Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 768AX

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;

  (d)   whether the copied State instrument, without the variation, would have a negative impact on the productivity of the new employer's workplace;

  (e)   whether the new employer would incur significant economic disadvantage as a result of the copied State instrument, without the variation;

  (f)   the degree of business synergy between the copied State instrument, without the variation, and any workplace instrument that already covers the new employer;

  (g)   the public interest.

Variation relating to the NES

  (4)   If there is a dispute about the making of a variation for the purposes of paragraph   (1)(d), the FWC may compare the entitlements that are in dispute:

  (a)   on a "line - by - line" basis, comparing individual terms; or

  (b)   on a "like - by - like" basis, comparing entitlements according to particular subject areas; or

  (c)   using any combination of the above approaches the FWC sees fit.

  (5)   The regulations may make provisions that apply to determining, for the purposes of paragraph   (1)(d), whether terms of a copied State instrument for a transferring employee are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards.

When variation may be made

  (6)   A variation may be made under subsection   (1) in relation to a copied State instrument of a transferring employee:

  (a)   before the copied State instrument comes into operation, if it is likely that the instrument will come into operation; and

  (b)   before the employee is a transferring employee, if it is likely that the employee will become a transferring employee.

Restriction on when variation may come into operation

  (7)   A variation under subsection   (1) operates from the day specified in the variation, which may be a day before the variation is made.