768ANWhen does a copied State instrument cover a person?

768AN When does a copied State instrument cover a person?

Transferring employee and new employer

(1) A copied State instrument for a transferring employee covers the employee and the new employer in relation to the transferring work from the employee’s re‑employment time.

Employee organisation

(2) A copied State instrument for a transferring employee covers an employee organisation in relation to the employee if:

(a) the instrument covers the employee because of subsection (1); and

(b) immediately before the employee’s termination time, the original State award or original State agreement for the instrument covered (however described in the original State award or original State agreement or in a relevant law of the State) the organisation in relation to the employee.

Employer organisation

(3) A copied State instrument for a transferring employee covers an employer organisation in relation to the new employer if:

(a) the instrument covers the new employer because of subsection (1); and

(b) immediately before the employee’s termination time, the original State award or original State agreement for the instrument covered (however described in the original State award or original State agreement or in a relevant law of the State) the organisation in relation to the old State employer.

Other circumstances when a person is covered

(4) A copied State instrument for a transferring employee also covers a person if any of the following provides, or has the effect, that the instrument covers the person:

(a) a provision of this Act or of the Registered Organisations Act;

(b) an FWC order made under a provision of this Act;

(c) an order of a court.

Example: The FWC may make a consolidation order specifying that the instrument covers a person specified in the order (see subsections 768BE(1) and 768BH(1)).

Circumstances when a person is not covered

(5) Despite subsections (1), (2), (3) and (4), a copied State instrument for a transferring employee does not cover a person if any of the following provides, or has the effect, that the instrument does not cover the person:

(a) a provision of this Act;

(b) an FWC order made under a provision of this Act;

(c) an order of a court.

Example: If, after the transferring employee’s re‑employment time, an enterprise agreement starts to cover the employee, subsection 768AU(2) provides that a copied State instrument for the employee ceases to cover the employee.

(6) Despite subsections (1), (2), (3) and (4), a copied State instrument for a transferring employee that has ceased to operate does not cover a person.