Document ID: chunk:federal_register_of_legislation:C2012A00175:clause:1_768ax:p1
Version: federal_register_of_legislation:C2012A00175
Segment Type: clause
Provision Reference: sch 1 cl 768AX (pt 1/2)
Character Range: 30612–33336

768AX  Variation of copied State instruments

Application of this section
 (1A) This section applies if there is, or is likely to be, a transfer of business.

Variations that may be made
 (1) FWA may vary a copied State instrument for a transferring employee:
 (a) to remove terms that FWA is satisfied are not, or will not be, capable of meaningful operation or to vary those terms so that they are capable of meaningful operation; or
 (b) to remove an ambiguity or uncertainty in the instrument; or
 (c) to enable the instrument to operate in a way that is better aligned to the working arrangements of the new employer's enterprise; or
 (d) to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, or to make the instrument operate effectively with the National Employment Standards; or
 (e) if the instrument is a copied State employment agreement—to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or
 (f) to remove terms that are inconsistent with Part 3‑1 (which deals with general protections), or to vary terms to make them consistent with that Part.
Note: Paragraph (d) does not affect a term of the copied State instrument that is permitted by a provision of the National Employment Standards as the provision has effect under section 768AR.

Who may apply for a variation
 (2) FWA may make a variation under subsection (1):
 (a) on its own initiative; or
 (b) on application by a person who is, or is likely to be, covered by the copied State instrument; or
 (c) on application by an employee organisation that is entitled to represent the industrial interests of an employee who is, or is likely to be, covered by the copied State instrument.
Note: The copied State instrument for the transferring employee may also cover another transferring employee or a non‑transferring employee if a consolidation order is made.

Matters that FWA must take into account
 (3) In deciding whether to make a variation under subsection (1), FWA must take into account the following:
 (a) the views of:
 (i) the employees who would be affected by the copied State instrument as varied; and
 (ii) the new employer or a person who is likely to be the new employer;
 (b) whether any employees would be disadvantaged by the copied State instrument as varied in relation to their terms and conditions of employment;
 (c) if the copied State instrument is a copied State employment agreement—the nominal expiry date of the agreement;
 (d) whether the copied State instrument, without the variation, would have a negative impact on the productivity of the new employer's workplace;
 (e) whether the new