Commonwealth: Fair Work (State Referral and Consequential and Other Amendments) Act 2009 (Cth)

Fair Work (State Referral and Consequential and Other Amendments) Act 2009 Act No. 54 of 2009 as amended This compilation was prepared on 7 November 2012 taking into account amendments up to Act No. 136 of 2012 The text of any of those amendments not in force on that date is appended in the Notes section The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section Prepared by the Office of Parliamentary Counsel, Canberra Contents 1 Short title [see Note 1] 2 Commencement 3 Schedule(s) 4 Definition Schedule 1—Referring States Fair Work Act 2009 Schedule 2—Consequential and transitional provisions relating to referral of matters Part 1—Treatment of transitional awards and common rules as transitional instruments etc. Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Part 2—State reference public sector modern awards Division 1—State reference public sector transitional award modernisation Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Division 2—Other amendments related to State reference public sector modern awards Fair Work Act 2009 Schedule 3—Other amendments of the Fair Work Act 2009 Schedule 4—Agriculture, Fisheries and Forestry Australian Meat and Live‑stock Industry (Repeals and Consequential Provisions) Act 1997 Dairy Industry Service Reform Act 2003 Horticulture Marketing and Research and Development Services (Repeals and Consequential Provisions) Act 2000 Pig Industry Act 2001 Schedule 5—Attorney‑General Part 1—General consequential amendments Age Discrimination Act 2004 Australian Capital Territory (Self‑Government) Act 1988 Australian Crime Commission Act 2002 Australian Federal Police Act 1979 Bankruptcy Act 1966 Crimes Act 1914 Criminal Code Act 1995 Disability Discrimination Act 1992 Human Rights and Equal Opportunity Commission Act 1986 Judges' Pensions Act 1968 Judiciary Act 1903 Jurisdiction of Courts (Cross‑vesting) Act 1987 Jury Exemption Act 1965 Legislative Instruments Act 2003 Northern Territory (Self‑Government) Act 1978 Seat of Government (Administration) Act 1910 Sex Discrimination Act 1984 Part 2—Amendments relating to discrimination in compliance with industrial instruments and laws Division 1—General Age Discrimination Act 2004 Disability Discrimination Act 1992 Fair Work Act 2009 Human Rights and Equal Opportunity Commission Act 1986 Sex Discrimination Act 1984 Division 2—Amendments relating to HREOC name change Fair Work Act 2009 Part 3—Application provisions Schedule 6—Broadband, Communications and the Digital Economy Telstra Corporation Act 1991 Schedule 7—Defence Part 1—Consequential amendments Naval Defence Act 1910 Part 2—Application provisions Schedule 8—Education, Employment and Workplace Relations Part 1—Consequential amendments Air Passenger Ticket Levy (Collection) Act 2001 Building and Construction Industry Improvement Act 2005 Coal Mining Industry (Long Service Leave Funding) Act 1992 Defence Act 1903 Long Service Leave (Commonwealth Employees) Act 1976 Maternity Leave (Commonwealth Employees) Act 1973 Occupational Health and Safety Act 1991 Occupational Health and Safety (Maritime Industry) Act 1993 Remuneration Tribunal Act 1973 Safety, Rehabilitation and Compensation Act 1988 Seafarers Rehabilitation and Compensation Act 1992 Social Security Act 1991 Tradesmen's Rights Regulation Act 1946 United States Naval Communication Station (Civilian Employees) Act 1968 Part 2—Transitional provisions Division 1—Provisions relating to the Building and Construction Industry Improvement Act 2005 Division 1A—Provision relating to the Coal Mining Industry (Long Service Leave Funding) Act 1992 Division 2—Provision relating to the Defence Act 1903 Division 2A—Provision relating to the Maternity Leave (Commonwealth Employees) Act 1973 Division 3—Provisions relating to the Remuneration Tribunal Act 1973 Division 4—Provisions relating to the Seafarers Rehabilitation and Compensation Act 1992 Division 5—Provisions relating to the Social Security Act 1991 Schedule 9—Families, Housing, Community Services and Indigenous Affairs Equal Opportunity for Women in the Workplace Act 1999 Social Security Act 1991 Schedule 10—Finance and Deregulation Airports (Transitional) Act 1996 Commonwealth Authorities and Companies Act 1997 Commonwealth Electoral Act 1918 Superannuation Act 1976 Superannuation Act 1990 Schedule 11—Health and Ageing Commonwealth Serum Laboratories Act 1961 National Health Act 1953 Schedule 12—Immigration and Citizenship Fair Work Act 2009 Migration Act 1958 Schedule 13—Infrastructure, Transport, Regional Development and Local Government Navigation Act 1912 Schedule 14—Innovation, Industry, Science and Research Part 1—Consequential amendments Independent Contractors Act 2006 Part 2—Transitional provision Schedule 15—Parliamentary Service Part 1—Consequential amendments Parliamentary Service Act 1999 Part 2—Saving provision Schedule 16—Prime Minister and Cabinet Part 1—Consequential amendments Privacy Act 1988 Public Service Act 1999 Part 2—Saving provision Schedule 17—Resources, Energy and Tourism Moomba‑Sydney Pipeline System Sale Act 1994 Offshore Petroleum and Greenhouse Gas Storage Act 2006 Snowy Hydro Corporatisation Act 1997 Schedule 18—Treasury Part 1—Consequential amendments Commonwealth Volunteers Protection Act 2003 Corporations Act 2001 Financial Sector (Business Transfer and Group Restructure) Act 1999 Fringe Benefits Tax Assessment Act 1986 Income Tax Assessment Act 1997 Income Tax (Transitional Provisions) Act 1997 Insurance Act 1973 Life Insurance Act 1995 Superannuation Guarantee (Administration) Act 1992 Superannuation Industry (Supervision) Act 1993 Trade Practices Act 1974 Part 2—Application provision Schedule 19—Veterans' Affairs Part 1—Consequential amendments Military Rehabilitation and Compensation Act 2004 Part 2—Application provision Schedule 20—Regulations Notes An Act to amend the Fair Work Act 2009, to make amendments consequential on the enactment of that Act, and for other purposes 1 Short title [see Note 1] This Act may be cited as the Fair Work (State Referral and Consequential and Other Amendments) Act 2009. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 4 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 25 June 2009 2. Schedule 1, items 1 to 10 Immediately after the commencement of the provision(s) covered by table item 3. 