Fair Work Amendment (State Referrals and Other Measures) Act 2009 (124 of 2009)

Schedule 2   Transitional matters related to State referrals under Division 2B of Part 1-3 of the Fair Work Act 2009

Part 1   Amendment of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

70   At the end of Schedule 9

Add:

Part 5 - Provisions relating to Division 2B State instruments

Division 1 - Universal application of minimum wages to employees: Division 2B State reference employees

16 Base rate of pay under Division 2B State award must not be less than national minimum wage order rate etc.

(1) If, on or after the Division 2B referral commencement:

(a) a Division 2B State award applies to a Division 2B State reference employee; and

(b) a national minimum wage order would, if the employee were an award/agreement free employee, require the employee's employer to pay the employee a base rate of pay (the employee's order rate ) that at least equals the national minimum wage, or a special national minimum wage, set by the order;

the base rate of pay payable to the employee under the Division 2B State award (the award rate ) must not be less than the employee's order rate.

(2) If the award rate is less than the employee's order rate, the Division 2B State award has effect in relation to the employee as if the award rate were equal to the employee's order rate.

17 Base rate of pay under Division 2B State employment agreement must not be less than Division 2B State award rate or modern award rate, or the national minimum wage order rate etc.

If employee is covered by a Division 2B State award or modern award that is in operation

(1) If, on or after the Division 2B referral commencement:

(a) a Division 2B State employment agreement applies to a Division 2B State reference employee; and

(b) a Division 2B State award or a modern award that is in operation covers the employee;

the base rate of pay payable to the employee under the agreement (the agreement rate ) must not be less than the base rate of pay that would be payable to the employee under the Division 2B State award or the modern award (the award rate ) if the Division 2B State award or the modern award applied to the employee.

(2) If the agreement rate is less than the award rate, the Division 2B State employment agreement has effect in relation to the employee as if the agreement rate were equal to the award rate.

If employee is not covered by a Division 2B State award or modern award that is in operation

(3) If, on or after the Division 2B referral commencement:

(a) a Division 2B State employment agreement applies to a Division 2B State reference employee; and

(b) the employee is not covered by a Division 2B State award or a modern award that is in operation; and

(c) a national minimum wage order would, if the employee were an award/agreement free employee, require the employee's employer to pay the employee a base rate of pay (the employee's order rate ) that at least equals the national minimum wage, or a special national minimum wage, set by the order;

the base rate of pay payable to the employee under the Division 2B State employment agreement (the agreement rate ) must not be less than the employee's order rate.

(4) If the agreement rate is less than the employee's order rate, the Division 2B State employment agreement has effect in relation to the employee as if the agreement rate were equal to the employee's order rate.

18 FWA may make determinations to phase-in the effect of rate increases resulting from item 16 or 17 etc.

(1) On application by an employer to whom a Division 2B State instrument applies, FWA may make a determination the effect of which is to phase-in the effect of increases in base rates of pay that would otherwise take effect on a particular day because of item 16 or 17.

(2) FWA must not make a determination under this item in relation to an employer unless it is satisfied that the determination is necessary to ensure the ongoing viability of the employer's enterprise.

(3) Items 16 and 17 have effect in relation to an employer subject to any determinations FWA makes under this item.

19 Award/agreement free Division 2B State reference employee not to be paid less than State minimum amount

(1) This item applies in relation to an employee and a period if:

(a) the employee is a Division 2B State reference employee; and

(b) the transitional national minimum wage order, or another national minimum wage order, is in operation throughout the period; and

(c) the employee is an award/agreement free employee throughout the period, and no Division 2B State instrument applies to the employee at any time in the period; and

(d) the amount that is payable to the employee in relation to the period under the national minimum wage order is less than the amount (the State minimum amount ) that would be payable to the employee in relation to the period under the State minimum wages instruments (see subitem (4)).

(2) The national minimum wage order has effect, in relation to the employee and the period, as if it instead required the employer to pay the employee the State minimum amount.

(3) In working out the State minimum amount, any increases of rates (whether because of indexation or otherwise) that would have taken effect after the Division 2B State referral commencement under State minimum wages instruments are to be disregarded.

(4) The State minimum wages instruments , in relation to the employee, are orders, decisions or rulings (however described), as in force immediately before the Division 2B referral commencement:

(a) that were made by a State industrial body under a State industrial law of the Division 2B referring State; and

(b) that provide for employees to be paid a minimum wage or a minimum rate of remuneration, or that affect the entitlement of such employees to be paid a minimum wage or a minimum rate of remuneration.

(5) This item has effect subject to the regulations, which may:

(a) provide for how amounts referred to in paragraph (1)(d) are to be worked out (for example, in relation to casual employees); or

(b) provide for how a national minimum wage order has effect because of subitem (2); or

(c) provide that certain orders, decisions or rulings (however described) made by a State industrial body are, or are not, State minimum wages instruments as defined in subitem (4).

Division 2 - Other matters

20 Variation of Division 2B State awards in annual wage reviews under the FW Act

(1) In an annual wage review, FWA may make a determination varying terms of a Division 2B State award relating to wages.

(2) For that purpose, Division 3 of Part 2-6 of the FW Act (other than section 292) applies to terms of a Division 2B State award relating to wages in the same way as it applies to a modern award.