768AXVariation of copied State instruments

768AX Variation of copied State instruments

Application of this section

(1A) This section applies if there is, or is likely to be, a transfer of business.

Variations that may be made

(1) The FWC may vary a copied State instrument for a transferring employee:

(a) to remove terms that the FWC is satisfied are not, or will not be, capable of meaningful operation or to vary those terms so that they are capable of meaningful operation; or

(b) to remove an ambiguity or uncertainty in the instrument; or

(c) to enable the instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise; or

(d) to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, or to make the instrument operate effectively with the National Employment Standards; or

(e) if the instrument is a copied State employment agreement—to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or

(f) to remove terms that are inconsistent with Part 3‑1 (which deals with general protections), or to vary terms to make them consistent with that Part.

Note: Paragraph (d) does not affect a term of the copied State instrument that is permitted by a provision of the National Employment Standards as the provision has effect under section 768AR.

Who may apply for a variation

(2) The FWC may make a variation under subsection (1):

(a) on its own initiative; or

(b) on application by a person who is, or is likely to be, covered by the copied State instrument; or

(c) on application by an employee organisation that is entitled to represent the industrial interests of an employee who is, or is likely to be, covered by the copied State instrument.

Note: The copied State instrument for the transferring employee may also cover another transferring employee or a non‑transferring employee if a consolidation order is made.

Matters that the FWC must take into account

(3) In deciding whether to make a variation under subsection (1), the FWC must take into account the following:

(a) the views of:

(i) the employees who would be affected by the copied State instrument as varied; and

(ii) the new employer or a person who is likely to be the new employer;

(b) whether any employees would be disadvantaged by the copied State instrument as varied in relation to their terms and conditions of employment;

(c) if the copied State instrument is a copied State employment agreement—the nominal expiry date of the agreement;