.\n\n(9) For the purposes of subitem (8), the award covered employees for an enterprise agreement made during the bridging period are the employees who:\n\n (b) at the time an application is made under subitem (4) in relation to the agreement, are covered by one or more modern awards (the relevant modern awards) that:\n\n (c) are employed at that time by an employer who is covered by the agreement and by one or more of the relevant modern awards.\n\n (b) the FWC has not made a decision on the application at a time (the critical time) that is immediately before what would (apart from this subitem) be the end of the grace period for the agreement;\n\n (e) if the FWC’s decision on the application is to refuse to extend the default period for the agreement under subitem (6)—the FWC must extend the default period until the end of:\n\n (ii) if the refusal decision specifies a later day that is not more than 14 days after the day the refusal decision is made—that later day.\n\n(11) If an enterprise agreement made during the bridging period ceases to operate in accordance with subitem (1), that does not affect:\n\n(12) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the agreement had not ceased to operate.\n\nThe following provisions of Part 8 of the WR Act continue to apply in relation to the collective agreement on and after the WR Act repeal day:\n\n (g) Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void);\n\nNote 1: The general effect of this provision is to preserve the Part 8 rules about lodgment, the no‑disadvantage test and prohibited content for collective agreements made before the WR Act repeal day, subject to the modifications set out in this Division. The rules about variation and termination of such collective agreements, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments).\n\nNote 2: The rules requiring a collective agreement to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).\n\n (a) the Workplace Authority Director must not consider whether the agreement passes the no‑disadvantage test under section 346D of the WR Act, as that section continues to apply because of item 3, unless:\n (i) the agreement is lodged before the end of the period (the cut‑off period) of 14 days referred to in subsection 342(1) or (2) of that Act; and\n (c) subsection 342(3) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 3, does not apply to the lodgment of the agreement.\n\nNote: The general effect of this provision is that unlodged collective agreements (other than union collective agreements) must be lodged within 14 days of being made in order to come into operation. Unlodged union collective agreements must have been approved before the WR Act repeal day and be lodged within 14 days of that approval in order to come into operation. However, late lodgment will not give rise to a civil remedy.\n\n(2) If the collective agreement is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the agreement cannot come into operation because it was lodged after the end of the cut‑off period, to the following:\n\n (b) if the agreement is a union collective agreement or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1) of the WR Act—the organisation or organisations that would have been covered by the agreement if it had come into operation.\n\n5 Modification—limits on variation of a collective agreement that operates from approval for the purpose of passing the no‑disadvantage test\n\n(1) Despite item 3, if the collective agreement is a workplace agreement that operates from approval, the rules in this item also apply.\n\nNote: The general effect of this item is that a collective agreement that operates from approval can only be varied for the purpose of passing the no‑disadvantage test if a variation for that purpose is lodged within a specified period.\n\n (a) a notice under section 346M of the WR Act about whether the agreement passes the no‑disadvantage test has not been given; or\n (b) a notice under subsection 346M(2) of the WR Act stating that the agreement does not pass the no‑disadvantage test has been given but a variation of the agreement, for the purposes of passing that test, has not been made; or\n (c) a notice under subsection 346M(2) of the WR Act stating that the agreement does not pass the no‑disadvantage test has been given and a variation of the agreement, for the purposes of passing that test, has been made but has not been lodged;\n\nthen Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 3, has effect in relation to the collective agreement subject to subitems (3) and (5).\n\n(3) Section 346N of the WR Act, as that section continues to apply because of item 3, has effect in relation to the agreement, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:\n\n(4) The Workplace Authority Director may extend the period referred to in paragraph (3)(b) in relation to a particular agreement in circumstances prescribed by the regulations.\n\n(5) Section 346Q of the WR Act, as that section continues to apply because of item 3, has effect in relation to the agreement, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the agreement as varied passes the no‑disadvantage test unless the variation is lodged within the period referred to in paragraph (3)(a) or (b).\n\nThis Division applies to a variation of a collective agreement under Division 8 of Part 8 of the WR Act, if the variation is made before the WR Act repeal day.\n\nThe following provisions of Part 8 of the WR Act continue to apply in relation to the variation on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules about lodgment and the no‑disadvantage test for variations under Division 8 made before the WR repeal day, subject to the modifications set out in this Division.\n\n (a) the Workplace Authority Director must not consider whether the varied agreement passes the no‑disadvantage test under section 346D of the WR Act, as that section continues to apply because of item 7, unless:\n (i) the variation is lodged before the end of the period (the cut‑off period) of 14 days referred to in subsection 375(1) of that Act; and\n (ii) for a variation of a union collective agreement or a union greenfields agreement—the variation was approved before the WR Act repeal day; and\n (b) subsection 375(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 7, does not apply to the variation.\n\nNote: The general effect of this provision is that unlodged variations of collective agreements must be lodged within 14 days of being approved in order to come into operation. Unlodged variations of union collective agreements and union greenfields agreements must also have been approved before the WR Act repeal day. However, late lodgment will not give rise to a civil remedy.\n\n(2) If the variation is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the variation cannot come into operation because it was lodged after the end of the cut‑off period, to the following:\n\n (b) if the agreement is a union collective agreement or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1) of the WR Act—the organisation or organisations covered by the agreement.\n\n (a) a notice under section 346M of the WR Act about whether the agreement as varied passes the no‑disadvantage test has not been given in relation to the variation; or\n (b) a notice under subsection 346M(2) of the WR Act stating that the agreement as varied does not pass the no‑disadvantage test has been given in relation to the variation, but a variation, for the purposes of passing that test, has not been made; or\n (c) a notice under subsection 346M(2) of the WR Act stating that the agreement as varied does not pass the no‑disadvantage test has been given in relation to the variation and a variation of the agreement, for the purposes of passing that test, has been made but has not been lodged;\n\nthen Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 7, has effect in relation to the variation, on and after the WR Act repeal day, subject to subitems (2) and (4).\n\n(2) Section 346N of the WR Act, as that section continues to apply because of item 7, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:\n\n (ii) the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the agreement as varied; or\n\n(3) The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular variation in circumstances prescribed by the regulations.\n\n(4) Section 346Q of the WR Act, as that section continues to apply because of item 7, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the agreement as varied passes the no‑disadvantage test unless the variation for the purposes of passing that test is lodged within the period referred to in paragraph (2)(a) or (b).\n\n(1) This item applies to a termination of a collective agreement, if the termination has been approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act before that day.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of workplace agreements approved before the WR Act repeal day, subject to the modifications set out in item 11\\. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n (a) the termination does not come into operation unless it is lodged before the end of the 14 day period (the cut‑off period) referred to in subsection 388(1) of the WR Act as that subsection continues to apply because of item 10; and\n (b) subsection 388(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 10, does not apply to the termination.\n\nNote: The general effect of this provision is that unlodged terminations must be lodged within 14 days of being made in order to come into operation. However, late lodgment will not give rise to a civil remedy.\n\n(2) If the termination is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because it was lodged after the end of the cut‑off period, to the following:\n\n (b) if the agreement is a union collective agreement or a multiple‑business agreement that would be a union collective agreement but for subsection 331(1) of the WR Act—the organisation or organisations covered by the agreement.\n\n12 Unilateral termination of collective agreement in manner provided for in agreement general rule—continued application of lodgment provisions\n\n(1) This item applies to a termination of a collective agreement if a declaration to terminate the agreement is lodged under subsection 392(2) of the WR Act (which deals with unilateral termination in the manner provided in the agreement) before the WR Act repeal day.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to unilateral terminations of workplace agreements, if a declaration to terminate the agreement has been lodged before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n(1) This item applies to a collective agreement in relation to which an application has been made under subsection 397A(2) of the WR Act (which deals with termination by the Commission) before the WR Act repeal day.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the agreement on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to applications for terminations of workplace agreements by the Commission made before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the ITEA on and after the WR Act repeal day:\n\n (a) Divisions 1 to 5A of Part 8 (which deal with the making and lodgment of workplace agreements and the no‑disadvantage test);\n (d) Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void);\n\nNote 1: The general effect of this provision is to preserve the Part 8 rules about lodgment, the no‑disadvantage test and prohibited content in relation to ITEAs made before the WR Act repeal day, subject to the modification set out in item 15\\. The rules about making ITEAs after that day are contained in Division 7 of this Part. The rules about variation and termination of ITEAs after that day, and some other rules, are contained in Schedule 3 (which deals with transitional instruments).\n\nNote 2: The rules requiring an ITEA to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).\n\n15 Modification—limits on variation of an ITEA that operates from approval for the purpose of passing the no‑disadvantage test\n\n(1) Despite item 14, if the ITEA is a workplace agreement that operates from approval, the rules in this item also apply.\n\nNote: The general effect of this item is that an ITEA that operates from approval can only be varied for the purpose of passing the no‑disadvantage test if a variation for that purpose is lodged within a specified period.\n\n (a) a notice under section 346M of the WR Act about whether the ITEA passes the no‑disadvantage test has not been given; or\n (b) a notice under subsection 346M(2) of the WR Act stating that the ITEA does not pass the no‑disadvantage test has been given but a variation of the ITEA, for the purposes of passing that test, has not been made; or\n (c) a notice under subsection 346M(2) of the WR Act stating that the ITEA does not pass the no‑disadvantage test has been given and a variation of the ITEA, for the purposes of passing that test, has been made but has not been lodged;\n\nthen Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 14, has effect in relation to the collective agreement subject to subitems (3) and (5).\n\n(3) Section 346N of the WR Act, as that section continues to apply because of item 14, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:\n\n(4) The Workplace Authority Director may extend the period referred to in paragraph (3)(a) in relation to a particular ITEA in circumstances prescribed by the regulations.\n\n(5) Section 346Q of the WR Act, as that section continues to apply because of item 14, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the no‑disadvantage test unless the variation is lodged within the period referred to in paragraph (3)(a) or (b).\n\n(1) This item applies to a variation of an ITEA under Division 8 of Part 8 of the WR Act, if the variation is made before the WR Act repeal day.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the variation on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules about lodgment and the no‑disadvantage test for variations made before the WR Act repeal day of ITEAs, subject to the modification specified in item 17.\n\n (a) a notice under section 346M of the WR Act about whether the ITEA as varied passes the no‑disadvantage test has not been given in relation to the variation; or\n (b) a notice under subsection 346M(2) of the WR Act stating that the ITEA as varied does not pass the no‑disadvantage test has been given in relation to the variation, but a variation, for the purposes of passing that test, has not been made; or\n (c) a notice under subsection 346M(2) of the WR Act stating that the ITEA as varied does not pass the no‑disadvantage test has been given in relation to the variation and a variation of the ITEA, for the purposes of passing that test, has been made but has not been lodged;\n\nthen Division 5A of Part 8 of the WR Act, as that Division continues to apply because of item 16, has effect in relation to the variation, on and after the WR Act repeal day, subject to subitems (2) and (4).\n\n(2) Section 346N of the WR Act, as that section continues to apply because of item 16, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N before the end of:\n\n(3) The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular variation in circumstances prescribed by the regulations.\n\n(4) Section 346Q of the WR Act, as that section continues to apply because of item 16, has effect in relation to the variation, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the no‑disadvantage test unless the variation for the purposes of passing that test is lodged within the period referred to in paragraph (2)(a) or (b).\n\n(1) This item applies to a termination of an ITEA, if the termination is approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act by that time.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs approved before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n(1) This item applies to a termination of an ITEA if a declaration to terminate the ITEA is lodged under subsection 392(2) of the WR Act (which deals with unilateral termination in the manner provided in the ITEA) before the WR Act repeal day.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the termination on and after the WR Act repeal day:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs, if a declaration to terminate is lodged before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n20 Continued application of lodgment provisions where termination by written notice is given before the WR Act repeal day and lodged within 120 days\n\n(1) This item applies to an ITEA, if notice to terminate the ITEA is given in accordance with subsection 393(4) of the WR Act (which deals with unilateral termination by giving written notice) before the WR Act repeal day.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply on and after the WR Act repeal day in relation to the termination of the ITEA:\n\n (b) sections 393, 394, 395, 396, 397, 397A, 398 and 399A (which deal with matters relating to lodgment of terminations, etc.);\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of ITEAs by written notice given before the WR Act repeal day, subject to the modifications set out in subitems (3) to (6). Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n(3) A declaration may only be lodged, in relation to the ITEA under subsection 393(2) of the WR Act, as that subsection continues to apply because of subitem (2), before the end of the period (the cut‑off period) of 120 days beginning on the WR Act repeal day.\n\n(4) Section 396 of the WR Act, as that section continues to apply because of subitem (2), does not apply in relation to the ITEA if the declaration is not lodged before the end of the cut‑off period.\n\n(5) Despite subsection 381(2) and section 398 of the WR Act, as those provisions continue to apply because of subitem (2), the termination of the ITEA does not take effect if the declaration is not lodged before the end of the cut‑off period.\n\n(6) If the termination is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because the declaration was lodged after the end of the cut‑off period, to the following:\n\n(1) Despite the repeal of Part 8 of the WR Act, an ITEA may, during the bridging period, be made under Division 2 of that Part as if that Part had not been repealed.\n\n(2) The following provisions of Part 8 of the WR Act continue to apply in relation to the ITEA on and after the WR Act repeal day:\n\n (a) Divisions 1 to 5A of Part 8 (which deal with the making and lodgment of workplace agreements and the no‑disadvantage test), other than sections 346ZJ and 346ZK (which deal with dismissing an employee if an agreement does not pass that test);\n (d) Division 7 of Part 8 (which deals with content rules), other than sections 353 (which deals with dispute settlement) and 358 (which deals with prohibited content being void);\n\nNote 1: The general effect of this provision is to permit ITEAs to be made during the bridging period and to preserve the Part 8 rules about lodgment, the no‑disadvantage test and prohibited content, subject to the modifications set out in this Division. The rules about variation and termination of ITEAs on and after the WR Act repeal day, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments).\n\nNote 2: The rules requiring an ITEA to include dispute settlement procedures and about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).\n\n(4) If the ITEA is lodged after the end of the bridging period, the Workplace Authority Director must give a written notice, stating that the ITEA cannot come into operation because the ITEA was lodged after the end of the bridging period, to the following:\n\n(2) For the purposes of the application to the ITEA of section 346E of the WR Act, as that section continues to apply because of item 21, enterprise agreements and workplace determinations are taken to be specified in subsection 346E(3) (in addition to the other instruments so specified).\n\n(3) For the purposes of the application to the ITEA of section 346ZB of the WR Act, as that section continues to apply because of item 21, enterprise agreements and workplace determinations (within the meaning of the FW Act) are taken to be specified in subsection 346ZB(5) (in addition to the other instruments so specified).\n\n23 Modification—limits on variation of an ITEA that operates from approval for the purpose of passing the no‑disadvantage test\n\n(1) Despite item 21, if the ITEA is a workplace agreement that operates from approval, the rules in this item also apply.\n\n(2) Section 346N of the WR Act, as that section continues to apply because of item 21, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that a variation for the purposes of passing the no‑disadvantage test set out in section 346D of that Act must be lodged under section 346N of that Act before the end of:\n\n (a) the period of 30 days beginning on the seventh day after the date of issue specified in the notice under subsection 346M(2) of that Act in relation to the ITEA; or\n\n(3) The Workplace Authority Director may extend the period referred to in paragraph (2)(a) in relation to a particular ITEA in circumstances prescribed by the regulations.\n\n(4) Section 346Q of the WR Act, as that section continues to apply because of item 21, has effect in relation to the ITEA, on and after the WR Act repeal day, as if it provided that the Workplace Authority Director must not consider under that section whether the ITEA as varied passes the no‑disadvantage test unless the variation is lodged within the period referred to in paragraph (2)(a) or (b).\n\n(2) For the purposes of the application to the ITEA of subsection 400(5) of the WR Act, as that subsection continues to apply because of item 21, the circumstance referred to in subsection 400(6) of that Act is taken to include a reference to the circumstance referred to in subitem 25(2).\n\n(1) Despite section 342 of the FW Act, a prospective employer does not contravene subsection 340(1) of that Act if, during the bridging period, the person refuses to employ a person merely because the person requires another person to make an ITEA as a condition of engagement, other than in the circumstance referred to in subitem (2).\n\n(1) This item applies if the Workplace Authority Director is required, because of the application of this Schedule to a workplace agreement, to decide, on or after the WR Act repeal day, whether the workplace agreement passes the no‑disadvantage test.\n\n(2) Division 7A of Part 11 of the WR Act continues to apply, in relation to the workplace agreement, as if that Division had not been repealed, with the following modifications:\n\n (a) references to a workplace agreement binding an employer or an employee are taken to include references to a workplace agreement that is a transitional instrument covering an employer or employee;\n (b) references to sections 583 and 585 of the WR Act (other than in section 601D) are taken to include references to section 313 of the FW Act;\n (c) enterprise agreements and workplace determinations (within the meaning of the FW Act) are taken to be specified in the definition of instrument in subsection 601D(5) (in addition to the other instruments so specified);\n (d) the reference in subparagraph 601G(1)(b)(i) to the instrument described in paragraph 601D(2)(a) is taken to include a reference to the instrument described in paragraph 27(2)(a) of this Schedule;\n (e) the reference in subparagraph 601G(1)(b)(ii) to section 598A or clause 27A of Schedule 9 is taken to include a reference to item 9 of Schedule 11;\n (f) the reference in paragraph 601H(1)(b) to the time of transmission is taken to include a reference to the time when the new employer first employs a transferring employee;\n (g) paragraph 601H(2)(d) does not apply if the workplace agreement applies to the new employer because of the operation of section 313 of the FW Act.\n\n27 Employment arrangements if there is a transfer of business and a workplace agreement ceases to operate because it does not pass the no‑disadvantage test\n\n (a) on a particular day (the cessation day), a workplace agreement (the original agreement) ceases to operate under section 346W or 346ZA of the WR Act (as those provisions continue to apply because of the operation of this Schedule) because the original agreement does not pass the no‑disadvantage test; and\n (b) during the period beginning when the original agreement was lodged and ending on the cessation day, the original agreement started to cover a new employer and a transferring employee or transferring employees because of the operation of section 313 of the FW Act.\n\n(2) Despite subsection 346ZB(2) of the WR Act (as that provision continues to apply because of the operation of this Schedule), the new employer and the transferring employee or transferring employees who were covered by the original agreement immediately before the cessation day are taken, on and from the cessation day, to be covered by:\n\n (i) that, but for the original agreement having come into operation, would have covered the old employer and the transferring employee or transferring employees immediately before the termination of the employment of the transferring employee or transferring employees with the old employer; and\n (ii) that was capable of covering the new employer after the time the transferring employee or transferring employees became employed by the new employer under Schedule 11; or\n (b) if there is no instrument of a kind referred to in paragraph (a) in relation to the old employer and one or more of the transferring employees—the designated award (within the meaning of Division 5A of Part 8 of the WR Act) in relation to that employee or those employees.\n\n(3) If, but for the original agreement having come into operation, a redundancy provision would, immediately before the termination of the employment of a transferring employee or transferring employees with the old employer, have applied to the old employer in relation to a transferring employee or transferring employees to who the original agreement applied because of a preservation item (within the meaning of item 9 of Schedule 11) relating to the agreement, the redundancy provision is taken:\n\n (a) to apply to the new employer under item 9 of Schedule 11, on and from the cessation day, in relation to the transferring employee or transferring employees; and\n (b) to continue to so apply to the employer, in relation to the transferring employee or transferring employees, until the earliest of the following:\n (i) the end of the period of 24 months beginning on the first day on which the old employer became covered, under the preservation item, by the redundancy provision;\n (iii) the time when an enterprise agreement, workplace determination or ITEA starts to apply to the transferring employee or transferring employees and the new employer.\n\n(4) If the original agreement is a workplace agreement as varied under Division 8 of Part 8 of the WR Act, the workplace agreement as in force before the variation was lodged is, despite section 346ZE of that Act (as that section continues to apply because of the operation of this Schedule), capable of being an instrument described in paragraph (2)(a).\n\n (a) if the termination of the employment of the transferring employee or transferring employees with the old employer occurred before the WR Act repeal day—any of the following:\n (b) if the termination of the employment of the transferring employee or transferring employees with the old employer occurred on or after the WR Act repeal day—any of the following:\n\nTo avoid doubt, a reference in this Part to a variation under Division 8 of Part 8 of the WR Act does not include a reference to a variation made for the purposes of passing the no‑disadvantage test.\n\nDespite any other provision of Division 5A of Part 8 of the WR Act, as that Division continues to apply because of this Schedule in relation to:\n\nonly one variation for the purposes of passing the no‑disadvantage test of the agreement or variation may be lodged with the Workplace Authority Director on or after the WR Act repeal day.\n\nTo avoid doubt, sections 324A, 368A and 381A of the WR Act continue to have effect for the purposes of a provision of the WR Act that continues to apply because of this Act.\n\n(2) Despite the repeal of section 506 of the WR Act, Subdivision B of Division 7 of Part 8 of that Act (which deals with prohibited content), other than section 358 (which deals with prohibited content being void), continues to apply in relation to the workplace determination on and after the WR Act repeal day as if that section had not been repealed.\n\nNote 1: The general effect of this provision is to preserve the Part 8 rules about prohibited content for workplace determinations made before the WR Act repeal day. The rules about variation and termination of such workplace determinations, and certain other rules, are contained in Schedule 3 (which deals with transitional instruments).\n\nNote 2: The rules about prohibited content being void continue to apply under subitem 4(1) of Schedule 3 (which deals with instrument content rules for transitional instruments).\n\n(1) This item applies to a termination of a workplace determination, if the termination has been approved in accordance with section 386 of the WR Act (which deals with terminations by approval) before the WR Act repeal day, but not lodged in accordance with section 389 of that Act before that day.\n\nNote: Under subsection 506(3) of the WR Act, a workplace determination can only be terminated under Subdivision B of Division 9 of Part 8 of that Act after the determination has passed its nominal expiry date.\n\n(2) Despite the repeal of section 506 of the WR Act, the following provisions of that Act continue to apply in relation to the termination on and after the WR Act repeal day, as if that section had not been repealed:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to terminations of workplace determinations approved before the WR Act repeal day, subject to the modification set out in item 32\\. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\n (a) the termination does not come into operation unless it is lodged before the end of the 14 day period (the cut‑off period) referred to in subsection 388(1) of the WR Act as that subsection continues to apply because of item 31; and\n (b) subsection 388(2) of the WR Act (which deals with a civil remedy for late lodgment), as that subsection continues to apply because of item 31, does not apply to the termination.\n\nNote: The general effect of this provision is that unlodged terminations must be lodged within 14 days of being made in order to come into operation. However, late lodgment will not give rise to a civil remedy.