Award Modernisation—Enterprise instruments and State reference public sector transitional awards
[2013] FWC 2790
•22 MAY 2013
[2013] FWC 2790 |
FAIR WORK COMMISSION |
STATEMENT |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Schedule 6, Item 10—modernisation and termination of enterprise instruments
Schedule 6A, Item 11—modernisation and termination of State reference public sector transitional awards
Award Modernisation—Enterprise instruments and State reference public sector transitional awards
(EM2013/3 and AM2013/8)
SENIOR DEPUTY PRESIDENT ACTON | MELBOURNE, 22 MAY 2013 |
Award modernisation – modernisation and termination of enterprise instruments and modernisation of State reference public sector transitional awards.
[1] This statement concerns the modernisation and termination of enterprise instruments pursuant to the provisions of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) [see Attachment A] and the modernisation, termination and variation of State reference public sector transitional awards pursuant to the provisions of Schedule 6A to the Transitional Act [see Attachment B].
[2] The coverage clauses of all modern awards that commenced on 1 January 2010 provide, amongst other things, that modern awards do not cover employees who are covered by an enterprise instrument or a State reference public sector transitional award or employers in relation to those employees. The employees and employers covered by enterprise instruments and State reference public sector transitional awards presently continue to be covered by those instruments and/or any applicable agreement.
Modernisation and termination of enterprise instruments
[3] An ‘enterprise instrument’ is defined in Items 2 and 3 of Schedule 6.
[4] Under Item 4 of Schedule 6, an application can be made by 31 December 2013 to modernise an enterprise instrument, that is to make a new modern enterprise award to replace the existing enterprise instrument.
[5] Under Item 5 of Schedule 6, an application can be made by 31 December 2013 to terminate an enterprise instrument.
[6] If no application is made by 31 December 2013 to modernise or terminate an enterprise instrument, the instrument terminates at the end of that period. Upon termination of an enterprise instrument, those employers and employees previously covered by that instrument will then be covered by a modern award that covers their industry and classification. If there is no modern award for a particular industry or classification, interested persons may make an application to the Commission under ss.157–160 of the Fair Work Act 2009 using Form F46 to vary the coverage of an existing modern award.
[7] Commission staff will publish a draft list of enterprise instruments affected by this process on the Award modernisation—Termination of instruments section of the Commission website for comment. Comments about the status of an instrument as an enterprise instrument or whether there are any other instruments that should be included in the list can be made in writing to [email protected] by 7 June 2013. Comments about whether the instrument is or is not in use are not required at this stage.
[8] Following consultation, a final list of instruments identified as enterprise instruments for the purpose of Schedule 6 will be published on the Commission website later in June 2013.
[9] In accordance with Item 10 of Schedule 6, the Commission will write to all employers and employee organisations covered by the enterprise instruments listed, advising any persons still covered by an enterprise instrument that the period for making applications to modernise or terminate their instruments ends on 31 December 2013 and that if no application is made, the instrument terminates at the end of that period.
[10] Applications to modernise or terminate enterprise instruments must be lodged with the Commission by 31 December 2013 using Form F1. These applications will be dealt with by a Full Bench of the Commission as soon as practicable after lodgement.
Modernisation and termination of State reference public sector transitional awards
[11] A ‘State reference public sector transitional award’ is defined in Item 2(1) of Schedule 6A.
[12] Under Item 4 of Schedule 6A, an application can be made by 31 December 2013 to modernise a State reference public sector transitional award. Modernising a State reference public sector transitional award involves making a State reference public sector modern award.
[13] Under Item 5 of Schedule 6A, an application can be made by 31 December 2013 to terminate a State reference public sector transitional award.
[14] Commission staff will publish a draft list of State reference public sector transitional awards affected by this process on the Award modernisation—Termination of instruments section of the Commission website for comment. Comments about the status of an instrument as a State reference public sector transitional award or whether there are other instruments that should be included in the list can be made in writing to [email protected] by 7 June 2013. Comments about whether the instrument is or is not in use are not required at this stage.
[15] Following consultation, a final list of awards identified as State reference public sector transitional awards for the purpose of Schedule 6A will be published on the Commission website later in June 2013.
