Commonwealth: Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 No. 55, 2009 Compilation No. 12 Compilation date: 7 December 2022 Includes amendments up to: Act No. 79, 2022 Registered: 7 December 2022 About this compilation This compilation This is a compilation of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 that shows the text of the law as amended and in force on 7 December 2022 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents 1 Short title 2 Commencement 3 Schedule(s) 4 Regulations Schedule 1—Repeals Workplace Relations Act 1996 Schedule 2—Overarching Schedule about transitional matters Part 1—Interpretation of the transitional Schedules Part 2—Regulations about transitional matters Part 3—Conduct before WR Act repeal day etc. Schedule 3—Continued existence of awards, workplace agreements and certain other WR Act instruments Part 1—Preliminary Part 2—Continued existence of WR Act instruments as transitional instruments Part 3—Variation and termination of transitional instruments Part 4—Transitional instruments and the Australian Fair Pay and Conditions Standard Part 5—Transitional instruments and the FW Act Division 1—Interaction between transitional instruments and the National Employment Standards Division 2—Interaction between transitional instruments and FW Act modern awards, enterprise agreements and workplace determinations Division 3—Other general provisions about how the FW Act applies in relation to transitional instruments Part 6—Preservation of redundancy provisions in agreements etc. Part 7—Victorian employment agreements Part 8—Transitional pay equity order taken to have been made by FWA—Division 2B State reference transitional awards Schedule 3A—Treatment of State awards and State employment agreements of Division 2B referring States Part 1—Preliminary Part 2—Division 2B State instruments Part 3—Variation and termination of Division 2B State instruments Part 4—Transition of employees from Division 2B State awards to FW Act modern awards Division 1—FWA required to consider varying modern awards etc. Division 1A—Transitional pay equity order taken to have been made by FWA—Division 2B State awards Division 2—Avoiding reductions in take‑home pay Part 5—Division 2B State instruments and the FW Act Division 1—Interaction between Division 2B State instruments and the National Employment Standards Division 2—Interaction between Division 2B State instruments and FW Act modern awards, enterprise agreements and workplace determinations Division 3—Other general provisions about how the FW Act applies in relation to Division 2B State instruments Part 6—Ongoing operation of State laws for transitional purposes Schedule 4—National Employment Standards Part 1—Preliminary Part 2—Continued application of WR Act minimum entitlements provisions (other than wages) during bridging period Part 3—Operation of the National Employment Standards Division 1—Operation in relation to employees other than Division 2B State reference employees Division 2—Operation in relation to Division 2B State reference employees Schedule 5—Modern awards (other than modern enterprise awards and State reference public sector modern awards) Part 1—Preliminary Part 2—The WR Act award modernisation process Part 3—Avoiding reductions in take‑home pay Schedule 6—Modern enterprise awards Part 1—Preliminary Part 2—The enterprise instrument modernisation process Division 1—Enterprise instruments Division 2—The enterprise instrument modernisation process Division 3—Avoiding reductions in take‑home pay Division 4—Application of the FW Act Part 3—Amendments Fair Work Act 2009 Schedule 6A—State reference public sector modern awards Part 1—Preliminary Part 2—The State reference public sector transitional award modernisation process Division 1—State reference public sector transitional awards Division 2—The State reference public sector transitional award modernisation process Division 3—Avoiding reductions in take‑home pay Division 4—Application of the FW Act Schedule 7—Enterprise agreements and workplace determinations made under the FW Act Part 1—Preliminary Part 2—Transitional provisions relating to the application of the no‑disadvantage test to enterprise agreements made and varied during bridging period Division 1—Enterprise agreements and variations made during bridging period must pass no‑disadvantage test Division 2—The no‑disadvantage test Part 3—Other requirements and modifications applying to making and varying enterprise agreements during the bridging period Division 1—Requirements relating to approval Division 2—Base rate of pay Division 3—No extensions of time Division 4—State and Territory laws dealing with long service leave Part 4—Transitional provisions to apply the better off overall test after end of bridging period if award modernisation not yet completed Part 4A—Transitional provisions to apply the better off overall test to enterprise agreements that cover Division 2B State award covered employees Part 5—Transitional provisions relating to workplace determinations made under the FW Act Part 6—Interaction with Australian Fair Pay and Conditions Standard during bridging period Part 7—Transitional provision about the operation of the better off overall test if a transitional pay equity order applies Part 8—Transitional provisions relating to termination and sunsetting of enterprise agreements made during the bridging period Schedule 8—Workplace agreements and workplace determinations made under the WR Act Part 1—Preliminary Part 2—Transitional provisions relating to workplace agreements Division 1—Transitional provisions relating to collective agreements made before the WR Act repeal day Division 2—Transitional provisions relating to variations of collective agreements made before the WR Act repeal day Division 3—Transitional provisions relating to pre‑WR Act repeal day terminations of collective agreements Division 4—Transitional provisions relating to ITEAs made before the WR Act repeal day Division 5—Transitional provisions relating to variations of ITEAs made before the WR Act repeal day Division 6—Transitional provisions relating to pre‑WR Act repeal day terminations of ITEAs Division 7—Transitional provisions relating to making ITEAs during the bridging period Division 8—Applying the no‑disadvantage test where there is a transmission or transfer of business Division 9—Miscellaneous Part 3—Transitional provisions relating to workplace determinations made under the WR Act Schedule 9—Minimum wages Part 1—Preliminary Part 2—Special provisions relating to FWA's first annual wage review Part 3—Continued application of WR Act provisions about