Document ID: chunk:federal_register_of_legislation:C2022C00331:clause:9_13
Version: federal_register_of_legislation:C2022C00331
Segment Type: clause
Provision Reference: sch 9 cl 13
Character Range: 392481–394410

13  Base rate of pay under agreement‑based transitional instrument must not be less than the modern award rate or the national minimum wage order rate etc.

If employee is covered by a modern award that is in operation
(1) If, on or after the FW (safety net provisions) commencement day:
 (a) an agreement‑based transitional instrument applies to an employee; and
 (b) a modern award that is in operation covers the employee;
the base rate of pay payable to the employee under the transitional instrument (the instrument rate) must not be less than the base rate of pay that would be payable to the employee under the modern award (the award rate) if the modern award applied to the employee.
(2) If the instrument rate is less than the award rate, the transitional instrument has effect in relation to the employee as if the instrument rate were equal to the award rate.

If employee is not covered by a modern award that is in operation
(3) If, on or after the FW (safety net provisions) commencement day:
 (a) an agreement‑based transitional instrument applies to an employee; and
 (b) the employee is not covered by 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 transitional instrument (the instrument rate) must not be less than the employee's order rate.
(4) If the instrument rate is less than the employee's order rate, the transitional instrument has effect in relation to the employee as if the instrument rate were equal to the employee's order rate.
Note: The AFPCS interaction rules may affect the base rate of pay payable to an employee (see item 22 of Schedule 3).