Document ID: chunk:federal_register_of_legislation:C2022C00331:clause:5_3
Version: federal_register_of_legislation:C2022C00331
Segment Type: clause
Provision Reference: sch 5 cl 3
Character Range: 215370–218150

3  Variation and termination of certain transitional instruments etc. to take account of Part 10A award modernisation process
(1) The FWC must, as soon as practicable after a modern award (other than the miscellaneous modern award) made in the Part 10A award modernisation process comes into operation (and subject to subitem (3)):
 (a) terminate any of the following (modernisable instruments) that the FWC considers are completely replaced by the modern award:
 (i) award‑based transitional instruments;
 (ii) transitional APCSs; and
 (b) if the FWC considers that the modern award only partly replaces a modernisable instrument—vary the coverage terms of the modernisable instrument accordingly.
Note 1: The main provisions about transitional instruments are in Schedule 3, and the main provisions about transitional APCSs are in Schedule 9.
Note 2: This item does not limit the effect of any other provision of this Act under which a modernisable instrument ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.
(2) As soon as practicable after all modern awards made in the Part 10A modernisation process have come into operation, the FWC must (subject to subitem (3)) terminate any remaining modernisable instruments.
(3) However, the FWC must not, under this item:
 (a) terminate a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award, or that covers employees who are also covered by an enterprise instrument or a State reference public sector transitional award; or
 (b) vary a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award; or
 (c) vary a modernisable instrument so that it ceases to cover employees who are also covered by an enterprise instrument or a State reference public sector transitional award.
Note 1: Item 9 of Schedule 6 deals with termination and variation of modernisable instruments to take account of the enterprise instrument or a State reference public sector transitional award modification process.
Note 2: Item 10 of Schedule 6A deals with termination and variation of State reference public sector transitional awards to take account of the State reference public sector transitional award modernisation process.
(4) The FWC may establish a process for making decisions under this item to terminate or vary one or more modernisable instruments.
(5) The FWC may advise persons or bodies about that process in any way the FWC considers appropriate.
(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC's powers under subitem (5).