\n\n(2) If the termination is lodged after the end of the cut‑off period, the Workplace Authority Director must give a written notice, stating that the termination cannot come into operation because it was lodged after the end of the cut‑off period, to the following:\n\nunlodged termination, in relation to a workplace determination, means a termination of a workplace determination approved in accordance with section 386 of the WR Act, but not lodged with the Workplace Authority Director under section 389 of that Act as at the WR Act repeal day.\n\n(1) This item applies to a workplace determination in relation to which an application has been made under subsection 397A(2) of the WR Act (which deals with termination by the Commission) before the WR Act repeal day.\n\n(2) Despite the repeal of section 506 of the WR Act, the following provisions of that Act continue to apply in relation to the workplace determination on and after the WR Act repeal day as if that section had not been repealed:\n\nNote: The general effect of this provision is to preserve the Part 8 rules in relation to applications for terminations of workplace determinations by the Commission made before the WR Act repeal day. Terminations after that day are dealt with in Schedule 3 (which deals with transitional instruments).\n\nTo avoid doubt, section 381A of the WR Act continues to apply for the purposes of a provision of that Act that continues to apply because of this Part.\n\nFWA may, before the start of the period referred to in item 2, exercise powers for the purpose of obtaining information to be taken into account in its first annual wage review. Powers that may be exercised include:\n\n(1) In its first annual wage review, FWA does not have to set a full range of special national minimum wages covering all the classes of employees referred to in paragraph 294(1)(b) of the FW Act.\n\n(2) However, FWA must set a special national minimum wage for a class or subclass of those employees in its first annual wage review if the transitional national minimum wage order sets a special national minimum wage order for those employees.\n\nNote: The transitional national minimum wage order is taken to have been made on the FW (safety net provisions) commencement day: see item 12.\n\n(3) If FWA does not set a full range of special national minimum wages in its first annual wage review, the President of FWA must establish a process for the setting of the remaining special national minimum wages in FWA’s second annual wage review.\n\n(5) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (4).\n\n(1) Division 2 (other than as provided in subitem (2)) of Part 7 of the WR Act continues to apply on and after the WR Act repeal day in accordance with this Part. That Division as it continues to apply is the continued AFPCS wages provisions.\n\nNote 1: Part 7 of the WR Act contains the Australian Fair Pay and Conditions Standard. Schedule 4 provides for the continued application of the rest of the Standard during the bridging period. The effect of this Division is not limited just to the bridging period.\n\nNote 2: Schedule 3 provides for the continued application of the rules about the interaction between transitional instruments and the Australian Fair Pay and Conditions Standard.\n\n (a) subsections 182(1) and (2), and Subdivisions H, I, L and M, cease to apply when there are no longer any employees covered by transitional APCSs (see also item 11);\n (b) subsections 182(3) and (4), section 185 and Subdivision G cease to apply at the end of the bridging period (see also item 12;\n\n(3) Without limiting subitem (1) (but subject to subitem (2)), each of the following, as it was under Division 2 of Part 7 of the WR Act immediately before the WR Act repeal day, continues to exist, as a transitional minimum wage instrument, in accordance with this Part on and after that day:\n\n(4) Despite item 6 of Schedule 2, the following provisions of Part 21 of the WR Act do not apply in relation to the continued AFPCS wages provisions:\n\n(1) The provisions of the WR Act that continue to apply because of item 5 have effect as if a reference in the provisions to a workplace agreement included a reference to an enterprise agreement.\n\n (a) a transitional APCS covers an employee if, under sections 204 and 205 of the continued AFPCS wages provisions, the APCS covers the employment of the employee;\n (b) the transitional standard FMW covers an employee if, under section 194 of the continued AFPCS wages provisions, the FMW for the employee is the standard FMW;\n (c) a transitional special FMW covers an employee if, under section 194 of the continued AFPCS wages provisions, the FMW for the employee is that special FMW;\n (d) the transitional default casual loading covers an employee who is described in subsection 185(1) of the continued AFPCS wages provisions.\n\n(2) However, a transitional APCS does not cover an employee (or an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act).\n\n(1) Despite anything in the continued AFPCS wages provisions, a transitional minimum wage instrument cannot be varied or terminated (or otherwise brought to an end) except as referred to in one of the following subitems.\n\n(2) The AFPC can exercise its wage‑setting powers to vary a transitional minimum wage instrument as necessary depending on the outcome of the AFPC’s final wage review under the WR Act. Those exercises of wage‑setting powers take effect at the time determined by the AFPC (which may be a time after the AFPC has ceased to exist).\n\n (a) item 3 of Schedule 5 (which deals with variation and termination of transitional APCSs to take account of the Part 10A award modernisation process); or\n (b) item 9 of Schedule 6 (which deals with variation and termination of transitional APCSs to take account of the enterprise instrument modernisation process).\n\n9 No loss of accrued rights or liabilities when transitional minimum wage instrument terminates or ceases to cover an employee\n\n (a) any right or liability that a person acquired, accrued or incurred before the transitional minimum wage instrument terminated or ceased to cover the person; or\n\n(2) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the transitional minimum wage instrument had not terminated or ceased to cover the person.\n\n(2) For that purpose, Division 3 of Part 2‑6 of the FW Act (other than section 292) applies to a transitional APCS in the same way as it applies to a modern award.\n\n(1) On the FW (safety net provisions) commencement day, the transitional standard FMW, any transitional special FMWs and the transitional default casual loading cease to cover any employees. Subsections 182(3) and (4), and section 185, of the continued AFPCS wages provisions also cease to cover any employees.\n\n(2) On the FW (safety net provisions) commencement day, FWA is taken to have made a national minimum wage order (the transitional national minimum wage order) under Part 2‑6 of the FW Act:\n\n (ii) requires employers to pay employees to whom the national minimum wage applies (see subsection 294(3) of the FW Act) a base rate of pay that at least equals the national minimum wage; and\n (i) sets a special national minimum wage for that class of employees that is the same as the transitional special FMW immediately before that day; and\n (ii) requires employers to pay employees to whom that special national minimum wage applies (see subsection 294(4) of the FW Act) a base rate of pay that at least equals that special national minimum wage; and\n (i) sets the casual loading for award/agreement free employees at the rate that was the transitional default casual loading immediately before that day; and\n (ii) requires employers to pay, to award/agreement free employees who are casual employees, a casual loading that at least equals the casual loading for award/agreement free employees (as applied to the employees’ base rates of pay).\n\nNote: The requirement in paragraph 294(1)(b) of the FW Act that a national minimum wage order must set special national minimum wages for all award/agreement free employees in the classes referred to in that paragraph does not apply to the transitional national minimum wage order.\n\n(3) The hours for which a rate set in the transitional national minimum wage order is payable are the same as the hours for which the transitional standard FMW, transitional special FMW or transitional default casual loading (as the case requires) would have been payable under the continued AFPCS wages provisions.\n\n13 Base rate of pay under agreement‑based transitional instrument must not be less than the modern award rate or the national minimum wage order rate etc.\n\nthe base rate of pay payable to the employee under the transitional instrument (the instrument rate) must not be less than the base rate of pay that would be payable to the employee under the modern award (the award rate) if the modern award applied to the employee.\n\n(2) If the instrument rate is less than the award rate, the transitional instrument has effect in relation to the employee as if the instrument rate were equal to the award rate.\n\n (c) a national minimum wage order would, if the employee were an award/agreement free employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;\n\nthe base rate of pay payable to the employee under the transitional instrument (the instrument rate) must not be less than the employee’s order rate.\n\n(4) If the instrument rate is less than the employee’s order rate, the transitional instrument has effect in relation to the employee as if the instrument rate were equal to the employee’s order rate.\n\n(1) On application by an employer to whom a transitional instrument applies, the FWC may make a determination the effect of which is to phase‑in the effect of increases in base rates of pay that would otherwise take effect on a particular day because of:\n\nNote: Under subitem 22(2) of Schedule 3, AFPCS interaction rules that provide for instruments to prevail over the Australian Fair Pay and Conditions Standard stop applying when the bridging period ends. That may result in an employee becoming entitled to a higher rate of pay under a transitional APCS.\n\n(2) The FWC must not make a determination under this item in relation to an employer unless it is satisfied that the determination is necessary to ensure the ongoing viability of the employer’s enterprise.\n\n(3) Item 13, and subitem 22(2) of Schedule 3, have effect in relation to an employer subject to any determinations the FWC makes under this item.\n\nthe base rate of pay payable to the employee under the enterprise agreement (the agreement rate) must not be less than the base rate of pay that is payable to the employee under the transitional minimum wage instrument (the instrument rate).\n\n(2) If the agreement rate is less than the instrument rate, the enterprise agreement has effect in relation to the employee as if the agreement rate were equal to the instrument rate.\n\nNote: If a transitional instrument applies to an employee who is covered by a transitional minimum wage instrument, then (subject to the continued application of the AFPCS interaction rules) the employee must be paid at least the rate required by the continued AFPCS wages provisions.\n\n (b) a national minimum wage order would, if the employee were an award/agreement free employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;\n\nthe base rate of pay payable to the employee under the Division 2B State award (the award rate) must not be less than the employee’s order rate.\n\n(2) If the award rate is less than the employee’s order rate, the Division 2B State award has effect in relation to the employee as if the award rate were equal to the employee’s order rate.\n\n17 Base rate of pay under Division 2B State employment agreement must not be less than Division 2B State award rate or modern award rate, or the national minimum wage order rate etc.\n\nthe base rate of pay payable to the employee under the agreement (the agreement rate) must not be less than the base rate of pay that would be payable to the employee under the Division 2B State award or the modern award (the award rate) if the Division 2B State award or the modern award applied to the employee.\n\n(2) If the agreement rate is less than the award rate, the Division 2B State employment agreement has effect in relation to the employee as if the agreement rate were equal to the award rate.\n\n (c) a national minimum wage order would, if the employee were an award/agreement free employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;\n\nthe base rate of pay payable to the employee under the Division 2B State employment agreement (the agreement rate) must not be less than the employee’s order rate.\n\n(4) If the agreement rate is less than the employee’s order rate, the Division 2B State employment agreement has effect in relation to the employee as if the agreement rate were equal to the employee’s order rate.\n\n(1) On application by an employer to whom a Division 2B State instrument applies, the FWC may make a determination the effect of which is to phase‑in the effect of increases in base rates of pay that would otherwise take effect on a particular day because of item 16 or 17.\n\n(2) The FWC must not make a determination under this item in relation to an employer unless it is satisfied that the determination is necessary to ensure the ongoing viability of the employer’s enterprise.\n\n (b) the transitional national minimum wage order, or another national minimum wage order, is in operation throughout the period; and\n (c) the employee is an award/agreement free employee throughout the period, and no Division 2B State instrument applies to the employee at any time in the period; and\n (d) the amount that is payable to the employee in relation to the period under the national minimum wage order is less than the amount (the State minimum amount) that would be payable to the employee in relation to the period under the State minimum wages instruments (see subitem (4)).\n\n(2) The national minimum wage order has effect, in relation to the employee and the period, as if it instead required the employer to pay the employee the State minimum amount.\n\n(3) In working out the State minimum amount, any increases of rates (whether because of indexation or otherwise) that would have taken effect after the Division 2B State referral commencement under State minimum wages instruments are to be disregarded.\n\n(4) The State minimum wages instruments, in relation to the employee, are orders, decisions or rulings (however described), as in force immediately before the Division 2B referral commencement:\n\n (b) that provide for employees to be paid a minimum wage or a minimum rate of remuneration, or that affect the entitlement of such employees to be paid a minimum wage or a minimum rate of remuneration.\n\n (a) provide for how amounts referred to in paragraph (1)(d) are to be worked out (for example, in relation to casual employees); or\n (c) provide that certain orders, decisions or rulings (however described) made by a State industrial body are, or are not, State minimum wages instruments as defined in subitem (4).\n\n(1) In an annual wage review, the FWC may make a determination varying terms of a Division 2B State award relating to wages.\n\n(2) For that purpose, Division 3 of Part 2‑6 of the FW Act (other than section 292) applies to terms of a Division 2B State award relating to wages in the same way as it applies to a modern award.\n\n(1) This item applies in relation to a decision whether to make an equal remuneration order under Part 2‑7 of the FW Act during the period:\n\n(2) In deciding whether to make the equal remuneration order, FWA must take into account the outcome of the AFPC’s final wage review under the WR Act.\n\n(1) A term of an instrument or order referred to in subitem (2) has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an equal remuneration order that:\n\nNote: A term of a modern award, an enterprise agreement or an FWA order also has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an equal remuneration order that is made under Part 2‑7 of the FW Act and applies to the employee (see section 306 of the FW Act).\n\n(2) A WR Act equal remuneration order may be varied or revoked by the FWC under subsections 603(1) and (2) of the FW Act as if it were an order made under Part 2‑7 of the FW Act.\n\n(1) A term of an instrument or order referred to in subitem (2) has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an order that:\n\n (a) at a time (the time of transmission), a person (the new employer) became the successor, transmittee or assignee of the whole, or a part, of a business of another person (the old employer); and\n\n(2) The following provisions of Part 11 of the WR Act (as modified by items 5 and 6 of this Schedule) continue to apply in relation to the transmission of business on and after the WR Act repeal day:\n\n (c) Division 4 (which deals with the transmission of collective agreements) (other than subsections 585(2), (3) and (5) and subsections 588(1) and (2));\n\n (a) a reference in those provisions to an award is taken to include a reference to a State reference transitional award; and\n\n(3) The following provisions of Schedule 9 to the WR Act (as modified by items 5 and 6 of this Schedule) continue to apply in relation to the transmission of business on and after the WR Act repeal day:\n\n (d) Part 4 (which deals with the transmission of pre‑reform certified agreements) (other than subclauses 10(4), (5), (6) and (8) and clause 12);\n (e) Part 5 (which deals with the transmission of State transitional instruments) (other than subclauses 19(2), (3) and (5) and clause 21);\n\n(1) If the new employer is covered by a transitional instrument in relation to a transferring employee because of a provision of Part 11 of the WR Act or Schedule 9 to that Act, the new employer remains covered by the transitional instrument, by force of this subitem, until whichever of the following first occurs:\n\n (b) the old employer was not an employer within the meaning of subsection 6(1) of the WR Act immediately before the time of transmission; and\n (c) the new employer was an employer within the meaning of subsection 6(1) of the WR Act at the time of transmission; and\n (d) the transmission of business occurs as part of the process of the employer in relation to the business being transferred becoming an employer within the meaning of subsection 6(1) of the WR Act.\n\n(3) If a transferring employee’s employment with the new employer is covered by a transitional APCS because of Division 6 of Part 11 of the WR Act, the transferring employee’s employment with the new employer remains covered by that APCS until whichever of the following first occurs:\n\n(4) If a redundancy provision applies to the new employer and a transferring employee because of Division 6A of Part 11 of the WR Act or Part 5A of Schedule 9 to that Act, the redundancy provision continues to apply to the new employer and the transferring employee until the earliest of the following:\n\n (a) the end of the period of 24 months from the time that the agreement that contained the redundancy provision ceased operating;\n\nIf:\n\n (a) a redundancy provision applies to the new employer and a transferring employee because of Division 6A of Part 11 of the WR Act or Part 5A of Schedule 9 to that Act; and\n (c) the redundancy provision is detrimental to the transferring employee, in any respect, when compared to the scheme in the modern award;\n\nthen, despite subsection 598A(2) of the WR Act or subclause 27A(2) of Schedule 9 to that Act (as the case requires), the scheme in the modern award prevails over the redundancy provision, to the extent that the redundancy provision is detrimental to the transferring employee.\n\n(1) Subsection 585(1) of the WR Act (as it continues to apply because of subitem 2(2) of this Schedule) and subitem 3(1) of this Schedule (to the extent that it applies in relation to a transitional instrument that is a collective agreement) have effect subject to any order of the Commission under section 590 of the WR Act (as that section continues to apply because of subitem 2(2) of this Schedule).\n\n(2) Subsection 595(1) of the WR Act (as it continues to apply because of subitem 2(2) of this Schedule) and subitem 3(1) of this Schedule (to the extent that it applies in relation to a transitional instrument that is an award or a State reference transitional award) have effect subject to any order of the Commission (other than an order that would have the effect of extending the transmission period).\n\n(3) Subclauses 10(1), (2) and (3) of Schedule 9 to the WR Act (as they continue to apply because of subitem 2(3) of this Schedule) and subitems 3(1) and (2) of this Schedule (to the extent that they apply in relation to a transitional instrument that is a pre‑reform certified agreement) have effect subject to any order of the Commission under clause 14 of Schedule 9 to the WR Act (as that clause continues to apply because of subitem 2(3) of this Schedule).\n\n(4) Subclause 19(1) of Schedule 9 to the WR Act (as it continues to apply because of subitem 2(3) of this Schedule) and subitem 3(1) of this Schedule (to the extent that it applies in relation to a transitional instrument that is a State transitional instrument) have effect subject to any order of the Commission under clause 23 of Schedule 9 to the WR Act (as that clause continues to apply because of subitem 2(3) of this Schedule).\n\n(5) The following provisions of the WR Act (as they continue to apply because of item 2 of this Schedule) are modified by omitting “before, at or after the transfer time” and substituting “not later than 90 days after the WR Act repeal day”:\n\n(1) The notes to the following provisions of the WR Act (as they continue to apply because of subitem 2(2) of this Schedule) are modified by omitting “section 605” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”:\n\n(2) Note 1 to the following provisions of the WR Act (as they continue to apply because of subitem 2(2) of this Schedule) is modified by omitting “section 605” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”:\n\n(3) The notes to the following provisions of the WR Act (as they continue to apply because of subitem 2(3) of this Schedule) are modified by omitting “clause 31” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”:\n\n(4) Note 1 to the following provisions of the WR Act (as they continue to apply because of subitem 2(3) of this Schedule) is modified by omitting “clause 31” and substituting “item 11 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009”:\n\nThis Division applies in relation to a transfer of business and transferable instruments that are transitional instruments.\n\n (a) there is a transfer of business from an employer (the old employer) to another employer (the new employer), as described in subsection 311(1) of the FW Act; and\n (b) the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs on or after the WR Act repeal day.\n\n (a) the termination of a transferring employee’s employment with the old employer occurs before, on or after the WR Act repeal day; or\n\n(1) Subsection 312(1) of the FW Act applies in relation to the transfer of business as if the following paragraph were added at the end:\n\n ; (d) a transitional instrument (other than a workplace agreement or a workplace determination that has not yet come into operation and other than a State reference common rule).\n\n(2) Except as provided in subitems (3) to (5), Part 2‑8 of the FW Act applies in relation to the transfer of business as if:\n\n (b) a reference to a modern award included a reference to an award‑based transitional instrument, other than a State reference common rule.\n\n(3) Paragraph (2)(a) does not apply in relation to the reference to an enterprise agreement in paragraph 312(1)(a) of the FW Act.\n\n(5) The following provisions of Part 2‑8 of the FW Act apply in relation to the transfer of business as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument:\n\n(6) Paragraph 319(1)(b) of the FW Act applies in relation to the transfer of business as if the words “(other than an individual agreement‑based transitional instrument)” were inserted after the words “a transferable instrument”.\n\n (a) there is a transfer of business from an employer (the old employer) to another employer (the new employer) as described in subsection 311(1) of the FW Act; and\n (b) the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs during the bridging period; and\n (c) immediately before the termination of an employee’s employment with the old employer, a redundancy provision applied to the old employer and the employee because of a preservation item or a previous application of this item; and\n\n (a) the termination of the transferring employee’s employment with the old employer occurs before, on or after the WR Act repeal day; or\n\n(3) The redundancy provision applies to the new employer and the transferring employee after the time the transferring employee becomes employed by the new employer.\n\n(4) Subject to subitem (5), the redundancy provision prevails over any other redundancy provision included in any other instrument that would otherwise have effect, to the extent of any inconsistency (even if the provisions in that other instrument might be more beneficial to the transferring employee).\n\n (b) the redundancy provision is detrimental to the transferring employee, in any respect, when compared to the scheme in the modern award;\n\nthen the scheme in the modern award prevails over the redundancy provision, to the extent that the redundancy provision is detrimental to the transferring employee.\n\n(6) The redundancy provision continues to apply to the new employer and the transferring employee until the earliest of the following:\n\n (a) the end of the period of 24 months from the time that the agreement that contained the redundancy provision ceased operating;\n\n (c) a provision of Division 6A of Part 11 of the WR Act or Part 5A of Schedule 9 to that Act (as those provisions continue to apply because of item 2 of this Schedule).\n\n(1) This item applies if one or more redundancy provisions apply to the new employer and a transferring employee under item 9 of this Schedule.\n\n(2) Within 28 days after the time the transferring employee becomes employed by the new employer, the new employer must take reasonable steps to give the transferring employee a written notice that complies with subitem (3).\n\n (c) specify the date on which the period of 24 months, being the period that applies in relation to the provision or provisions under paragraph 9(6)(a) of this Schedule, ends; and\n (d) state that the provision or provisions will continue to apply to the new employer and the transferring employee until that date, or an earlier date in accordance with subitem 9(6) of this Schedule.\n\n(4) Subitem (2) does not apply if an enterprise agreement, workplace determination or ITEA starts to apply to the transferring employee within 14 days after the time the transferring employee becomes employed by the new employer.\n\n(1) If the new employer gives a notice under subitem 10(2) of this Schedule to a transferring employee, the new employer must lodge a copy of the notice with FWA within the period specified in subitem (2). The copy must be lodged in accordance with subitem (3).\n\n (a) if the new employer gives a notice to a transferring employee in respect of a redundancy provision that was included in an ITEA, a pre‑reform AWA or a preserved individual State agreement—the day on which that notice is given; or\n (b) if the new employer gives one or more notices to one or more transferring employees in respect of a redundancy provision that was included in a collective agreement, a pre‑reform certified agreement or a preserved collective State agreement—the earliest day on which a notice was given.\n\nNote: This means that section 29 of the Acts Interpretation Act 1901 (to the extent that it deals with the time of service of documents) does not apply to lodgment of a notice.\n\n (a) there is a transfer of business from an employer (the old employer) to another employer (the new employer) as described in subsection 311(1) of the FW Act; and\n (b) the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs during the bridging period.\n\n (a) the termination of a transferring employee’s employment with the old employer occurs before, on or after the WR Act repeal day; or\n\n(3) Despite the repeal of Division 7 of Part 11 of the WR Act (which deals with an employee’s entitlements under the Australian Fair Pay and Conditions Standard), that Division applies in relation to the transfer of business as if:\n\n (a) a reference in the following provisions to at the time of transmission were a reference to at the time the transferring employee becomes employed by the new employer:\n (b) a reference in the following provisions to before the time of transmission were a reference to before the termination of the transferring employee’s employment with the old employer:\n (c) a reference in subparagraph 599(4)(a)(ii) to at the time of transmission were a reference to at the time of termination of the transferring employee’s employment with the old employer; and\n (d) a reference in subsection 599(4) to after the time of transmission were a reference to after the time of termination of the transferring employee’s employment with the old employer; and\n (e) a reference in subsections 600(1) and 601(1) to before the time of transmission were a reference to before the time the transferring employee becomes employed by the new employer; and\n (f) the reference to section 605 in the note to subsection 599(4) were a reference to subitem 11(5) of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.\n\nThis Division applies in relation to a transfer of business and transferable instruments that are Division 2B State instruments.\n\n (a) there is a transfer of business from an employer (the old employer) to another employer (the new employer), as described in subsection 311(1) of the FW Act; and\n (b) the connection between the old employer and the new employer referred to in paragraph 311(1)(d) of the FW Act occurs on or after the Division 2B referral commencement.\n\n(1) Subsection 312(1) of the FW Act applies in relation to the transfer of business as if the following paragraph were added at the end:\n\n(2) Except as provided in subitems (3) to (5), Part 2‑8 of the FW Act applies in relation to the transfer of business as if:\n\n(3) Paragraph (2)(a) does not apply in relation to the reference to an enterprise agreement in paragraph 312(1)(a) or 319(1)(c) of the FW Act.\n\n(4) Paragraph (2)(b) does not apply in relation to the reference to a modern award in subsection 312(2) or paragraph 319(1)(c) of the FW Act.