25 June 2009 3. Schedule 1, item 11 The day on which this Act receives the Royal Assent. 25 June 2009 4. Schedule 1, item 12 Immediately after the commencement of the provision(s) covered by table item 3. 25 June 2009 5. Schedule 2, Part 1 Immediately after the commencement of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. 1 July 2009 6. Schedule 2, item 33 Immediately after the commencement of section 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. 25 June 2009 7. Schedule 2, items 34 to 51 Immediately after the commencement of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. 1 July 2009 8. Schedule 2, Part 2, Division 2 Immediately after the commencement of Part 3 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. 1 January 2010 9. Schedule 3 Immediately after the commencement of the provision(s) covered by table item 3. 25 June 2009 10. Schedule 4 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 11. Schedule 5, items 1 to 30 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 12. Schedule 5, item 31 The later of: 5 August 2009 (a) immediately after the commencement of Part 2‑4 of the Fair Work Act 2009; and (paragraph (b) applies) (b) immediately after the commencement of item 41 of Schedule 2 to the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. 13. Schedule 5, items 32 to 64 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 14. Schedule 5, items 65 and 66 The later of: 1 July 2009 (a) immediately after the commencement of Part 2‑4 of the Fair Work Act 2009; and (paragraph (a) applies) (b) immediately after the commencement of item 101 of Schedule 2 to the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. 15. Schedule 5, item 67 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 16. Schedule 5, items 68 and 69 Immediately after the commencement of Part 2‑3 of the Fair Work Act 2009. 1 January 2010 17. Schedule 5, items 70 to 79 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 18. Schedule 5, item 80 The later of: 1 January 2010 (a) immediately after the commencement of item 68 of Schedule 5; and (paragraph (a) applies) (b) the commencement of item 38 of Schedule 3 to the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. 19. Schedule 5, item 81 The later of: 5 August 2009 (a) immediately after the commencement of item 70 of Schedule 5; and (paragraph (b) applies) (b) the commencement of item 38 of Schedule 3 to the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. 20. Schedule 5, item 82 The later of: 5 August 2009 (a) immediately after the commencement of item 72 of Schedule 5; and (paragraph (b) applies) (b) the commencement of item 38 of Schedule 3 to the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. 21. Schedule 5, Part 3 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 22. Schedule 6 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 23. Schedule 7 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 24. Schedule 8, items 1 to 130 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 25. Schedule 8, items 131 and 132 The later of: 1 July 2009 (a) immediately after the commencement of Part 2‑4 of the Fair Work Act 2009; and (b) immediately after the commencement of item 33 of Schedule 2 to the Social Security Legislation Amendment (Employment Services Reform) Act 2009. 26. Schedule 8, items 133 to 135 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 27. Schedule 8 item 136 The later of: 1 July 2009 (a) immediately after the commencement of Part 2‑4 of the Fair Work Act 2009; and (b) immediately after the commencement of item 147 of Schedule 2 to the Social Security Legislation Amendment (Employment Services Reform) Act 2009. 28. Schedule 8, items 137 and 138 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 29. Schedule 8, item 139 The later of: 1 July 2009 (a) immediately after the commencement of Part 2‑4 of the Fair Work Act 2009; and (b) immediately after the commencement of item 195 of Schedule 2 to the Social Security Legislation Amendment (Employment Services Reform) Act 2009. 30. Schedule 8, items 140 to 161 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 31. Schedule 9 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 32. Schedule 10 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 33. Schedule 11 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 34. Schedule 12, items 1 to 3 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 35. Schedule 12, item 4 The later of: 14 September 2009 (a) immediately after the commencement of Part 2‑4 of the Fair Work Act 2009; and (b) immediately after the commencement of Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008. 36. Schedule 13 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 37. Schedule 14 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 38. Schedule 15 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 39. Schedule 16 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 40. Schedule 17 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 41. Schedule 18 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 42. Schedule 19 Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 43. Schedule 20 The day on which this Act receives the Royal Assent. 25 June 2009 Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. 4 Definition In this Act: WR Act repeal day has the meaning given by Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Schedule 1—Referring States Fair Work Act 2009 1 Section 12 (at the end of note 2 at the end of the definition of employee) Add "and subsection 30E(1)". 2 Section 12 (at the end of note 2 at the end of the definition of employer) Add "and subsection 30E(2)". 3 Section 12 (at the end of the definition of national system employee) Add: Note: Section 30C extends the meaning of national system employee in relation to a referring State. 4 Section 12 (at the end of the definition of national system employer) Add: Note: Section 30D extends the meaning of national system employer in relation to a referring State. 5 Section 12 (note at the end of the definition of outworker entity) Repeal the note, substitute: Note: Section 30F extends the meaning of outworker entity in relation to a referring State. 6 At the end of section 13 Add: Note: Section 30C extends the meaning of national system employee in relation to a referring State. 