[16] In accordance with Item 11 of Schedule 6A, the Commission will write to all employers and employee organisations covered by the State reference public sector transitional awards listed, advising any persons still covered by those awards that the period for making applications to modernise or terminate their award ends on 31 December 2013 and that the Commission will, at the end of that period, commence the modernisation process in relation to the award for any employees and employers still covered by the award at that time.
[17] Applications to modernise or terminate a State reference public sector transitional award must be lodged with the Commission by 31 December 2013 using Form F1. These applications will be dealt with by the Commission as soon as practicable after lodgement.
Fair Work Commission website
[18] All material in relation to these modernisation processes will be published on the Award modernisation—Termination of instruments section of the Commission website.
SENIOR DEPUTY PRESIDENT
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ATTACHMENT A
Extract from Fair Work (Transitional Provisions & Consequential Amendments) Act 2009 — Schedule 6
Part 2—The enterprise instrument modernisation process
Division 1—Enterprise instruments
2 Enterprise instruments
(1) Each of the following is an enterprise instrument:
(a) an enterprise award-based instrument;
(b) an enterprise preserved collective State agreement;
(c) a Division 2B enterprise award.
(2) An enterprise award-based instrument is an award-based transitional instrument, other than a State reference public sector transitional award, to which subitem (2A) or (2B) applies.
(2A) This subitem applies to an award-based transitional instrument that is an award or a State reference transitional award, if the award or State reference transitional award covers employees in:
(a) a single enterprise (or a part of a single enterprise) only; or
(b) one or more enterprises, if the employers all carry on similar business activities under the same franchise and are:
(i) franchisees of the same franchisor; or
(ii) related bodies corporate of the same franchisor; or
(iii) any combination of the above.
(2B) This subitem applies to an award-based transitional instrument that is a notional agreement preserving State awards, if the notional agreement includes terms and conditions from a State award (within the meaning of the WR Act) that covered employees in:
(a) a single enterprise (or a part of a single enterprise) only; or
(b) one or more enterprises, if the employers all carried on similar business activities under the same franchise and were:
(i) franchisees of the same franchisor; or
(ii) related bodies corporate of the same franchisor; or
(iii) any combination of the above.
(3) An enterprise preserved collective State agreement is a transitional instrument that is a preserved collective State agreement in relation to which the following paragraphs are satisfied:
(a) a State or Territory law had, on the day before the commencement of Part 2 of Schedule 4 to the Workplace Relations Amendment (Work Choices) Act 2005, the effect (however described) of converting a State award (within the meaning of the WR Act) into the relevant State employment agreement (within the meaning of the WR Act);
(b) if the State award had continued to have effect in relation to employees, a notional agreement preserving State awards to which subitem (2B) applies would have been taken to come into operation in relation to those employees.
(4) A Division 2B enterprise award is a Division 2B State award that covers:
(a) a single enterprise (or a part of a single enterprise) only; or
(b) one or more enterprises, if the employers all carry on similar business activities under the same franchise and are:
(i) franchisees of the same franchisor; or
(ii) related bodies corporate of the same franchisor; or
(iii) any combination of the above.
3 Meaning of single enterprise and part of a single enterprise
(1) A single enterprise is:
(a) a business, project or undertaking that is carried on by an employer; or
(b) the activities carried on by:
(i) the Commonwealth, a State or a Territory; or
(ii) a body, association, office or other entity established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or
(iii) any other body in which the Commonwealth, a State or a Territory has a controlling interest.
(2) For the purposes of subitem (1), if 2 or more employers carry on a business, project or undertaking as a joint venture or common enterprise, the employers are taken to be one employer.
(3) For the purposes of subitem (1), if 2 or more related bodies corporate each carry on a single enterprise:
(a) the bodies corporate are taken to be one employer; and
(b) the single enterprises are taken to be one single enterprise.
Note: However, an enterprise instrument or a modern enterprise award could just relate to a part of that single enterprise.
(4) A part of a single enterprise includes, for example:
(a) a geographically distinct part of the single enterprise; or
(b) a distinct operational or organisational unit within the single enterprise.