\n\n(5) The following provisions of Part 2‑8 of the FW Act apply in relation to the transfer of business as if a reference to an enterprise agreement included a reference to a collective Division 2B State employment agreement:\n\n(6) Paragraph 319(1)(b) of the FW Act applies in relation to the transfer of business as if the words “(other than an individual Division 2B State employment agreement)” were inserted after the words “a transferable instrument”.\n\n(7) If a transferable instrument that is a Division 2B State award starts to cover the new employer in relation to the transfer of business as mentioned in paragraph 313(1)(a) of the FW Act, the FWC cannot make an order under paragraph 319(1)(c) of the FW Act.\n\nFor the purposes of the operation of Part 3‑1 of the FW Act in relation to the bridging period, a reference in that Part to the National Employment Standards is taken to include a reference to the Australian Fair Pay and Conditions Standard.\n\nNote: References in Part 3‑1 of the FW Act to the National Employment Standards are found in paragraph 344(a) and subparagraph 354(1)(a)(i) of that Act.\n\n (a) a reference in that Part to an enterprise agreement included a reference to an agreement‑based transitional instrument; and\n\n (a) to an enterprise agreement are found in paragraphs 341(2)(e) and (g), paragraph 344(b), subsection 353(3) and subparagraphs 354(1)(a)(iii) and (b)(ii) of that Act; and\n\n(2) Without limiting subitem (1), paragraph 344(b) of the FW Act has effect in relation to the bridging period as if a term referred to in that paragraph were a term of an agreement‑based transitional instrument or an award‑based transitional instrument that dealt with:\n\n (e) the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave; or\n (h) paid loadings for school‑based apprentices and trainees in lieu of paid annual leave, paid annual leave or paid absence on public holidays.\n\nNote: This means, for example, that an employer is prohibited from exerting undue influence or undue pressure on an employee to have the employee agree to a cashing out of annual leave arrangement under a term of a pre‑reform certified agreement.\n\n (a) a reference in that Part to an enterprise agreement included a reference to a Division 2B State employment agreement; and\n\n (a) to an enterprise agreement are found in paragraphs 341(2)(e) and (g), paragraph 344(b), subsection 353(3) and subparagraphs 354(1)(a)(iii) and (b)(ii) of that Act; and\n\n(1) For the purposes of the application of Part 3‑2 of the FW Act in relation to the dismissal of a person before 1 January 2011, a national system employer is a small business employer if, and only if, the employer’s number of full‑time equivalent employees, worked out under this item, is less than 15 at the earlier of the following times (the notice or dismissal time):\n\nStep 1. For each person who was an employee of the employer at any time during the period of 4 weeks immediately preceding the day on which the notice or dismissal time occurs, work out the number of ordinary hours (including parts of hours) of the person as the employer’s employee during the period.\n\nStep 2. If, during the period, the person took leave to which subitem (4) applies, work out the number of hours of leave to which that subitem applies that the person took during the period.\n\nStep 3. Add together all of the numbers of ordinary hours worked out under step 1, and subtract all of the number of hours of leave worked out under step 2.\n\nStep 4. Divide by 152 the number worked out under step 3. The result is the employer’s number of full‑time equivalent employees at the notice or dismissal time.\n\n> Note: The number 152 is based on the maximum number of hours that a full‑time employee would work in 4 weeks (being 38 hours per week) excluding reasonable additional hours.\n\n(3) For the purposes of step 1 of the method statement in subitem (2), the ordinary hours of work of a person as the employer’s employee are:\n\n (a) to the extent that a modern award, enterprise agreement or workplace determination applied to the person, and the person was not a casual employee—the ordinary hours of work specified or provided for in that award, agreement or determination; or\n (b) to the extent that a transitional instrument applied to the person, and the person was not a casual employee—the person’s ordinary hours of work under item 33 of Schedule 3; or\n (ba) to the extent that a Division 2B State instrument applied to the person, and the person was not a casual employee—the person’s ordinary hours of work under item 48 of Schedule 3A; or\n (d) to the extent that no such award, agreement, determination or instrument applied to the person, and the person was not a casual employee:\n (ii) if the person was a non‑national system employee—what would have been the person’s ordinary hours of work under that section if the person had been a national system employee; or\n\n(5) For the purposes of this item, a national system employer and the employer’s associated entities are taken to be one entity.\n\n2 Employee covered by individual agreement‑based transitional instrument or individual Division 2B State employment agreement is taken not to be an employee who will be, or who is, covered by enterprise agreement in certain circumstances\n\n(1) This item applies to an employee at a particular time if, at that time, an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement covers the employee.\n\n(2) The employee is only taken, for the purposes of the FW Act, to be at that time an employee who is or will be covered by an enterprise agreement or a proposed enterprise agreement, if one of the following applies:\n\n (a) the nominal expiry date of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement has passed;\n (b) a conditional termination of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement has been made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A.\n\nNote: The main effect of this subitem is that an employee who is covered by an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement will not be able to do any of the following until the nominal expiry date of the instrument passes or a conditional termination of the instrument is made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A:\n\n(3) Despite subitem (2), an employer must give a notice of employee representational rights to an employee under section 173 of the FW Act, if the employer would have been required to give such a notice but for subitem (2). However, the notice must explain that a person can only become the employee’s bargaining representative for the agreement when one of the following occurs:\n\n (a) the nominal expiry date of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement passes;\n (b) a conditional termination of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement is made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A.\n\n3 Application for bargaining order where certain collective agreement‑based transitional instruments or collective Division 2B State employment agreements have not passed nominal expiry date\n\nDespite subsection 229(3) of the FW Act, if one or more of the following instruments apply to an employee, or employees, who will be covered by a proposed enterprise agreement:\n\n (f) not more than 90 days before the nominal expiry date of the instrument, or the latest nominal expiry date of those instruments (as the case may be); or\n (g) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) of that Act that employees approve the agreement, but before the agreement is so approved.\n\n4 Industrial action must not be taken before the nominal expiry date of agreement‑based transitional instrument or Division 2B State employment agreement\n\napply, on and after the WR Act repeal day, in relation to an agreement‑based transitional instrument or a Division 2B State employment agreement, in a corresponding way to the way that those provisions apply in relation to an enterprise agreement.\n\n(2) Subitem (1) does not apply to an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement if the employee and employer covered by the instrument or agreement have made a conditional termination in relation to the instrument or agreement under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A.\n\nNote: The effect of this provision is that an employee who is covered by an agreement‑based transitional instrument or a Division 2B State employment agreement may not organise or engage in industrial action until after the nominal expiry date of the instrument or agreement has passed. However, this does not apply to an individual agreement‑based transitional instrument, or an individual Division 2B State employment agreement, in relation to which a conditional termination has been made.\n\n(3) For the purposes of subitem (1), the reference in subsection 417(1) of the FW Act to the day on which an enterprise agreement was approved by the FWC is taken to be a reference to the day on which the agreement‑based transitional instrument or the Division 2B State employment agreement became such an instrument or agreement.\n\n (a) before the WR Act repeal day, an application was made to the Commission or the Court under either of those sections; and\n\nthe Commission or the Court, as the case requires, must consider the application on or after that day as if the WR Act had not been repealed.\n\n(2) To avoid doubt, if the Commission or the Court does not make an order, or grant an injunction, under section 496 or 497 of the WR Act, as those sections continue to apply because of subitem (1), the decision not to make the order or grant the injunction does not affect whether or not the industrial action concerned is protected industrial action under the FW Act.\n\n (a) an order made, or an injunction granted, under either of those provisions that was in operation immediately before the WR Act repeal day continues to have effect on and after that day; and\n (b) a person who, immediately before the WR Act repeal day, was required to comply with the order or injunction must not breach the order or injunction on or after the WR repeal day.\n\nNote: For the continuation of orders or injunctions to prevent or stop industrial action that were made by State industrial bodies or courts of Division 2B referring States, see item 61 of Schedule 3A.\n\nSubsections 421(1), (3) and (4) and item 15 of the table in subsection 539(2) of the FW Act have effect, on and after the WR Act repeal day, as if:\n\n (a) references in those provisions to an order under section 418 included references to an order under subsection 496(1) of the WR Act as referred to in item 5 or 6 of this Schedule; and\n (b) references in those provisions to an order under section 419 included references to an order under subsection 496(2) of the WR Act as referred to in item 5 or 6 of this Schedule; and\n (c) references in those provisions to an order under section 420 included references to an order under subsection 496(6) of the WR Act as referred to in item 5 or 6 of this Schedule.\n\n(1) This item applies if one of the following is in force in relation to a proposed collective agreement under the WR Act immediately before the WR Act repeal day:\n\n (a) an order terminating a bargaining period under subsection 430(1) of the WR Act that was made on the ground, or on grounds including the ground, that the Commission was satisfied as mentioned in subsection 430(3) of that Act;\n (b) a declaration by the Minister under section 498 of the WR Act (which deals with industrial action endangering life, etc.).\n\n(2) Divisions 3 and 5 of Part 2‑5 of the FW Act have effect, on and after the WR Act repeal day, in relation to the making of an industrial action related workplace determination, as if:\n\n (a) references to a termination of industrial action instrument included references to the order or declaration referred to in subitem (1); and\n (c) references to the bargaining representatives for a proposed enterprise agreement included references to the persons who were, immediately before the WR Act repeal day, negotiating parties for the proposed collective agreement; and\n (d) references to an employer or employee that would have been covered by a proposed enterprise agreement included references to an employer or employee, as the case requires, that would have been bound by the proposed collective agreement; and\n (e) the reference in paragraph 275(g) to bargaining representatives complying with the good faith bargaining requirements included a reference to the negotiating parties genuinely trying to reach agreement in relation to the proposed collective agreement.\n\nNote: The effect of this provision is that FWA may make an industrial action related workplace determination under the FW Act based on conduct, orders and declarations in relation to negotiations for a proposed collective agreement under the WR Act.\n\nIf:\n\n (a) before the WR Act repeal day, an application was made under Division 2 of Part 9 of the WR Act for the suspension or termination of a bargaining period; and\n\nthe Commission must not, on or after that day, deal with or continue to deal with the application, or any appeal or review relating to the application.\n\nAn order under Division 2 of Part 9 of the WR Act suspending or terminating a bargaining period is of no effect on or after the WR Act repeal day, other than as referred to in item 8.\n\nA notice of intention to take industrial action given under section 441 of the WR Act before the WR Act repeal day is of no effect on or after that day.\n\nThe Commission must not, on or after the WR Act repeal day, deal with or continue to deal with any application, appeal or review relating to a ballot order.\n\n(1) A ballot order under subsection 451(1) of the WR Act, or a ballot or authorisation under such an order, has no effect on or after the WR Act repeal day.\n\nNote: This means that no protected action ballots can be conducted or continued on or after the WR Act repeal day, and any nomination in a ballot order of a person as an authorised ballot agent, or as an authorised independent adviser, will also have no effect.\n\n14 Continuation of sections 476, 477 and 479 of the WR Act for protected action ballots completed before WR Act repeal day\n\nThe following provisions of Part 9 of the WR Act continue to apply in relation to a ballot completed before the WR Act repeal day as if that Part had not been repealed:\n\nNote: A person must not contravene subsection 477(1) or (4) of the WR Act as those sections continue to apply because of this item (see item 14 of Schedule 16).\n\n(1) A person who is a bargaining representative for a proposed enterprise agreement may apply to FWA for an order under this item if, before the WR Act repeal day, the person was an applicant specified in an order for a protected action ballot in relation to a proposed collective agreement.\n\n(3) FWA may order that industrial action that was authorised under section 478 of the WR Act in relation to the proposed collective agreement is taken to be authorised, in relation to the proposed enterprise agreement, by a protected action ballot under subsection 459(1) of the FW Act, if FWA is satisfied that:\n\n (a) on or after 1 March 2009, the person organised or engaged in industrial action, for the purpose of supporting or advancing claims in relation to the proposed collective agreement; and\n (d) no collective agreement covering the employees whose employment would have been subject to the proposed collective agreement was approved by those employees before the WR Act repeal day; and\n\n(4) Industrial action that is taken to be authorised because of the operation of subitem (3) is only taken to be authorised in relation to employees who:\n\n (b) were relevant employees (within the meaning of section 450 of the WR Act) in relation to the proposed collective agreement.\n\n(5) For the purposes of subsection 414(3) of the FW Act, the results of the protected action ballot under that Act are taken to have been declared on the day of the order.\n\nSections 482 and 483 of the WR Act continue to apply on and after the WR Act repeal day in relation to a ballot ordered under Division 4 of Part 9 of the WR Act.\n\nAn authorised ballot agent in relation to a protected action ballot conducted before the WR Act repeal day must keep the following for a period of one year after the day on which the ballot closed:\n\n17 Restriction on when protected action ballot orders may be made—certain agreement‑based transitional instruments and collective Division 2B State employment agreements that cover employees who will be covered by proposed enterprise agreement\n\n(1) This item applies if one or more of the following instruments cover the employees who will be covered by a proposed enterprise agreement:\n\n(2) An application for a protected action ballot order must not be made under subsection 437(1) of the FW Act earlier than 30 days before the nominal expiry date of the instrument, or the latest nominal expiry date of those instruments (as the case may be).\n\n(3) To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.\n\nPart 5—Effect of conduct engaged in while bargaining for WR Act collective agreement or collective State employment agreement\n\n (a) before the WR Act repeal day, a bargaining representative for a proposed enterprise agreement engaged in conduct in relation to a proposed collective agreement; and\n (c) the employment of the employees who would be covered by the proposed enterprise agreement would have been subject to the proposed collective agreement, had it been made; and\n (d) the employers who would be covered by the proposed enterprise agreement would have been bound by the proposed collective agreement, had it come into operation.\n\n (a) before the Division 2B referral commencement, a bargaining representative for a proposed enterprise agreement engaged in conduct in relation to a proposed collective State employment agreement; and\n (b) immediately before that day, the collective State employment agreement had not been made, or had been made but had not been lodged (however described) under a State industrial law of a Division 2B referring State; and\n (c) the employment of the employees who would be covered by the proposed enterprise agreement would have been subject to the proposed collective State employment agreement, had it come into operation; and\n (d) the employers who would be covered by the proposed enterprise agreement would have been bound by the proposed collective State employment agreement, had it come into operation.\n\n(2) If this item applies because of subitem (1) or (1A), the FWC may take into account the conduct referred to in that subitem:\n\n (a) in deciding whether it is reasonable in all the circumstances to make a bargaining order or a scope order in relation to the proposed enterprise agreement; and\n (b) in deciding which terms to include in a workplace determination that relates to the proposed enterprise agreement; and\n (c) in deciding under Part 3‑3 of the FW Act (which deals with industrial action) whether a bargaining representative is genuinely trying to reach an agreement in relation to the proposed enterprise agreement; and\n (d) in deciding under subsection 423(2) or (3) of that Act whether protected industrial action that relates to the proposed enterprise agreement is causing, or threatening to cause, significant economic harm to a person.\n\n(1) If industrial action (whether or not protected action) is engaged in before the commencement of Part 3‑3 of the FW Act then:\n\n (a) Division 9 of Part 9 of the WR Act continues to apply, on and after the WR Act repeal day, in relation to the industrial action; and\n\n (a) industrial action (whether or not protected action) is engaged in during a shift or other period of work that is taken to be a day because of subsection 507(3) of the WR Act; and\n\n (c) Division 9 of Part 9 of the WR Act continues to apply, on and after the WR Act repeal day, in relation to the industrial action until the end of that shift or other period; and\n (d) Part 3‑1 and Division 9 of Part 3‑3 of the FW Act do not apply in relation to the industrial action engaged in during that shift or period.\n\n (a) the reference in paragraph 470(4)(c), subsection 471(2) and paragraph 474(2)(c) of that Act to a modern award included a reference to an award‑based transitional instrument and a Division 2B State award; and\n (b) the reference in those provisions to an enterprise agreement included a reference to an agreement‑based transitional instrument and a Division 2B State agreement.\n\nA permit that is in force immediately before the WR Act repeal day under Part 15 of the WR Act, or that comes into force on or after that day under that Part, has effect:\n\nThe reference in subsections 481(1) and 483A(1) of the FW Act to a suspected contravention of this Act or a term of a fair work instrument is taken to include a reference to a suspected contravention of any of the following:\n\nA notice given under subsection 748(5) of the WR Act to produce, or allow access to, records on a day, or days, on or after the WR Act repeal day has effect, on and after the WR Act repeal day, as if it were given under subsection 483(1) of the FW Act.\n\n (a) the reference in paragraph 510(1)(a) of that Act to the permit holder being found, in proceedings under this Act, to have contravened subsection 503(1) included a reference to the permit holder being found, in proceedings under the WR Act, as in force from time to time, to have contravened section 768 of the WR Act; and\n (b) the reference in paragraph 510(1)(d) of the FW Act to “this Act” (being the FW Act) included a reference to the WR Act as in force from time to time and the reference in that paragraph to “this Part” (being Part 3‑4 of the FW Act) included a reference to Part 15 of the WR Act; and\n (c) the reference in paragraph 510(4)(a) of the FW Act to the FWC not having previously taken action under subsection (1) against the permit holder included a reference to the Registrar not having taken action against the permit holder under subsection 744(4) of the WR Act, as in force from time to time; and\n (d) the references in paragraphs 510(4)(b) and (c) of the FW Act to the FWC having taken action under subsection (1) against the permit holder included a reference to the Registrar having taken action against the permit holder under subsection 744(4) of the WR Act, as in force from time to time.\n\n(1) An instrument that, because of this Schedule, has effect under the FW Act continues, in addition to that effect, to have effect under the WR Act for the purposes of item 11 of Schedule 2.\n\n(2) Any suspension or revocation of, or imposition of conditions on, an entry permit under the WR Act (as it continues to apply because of item 11 of Schedule 2) is also taken to have been done under the FW Act.\n\n(3) Despite item 11 of Schedule 2, disputes about the operation of Part 15 of the WR Act that could, because of that item, have been dealt with under section 772 of that Act, may be dealt with only by the FWC under section 505 of the FW Act.\n\n (a) as if the reference in subsection (1) of that section to “this Part” (being Part 3‑4 of the FW Act) were a reference to Part 15 of the WR Act; and\n\nSubsection 524(2) of the FW Act (which deals with circumstances allowing stand down) applies in relation to a transitional instrument as if a reference to an enterprise agreement included a reference to a transitional instrument.\n\nDespite item 4 of Schedule 3, subsection 691A(5) of the WR Act does not continue to apply in relation to WR Act instruments that become transitional instruments.\n\nNote: This means that a provision of a transitional instrument that is a provision of the kind described in subparagraph 691A(1)(c)(ii) of the WR Act (being a provision requiring an employer to apply to a third party for authorisation to stand down employees in certain circumstances) has effect on and after the WR Act repeal day.\n\nSubsection 524(2) of the FW Act (which deals with circumstances allowing stand down) applies in relation to a Division 2B State instrument as if a reference to an enterprise agreement included a reference to a Division 2B State instrument.\n\nNote 2: An injunction may not be granted in relation to a contravention of an award‑based transitional instrument (see item 17).\n\nNote 2: An injunction may not be granted in relation to a contravention of an agreement‑based transitional instrument (see item 17).\n\n3 Compliance with obligations relating to conditional terminations of individual agreement‑based transitional instruments\n\n(2) A bargaining representative who applies to the FWC for approval of an enterprise agreement must not contravene subitem 18(7) of Schedule 3.\n\nNote 2: An injunction may not be granted in relation to a contravention of a Division 2B State employment agreement instrument (see item 17).\n\n4B Compliance with obligations relating to conditional terminations of individual Division 2B State employment agreements\n\n(2) A bargaining representative who applies to the FWC for approval of an enterprise agreement must not contravene subitem 25(7) of Schedule 3A.\n\nA person must not contravene section 182 or 185 of the WR Act as that section continues to apply under item 5 of Schedule 9.\n\nNote 2: An injunction may not be granted in relation to a contravention of section 182 or 185 of the WR Act (see item 17).\n\n(2) A person must not contravene Division 6 of Part 12 of the WR Act as it continues to apply under item 3 of Schedule 4.\n\n(2) A person must not contravene an order under item 30 of Schedule 3A that continues the effect of terms of a Division 2B State award relating to long service leave.\n\n(1) A person must not contravene any of the following provisions of the WR Act as the provision continues to apply because of Schedule 8:\n\n(2) A person must not contravene any of the following provisions of the WR Act as the provision continues to apply because of Schedule 8:\n\n(3) A person must not contravene subsection 334(2) of the WR Act as that subsection continues to apply because of Schedule 8.\n\n(4) A person must not contravene subsection 365(1), 366(1), 400(3), 400(5) or 401(1) of the WR Act as those subsections continue to apply because of Schedule 8.\n\n(1) This item applies to the following provisions of the WR Act as the provisions continue to apply because of Schedule 8:\n\n(2) Subdivision C of Division 11 of Part 8 of the WR Act continues to apply, on and after the WR Act repeal day, in relation to a contravention of the provision.\n\nA person must not contravene a term of a WR Act equal remuneration order as it continues to apply because of item 4 of Schedule 10.\n\n(1) A person must not contravene subsection 599(4) of the WR Act as it continues to apply because of subitem 2(2) of Schedule 11.\n\n(2) A person must not contravene any of the following provisions of the WR Act as they continue to apply because of subitem 2(2) or (3) of Schedule 11:\n\n12 Non‑disclosure obligation—information acquired under FW Act that identifies an employee as an employee to whom an individual agreement‑based transitional instrument applies\n\n (a) is the protected action ballot agent for a protected action ballot (other than the Australian Electoral Commission); or\n (c) acquires information from, or on behalf of, a person referred to in paragraph (a) or (b) in the course of performing functions or exercising powers for the purposes of the ballot;\n\nmust not disclose to any other person information about an employee if the information will identify whether or not the employee is covered by an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement.\n\n (a) the disclosure is made in the course of performing functions or exercising powers for the purposes of the protected action ballot; or\n\nNote 1: Personal information given to the FWC, the Australian Electoral Commission or another protected action ballot agent under Division 8 of Part 3‑3 of the FW Act may be regulated under the Privacy Act 1988.\n\nNote 2: The President of the FWC may, in certain circumstances, disclose, or authorise the disclosure of, information acquired by the FWC or a member of the staff of the FWC, in the course of performing functions or exercising powers as the FWC (see section 655 of the FW Act).\n\n(1) A person who acquires protected ballot information in the course of performing functions or exercising powers under this Act, the WR Act or the FW Act must not disclose that information to any other person if the information will identify:\n\n (ii) a relevant employee who was one of the prescribed number of employees supporting an application for a ballot order (as required by subsection 451(4) of the WR Act); or\n (iv) a person who is covered by an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement.\n\n (a) the disclosure is made for the purposes of performing functions or exercising powers under this Act, the WR Act (as it continues to apply under this Act) or the FW Act; or\n\nNote 2: The President of the FWC may, in certain circumstances, disclose, or authorise the disclosure of, information acquired by the FWC or a member of the staff of the FWC, in the course of performing functions or exercising powers as the FWC (see section 655 of the FW Act).\n\nA person must not contravene subsection 477(1) or (4) of the WR Act as those subsections continue to apply because of item 14 of Schedule 13.\n\nNote 2: An injunction may not be granted in relation to a contravention of a continuing Schedule 6 instrument (see item 17).\n\n (b) the table in subsection 539(2) included the table below (with the references in column 1 of the table below to be read as references to provisions of this Schedule (being Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009)); and\n (c) a reference to a fair work instrument in that Part included a reference to a transitional instrument, a Division 2B State instrument, a transitional minimum wage instrument or a continuing Schedule 6 instrument; and\n (d) the reference in subsection 540(3) to items 4, 7 and 14 in the table in subsection 539(2) included a reference to items 40, 44C, 44H, 44J and 44K in the table below; and\n (da) the reference in subsections 540(3) and (4) to a term in an enterprise agreement that would be an outworker term if it were included in a modern award included:\n (i) a reference to a term in a collective agreement‑based transitional instrument that would be an outworker term if it were included in an award‑based transitional instrument; and\n (ii) a reference to a term in a collective Division 2B State employment agreement that would be an outworker term if it were included in a Division 2B State award; and\n\n