7 Section 14 (note) Repeal the note, substitute: Note 1: In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see paragraph 17(a) of the Acts Interpretation Act 1901). Note 2: Section 30D extends the meaning of national system employer in relation to a referring State. 8 At the end of subsection 15(1) Add: Note: Subsection 30E(1) extends the meaning of employee in relation to a referring State. 9 At the end of subsection 15(2) Add: Note: Subsection 30E(2) extends the meaning of employer in relation to a referring State. 10 Section 24 Repeal the section, substitute: 24 Guide to this Part This Part deals with the extent of the application of this Act. Division 2 is about how this Act affects the operation of certain State or Territory laws. Division 2A is about the extended application of this Act in a State that has referred to the Parliament of the Commonwealth matters relating to this Act. Division 3 is about the geographical application of this Act. Division 4 deals with other matters relating to the application of this Act. 11 After Division 2 of Part 1‑3 Insert: Division 2A—Application of this Act in a referring State 30A Meaning of terms used in this Division In this Division: amendment includes the insertion, omission, repeal, substitution, addition or relocation of words or matter. excluded subject matter means: (a) a matter dealt with in a law referred to in subsection 27(1A) of this Act as originally enacted; or (b) a non‑excluded matter within the meaning of subsection 27(2) of this Act as so enacted (other than paragraph 27(2)(p) of this Act as so enacted); or (c) rights or remedies incidental to a matter referred to in paragraph (a) or (b) of this definition; except to the extent that this Act as so enacted deals with the matter (directly or indirectly), or requires or permits instruments made or given effect under this Act so to deal with the matter. express amendment means the direct amendment of this Act, but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act. law enforcement officer is a member of a police force, a police reservist, a police recruit or a protective services officer. referral law, of a State, means the law of the State that refers matters, as mentioned in subsection 30B(1), to the Parliament of the Commonwealth. referred provisions means the provisions of this Division to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States. referred subject matters means any of the following: (a) terms and conditions of employment, including any of the following: (i) minimum terms and conditions of employment, (including employment standards and minimum wages); (ii) terms and conditions of employment contained in instruments (including instruments such as awards, determinations and enterprise‑level agreements); (iii) bargaining in relation to terms and conditions of employment; (iv) the effect of a transfer of business on terms and conditions of employment; (b) terms and conditions under which an outworker entity may arrange for work to be performed for the entity (directly or indirectly), if the work is of a kind that is often performed by outworkers; (c) rights and responsibilities of employees, employers, independent contractors, outworkers, outworker entities, associations of employees or associations of employers, being rights and responsibilities relating to any of the following: (i) freedom of association and related protections; (ii) protection from discrimination relating to employment; (iii) termination of employment; (iv) industrial action; (v) protection from payment of fees for services related to bargaining; (vi) sham independent contractor arrangements; (vii) standing down employees without pay; (viii) rights of entry and rights of access to records; (d) compliance with, and enforcement of, this Act; (e) the administration of this Act; (f) the application of this Act; (g) matters incidental or ancillary to the operation of this Act or of instruments made or given effect under this Act; but does not include any excluded subject matter. referring State: see section 30B. State public sector employee, of a State, means: (a) an employee of a State public sector employer of the State; or (b) any other employee in the State of a kind specified in the regulations; and includes a law enforcement officer to whom subsection 30E(1) applies. State public sector employer, of a State, means an employer that is: (a) the State; or (b) a body (whether incorporated or unincorporated) established for a public purpose by or under a law of the State, by the Governor of a State or by a Minister of the State; or (c) a body corporate in which the State has a controlling interest; or (d) any other employer in the State of a kind specified in the regulations; and includes a holder of an office to whom subsection 30E(2) applies. 30B Meaning of referring State Reference of matters by State Parliament to Commonwealth Parliament (1) A State is a referring State if the Parliament of the State has referred the matters covered by subsections (3), (4) and (5) in relation to the State to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution: (a) if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and (b) if and to the extent that the matters are included in the legislative powers of the Parliament of the State. This subsection has effect subject to subsection (6). (2) A State is a referring State even if: (a) the State's referral law provides that the reference to the Parliament of the Commonwealth of any or all of the matters covered by subsections (3), (4) and (5) is to terminate in particular circumstances; or (b) the State's referral law provides that particular matters relating to State public sector employees, or State public sector employers, of the State are not included in any or all of those matters. Reference covering referred provisions (3) This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by amending this Act, as originally enacted, to include the referred provisions. Reference covering amendments (4) This subsection covers the referred subject matters to the extent of making laws with respect to those matters by making express amendments of this Act. Reference covering transitional matters (5) This subsection covers making laws with respect to the transition from the regime provided for by: (a) the Workplace Relations Act 1996; or (b) a law of a State relating to workplace relations; to the regime provided for by this Act. Effect of termination of reference (6) Despite anything to the contrary in a referral law of a State, a State ceases to be a referring State if any or all of the following occurs: (a) the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (3) terminates; (b) the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (4) terminates; (c) the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (5) terminates. 