Fair Work Act 2009
768AMWhen does a copied State instrument apply to a person?
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768AM When does a copied State instrument apply to a person?
Transferring employee and organisations
(1) A copied State instrument for a transferring employee applies to the transferring employee or an organisation if:
(a) the instrument covers the employee or organisation; and
(b) the instrument is in operation; and
(c) no other provision of this Act provides, or has the effect, that the instrument does not apply to the employee or organisation; and
(d) immediately before the employee’s termination time, the employee or organisation would have been:
(i) required by the law of the State to comply with terms of the original State award or original State agreement for the instrument; or
(ii) entitled under the law of the State to enforce terms of the original State award or original State agreement for the instrument.
New employer and other employers
(2) A copied State instrument for a transferring employee applies to an employer (whether the new employer or another employer) if:
(a) the instrument covers the employer; and
(b) the instrument is in operation; and
(c) no other provision of this Act provides, or has the effect, that the instrument does not apply to the employer; and
(d) immediately before the employee’s termination time, the old State employer would have been:
(i) required by the law of the State to comply with terms of the original State award or original State agreement for the instrument; or
(ii) entitled under the law of the State to enforce terms of the original State award or original State agreement for the instrument.
Note: This subsection may operate in relation to an employer that is not the new employer in the situation where there has been a later transfer of business by the new employer (see Part 2‑8).
Other circumstances when instrument applies
(3) A copied State instrument for a transferring employee also applies to a person if an FWC order made under a provision of this Act provides, or has the effect, that the instrument applies to the person.
Instrument only applies in relation to transferring work
(4) A reference in this Act to a copied State instrument for a transferring employee applying to the employee is a reference to the instrument applying to the employee in relation to the transferring work of the employee.