Section 768AM — Fair Work Act 2009: When does a copied State instrument apply to a person?

Transferring employee and organisations (1) A copied State instrument for a transferring employee applies to the transferring employee or an organisation if: (a) the instrument covers the employee or organisation; and (b) the instrument is in operation; and (c) no other provision of this Act provides, or has the effect, that the instrument does not apply to the employee or organisation; and (d) immediately before the employee’s termination time, the employee or organisation would have been: (i) required by the law of the State to comply with terms of the original State award or original State agreement for the instrument; or (ii) entitled under the law of the State to enforce terms of the original State award or original State agreement for the instrument. New employer and other employers (2) A copied State instrument for a transferring employee applies to an employer (whether the new employer or another employer) if: (a) the instrument covers the employer; and (b) the instrument is in operation; and (c) no other provision of this Act provides, or has the effect, that the instrument does not apply to the employer; and (d) immediately before the employee’s termination time, the old State employer would have been: (i) required by the law of the State to comply with terms of the original State award or original State agreement for the instrument; or (ii) entitled under the law of the State to enforce terms of the original State award or original State agreement for the instrument. Note: This subsection may operate in relation to an employer that is not the new employer in the situation where there has been a later transfer of business by the new employer (see Part 2-8). Other circumstances when instrument applies (3) A copied State instrument for a transferring employee also applies to a person if an FWC order made under a provision of this Act provides, or has the effect, that the instrument applies to the person. Instrument only applies in relation to transferring work (4) A reference in this Act to a copied State instrument for a transferring employee applying to the employee is a reference to the instrument applying to the employee in relation to the transferring work of the employee.