minimum wages Division 1—General provisions Division 2—Special provisions about transitional APCSs Division 3—Special provisions about the FMW, special FMWs and the default casual loading Part 4—Universal application of minimum wages to employees: transitional instruments Part 5—Provisions relating to Division 2B State instruments Division 1—Universal application of minimum wages to employees: Division 2B State reference employees Division 2—Other matters Schedule 10—Equal remuneration Part 1—Preliminary Part 2—Equal remuneration orders under the FW Act Part 3—Equal remuneration orders under the WR Act Schedule 11—Transfer of business Part 1—Preliminary Part 2—Transmissions of business occurring before WR Act repeal day Part 3—Transfers of business occurring on or after WR Act repeal day Division 1—Transfers of business: transitional instruments Division 2—Transfer of preserved redundancy provisions during bridging period Division 3—Transfer of entitlements under the AFPCS during bridging period Division 4—Transfers of business: Division 2B State instruments Schedule 12—General protections Schedule 12A—Unfair dismissal Schedule 13—Bargaining and industrial action Part 1—Preliminary Part 2—Bargaining Part 3—Industrial action Part 4—Protected action ballots Part 5—Effect of conduct engaged in while bargaining for WR Act collective agreement or collective State employment agreement Part 6—Payments relating to periods of industrial action Schedule 14—Right of entry Schedule 15—Stand down Schedule 16—Compliance Schedule 17—Amendments relating to the Fair Work Divisions of the Federal Court and the Federal Magistrates Court Part 1—Amendments to the Federal Court of Australia Act 1976 Federal Court of Australia Act 1976 Part 2—Amendments to the Federal Magistrates Act 1999 Federal Magistrates Act 1999 Part 3—Other amendments Administrative Decisions (Judicial Review) Act 1977 Part 4—Application and transitional provisions Part 5—Jurisdiction of courts Schedule 18—Institutions Part 1—Initial appointment of FWA Members Part 2—WR Act bodies and WR Act offices Part 3—Transitional role for Fair Work Ombudsman and Inspectors Part 4—Miscellaneous Fair Work Act 2009 Schedule 19—Dealing with disputes Schedule 20—WR Act transitional awards etc. Schedule 21—Clothing Trades Award 1999 Schedule 22—Registered organisations Part 1—Main amendments Workplace Relations Act 1996 Part 2—State and federal organisations Workplace Relations Act 1996 Part 3—Representation orders Workplace Relations Act 1996 Part 4—References to Schedules to the Workplace Relations Act Fair Work Act 2009 Workplace Relations Act 1996 Part 5—References to the Workplace Relations Act etc. Workplace Relations Act 1996 Part 6—References to the Commission etc. Workplace Relations Act 1996 Part 7—References to the Registrar etc. Fair Work Act 2009 Workplace Relations Act 1996 Part 8—References to awards and collective agreements Fair Work Act 2009 Workplace Relations Act 1996 Part 9—Transitional provisions etc. Schedule 23—Other amendments of the FW Act Fair Work Act 2009 Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to amend laws, and deal with transitional matters, in connection with the Fair Work Act 2009, and for other purposes 1 Short title This Act may be cited as the Fair Work (Transitional Provisions and Consequential 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. Schedules 1 to 5 The day on which Part 2‑4 of the Fair Work Act 2009 commences. 1 July 2009 3. Schedule 6, Parts 1 and 2 At the same time as the provision(s) covered by table item 2. 1 July 2009 4. Schedule 6, Part 3 Immediately after the commencement of Part 2‑3 of the Fair Work Act 2009. 1 January 2010 4A. Schedule 6A At the same time as the provision(s) covered by table item 2. 1 July 2009 5. Schedules 7 to 21 At the same time as the provision(s) covered by table item 2. 1 July 2009 6. Schedule 22, items 1 to 90 At the same time as the provision(s) covered by table item 2. 1 July 2009 7. Schedule 22, item 91 Immediately after the commencement of the provisions covered by table item 8. 1 July 2009 8. Schedule 22, items 92 to 627 At the same time as the provision(s) covered by table item 2. 1 July 2009 9. Schedule 23, items 1 to 2E Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009. 1 July 2009 10. Schedule 23, items 3 to 6 Immediately after the commencement of Part 2‑2 of the Fair Work Act 2009. 1 January 2010 11. Schedule 23, item 7 Immediately after the commencement of Part 2‑3 of the Fair Work Act 2009. 1 January 2010 12. Schedule 23, item 8 Immediately after the commencement of Part 2‑8 of the Fair Work Act 2009. 1 July 2009 13. Schedule 23, item 9 Immediately after the commencement of Division 1 of Part 2‑9 of the Fair Work Act 2009. 1 July 2009 13A. Schedule 23, items 9A and 9B Immediately after the commencement of Part 3‑1 of the Fair Work Act 2009. 1 July 2009 14. Schedule 23, items 10 to 12 Immediately after the commencement of Part 3‑3 of the Fair Work Act 2009. 1 July 2009 15. Schedule 23, items 13 to 21 Immediately after the commencement of Part 4‑1 of the Fair Work Act 2009. 1 July 2009 15A. Schedule 23, item 21A Immediately after the commencement of Part 6‑1 of the Fair Work Act 2009. 1 July 2009 15B. Schedule 23, items 21B and 21C Immediately after the commencement of Part 6‑4 of the Fair Work Act 2009. 1 July 2009 16. Schedule 23, item 22 Immediately after the commencement of section 799 of the Fair Work Act 2009. 1 July 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 Regulations The Governor‑General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. Schedule 1—Repeals Workplace Relations Act 1996 1 Sections 3 to 18 Repeal the sections. 2 Parts 2 to 23 Repeal the Parts. 3 Schedules 2 to 9 Repeal the Schedules. Schedule 2—Overarching Schedule about transitional matters Part 1—Interpretation of the transitional Schedules 1 What are the transitional Schedules? The transitional Schedules are the following (including any regulations made for the purposes of any of the following): (a) this Schedule; and (b) Schedules 2 to 22, other than: (i) Part 3 of Schedule 6; and (ii) Parts 1, 2 and 3 of Schedule 17; and (iii) items 21 to 22 of Schedule 18; and (iv) Parts 1 to 8 of Schedule 22. 