Standing, jurisdiction and maximum penalties

Item

Column 1
Civil remedy provision

Column 2
Persons

Column 3
Courts

Column 4
Maximum penalty

38

2(1) (other than in relation to a contravention or proposed contravention of an outworker term)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

39

2(1) (in relation to a contravention or proposed contravention of an outworker term)

(a) an outworker;

(b) an employer;

(c) an outworker entity;

(d) an employee organisation;

(e) an employer organisation;

(f) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

40

2(2) (in relation to a contravention or proposed contravention of a collective agreement‑based transitional instrument other than a contravention or proposed contravention of a term that would be an outworker term if it were included in an award‑based transitional instrument)

(a) an employee;

(b) an employer;

(c) an employee organisation to which the collective agreement‑based transitional instrument concerned applies;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

40A

2(2) (in relation to a contravention or proposed contravention of a term in a collective agreement‑based transitional instrument that would be an outworker term if it were included in an award‑based transitional instrument)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

41

2(2) (in relation to a contravention of an individual agreement‑based transitional instrument)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

42

3(1)

(a) an employee who the proposed enterprise agreement will cover;

(b) a bargaining representative for the proposed enterprise agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

30 penalty units

43

3(2)

(a) an employee who the proposed enterprise agreement will cover;

(b) a bargaining representative for the proposed enterprise agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

30 penalty units

44

4

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44A

4A(1) (other than in relation to a contravention or proposed contravention of an outworker term)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44B

4A(1) (in relation to a contravention or proposed contravention of an outworker term)

(a) an outworker;

(b) an employer;

(c) an outworker entity;

(d) an employee organisation;

(e) an employer organisation;

(f) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44C

4A(2) (in relation to a contravention or proposed contravention of a collective Division 2B State employment agreement other than a contravention or proposed contravention of a term that would be an outworker term if it were included in a Division 2B State award)

(a) an employee;

(b) an employer;

(c) an employee organisation to which the collective Division 2B State employment agreement concerned applies;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44D

4A(2) (in relation to a contravention or proposed contravention of a term in a collective Division 2B State employment agreement that would be an outworker term if it were included in a Division 2B State award)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44E

4A(2) (in relation to a contravention of an individual Division 2B State employment agreement)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44F

4B(1)

(a) an employee who the proposed enterprise agreement will cover;

(b) a bargaining representative for the proposed enterprise agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

30 penalty units

44G

4B(2)

(a) an employee who the proposed enterprise agreement will cover;

(b) a bargaining representative for the proposed enterprise agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

30 penalty units

44H

4C(1)

(a) an employee;

(b) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the agreement‑
based transitional instrument;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44J

4C(2)

(a) an employee;

(b) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the Division 2B State employment agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

44K

4C(3)

(a) an employee;

(b) an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the enterprise agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

45

5

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

46

6(1)

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

47

6(2)

(a) an employee;

(b) a registered employee association;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

48

7

(a) an employee;

(b) an outworker;

(c) an employee organisation;

(d) an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the take‑home pay order relates;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

48A

7A(1)

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

48B

7A(2)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

49

8(1)

(a) an employee;

(b) an employee organisation;

(c) an inspector

(d) if the agreement is an ITEA—a bargaining agent

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

30 penalty units

50

8(2)

(a) an employee;

(b) an employee organisation;

(c) an inspector;

(d) if the agreement is an ITEA—a bargaining agent

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

51

8(3)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector;

(e) if the agreement is an ITEA—a bargaining agent

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

30 penalty units

52

8(4)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector;

(e) if the agreement is an ITEA—a bargaining agent

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

53

10

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

54

11(1)

(a) a transferring employee;

(b) the new employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

55

11(2), (3) and (4)

(a) a transferring employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

56

11(5)

(a) a transferring employee;

(b) the new employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

57

12(1)

(a) an employee;

(b) an employer;

(c) an applicant for the protected action ballot order;

(d) the protected action ballot agent;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2)

30 penalty units

58

13(1)

(a) an employee;

(b) an employer;

(c) an applicant for the ballot order to which the protected ballot information relates;

(d) the authorised ballot agent in relation to the ballot to which the protected ballot information relates;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2)

30 penalty units

59

14

(a) an employee;

(b) an employer;

(c) an applicant for the ballot order;

(d) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2)

30 penalty units

60

15(1) (other than in relation to a contravention of an outworker term in a continuing Schedule 6 instrument)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

61

15(1) (in relation to a contravention of an outworker term in a continuing Schedule 6 instrument)

(a) an outworker;

(b) an employer;

(c) an outworker entity;

(d) an employee organisation;

(e) an employer organisation;

(f) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) an eligible State or Territory court

60 penalty units

62

15(2)

(a) a transferring transitional employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Circuit and Family Court of Australia (Division 2)