30C Extended meaning of national system employee (1) A national system employee includes: (a) any individual in a referring State so far as he or she is employed, or usually employed, as described in paragraph 30D(1)(a), except on a vocational placement; and (b) a law enforcement officer of the State to whom subsection 30E(1) applies. (2) This section does not limit the operation of section 13 (which defines a national system employee). Note: Section 30H may limit the extent to which this section extends the meaning of national system employee. 30D Extended meaning of national system employer (1) A national system employer includes: (a) any person in a referring State so far as the person employs, or usually employs, an individual; and (b) a holder of an office to whom subsection 30E(2) applies. (2) This section does not limit the operation of section 14 (which defines a national system employer). Note: Section 30H may limit the extent to which this section extends the meaning of national system employer. 30E Extended ordinary meanings of employee and employer (1) A reference in this Act to an employee with its ordinary meaning includes a reference to a law enforcement officer of a referring State if the State's referral law so provides for the purposes of that law. (2) A reference in this Act to an employer with its ordinary meaning includes a reference to a holder of an office of a State if the State's referral law provides, for the purposes of that law, that the holder of the office is taken to be the employer of a law enforcement officer of the State. (3) This section does not limit the operation of section 15 (which deals with references to employee and employer with their ordinary meanings). Note: Section 30H may limit the extent to which this section extends the meanings of employee and employer. 30F Extended meaning of outworker entity (1) An outworker entity includes a person, other than in the person's capacity as a national system employer, so far as: (a) the person arranges for work to be performed for the person (either directly or indirectly); and (b) the work is of a kind that is often performed by outworkers; and (c) one or more of the following applies: (i) at the time the arrangement is made, one or more parties to the arrangement is in a referring State; (ii) the work is to be performed in a referring State; (iii) the person referred to in paragraph (a) carries on an activity (whether of a commercial, governmental or other nature) in a referring State, and the work is reasonably likely to be performed in that State; (iv) the person referred to in paragraph (a) carries on an activity (whether of a commercial, governmental or other nature) in a referring State, and the work is to be performed in connection with that activity. (2) This section does not limit the operation of the definition of outworker entity in section 12. Note: Section 30H may limit the extent to which this section extends the meaning of outworker entity. 30G General protections (1) Part 3‑1 (which deals with general protections) applies to action taken in a referring State. (2) This section applies despite section 337 (which limits the application of Part 3‑1), and does not limit the operation of sections 338 and 339 (which set out the application of that Part). Note: Section 30H may limit the extent to which this section extends the application of Part 3‑1. 30H Division only has effect if supported by reference A provision of this Division has effect in relation to a referring State only to the extent that the State's referral law refers to the Parliament of the Commonwealth the matters mentioned in subsection 30B(1) that result in the Parliament of the Commonwealth having sufficient legislative power for the provision so to have effect. 30J Application of the Acts Interpretation Act 1901 (1) The Acts Interpretation Act 1901, as in force on the day on which this Division commences, applies to this Act. (2) Amendments of the Acts Interpretation Act 1901 made after that day do not apply to this Act. 12 At the end of section 337 Add: Note: Section 30G extends the operation of this Part in a referring State. Schedule 2—Consequential and transitional provisions relating to referral of matters Part 1—Treatment of transitional awards and common rules as transitional instruments etc. Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 1 Item 2 of Schedule 2 Insert: common rule means a common rule within the meaning of clauses 82 to 87 of Schedule 6 to the WR Act (including those clauses as they continue to apply because of item 8A of Schedule 3). 2 Item 2 of Schedule 2 Insert: State reference common rule: see subitem 2A(2) of Schedule 3. 3 Item 2 of Schedule 2 Insert: State reference employee: see subitem 2A(3) of Schedule 3. 4 Item 2 of Schedule 2 Insert: State reference employer: see subitem 2A(4) of Schedule 3. 5 Item 2 of Schedule 2 Insert: State reference transitional award: see subitem 2A(1) of Schedule 3. 6 Item 2 of Schedule 2 Insert: State reference transitional award or common rule means a State reference transitional award or a State reference common rule. 7 Item 2 of Schedule 2 Insert: Victorian employment agreement: see item 41 of Schedule 3. 8 After paragraph 2(2)(a) of Schedule 3 Insert: (aa) a State reference transitional award or common rule; 9 Subitem 2(2) of Schedule 3 (note 4) Repeal the note, substitute: Note 4: For transitional provisions relating to other transitional awards, see Schedule 20. 10 At the end of subitem 2(3) of Schedule 3 Add: Note: Victorian employment agreements are not continued as transitional instruments. For provisions relating to these agreements, see Part 7 of this Schedule. 