2 The dictionary In the transitional Schedules: affected employee of an employer: see subitem 43(6) of Schedule 3 and subitem 30A(4) of Schedule 3A. AFPCS interaction rules: see subitem 22(4) of Schedule 3. agreement‑based transitional instrument: see subitem 2(5) of Schedule 3. applies: (a) in relation to a transitional instrument: see subitem 3(2) of Schedule 3; and (b) in relation to a Division 2B State award: see item 4 of Schedule 3A; and (c) in relation to a Division 2B State employment agreement: see item 6 of Schedule 3A. award‑based transitional instrument: see subitem 2(5) of Schedule 3. bridging period means the period: (a) starting on the WR Act repeal day; and (b) ending immediately before the FW (safety net provisions) commencement day. collective agreement‑based transitional instrument: see subitem 2(5) of Schedule 3. collective Division 2B State employment agreement: see subitem 5(5) of Schedule 3A. collective State employment agreement: see subitem 2(6) of Schedule 3A. 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). conditional termination: (a) in relation to an individual agreement‑based transitional instrument: see subitem 18(1) of Schedule 3; and (b) in relation to an individual Division 2B State employment agreement: see subitem 25(1) of Schedule 3A. continued AFPCS wages provisions: see subitem 5(1) of Schedule 9. continued Schedule 6: see subitem 1(1) of Schedule 20. continuing Schedule 6 instruments: see subitem 1(2) of Schedule 20. covers: (a) in relation to a transitional instrument: see subitem 3(1) of Schedule 3; and (b) in relation to a transitional minimum wage instrument: see item 6 of Schedule 9; and (c) in relation to a Division 2B State award: see item 4 of Schedule 3A; and (d) in relation to a Division 2B State employment agreement: see item 6 of Schedule 3A. Division 2A referring State: see subitem 2A(7) of Schedule 3. Division 2A State reference employee: see subitem 2A(3A) of Schedule 3. Division 2A State reference employer: see subitem 2A(4A) of Schedule 3. Division 2A State reference transitional award: see subitem 2A(1A) of Schedule 3. Division 2B enterprise award: see subitem 2(4) of Schedule 6. Division 2B referral commencement: see subitem 2(4A) of Schedule 3. Division 2B referring State: see subitem 2A(7) of Schedule 3. Division 2B State award: see item 3 of Schedule 3A. Division 2B State employment agreement: see item 5 of Schedule 3A. Division 2B State instrument: see item 2 of Schedule 3A. Division 2B State reference employee: see subitem 2A(3A) of Schedule 3. Division 2B State reference employer: see subitem 2A(4A) of Schedule 3. Division 2B State reference outworker entity: see subitem 4(3) of Schedule 3A. Division 2B State reference transitional award: see subitem 2A(1A) of Schedule 3. enterprise award‑based instrument: see subitem 2(2) of Schedule 6. enterprise instrument: see subitem 2(1) of Schedule 6. enterprise instrument modernisation process: see subitem 4(1) of Schedule 6. enterprise preserved collective State agreement: see subitem 2(3) of Schedule 6. Fair Work Australia or FWA means the body referred to in section 575 of the FW Act, as in force immediately before the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012. FWA: see Fair Work Australia. FW Act: see item 3 of this Schedule. FWA member has the same meaning as in the FW Act, as in force immediately before the commencement of Part 1 of Schedule 9 to the Fair Work Amendment Act 2012. FW (safety net provisions) commencement day means the day on which Parts 2‑2, 2‑3 and 2‑6 of the FW Act commence. individual agreement‑based transitional instrument: see subitem 2(5) of Schedule 3. individual Division 2B State employment agreement: see subitem 5(6) of Schedule 3A. individual State employment agreement: see subitem 2(7) of Schedule 3A. instrument content rules: (a) in Schedule 3: see subitem 4(2) of Schedule 3; and (b) in Schedule 3A: see subitem 10(2) of Schedule 3A. instrument interaction rules: (a) in Schedule 3: see subitem 5(2) of Schedule 3; and (b) in Schedule 3A: see subitem 11(2) of Schedule 3A. lodged: (a) in relation to a workplace agreement—means lodged with the Workplace Authority Director under section 344 of the WR Act; and (b) in relation to a variation of a workplace agreement—means lodged with the Workplace Authority Director under section 346N or 377 of the WR Act, as the case may be; and (c) in relation to a termination of a workplace agreement—means lodged with the Workplace Authority Director under section 389 of the WR Act. made: (a) in relation to a workplace agreement—has the meaning given by section 333 of the WR Act; and (b) in relation to a variation of a workplace agreement—has the meaning given by section 368 of the WR Act. modern enterprise award: see subitem 4(2) of Schedule 6. modern enterprise awards objective: see subitem 6(2) of Schedule 6. modernisation‑related reduction in take‑home pay: (a) in relation to the Part 10A award modernisation process—see subitems 8(3) and (4) of Schedule 5; and (b) in relation to the enterprise instrument modernisation process—see subitem 11(3) of Schedule 6; 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. modify includes make additions, omissions and substitutions. nominal expiry date, in relation to a Division 2B State employment agreement: see item 27 of Schedule 3A. outworker interaction rules: see subitem 12(2) of Schedule 3A. Part 10A award modernisation process: see subitem 2(1) of Schedule 5. part of a single enterprise: see subitem 3(4) of Schedule 6. referring State: see subitem 2A(7) of Schedule 3. single enterprise: see item 3 of Schedule 6. source agreement, in relation to a Division 2B State employment agreement: see subitem 5(1) of Schedule 3A. source award, in relation to a Division 2B State award: see subitem 3(1) of Schedule 3A. source State: (a) in relation to a Division 2B State award: see subitem 3(1) of Schedule 3A; and (b) in relation to a Division 2B State employment agreement: see subitem 5(1) of Schedule 3A. State and Territory interaction rules: see subitem 5A(2) of Schedule 3. State award: see item 2 of Schedule 3A. State employment agreement: see item 2 of Schedule 3A. State industrial body means a commission performing or exercising functions under a State industrial law, and includes a member of such a commission and a registrar or deputy registrar of such a commission. State industrial law means a law of a State that is a State or Territory industrial law as defined in section 26 of the FW Act. State minimum wages instruments: see item 19 of Schedule 9. State reference common rule: see subitem 2A(2) of Schedule 3. State reference employee: see subitem 2A(3) of Schedule 3. State reference employer: see subitem 2A(4) of Schedule 3. State reference public sector employee: see subitem 2(2) of Schedule 6A. State reference public sector employer: see subitem 2(3) of Schedule 6A. State reference public sector modern award: see subitem 3(2) of Schedule 6A. State reference public sector modern awards objective: see subitem 7(2) of