Fair Work Act 2009

An Act relating to workplace relations, and for related purposes

This Act may be cited as the Fair Work Act 2009.

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table	The day on which this Act receives the Royal Assent.	7 April 2009
2. Sections 3 to 40	A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.	26 May 2009 (see F2009L01818)
3. Sections 41 to 572	A day or days to be fixed by Proclamation. A Proclamation must not specify a day that occurs before the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent. However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent, they commence on the first day after the end of that period.	Sections 41–43, 50–54, 58, 169–281A, 300–327, 332, 333, 334–572: 1 July 2009 (see F2009L02563) Sections 44–49, 55–57A, 59–168, 282–299, 328–331, 333A: 1 January 2010 (see F2009L02563)
4. Sections 573 to 718	At the same time as the provision(s) covered by table item 2.	26 May 2009
5. Sections 719 to 800	A day or days to be fixed by Proclamation. A Proclamation must not specify a day that occurs before the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent. However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent, they commence on the first day after the end of that period.	Sections 719–740, 769–800: 1 July 2009 (see F2009L02563) Sections 741–768: 1 January 2010 (see F2009L02563)
6. Schedule 1	At the same time as the provision(s) covered by table item 2.	26 May 2009

Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

Division 2—Object of this Act

3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and

(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and

(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and

(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and

(f) achieving productivity and fairness through an emphasis on enterprise‑level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and

(g) acknowledging the special circumstances of small and medium‑sized businesses.

Division 3—Guide to this Act

4 Guide to this Act

Overview of this Act

(1) This Act is about workplace relations. It:

(a) provides for terms and conditions of employment (Chapter 2); and

(b) sets out rights and responsibilities of employees, employers and organisations in relation to that employment (Chapter 3); and

(d) provides for the administration of this Act by establishing the Fair Work Commission and the Office of the Fair Work Ombudsman (Chapter 5); and

(e) deals with other matters relating to the above (Chapter 6).

Overview of the rest of this Chapter

(2) The rest of this Chapter deals with:

(a) definitions that are used in this Act (Part 1‑2); and

(b) the application of this Act (Part 1‑3), including how this Act interacts with certain State and Territory laws and its geographical application.

Definitions

(3) Many of the terms in this Act are defined. The Dictionary in section 12 contains a list of every term that is defined in this Act.

Application, saving and transitional provisions for amendments

(4) Schedule 1 contains application, saving and transitional provisions relating to amendments of this Act.

5 Terms and conditions of employment (Chapter 2)

(1) Chapter 2 provides for terms and conditions of employment of national system employees.

(2) Part 2‑1 has the core provisions for the Chapter. It deals with compliance with, and interaction between, the sources of the main terms and conditions provided under this Act—the National Employment Standards, modern awards and enterprise agreements.

Note: Workplace determinations are another source of main terms and conditions. In most cases, this Act applies to a workplace determination as if it were an enterprise agreement in operation (see section 279).

Main terms and conditions

(3) Part 2‑2 contains the National Employment Standards, which are minimum terms and conditions that apply to all national system employees.

(4) Part 2‑3 is about modern awards. A modern award is made for a particular industry or occupation and provides additional minimum terms and conditions for those national system employees to whom it applies. A modern award can have terms that are ancillary or supplementary to the National Employment Standards.

(5) Part 2‑4 is about enterprise agreements. An enterprise agreement is made at the enterprise level and provides terms and conditions for those national system employees to whom it applies. An enterprise agreement can have terms that are ancillary or supplementary to the National Employment Standards.

(6) Part 2‑5 is about workplace determinations. A workplace determination provides terms and conditions for those national system employees to whom it applies. A workplace determination is made by the FWC if certain conditions are met.

(7) Part 2‑8 provides for the transfer of certain modern awards, enterprise agreements, workplace determinations and other instruments if there is a transfer of business from one national system employer to another national system employer.

Other terms and conditions

(8) In addition, other terms and conditions of employment for national system employees include those:

(a) provided by a national minimum wage order (see Part 2‑6) or an equal remuneration order (see Part 2‑7); and

(b) provided by Part 2‑9 (which deals with the frequency and method of making payments to employees, deductions from payments and high‑income employees).

6 Rights and responsibilities of employees, employers, organisations etc. (Chapter 3)

(1) Chapter 3 sets out rights and responsibilities of national system employees, national system employers, organisations and others (such as independent contractors and industrial associations).

(2) Part 3‑1 provides general workplace protections. It:

(a) protects workplace rights; and

(b) protects freedom of association and involvement in lawful industrial activities; and

(3) Part 3‑2 deals with unfair dismissal of national system employees, and the granting of remedies when that happens.

(4) Part 3‑3 deals mainly with industrial action by national system employees and national system employers and sets out when industrial action is protected industrial action. No action lies under any law in force in a State or Territory in relation to protected industrial action except in certain circumstances.