Division 2—The enterprise instrument modernisation process
4 The enterprise instrument modernisation process
(1) The enterprise instrument modernisation process is the process of making modern awards under this Division to replace enterprise instruments.
(2) On application, FWA may make a modern award (a modern enterprise award) to replace an enterprise instrument.
(3) The application may be made only:
(a) by a person covered by the enterprise instrument; and
(b) during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.
(4) A modern enterprise award must be made by a Full Bench.
(5) In deciding whether or not to make a modern enterprise award, and in determining the content of that award, FWA must take into account the following:
(a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;
(b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;
(c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);
(d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;
(e) the extent to which the enterprise instrument provides enterprise-specific terms and conditions of employment;
(f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;
(g) the views of the persons covered by the enterprise instrument;
(h) any other matter prescribed by the regulations.
Note: A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC’s final wage review under the WR Act, or to include transitional arrangements in the modern award.
(5A) If FWA makes a modern enterprise award before the FW (safety net provisions) commencement day, the modern enterprise award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day.
Note: For when a modern enterprise award is in operation, see item 17.
(6) The regulations may deal with other matters relating to the enterprise instrument modernisation process.
5 Enterprise instruments: termination by FWA
(1) A person covered by an enterprise instrument may apply to FWA for FWA to terminate the instrument.
(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.
(3) If an application for FWA to terminate the enterprise instrument is made under subitem (1), FWA may:
(a) terminate the enterprise instrument; or
(b) decide that the enterprise instrument should not be terminated; or
(c) decide to treat the application as if it were an application under item 4.
(4) In making a decision under subitem (3), FWA must take into account the following:
(a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;
(b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;
(c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);
(d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;
(e) the extent to which the enterprise instrument provides enterprise-specific terms and conditions of employment;
(f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to terminate, or not terminate, the enterprise instrument, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;
(g) the views of the persons covered by the enterprise instrument;
(h) any other matter prescribed by the regulations.
Note: A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC’s final wage review under the WR Act, or to include transitional arrangements in the modern award.
(5) If FWA terminates the enterprise instrument, the termination operates from the day specified in the decision to terminate the instrument, being a day that is not earlier than the FW (safety net provisions) commencement day.
6 The modern enterprise awards objective
(1) The modern awards objective and the minimum wages objective apply to FWA making a modern enterprise award under this Division.
(2) However, in applying the modern awards objective and the minimum wages objective, FWA must recognise that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. This is the modern enterprise awards objective.
Note 1: See also item 11 (enterprise instrument modernisation process is not intended to result in reduction in take-home pay).
Note 2: See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day).
7 Terms of modern enterprise awards
(1) Subject to this item and item 8, Division 3 of Part 2-3 of the FW Act (which deals with terms of modern awards) applies in relation to a modern enterprise award made under this Division.
Note: See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day).
Increases in entitlements
(2) If the making of a modern enterprise award results in an increase in an employee’s entitlements, the modern enterprise award may provide for the increases to take effect in stages.
Industry-specific redundancy schemes
(3) If a modern award includes an industry-specific redundancy scheme in relation to a particular industry, and FWA makes a modern enterprise award that covers persons who operate in that industry, FWA may include the industry-specific redundancy scheme in the modern enterprise award.
8 Coverage terms
Coverage terms must be included
(1) A modern enterprise award must include terms (coverage terms) setting out, in accordance with this item:
(a) the enterprise or enterprises to which the modern enterprise award relates; and
(b) the employer or employers, employees and organisations that are covered by the modern enterprise award.
Enterprises
(2) A modern enterprise award must be expressed to relate:
(a) to a single enterprise (or a part of a single enterprise) only; or
(b) to one or more enterprises, but only if the employers all carry on similar business activities under the same franchise and are:
(i) franchisees of the same franchisor; or
(ii) related bodies corporate of the same franchisor; or
(iii) any combination of the above.
Employers and employees
(3) A modern enterprise award must be expressed to cover:
(a) a specified employer that carries on, or specified employers that carry on, the enterprise or enterprises referred to in subitem (2); and
(b) specified employees of the employer or employers covered by the modern enterprise award.