Schedule 6A. State reference public sector transitional award: see subitem 2(1) of Schedule 6A. State reference public sector transitional award modernisation process: see subitem 3(1) of Schedule 6A. State reference transitional award: see subitem 2A(1) of Schedule 3. State reference transitional award or common rule means a State reference transitional award or a State reference common rule. take‑home pay: see subitem 31(2) of Schedule 3A, subitem 8(2) of Schedule 5, subitem 11(2) of Schedule 6 and subitem 13(2) of Schedule 6A. take‑home pay order: see subitems 32(1) and (2) of Schedule 3A, subitems 9(1) and (2) of Schedule 5, subitem 12(1) of Schedule 6 and subitem 14(1) of Schedule 6A. this Act includes the regulations. transitional APCS: see subitem 5(3) of Schedule 9. transitional default casual loading: see subitem 5(3) of Schedule 9. transitional instrument: see subitems 2(3) and (4) of Schedule 3. transitional minimum wage instrument: see subitem 5(3) of Schedule 9. transitional national minimum wage order: see subitem 12(2) of Schedule 9. transitional pay equity order: see subitem 43(1) of Schedule 3 and subitem 30A(1) of Schedule 3A. transitional Schedules: see item 1 of this Schedule. transitional special FMW: see subitem 5(3) of Schedule 9. transitional standard FMW: see subitem 5(3) of Schedule 9. unlodged collective agreement means a collective agreement that, as at the WR Act repeal day, has not been lodged. unlodged termination, in relation to a workplace agreement, means a termination of a workplace agreement approved in accordance with section 386 of the WR Act, but not lodged as at the WR Act repeal day. unlodged variation, in relation to a workplace agreement, means a variation of the workplace agreement under Division 8 of Part 8 of the WR Act approved in accordance with section 373 of the WR Act, but not lodged as at the WR Act repeal day. Victorian employment agreement: see item 41 of Schedule 3. workplace agreement that operates from approval means a workplace agreement to which Subdivision C of Division 5A of Part 8 of the WR Act applies (see subsection 346K(1) of that Act). WR Act: see item 3 of this Schedule. WR Act instrument: see subitem 2(2) of Schedule 3. WR Act repeal means the commencement of Schedule 1. WR Act repeal day means the day on which the WR Act repeal commences. 3 Meaning of WR Act and FW Act Meaning of WR Act (1) WR Act means the Workplace Relations Act 1996 and, unless the contrary intention appears, means that Act as in force immediately before the WR Act repeal day. (2) Unless a contrary intention appears, a reference to the WR Act, or to a provision or provisions of the WR Act, includes a reference to regulations made for the purposes of the WR Act, or for the purposes of the provision or provisions of the WR Act. (3) If an item of the transitional Schedules provides for the WR Act, or a provision or provisions of the WR Act, to continue to apply on and after the WR Act repeal day (or during the bridging period), the WR Act, or the provision or provisions, continue to so apply despite the WR Act repeal. Meaning of FW Act (4) FW Act means the Fair Work Act 2009. (5) Unless a contrary intention appears, a reference to the FW Act, or to a provision or provisions of the FW Act, includes a reference to regulations made for the purposes of the FW Act, or for the purposes of the provision or provisions of the FW Act. 4 Expressions defined in the WR Act or the FW Act (1) Unless a contrary intention appears: (a) expressions used in a transitional Schedule that were defined in the WR Act (other than Schedule 1 to that Act) have the same meanings in that transitional Schedule as they had in that Act; and (b) expressions used in a transitional Schedule that are defined in the FW Act have the same meanings in that transitional Schedule as they have in that Act. (2) If: (a) a provision of a transitional Schedule uses an expression defined in both the WR Act and the FW Act; and (b) it is clear from the context of the provision which of those meanings is intended to apply in that provision; the expression has that meaning. (3) The regulations may define, or clarify the meaning of, an expression used in a transitional Schedule. (4) This item does not apply to expressions defined in item 2. 5 Provisions that apply repealed provisions of the WR Act (1) If a provision of a transitional Schedule provides for provisions (the applied WR Act provisions) of the WR Act to apply on and after the WR Act repeal day, any other provisions of the WR Act, and any regulations or other instruments made under that Act, that are necessary for the effectual operation of the applied WR Act provisions also apply on and after that day. (2) This item has effect: (a) subject to a contrary intention in a provision of a transitional Schedule; and (b) subject to the regulations. 6 Effect of Part 21 of the WR Act to be taken into account (1) To avoid doubt, in interpreting provisions of the transitional Schedules, the effect on the WR Act of Part 21 of that Act (which deals with matters referred by Victoria) before the WR Act repeal day is to be taken into account. Note: For example, a reference in Schedule 3 to a workplace agreement includes a reference to a workplace agreement made under Part 8 of the WR Act, as that Part had effect because of Part 21. (2) If a provision of the transitional Schedules provides for the application or continued application of provisions of the WR Act on and after the WR Act repeal day, those provisions also have the effect they would have if Part 21 of that Act were still in force. Note: For example, item 2 of Schedule 4 provides for the continued application during the bridging period of Divisions 3, 4, 5 and 6 of Part 7 of the WR Act. The continued application of those Divisions also includes the extended effect those Divisions would have if Part 21 were still in force. (3) This item has effect: (a) subject to a contrary intention; and (b) subject to the regulations. Part 2—Regulations about transitional matters 7 General power for regulations to deal with transitional matters (1) The regulations may make provisions of a transitional, application or saving nature in relation to any of the following: (a) the transition from the regime provided for by the WR Act (and any Acts that amended that Act) to the regime provided for by the FW Act; (b) the amendments and repeals made by the Schedules to this Act; (c) the transition from the regime provided for by State industrial laws of Division 2B referring States to the regime provided for by this Act and the FW Act, including: (i) the transition from State awards and State employment agreements to Division 2B State instruments; and (ii) the transition from Division 2B State instruments to modern awards and enterprise agreements; (d) the amendments and repeals made by the Fair Work Amendment (State Referrals and Other Measures Act) 2009. (2) Without limiting subitem (1), regulations made for the purpose of that subitem may do any of the following: (a) modify provisions of the FW Act, or provide for the application (with or without modifications) of provisions of the FW Act to matters to which they would otherwise not apply; (b) provide for the application (with or without modifications) of provisions of the WR Act on and after the WR Act repeal day; (c) provide for the application (with or without modifications), as laws of the Commonwealth, of provisions of State industrial laws of Division 2B referring States on and after the Division 2B referral commencement. 