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Schedule 1—Amendments

Schedule 1 Amendments

   

Fair Work Act 2009

1  At the end of Division 2 of Part 2-3

Add:

135A   Protecting  penalty rates

             (1)  A penalty rate in a modern award cannot be varied to make the penalty rate lower than that in force under the award on 30 June 2017.

             (2)  A determination of the FWC made on or after 22 February 2017 that would reduce a penalty rate in a modern award so that the penalty rate would be lower than that in force under the award on 30 June 2017 has no effect.

2  At the end of section 193

Add:

Effect of removing or reducing penalty rates—award covered employees

             (8)  Despite anything else in this section, an enterprise agreement that is not a greenfields agreement does not pass the better off overall test under this section if:

                     (a)  a penalty rate under the relevant modern award for an award covered employee, or a prospective award covered employee, is removed or reduced under the agreement; and

                     (b)  because the employee usually works, or will usually work, on a day in relation to which a penalty rate is payable under the relevant modern award, the removal or reduction in the penalty rate disproportionately affects the employee as compared with employees who do not usually work on that day.

Effect of removing or reducing penalty rates—prospective award covered employees

             (9)  Despite anything else in this section, a greenfields agreement does not pass the better off overall test under this section if:

                     (a)  a penalty rate under the relevant modern award for a prospective award covered employee is removed or reduced under the agreement; and

                     (b)  because the employee will usually work on a day in relation to which a penalty rate is payable under the relevant modern award, the removal or reduction in the penalty rate will disproportionately affect the employee as compared with employees who will not usually work on that day.

3  Application of item 2

The amendment made by item 2 of this Schedule applies in relation to enterprise agreements made on or after the commencement of the item.