Organisations
(4) A modern enterprise award may be expressed to cover one or more specified organisations, in relation to:
(a) all or specified employees covered by the award; or
(b) the employer, or all or specified employers, covered by the award.
Outworker entities
(5) A modern enterprise award must not be expressed to cover outworker entities.
How coverage etc. is expressed
(6) For the purposes of subitem (2), an enterprise must be specified:
(a) if paragraph (2)(a) applies to the enterprise—by name; or
(b) if paragraph (2)(b) applies to the enterprise—by name, or by the name of the franchise.
(7) For the purposes of subitems (3) and (4):
(a) an employer or employers may be specified by name or by inclusion in a specified class or specified classes; and
(b) employees must be specified by inclusion in a specified class or specified classes; and
(c) organisations must be specified by name.
Employees not traditionally covered by awards etc.
(8) A modern enterprise award must not be expressed to cover classes of employees:
(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or
(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.
Note: For example, in some industries, managerial employees have traditionally not been covered by awards.
9 Variation and termination of certain instruments to take account of enterprise instrument modernisation process
(1) If FWA makes a modern enterprise award to replace an enterprise preserved collective State agreement, the agreement terminates when the modern award comes into operation.
(2) FWA must, as soon as practicable after a modern enterprise award that is made to replace an enterprise instrument comes into operation:
(a) terminate the enterprise instrument (if it has not already terminated under subitem (1)); and
(b) vary or terminate (as appropriate) any of the following (modernisable instruments):
(i) other award-based transitional instruments;
(ii) transitional APCSs;
(iii) other Division 2B State awards;
so that employees who were covered by the enterprise instrument are no longer covered by those modernisable instruments.
Note 1: The main provisions about transitional instruments are in Schedule 3, the main provisions about transitional APCSs are in Schedule 9, and the main provisions about Division 2B State awards are in Schedule 3A.
Note 2: This item does not limit the effect of any other provision of this Act under which a modernisable instrument ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.
(3) If FWA decides not to make a modern enterprise award to replace an enterprise instrument, the instrument terminates when that decision comes into operation.
(3A) Despite subitem (3), if, before the FW (safety net provisions) commencement day, FWA makes a decision not to make a modern enterprise award to replace an enterprise instrument, the decision must not come into operation before the FW (safety net provisions) commencement day.
(4) If, by the end of the period specified in paragraph 4(3)(b), no application under item 4 or 5 has been made in relation to an enterprise instrument, the instrument terminates at the end of that period.
(5) As soon as practicable after all modern enterprise awards made in the enterprise instrument modernisation process have come into operation, FWA must terminate any remaining modernisable instruments.
10 Notification of the cut-off for the enterprise instrument modernisation process
(1) FWA must, at least 6 months before the end of the period specified in paragraph 4(3)(b), advise any persons still covered by an enterprise instrument:
(a) that the period for making applications under items 4 and 5 ends on 31 December 2013; and
(b) of the consequences for the enterprise instrument if an application in relation to the instrument is not made.
(2) FWA may give that advice by any means it considers appropriate.
(3) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s functions and powers under this item.
ATTACHMENT B
Extract from Fair Work (Transitional Provisions & Consequential Amendments) Act 2009 — Schedule 6A
Division 1—State reference public sector transitional awards
2 State reference public sector transitional awards
(1) A State reference public sector transitional award is a State reference transitional award or common rule in relation to which the following conditions are satisfied:
(a) the only employers that are expressed to be covered by the award or common rule are one or more specified State reference public sector employers;
(b) the only employees who are expressed to be covered by the award or common rule are specified State reference public sector employees of those employers.
Note: State reference transitional awards and common rules are continued in existence as transitional instruments by Schedule 3.
(2) A State reference public sector employee is a State reference employee who is a State public sector employee as defined in section 30A or 30K of the FW Act.
(3) A State reference public sector employer is a State reference employer that is a State public sector employer as defined in section 30A or 30K of the FW Act.