8 Regulations relating to matters dealt with in the transitional Schedules (1) The regulations may modify provisions of the transitional Schedules. (2) If a provision of a transitional Schedule provides for repealed provisions of the WR Act to apply on and after the WR Act repeal day, the regulations may: (a) modify the provisions; or (b) make other provision relating to the application of the provisions. (3) If a provision of a transitional Schedule provides for provisions of the FW Act to apply in relation to matters to which they would otherwise not apply, the regulations may: (a) modify the provisions; or (b) make other provision relating to the application of the provisions. (4) The regulations may make other provision in relation to the matters dealt with in the transitional Schedules. (5) The transitional Schedules have effect subject to regulations made for any of the purposes of this item. 9 Limitation on power to make regulations (1) The regulations must not: (a) modify provisions of Part 3‑4 of the FW Act (which deals with right of entry); or (b) modify provisions of the transitional Schedules that deal with right of entry. (2) The regulations must not confer compliance powers on an inspector that are additional to the compliance powers under Part 5‑2 of the FW Act. (3) This item has effect despite items 7 and 8. 10 Other general provisions about regulations (1) This item applies to regulations made for the purpose of any of the provisions of the transitional Schedules (including this Part). (2) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to the regulations. (3) If: (a) regulations are expressed to commence from a date (the registration date) before the regulations are registered under the Legislation Act 2003; and (b) a person engaged in conduct before the registration date; and (c) but for the retrospective effect of the regulations, the conduct would not have contravened a provision of: (i) the WR Act (as it continues to apply because of this Act); or (ii) this Act; or (iii) the FW Act; then a court must not convict the person of an offence, or order the person to pay a pecuniary penalty, in relation to the conduct on the grounds that it contravened a provision of any of those Acts. (4) The provisions of the transitional Schedules (including this Part) that provide for regulations to deal with matters do not limit each other. Part 3—Conduct before WR Act repeal day etc. 11 Conduct before repeal—WR Act continues to apply Conduct before repeal (1) The WR Act continues to apply, on and after the WR Act repeal day, in relation to conduct that occurred before the WR Act repeal day. Note: For continuation and cessation of WR Act bodies and offices on and after the WR Act repeal day, see item 7 of Schedule 18. Processes begun before repeal to vary or terminate WR Act instruments (1A) If: (a) a process to vary or terminate a WR Act instrument is begun under the WR Act before the WR Act repeal day; and (b) the WR Act instrument becomes a transitional instrument because of the operation of Part 2 of Schedule 3; the WR Act continues to apply, on and after the WR Act repeal day, for the purposes of completing the process. Orders made before repeal (2) To avoid doubt, the WR Act continues to apply, on and after the WR Act repeal day, in relation to orders made under that Act, including as it continues to apply under subitem (1). Item subject to this Act (3) This item applies subject to this Act. Note: For the purposes of transition from the WR Act to the FW Act, other provisions of this Act: (a) modify or exclude the operation of the WR Act as it continues to apply under subitem (1); and (b) provide for the continued operation of the WR Act (including in modified form) in relation to conduct that occurs on or after the WR Act repeal day. 12 FWC to take over some processes (1) On and after the WR Act repeal day: (a) an application, other than an interim application, that could have been made to any of the following because of item 11 may be made only to the FWC: (i) the Commission; (ii) the President; (iii) a member of the Commission; (iv) a Registrar; and (b) an appeal to the Commission that could have been instituted because of item 11 may be instituted only as an appeal to the FWC; and (c) a process (however described), other than an interim process, that could have been initiated by the Commission on its own motion because of item 11 may be initiated only by the FWC; and (d) a matter that could have been referred to the Commission under section 46PW of the Australian Human Rights Commission Act 1986 because of item 11 is to be referred only to the FWC. (2) For the purposes of subitem (1), a law of the Commonwealth that relates to an application, appeal, process or matter referred to in that subitem is to be read: (a) as if a reference to a WR Act body or WR Act office were a reference to the FWC, as necessary; and (b) with any other necessary modifications. Note: For WR Act body and WR Act office: see subitem 7(1) of Schedule 18. (3) Subitems (1) and (2) apply subject to this Act. (4) In this item: interim application means an application that relates to a matter that is already before, or being dealt with by, the Commission, the President, a member of the Commission or a Registrar before the WR Act repeal day. interim process means a process (however described) that relates to a matter that is already before, or being dealt with by, the Commission, the President, a member of the Commission or a Registrar before the WR Act repeal day. 13 Regulations—conduct before repeal The regulations may do one or more of the following: (a) modify the operation of the WR Act as it applies under item 11; (aa) provide that subitem 11(1A) does