Document ID: chunk:federal_register_of_legislation:C2007A00107:clause:1_346da
Version: federal_register_of_legislation:C2007A00107
Segment Type: clause
Provision Reference: sch 1 cl 346DA
Character Range: 14197–16360

346DA  Transmission of business—where no decision under section 346M at time of transmission

 (1) This section applies if:
 (a) the Workplace Authority Director is required to decide under section 346M whether a workplace agreement passes the fairness test; and
 (b) before the Workplace Authority Director makes the decision, the workplace agreement becomes binding upon a new employer and a transferring employee or transferring employees because of the operation of section 583 or 585.

 (2) Subject to subsection (4), for the purposes of deciding under section 346M whether the workplace agreement passes the fairness test, references to the employer in section 346M and in the definition of relevant award are taken to be references to the old employer.

 (3) If:
 (a) the Workplace Authority Director has been notified that the workplace agreement is binding on the new employer and the transferring employee or transferring employees; and
 (b) the Workplace Authority Director is required to give a notice under section 346J, 346P or 346U to the employer in relation to the workplace agreement;
the Workplace Authority Director must give the notice to both the old employer and the new employer.

 (4) If the Workplace Authority Director decides under section 346M that the workplace agreement does not pass the fairness test:
 (a) references in section 346R to the employer bound by the workplace agreement are taken to be references to the new employer; and
 (b) to avoid doubt, if the new employer subsequently lodges a variation of the workplace agreement under section 346R then, for the purposes of deciding under section 346U whether the workplace agreement as varied passes the fairness test, references in section 346M to the employer are taken to be references to the old employer.

Note 1: The employment arrangements that have effect in relation to the new employer and the transferring employee or transferring employees are as set out in section 346YA.

Note 2: The compensation payable to the transferring employees under section 346ZD by both the old employer and the new employer is as specified in subsections 346ZD(2), (2A) and (2B).