(5) Part 3‑4 is about the rights of officials of organisations who hold entry permits to enter premises for purposes related to their representative role under this Act and under State or Territory OHS laws. In exercising those rights, permit holders must comply with the requirements set out in the Part.

(6) Part 3‑5 allows a national system employer to stand down a national system employee without pay in certain circumstances.

(7) Part 3‑6 deals with other rights and responsibilities of national system employers in relation to:

(a) termination of employment; and

(b) keeping records and giving payslips.

(8) Part 3‑7 deals with offences in relation to corrupting benefits.

7 Compliance and enforcement (Chapter 4)

(1) Chapter 4 provides for compliance with, and enforcement of, this Act.

(2) Part 4‑1 is about civil remedies. Certain provisions in this Act impose obligations on certain persons. Civil remedies may be sought in relation to contraventions of these civil remedy provisions. Part 4‑1:

(a) deals with applications for orders for contraventions of civil remedy provisions; and

(b) sets out the orders the courts can make in relation to a contravention of a civil remedy provision.

(3) Part 4‑2 is about the jurisdiction and powers of the courts in relation to matters arising under this Act.

8 Administration (Chapter 5)

(1) Chapter 5 provides for the administration of this Act by establishing the Fair Work Commission and the Office of the Fair Work Ombudsman.

(2) Part 5‑1 is about the Fair Work Commission. It:

(a) establishes and confers functions on the FWC; and

(b) sets out how matters before the FWC are to be conducted (for example, how the FWC is to deal with applications made to it).

(3) Part 5‑2 is about the Office of the Fair Work Ombudsman. It:

(a) establishes and confers functions on the Fair Work Ombudsman; and

(b) confers functions and powers on Fair Work Inspectors.

9 Miscellaneous (Chapter 6)

(1) Chapter 6 is a collection of miscellaneous matters that relate to the other Chapters.

(2) Part 6‑1 provides rules relating to applications for remedies under this Act. It prevents certain applications if other remedies are available and prevents multiple applications or complaints in relation to the same conduct.

(3) Part 6‑2 is about dealing with disputes between national system employees and their employers under modern awards, enterprise agreements and contracts of employment.

(4) Part 6‑3 extends the National Employment Standards relating to unpaid parental leave and notice of termination to non‑national system employees.

(4A) Part 6‑3A provides for the transfer of terms and conditions of employment that are provided for in particular State industrial instruments if there is a transfer of business from a non‑national system employer that is a State public sector employer of the State to a national system employer.

(5) Part 6‑4 contains provisions to give effect, or further effect, to certain international agreements relating to termination of employment.

(5A) Part 6‑4A contains special provisions about TCF outworkers.

(5B) Part 6‑4B allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying.

(6) Part 6‑5 deals with miscellaneous matters such as delegations and regulations.

9A Application, transitional and saving provisions for amendments (Schedules)

The Schedules contain application, transitional and saving provisions relating to amendments of this Act.

Note: Application, transitional and saving provisions relating to the enactment of this Act, and States becoming referring States, are in the Transitional Act.

Part 1‑2—Definitions

Division 1—Introduction

10 Guide to this Part

This Part is about the terms that are defined in this Act.

Division 2 has the Dictionary (see section 12). The Dictionary is a list of every term that is defined in this Act. A term will either be defined in the Dictionary itself, or in another provision of this Act. If another provision defines the term, the Dictionary will have a signpost to that definition.

Division 3 has definitions relating to the meanings of employee and employer.

Division 4 has some other definitions that apply across this Act.

11 Meanings of employee and employer

In this Part, employee and employer have their ordinary meanings.

Note: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).

Division 2—The Dictionary

12 The Dictionary

In this Act:

AAT presidential member means a person who is a presidential member of the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975.

access period for a proposed enterprise agreement: see subsection 180(4).

accommodation arrangement: see subsections 521A(1) and (2).

action includes an omission.

adoption‑related leave: see subsection 67(5).

adverse action: see section 342.

affected employees for a variation of an enterprise agreement: see subsection 207(2).

affected employer:

(a) in relation to an entry under Subdivision A of Division 2 of Part 3‑4: see subsection 482(2); and

(aa) in relation to an entry under section 483A other than a designated outworker terms entry: see paragraph 483B(3)(a); and

(ab) in relation to a designated outworker terms entry under section 483A: see paragraph 483B(3)(b); and

(b) in relation to an entry in accordance with Division 3 of Part 3‑4: see paragraph 495(2)(a); and

(c) in relation to a State or Territory OHS right to inspect or otherwise access an employee record: see paragraph 495(2)(b).

affected member certificate: see subsection 520(1).

