Section 768AS — Fair Work Act 2009: Modern awards and copied State awards

(1) While a copied State award for a transferring employee: (a) covers the employee, or an employer (whether the new employer or another national system employer) or other person in relation to the employee; and (b) is in operation; a modern award does not cover the employee, or the employer or other person in relation to the employee. Note 1: When the copied State award for a transferring employee ceases to cover the employee, a modern award will start to cover the employee, or an employer or other person in relation to the employee. Note 2: 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). (2) Subsection (1) does not apply for the purposes of section 193 (which is about the better off overall test for enterprise agreements). Note: For the purposes of determining whether an enterprise agreement that covers a transferring employee passes the better off overall test, subsection (2) allows the enterprise agreement to be compared against a modern award that covers the employee. (3) This section has effect subject to any FWC order about coverage under subsection 768BA(1).