60 penalty units

\n```\n\n(2) For the purposes of table items 38, 39, 40, 40A, 44A, 44B, 44C, 44D, 48, 60 and 61 in subitem (1), and the operation of subsections 540(3) and (4) of the FW Act in relation to those table items:\n\n (i) references in the section to a modern award were references to an award‑based transitional instrument, a Division 2B State award or a continuing Schedule 6 instrument; and\n\n(3) Section 570 of the FW Act applies in relation to proceedings that relate to any of items 2 to 8 or 10 to 15 of this Schedule as if the reference to this Act (being the FW Act) were a reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.\n\n(4) Section 571 of the FW Act applies as if the reference to a pecuniary penalty imposed under this Act (being the FW Act) were a reference to a pecuniary penalty imposed in relation to any of items 2 to 8 or 10 to 15 of this Schedule.\n\nThe Federal Court and the Federal Circuit and Family Court of Australia (Division 2) may not make an order under Division 2 of Part 4‑1 of the FW Act granting an injunction, or an interim injunction, to prevent, stop or remedy the effects of a contravention of:\n\nNote: Inspectors may exercise powers for the other compliance purposes set out in subsection 706(1) of the FW Act before the FW (safety net provisions) commencement day.\n\n(1) The regulations may provide for civil penalties for contravention of this Act or of the WR Act as the WR Act continues to apply because of this Act.\n\n> Note: A Judge (including the Chief Justice) who is not assigned to either Division of the Court may exercise the powers of the Court in either Division (see subsection 15(1C)).\n\nAdd:\n\n (2) For the purposes of this Act, a person who is performing duties and exercising powers under subsection (1) is taken not to be assigned to either Division of the Court.\n\n> Note: A Judge (including the Chief Justice) who is not assigned to either Division of the Court may exercise the powers of the Court in either Division (see subsection 15(1C)).\n\n> Note: Under section 562 of the Fair Work Act 2009, jurisdiction is required to be exercised in the Fair Work Division of the Court in relation to matters arising under that Act.\n\n (b) jurisdiction that is incidental to such jurisdiction (including jurisdiction that is required by any other Act to be exercised in the Fair Work Division).\n (5) If the Court’s jurisdiction is required to be exercised in both Divisions in relation to particular proceedings or proceedings of a particular kind, the Chief Justice may, at any time (whether before or after the proceedings are instituted), give a direction about the allocation to one or other Division of those proceedings or proceedings of that kind.\n\n (1A) A Judge who is assigned to a Division of the Court must exercise, or participate in exercising, the powers of the Court only in that Division, except as set out in subsection (1B).\n (1B) The Chief Justice may arrange for a Judge who is assigned to a particular Division of the Court to exercise, or participate in exercising, the powers of the Court in the other Division if the Chief Justice considers that circumstances make it desirable to do so.\n (1C) To avoid doubt, a Judge who is not assigned to either Division of the Court may exercise, or participate in exercising, the powers of the Court in either Division.\n (1D) Subsection (1A) does not affect the validity of any exercise of powers by the Court otherwise than in accordance with that subsection.\n\nNote 2: The following heading to subsection 15(2) is inserted “Judges who are also Judges of the Supreme Court of the ACT and the Northern Territory”.\n\nAdd:\n\n (2) If an arrangement under subsection (1) is in force in relation to the performance by an employee of an agency or organisation of a function on behalf of the Court, the employee may perform that function despite any other provision of this Act or any other law of the Commonwealth.\n (3) A function performed on behalf of the Court in accordance with an arrangement under subsection (1) has effect as if the function had been performed by the Court.\n\n (1) For the purpose of the organisation and conduct of the business of the Federal Magistrates Court, the Federal Magistrates Court comprises 2 Divisions:\n\n> Note: Under section 566 of the Fair Work Act 2009, jurisdiction is required to be exercised in the Fair Work Division of the Federal Magistrates Court in relation to matters arising under that Act.\n\n (b) jurisdiction that is incidental to such jurisdiction (including jurisdiction that is required by any other Act to be exercised in the Fair Work Division).\n (5) If the Court’s jurisdiction is required to be exercised in both Divisions in relation to particular proceedings or proceedings of a particular kind, the Chief Federal Magistrate may, at any time (whether before or after the proceedings are instituted), give a direction about the allocation to one or other Division of those proceedings or proceedings of that kind.\n\n (3A) A Federal Magistrate who is assigned to a Division of the Federal Magistrates Court must exercise, or participate in exercising, the powers of the Federal Magistrates Court only in that Division, except as set out in subsection (3B).\n (3B) The Chief Federal Magistrate may arrange for a Federal Magistrate who is assigned to a particular Division of the Federal Magistrates Court to exercise, or participate in exercising, the powers of the Federal Magistrates Court in the other Division if the Chief Federal Magistrate considers that circumstances make it desirable to do so.\n (3C) To avoid doubt, a Federal Magistrate who is not assigned to either Division of the Federal Magistrates Court may exercise, or participate in exercising, the powers of the Federal Magistrates Court in either Division.\n (3D) Subsection (3A) does not affect the validity of any exercise of powers by the Federal Magistrates Court otherwise than in accordance with that subsection.\n\nNote 2: The following heading to subsection 12(4) is inserted “Assignment of Federal Magistrates to locations or registries”.\n\n> Note: A Federal Magistrate (including the Chief Federal Magistrate) who is not assigned to either Division of the Federal Magistrates Court may exercise the powers of the Federal Magistrates Court in either Division (see subsection 12(3C)).\n\nAdd:\n\n (3) For the purposes of this Act, a person who is acting as Chief Federal Magistrate under subclause (1) is taken not to be assigned to either Division of the Federal Magistrates Court.\n\n> Note: A Federal Magistrate who is not assigned to either Division of the Federal Magistrates Court may exercise the powers of the Federal Magistrates Court in either Division (see subsection 12(3C)).\n\nOmit “Conciliation and Arbitration Act 1904,”, substitute “Fair Work Act 2009, the Fair Work (Registered Organisations) Act 2009, the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009,”.\n\n (b) in relation to proceedings that are pending in the Federal Court immediately before that Part commences, as if the reference in subsection 13(2) of the Federal Court of Australia Act 1976 (as inserted by item 6 of this Schedule) to “be instituted, heard and determined” were a reference to “, after item 6 of Schedule 17 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 commences, be heard and determined”.\n\n(2) A person who is a Judge (other than the Chief Justice) of the Federal Court immediately before Part 1 of this Schedule commences, is taken, for all purposes, not to have been assigned under section 6A of the Federal Court of Australia Act 1976 (as inserted by item 3 of this Schedule) to either Division of the Federal Court.\n\nNote: A Judge (including the Chief Justice) who is not assigned to either Division of the Court may exercise the powers of the Court in either Division (see subsection 15(1C) of the Federal Court of Australia Act 1976, as inserted by item 7 of this Schedule).\n\n (b) in relation to proceedings that are pending in the Federal Magistrates Court immediately before that Part commences, as if the reference in subsection 10A(2) of the Federal Magistrates Act 1999 (as inserted by item 12 of this Schedule) to “be instituted, heard and determined” were a reference to “, after item 12 of Schedule 17 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 commences, be heard and determined”.\n\n(2) A person who is a Federal Magistrate (other than the Chief Federal Magistrate) of the Federal Magistrates Court immediately before Part 2 of this Schedule commences, is taken, for all purposes, not to have been assigned under clause 1A of Schedule 1 to the Federal Magistrates Act 1999 (as inserted by item 16 of this Schedule) to either Division of the Federal Magistrates Court.\n\nNote: A Federal Magistrate (including the Chief Federal Magistrate) who is not assigned to either Division of the Federal Magistrates Court may exercise the powers of the Federal Magistrates Court in either Division (see subsection 12(3C) of the Federal Magistrates Act 1999, as inserted by item 13 of this Schedule).\n\nThe jurisdiction conferred on the Federal Court under item 21 is to be exercised in the Fair Work Division of the Federal Court if:\n\n (a) an application is made to the Federal Court under this Act or the WR Act as it continues to apply because of this Act; or\n (b) a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Act or the WR Act as it continues to apply because of this Act; or\n (c) a declaration is sought under section 21 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (d) an injunction is sought under section 23 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (e) a prosecution is instituted in the Federal Court under this Act or the WR Act as it continues to apply because of this Act; or\n (f) an appeal is instituted in the Federal Court from a judgment of the Federal Circuit and Family Court of Australia (Division 2) or a court of a State or Territory in a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (g) proceedings in relation to a matter arising under this Act, or the WR Act as it continues to apply because of this Act, are transferred to the Federal Court from the Federal Circuit and Family Court of Australia (Division 2); or\n (h) the Federal Circuit and Family Court of Australia (Division 2) or a court of a State or Territory states a case or reserves a question for the consideration of the Federal Court in a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (i) the President refers, under section 608 of the FW Act, a question of law to the Federal Court in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (j) the High Court remits a matter arising under this Act or the WR Act as it continues to apply because of this Act to the Federal Court.\n\nTo avoid doubt, nothing in this Act limits the Federal Court’s powers under section 21, 22 or 23 of the Federal Court of Australia Act 1976.\n\n(1) An appeal lies to the Federal Court from a decision of an eligible State or Territory court exercising jurisdiction under this Act or the WR Act as it continues to apply because of this Act.\n\n(2) It is not necessary to obtain the leave of the Federal Court, or the court appealed from, in relation to an appeal under subitem (1).\n\nJurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in relation to any civil matter arising under:\n\nJurisdiction conferred on the Federal Circuit and Family Court of Australia (Division 2) under item 25 is to be exercised in the Fair Work Division of the Court if:\n\n (b) an injunction is sought under section 140 of the Federal Circuit and Family Court of Australia Act 2021 in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (c) a declaration is sought under section 141 of the Federal Circuit and Family Court of Australia Act 2021 in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or\n (d) proceedings in relation to a matter arising under this Act, or the WR Act as it continues to apply because of this Act, are transferred to the Federal Circuit and Family Court of Australia (Division 2) from the Federal Court; or\n (e) the High Court remits a matter arising under this Act or the WR Act as it continues to apply because of this Act to the Federal Circuit and Family Court of Australia (Division 2).\n\nTo avoid doubt, nothing in this Act limits the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 139, 140 or 141 of the Federal Circuit and Family Court of Australia Act 2021.\n\nis taken, after that time, to be an appointment, under section 626 of the FW Act, to the office of FWA mentioned in the table item.\n\n

Appointments to FWA

Item

Column 1

Office of the Commission

Column 2

Office of FWA

Column 3

Commencement time

1

President of the Commission

President of FWA

The day proclaimed for the purposes of item 2 of the table in subsection 2(1) of the FW Act.

2

Vice President of the Commission

Deputy President of FWA

The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of the FW Act.

3

Senior Deputy President of the Commission

Deputy President of FWA

The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of the FW Act.

4

Deputy President of the Commission

Deputy President of FWA

The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of the FW Act.

5

Commissioner of the Commission

Commissioner of FWA

The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of the FW Act.

\n```\n\n (a) was appointed as a member of a prescribed State industrial authority (within the meaning of the WR Act) before being appointed as a member of the Commission; and\n\n(3) Despite any provision of the WR Act or the FW Act, a person who is taken to have been appointed as an FWA Member under this item continues also to hold office under the WR Act.\n\nNote: The terms and conditions of a person who is taken to have been appointed as an FWA Member are the terms and conditions that attach to his or her appointment under the WR Act (see item 2 of this Schedule).\n\n (a) holds office under the FW Act on the same terms and conditions as attach, or attached, to his or her appointment under the WR Act (including under subsections 63(2) and (3) of that Act); and\n (b) is entitled to the same designation as he or she is, or was, entitled to in relation to his or her appointment under the WR Act (including the designation the person has, or had, because of subsection 80(2) of the Industrial Relations (Consequential Provisions) Act 1988).\n\n (b) continues the application of the Judges’ Pensions Act 1968 in relation to a person taken to have been appointed under item 1 of this Schedule and to whom that Act applied as a member of the Commission.\n\n(3) For the purposes of determining the remuneration of a person who is taken to have been appointed as an FWA Member under item 1 of this Schedule:\n\n (b) sections 79 and 81 of the WR Act apply, and continue to apply on and after the WR Act repeal day, in relation to the person’s appointment as both an FWA Member and a member of the Commission.\n\nSection 609 of the FW Act has effect, in relation to any time at which the President is the only FWA Member, as if the words “After consulting the other FWA Members,” were omitted from subsection (1) of that section.\n\nis to be determined in accordance with the precedence assigned to them as members of the Commission under section 65 of the WR Act.\n\nDespite the requirement in subsection 609(1) of the FW Act, the President may make rules under that subsection before the WR Act repeal day without consulting other FWA Members.\n\n(1) The President of the Commission may give directions to a person who is taken to be appointed as an FWA Member under item 1 of this Schedule as to the manner in which the person is to perform his or her functions as a member of the Commission.\n\n(1) This item applies in relation to an FWC member who is a person taken to have been appointed as an FWA Member under item 1 of this Schedule.\n\n(2) Section 581A of the FW Act (which deals with the President handling complaints about FWC Members) applies after the commencement of this item in relation to a complaint made about the performance of the FWC Member as if the following amendments were made:\n\n (a) paragraph (4)(b) of that section—omit “termination of the appointment of the FWC Member”, substitute “removal of the FWC Member from office”;\n (b) the note to subsection (4) of that section—omit “The appointment of an FWC Member may be terminated under section 641”, substitute “An FWC Member may be removed from office under section 82 or 86 of the WR Act (within the meaning of the Transitional Act), as those sections continue to apply because of the operation of item 2 of Schedule 18 to the Transitional Act,”;\n (c) subparagraph (a)(i) of the definition of relevant belief in section 12 of the FW Act—omit “terminating the appointment of the FWC Member in accordance with section 641”, substitute “removing the FWC Member from office in accordance with section 82 or 86 of the WR Act (within the meaning of the Transitional Act), as those sections continue to apply because of the operation of item 2 of Schedule 18 to the Transitional Act”.\n\n(3) Section 641A of the FW Act (which deals with the Minister handling complaints about FWC Members) applies after the commencement of this item in relation to a complaint made about the performance of the FWC Member as if the following amendments were made:\n\n (a) paragraph (a) of that section—omit “termination of the appointment of the FWC Member; and”, substitute “removal of the FWC Member from office.”;\n (c) note 1 to that section—omit “The appointment of an FWC Member may be terminated under section 641”, substitute “An FWC Member may be removed from office under section 82 or 86 of the WR Act (within the meaning of the Transitional Act), as those sections continue to apply because of the operation of item 2 of Schedule 18 to the Transitional Act,”;\n\n(1) Despite the WR Act repeal, a body (the WR Act body) or office (the WR Act office) set out in an item in the following table continues in existence until the cessation time set out in the item.\n\n

WR Act bodies and WR Act offices—continuation and cessation

Item

Column 1

WR Act bodies

Column 2

WR Act offices

Column 3

Cessation time

1

Australian Industrial Relations Commission

Members of the Australian Industrial Relations Commission

31 December 2009

2

Australian Industrial Registry

Industrial Registrar and Deputy Registrars

31 December 2009

3

Australian Fair Pay Commission and AFPC Secretariat

AFPC Chair, AFPC Commissioners and Director of the AFPC Secretariat

31 July 2009

4

Workplace Authority

Workplace Authority Director

31 January 2010

\n```\n\nNote: FWA will begin to take over the work of WR Act bodies and WR Act offices before their cessation times: see item 12 of Schedule 2.\n\n(2) To avoid doubt, an appointment to a WR Act body or a WR Act office in effect immediately before the WR Act repeal continues in force on and after the WR Act repeal day:\n\nNote: As an example of the effect of this Act, at the cessation time for a WR Act body or a WR Act office, related appointments will cease.\n\n(3) Despite subitem (1), the Minister may, by writing, determine that a WR body or a WR Act office ceases to exist at a time that is different from the cessation time set out for the body or office in the table.\n\n(1) The person referred to in column 1 of an item of the following table must arrange for the transfer, on the WR Act repeal day, of assets and liabilities of the body referred to in column 2 of the item of the following table to the body referred to in column 3 of the item of the following table.\n\n

Transfer of assets and liabilities

Item

Column 1

Office‑holder who enters arrangement with FWA

Column 2

Body whose assets and liabilities are transferred

Column 3

Body to which assets and liabilities are transferred

1

Director of the AFPC Secretariat

AFPC Secretariat

FWA

2

Industrial Registrar

Australian Industrial Registry

FWA

3

Workplace Authority Director

Workplace Authority

Office of the Fair Work Ombudsman

4

Workplace Ombudsman

Office of the Workplace Ombudsman

Office of the Fair Work Ombudsman

\n```\n\n(2) Despite subitem (1), the Minister may, before the WR Act repeal day, determine one or more of the following by writing:\n\n (a) that some or all assets and liabilities of the body (as specified in the determination) are to be transferred to a different body (as specified in the determination) from the one referred to in column 3 of the table;\n (b) that some or all assets and liabilities of the body (as specified in the determination) are to be transferred on a different day (as specified in the determination) from the one referred to in subitem (1);\n (c) that some or all assets and liabilities of the body (as specified in the determination) are to be transferred in accordance with regulations made, or to be made, for the purposes of this paragraph.\n\n(4) In this item, a reference to an asset of a body includes a reference to a record or any other information that is in the custody of, or under the control of, the body.\n\nSection 655 of the FW Act has effect as if information acquired, before the WR Act repeal day, by a WR Act body or a person holding a WR Act office in the course of performing functions or exercising powers as such a body or in such an office were information acquired by the FWC in the course of performing functions or exercising powers as the FWC.\n\nNote: Item 16 makes provision for information acquired by a member of the Office of the Workplace Ombudsman to be treated, for the purposes of section 718 of the FW Act, as if it were acquired by the Fair Work Ombudsman.\n\n(1) The General Manager of FWA may enter into an arrangement with the person referred to in column 1 of an item of the following table for FWA to provide assistance to the body referred to in column 2 of the item for the purpose of performing functions on and after the WR Act repeal day.\n\n