Age Discrimination Commissioner means the Age Discrimination Commissioner appointed under the Age Discrimination Act 2004.

agreed terms for a workplace determination: see section 274.

agreed to in relation to a termination of an enterprise agreement: see section 221.

annual rate of an employee’s guaranteed annual earnings: see subsection 330(3).

annual wage review: see subsection 285(1).

anti‑discrimination law: see subsection 351(3).

apparent indirectly responsible entity: see subsection 789CC(2).

applicable agreement‑derived long service leave terms: see subsection 113(5).

applicable award‑derived long service leave terms: see subsection 113(3).

application or complaint under another law: see subsection 732(2).

applies:

(a) in relation to a modern award: see section 47; and

(b) in relation to an enterprise agreement: see section 52; and

applies to employment generally: see subsection 26(4).

appointment of a bargaining representative means an appointment of a bargaining representative under paragraph 176(1)(c) or (d) or 177(c).

appropriate safe job: see subsection 81(3).

approved by the FWC, in relation to an enterprise agreement, means approved by the FWC under section 186 or 189.

associated entity has the meaning given by section 50AAA of the Corporations Act 2001.

Australia means the Commonwealth of Australia and, when used in a geographical sense, includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory.

Australian‑based employee: see subsections 35(2) and (3).

Australian employer: see subsection 35(1).

Australian ship means a ship that has Australian nationality under section 29 of the Shipping Registration Act 1981.

authority documents: see subsection 489(3).

available parental leave period: see subsection 75(2).

award/agreement free employee means a national system employee to whom neither a modern award nor an enterprise agreement applies.

award covered employee for an enterprise agreement: see subsection 193(4).

award modernisation process means:

(a) the process of making modern awards under Part 10A of the Workplace Relations Act 1996, as continued by Part 2 of Schedule 5 of the Transitional Act; and

(b) the enterprise instrument modernisation process provided for by Part 2 of Schedule 6 of the Transitional Act; and

(c) the State reference public sector transitional award modernisation process provided for by Part 2 of Schedule 6A of the Transitional Act.

ballot paper: see subsection 455(2).

bargaining order: see subsection 229(1).

bargaining related workplace determination: see subsection 269(1).

bargaining representative for a proposed enterprise agreement: see sections 176 and 177.

bargaining services: see subsection 353(3).

bargaining services fee: see subsection 353(2).

base rate of pay: see section 16.

birth‑related leave: see subsection 67(4).

bullied at work: see subsection 789FD(1).

cash or in kind payment: see subsection 536F(4).

casual employee: see section 15A.

child of a person: see subsection 17(1).

civil remedy provision: see subsections 539(1) and (3).

close relative: see subsection 106B(3).

Commissioner means a Commissioner of the FWC.

common requirements in relation to industrial action: see section 413.

Commonwealth means the Commonwealth of Australia and, when used in a geographical sense, includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory.

Commonwealth authority means:

(a) a body corporate established for a public purpose by or under a law of the Commonwealth; or

(b) a body corporate:

(i) incorporated under a law of the Commonwealth or a State or a Territory; and

(ii) in which the Commonwealth has a controlling interest.

Commonwealth Ombudsman means the person for the time being holding office as Ombudsman under the Ombudsman Act 1976.

Commonwealth outworker entity means an entity that is an outworker entity otherwise than because of section 30F or 30Q.

Note: Sections 30F and 30Q extend the meaning of outworker entity in relation to a referring State.

Commonwealth place means a place referred to in paragraph 52(i) of the Constitution, other than the seat of government.

compassionate leave means compassionate leave to which a national system employee is entitled under section 104.

complaint about an FWC Member means a complaint referred to in paragraph 581A(1)(a) or section 641A.

complaint handler means:

(a) the President; or

(b) a person who is authorised by the President under subsection 581A(3); or

compliance powers: see section 703.

compliance purposes: see subsection 706(1).

concurrent leave: see subsection 72(5).

conduct includes an omission.

conduct of a protected action ballot: see subsection 458(5).

connected with a Territory: an arrangement for work to be performed for a person (either directly or indirectly) is connected with a Territory if one or more of the following apply:

(a) at the time the arrangement is made, one or more parties to the arrangement is in a Territory in Australia;

(b) the work is to be performed in such a Territory;

(c) the person carries on an activity (whether of a commercial, governmental or other nature) in such a Territory, and the work is reasonably likely to be performed in that Territory;

(d) the person carries on an activity (whether of a commercial, governmental or other nature) in such a Territory, and the work is to be performed in connection with that activity.

Note: In this context, Australia includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see the definition of Australia).

consent low‑paid workplace determination: see subsection 260(2).

consistent with the Small Business Fair Dismissal Code: see subsection 388(2).

consolidation order:

(a) in relation to a transferring employee—see subsection 768BD(1); and

(b) in relation to a non‑transferring employee—see subsection 768BG(1).