(4) If:
(a) a State reference transitional award or common rule (the current award) covers one or more State reference public sector employers, and State reference public sector employees of those employers; and
(b) the current award also covers:
(i) other employees of those employers; or
(ii) other employers, and employees of those other employers;
then, for the purposes of this Act, the current award is taken instead to constitute 2 separate State reference transitional awards or common rules as follows:
(c) a State reference public sector transitional award covering:
(i) the employers, and the employees of those employers, referred to in paragraph (a); and
(ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a)—that organisation in relation to those employers or employees; and
(d) a State reference transitional award or a State reference common rule (as the case requires) covering:
(i) the employers, and the employees of those employers, referred to in paragraph (b); and
(ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b)—that organisation in relation to those employers or employees.
Division 2—The State reference public sector transitional award modernisation process
3 The State reference public sector transitional award modernisation process
(1) The State reference public sector transitional award modernisation process is the process of making State reference public sector modern awards under this Division covering employers, employees and organisations that are covered by State reference public sector transitional awards.
(2) A State reference public sector modern award is a modern award in relation to which the following conditions are satisfied:
(a) the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers;
(b) the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers.
(3) A State reference public sector modern award must be made by a Full Bench.
4 Making State reference public sector modern awards on application
(1) An employer or organisation that is covered by a State reference public sector transitional award (the current award) may apply to FWA for the making of a State reference public sector modern award (the proposed award).
(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.
(3) The application must specify the employers, employees and organisations (the proposed parties) proposed to be covered by the proposed award.
(4) FWA must consider the application, and must make a State reference public sector modern award covering the proposed parties if FWA is satisfied that:
(a) the proposed parties are covered by State reference public sector transitional awards; and
(b) the employers and organisations that are proposed parties have agreed to the making of the application.
Note: The proposed parties will cease to be covered by State reference public sector transitional awards when the State reference public sector modern award comes into operation: see item 29 of Schedule 3.
5 Terminating State reference public sector transitional awards on application
(1) An employer or organisation that is covered by a State reference public sector transitional award (the current award) may apply to FWA or the Commission to terminate the current award.
(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.
(3) FWA or the Commission must not terminate the current award unless FWA or the Commission is satisfied that the employees who are covered by the current award will, if the current award is terminated, be covered by a modern award (other than the miscellaneous modern award)that, at the time of the termination, is or is likely to be in operation and that is appropriate for them.
(4) In deciding whether to terminate the current award, FWA or the Commission must take into account the following:
(a) the circumstances that led to the making of the current award;
(b) the terms and conditions of employment applying in the industry or occupation in which the persons covered by the current award operate, and the extent to which those terms and conditions are reflected in the current award;
(c) the extent to which the current award facilitates arrangements, and provides terms and conditions of employment, referred to in paragraphs 7(2)(a) and (b);
(d) the likely impact on the persons covered by the current award of a decision to terminate, or not to terminate, the current award;
(e) the views of the persons covered by the current award;
(f) any other matter prescribed by the regulations.
(5) If FWA or the Commission terminates the current award, the termination operates from the day specified in the decision to terminate the current award, being a day that is not earlier than the FW (safety net provisions) commencement day.
(6) If the Commission terminates the current award, the termination is taken, after the Commission has ceased to exist, to have been made by FWA.
Note: Schedule 18 provides for when the Commission ceases to exist.
5A Varying State reference public sector transitional awards on application
(1) An employer or organisation that is covered by a State reference public sector transitional award (the current award) may apply to FWA to vary the coverage of the current award.
(2) The application may be made only until the end of 31 December 2013.
(3) FWA must not vary the coverage of the current award unless FWA is satisfied that, if the current award were to be varied, the employees who would cease to be covered by the current award would become covered by a modern award (other than the miscellaneous modern award) that, at the time of the variation, would be in operation and would be appropriate for them.
(4) In deciding whether to vary the coverage of the current award, FWA must take into account the following:
(a) the likely impact of a decision to make, or not to make, the variation on the persons who, if the current award were to be varied, would cease to be covered by the current award;
(b) the views of the persons who would, if the variation were made, cease to be covered by the current award;
(c) any other matter prescribed by the regulations.
(5) If FWA varies the coverage of the current award, the variation operates from the day specified in the decision to vary the current award.
