Document ID: chunk:federal_register_of_legislation:C2007A00107:clause:1_346y:p1
Version: federal_register_of_legislation:C2007A00107
Segment Type: clause
Provision Reference: sch 1 cl 346Y (pt 1/2)
Character Range: 50769–53572

346Y  Employment arrangements that apply if a workplace agreement ceases to operate because it does not pass fairness test

 (1) This section applies if, on a particular day (the cessation day), a workplace agreement (the original agreement) ceases to operate under section 346R or 346W because the original agreement does not pass the fairness test.

 (2) The employer and the employee or employees who were bound by the original agreement immediately before the cessation day are taken, on and from the cessation day, to be bound by:
 (a) the instrument or instruments that, but for the original agreement having come into operation, would have bound the employer and the employee or employees on and from the cessation day; or
 (b) if there is no instrument of a kind referred to in paragraph (a) in relation to the employer and one or more of the employees—the designated award in relation to that employee or those employees, to the extent that the designated award contains protected award conditions.

Note: A workplace agreement binds all persons whose employment is, at any time when the agreement is in operation, subject to the agreement (see paragraph 351(b)). A collective agreement may therefore bind an employer in relation to existing and future employees.

 (3) If the original agreement is a workplace agreement as varied under Division 8, the workplace agreement as in force before the variation was lodged is, despite section 346ZB, capable of being an instrument described in paragraph (2)(a).

 (4) An instrument that has ceased to operate in relation to an employee or employees is capable of being an instrument described in paragraph (2)(a) only if the reason it ceased to operate was because the original agreement came into operation in relation to the employee or employees.

 (4A) Despite subsection (2), if the original agreement is a workplace agreement that, after lodgment, becomes binding upon a new employer and a transferring employee or transferring employees because of the operation of section 583 or 585, this section does not have the effect of binding the new employer and the transferring employee or transferring employees to an instrument or to a designated award.

Note: The employment arrangements that have effect in relation to the new employer and the transferring employee or transferring employees are as set out in section 346YA.

 (5) In this section:

instrument means any of the following:
 (a) a workplace agreement;
 (b) an award;
 (c) a workplace determination;
 (d) an employment agreement (within the meaning of section 887);
 (e) a pre‑reform certified agreement (within the meaning of Schedule 7);
 (f) a pre‑reform AWA;
 (g) a section 170MX award (within the meaning of Schedule 7);
 (h) an exceptional matters order (within the meaning of