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

constitutionally‑covered business: see subsection 789FD(3).

constitutionally‑covered entity: see subsection 338(2).

constitutional trade or commerce means trade or commerce:

(a) between Australia and a place outside Australia; or

(b) among the States; or

(d) between 2 Territories; or

(e) within a Territory.

continental shelf means:

(a) the continental shelf (as defined in the Seas and Submerged Lands Act 1973) of Australia (including its external Territories); and

(b) the Greater Sunrise special regime area (as defined in the Seas and Submerged Lands Act 1973).

continuous service has a meaning affected by section 22.

copied State award: see subsection 768AI(1).

copied State collective employment agreement: see subsection 768AK(4).

copied State employment agreement: see subsection 768AK(1).

copied State individual employment agreement: see subsection 768AK(5).

copied State instrument: see section 768AH.

corporate MySuper product: see subsection 23A(3).

coverage terms:

(a) in relation to a modern award (other than a modern enterprise award): see section 143; and

(b) in relation to a modern enterprise award: see section 143A; and

covers:

(a) in relation to a modern award: see section 48; and

(b) in relation to an enterprise agreement: see section 53; and

(d) in relation to a copied State instrument: see section 768AN.

day of placement: see subsection 67(6).

de facto partner of a national system employee:

(a) means a person who, although not legally married to the employee, lives with the employee in a relationship as a couple on a genuine domestic basis (whether the employee and the person are of the same sex or different sexes); and

(b) includes a former de facto partner of the employee.

default fund employee: see subsection 149C(2).

default fund term: see subsection 149C(2).

Default Superannuation List: see subsection 156B(1).

defined benefit member has the meaning given by the Superannuation Guarantee (Administration) Act 1992.

Deputy President means a Deputy President of the FWC.

designated emergency management body: see subsections 195A(4) and (5).

designated outworker term of a modern award, enterprise agreement, workplace determination or other instrument, means any of the following terms, so far as the term relates to outworkers in the textile, clothing or footwear industry:

(a) a term that deals with the registration of an employer or outworker entity;

(b) a term that deals with the making and retaining of, or access to, records about work to which outworker terms of a modern award apply;

(c) a term imposing conditions under which an arrangement may be entered into by an employer or an outworker entity for the performance of work, where the work is of a kind that is often performed by outworkers;

(d) a term relating to the liability of an employer or outworker entity for work undertaken by an outworker under such an arrangement, including a term which provides for the outworker to make a claim against an employer or outworker entity;

(e) a term that requires minimum pay or other conditions, including the National Employment Standards, to be applied to an outworker who is not an employee;

(f) any other terms prescribed by the regulations.

designated outworker terms entry: see subsection 483A(5).

directly, when used in relation to TCF work: see section 17A.

Disability Discrimination Commissioner means the Disability Discrimination Commissioner appointed under the Disability Discrimination Act 1992.

discriminatory term of an enterprise agreement: see section 195.

dismissal remedy bargaining order application: see subsection 726(2).

dismissed: see section 386.

earnings: see subsections 332(1) and (2).

eligible community service activity: see section 109.

eligible State or Territory court means one of the following courts:

(a) a District, County or Local Court;

(b) a magistrates court;

(ca) the Industrial Court of New South Wales;

(d) any other State or Territory court that is prescribed by the regulations.

employee is defined in the first Division of each Part (other than Part 1‑1) in which the term appears.

Note 1: The definition in the Part will define employee either as a national system employee or as having its ordinary meaning. However, there may be particular provisions in the Part where a different meaning for the term is specified.

Note 2: If the term has its ordinary meaning, see further subsections 15(1), 30E(1) and 30P(1).

Note 3: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).

employee A, in relation to a transfer of business referred to in Part 6‑3A: see subsections 768BD(1) and 768BG(1).

employee claim action: see section 409 and paragraph 471(4A)(c).

employee couple: 2 national system employees are an employee couple if each of the employees is the spouse or de facto partner of the other.

employee organisation means an organisation of employees.

employee record, in relation to an employee, means:

(a) something that is an employee record, in relation to the employee, for the purposes of the Privacy Act 1988; or

(b) in the case of a TCF contract outworker who is taken to be an employee by Division 2 of Part 6‑4A of this Act—something that would be an employee record, in relation to the outworker, for the purposes of the Privacy Act 1988, if the outworker were an employee for the purposes of that Act.

employee response action: see section 410 and paragraph 471(4A)(d).

employee with a disability means a national system employee who is qualified for a disability support pension as set out in section 94 or 95 of the Social Security Act 1991, or who would be so qualified but for paragraph 94(1)(e) or 95(1)(c) of that Act.

employer is defined in the first Division of each Part (other than Part 1‑1) in which the term appears.

Note 1: The definition in the Part will define employer either as a national system employer or as having its ordinary meaning. However, there may be particular provisions in the Part where a different meaning for the term is specified.

Note 2: If the term has its ordinary meaning, see further subsections 15(2), 30E(2) and 30P(2).

