Document ID: chunk:federal_register_of_legislation:C2008A00008:clause:1_346zg:p1
Version: federal_register_of_legislation:C2008A00008
Segment Type: clause
Provision Reference: sch 1 cl 346ZG (pt 1/2)
Character Range: 52129–54942

346ZG  Employee is entitled to compensation in respect of no‑disadvantage test period

 (1) This section applies to an employee who is entitled to compensation under this section on and from a particular day because a workplace agreement to which Subdivision D applies that was binding on the employee's employer did not pass the no‑disadvantage test.

Note 1: Sections 346V, 346W and 346ZA specify the day on which an employee's entitlement to compensation takes effect.

Note 2: An employee may be able to recover compensation even where a workplace agreement that initially does not pass the no‑disadvantage test is varied so that it subsequently passes the no‑disadvantage test—see section 346ZA.

 (2) If the amount worked out under paragraph (a) is less than the amount worked out under paragraph (b), the employer must pay to the employee the amount of the shortfall:
 (a) the total value of the entitlements to which the employee was entitled, under the workplace agreement, and under any other applicable law, agreement or arrangement that operated in conjunction with the workplace agreement, in respect of one or more periods of employment during the no‑disadvantage test period for the workplace agreement;
 (b) the total value of the entitlements to which the employee would have been entitled, in respect of one or more periods of employment of the employee during the no‑disadvantage test period, worked out in accordance with the assumptions set out in subsection (3).

 (3) For the purposes of working out the total value of the entitlements to which the employee would have been entitled, in respect of one or more periods of employment of the employee during the no‑disadvantage test period, it is to be assumed that, during that period or those periods of employment:
 (a) the employee's employment was subject to:
 (i) the instrument or instruments that, but for the workplace agreement, would have bound the employer in relation to that period or those periods of employment of the employee; or
 (ii) if there is no such instrument—the designated award in relation to the employee; and
 (b) the employer was bound, under a designated provision relating to the agreement, by a redundancy provision that, but for the workplace agreement having come into operation, would have bound the employer in relation to the employee; and
 (c) the employer was bound under section 394 by any undertaking that, but for the workplace agreement having come into operation, would have bound the employer in relation to the employee; and
 (d) the employee's employment was subject to any other applicable law, agreement or arrangement that would have operated in conjunction with the instrument or instruments referred to in subparagraph (a)(i), or the designated award referred to in subparagraph (a)(ii), as