not apply in relation to specified processes; (b) provide for any other matter that, because of item 11, could have been dealt with by a WR Act body or a person holding a WR Act office to be dealt with by the FWC, or by the FWC only. Schedule 3—Continued existence of awards, workplace agreements and certain other WR Act instruments Part 1—Preliminary 1 Meanings of employee and employer In this Schedule, employee and employer have their ordinary meanings. Part 2—Continued existence of WR Act instruments as transitional instruments 2 WR Act instruments that continue in existence as transitional instruments (1) Each WR Act instrument (see subitem (2)) that becomes a transitional instrument (see subitems (3) to (4A)) continues in existence in accordance with this Schedule from when it becomes a transitional instrument, despite the WR Act repeal. Note: In addition to provisions of this Schedule, the following other provisions affect the continued existence of transitional instruments: (a) Part 2 of Schedule 5 (which deals with the WR Act award modernisation process); (b) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process); (c) Schedule 8 (which deals with workplace agreements and workplace determinations made under the WR Act, including the making of ITEAs during the bridging period); (d) Schedule 11 (which deals with transfer of business); (e) Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day). (2) Each of the following instruments is a WR Act instrument: (a) an award; (aa) a State reference transitional award or common rule; (b) a notional agreement preserving State awards; (c) a workplace agreement; (d) a workplace determination; (e) a preserved State agreement; (f) an AWA; (g) a pre‑reform certified agreement; (h) a pre‑reform AWA; (i) an old IR agreement; (j) a section 170MX award. Note 1: Workplace agreements are either collective agreements or ITEAs. Note 2: Preserved State agreements are either preserved collective State agreements or preserved individual State agreements. Note 3: For transitional provisions relating to Division 2 of Part 7 of the WR Act (which deals with wages), see Schedule 9. Note 4: For transitional provisions relating to other transitional awards, see Schedule 20. (3) The following WR Act instruments become transitional instruments on the WR Act repeal day: (a) each WR Act instrument (other than a Division 2B State reference transitional award) that was in operation immediately before the WR Act repeal day; (b) each workplace agreement or workplace determination made before the WR Act repeal day but that had not yet come into operation by that day; (c) any other WR Act instrument that, although not in operation immediately before the WR Act repeal day, could come into operation after that day because of an instrument interaction rule. Note: Victorian employment agreements are not continued as transitional instruments. For provisions relating to these agreements, see Part 7 of this Schedule. (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. (4) If an ITEA is made during the bridging period under Division 7 of Part 2 of Schedule 8, the ITEA becomes a transitional instrument when it is made. (4A) A Division 2B State reference transitional award becomes a transitional instrument on the Division 2B referral commencement. The Division 2B referral commencement is the time when Division 2B of Part 1‑3 of the FW Act commences. (5) Transitional instruments are classified as follows: (a) awards, State reference transitional awards or common rules, and notional agreements preserving State awards, are award‑based transitional instruments; (b) all other kinds of transitional instruments are agreement‑based transitional instruments; (c) agreement‑based transitional instruments of the following kinds are collective agreement‑based transitional instruments: (i) collective agreements; (ii) workplace determinations; (iii) preserved collective State agreements; (iv) pre‑reform certified agreements; (v) old IR agreements; (vi) section 170MX awards; (d) agreement‑based transitional instruments of the following kinds are individual agreement‑based transitional instruments: (i) ITEAs; (ii) preserved individual State agreements; (iii) AWAs; (iv) pre‑reform AWAs. 2A Meaning of State reference transitional award and various other expressions associated with State references (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. (1A) State reference transitional awards are classified as follows: (a) if the employers and employees covered are Division 2A State reference employers and Division 2A State reference employees—the State reference transitional award is a Division 2A State reference transitional award; (b) if the employers and employees covered are Division 2B State reference employers and Division 2B State reference employees—the State reference transitional award is a Division 2B State reference transitional 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 or 30M of the FW Act. (3A) State reference employees are classified as follows: (a) employees who are national system employees because of section 30C of the FW Act are Division 2A State reference employees; (b) employees who are national system employees because of section 30M of the FW Act are Division 2B State reference employees. (4) A State reference employer is an employer that is a national system employer only because of section 30D or 30N of the FW Act. (4A) State reference employers are classified as follows: (a) employers that are national system employers because of section 30D of the FW Act are Division 2A State reference employers; (b) employers that are national system employers because of section 30N of the FW Act are Division 2B State reference employers. (5) If: (a) a transitional award (the current award), as in force on the WR Act repeal day, covers one or more Division 2A State reference employers, and Division 2A 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, on and after that day (subject to subitem (6)), to constitute 2 separate transitional awards as follows: (c) a Division 2A 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. (6) If: (a) a transitional award (the current award), as in force on the Division 2B referral commencement, covers one or more Division 2B State reference employers, and Division 2B 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, on and after the Division 2B referral commencement, to constitute 2 separate transitional awards as follows: (c) a Division 2B 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; (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. (7) A referring State is: (a) a State (a Division 2A referring State) that is a referring State as defined in section 30B of the FW Act; or (b) a State (a Division 2B referring State) that is a referring State as defined in section 30L of the FW Act. 3 The employees, employers etc. who are covered by a transitional instrument and to whom it applies (1) A transitional instrument covers the same employees, employers and any other persons that it would have covered (however described in the instrument or WR Act) if the WR Act had continued in operation. Note 1: The expression covers is used to indicate the range of employees, employers etc. to whom the instrument potentially applies (see subitem (2)). The employees, employers etc. who are within this range will depend on terms of the instrument, and on any relevant provisions of the WR Act. Note 2: Depending on the terms of a transitional instrument and any relevant provisions of the WR Act, the instrument's coverage may extend to people who become employees after the instrument becomes a transitional instrument. (2) A transitional instrument applies to the same employees, employers and any other persons the instrument covers as would, if the WR Act had continued in operation, have been: (a) required by the WR Act to comply with terms of the instrument; or (b) entitled under the WR Act to enforce terms of the instrument. Note: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of a transitional instrument. (3) However, an award‑based transitional instrument does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act). Note: Item 35 deals with the application of section 329 of the FW Act to award‑based transitional instruments. (4) This item has effect subject to: (a) the instrument interaction rules (see item 5); and (b) the variation or termination of transitional instruments as referred to in item 9; (c) Division 2 of Part 5 (which deals with interaction between transitional instruments and FW Act modern awards, workplace determinations and enterprise agreements); and (d) Schedule 11 (which deals with transfer of business); and (e) Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day). 4 Transitional instruments continue to be subject to the same instrument content rules (1) The same instrument content rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments. Note: Certain instrument content rules relating to the standing down of employees do not continue to apply in relation to WR Act instruments that become transitional instruments (see item 3 of Schedule 15). (2) Instrument content rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, of any of the following kinds: (a) provisions about what may, must or must not be included in an instrument; (b) provisions to the effect that a particular term of an instrument is of no effect (however described): (i) either completely or to a limited extent; and (ii) either permanently or for a limited period; (c) provisions to the effect that a particular term is taken to be included in an instrument. Note: Most of the instrument content rules were in the WR Act. 5 Transitional instruments continue to be subject to the same instrument interaction rules (1) The same instrument interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments. (2) Instrument interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that: (a) one instrument has priority over, or excludes, another instrument: (i) either completely or to a particular extent; and (ii) either permanently or for a particular period; or (b) one instrument ceases to operate because of another instrument: (i) either completely or to a particular extent; and (ii) either permanently or for a particular period. Note: Most of the instrument interaction rules were in the WR Act. 5A Transitional instruments continue to be subject to the same State and Territory interaction rules (1) The same State and Territory interaction rules that applied in relation to WR Act instruments of a particular kind immediately before the WR Act repeal day continue to apply in relation to instruments of that kind that become transitional instruments. (2) State and Territory interaction rules are provisions of a law of the Commonwealth, as in force immediately before the WR Act repeal day, the effect of which is that: (a) an instrument prevails over, or excludes, a law of a State or Territory; or (b) an instrument has effect subject to a law of a State or Territory. Note: Most of the State and Territory interaction rules were in the WR Act. 6 References in transitional instruments to the Australian Industrial Relations Commission etc. (1) If a provision of a transitional instrument confers a power or function on the Australian Industrial Relations Commission, that provision has effect on and after the WR Act repeal day as if references in it to the Commission were instead references to the FWC. (2) If a provision of a transitional instrument confers a power or function on the Industrial Registrar or a Deputy Industrial Registrar, that provision has effect on and after the WR Act repeal day as if references in it to the Industrial Registrar or a Deputy Industrial Registrar were instead references to the General Manager of the FWC. (3) This item has effect subject to: (a) a contrary intention in this Act; and (b) the regulations. 7 No loss of accrued rights or liabilities when transitional instrument terminates or ceases to apply (1) If a transitional instrument terminates, or ceases to apply in relation to a person, that does not affect: (a) any right or liability that a person acquired, accrued or incurred before the transitional instrument terminated or ceased to apply; or (b) any investigation, legal proceeding or remedy in respect of any such right or liability. (2) Any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the transitional instrument had not terminated or ceased to apply. (3) This item has effect subject to a contrary intention in this Act or in the FW Act. 8 Certain transitional instruments displace certain Commonwealth laws (1) To the extent of any inconsistency, the following transitional instruments displace prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations: (a) a workplace agreement; (b) a pre‑reform certified agreement; (c) an AWA; (d) a pre‑reform AWA. (2) In subitem (1): Commonwealth law means an Act or any regulations or other instrument made under an Act. prescribed conditions means conditions that are identified by the regulations. (3) If, immediately before the WR Act repeal day, regulations made under section 350 of the WR Act, or that continued to apply under subclause 2(2) or 17(2) of Schedule 7 to the WR Act: (a) identified a condition as a prescribed condition in relation to an instrument referred to in paragraph (1)(a), (b), (c) or (d); or (b) prescribed an Act or any regulations or other instrument made under an Act as a Commonwealth law in relation to such an instrument; those regulations continue to have effect on and after that day as if made for the purposes of this item. (4) Subitem (3) has effect subject to any regulations made for the purposes of subitem (1) or (2). 