Note 3: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).

employer MySuper product: see subsection 23A(1B).

employer organisation means an organisation of employers.

employer response action: see section 411.

employing authority: see subsection 795(6).

engages in industrial activity: see section 347.

enterprise means a business, activity, project or undertaking.

enterprise agreement means:

(a) a single‑enterprise agreement; or

(b) a multi‑enterprise agreement.

entry notice: see subsection 487(2).

entry permit: see section 512.

equal remuneration for work of equal or comparable value: see subsection 302(2).

equal remuneration order: see subsection 302(1).

exclusive economic zone means the exclusive economic zone (as defined in the Seas and Submerged Lands Act 1973) of Australia (including its external Territories).

exemption certificate: see subsection 519(1).

exempt public sector superannuation scheme has the meaning given by the Superannuation Industry (Supervision) Act 1993.

Expert Panel means an Expert Panel constituted under section 620.

Expert Panel Member means an Expert Panel Member of the FWC.

extended notice of termination provisions: see subsection 759(3).

extended parental leave provisions: see subsection 744(3).

Fair Work Commission or FWC means the body continued in existence by section 575.

Fair Work Information Statement: see subsection 124(1).

Fair Work Inspector means:

(a) a person appointed as a Fair Work Inspector under section 700; or

(b) the Fair Work Ombudsman in his or her capacity as a Fair Work Inspector under section 701.

fair work instrument means:

(a) a modern award; or

(b) an enterprise agreement; or

(d) an FWC order.

family and domestic violence: see subsection 106B(2).

Federal Circuit Court means the Federal Circuit Court of Australia.

Federal Court means the Federal Court of Australia.

first employer, in relation to a transfer of employment: see subsection 22(7).

first stage criteria: see section 156F.

first stage test: see section 156Q.

fixed platform means an artificial island, installation or structure permanently attached to the sea‑bed for the purpose of exploration for, or exploitation of, resources or for other economic purposes.

flexibility term:

(a) in relation to a modern award—see subsection 144(1); and

(b) in relation to an enterprise agreement—see subsection 202(1).

flexible day: see subsection 74(3C).

flexible unpaid parental leave: see subsection 72A(1).

flight crew officer means a person who performs (whether with or without other duties) duties as a pilot, navigator or flight engineer of aircraft, and includes a person being trained for the performance of such duties.

franchise has the meaning given by the Corporations Act 2001.

franchisee entity of a franchise: see subsection 558A(1).

Full Bench means a Full Bench of the FWC constituted under section 618.

full rate of pay: see section 18.

FWC: see Fair Work Commission.

FWC Member means the President, a Vice President, a Deputy President, a Commissioner or an Expert Panel Member.

FWO notice: see subsection 712A(1).

General Manager means the General Manager of the FWC.

general protections court application: see subsection 368(4).

general protections FWC application: see subsection 727(2).

general State industrial law: see subsection 26(3).

genuinely agreed in relation to an enterprise agreement: see section 188.

genuine redundancy: see section 389.

good faith bargaining requirements: see section 228.

greenfields agreement: see subsection 172(4).

guaranteed period for a guarantee of annual earnings: see section 331.

guarantee of annual earnings: see subsection 330(1).

handle a complaint about an FWC Member means do one or more of the following acts relating to the complaint:

(a) consider the complaint;

(b) investigate the complaint;

(d) deal with a report of an investigation of the complaint;

(e) dispose of the complaint;

(f) refer the complaint to a person or body.

high income employee: see section 329.

high income threshold: see section 333.

ILO means the International Labour Organization.

immediate family of a national system employee means:

(a) a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or

(b) a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee.

independent advisor for a protected action ballot means the person (if any) specified in the protected action ballot order as the independent advisor for the ballot.

independent contractor is not confined to an individual.

indirectly, when used in relation to TCF work: see section 17A.

indirectly responsible entity, in relation to TCF work performed by a TCF outworker: see subsections 789CA(3), (4) and (5).

individual flexibility arrangement:

(a) in relation to a modern award—see subsection 144(1); and

(b) in relation to an enterprise agreement—see paragraph 202(1)(a).

industrial action: see section 19.

industrial action related workplace determination: see subsection 266(1).

industrial association means:

(a) an association of employees or independent contractors, or both, or an association of employers, that is registered or recognised as such an association (however described) under a workplace law; or

(b) an association of employees, or independent contractors, or both (whether formed formally or informally), a purpose of which is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors (as the case may be); or

(c) an association of employers a principal purpose of which is the protection and promotion of their interests in matters concerning employment and/or independent contractors;

and includes:

(d) a branch of such an association; and

(e) an organisation; and

(f) a branch of an organisation.

industrial body means:

(a) the FWC; or

(b) a court or commission (however described) performing or exercising, under an industrial law, functions and powers corresponding to those conferred on the FWC by this Act; or

(c) a court or commission (however described) performing or exercising, under a workplace law, functions and powers corresponding to those conferred on the FWC by the Registered Organisations Act.

