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 2   Continued existence of WR Act instruments as transitional instruments

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).