Part 5Effect of conduct engaged in while bargaining for WR Act collective agreement or collective State employment agreement

Part 5—Effect of conduct engaged in while bargaining for WR Act collective agreement or collective State employment agreement (a) before the WR Act repeal day, a bargaining representative for a proposed enterprise agreement engaged in conduct in relation to a proposed collective agreement; and (c) the employment of the employees who would be covered by the proposed enterprise agreement would have been subject to the proposed collective agreement, had it been made; and (d) the employers who would be covered by the proposed enterprise agreement would have been bound by the proposed collective agreement, had it come into operation. (a) before the Division 2B referral commencement, a bargaining representative for a proposed enterprise agreement engaged in conduct in relation to a proposed collective State employment agreement; and (b) immediately before that day, the collective State employment agreement had not been made, or had been made but had not been lodged (however described) under a State industrial law of a Division 2B referring State; and (c) the employment of the employees who would be covered by the proposed enterprise agreement would have been subject to the proposed collective State employment agreement, had it come into operation; and (d) the employers who would be covered by the proposed enterprise agreement would have been bound by the proposed collective State employment agreement, had it come into operation. (2) If this item applies because of subitem (1) or (1A), the FWC may take into account the conduct referred to in that subitem: (a) in deciding whether it is reasonable in all the circumstances to make a bargaining order or a scope order in relation to the proposed enterprise agreement; and (b) in deciding which terms to include in a workplace determination that relates to the proposed enterprise agreement; and (c) in deciding under Part 3‑3 of the FW Act (which deals with industrial action) whether a bargaining representative is genuinely trying to reach an agreement in relation to the proposed enterprise agreement; and (d) in deciding under subsection 423(2) or (3) of that Act whether protected industrial action that relates to the proposed enterprise agreement is causing, or threatening to cause, significant economic harm to a person. (1) If industrial action (whether or not protected action) is engaged in before the commencement of Part 3‑3 of the FW Act then: (a) Division 9 of Part 9 of the WR Act continues to apply, on and after the WR Act repeal day, in relation to the industrial action; and (a) industrial action (whether or not protected action) is engaged in during a shift or other period of work that is taken to be a day because of subsection 507(3) of the WR Act; and (c) Division 9 of Part 9 of the WR Act continues to apply, on and after the WR Act repeal day, in relation to the industrial action until the end of that shift or other period; and (d) Part 3‑1 and Division 9 of Part 3‑3 of the FW Act do not apply in relation to the industrial action engaged in during that shift or period. (a) the reference in paragraph 470(4)(c), subsection 471(2) and paragraph 474(2)(c) of that Act to a modern award included a reference to an award‑based transitional instrument and a Division 2B State award; and (b) the reference in those provisions to an enterprise agreement included a reference to an agreement‑based transitional instrument and a Division 2B State agreement. A permit that is in force immediately before the WR Act repeal day under Part 15 of the WR Act, or that comes into force on or after that day under that Part, has effect: The reference in subsections 481(1) and 483A(1) of the FW Act to a suspected contravention of this Act or a term of a fair work instrument is taken to include a reference to a suspected contravention of any of the following: A notice given under subsection 748(5) of the WR Act to produce, or allow access to, records on a day, or days, on or after the WR Act repeal day has effect, on and after the WR Act repeal day, as if it were given under subsection 483(1) of the FW Act. (a) the reference in paragraph 510(1)(a) of that Act to the permit holder being found, in proceedings under this Act, to have contravened subsection 503(1) included a reference to the permit holder being found, in proceedings under the WR Act, as in force from time to time, to have contravened section 768 of the WR Act; and (b) the reference in paragraph 510(1)(d) of the FW Act to “this Act” (being the FW Act) included a reference to the WR Act as in force from time to time and the reference in that paragraph to “this Part” (being Part 3‑4 of the FW Act) included a reference to Part 15 of the WR Act; and (c) the reference in paragraph 510(4)(a) of the FW Act to the FWC not having previously taken action under subsection (1) against the permit holder included a reference to the Registrar not having taken action against the permit holder under subsection 744(4) of the WR Act, as in force from time to time; and (d) the references in paragraphs 510(4)(b) and (c) of the FW Act to the FWC having taken action under subsection (1) against the permit holder included a reference to the Registrar having taken action against the permit holder under subsection 744(4) of the WR Act, as in force from time to time. (1) An instrument that, because of this Schedule, has effect under the FW Act continues, in addition to that effect, to have effect under the WR Act for the purposes of item 11 of Schedule 2. (2) Any suspension or revocation of, or imposition of conditions on, an entry permit under the WR Act (as it continues to apply because of item 11 of Schedule 2) is also taken to have been done under the FW Act. (3) Despite item 11 of Schedule 2, disputes about the operation of Part 15 of the WR Act that could, because of that item, have been dealt with under section 772 of that Act, may be dealt with only by the FWC under section 505 of the FW Act. (a) as if the reference in subsection (1) of that section to “this Part” (being Part 3‑4 of the FW Act) were a reference to Part 15 of the WR Act; and Subsection 524(2) of the FW Act (which deals with circumstances allowing stand down) applies in relation to a transitional instrument as if a reference to an enterprise agreement included a reference to a transitional instrument. Despite item 4 of Schedule 3, subsection 691A(5) of the WR Act does not continue to apply in relation to WR Act instruments that become transitional instruments. Note: This means that a provision of a transitional instrument that is a provision of the kind described in subparagraph 691A(1)(c)(ii) of the WR Act (being a provision requiring an employer to apply to a third party for authorisation to stand down employees in certain circumstances) has effect on and after the WR Act repeal day. Subsection 524(2) of the FW Act (which deals with circumstances allowing stand down) applies in relation to a Division 2B State instrument as if a reference to an enterprise agreement included a reference to a Division 2B State instrument. Note 2: An injunction may not be granted in relation to a contravention of an award‑based transitional instrument (see item 17). Note 2: An injunction may not be granted in relation to a contravention of an agreement‑based transitional instrument (see item 17).