industrial law means:

(a) this Act; or

(b) the Registered Organisations Act; or

(d) a State or Territory industrial law.

industry‑specific redundancy scheme means redundancy or termination payment arrangements in a modern award that are described in the award as an industry‑specific redundancy scheme.

inspector means a Fair Work Inspector.

interim application period: see paragraph 156N(2)(b).

involved in: see section 550.

irregularity, in relation to the conduct of a protected action ballot: see subsection 458(6).

junior employee means a national system employee who is under 21.

jury service pay: see subsection 111(6).

jury service summons: see subsection 111(7).

keeping in touch day: see subsections 79A(2) and (3).

law enforcement officer has the same meaning as in subsection 30K(1).

lawyer means a person who is admitted to the legal profession by a Supreme Court of a State or Territory.

local government employee has the same meaning as in subsection 30K(1).

local government employer has the same meaning as in subsection 30K(1).

lock out: see subsection 19(3).

low‑paid authorisation: see subsection 242(1).

low‑paid workplace determination means:

(a) a consent low‑paid workplace determination; or

(b) a special low‑paid workplace determination.

made:

(a) in relation to an enterprise agreement: see section 182; and

(b) in relation to a variation of an enterprise agreement: see section 209.

magistrates court means:

(a) a court constituted by a police, stipendiary or special magistrate; or

(b) a court constituted by an industrial magistrate; or

majority support determination: see subsection 236(1).

maritime employee means a person who is, or whose occupation is that of, a master as defined in subsection 14(1) of the Navigation Act 2012, a seafarer as so defined or a pilot as so defined.

medical certificate means a certificate signed by a medical practitioner.

medical practitioner means a person registered, or licensed, as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.

membership action: see subsection 350(3).

minimum employment period: see section 383.

minimum wages objective: see subsection 284(1).

miscellaneous modern award: see subsection 163(4).

model consultation term: see subsection 205(3).

model flexibility term: see subsection 202(5).

modern award means a modern award made under Part 2‑3.

modern award minimum wages: see subsection 284(3).

modern award powers: see subsection 134(2).

modern awards objective: see subsection 134(1).

modern enterprise award: see subsection 168A(2).

modern enterprise awards objective: see subsection 168B(1).

modifications includes additions, omissions and substitutions.

multi‑enterprise agreement means an enterprise agreement made as referred to in subsection 172(3).

MySuper product: see subsection 23A(1).

named employer award: see subsection 312(2).

National Employment Standards: see subsection 61(3).

national minimum wage order means a national minimum wage order made in an annual wage review.

national system employee: see section 13.

Note 1: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.

Note 2: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).

national system employer: see section 14.

Note 1: Sections 30D and 30N extend the meaning of national system employer in relation to a referring State.

Note 2: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).

new employer:

(a) in relation to a transfer of business referred to in Part 2‑8—see subsection 311(1); and

(b) in relation to a transfer of business referred to in Part 6‑3A—see subsection 768AD(1).

nominal expiry date:

(a) of an enterprise agreement approved under section 186, means the date specified in the agreement as its nominal expiry date; or

(b) of an enterprise agreement approved under section 189 (which deals with agreements that do not pass the better off overall test): see subsection 189(4); or

(d) of a copied State employment agreement: see subsection 768AO(5).

non‑excluded matters: see subsection 27(2).

non‑member record or document: see subsection 482(2A).

non‑monetary benefits: see subsection 332(3).

non‑national system employee means an employee who is not a national system employee.

non‑national system employer means an employer that is not a national system employer.

non‑transferring employee:

(a) in relation to a transfer of business referred to in Part 2‑8—see subsection 314(2); and

(b) in relation to a transfer of business referred to in Part 6‑3A—see subsection 768BG(2).

notification time for a proposed enterprise agreement: see subsection 173(2).

notified negotiation period for a proposed single‑enterprise agreement that is a greenfields agreement: see section 178B.

notional flexible period: see subsection 72A(6).

objectionable emergency management term of an enterprise agreement: see section 195A.

objectionable term means a term that:

(a) requires, has the effect of requiring, or purports to require or have the effect of requiring; or

(b) permits, has the effect of permitting, or purports to permit or have the effect of permitting;

either of the following:

(d) the payment of a bargaining services fee.

occupier, of premises, includes a person in charge of the premises.

office, in an industrial association, means:

(a) an office of president, vice president, secretary or assistant secretary of the association; or

(b) the office of a voting member of a collective body of the association, being a collective body that has power in relation to any of the following functions:

(i) the management of the affairs of the association;

(ii) the determination of policy for the association;

(iii) the making, alteration or rescission of rules of the association;

(iv) the enforcement of rules of the association, or the performance of functions in relation to the enforcement of such rules; or

(c) an office the holder of which is, under the rules of the association, entitled to participate directly in any of the functions referred to in subparagraphs (b)(i) and (iv), other than an office the holder of which participates only in accordance with directions given by a collective body or another person for the purpose of implementing:

(i) existing policy of the association; or

(ii) decisions concerning the association; or

(d) an office the holder of which is, under the rules of the association, entitled to participate directly in any of the functions referred to in subparagraphs (b)(ii) and (iii); or

(e) the office of a person holding (whether as trustee or otherwise) property:

(i) of the association; or

(ii) in which the association has a beneficial interest.

