Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (55 of 2009)

Schedule 3   Continued existence of awards, workplace agreements and certain other WR Act instruments

Part 5   Transitional instruments and the FW Act

Division 2   Interaction between transitional instruments and FW Act modern awards, enterprise agreements and workplace determinations

28   Modern awards and agreement-based transitional instruments

(1) While an agreement-based transitional instrument of any of the following kinds applies to an employee, or to an employer or other person in relation to the employee:

(a) a workplace agreement;

(b) a workplace determination;

(c) a preserved State agreement;

(d) an AWA;

(e) a pre-reform AWA;

a modern award does not apply to the employee, or to the employer or other person in relation to the employee.

Note 1: However, a modern award can continue to cover the employee while the agreement-based transitional instrument continues to apply.

Note 2: This subitem has effect subject to item 13 of Schedule 9 (which requires that the base rate of pay under an agreement-based transitional instrument must not be less than the relevant modern award rate).

(2) If:

(a) an agreement-based transitional instrument of any of the following kinds:

(i) a pre-reform certified agreement;

(ii) an old IR agreement;

(iii) a section 170MX award; and

(b) a modern award;

both apply to an employee, or to an employer or other person in relation to the employee, the agreement-based transitional instrument prevails over the modern award, to the extent of any inconsistency.

Note: This subitem has effect subject to item 13 of Schedule 9 (which requires that the base rate of pay under an agreement-based transitional instrument must not be less than the relevant modern award rate).