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Schedule 4—Application and transitional provisions

Schedule 4 Application and transitional provisions

   

Fair Work Act 2009

1  In the appropriate position in Schedule 1

Insert:

Part 5 Amendments made by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2017

Division 1 General

25   Definitions

                   In this Part:

4 yearly review of modern awards has the meaning given by this Act, as in force immediately before the commencement of Schedule 1 to the amending Act.

amended Act means this Act as amended by the amending Act.

amending Act means the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2017 .

Schedule 1 commencement day means the day on which Schedule 1 to the amending Act commences.

Schedule 2 commencement day means the day on which Schedule 2 to the amending Act commences.

Division 2 Amendments made by Schedule 1 to the amending Act

26   Incomplete review of modern award

Scope

             (1)  This clause applies in relation to a review of a modern award conducted as part of a 4 yearly review of modern awards if:

                     (a)  the review of the modern award commenced before the Schedule 1 commencement day; and

                     (b)  immediately before that day, the review of the modern award had not been completed.

Saving

             (2)  Despite the repeal of:

                     (a)  Division 4 of Part 2-3 (which deals with 4 yearly reviews of modern awards); and

                     (b)  paragraph 582(4)(a) (which deals with directions by the President); and

                     (c)  subsections 616(2) and (3) (which deal with the FWC’s functions etc. that must be performed by a Full Bench);

by the amending Act, those provisions continue to apply, in relation to the review of the modern award, as if those repeals had not happened.

             (3)  Despite the repeal of paragraph 582(4)(a) (which deals with directions by the President) by the amending Act, a direction given by the President to an FWC Member under that paragraph that was in force immediately before the Schedule 1 commencement day continues to have effect, in relation to the review of the modern award, as if that repeal had not happened.

Common issues

             (4)  For the purposes of this clause, it is immaterial whether the review of the modern award is conducted in relation to an issue that the modern award has in common with another modern award.

27   Dismissing applications

             (1)  On or after the Schedule 1 commencement day, the FWC may dismiss an application under section 158 to vary, revoke or make a modern award if the FWC is satisfied that the specific matters in relation to which the application is made were dealt with, or are being dealt with, in a 4 yearly review of modern awards.

Note:          For another power of the FWC to dismiss applications under section 158, see section 587.

             (2)  This clause does not limit when the FWC may dismiss an application under section 158.

Sunset provision

             (3)  This clause ceases to have effect at the end of 2 years after the Schedule 1 commencement day.

Division 3 Amendments made by Schedule 2 to the amending Act

28   Application of amendments—when employees have genuinely agreed to an enterprise agreement

             (1)  The amendments of section 188 of this Act made by Schedule 2 to the amending Act apply in relation to an application made under section 185 of this Act for approval of an enterprise agreement if the application is made:

                     (a)  on or after the Schedule 2 commencement day; or

                     (b)  before the Schedule 2 commencement day, if circumstances covered by subclause (2) apply.

             (2)  The circumstances covered by this subclause are:

                     (a)  on or before the Schedule 2 commencement day, the FWC had neither approved, nor refused to approve, the enterprise agreement; or

                     (b)  before the Schedule 2 commencement day:

                              (i)  the FWC approved, or refused to approve, the enterprise agreement; and

                             (ii)  an application was made under section 604 for an appeal against the decision to approve, or refuse to approve, the enterprise agreement; and

                            (iii)  the FWC had not yet made a final decision on the appeal; or

                     (c)  all of the following apply:

                              (i)  within 21 days before the Schedule 2 commencement day, the FWC approved, or refused to approve, the enterprise agreement;

                             (ii)  immediately before the Schedule 2 commencement day, an application had not been made under section 604 for an appeal against the decision to approve, or refuse to approve, the enterprise agreement;

                            (iii)  within 21 days after the FWC approved, or refused to approve, the enterprise agreement, an application is made under section 604 for an appeal against that decision.

Division 4 Amendments made by Schedule 3 to the amending Act

29   Application of section 641B of the amended Act

                   Section 641B of the amended Act applies in relation to alleged misbehaviour or incapacity of an FWC Member occurring before or after the commencement of Schedule 3 to the amending Act.

(18/17)