Office of the Fair Work Ombudsman means the body established by section 696.

officer, of an industrial association, means:

(a) an official of the association; or

(b) a delegate or other representative of the association.

official, of an industrial association, means a person who holds an office in, or is an employee of, the association.

old employer, in relation to a transfer of business: see subsection 311(1).

old State employer: see subsection 768AD(1).

ordinary hours of work of an award/agreement free employee: see section 20.

organisation means an organisation registered under the Registered Organisations Act.

original State agreement, in relation to a copied State employment agreement: see paragraph 768AK(1)(a).

original State award, in relation to a copied State award: see paragraph 768AI(1)(a).

outworker means:

(a) an employee who, for the purpose of the business of his or her employer, performs work at residential premises or at other premises that would not conventionally be regarded as being business premises; or

(b) an individual who, for the purpose of a contract for the provision of services, performs work:

(i) in the textile, clothing or footwear industry; and

(ii) at residential premises or at other premises that would not conventionally be regarded as being business premises.

outworker entity means any of the following entities, other than in the entity’s capacity as a national system employer:

(a) a constitutional corporation;

(b) the Commonwealth;

(d) a body corporate incorporated in a Territory;

(e) a person so far as:

(i) the person arranges for work to be performed for the person (either directly or indirectly); and

(ii) the work is of a kind that is often performed by outworkers; and

(iii) the arrangement is connected with a Territory.

Note: Sections 30F and 30Q extend the meaning of outworker entity in relation to a referring State.

outworker terms: see subsection 140(3).

paid agent, in relation to a matter before the FWC, means an agent (other than a bargaining representative) who charges or receives a fee to represent a person in the matter.

paid annual leave means paid annual leave to which a national system employee is entitled under section 87.

paid no safe job leave means paid no safe job leave to which a national system employee is entitled under section 81A.

paid personal/carer’s leave means paid personal/carer’s leave to which a national system employee is entitled under section 96.

paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).

partial work ban: see subsection 470(3).

part of a single enterprise: see subsection 168A(6).

passes the better off overall test:

(a) in relation to an enterprise agreement that is not a greenfields agreement: see subsection 193(1); and

(b) in relation to a greenfields agreement: see subsection 193(3).

pattern bargaining: see section 412.

peak council means a national or State council or federation that is effectively representative of a significant number of organisations (within the ordinary meaning of the term) representing employers or employees in a range of industries.

pecuniary penalty order means an order under subsection 546(1).

penalty unit has the meaning given by section 4AA of the Crimes Act 1914.

period of employment: see section 384.

permissible occasion: see sections 102 and 104.

permit holder means a person who holds an entry permit.

permit qualification matters: see subsection 513(1).

permitted matters in relation to an enterprise agreement: see subsection 172(1).

pieceworker: see section 21.

pilot, in relation to an aircraft, includes a pilot in command, co‑pilot or pilot of any other description.

post‑declaration negotiating period: see subsection 269(2).

post‑industrial action negotiating period: see subsection 266(3).

premises includes:

(a) any land, building, structure, mine, mine working, aircraft, ship, vessel, vehicle or place; and

(b) a part of premises (including premises referred to in paragraph (a)).

pre‑parental leave position: an employee’s pre‑parental leave position, in relation to a particular period of unpaid parental leave, is:

(a) unless paragraph (b) applies, the position the employee held before starting the period of unpaid parental leave; or

(b) if, before starting the period of unpaid parental leave, the employee:

(i) was transferred to a safe job because of her pregnancy; or

(ii) reduced her working hours due to her pregnancy;

the position the employee held immediately before that transfer or reduction.

prescribed State industrial authority means a State board, court, tribunal, body or official prescribed by the regulations.

President means the President of the FWC.

procedural rules means the procedural rules of the FWC made under section 609.

process or proceedings under a workplace law or workplace instrument: see subsection 341(2).

prohibited beneficiary: see subsection 536F(5).

prospective award covered employee for an enterprise agreement: see subsection 193(5).

protected action ballot means a ballot conducted under Division 8 of Part 3‑3.

protected action ballot agent for a protected action ballot means the person that conducts the protected action ballot.

protected action ballot order: see subsection 437(1).

protected from unfair dismissal: see section 382.

protected industrial action: see section 408.

public holiday: see section 115.

public sector employment: see subsections 795(4) and (5).

public sector employment law: see subsection 40(3).

recognised emergency management body: see subsection 109(3).

reduction in take‑home pay: see subsection 768BR(3).

re‑employment time, in relation to a transferring employee covered by a transfer of business referred to in Part 6‑3A: see subsection 768AE(3).

registered employee association means:

(a) an employee organisation; or

(b) an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under a State or Territory industrial law.

