Section 768AX — Fair Work Act 2009: Variation of copied State instruments

Application of this section (1A) This section applies if there is, or is likely to be, a transfer of business. Variations that may be made (1) The FWC may vary a copied State instrument for a transferring employee: (a) to remove terms that the FWC is satisfied are not, or will not be, capable of meaningful operation or to vary those terms so that they are capable of meaningful operation; or (b) to remove an ambiguity or uncertainty in the instrument; or (c) to enable the instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise; or (d) to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, or to make the instrument operate effectively with the National Employment Standards; or (e) if the instrument is a copied State employment agreement—to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or (f) to remove terms that are inconsistent with Part 3-1 (which deals with general protections), or to vary terms to make them consistent with that Part. Note: Paragraph (d) does not affect a term of the copied State instrument that is permitted by a provision of the National Employment Standards as the provision has effect under section 768AR. Who may apply for a variation (2) The FWC may make a variation under subsection (1): (a) on its own initiative; or (b) on application by a person who is, or is likely to be, covered by the copied State instrument; or (c) on application by an employee organisation that is entitled to represent the industrial interests of an employee who is, or is likely to be, covered by the copied State instrument. Note: The copied State instrument for the transferring employee may also cover another transferring employee or a non-transferring employee if a consolidation order is made. Matters that the FWC must take into account (3) In deciding whether to make a variation under subsection (1), the FWC must take into account the following: (a) the views of: (i) the employees who would be affected by the copied State instrument as varied; and (ii) the new employer or a person who is likely to be the new employer; (b) whether any employees would be disadvantaged by the copied State instrument as varied in relation to their terms and conditions of employment; (c) if the copied State instrument is a copied State employment agreement—the nominal expiry date of the agreement; (d) whether the copied State instrument, without the variation, would have a negative impact on the productivity of the new employer’s workplace; (e) whether the new employer would incur significant economic disadvantage as a result of the copied State instrument, without the variation; (f) the degree of business synergy between the copied State instrument, without the variation, and any workplace instrument that already covers the new employer; (g) the public interest. Variation relating to the NES (4) If there is a dispute about the making of a variation for the purposes of paragraph (1)(d), the FWC may compare the entitlements that are in dispute: (a) on a “line-by-line” basis, comparing individual terms; or (b) on a “like-by-like” basis, comparing entitlements according to particular subject areas; or (c) using any combination of the above approaches the FWC sees fit. (5) The regulations may make provisions that apply to determining, for the purposes of paragraph (1)(d), whether terms of a copied State instrument for a transferring employee are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards. When variation may be made (6) A variation may be made under subsection (1) in relation to a copied State instrument of a transferring employee: (a) before the copied State instrument comes into operation, if it is likely that the instrument will come into operation; and (b) before the employee is a transferring employee, if it is likely that the employee will become a transferring employee. Restriction on when variation may come into operation (7) A variation under subsection (1) operates from the day specified in the variation, which may be a day before the variation is made.