Document ID: chunk:federal_register_of_legislation:C2007A00107:clause:1_52aaa
Version: federal_register_of_legislation:C2007A00107
Segment Type: clause
Provision Reference: sch 1 cl 52AAA
Character Range: 89020–91359

52AAA  Application of fairness test where employment was subject to notional agreement preserving State awards

 (1) If:
 (a) a workplace agreement binds an employer and an employee or employees; and
 (b) immediately before the day on which the workplace agreement was lodged, the employer and employee or employees were bound by a notional agreement preserving State awards in respect of the employee's or employees' employment; and
 (c) the workplace agreement contains protected notional conditions because of paragraph 52(2)(a) of this Schedule;
then, Division 5A of Part 8 of this Act (which deals with the fairness test) has effect in relation to that workplace agreement as if:
 (d) a reference in that Division to protected award conditions were a reference to protected notional conditions; and
 (e) a reference in that Division to a relevant award or a reference award were a reference to a relevant notional agreement preserving State awards; and
 (f) paragraph 346C(1)(b) and subsection 346C(2) were omitted; and
 (g) paragraphs 346E(1)(b) and (2)(b) and 346F(1)(b) and (2)(b) were omitted; and
 (h) sections 346H, 346K and 346L were omitted; and
 (i) paragraphs 346Y(2)(b) and 346YA(2)(b) were omitted; and
 (j) the definition of instrument in subsections 346Y(5) and 346YA(5) included a reference to a notional agreement preserving State awards; and
 (k) subparagraph 346ZD(2A)(a)(ii) were omitted.

 (2) In this clause:

protected notional conditions has the same meaning as in subclause 52(3), subject to subclause (3) of this clause.

relevant notional agreement preserving State awards, in relation to an employee whose employment is subject to a workplace agreement, means a notional agreement preserving State awards that was binding on the employee's employer immediately before the day on which the workplace agreement was lodged.

 (3) For the purposes of the definition of protected notional conditions in subclause (2), the definition of protected allowable award matters in subclause 52(3) has effect as if it did not include the matter referred to in paragraph (h) of the definition.

Note: Paragraph (h) relates to outworker conditions. These conditions cannot be excluded or modified by a workplace agreement to provide a less favourable outcome for an employee in a particular respect—see subclause 52(2A).