Section 46 — Fair Work Act 2009: Application of certain amendments

(1) Section 15A of the amended Act applies on and after commencement in relation to offers of employment that were given before, on or after commencement. (2) Subclause (1) does not apply in relation to a person who is an employee of an employer as a result of accepting an offer that was made before commencement if either of the following apply in relation to that person: (a) a court made a binding decision before commencement that the person is not a casual employee of the employer; (b) the person converted the employment before commencement to employment other than casual employment under a term of a fair work instrument or contract of employment. (3) In addition to subclause (1), section 15A of the amended Act (and the amendment made by item 1 of Schedule 1 to the amending Act) also applies before commencement in relation to offers of employment that were given before commencement, unless either of the following apply in relation to a person who is or was an employee of an employer as a result of accepting the offer: (a) a court made a binding decision before commencement that the person is not a casual employee of the employer; (b) the person converted the employment before commencement to employment other than casual employment under a term of a fair work instrument or contract of employment. (4) To avoid doubt, if, apart from subclause (3), an employee could have made a claim for accrued relevant entitlements (within the meaning of subsection 545A(4) of the amended Act), the effect of that subclause is that the employee has not accrued, and cannot make a claim for, those entitlements. (5) Subject to clause 47, Division 4A of Part 2-2 of the amended Act applies in relation to periods of employment starting before, on or after commencement. (6) Section 545A of the amended Act applies in relation to entitlements that accrue, and loading amounts paid, on or after commencement. (7) In addition to subclause (6), section 545A of the amended Act also applies in relation to entitlements that accrue, and loading amounts paid, before commencement. (8) To avoid doubt, section 545A of the amended Act applies: (a) to periods of employment starting before, on or after commencement (regardless of whether the employment period ended before commencement); and (b) regardless of whether a person is, or is not, an employee of the relevant employer at the time a claim to which that section relates is made. (9) A reference to periods of employment as a casual employee in section 87, 96, 117, 119 or 121 of the amended Act applies to periods of employment starting before, on or after commencement. (10) A reference to a regular casual employee in section 23, 65, 67 or 384 of the amended Act applies to periods of employment starting before, on or after commencement. (11) To avoid doubt, nothing in subclause (1) is taken to change the time at which the person became an employee of the employer.