Document ID: chunk:federal_register_of_legislation:C2022C00331:clause:13_2
Version: federal_register_of_legislation:C2022C00331
Segment Type: clause
Provision Reference: sch 13 cl 2
Character Range: 437608–440054

2  Employee covered by individual agreement‑based transitional instrument or individual Division 2B State employment agreement is taken not to be an employee who will be, or who is, covered by enterprise agreement in certain circumstances
(1) This item applies to an employee at a particular time if, at that time, an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement covers the employee.
(2) The employee is only taken, for the purposes of the FW Act, to be at that time an employee who is or will be covered by an enterprise agreement or a proposed enterprise agreement, if one of the following applies:
 (a) the nominal expiry date of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement has passed;
 (b) a conditional termination of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement has been made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A.
Note: The main effect of this subitem is that an employee who is covered by an individual agreement‑based transitional instrument or an individual Division 2B State employment agreement will not be able to do any of the following until the nominal expiry date of the instrument passes or a conditional termination of the instrument is made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A:
(a) be represented in bargaining for an enterprise agreement;
(b) vote on the agreement;
(c) be in a group of employees covered by a protected action ballot order in relation to the agreement;
(d) have the agreement apply to the employee.
(3) Despite subitem (2), an employer must give a notice of employee representational rights to an employee under section 173 of the FW Act, if the employer would have been required to give such a notice but for subitem (2). However, the notice must explain that a person can only become the employee's bargaining representative for the agreement when one of the following occurs:
 (a) the nominal expiry date of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement passes;
 (b) a conditional termination of the individual agreement‑based transitional instrument or the individual Division 2B State employment agreement is made under subitem 18(2) of Schedule 3 or subitem 25(2) of Schedule 3A.