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 the FWC; and (c) a reference in the clauses to a Registrar were instead a reference to the General Manager of the FWC; and (d) a reference in the clauses to the Rules of the Commission were instead a reference to the procedural rules of the FWC. (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). Part 3—Variation and termination of transitional instruments 9 Transitional instruments can only be varied or terminated in limited circumstances (1) A transitional instrument cannot be varied except under: (a) a provision of this Part or the regulations; or (b) item 26 (which deals with resolving difficulties with the interaction between transitional instruments and the National Employment Standards); or (c) Part 2 of Schedule 5 (which deals with the WR Act award modernisation process); or (d) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process); or (e) Schedule 8 (which deals with workplace agreements and workplace determinations made under the WR Act); or (f) Schedule 11 (which deals with transfer of business); or (g) Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day). (2) A transitional instrument cannot be terminated (or otherwise brought to an end) except under: (a) a provision of this Part or the regulations; or (b) Part 2 of Schedule 5; or (c) Division 2 of Part 2 of Schedule 6; or (d) Schedule 8; or (e) Schedule 11; or (f) Part 3 of Schedule 2. Note: The references in paragraphs (1)(a) and (2)(a) to a provision of this Part or the regulations includes a reference to a provision of the WR Act or the FW Act as it applies because of a provision of this Part. 10 All kinds of transitional instrument: variation to remove ambiguities etc. (1) On application by a person covered by a transitional instrument, the FWC may make a determination varying the instrument: (a) to remove an ambiguity or uncertainty in the instrument; or (b) to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or (c) to remove terms that are inconsistent with Part 3‑1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part. Note: For variation of a transitional instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 26. (2) A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made. 11 All kinds of transitional instrument: variation on referral by AHRC (1) This item applies if a transitional instrument is referred to the FWC under section 46PW of the Australian Human Rights Commission Act 1986 (which deals with discriminatory industrial instruments). (2) If the instrument is an award‑based transitional instrument, section 161 of the FW Act applies in relation to the referral of the instrument as if the instrument were a modern award. (3) If the transitional instrument is an agreement‑based transitional instrument, section 218 of the FW Act applies in relation to the referral of the instrument as if the instrument were an enterprise agreement. 12 Awards: continued application of WR Act provisions about variation and revocation (1) Subject to this item, Divisions 5 (other than subsections 554(1) to (4)) and 6 of Part 10 of the WR Act continue to apply on and after the WR Act repeal day in relation to transitional instruments that are awards as if references to the Commission were instead references to the FWC. Note: Items 10 and 11 apply instead of subsections 554(1) to (4) of the WR Act. (2) The FWC 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. (3) An award cannot be varied or revoked under Division 5 or 6 after the end of the bridging period, except as follows: (a) an award can be varied after the end of the bridging period under section 553 of the WR Act; (b) an award can be varied or revoked after the end of the bridging period as a result of the FWC continuing to deal with a matter that it was dealing with before the end of the bridging period. 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 the FWC; 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) The FWC 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 the FWC continuing to deal with a matter that it was dealing with before the end of the bridging period. (5) In an annual wage review, the FWC 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. 13 Pre‑reform certified agreements: continued application of WR Act provisions about variation (1) Subject to this item, clause 2A of Schedule 7 to the WR Act continues to apply on and after the WR Act repeal day in relation to transitional instruments that are pre‑reform certified agreements as if references to the Commission were instead references to FWA. Note: This subitem has effect subject to Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day). (2) An application under clause 2A cannot be made after the end of the bridging period. 14 Preserved collective State agreements: continued application of WR Act provisions about variation (1) Subject to this item, clause 16A of Schedule 8 to the WR Act continues to apply on and after the WR Act repeal day in relation to transitional instruments that are preserved State agreements as if references to the Commission were instead references to FWA. Note: This subitem has effect subject to Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day). (2) An application under clause 16A cannot be made after the end of the bridging period. 15 Collective agreement‑based transitional instruments: termination by agreement Subdivision C of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective agreement‑based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument. 16 Collective agreement‑based transitional instruments: termination by the FWC (1) Subdivision D of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement‑based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument. (2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement's nominal expiry date is taken to be the end of the period of the agreement. (3) To avoid doubt, subsection 615A(3) of the FW Act does not apply in relation to a collective agreement‑based transitional instrument. 17 Individual agreement‑based transitional instruments: termination by agreement (1) The employee and employe