6 Further obligation of FWA to make or vary State reference public sector modern awards at end of application period
If, at the end of the period referred to in subitem 4(2), there are one or more State reference public sector transitional awards that still cover some employers and employees, FWA must make, or (in accordance with section 168L of the FW Act) vary the coverage of, one or more State reference public sector modern awards so that all those employers and employees are covered by State reference public sector modern awards.
Note: The employers and employees will cease to be covered by the State reference public sector transitional awards when they start to be covered by a State reference public sector modern award that is in operation: see item 29 of Schedule 3.
7 The State reference public sector modern awards objective
(1) If FWA is required by item 4 or 6 to make a State reference public sector modern award, the modern awards objective and the minimum wages objective apply to the making of the modern award.
(2) However, in applying the modern awards objective and the minimum wages objective, FWA must recognise:
(a) the need to facilitate arrangements for State reference public sector employers and State reference public sector employees that are appropriately adapted to the effective administration of a State; and
(b) that State reference public sector modern awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to State reference public sector employers and State reference public sector employees.
This is the State reference public sector modern awards objective.
Note 1: See also item 13 (State reference public sector transitional award modernisation process is not intended to result in reduction in take-home pay).
Note 2: See also item 19 (how the FW Act applies in relation to the State reference public sector transitional award modernisation process before the FW (safety net provisions) commencement day).
8 Terms of State reference public sector modern awards
(1) Division 3 (other than sections 143 and 154) of Part 2-3 of the FW Act (which deals with terms of modern awards) applies in relation to a State reference public sector modern award made under this Division.
Note: See also item 19 (how the FW Act applies in relation to the State reference public sector transitional award modernisation process before the FW (safety net provisions) commencement day).
(2) If FWA makes a State reference public sector modern award before the FW (safety net provisions) commencement day, the State reference public sector modern award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day.
9 Coverage terms
Coverage terms must be included
(1) A State reference public sector modern award must include terms (coverage terms) setting out, in accordance with this item, the employers, employees and organisations that are covered by the State reference public sector modern award.
Employers and employees
(2) The coverage terms must be such that:
(a) the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers; and
(b) the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers.
Organisations
(3) A State reference public sector modern award may be expressed to cover one or more specified organisations, in relation to:
(a) all or specified employees covered by the modern award; or
(b) the employer, or all or specified employers, covered by the modern award.
Outworker entities
(4) A State reference public sector modern award must not be expressed to cover outworker entities.
How coverage etc. is expressed
(5) For the purposes of this item:
(a) an employer or employers may be specified by name or by inclusion in a specified class or specified classes; and
(b) employees must be specified by inclusion in a specified class or specified classes; and
(c) organisations must be specified by name.
10 Variation and termination of State reference public sector transitional awards to take account of the modernisation process
(1) If a State reference public sector modern award completely replaces a State reference public sector transitional award, the transitional award terminates when the modern award comes into operation.
(2) If a State reference public sector modern award partially replaces a State reference public sector transitional award, FWA must, as soon as practicable after the modern award comes into operation, vary the transitional award so that employees who are covered by the modern award are no longer covered by the transitional award.
(3) For the purposes of this item:
(a) the modern award completely replaces the transitional award if all the employees who are covered by the transitional award become covered by the modern award when it comes into operation; and
(b) the modern award partially replaces the transitional award if only some of the employees who are covered by the transitional award become covered by the modern award when it comes into operation.
Note: This item does not limit the effect of any other provision of this Act under which a transitional instrument (a State reference public sector transitional award is a transitional instrument) ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.
11 Notification of the cut-off for the State reference public sector transitional award modernisation process
(1) FWA must, at least 6 months before the end of the period specified in subitem 4(2), advise any persons still covered by a State reference public sector transitional award:
(a) that the period for making applications under items 4 and 5 ends on 31 December 2013; and
(b) that FWA will, at the end of that period, commence the State reference public sector transitional award modernisation process in relation to the transitional award for any employees and employers who are still covered by the transitional award at that time.
(2) FWA may give that advice by any means it considers appropriate.
(3) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s functions and powers under this item.
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