11 After subitem 2(3) of Schedule 3 Insert: (3A) If a State reference common rule comes into effect on or after the WR Act repeal day under the provisions that continue to apply because of item 8A, the State reference common rule becomes a transitional instrument when the common rule comes into effect. 12 Paragraph 2(5)(a) of Schedule 3 After "awards," (first occurring), insert "State reference transitional awards or common rules,". 13 After item 2 of Schedule 3 Insert: 2A Meanings of State reference transitional award and State reference common rule (1) A State reference transitional award is a transitional award that covers: (a) one or more specified State reference employers; and (b) specified State reference employees of those employers. Note: A transitional award includes a transitional Victorian reference award. (2) A State reference common rule is a common rule that covers: (a) specified State reference employers; and (b) specified State reference employees of those employers. (3) A State reference employee is an employee who is a national system employee only because of section 30C of the FW Act. (4) A State reference employer is an employer that is a national system employer only because of section 30D of the FW Act. (5) If: (a) a transitional award (the current award) covers one or more State reference employers, and State reference employees of those employers; and (b) the current award also covers: (i) other employees of those employers; or (ii) other employers, and employees of those other employers; then, for the purposes of this Act, the current award is taken instead to constitute 2 separate transitional awards as follows: (c) a State reference transitional award covering: (i) the employers, and the employees of those employers, referred to in paragraph (a); and (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a)—that organisation in relation to those employers or employees; and (d) a transitional award covering: (i) the employers, and the employees of those employers, referred to in paragraph (b); and (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b)—that organisation in relation to those employers or employees. 14 At the end of Part 2 of Schedule 3 Add: 8A Continuing application of provisions of the WR Act about common rules (1) Subject to this item, clauses 82 to 87 of Schedule 6 to the WR Act continue to apply on and after the WR Act repeal day in relation to State reference common rules. (2) Clauses 82 to 87 continue to apply as if: (a) references in the clauses to the transitional period (including references to the end of the transitional period) were omitted; and (b) a reference in the clauses to the Commission were instead a reference to FWA; and (c) a reference in the clauses to a Registrar were instead a reference to the General Manager of FWA; and (d) a reference in the clauses to the Rules of the Commission were instead a reference to the procedural rules of FWA. (3) Subitem (2) has effect unless the context otherwise requires and subject to the regulations. Note: For example, paragraph (2)(a) does not apply if the reference is to something that the Commission did before the WR Act repeal day (or before the reform commencement). 15 After item 12 of Schedule 3 Insert: 12A State reference transitional awards: variation and revocation General provisions (1) Subject to this item, Divisions 5 (other than subsections 554(1) to (4)) and 6 of Part 10 of the WR Act apply on and after the WR Act repeal day in relation to transitional instruments that are State reference transitional awards as if: (a) references to the Commission were instead references to FWA; and (b) references to an award included references to a State reference transitional award. Note 1: Items 10 and 11 apply instead of subsections 554(1) to (4) of the WR Act. Note 2: For variation of State reference common rules, see the provisions continued in effect by item 8A. (2) To avoid doubt, for the purpose of sections 552 and 553 of the WR Act, as applied by subitem (1) in relation to State reference transitional awards, "minimum safety net entitlements" includes minimum safety net entitlements relating to wages. Note: For variation of terms relating to wages after the end of the bridging period, see subitems (4) to (6). (3) FWA must perform its powers and functions under Divisions 5 and 6 in a way that furthers the objects of Part 10 of the WR Act. Special provisions about variation or revocation after the end of the bridging period (4) A State reference transitional award cannot be varied or revoked after the end of the bridging period except as follows: (a) a State reference transitional award, other than terms relating to wages, can be varied after the end of the bridging period under section 553 of the WR Act; (b) terms of a State reference transitional award relating to wages can be varied after the end of the bridging period in an annual wage review under the FW Act as provided for in subitem (5); (c) a State reference transitional award can be varied after the end of the bridging period as a result of FWA continuing to deal with a matter that it was dealing with before the end of the bridging period. (5) In an annual wage review, FWA may make a determination varying terms of a State reference transitional award relating to wages. (6) For the purpose of subitem (5), Division 3 of Part 2‑6 of the FW Act (other than section 292) applies to terms of a State reference transitional award relating to wages in the same way as it applies to a modern award. 16 At the end of Schedule 3 Add: Part 7—Victorian employment agreements 41 Part applies to Victorian employment agreements This Part applies to a Victorian employment agreement that was in force in relation to an employer and an employee (the parties) under Division 12 of Part 21 of the WR Act immediately before the WR Act repeal. A Victorian employment agreement is an employment agreement within the meaning of that Division. 42 Victorian employment agreement enforceable as a contract On and after the WR Act repeal day the Victorian employment agreement is enforceable by one of the parties against the other party as if it were a contract. The provisions of Division 12 of Part 21 of the WR Act do not continue to apply in relation to the agreement. 17 Subitem 2(2A) of Schedule 6 Omit "an award, if the award", substitute "an award or a State reference transitional award, if the award or State reference transitional award". 