MA000052 PR503671 |
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DETERMINATION |
Fair Work Act 2009
Division 2B—application of this Act in States that refer matters
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Schedule 3A, items 29 and 30—FWA to consider varying modern awards etc.
Award Modernisation
(AM2010/52)
PORTS, HARBOURS AND ENCLOSED WATER VESSELS AWARD 2010
[MA000052]
JUSTICE GIUDICE, PRESIDENT |
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A. Further to the decision issued by Fair Work Australia on 5 November 2010 [[2010] FWAFB 8558] and pursuant to schedule 3A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, the above award is varied as follows:
1. By inserting the following definitions in clause 3.1 in alphabetical order:
Division 2B State award has the meaning in Schedule 3A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
Division 2B State employment agreement has the meaning in Schedule 3A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
2. By renaming clause “12.5—Transitional provisions” as “12.5—Transitional provisions – NAPSA employees”.
3. By inserting a new clause 12.6 as follows:
12.6 Transitional provisions – Division 2B State employees
(a) Subject to clause 12.6(b), an employee whose employment is terminated by an employer is entitled to redundancy pay in accordance with the terms of a Division 2B State award:
(i) that would have applied to the employee immediately prior to 1 January 2011, if the employee had at that time been in their current circumstances of employment and no Division 2B State employment agreement or enterprise agreement had applied to the employee; and
(ii) that would have entitled the employee to redundancy pay in excess of the employee’s entitlement to redundancy pay, if any, under the NES.
(b) The employee’s entitlement to redundancy pay under the Division 2B State award is limited to the amount of redundancy pay which exceeds the employee’s entitlement to redundancy pay, if any, under the NES.
(c) This clause does not operate to diminish an employee’s entitlement to redundancy pay under any other instrument.
(d) Clause 12.6 ceases to operate on 31 December 2014.
4. By deleting clauses 15.1 and 15.2 and inserting the following:
15.1 Subject to clause 15.2, an employee is entitled to accident pay in accordance with the terms of an award made under the Workplace Relations Act 1996 (Cth) that would have applied to the employee immediately prior to 27 March 2006, a notional agreement preserving a State award that would have applied to the employee immediately prior to 1 January 2010 or a Division 2B State award that would have applied to the employee immediately prior to 1 January 2011:
(a) if the employee had at that time been in their current circumstances of employment and no agreement-based transitional instrument, enterprise agreement or Division 2B State employment agreement had applied to the employee; and
(b) that would have entitled the employee to accident pay in excess of the employee’s entitlement to accident pay, if any, under any other instrument.
15.2 The employee’s entitlement to accident pay under the award, the notional agreement preserving a State award or the Division 2B State award is limited to the amount of accident pay which exceeds the employee’s entitlement to accident pay, if any, under any other instrument.
5. By inserting a new clause A.8 as follows:
A.8 Former Division 2B employers
A.8.1 This clause applies to an employer which, immediately prior to 1 January 2011, was covered by a Division 2B State award.
A.8.2 All of the terms of a Division 2B State award applying to a Division 2B employer are continued in effect until the end of the full pay period commencing before 1 February 2011.
A.8.3 Subject to this clause, from the first full pay period commencing on or after 1 February 2011 a Division 2B employer must pay no less than the minimum wages, loadings and penalty rates which it would be required to pay under this Schedule if it had been a national system employer immediately prior to 1 January 2010.
A.8.4 Despite clause A.8.3, where a minimum wage, loading or penalty rate in a Division 2B State award immediately prior to 1 February 2011 was lower than the corresponding minimum wage, loading or penalty rate in this award, nothing in this Schedule requires a Division 2B employer to pay more than the minimum wage, loading or penalty rate in this award.
A.8.5 Despite clause A.8.3, where a minimum wage, loading or penalty rate in a Division 2B State award immediately prior to 1 February 2011 was higher than the corresponding minimum wage, loading or penalty rate in this award, nothing in this Schedule requires a Division 2B employer to pay less than the minimum wage, loading or penalty rate in this award.
A.8.6 In relation to a Division 2B employer this Schedule commences to operate from the beginning of the first full pay period on or after 1 January 2011 and ceases to operate from the beginning of the first full pay period on or after 1 July 2014.
B. This determination comes into operation on the first full pay period commencing on or after 1 January 2011.
PRESIDENT
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