Arrangements between FWA and body

Item

Column 1

Office‑holder who enters arrangement with FWA

Column 2

Body to which assistance is provided

1

Industrial Registrar

Australian Industrial Registry

2

Workplace Authority Director

Workplace Authority

3

Director of the AFPC Secretariat

AFPC Secretariat

\n```\n\n(2) The Fair Work Ombudsman may enter into an arrangement with the Workplace Authority Director to provide assistance to the Workplace Authority Director for the purpose of performing functions on and after the WR Act repeal day.\n\n(1) After the cessation time for a WR Act body or a WR Act office, the powers, functions and duties of the body or office are to be exercised and performed by the FWC.\n\n(2) For the purposes of subitem (1), a law of the Commonwealth that relates to the body or office is, for the purposes of its application after the cessation time, to be read:\n\n(3) Despite subitem (1), the Minister may, by writing, determine that a power, function or duty of a WR Act body or a WR Act office is to be exercised or performed, after the cessation time for the body or office, by a body or person other than the FWC.\n\n(5) If the FWC, or another body or person, deals after the cessation time for a WR Act body or a WR Act office with a matter that was being dealt with by the WR Act body or a person holding the WR Act office, the FWC or the other body or person, as the case requires, must take into account everything done by, or in relation to, the WR Act body or a person holding the WR Act office, in relation to the matter.\n\n(1) An appointment of a person as a workplace inspector that is in force under section 167 of the WR Act immediately before the WR Act repeal day has effect, for the remainder of the term of the appointment, as if it were an appointment of the person as a Fair Work Inspector under section 700 of the FW Act.\n\n(2) An identity card issued under section 168 of the WR Act to a person covered by subitem (1) has effect, for the remainder of the person’s term of appointment, as if it were an identity card issued under section 702 of the FW Act.\n\n(1) Parts 5A and 6 of the WR Act (which deal with the Workplace Ombudsman and workplace inspectors) have no application after the WR Act repeal.\n\n(1) For the purposes of the application of the WR Act in relation to conduct that occurred before the WR Act repeal day (including the application of the WR Act because of subitem 11(2) of Schedule 2), an application that could have been made or continued by a workplace inspector (disregarding item 12 of this Schedule) may be made or continued, on and after the WR Act repeal day, by a Fair Work Inspector.\n\n (a) a reference in that Part to a fair work instrument were a reference to a WR Act instrument or a transitional award that is not a WR Act instrument; and\n (b) a reference (other than a reference in a note to a section or subsection, or a reference in section 716) in that Part to a civil remedy provision were a reference to a civil remedy provision or a civil penalty provision within the meaning of the WR Act, as in force from time to time; and\n (c) a reference in that Part to “this Act” (being the FW Act) were a reference to the WR Act, as in force from time to time before the WR Act repeal day; and\n (d) the reference in paragraph 706(1)(c) to the regulations were a reference to regulations, as in force from time to time, under the WR Act, as in force from time to time before the WR Act repeal day; and\n\n (a) a reference in that Part to a fair work instrument included a reference to a transitional instrument, a transitional minimum wage instrument or a continuing Schedule 6 instrument; and\n (b) a reference in that Part to “this Act” (being the FW Act) included a reference to the WR Act as it continues to apply because of this Act; and\n (c) a reference in that Part to “this Act” (being the FW Act) included a reference to this Act (being the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009); and\n (iii) subsection 182(1) or (2) of the WR Act, as it continues to apply under item 5 of Schedule 9 (which deals with continuation of Australian Fair Pay and Conditions Standard wages provisions);\n\n(1) Part 5‑2 of the FW Act applies in relation to conduct that occurs on or after the Division 2B referral commencement as if:\n\nA direction, given by the Workplace Ombudsman to a workplace inspector under subsection 167(7) of the WR Act, that is in force immediately before the WR Act repeal day is taken, on and after that day, to have been given by the Fair Work Ombudsman to a Fair Work Inspector under section 704 or 705 (as the case requires) of the FW Act.\n\nSection 718 of the FW Act has effect as if information acquired, before the WR Act repeal day, by a member of the Office of the Workplace Ombudsman in the course of performing functions or exercising powers as such a member were information acquired by the Fair Work Ombudsman in the course of performing functions or exercising powers as the Fair Work Ombudsman.\n\nNote: The effect of this item is to allow the Fair Work Ombudsman to disclose, under section 718 of the FW Act, information acquired by a member of the Office of the Workplace Ombudsman.\n\n (a) the annual report on the operations of FWA prepared for the 2009‑2010 financial year under section 652 of the FW Act must include a report on the operations of FWA during the period:\n\n (a) the annual report on the operations of the Office of the Fair Work Ombudsman prepared for the 2009‑2010 financial year under section 686 of the FW Act must include a report on the operations of the Office during the period:\n\n(1) The Fair Work Ombudsman (instead of the Workplace Ombudsman) must prepare the annual report on the operations of the Office of the Workplace Ombudsman under section 166S of the WR Act for the 2008‑2009 financial year.\n\n(1) The General Manager of the FWC must prepare a written report about the first 3 years operation of the unfair dismissal system.\n\n(2) The report must deal with the experiences employers, and in particular small and medium‑sized enterprise employers, and employees have had with the unfair dismissal system.\n\n (b) conduct surveys of employers, employees and any other persons affected by, or who have had experience with, the unfair dismissal system;\n\n (d) the number of applicants employed by small business employers whose dismissals were not consistent with the Small Business Fair Dismissal Code; and\n (f) the number of unfair dismissal applications that were made after the period of 14 days specified in paragraph 394(2)(a) of the FW Act and the number of those applications that were allowed by the FWC under subsection 394(3) of the FW Act; and\n (g) the number of unfair dismissal applications discontinued, and the stages at which those applications were discontinued; and\n\n(5) The General Manager of the FWC must give the Minister the report as soon as practicable and, in any event, within 6 months after the end of the period mentioned in subitem (1).\n\n(6) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.\n\n(7) Subsections 34C(4) to (7) of the Acts Interpretation Act 1901 apply to the report as if it were a periodic report within the meaning of that definition in subsection 34C(1) of that Act.\n\n (a) an APS employee is moved, under paragraph 72(1)(a) of the Public Service Act 1999, from an old Agency to a new Agency; and\n (ii) an AWA or pre‑reform AWA (and therefore also a collective agreement which had no effect while the AWA or pre‑reform AWA operated in relation to the employee).\n\n(2) The collective agreement, AWA or pre‑reform AWA, as the case requires, has effect after the move in relation to the employee’s employment as if it had been made with the Agency Head of the new Agency on behalf of the Commonwealth.\n\n (b) more than one collective agreement‑based transitional instrument applies to the employment of employees in that Agency;\n\n(4) The regulations may provide for other matters of a transitional nature in relation to the transfer of employees from an old Agency to a new Agency.\n\nnew employee, in a new Agency, means an employee who was not moved to the new Agency from an old Agency as mentioned in paragraph (1)(a).\n\n (a) disputes in relation to a matter arising under a transitional instrument (including a WR Act instrument that becomes a transitional instrument);\n (b) disputes in relation to the Australian Fair Pay and Conditions Standard in Part 7 of the WR Act, including as it continues to apply because of Schedule 4 (other than disputes in relation to Division 2 of Part 7 of that Act);\n (c) disputes in relation to Division 1, 2 or 6 of Part 12 of the WR Act, including as it continues to apply because of Schedule 4.\n\n(2) The WR Act applies in relation to a dispute mentioned in any of paragraphs (1)(a) to (c) in the way that it applied, before the WR Act repeal day, in relation to a like dispute.\n\n(1) Anything that could, or would, have been done by, or in relation to, the Commission or the Industrial Registrar because of item 1 may only be done by, or in relation to, the FWC.\n\nNote: That subsection allows the FWC to deal with a dispute only if the FWC is expressly authorised to do so under the FW Act.\n\n(1) Schedule 6 to the WR Act (continued Schedule 6) continues to apply on and after the WR Act repeal day in accordance with this Schedule.\n\n(2) Except for instrument content rules and instrument interaction rules, nothing in this Schedule or continued Schedule 6 applies to State reference transitional awards or common rules.\n\nNote: State reference transitional awards or common rules are continued in existence by Schedule 3 as transitional instruments.\n\n(3) Without limiting subitem (1) (but subject to subitem (2)), transitional awards that were in operation under Schedule 6 to the WR Act immediately before the WR Act repeal day continue in operation as continuing Schedule 6 instruments on and after the repeal day in accordance with continued Schedule 6.\n\nNote 1: In addition to provisions of this Schedule, Part 3 of Schedule 2 may also affect continuing Schedule 6 instruments.\n\n (a) a reference in that Schedule to the Australian Industrial Relations Commission (or the Commission) were a reference to the FWC; and\n (b) without limiting paragraph (a)—a reference in that Schedule to a member of the Commission (or a Commissioner) were a reference to an FWC member; and\n (d) a reference in that Schedule to a Presidential Member were a reference to the President, or a Deputy President, of the FWC; and\n (f) a reference in that Schedule to a Registrar or the Industrial Registrar were a reference to the General Manager of the FWC; and\n (ii) without limiting subparagraph (i)—a reference in that Schedule to wage‑setting decisions of the AFPC were a reference to determinations made by the FWC in annual wage reviews; and\n (i) a reference to “this Act” (being the WR Act) in any of the following provisions of that Schedule were a reference to “this Act” as defined in section 12 of the FW Act:\n\nNote: For example, paragraph (1)(a) does not apply if the reference is to something that the Australian Industrial Relations Commission did before the WR Act repeal day (or before the reform commencement).\n\n(1) Section 578 of the FW Act applies to the performance of the FWC’s functions under continued Schedule 6 as if the reference in paragraph 578(a) to “the objects of this Act, and any objects of the part of the Act” were a reference to the objects of continued Schedule 6.\n\n were a reference to item 15 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; and\n\n (a) note 2 to subclause 3(1) were worded as follows: “In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.”; and\n\n(1) The new ballots compliance provisions (see subitem (2)) apply in relation to a secret ballot ordered by the FWC under continued Schedule 6 as if:\n\nContinued Schedule 6 applies as if the reference in clause 107C to section 836 of the WR Act were a reference to sections 535 and 536 of the FW Act.\n\nNote 2: For the role of Fair Work Ombudsman and Inspectors in relation to continuing Schedule 6 instruments, see item 14 of Schedule 18.\n\nThe regulations may deal with other matters relating to how the FW Act applies in relation to continuing Schedule 6 instruments.\n\n(1) The Clothing Trades Award 1999, to the extent that it contains terms relating to outworkers, is taken always to have been made in accordance with Part VI of the Workplace Relations Act 1996. Any variation of those terms is taken always to have been made in accordance with that Part.\n\n(2) Without limiting subitem (1), those terms (as varied from time to time) are taken always to have been terms about allowable award matters of the kind described in paragraph 513(1)(o) of the Workplace Relations Act 1996.\n\nNote: This item amends the short title of the Act. If another amendment of the Act is described by reference to the Act’s previous short title, that other amendment has effect after the commencement of this item as an amendment of the Act under its amended short title (see section 10 of the Acts Interpretation Act 1901).\n\n> employee has its ordinary meaning, and includes a person who is usually such an employee, but does not include a person on a vocational placement.\n\n> FWA Member has the same meaning as in the Fair Work Act, but does not include a Minimum Wage Panel Member (within the meaning of that Act).\n\nOmit “paragraphs (a) to (g) of the definition of federal system employer in section 6”, substitute “paragraphs (a) to (f) of the definition of national system employer in section 14 of the Fair Work Act”.\n\n If:\n (a) an association was purportedly registered as an organisation under this Act before the commencement of this section; and\n (b) the association’s purported registration would, but for this section, have been invalid merely because, at any time, the association’s rules did not have the effect of terminating the membership of, or precluding from membership, persons who were persons of a particular kind or kinds;\n\n (a) if the organisation is an association of employers—a person of a kind mentioned in paragraph 18A(3)(a), (b), (c) or (d); or\n (b) if the organisation is an association of employees—a person of a kind mentioned in paragraph 18B(3)(a), (b), (c) or (d); or\n (c) if the organisation is an enterprise association—a person of a kind mentioned in paragraph 18C(3)(a), (b), (c) or (d);\n\n the General Manager must reduce the order to writing, sign it and seal it with the seal of FWA, and the order has effect as if it had been signed by the FWA Member.\n\n Jurisdiction is conferred on the Federal Court in relation to any matter (whether civil or criminal) arising under this Act.\n\n The jurisdiction conferred on the Federal Court under this Act is to be exercised in the Fair Work Division of the Federal Court if:\n (b) a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Act; or\n (c) a declaration is sought under section 21 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or\n (d) an injunction is sought under section 23 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or\n\nAdd:\n\nAdd:\n\n (1) The General Manager may, in writing, delegate to a member of the staff of FWA all or any of the General Manager’s functions or powers under this Act.\n (2) Despite subsection (1), the General Manager’s functions or powers under the following provisions cannot be delegated:\n (3) Despite subsection (1), the General Manager’s functions or powers under the following provisions can only be delegated to a member of the staff of FWA who is an SES employee or an acting SES employee, or who is in a class of employees prescribed by the regulations:\n\n> Note: The expressions SES employee and acting SES employee are defined in section 17AA of the Acts Interpretation Act 1901.\n\n (4) In exercising powers or functions under a delegation, the delegate must comply with any directions of the General Manager.\n\n (1) The Minister may intervene on behalf of the Commonwealth in proceedings before a court (including a court of a State or Territory) in relation to a matter arising under this Act if the Minister believes it is in the public interest to do so.\n (2) If the Minister intervenes, the Minister is taken to be a party to the proceedings for the purposes of instituting an appeal from a judgment given in the proceedings.\n\n (1) This section applies in relation to a proceeding in the Fair Work Division of the Federal Court, or of the Federal Magistrates Court, other than:\n (b) a member, officer or employee of a peak council to which an organisation of which the party is a member is affiliated.\n (4) If the proceeding is a proceeding in relation to a question of law referred to the Federal Court under section 608 of the Fair Work Act, a party to the proceeding may only be represented as permitted by subsection (2) or (3) if the Court grants leave.\n\n> Note: Regulations made under the Fair Work Act may also be relevant to the operation of this Act. For example, regulations about FWA’s practice and procedure may be made for the purposes of section 610 of the Fair Work Act.\n\n (1) For the purposes of this Act, a federal counterpart for a particular association of employers or employees registered under a State or Territory industrial law is an organisation prescribed by the regulations to be a federal counterpart of that association.\n (2) For the purposes of this Act, if subsection (1) does not apply in relation to a particular association of employers or employees registered under a State or Territory industrial law, a federal counterpart for the association is:\n (a) an organisation that has a branch (including a division of such a branch or a constituent part of such a branch) in that State or Territory that has or purports to have:\n (b) if paragraph (a) does not apply—an organisation of which the association has purported to function as a branch (including a division of a branch or a constituent part of a branch).\n\nAdd:\n\n (5) FWA must not, under this section, grant an application for registration of an association of employers or employees registered under a State or Territory industrial law if the association has a federal counterpart.\n\n#### Subdivision BA—Branches of organisations\n\n The rules of an organisation may provide for the autonomy of a branch in matters affecting members of the branch only and matters concerning the participation of the branch in a State workplace relations system.\n\n (1) The rules of an organisation may provide for a fund of the branch that is to be managed and controlled under rules of the branch, and may make provision in relation to the fund in accordance with subsection (2).\n (a) real or personal property of which the branch of the organisation, by the rules or by any established practice not inconsistent with the rules, has, or in the absence of a limited term lease, bailment or arrangement, would have, the right of custody, control or management; and\n (b) the amounts of entrance fees, subscriptions, fines, fees or levies received by a branch, less so much of the amounts as is payable by the branch to the organisation; and\n (d) a superannuation or long service leave or other fund operated or controlled by the branch for the benefit of its officers or employees; and\n (e) a sick pay fund, accident pay fund, funeral fund, tool benefit fund or similar fund operated or controlled by the branch for the benefit of its members; and\n (f) property acquired wholly or mainly by expenditure of the money of the fund or derived from other assets of the fund; and\n\n (1) A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:\n\n (1) The General Manager must, on application by an organisation in accordance with subsection (2), consent to an alteration of the eligibility rules of the organisation to extend them to apply to persons within the eligibility rules of an association of employers or employees that is registered under a State or Territory industrial law, if the General Manager is satisfied:\n (d) that the alteration will not apply outside the limits of the State or Territory for which the association is registered; and\n\n> Note: If the General Manager consents to the alteration, FWA may make orders that reflect State representation orders (see section 137F).\n\n (3) A declaration made under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the declaration.\n\nAdd:\n\n (b) a right to represent its members’ industrial interests outside the State in relation to which it is a State‑registered association.\n\n (i) unless subparagraph (ii) or (iii) applies—the fifth anniversary of the earliest day on which an organisation can make an application in accordance with subsection 158A(2); or\n (ii) if FWA grants the association an extension under subclause (2) of this clause and subparagraph (iii) does not apply—the sixth anniversary of that day; or\n (iii) if FWA grants the association a further extension under subclause (3) of this clause—the seventh anniversary of that day.\n\nAdd:\n\n (2) FWA may, on application by a transitionally recognised association, grant the association an extension for the purposes of subparagraph (1)(c)(ii) if FWA is satisfied that the association has made progress towards:\n (3) FWA may, on application by a transitionally recognised association, grant the association a further extension for the purposes of subparagraph (1)(c)(iii) if FWA is satisfied that:\n\nAdd:\n\n (4) If the General Manager is satisfied that the association satisfies subclause (1), the General Manager must, by written instrument, grant the application and record the fact that he or she is so satisfied.\n (7) A State‑registered association is taken to be recognised under this Schedule when the General Manager grants the application.\n\n (1) The provisions of the Fair Work Act 2009 and Part 3 of Chapter 4 of this Act apply in relation to a recognised State‑registered association:\n (b) a right to represent its members’ industrial interests outside the State in relation to which it is a State‑registered association.\n\n (1) A person interested or the Minister may apply to the Federal Court for an order cancelling the recognition under this Schedule of a recognised State‑registered association on the ground that:\n (i) the association (in relation to its continued breach of an order of FWA or an industrial instrument, or its continued failure to ensure that its members comply with and observe an order of FWA or an industrial instrument, or in any other respect); or\n (ii) a substantial number of the members of the association (in relation to their continued breach of an order of FWA or an industrial instrument, or in any other respect);\n has, on or after the commencement of this Schedule, prevented or hindered the achievement of an object of this Act as in force at that time; or\n (b) the association, or a substantial number of the members of the association or of a section or class of members of the association, has engaged in industrial action (other than protected industrial action) that has, on or after the commencement of this Schedule, prevented, hindered or interfered with:\n (ii) the provision of any public service by the Commonwealth or a State or Territory or an authority of the Commonwealth or a State or Territory; or\n (c) the association, or a substantial number of the members of the association or of a section or class of members of the association, has or have been, or is or are, engaged, on or after the commencement of this Schedule, in industrial action (other than protected industrial action) that has had, is having or is likely to have a substantial adverse effect on the safety, health or welfare of the community or a part of the community; or\n (d) the association, or a substantial number of the members of the association or of a section or class of members of the association, has or have failed to comply with one of the following, made on or after the commencement of this Schedule:\n (i) an injunction granted under subsection 421(3) of the Fair Work Act (which deals with orders to stop industrial action);\n (ii) an order made under the Fair Work Act in relation to a contravention of Part 3‑1 of that Act (which deals with general protections);\n (iii) an interim injunction granted under section 545 of the Fair Work Act so far as it relates to conduct or proposed conduct that could be the subject of an injunction under a provision mentioned in subparagraph (i) or (ii);\n (b) does not consider that it would be unjust to do so having regard to the degree of gravity of the matters constituting the ground and the action (if any) that has been taken by or against the association in relation to the matters;\n (iii) that the association has been found by another industrial body (within the meaning of the Fair Work Act) to have contravened a State or Territory industrial law, and that the contravention constitutes serious misconduct.\n (6) The General Manager may, by written instrument, cancel the recognition under this Schedule of a recognised State‑registered association if he or she is satisfied that the association no longer exists.\n (8) The recognition under this Schedule of a recognised State‑registered association is taken to be cancelled if the law of a State under which the association is registered ceases to be a law to which subclause 1(2) applies.\n\nPart 3 provides for the orders to be made in relation to employees who perform work for the same employer and/or at the same premises or workplace.\n\nNote: In addition to registered organisations, this Part also applies to transitionally recognised associations (see clause 3 of Schedule 1) and recognised State‑registered associations (see clause 2 of Schedule 2).\n\n (1) Subject to this Part, Part 4 and subsection 151(6), FWA may, on the application of an organisation, an employer or the Minister, make the following orders in relation to a dispute (including a threatened, impending or probable dispute) about the entitlement of an organisation of employees to represent, under this Act or the Fair Work Act, the industrial interests of employees:\n (a) an order that an organisation of employees is to have the right, to the exclusion of another organisation or other organisations, to represent under this Act or the Fair Work Act the industrial interests of the employees in a particular workplace group who are eligible for membership of the organisation;\n (b) an order that an organisation of employees is not to have the right to represent under this Act or the Fair Work Act the industrial interests of the employees in a particular workplace group.\n\n (2) FWA may make an interim order in relation to an application under subsection (1) on application by a person or organisation who would have been eligible to make the application under subsection (1).\n (3) FWA must not make an order under subsection (2) if FWA considers that the making of the order would be unfair to a person or organisation other than the applicant.\n (4) An interim order made under subsection (2) ceases to have effect if the application under subsection (1) is determined.\n (5) FWA may, on application by an organisation, an employer or the Minister, vary an order made under subsection (1) or (2).\n (6) FWA may, on its own initiative, vary an order made under subsection (1) or (2) if the order is inconsistent with an order that is in force under subsection 133(1).\n (7) FWA must not make an order under subsection (1) or (2) if the order would be inconsistent with an order that is in force under subsection 133(1).\n\n (1) In considering whether to make an order under subsection 137A(1) in relation to a particular workplace group, FWA must have regard to:\n (c) the extent to which particular organisations of employees represent the employees in the workplace group, and the nature of that representation; and\n (d) any agreement or understanding of which FWA becomes aware that deals with the right of an organisation of employees to represent under this Act or the Fair Work Act the industrial interests of a particular class or group of employees; and\n (a) the workplace group relates to a genuine new enterprise (within the meaning of the Fair Work Act) that one or more employers are establishing or propose to establish; and\n (b) the employer or employees have not employed any of the persons who will be necessary for the normal conduct of that enterprise;\n FWA must, as far as practicable, have regard to the matters set out in subsection (1) as they would apply in relation to the persons who would be the employees in the workplace group.\n\n> Note: The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12 of the Fair Work Act).\n\n (a) the eligibility rules of an organisation of employees have been altered with the consent of the General Manager under section 158A; and\n (b) because of the alteration, members of an association of employees registered under a State or Territory industrial law have become eligible for membership of the organisation;\n a reference in this section to the organisation includes a reference to the association referred to in paragraph (b) of this subsection.\n\n (1) A peak council is entitled to make a submission for consideration in relation to the proposed making of an order under subsection 137A(1).\n\n (2) The Federal Court may, on application by the Minister or a person or organisation affected by an order made under subsection 137A(1) or (2), make such orders as it thinks fit to ensure compliance with that order.\n\n (a) the eligibility rules of an organisation of employees have been altered with the consent of the General Manager under section 158A; and\n (b) because of the alteration, members of an association of employees that is registered under a State or Territory industrial law (a State registered association) have become eligible for membership of the organisation; and\n (ii) was an order of the same kind as, or of a similar kind to, an order that FWA could make under this Chapter in relation to an organisation;\n FWA may, on application by the organisation or by a party to the State representation order, make an order in relation to the organisation that is to the same effect, or substantially the same effect, as the State representation order.\n\nNote: The heading to clause 7 of Schedule 10 is altered by omitting “Registration and Accountability of Organisations Schedule” and substituting “this Act”.\n\n (ii) an order made under the Fair Work Act in relation to a contravention of Part 3‑1 of that Act (which deals with general protections); or\n\nOmit “this Act apply, on and after the reform commencement”, substitute “the Fair Work Act apply, on and after the commencement of those provisions”.\n\nAfter “at that time”, insert “, or has, on or after the commencement of section 3 of the Fair Work Act, prevented or hindered the achievement of the object set out in that section”.\n\nAdd:\n\n ; or (e) the association, or a substantial number of the members of the association or of a section or class of members of the association, has or have failed to comply with an order under section 23 of this Act (which deals with contraventions of the employee associations provisions) made on or after the reform commencement; or\n (f) the association, or a substantial number of the members of the association or of a section or class of members of the association, has or have failed to comply with one of the following made on or after the commencement of the relevant provision:\n (i) an injunction granted under subsection 421(3) of the Fair Work Act (which deals with orders to stop industrial action);\n (ii) an order made under the Fair Work Act in relation to a contravention of Part 3‑1 of that Act (which deals with general protections);\n (iii) an interim injunction granted under section 545 of the Fair Work Act so far as it relates to conduct or proposed conduct that could be the subject of an injunction or order under a provision mentioned in subparagraph (i) or (ii).\n\n (4) A finding of fact in proceedings under section 496, 508, 509 or 807 of the Workplace Relations Act 1996 commenced on or after the reform commencement is admissible as prima facie evidence of that fact in an application made on a ground specified in paragraph (1)(d).\n (4A) A finding of fact in proceedings under section 23 of this Act is admissible as prima facie evidence of that fact in an application made on a ground specified in paragraph (1)(e).\n\nNote: The heading to section 33 of Schedule 1 is altered by omitting “Presidential Member” and substituting “President or a Deputy President”.\n\nOmit “or the Rules of the Commission”, substitute “, or the procedural rules of FWA made under section 609 of the Fair Work Act”.\n\nNote: The headings to subsections 55(5) and (7) of Schedule 1 are altered by omitting “Commission” and substituting “FWA”.\n\nNote: The headings to subsections 57(6) and (8) of Schedule 1 are altered by omitting “Commission” and substituting “FWA”.\n\nOmit “the Rules of the Commission”, substitute “the procedural rules of FWA made under section 609 of the Fair Work Act”.\n\nAdd:\n\nNote: The heading to section 156 of Schedule 1 is altered by omitting “Industrial Registrar” and substituting “General Manager”.\n\nOmit “Industrial Registrar to arrange, for the purposes of the inquiry, for a designated Registry official”, substitute “General Manager”.\n\nNote: The heading to section 202 of Schedule 1 is altered by omitting “Industrial Registrar” and substituting “General Manager”.\n\nOmit “a Registry official is designated by the Industrial Registrar for the purposes of subsection (1), the actions that the official may take are as follows”, substitute “the General Manager is authorised for the purposes of subsection (1), he or she may take the following actions”.\n\nOmit “designated Registry official”, substitute “member of the staff of FWA (an official) to whom powers of the General Manager under section 202 have been delegated under section 343A”.\n\nOmit “Registry official”, substitute “member of the staff of FWA to whom powers of the General Manager under section 202 have been delegated under section 343A”.\n\nNote: The heading to section 207 of Schedule 1 is altered by omitting “Industrial Registrar” and substituting “General Manager”.\n\nNote: The heading to section 233 of Schedule 1 is altered by omitting “in Industrial Registry” and substituting “with FWA”.\n\nNote: The heading to section 247 of Schedule 1 is altered by omitting “Industrial Registrar” and substituting “General Manager”.\n\nNote: The heading to section 268 of Schedule 1 is altered by omitting “in Industrial Registry” and substituting “with FWA”.\n\nNote: The heading to subsection 310(1) of Schedule 1 is altered by omitting “Industrial Registrar” and substituting “General Manager”.\n\nNote: The heading to section 330 of Schedule 1 is altered by omitting “Registrar or staff” and substituting “General Manager”.\n\nNote: The heading to subclause 5(6) of Schedule 10 is altered by omitting “Registrar” and substituting “General Manager”.\n\n (a) a modern award or an enterprise agreement that, immediately before that day, covered a proposed de‑registering organisation and its members covers, by force of this section, the proposed amalgamated organisation and its members; and\n (aa) a modern award, an order of FWA or an enterprise agreement that, immediately before that day, applied to a proposed de‑registering organisation and its members applies to, by force of this section, the proposed amalgamated organisation and its members; and\n\nNote: The heading to section 76 of Schedule 1 is altered by omitting “awards, orders and collective agreements” and substituting “modern awards, orders and enterprise agreements”.\n\nOmit “an award or a collective agreement that was, immediately before the day the registration takes effect, binding on ”, substitute “a modern award or an enterprise agreement that, immediately before the day the registration takes effect, covered”.\n\n (a) before the commencement of this item, a thing was done under, or for the purposes of, a provision of Schedule 1 to the WR Act (as in force from time to time) by, or in relation to, a person or body mentioned in column 1 of the table; and\n\n