18 Subitem 3(1) of Schedule 7 Insert: award includes a State reference transitional award or common rule. 19 Paragraph 13(2)(a) of Schedule 7 After "an award", insert ", a State reference transitional award or common rule,". 20 At the end of item 18 of Schedule 7 Add: State reference transitional awards or common rules: transitional APCSs not relevant (5) If the relevant award‑based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded. Note: State reference transitional awards or common rules contain terms dealing with wages. 21 At the end of item 19 of Schedule 7 Add: State reference transitional awards or common rules: transitional APCSs not relevant (6) If the relevant award‑based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded. Note: State reference transitional awards or common rules contain terms dealing with wages. 22 Item 21 of Schedule 7 After "awards" (last occurring), insert "(including State reference transitional awards and common rules)". 23 Paragraph 25(3)(a) of Schedule 7 After "an award", insert "or a State reference transitional award or common rule". 24 Subitem 27(5) of Schedule 8 Insert: award includes a State reference transitional award. 25 At the end of item 5 of Schedule 9 Add: (4) Despite item 6 of Schedule 2, the following provisions of Part 21 of the WR Act do not apply in relation to the continued AFPCS wages provisions: (a) subparagraph 861(1)(d)(iii); (b) section 865. Note: Paragraph (a) has a flow‑through effect to the reference in subparagraph 885(1)(j) of the WR Act to section 861. 26 At the end of paragraph 5(2)(d) of Schedule 10 Add "or a State reference transitional award or common rule". 27 After subitem 2(2) of Schedule 11 Insert: (2A) For the purpose of the continued application, by subitem (2), of Division 5 of Part 11 of the WR Act: (a) a reference in those provisions to an award is taken to include a reference to a State reference transitional award; and (b) despite item 6 of Schedule 2, paragraph 885(1)(e) of that Act does not continue to apply. Note: Paragraph 885(1)(e) would otherwise have disapplied Division 5 of Part 11 of the WR Act. 28 Subitem 5(2) of Schedule 11 After "award", insert "or a State reference transitional award". 29 Subitem 8(1) of Schedule 11 After "operation", insert "and other than a State reference common rule". 30 At the end of paragraph 8(2)(b) of Schedule 11 Add ", other than a State reference common rule". 31 Paragraph 13(2)(a) of Schedule 18 Omit ", a transitional award (including a transitional Victorian reference award) or a common rule", substitute "or a transitional award that is not a WR Act instrument". 32 Item 1 of Schedule 20 Repeal the item, substitute: 1 Schedule 6 to the WR Act (1) Schedule 6 to the WR Act (continued Schedule 6) continues to apply on and after the WR Act repeal day in accordance with this Schedule. (2) Except for instrument content rules and instrument interaction rules, nothing in this Schedule or continued Schedule 6 applies to State reference transitional awards or common rules. Note: State reference transitional awards or common rules are continued in existence by Schedule 3 as transitional instruments. (3) Without limiting subitem (1) (but subject to subitem (2)), transitional awards that were in operation under Schedule 6 to the WR Act immediately before the WR Act repeal day continue in operation as continuing Schedule 6 instruments on and after the repeal day in accordance with continued Schedule 6. Note 1: In addition to provisions of this Schedule, Part 3 of Schedule 2 may also affect continuing Schedule 6 instruments. Note 2: Compliance with continuing Schedule 6 instruments is dealt with in Schedule 16. Part 2—State reference public sector modern awards Division 1—State reference public sector transitional award modernisation Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 33 Subsection 2(1)(after table item 4) Insert: 4A. Schedule 6A At the same time as the provision(s) covered by table item 2. 34 Item 2 of Schedule 2 (at the end of the definition of modernisation‑related reduction in take‑home pay) Add: ; and (c) in relation to the State reference public sector transitional award modernisation process—has the meaning given by subitem 13(3) of Schedule 6A. 35 Item 2 of Schedule 2 Insert: State reference public sector employee: see subitem 2(2) of Schedule 6A. 36 Item 2 of Schedule 2 Insert: State reference public sector employer: see subitem 2(3) of Schedule 6A. 37 Item 2 of Schedule 2 Insert: State reference public sector modern award: see subitem 3(2) of Schedule 6A. 38 Item 2 of Schedule 2 Insert: State reference public sector modern awards objective: see subitem 7(2) of Schedule 6A. 39 Item 2 of Schedule 2 Insert: State reference public sector transitional award: see subitem 2(1) of Schedule 6A. 40 Item 2 of Schedule 2 Insert: State reference public sector transitional award modernisation process: see subitem 3(1) of Schedule 6A. 41 Item 2 of Schedule 2 (definition of take‑home pay) Omit "and subitem 11(2) of Schedule 6", substitute ", subitem 11(2) of Schedule 6 and subitem 13(2) of Schedule 6A". 42 Item 2 of Schedule 2 (definition of take‑home pay order) Omit "and subitem 12(1) of Schedule 6", substitute ", subitem 12(1) of Schedule 6 and subitem 14(1) of Schedule 6A". 43 Subitem 29(1) of Schedule 3 (note) Repeal the note, substitute: Note: A modern award cannot be expressed to cover an employee who is covered by a transitional instrument that is an enterprise instrument or a State reference public sector transitional award (see subsections 143(8) and (10) of the FW Act). 44 Schedule 5 (heading) Repeal the heading, substitute: Schedule 5—Modern awards (other than modern enterprise awards and State reference public sector modern awards) 45 Subitem 3(3) of Schedule 5 After "enterprise instrument" (wherever occurring), insert "or a State reference public sector transitional award". 46 Subitem 3(3) of Schedule 5 (note) After "Note", insert "1.". 47 At the end of subitem 3(3) of Schedule 5 Add: Note 2: Item 10 of Schedule 6A deals with termination and variation of State reference public sector transitional awards to take account of the State reference public sector transitional award modernisation process. 48 Item 6 of Schedule 5 (heading) After "modern enterprise awards", insert "and State reference public sector modern awards". 