Part 2Transitional provisions relating to the application of the no‑disadvantage test to enterprise agreements made and varied during bridging period

Part 2—Transitional provisions relating to the application of the no‑disadvantage test to enterprise agreements made and varied during bridging period (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: 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. (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. Note: 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. designated 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). (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. (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 (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 (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. (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. (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. (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; is taken, to the extent that it provides for long service leave, to be a reference instrument relating to the employee; and (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. Note: 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). (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. (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): (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 (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. Note 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). Note 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). Note 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). (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. (2) A relevant general instrument, for an employee who is covered by an enterprise agreement, is an award‑based transitional instrument: (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 (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. (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. (2) The test time is the time when the application for approval of the agreement was made under section 185 of the FW Act. (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. (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: (ii) would, but for an enterprise agreement or another industrial instrument having come into operation, usually be regulated by an award; and (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 (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 (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 (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). (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. (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: (a) FWA becomes aware of information that was not available to it at the time of the determination under subitem (1); and (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. (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. (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. (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: (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: (ii) would, but for an enterprise agreement or another industrial instrument having come into operation, usually be regulated by an award; and (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 (b) must, in the opinion of FWA, be appropriate for the purpose of deciding whether an enterprise agreement passes the no‑disadvantage test; and (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). For 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: (a) were, immediately before the reform commencement, usually regulated by a State award (within the meaning of the WR Act); or (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. (b) may inform itself in any way it considers appropriate including (but not limited to) contacting any of the following: (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: