Part 4ATransitional provisions to apply the better off overall test to enterprise agreements that cover Division 2B State award covered employees

Part 4A—Transitional provisions to apply the better off overall test to enterprise agreements that cover Division 2B State award covered employees 20A Application of better off overall test to making of enterprise agreements that cover Division 2B State award covered employees (1) This item applies in relation to an enterprise agreement made on or after the Division 2B referral commencement, if one or more of the employees covered by the agreement is a Division 2B State award covered employee. (2) Despite section 193 of the FW Act, if the enterprise agreement is not a greenfields agreement, the agreement passes the better off overall test under that section only if: (a) the FWC is satisfied as referred to in subsection (1) of that section, and paragraph (2)(b) of item 18 of this Schedule, in relation to the agreement (to the extent that those provisions are applicable); and (b) the FWC is satisfied, as at the test time, that each Division 2B State award covered employee, and each prospective Division 2B State award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee. Note: Section 193 of the FW Act and item 18 of this Schedule deal with testing enterprise agreements against other instruments (such as modern awards). An enterprise agreement to which this subitem applies will not be tested against one or more such other instruments in relation to Division 2B State award covered employees. (3) Despite section 193 of the FW Act, if the enterprise agreement is a greenfields agreement, the agreement passes the better off overall test under that section only if: (a) the FWC is satisfied as referred to in subsection (3) of that section and paragraph (3)(b) of item 18 of this Schedule in relation to the agreement (to the extent that those provisions are applicable); and (b) the FWC is satisfied, as at the test time, that each prospective Division 2B State award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee. Note: Section 193 of the FW Act and item 18 of this Schedule deal with testing enterprise agreements against other instruments (such as modern awards). An enterprise agreement to which this subitem applies will not be tested against one or more such other instruments in relation to prospective Division 2B State award covered employees. (4) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant Division 2B State award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee. 20B Application of better off overall test to variation of enterprise agreements that cover Division 2B State award covered employees (2) Despite subsections 211(4) and (5) of the FW Act, subitems (3) and (4) apply in relation to the variation for the purposes of the FWC being satisfied that the agreement as proposed to be varied passes the better off overall test. (a) the FWC is satisfied, as at the test time, as mentioned in subitem 19(3) of this Schedule in relation to the agreement as proposed to be varied (to the extent that subitem 19(3) is applicable); and (b) the FWC is satisfied, as at the test time, that each Division 2B State award covered employee, and each prospective Division 2B State award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee. Note: Item 19 of this Schedule deals with testing enterprise agreements as proposed to be varied against other instruments (such as modern awards). A variation to which this subitem applies will not be tested against one or more such other instruments in relation to Division 2B State award covered employees. (4) For the purposes of determining whether the enterprise agreement as proposed to be varied passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant Division 2B State award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee. (5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by a Division 2B State award covered employee and his or her employer under the flexibility term in the agreement. prospective Division 2B State award covered employee, for an enterprise agreement, means a person who, if he or she were an employee at the test time of an employer covered by the agreement: (a) for the purposes of item 20A—means the time the application for approval of the enterprise agreement by the FWC was made under section 185 of the FW Act; and (b) for the purposes of item 20B—means the time the application for approval of the variation of the enterprise agreement by the FWC was made under section 210 of that Act. 21 Application made during bridging period for special low‑paid workplace determination—general requirement relating to minimum safety net Subsection 262(3) of the FW Act (which deals with a general requirement relating to the minimum safety net) applies in relation to an application for a special low‑paid workplace determination made during the bridging period as if the words “modern awards together with the National Employment Standards” were omitted and the words “awards (including State reference transitional awards and common rules) together with the Australian Fair Pay and Conditions Standard” were substituted. 22 Special low‑paid workplace determination—employer must not previously have been covered by agreement‑based transitional instrument (1) Subsection 263(3) of the FW Act (which deals with additional requirements for making a special low‑paid workplace determination) applies in relation to a workplace determination, whether made during or after the bridging period, as if the reference in that subsection to an enterprise agreement included a reference to a collective agreement‑based transitional instrument. (3) In making a decision for the purposes of paragraph (2)(b) of this item, the FWC must take into account the objects set out in section 241 of the FW Act. 23 Core terms of workplace determinations—assessment of determination made during bridging period against the no disadvantage test Subsection 272(4) of the FW Act (which deals with workplace determinations passing the better off overall test) applies in relation to a workplace determination made during the bridging period as if the words “better off overall test under section 193” 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. 24 Core terms of workplace determinations—assessment of determination made after bridging period that covers unmodernised award covered employees against the better off overall test (1) This item applies in relation to a workplace determination made after the end of the bridging period if one or more of the employees who will be covered by the determination is an unmodernised award covered employee (within the meaning of Part 4). (2) Subsection 272(4) of the FW Act (which deals with workplace determinations passing the better off overall test) applies in relation to the workplace determination as if the words “under section 193” were omitted and the words “under item 18 of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009” were substituted. (2) Subsection 272(5) of the FW Act (which deals with terms relating to safety net requirements) does not apply in relation to the workplace determination, except in so far as that subsection prevents a workplace determination from including a term that would, if the determination were an enterprise agreement, mean that FWA could not approve the agreement because of the operation of section 200 of that Act (which deals with requirements relating to outworkers). Note: Section 55 of the FW Act (which deals with the interaction between the National Employment Standards and workplace determinations etc.) will apply after the end of the bridging period. Section 56 of that Act provides that a term of a workplace determination has no effect to the extent that it contravenes section 55. (3) Section 200 of the FW Act (which deals with requirements relating to outworkers) applies in relation to the workplace determination as if: (a) references in that section to a modern award were references to an award or a State reference transitional award or common rule; and (b) references in that section to outworker terms were references to outworker terms as defined in section 564 of the WR Act. (2) Paragraph 273(2)(b) of the FW Act (which deals with a requirement for a workplace determination to have a term about settling disputes in relation to the National Employment Standards) applies in relation to the workplace determination as if the words “as the National Employment Standards apply after the end of the bridging period” were added after “National Employment Standards”. (3) Subsection 273(3) of the FW Act (which deals with a requirement for a workplace determination to have a term about settling disputes) applies in relation to the workplace determination as if the reference to paragraph 186(6)(a) of the FW Act were a reference to that paragraph in its application to an enterprise agreement made during the bridging period (see item 12). Note: For disputes relating to the Australian Fair Pay and Conditions Standard as it applies during the bridging period, see item 27. (1) The Australian Fair Pay and Conditions Standard, in its application during the bridging period under item 2 of Schedule 4 and item 5 of Schedule 9 prevails over an enterprise agreement or a workplace determination that applies to an employee to the extent to which, in a particular respect, the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee. (a) whether the Australian Fair Pay and Conditions Standard provides a more favourable outcome for an employee in a particular respect than an enterprise agreement or workplace determination that applies to that employee; or (b) what the outcome is for an employee in a particular respect under the Australian Fair Pay and Conditions Standard, where an enterprise agreement or a workplace determination applies to that employee; (3) For the purposes of subitem (2), Divisions 2 and 3 of Part 13 of the WR Act apply as if a reference in those Divisions to the Commission or the Industrial Registrar were a reference to FWA. (4) The fact that the model dispute resolution process applies in relation to the dispute does not affect any right of a party to the dispute to take court action to resolve it. (6) Despite the WR Act repeal, regulations made for the purposes of subsection 172(4) of the WR Act continue to apply during the bridging period as if a reference in those regulations to a workplace agreement were a reference to an enterprise agreement and a workplace determination. (7) A term of an enterprise agreement or a workplace determination has no effect to the extent to which it purports to exclude the Australian Fair Pay and Conditions Standard or any part of it.