Things done before the commencement of this item

Item

If the thing was done by, or in relation to ...

then, after that commencement, the thing has effect as if it had been done by, or in relation to ...

1

the Commission

FWA.

2

the Industrial Registry

FWA.

3

the Industrial Registrar

the General Manager.

4

a Registrar

the General Manager.

5

a member of the Commission

an FWA member.

6

a Presidential Member

the President or a Deputy President.

7

a Registry official

the General Manager.

8

a designated Registry official

a member of the staff of FWA.

\n```\n\nNote: For how the thing has effect after the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012 (which changes the name of Fair Work Australia to become the Fair Work Commission, etc.), see Part 10 of Schedule 3 to the FW Act.\n\n(2) Without limiting subitem (1), a reference in that subitem to a thing being done in relation to a person or body includes a reference to:\n\n (a) an application, request, statement, objection, disclosure, direction or referral being made or given to, or lodged with, the person or body; and\n\n (a) before the commencement of this item, an instrument was made under, or for the purposes of, a provision of Schedule 1 to the WR Act (as in force from time to time); and\n\n

Instruments in force immediately before the commencement of this item

Item

A reference in the instrument to ...

has effect after that commencement as if it were a reference to ...

1

the Commission

FWA.

2

the Industrial Registry

FWA.

3

the Industrial Registrar

the General Manager.

4

a Registrar

the General Manager.

5

a member of the Commission

an FWA member.

6

a Presidential Member

the President or a Deputy President.

7

a Registry official

the General Manager.

8

a designated Registry official

a member of the staff of FWA.

\n```\n\nNote: For how the instrument has effect after the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012 (which changes the name of Fair Work Australia to become the Fair Work Commission, etc.), see section 25B of the Acts Interpretation Act 1901.\n\n(2) Subject to subitem (3), a reference in the instrument to a provision of Schedule 1 to the WR Act is to be construed, after the commencement of this item, as a reference to the same provision of the Fair Work (Registered Organisations) Act 2009.\n\n(3) Subitem (2) does not apply to a reference that is expressed as a reference to a provision as in force at a time that is before the commencement of this item.\n\n (b) references in that Act to an enterprise agreement included a reference to an agreement‑based transitional instrument.\n\nThe register of organisations kept by the Industrial Registry under paragraph 13(1)(a) of Schedule 1 to the WR Act in its form immediately before the commencement of this item is taken, after that commencement, to be the register of organisations kept by the FWC under paragraph 13(1)(a) of the Fair Work (Registered Organisations) Act 2009.\n\n (a) subparagraph 73(2)(c)(i) of the Fair Work (Registered Organisations) Act 2009 applies in relation to contraventions of the WR Act (as in force from time to time) that occurred before the commencement of this item; and\n (b) subparagraph 73(2)(c)(ii) of that Act applies in relation to breaches of orders made under the WR Act (as in force from time to time) that occurred before the commencement of this item.\n\n(1) Part 4A of Chapter 11 of the Fair Work (Registered Organisations) Act 2009 applies as if a disclosure of information made to a person referred to in subparagraph 337A(b)(i) or (ii) of Schedule 1 to the WR Act:\n\n (i) if the person is of a kind referred to in subparagraph 337A(b)(i) of that Schedule 1 to the WR Act—the cessation time for the Industrial Registrar under item 7 of Schedule 18 to this Act; or\n (ii) if the person is of a kind referred to in subparagraph 337A(b)(ii) of Schedule 1 to the WR Act—the cessation time for the Workplace Authority Director under item 7 of Schedule 18 to this Act;\n\n(2) Paragraph 337A(d) of the Fair Work (Registered Organisations) Act 2009 applies as if references in that paragraph to contraventions of the FW Act included references to contraventions of the WR Act (as in force from time to time) that occurred before the commencement of this item.\n\nFor the purposes of the Fair Work (Registered Organisations) Act 2009, an association that, immediately before the commencement of this item, was a transitionally registered association is taken, on that commencement, to be a transitionally recognised association.\n\nAdd:\n\nAdd:\n\n (3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.\n\n (a) a period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include:\n\n (4A) Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly.\n\n (2) The terms of a modern award or enterprise agreement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).\n\n> Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with averaging terms in a modern award or enterprise agreement (whether the terms comply with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62\\. The averaging terms will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).\n\n (2) The agreed averaging arrangement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).\n\n> Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with an agreed averaging arrangement (whether the arrangement complies with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62\\. The averaging arrangement will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).\n\nAdd:\n\n> Note: A person who is an employer may also be an outworker entity (see the definition of outworker entity in section 12).\n\n (b) a modern enterprise award that is expressed to cover one or more specified classes of employers (other than a modern enterprise award that is expressed to relate to one or more enterprises as described in paragraph 168A(2)(b)).\n\nAdd:\n\n> Note: In Brodie‑Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.\n\nAdd:\n\n Employer response action for a proposed enterprise agreement does not affect the continuity of employment of the employees who will be covered by the agreement, for such purposes as are prescribed by the regulations.\n\n| 50 (other than in relation to a contravention or proposed contravention of a term that would be an outworker term if it were included in a modern award) |\n| -------------------------------------------------------------------------------------------------------------------------------------------------------- |\n\n| 5 | 50 (in relation to a contravention or proposed contravention of a term that would be an outworker term if it were included in a modern award) | (a) an 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 |\n| --- | --------------------------------------------------------------------------------------------------------------------------------------------- | ----------------------------------------------------------------------------- | ------------------------------------------------------------------------------------------------ | ---------------- |\n\nAdd:\n\n (b) this Part has effect as if the matters referred to subparagraphs (a)(i) to (iii) were set out in such an item in the table.\n\n to:\n\n of:\n only if the employee organisation is entitled to represent the industrial interests of an outworker to whom the term relates.\n\nOmit “referred to in the relevant item in column 4 of the table in subsection 539(2) for contravening”, substitute “that a court could have ordered the person to pay under section 546 if the court was satisfied that the person had contravened”.\n\nAdd:\n\n> Note: In Brodie‑Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.\n\n## 154A Branch autonomy\n\n The rules of an organisation may provide for the autonomy of a branch in matters affecting members of the branch only and matters concerning the participation of the branch in a State workplace relations system.\n\n## 154B Branch funds\n\n (1) The rules of an organisation may provide for a fund of the branch that is to be managed and controlled under rules of the branch, and may make provision in relation to the fund in accordance with subsection (2).\n (a) real or personal property of which the branch of the organisation, by the rules or by any established practice not inconsistent with the rules, has, or in the absence of a limited term lease, bailment or arrangement, would have, the right of custody, control or management; and\n (b) the amounts of entrance fees, subscriptions, fines, fees or levies received by a branch, less so much of the amounts as is payable by the branch to the organisation; and\n (d) a superannuation or long service leave or other fund operated or controlled by the branch for the benefit of its officers or employees; and\n (e) a sick pay fund, accident pay fund, funeral fund, tool benefit fund or similar fund operated or controlled by the branch for the benefit of its members; and\n (f) property acquired wholly or mainly by expenditure of the money of the fund or derived from other assets of the fund; and\n\n (1) A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:\n\n## 158A Alteration of eligibility rules of organisation by General Manager\n\n (1) The General Manager must, on application by an organisation in accordance with subsection (2), consent to an alteration of the eligibility rules of the organisation to extend them to apply to persons within the eligibility rules of an association of employers or employees that is registered under a State or Territory industrial law, if the General Manager is satisfied:\n (d) that the alteration will not apply outside the limits of the State or Territory for which the association is registered; and\n\n> Note: If the General Manager consents to the alteration, FWA may make orders that reflect State representation orders (see section 137F).\n\n (3) A declaration made under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the declaration.\n\nAdd:\n\n (b) a right to represent its members’ industrial interests outside the State in relation to which it is a State‑registered association.\n\n (i) unless subparagraph (ii) or (iii) applies—the fifth anniversary of the earliest day on which an organisation can make an application in accordance with subsection 158A(2); or\n (ii) if FWA grants the association an extension under subclause (2) of this clause and subparagraph (iii) does not apply—the sixth anniversary of that day; or\n (iii) if FWA grants the association a further extension under subclause (3) of this clause—the seventh anniversary of that day.\n\nAdd:\n\n (2) FWA may, on application by a transitionally recognised association, grant the association an extension for the purposes of subparagraph (1)(c)(ii) if FWA is satisfied that the association has made progress towards:\n (3) FWA may, on application by a transitionally recognised association, grant the association a further extension for the purposes of subparagraph (1)(c)(iii) if FWA is satisfied that:\n\nAdd:\n\n## 1 Recognition of State‑registered associations\n\n (4) If the General Manager is satisfied that the association satisfies subclause (1), the General Manager must, by written instrument, grant the application and record the fact that he or she is so satisfied.\n (7) A State‑registered association is taken to be recognised under this Schedule when the General Manager grants the application.\n\n## 2 Application of Fair Work Act to recognised State‑registered associations\n\n (1) The provisions of the Fair Work Act 2009 and Part 3 of Chapter 4 of this Act apply in relation to a recognised State‑registered association:\n (b) a right to represent its members’ industrial interests outside the State in relation to which it is a State‑registered association.\n\n## 3 Cancellation of recognition\n\n (1) A person interested or the Minister may apply to the Federal Court for an order cancelling the recognition under this Schedule of a recognised State‑registered association on the ground that:\n (i) the association (in relation to its continued breach of an order of FWA or an industrial instrument, or its continued failure to ensure that its members comply with and observe an order of FWA or an industrial instrument, or in any other respect); or\n (ii) a substantial number of the members of the association (in relation to their continued breach of an order of FWA or an industrial instrument, or in any other respect);\n has, on or after the commencement of this Schedule, prevented or hindered the achievement of an object of this Act as in force at that time; or\n (b) the association, or a substantial number of the members of the association or of a section or class of members of the association, has engaged in industrial action (other than protected industrial action) that has, on or after the commencement of this Schedule, prevented, hindered or interfered with:\n (ii) the provision of any public service by the Commonwealth or a State or Territory or an authority of the Commonwealth or a State or Territory; or\n (c) the association, or a substantial number of the members of the association or of a section or class of members of the association, has or have been, or is or are, engaged, on or after the commencement of this Schedule, in industrial action (other than protected industrial action) that has had, is having or is likely to have a substantial adverse effect on the safety, health or welfare of the community or a part of the community; or\n (d) the association, or a substantial number of the members of the association or of a section or class of members of the association, has or have failed to comply with one of the following, made on or after the commencement of this Schedule:\n (i) an injunction granted under subsection 421(3) of the Fair Work Act (which deals with orders to stop industrial action);\n (ii) an order made under the Fair Work Act in relation to a contravention of Part 3‑1 of that Act (which deals with general protections);\n (iii) an interim injunction granted under section 545 of the Fair Work Act so far as it relates to conduct or proposed conduct that could be the subject of an injunction under a provision mentioned in subparagraph (i) or (ii);\n (b) does not consider that it would be unjust to do so having regard to the degree of gravity of the matters constituting the ground and the action (if any) that has been taken by or against the association in relation to the matters;\n (iii) that the association has been found by another industrial body (within the meaning of the Fair Work Act) to have contravened a State or Territory industrial law, and that the contravention constitutes serious misconduct.\n (6) The General Manager may, by written instrument, cancel the recognition under this Schedule of a recognised State‑registered association if he or she is satisfied that the association no longer exists.\n (8) The recognition under this Schedule of a recognised State‑registered association is taken to be cancelled if the law of a State under which the association is registered ceases to be a law to which subclause 1(2) applies.\n\n## 132 Simplified outline\n\nPart 3 provides for the orders to be made in relation to employees who perform work for the same employer and/or at the same premises or workplace.\n\n## Part 3 Representation orders for workplace groups\n\nNote: In addition to registered organisations, this Part also applies to transitionally recognised associations (see clause 3 of Schedule 1) and recognised State‑registered associations (see clause 2 of Schedule 2).\n\n## 137A Orders about representation rights of organisations of employees\n\n (1) Subject to this Part, Part 4 and subsection 151(6), FWA may, on the application of an organisation, an employer or the Minister, make the following orders in relation to a dispute (including a threatened, impending or probable dispute) about the entitlement of an organisation of employees to represent, under this Act or the Fair Work Act, the industrial interests of employees:\n (a) an order that an organisation of employees is to have the right, to the exclusion of another organisation or other organisations, to represent under this Act or the Fair Work Act the industrial interests of the employees in a particular workplace group who are eligible for membership of the organisation;\n (b) an order that an organisation of employees is not to have the right to represent under this Act or the Fair Work Act the industrial interests of the employees in a particular workplace group.\n\n (2) FWA may make an interim order in relation to an application under subsection (1) on application by a person or organisation who would have been eligible to make the application under subsection (1).\n (3) FWA must not make an order under subsection (2) if FWA considers that the making of the order would be unfair to a person or organisation other than the applicant.\n (4) An interim order made under subsection (2) ceases to have effect if the application under subsection (1) is determined.\n (5) FWA may, on application by an organisation, an employer or the Minister, vary an order made under subsection (1) or (2).\n (6) FWA may, on its own initiative, vary an order made under subsection (1) or (2) if the order is inconsistent with an order that is in force under subsection 133(1).\n (7) FWA must not make an order under subsection (1) or (2) if the order would be inconsistent with an order that is in force under subsection 133(1).\n\n## 137B Factors to be taken into account by FWA\n\n (1) In considering whether to make an order under subsection 137A(1) in relation to a particular workplace group, FWA must have regard to:\n (c) the extent to which particular organisations of employees represent the employees in the workplace group, and the nature of that representation; and\n (d) any agreement or understanding of which FWA becomes aware that deals with the right of an organisation of employees to represent under this Act or the Fair Work Act the industrial interests of a particular class or group of employees; and\n (a) the workplace group relates to a genuine new enterprise (within the meaning of the Fair Work Act) that one or more employers are establishing or propose to establish; and\n (b) the employer or employees have not employed any of the persons who will be necessary for the normal conduct of that enterprise;\n FWA must, as far as practicable, have regard to the matters set out in subsection (1) as they would apply in relation to the persons who would be the employees in the workplace group.\n\n> Note: The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12 of the Fair Work Act).\n\n (a) the eligibility rules of an organisation of employees have been altered with the consent of the General Manager under section 158A; and\n (b) because of the alteration, members of an association of employees registered under a State or Territory industrial law have become eligible for membership of the organisation;\n a reference in this section to the organisation includes a reference to the association referred to in paragraph (b) of this subsection.\n\n## 137C Submissions by peak councils\n\n (1) A peak council is entitled to make a submission for consideration in relation to the proposed making of an order under subsection 137A(1).\n\n## 137D Order may be subject to limits\n\n## 137E Organisation must comply with order\n\n (2) The Federal Court may, on application by the Minister or a person or organisation affected by an order made under subsection 137A(1) or (2), make such orders as it thinks fit to ensure compliance with that order.\n\n## Part 4 Miscellaneous\n\n## 137F FWA may make orders reflecting State representation orders\n\n (a) the eligibility rules of an organisation of employees have been altered with the consent of the General Manager under section 158A; and\n (b) because of the alteration, members of an association of employees that is registered under a State or Territory industrial law (a State registered association) have become eligible for membership of the organisation; and\n (ii) was an order of the same kind as, or of a similar kind to, an order that FWA could make under this Chapter in relation to an organisation;\n FWA may, on application by the organisation or by a party to the State representation order, make an order in relation to the organisation that is to the same effect, or substantially the same effect, as the State representation order.\n\nNote: The heading to clause 7 of Schedule 10 is altered by omitting “Registration and Accountability of Organisations Schedule” and substituting “this Act”.\n\n (ii) an order made under the Fair Work Act in relation to a contravention of Part 3‑1 of that Act (which deals with general protections); or\n\nOmit “this Act apply, on and after the reform commencement”, substitute “the Fair Work Act apply, on and after the commencement of those provisions”.\n\nAfter “at that time”, insert “, or has, on or after the commencement of section 3 of the Fair Work Act, prevented or hindered the achievement of the object set out in that section”.\n\nAdd:\n\n ; or (e) the association, or a substantial number of the members of the association or of a section or class of members of the association, has or have failed to comply with an order under section 23 of this Act (which deals with contraventions of the employee associations provisions) made on or after the reform commencement; or\n (f) the association, or a substantial number of the members of the association or of a section or class of members of the association, has or have failed to comply with one of the following made on or after the commencement of the relevant provision:\n (i) an injunction granted under subsection 421(3) of the Fair Work Act (which deals with orders to stop industrial action);\n (ii) an order made under the Fair Work Act in relation to a contravention of Part 3‑1 of that Act (which deals with general protections);\n (iii) an interim injunction granted under section 545 of the Fair Work Act so far as it relates to conduct or proposed conduct that could be the subject of an injunction or order under a provision mentioned in subparagraph (i) or (ii).\n\n (4) A finding of fact in proceedings under section 496, 508, 509 or 807 of the Workplace Relations Act 1996 commenced on or after the reform commencement is admissible as prima facie evidence of that fact in an application made on a ground specified in paragraph (1)(d).\n (4A) A finding of fact in proceedings under section 23 of this Act is admissible as prima facie evidence of that fact in an application made on a ground specified in paragraph (1)(e).\n\n## Part 4 FWA’s powers under this Chapter\n\nNote: The heading to section 33 of Schedule 1 is altered by omitting “Presidential Member” and substituting “President or a Deputy President”.\n\nOmit “or the Rules of the Commission”, substitute “, or the procedural rules of FWA made under section 609 of the Fair Work Act”.\n\nNote: The headings to subsections 55(5) and (7) of Schedule 1 are altered by omitting “Commission” and substituting “FWA”.\n\nNote: The headings to subsections 57(6) and (8) of Schedule 1 are altered by omitting “Commission” and substituting “FWA”.\n\n## Part 4B Functions and powers of FWA\n\nOmit “the Rules of the Commission”, substitute “the procedural rules of FWA made under section 609 of the Fair Work Act”.\n\n## Division 5 Exercise of FWA’s powers\n\nAdd:\n\nNote: The heading to section 156 of Schedule 1 is altered by omitting “Industrial Registrar” and substituting “General Manager”.\n\nOmit “Industrial Registrar to arrange, for the purposes of the inquiry, for a designated Registry official”, substitute “General Manager”.\n\nNote: The heading to section 202 of Schedule 1 is altered by omitting “Industrial Registrar” and substituting “General Manager”.\n\nOmit “a Registry official is designated by the Industrial Registrar for the purposes of subsection (1), the actions that the official may take are as follows”, substitute “the General Manager is authorised for the purposes of subsection (1), he or she may take the following actions”.\n\nOmit “designated Registry official”, substitute “member of the staff of FWA (an official) to whom powers of the General Manager under section 202 have been delegated under section 343A”.\n\nOmit “Registry official”, substitute “member of the staff of FWA to whom powers of the General Manager under section 202 have been delegated under section 343A”.\n\nNote: The heading to section 207 of Schedule 1 is altered by omitting “Industrial Registrar” and substituting “General Manager”.\n\nNote: The heading to section 233 of Schedule 1 is altered by omitting “in Industrial Registry” and substituting “with FWA”.\n\nNote: The heading to section 247 of Schedule 1 is altered by omitting “Industrial Registrar” and substituting “General Manager”.\n\nNote: The heading to section 268 of Schedule 1 is altered by omitting “in Industrial Registry” and substituting “with FWA”.\n\nNote: The heading to subsection 310(1) of Schedule 1 is altered by omitting “Industrial Registrar” and substituting “General Manager”.\n\nNote: The heading to section 330 of Schedule 1 is altered by omitting “Registrar or staff” and substituting “General Manager”.\n\n## 334 Investigations arising from referral under section 278\n\nNote: The heading to subclause 5(6) of Schedule 10 is altered by omitting “Registrar” and substituting “General Manager”.\n\n (a) a modern award or an enterprise agreement that, immediately before that day, covered a proposed de‑registering organisation and its members covers, by force of this section, the proposed amalgamated organisation and its members; and\n (aa) a modern award, an order of FWA or an enterprise agreement that, immediately before that day, applied to a proposed de‑registering organisation and its members applies to, by force of this section, the proposed amalgamated organisation and its members; and\n\nNote: The heading to section 76 of Schedule 1 is altered by omitting “awards, orders and collective agreements” and substituting “modern awards, orders and enterprise agreements”.\n\nOmit “an award or a collective agreement that was, immediately before the day the registration takes effect, binding on ”, substitute “a modern award or an enterprise agreement that, immediately before the day the registration takes effect, covered”.\n\n (a) before the commencement of this item, a thing was done under, or for the purposes of, a provision of Schedule 1 to the WR Act (as in force from time to time) by, or in relation to, a person or body mentioned in column 1 of the table; and\n\n

