Document ID: chunk:federal_register_of_legislation:C2022C00331:clause:6_5
Version: federal_register_of_legislation:C2022C00331
Segment Type: clause
Provision Reference: sch 6 cl 5
Character Range: 236038–238591

5  Enterprise instruments: termination by the FWC
(1) A person covered by an enterprise instrument may apply to the FWC for the FWC to terminate the instrument.
(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.
(3) If an application for the FWC to terminate the enterprise instrument is made under subitem (1), the FWC may:
 (a) terminate the enterprise instrument; or
 (b) decide that the enterprise instrument should not be terminated; or
 (c) decide to treat the application as if it were an application under item 4.
(4) In making a decision under subitem (3), the FWC must take into account the following:
 (a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;
 (b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;
 (c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);
 (d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;
 (e) the extent to which the enterprise instrument provides enterprise‑specific terms and conditions of employment;
 (f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to terminate, or not terminate, the enterprise instrument, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;
 (g) the views of the persons covered by the enterprise instrument;
 (h) any other matter prescribed by the regulations.
Note: A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC's final wage review under the WR Act, or to include transitional arrangements in the modern award.
(5) If the FWC terminates the enterprise instrument, the termination operates from the day specified in the decision to terminate the instrument, being a day that is not earlier than the FW (safety net provisions) commencement day.