Document ID: chunk:federal_register_of_legislation:C2007A00107:clause:1_346r:p1
Version: federal_register_of_legislation:C2007A00107
Segment Type: clause
Provision Reference: sch 1 cl 346R (pt 1/2)
Character Range: 40827–43599

346R  Agreement does not pass fairness test—agreement in operation

 (1) This section applies if:
 (a) the Workplace Authority Director decides under section 346M that a workplace agreement does not pass the fairness test; and
 (b) the workplace agreement is in operation immediately before the date of the decision.

 (2) The employer who is bound by the workplace agreement may:
 (a) in the case of an AWA—lodge a variation of the AWA with the Workplace Authority Director; or
 (b) in the case of an AWA or a collective agreement—lodge a variation of the workplace agreement by giving to the Workplace Authority Director a written undertaking in relation to the AWA or collective agreement.

 (3) If the employer does not take the action referred to in subsection (2) within the relevant period in relation to the workplace agreement, then at the end of that period:
 (a) the workplace agreement ceases to operate; and
 (b) the employee or employees whose employment was at any time subject to the workplace agreement are, after the end of the relevant period in relation to the workplace agreement, entitled to any compensation payable to the employee or employees under section 346ZD.

 (4) Despite subsection (3), if:
 (a) because of subsection 346N(3), the Workplace Authority Director considered, and made a separate decision in respect of, both a workplace agreement and the workplace agreement as varied; and
 (b) the workplace agreement did not pass the fairness test, but the workplace agreement as varied passed the fairness test;
the workplace agreement as varied continues in operation, and the employee or employees whose employment was at any time subject to the workplace agreement, whether before or after the variation was lodged are, after the end of the relevant period in relation to the workplace agreement, entitled to any compensation payable to the employee or employees under section 346ZD.

 (5) For the purposes of paragraph (2)(a), Division 8 does not apply to the variation of an AWA, except for the following provisions:
 (a) subsection 373(1);
 (b) section 374.

 (6) For the purposes of paragraph (2)(b), Division 8 does not apply to an undertaking given to the Workplace Authority Director in relation to an AWA or a collective agreement.

 (7) In this section:

relevant period, in relation to a workplace agreement, means:
 (a) the period of 14 days beginning on the date of issue specified in the notice under section 346P in relation to the workplace agreement; or
 (b) if a longer period is prescribed by the regulations for the purposes of this paragraph—that period; or
 (c) if the period referred to in paragraph (a) or (b) is extended under subsection (8) in relation to the workplace agreement—the period as extended.

 (8) The