Document ID: chunk:federal_register_of_legislation:C2007A00107:clause:1_25b:p1
Version: federal_register_of_legislation:C2007A00107
Segment Type: clause
Provision Reference: sch 1 cl 25B (pt 1/2)
Character Range: 85524–88453

25B  Application of fairness test where employment was subject to preserved State agreement

 (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 preserved State agreement in respect of the employee's or employees' employment; and
 (c) the workplace agreement contains protected preserved conditions because of paragraph 25A(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 preserved conditions; and
 (e) a reference in that Division to a relevant award or a reference award were a reference to a relevant preserved State agreement; and
 (f) paragraph 346C(1)(a) were substituted with the following paragraph:
 "(a) if the protected preserved conditions are taken to be included in the workplace agreement because of paragraph 25A(2)(a) of Schedule 8."; and
 (g) paragraph 346C(1)(b) and subsection 346C(2) were omitted; and
 (h) paragraphs 346E(1)(b) and (2)(b) and 346F(1)(b) and (2)(b) were omitted; and
 (i) sections 346H, 346K and 346L were omitted; and
 (j) paragraphs 346Y(2)(b) and 346YA(2)(b) were substituted with the following paragraph:
 "(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—protected preserved conditions that were taken to be contained in the original agreement as if those conditions were never excluded or modified by the agreement."; and
 (k) the definition of instrument in subsections 346Y(5) and 346YA(5) included a reference to a preserved State agreement; and
 (l) the definition of designated provision in subsection 346ZA(4) included a reference to clauses 21A and 21D of Schedule 8; and
 (m) subparagraph 346ZD(2A)(a)(ii) were substituted with the following subparagraph:
 "(ii) if there is no such instrument—protected preserved conditions in relation to the employee.".

 (2) For the purpose of paragraphs 346Y(2)(b) and 346YA(2)(b) (as substituted by paragraph (1)(j) of this clause), Parts 6 and 14 of this Act apply to protected preserved conditions as if the conditions were:
 (a) if the workplace agreement was an AWA—an AWA in operation; or
 (b) if the workplace agreement was a collective agreement—a collective agreement in operation.

 (3) In this clause:

protected preserved condition has the same meaning as in subclause 25A(4), subject to subclause (4) of this clause.

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