Things done before the commencement of this item

Item

If the thing was done by, or in relation to ...

then, after that commencement, the thing has effect as if it had been done by, or in relation to ...

1

the Commission

FWA.

2

the Industrial Registry

FWA.

3

the Industrial Registrar

the General Manager.

4

a Registrar

the General Manager.

5

a member of the Commission

an FWA member.

6

a Presidential Member

the President or a Deputy President.

7

a Registry official

the General Manager.

8

a designated Registry official

a member of the staff of FWA.

\n```\n\nNote: For how the thing has effect after the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012 (which changes the name of Fair Work Australia to become the Fair Work Commission, etc.), see Part 10 of Schedule 3 to the FW Act.\n\n(2) Without limiting subitem (1), a reference in that subitem to a thing being done in relation to a person or body includes a reference to:\n\n (a) an application, request, statement, objection, disclosure, direction or referral being made or given to, or lodged with, the person or body; and\n\n (a) before the commencement of this item, an instrument was made under, or for the purposes of, a provision of Schedule 1 to the WR Act (as in force from time to time); and\n\n

Instruments in force immediately before the commencement of this item

Item

A reference in the instrument to ...

has effect after that commencement as if it were a reference to ...

1

the Commission

FWA.

2

the Industrial Registry

FWA.

3

the Industrial Registrar

the General Manager.

4

a Registrar

the General Manager.

5

a member of the Commission

an FWA member.

6

a Presidential Member

the President or a Deputy President.

7

a Registry official

the General Manager.

8

a designated Registry official

a member of the staff of FWA.

\n```\n\nNote: For how the instrument has effect after the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012 (which changes the name of Fair Work Australia to become the Fair Work Commission, etc.), see section 25B of the Acts Interpretation Act 1901.\n\n(2) Subject to subitem (3), a reference in the instrument to a provision of Schedule 1 to the WR Act is to be construed, after the commencement of this item, as a reference to the same provision of the Fair Work (Registered Organisations) Act 2009.\n\n(3) Subitem (2) does not apply to a reference that is expressed as a reference to a provision as in force at a time that is before the commencement of this item.\n\n (b) references in that Act to an enterprise agreement included a reference to an agreement‑based transitional instrument.\n\nThe register of organisations kept by the Industrial Registry under paragraph 13(1)(a) of Schedule 1 to the WR Act in its form immediately before the commencement of this item is taken, after that commencement, to be the register of organisations kept by the FWC under paragraph 13(1)(a) of the Fair Work (Registered Organisations) Act 2009.\n\n (a) subparagraph 73(2)(c)(i) of the Fair Work (Registered Organisations) Act 2009 applies in relation to contraventions of the WR Act (as in force from time to time) that occurred before the commencement of this item; and\n (b) subparagraph 73(2)(c)(ii) of that Act applies in relation to breaches of orders made under the WR Act (as in force from time to time) that occurred before the commencement of this item.\n\n(1) Part 4A of Chapter 11 of the Fair Work (Registered Organisations) Act 2009 applies as if a disclosure of information made to a person referred to in subparagraph 337A(b)(i) or (ii) of Schedule 1 to the WR Act:\n\n (i) if the person is of a kind referred to in subparagraph 337A(b)(i) of that Schedule 1 to the WR Act—the cessation time for the Industrial Registrar under item 7 of Schedule 18 to this Act; or\n (ii) if the person is of a kind referred to in subparagraph 337A(b)(ii) of Schedule 1 to the WR Act—the cessation time for the Workplace Authority Director under item 7 of Schedule 18 to this Act;\n\n(2) Paragraph 337A(d) of the Fair Work (Registered Organisations) Act 2009 applies as if references in that paragraph to contraventions of the FW Act included references to contraventions of the WR Act (as in force from time to time) that occurred before the commencement of this item.\n\nFor the purposes of the Fair Work (Registered Organisations) Act 2009, an association that, immediately before the commencement of this item, was a transitionally registered association is taken, on that commencement, to be a transitionally recognised association.\n\nAdd:\n\nAdd:\n\n (3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.\n\n (a) a period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include:\n\n (4A) Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly.\n\n (2) The terms of a modern award or enterprise agreement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).\n\n> Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with averaging terms in a modern award or enterprise agreement (whether the terms comply with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62\\. The averaging terms will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).\n\n (2) The agreed averaging arrangement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).\n\n> Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with an agreed averaging arrangement (whether the arrangement complies with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62\\. The averaging arrangement will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).\n\nAdd:\n\n> Note: A person who is an employer may also be an outworker entity (see the definition of outworker entity in section 12).\n\n (b) a modern enterprise award that is expressed to cover one or more specified classes of employers (other than a modern enterprise award that is expressed to relate to one or more enterprises as described in paragraph 168A(2)(b)).\n\nAdd:\n\n> Note: In Brodie‑Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.\n\nAdd:\n\n## 416A Employer response action does not affect continuity of employment\n\n Employer response action for a proposed enterprise agreement does not affect the continuity of employment of the employees who will be covered by the agreement, for such purposes as are prescribed by the regulations.\n\n| 50 (other than in relation to a contravention or proposed contravention of a term that would be an outworker term if it were included in a modern award) |\n| -------------------------------------------------------------------------------------------------------------------------------------------------------- |\n\n| 5 | 50 (in relation to a contravention or proposed contravention of a term that would be an outworker term if it were included in a modern award) | (a) an 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 |\n| --- | --------------------------------------------------------------------------------------------------------------------------------------------- | ----------------------------------------------------------------------------- | ------------------------------------------------------------------------------------------------ | ---------------- |\n\nAdd:\n\n (b) this Part has effect as if the matters referred to subparagraphs (a)(i) to (iii) were set out in such an item in the table.\n\n to:\n\n of:\n only if the employee organisation is entitled to represent the industrial interests of an outworker to whom the term relates.\n\nOmit “referred to in the relevant item in column 4 of the table in subsection 539(2) for contravening”, substitute “that a court could have ordered the person to pay under section 546 if the court was satisfied that the person had contravened”.\n\nAdd:\n\n> Note: In Brodie‑Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.\n\n","sortOrder":12}],"analysis":{"summary":{"name":"Fair Work (Transitional Provisions and Consequential Amendments) Act 2009","slug":"fair-work-transitional-provisions-and-consequential-amendments-act-2009","title_id":"C2009A00055","version_id":40377,"analysis_type":"summary","content_quality":"high","complexity_score":5,"scope_assessment":{"changed":true,"description":"Act of national application that repealed key WR Act parts and rerouted every continuing instrument, appointment, application and proceeding into the Fair Work Act 2009 framework. The substantive bridging-period rules are largely spent (the bridging period closed once the FW (safety net provisions) commencement day arrived), but transitional instruments and the Schedule 16 enforcement regime remain operative for any conduct or agreement still tied to a pre-2010 instrument."},"complexity_factors":["Twenty-three numbered Schedules plus four lettered sub-schedules","Heavy cross-reference between WR Act, FW Act, and the Schedules of this Act","Bridging period concept with different rules for different windows (Royal Assent, 1 July 2009, 1 January 2010, 1 January 2011)","Two separate civil remedy tables (FW Act s 539 and Sch 16 item 16)","Division 2A and Division 2B referring State concepts that change scope by jurisdiction","Repeal-and-preserve drafting where parts of the WR Act are repealed but specific provisions are kept alive by reach-back items"],"plain_english_summary":"This Act is the bridge between the Workplace Relations Act 1996 and the Fair Work Act 2009. Schedule 1 repeals sections 3 to 18, Parts 2 to 23, and Schedules 2 to 9 of the Workplace Relations Act, and the rest of the Act stitches everything that needed to survive the changeover into the new regime.\n\nThe Act runs by Schedules. Schedule 2 is a dictionary of transitional terms (WR Act repeal day, bridging period, transitional instrument, AFPCS). Schedule 3 keeps WR Act awards, workplace agreements, AWAs, ITEAs, pre-reform certified agreements, NAPSAs and section 170MX awards alive as transitional instruments. Schedule 3A does the same for State awards and State employment agreements of Division 2B referring States. Schedule 4 carries selected WR Act minimum entitlements through the bridging period until the National Employment Standards commenced. Schedules 5, 6, 6A keep the Australian Industrial Relations Commission's Part 10A award modernisation process running and tell the Fair Work Commission how to retire transitional awards once a modern award covers them. Schedule 7 keeps the no-disadvantage test for agreements made during the bridging period instead of the better off overall test. Schedule 8 disciplines pre-repeal collective agreements with a 14-day lodgment window. Schedules 9, 10, 11 deal with minimum wages, equal remuneration, and pre-repeal transfers of business. Schedules 12, 12A, 13, 14, 15 cover general protections, transitional unfair dismissal (including the FTE small business test before 1 January 2011), bargaining, right of entry, and stand down. Schedule 16 is the enforcement engine: items 2 to 5 prohibit contraventions of transitional instruments, and item 16 reads them into Part 4-1 of the Fair Work Act for civil penalties and course-of-conduct rules. Schedule 17 creates the Fair Work Divisions of the Federal Court and Federal Magistrates Court. Schedule 18 transfers Commission appointments to Fair Work Australia. Schedule 22 renames Schedule 1 of the WR Act as the Fair Work (Registered Organisations) Act 2009. Schedule 23 catches further consequential Fair Work Act amendments."},"kimi_summary":{"_metrics":{"completionTokens":845},"content_quality":"ok","complexity_score":9,"scope_assessment":{"changed":true,"description":"The legislation has grown significantly beyond its original 2009 transitional purpose. The 2022 amendments (Secure Jobs, Better Pay Act) added automatic sunsetting provisions (items 20A, 26A, 30) with 12-month grace periods and 4-year extension mechanisms, fundamentally altering how long transitional instruments survive. What began as a bridge to the new system now includes permanent-style mechanisms for managing legacy agreements more than a decade later."},"complexity_factors":["Extensive cross-referencing between 23+ schedules and multiple Acts (WR Act 1996, FW Act 2009, State laws)","Multiple overlapping transitional regimes: bridging period, Division 2A/2B referral periods, award modernisation process","47+ defined terms in Schedule 2 dictionary alone, with nested definitions (e.g., 'transitional instrument' has 4 sub-types)","Conditional logic throughout: instruments terminate at different times based on employer type, employee coverage, and application dates","Nested exceptions: e.g., redundancy provisions continue for 24 months post-termination unless enterprise agreement applies, unless modern award has better scheme","Sunsetting provisions added by 2022 amendments create additional grace periods and extension mechanisms","State and federal law interaction rules (section 26 FW Act exclusions, State industrial body references)","Multiple commencement dates across provisions (1 July 2009, 1 January 2010, Division 2B referral commencement)"],"plain_english_summary":"This legislation is the **Fair Work (Transitional Provisions and Consequential Amendments) Act 2009** — a massive transitional law that bridges Australia's old workplace relations system (under the *Workplace Relations Act 1996*, known as \"Work Choices\") to the new *Fair Work Act 2009* system.\n\n**What it does:**\n\n- **Repeals the old system**: Schedule 1 wipes out most of the *Workplace Relations Act 1996*, including its awards, agreements, and institutional framework.\n\n- **Preserves existing instruments temporarily**: Schedules 3 and 3A keep old awards, workplace agreements, and state-based instruments alive as \"transitional instruments\" so employees and employers aren't left in a legal vacuum. These include:\n - Old federal awards and agreements\n - State awards and agreements from \"referring states\" that joined the national system\n\n- **Modernises awards**: Schedules 5 and 6 create processes to convert thousands of old awards into new \"modern awards\" and \"modern enterprise awards\" — simpler, industry-wide standards.\n\n- **Protects employee pay**: Multiple provisions (Schedules 3, 3A, 5, 6) ensure that moving to the new system doesn't reduce workers' \"take-home pay\" — if it does, the Fair Work Commission can make orders to fix it.\n\n- **Sets up the National Employment Standards**: Schedule 4 ensures the new 10 minimum standards (like annual leave, parental leave, redundancy pay) apply properly during and after the transition.\n\n- **Handles state referrals**: Schedule 3A deals with states that referred their industrial powers to the Commonwealth, converting their awards and agreements into federal instruments temporarily.\n\n- **Sunsets old agreements**: The 2022 amendments (Part 13 of Schedule 1 to the *Secure Jobs, Better Pay Act*) added automatic termination provisions — old agreements made during the bridging period now sunset after 12 months unless extended.\n\n**Who it affects:**\n- All Australian employees and employers covered by the federal system\n- Businesses with old workplace agreements or awards\n- State governments that referred their industrial relations powers\n- The Fair Work Commission (formerly Fair Work Australia), which manages the transition\n\n**Why it matters:**\nThis Act prevents chaos during Australia's biggest workplace relations overhaul. Without it, millions of workers would have lost their existing pay and conditions overnight when Work Choices was abolished. It ensures continuity while the new Fair Work system is built."}},"importantCases":[],"_links":{"self":"/api/acts/fair-work-transitional-provisions-and-consequential-amendments-act-2009","history":"/api/acts/fair-work-transitional-provisions-and-consequential-amendments-act-2009/history","analysis":"/api/acts/fair-work-transitional-provisions-and-consequential-amendments-act-2009/analysis","conflicts":"/api/acts/fair-work-transitional-provisions-and-consequential-amendments-act-2009/conflicts","importantCases":"/api/acts/fair-work-transitional-provisions-and-consequential-amendments-act-2009/important-cases","documents":"/api/acts/fair-work-transitional-provisions-and-consequential-amendments-act-2009/documents"}}