Section 102 — Fair Work Act 2009: Application of amendments

Application of definition of casual employee (1) Section 15A of the amended Act applies on and after commencement in relation to employment relationships entered into before, on or after commencement. (2) Despite subclause (1), for the purposes of applying section 15A of the amended Act on and after commencement in relation to employment relationships entered into before commencement: (a) conduct of an employer and employee that occurred before commencement is to be disregarded for the purposes of applying subsections 15A(2) and (3) in relation to that employee; and (b) if an employee’s contract of employment immediately before commencement included a term of a kind referred to in subsection 15A(4)—that subsection is taken not to apply in relation to the employee for the remainder of the term of that contract. Continuing casual employees (3) For the purposes of subclause (1), an employee who was, immediately before commencement, a casual employee of an employer within the meaning of section 15A as in force at that time, is taken to be a casual employee of the employer within the meaning of section 15A of the amended Act on and after commencement. Application of employee choice and casual conversion provisions (5) The amendments of Division 4A of Part 2-2 made by the amending Act apply on and after commencement in relation to employment relationships entered into before, on or after commencement. (6) For the purposes of applying subclause (5) in relation to employment relationships entered into before commencement: (a) any period of employment as a casual employee that occurred before commencement is to be disregarded for the purposes of paragraphs 66AAB(c) and (d) of the amended Act; and (b) paragraph 66AAB(d) of the amended Act is taken to include a requirement that in the period referred to in that paragraph the employee has not: (ia) been given a notice before commencement under subsection 66C(3) that the employer is not required to make an offer to the employee under section 66B; or (ib) been given a notice after commencement under subsection 66C(3) that the employer is not required to make an offer to the employee under section 66B (as those sections continue to apply because of subclauses (6AA) and (6AB)); or (ic) declined before commencement, under section 66D, an offer made by the employer under section 66B; or (id) declined after commencement, under section 66D, an offer made by the employer under section 66B (as those sections continue to apply because of subclauses (6AA) and (6AB)); or (i) been given a response before commencement by the employer under section 66G refusing a request made by the employee under section 66F; or (ii) been given a response after commencement by the employer under section 66G refusing a request made by the employee under section 66F (as those sections continue to apply because of subclauses (6A) and (6B)). (6AA) Despite subclause (5), sections 66B and 66C as in force immediately before commencement continue to apply after commencement for a period of 6 months from commencement in relation to employment relationships entered into before commencement where the employer is not a small business employer at commencement. (6AB) Despite subclause (5), sections 66D and 66E as in force immediately before commencement continue to apply after commencement in relation to: (a) an offer made before commencement by an employer under section 66B for which, immediately before commencement, a response under section 66D or a notice under section 66E had not been given; or (b) an offer made after commencement by an employer under section 66B, or a notice given after commencement under subsection 66C(3) that the employer has decided not to make an offer to the employee under section 66B (as those sections continue to apply because of subclause (6AA)). (6A) Despite subclause (5), section 66F as in force immediately before commencement continues to apply after commencement in relation to employment relationships entered into before commencement for a period of: (a) for an employer that is a small business employer at commencement—12 months from commencement; or (b) for an employer that is not a small business employer at commencement—6 months from commencement. (6B) Despite subclause (5), sections 66G to 66J as in force immediately before commencement continue to apply after commencement in relation to: (a) a request made before commencement by an employee under section 66F for which, immediately before commencement, a response under section 66G or a notice under section 66J had not been given; or (b) a request made after commencement by an employee under section 66F (as that section continues to apply because of subclause (6A)). (7) Despite subclause (5), sections 66M, 548 and 739 as in force immediately before commencement continue to apply after commencement to: (a) disputes that arose before commencement relating to the operation of Division 4A of Part 2-2; and (aa) disputes that arise after commencement relating to the operation of sections 66B to 66E (as those sections continue to apply because of subclauses (6AA) and (6AB)); and (b) disputes that arise after commencement relating to the operation of sections 66F to 66J (as those sections continue to apply because of subclauses (6A) and (6B)). Definitions (8) In this clause: commencement means the commencement of Part 1 of Schedule 1 to the amending Act.