49 Subitem 6(1) of Schedule 5 After "modern enterprise awards", insert "and State reference public sector modern awards". 50 Subitem 2(2) of Schedule 6 After "award‑based transitional instrument", insert ", other than a State reference public sector transitional award,". 51 After Schedule 6 Insert: Schedule 6A—State reference public sector modern awards Part 1—Preliminary 1 Meanings of employer and employee In this Schedule, employer and employee have their ordinary meanings. Part 2—The State reference public sector transitional award modernisation process Division 1—State reference public sector transitional awards 2 State reference public sector transitional awards (1) A State reference public sector transitional award is a State reference transitional award or common rule in relation to which the following conditions are satisfied: (a) the only employers that are expressed to be covered by the award or common rule are one or more specified State reference public sector employers; (b) the only employees who are expressed to be covered by the award or common rule are specified State reference public sector employees of those employers. Note: State reference transitional awards and common rules are continued in existence as transitional instruments by Schedule 3. (2) A State reference public sector employee is a State reference employee who is a State public sector employee as defined in section 30A of the FW Act. (3) A State reference public sector employer is a State reference employer that is a State public sector employer as defined in section 30A of the FW Act. (4) If: (a) a State reference transitional award or common rule (the current award) covers one or more State reference public sector employers, and State reference public sector employees of those employers; and (b) the current award also covers: (i) other employees of those employers; or (ii) other employers, and employees of those other employers; then, for the purposes of this Act, the current award is taken instead to constitute 2 separate State reference transitional awards or common rules as follows: (c) a State reference public sector transitional award covering: (i) the employers, and the employees of those employers, referred to in paragraph (a); and (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (a)—that organisation in relation to those employers or employees; and (d) a State reference transitional award or a State reference common rule (as the case requires) covering: (i) the employers, and the employees of those employers, referred to in paragraph (b); and (ii) if the current award covers an organisation, in relation to certain employers or employees referred to in paragraph (b)—that organisation in relation to those employers or employees. Division 2—The State reference public sector transitional award modernisation process 3 The State reference public sector transitional award modernisation process (1) The State reference public sector transitional award modernisation process is the process of making State reference public sector modern awards under this Division covering employers, employees and organisations that are covered by State reference public sector transitional awards. (2) A State reference public sector modern award is a modern award in relation to which the following conditions are satisfied: (a) the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers; (b) the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers. (3) A State reference public sector modern award must be made by a Full Bench. 4 Making State reference public sector modern awards on application (1) An employer or organisation that is covered by a State reference public sector transitional award (the current award) may apply to FWA for the making of a State reference public sector modern award (the proposed award). (2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013. (3) The application must specify the employers, employees and organisations (the proposed parties) proposed to be covered by the proposed award. (4) FWA must consider the application, and must make a State reference public sector modern award covering the proposed parties if FWA is satisfied that: (a) the proposed parties are covered by State reference public sector transitional awards; and (b) the employers and organisations that are proposed parties have agreed to the making of the application. Note: The proposed parties will cease to be covered by State reference public sector transitional awards when the State reference public sector modern award comes into operation: see item 29 of Schedule 3. 5 Terminating State reference public sector transitional awards on application (1) An employer or organisation that is covered by a State reference public sector transitional award (the current award) may apply to FWA to terminate the current award. (2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013. (3) FWA must not terminate the current award unless FWA is satisfied that the employees who are covered by the current award will, if the current award is terminated, be covered by a modern award (other than the miscellaneous modern award) that is in operation and that is appropriate for them. (4) In deciding whether to terminate the current award, FWA must take into account the following: (a) the circumstances that led to the making of the current award; (b) the terms and conditions of employment applying in the industry or occupation in which the persons covered by the current award operate, and the extent to which those terms and conditions are reflected in the current award; (c) the extent to which the current award facilitates arrangements, and provides terms and conditions of employment, referred to in paragraphs 7(2)(a) and (b); (d) the likely impact on the persons covered by the current award of a decision to terminate, or not to terminate, the current award; (e) the views of the persons covered by the current award; (f) any other matter prescribed by the regulations. (5) If FWA terminates the current award, the termination operates from the day specified in the decision to terminate the current award, being a day that is not earlier than the FW (safety net provisions) commencement day. 6 Further obligation of FWA to make or vary State reference public sector modern awards at end of application period If, at the end of the period referred to in subitem 4(2), there are one or more State reference public sector transitional awards that still cover some employers and employees, FWA must make, or (in accordance with section 168L of the FW Act) vary the coverage of, one or more State reference public sector modern awards so that all those employers and employees are covered by State reference public sector modern awards. Note: The employers and employees will cease to be covered by the State reference public sector transitional awards when they start to be covered by a State reference public sector modern award that is in operation: see item 29 of Schedule 3. 