Document ID: chunk:federal_register_of_legislation:C2007A00107:clause:1_346ya:p1
Version: federal_register_of_legislation:C2007A00107
Segment Type: clause
Provision Reference: sch 1 cl 346YA (pt 1/2)
Character Range: 53761–56552

346YA  Employment arrangements if a workplace agreement ceases to operate because it does not pass fairness test—transmission of business

 (1) This section applies if:
 (a) 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; and
 (b) during the period beginning when the original agreement was lodged and ending on the cessation day, the original agreement became binding upon a new employer and a transferring employee or transferring employees because of the operation of section 583 or 585 in relation to a business being transferred; and
 (c) the cessation day occurs during the transmission period in relation to the business being transferred.

Note: If the cessation day occurs after the transmission period ends, the rules in Part 11 will have effect according to their terms.

 (2) The new employer and the transferring employee or transferring 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:
 (i) that, but for the original agreement having come into operation, would have bound the old employer and the transferring employee or transferring employees immediately before the time of transmission; and
 (ii) that was capable of binding the new employer after the time of transmission under Part 11, Schedule 6 or Schedule 9; or
 (b) if there is no instrument of a kind referred to in paragraph (a) in relation to the old employer and one or more of the transferring employees—the designated award in relation to that employee or those employees, to the extent that the designated award contains protected award conditions.

 (3) If, but for the original agreement having come into operation, the old employer would have been bound, immediately before the time of transmission, under a designated provision by a redundancy provision in relation to a transferring employee or transferring employees whose employment was subject to the original agreement, the new employer is taken:
 (a) to be bound under section 598A or clause 27A of Schedule 9, as the case requires, on and from the cessation day, by the redundancy provision in relation to the transferring employee or transferring employees; and
 (b) to continue to be so bound until the earliest of the following:
 (i) the end of the period of 12 months beginning on the first day on which the old employer became bound under a designated provision by the redundancy provision;
 (ii) the time when the employee ceases to be employed by the new employer;
 (iii) the time when another workplace agreement comes into operation in relation to the transferring employee