768BGConsolidation orders in relation to non-transferring employees

768BG Consolidation orders in relation to non‑transferring employees

Consolidation order

(1) The FWC may make an order (a consolidation order) that a copied State instrument for a transferring employee (employee A) also is, or will be, a copied State instrument for one or more non‑transferring employees who perform, or are likely to perform, the transferring work.

Non‑transferring employees

(2) A non‑transferring employee of a new employer is a national system employee of the new employer who is not a transferring employee.

Who may apply for order

(3) The FWC may make a consolidation order under subsection (1):

(a) on its own initiative; or

(b) on application by any of the following:

(i) a non‑transferring employee who performs, or is likely to perform, the transferring work;

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

(iii) an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i);

(iv) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement.

Matters that the FWC must take into account

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

(a) the views of:

(i) the employees who would be affected by the order; 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 order in relation to their terms and conditions of employment;

(c) if the order relates to a copied State employment agreement or an enterprise agreement—the nominal expiry date of the agreement;

(d) whether the copied State instrument for employee A would have a negative impact on the productivity of the new employer’s workplace;

(e) whether the new employer would incur significant economic disadvantage if the order were not made;

(f) the degree of business synergy between the copied State instrument for employee A and any workplace instrument that already covers the new employer;

(g) the public interest.

Restriction on when order may come into operation

(5) A consolidation order under subsection (1) must not come into operation in relation to a particular non‑transferring employee before the later of the following:

(a) the time when the non‑transferring employee starts to perform the transferring work for the new employer;