7 The State reference public sector modern awards objective (1) If FWA is required by item 4 or 6 to make a State reference public sector modern award, the modern awards objective and the minimum wages objective apply to the making of the modern award. (2) However, in applying the modern awards objective and the minimum wages objective, FWA must recognise: (a) the need to facilitate arrangements for State reference public sector employers and State reference public sector employees that are appropriately adapted to the effective administration of a State; and (b) that State reference public sector modern awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to State reference public sector employers and State reference public sector employees. This is the State reference public sector modern awards objective. Note 1: See also item 13 (State reference public sector transitional award modernisation process is not intended to result in reduction in take‑home pay). Note 2: See also item 19 (how the FW Act applies in relation to the State reference public sector transitional award modernisation process before the FW (safety net provisions) commencement day). 8 Terms of State reference public sector modern awards (1) Division 3 (other than sections 143 and 154) of Part 2‑3 of the FW Act (which deals with terms of modern awards) applies in relation to a State reference public sector modern award made under this Division. Note: See also item 19 (how the FW Act applies in relation to the State reference public sector transitional award modernisation process before the FW (safety net provisions) commencement day). (2) If FWA makes a State reference public sector modern award before the FW (safety net provisions) commencement day, the State reference public sector modern award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day. 9 Coverage terms Coverage terms must be included (1) A State reference public sector modern award must include terms (coverage terms) setting out, in accordance with this item, the employers, employees and organisations that are covered by the State reference public sector modern award. Employers and employees (2) The coverage terms must be such that: (a) the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers; and (b) the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers. Organisations (3) A State reference public sector modern award may be expressed to cover one or more specified organisations, in relation to: (a) all or specified employees covered by the modern award; or (b) the employer, or all or specified employers, covered by the modern award. Outworker entities (4) A State reference public sector modern award must not be expressed to cover outworker entities. How coverage etc. is expressed (5) For the purposes of this item: (a) an employer or employers may be specified by name or by inclusion in a specified class or specified classes; and (b) employees must be specified by inclusion in a specified class or specified classes; and (c) organisations must be specified by name. 10 Variation and termination of State reference public sector transitional awards to take account of the modernisation process (1) If a State reference public sector modern award completely replaces a State reference public sector transitional award, the transitional award terminates when the modern award comes into operation. (2) If a State reference public sector modern award partially replaces a State reference public sector transitional award, FWA must, as soon as practicable after the modern award comes into operation, vary the transitional award so that employees who are covered by the modern award are no longer covered by the transitional award. (3) For the purposes of this item: (a) the modern award completely replaces the transitional award if all the employees who are covered by the transitional award become covered by the modern award when it comes into operation; and (b) the modern award partially replaces the transitional award if only some of the employees who are covered by the transitional award become covered by the modern award when it comes into operation. Note: This item does not limit the effect of any other provision of this Act under which a transitional instrument (a State reference public sector transitional award is a transitional instrument) ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item. 11 Notification of the cut‑off for the State reference public sector transitional award modernisation process (1) FWA must, at least 6 months before the end of the period specified in subitem 4(2), advise any persons still covered by a State reference public sector transitional award: (a) that the period for making applications under items 4 and 5 ends on 31 December 2013; and (b) that FWA will, at the end of that period, commence the State reference public sector transitional award modernisation process in relation to the transitional award for any employees and employers who are still covered by the transitional award at that time. (2) FWA may give that advice by any means it considers appropriate. (3) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA's functions and powers under this item. 12 Regulations dealing with other matters The regulations may deal with other matters relating to the State reference public sector transitional award modernisation process. Division 3—Avoiding reductions in take‑home pay 13 State reference public sector transitional award modernisation process is not intended to result in reduction in take‑home pay (1) The State reference public sector transitional award modernisation process is