Registered Organisations Act means the Fair Work (Registered Organisations) Act 2009.

registered organisations officer or employee: see section 536E.

regular casual employee: a national system employee of a national system employer is a regular casual employee at a particular time if, at that time:

(a) the employee is a casual employee; and

(b) the employee has been employed by the employer on a regular and systematic basis.

reinstatement includes appointment by an associated entity in the circumstances provided for in an order to which subsection 391(1A) applies.

related body corporate has the meaning given by the Corporations Act 2001.

related party has the same meaning as in the Registered Organisations Act.

relevant affairs, in relation to a registered organisations officer or employee, means the affairs of:

(a) if the registered organisations officer or employee is an officer or employee of an organisation—the organisation and any branch of the organisation, including the affairs of the members of the organisation or any of those branches; or

(b) if the registered organisations officer or employee is an officer or employee of a branch of an organisation—the branch, including the affairs of the members of the branch.

relevant belief: a person has a relevant belief in relation to a complaint about an FWC Member if:

(a) the person believes that if one or more of the circumstances that gave rise to the complaint were substantiated, the circumstances would justify considering:

(i) terminating the appointment of the FWC Member in accordance with section 641; or

(ii) (other than if the FWC Member is the President) suspending the FWC Member from office in accordance with section 642; or

(b) the person believes that if one or more of the circumstances that gave rise to the complaint were substantiated, the circumstances may:

(i) adversely affect, or have adversely affected, the performance of duties by the FWC Member; or

(ii) have the capacity to adversely affect, or have adversely affected, the reputation of the FWC.

Note: Sections 641 and 642 deal with termination of appointment and suspension on the grounds of misbehaviour or incapacity.

relevant employee organisation, in relation to a greenfields agreement, means an employee organisation that is entitled to represent the industrial interests of one or more of the employees who will be covered by the agreement, in relation to work to be performed under the agreement.

responsible franchisor entity for a franchisee entity: see subsection 558A(2).

responsible person, in relation to TCF work performed by a TCF outworker: see subsection 789CA(1).

risk period: see subsections 81(1) and (5).

safety net contractual entitlement means an entitlement under a contract between an employee and an employer that relates to any of the subject matters described in:

(a) subsection 61(2) (which deals with the National Employment Standards); or

(b) subsection 139(1) (which deals with modern awards).

Schedule of Approved Employer MySuper Products: see paragraph 156L(1)(a).

school age, for a child, means the age at which the child is required by a law of the State or Territory in which the child lives to attend school.

school‑based apprentice means a national system employee who is an apprentice to whom a school‑based training arrangement applies.

school‑based trainee means a national system employee (other than a school‑based apprentice) to whom a school‑based training arrangement applies.

school‑based training arrangement means a training arrangement undertaken as part of a course of secondary education.

scope order: see subsection 238(1).

second employer, in relation to a transfer of employment: see subsection 22(7).

second stage test:

(a) in relation to a standard MySuper product—see subsection 156H(2); and

(b) in relation to an employer MySuper product—see section 156S.

section 179A disclosable benefit: see subsection 179A(4).

section 179 disclosable benefit: see subsection 179(6).

serious breach declaration: see section 234.

serious contravention has the meaning given by section 557A.

serious misconduct has the meaning prescribed by the regulations.

service: see section 22.

setting modern award minimum wages: see subsection 284(4).

Sex Discrimination Commissioner means the Sex Discrimination Commissioner appointed under the Sex Discrimination Act 1984.

ship includes a barge, lighter, hulk or other vessel.

single enterprise: see section 168A.

single‑enterprise agreement means an enterprise agreement made as referred to in subsection 172(2).

single interest employer authorisation: see subsection 248(1).

small business employer: see section 23.

Small Business Fair Dismissal Code means the Small Business Fair Dismissal Code declared under subsection 388(1).

small claims proceedings means proceedings dealt with as small claims proceedings under section 548.

special low‑paid workplace determination: see subsection 260(4).

spouse includes a former spouse.

standard application period: see paragraph 156N(2)(a).

standard MySuper product: see subsection 23A(1A).

State award: see section 768AJ.

State collective employment agreement: see subsection 768AL(3).

State employment agreement: see subsections 768AL(1) and (2).

State individual employment agreement: see subsection 768AL(4).

State industrial instrument means an award, an agreement (whether individual or collective), or another industrial instrument or order, that:

(a) is made under, or recognised by, a law of a State that is a State or Territory industrial law; and

(b) determines terms and conditions of employment.

State industrial law means a law of a State that is a State or Territory industrial law.

state of mind: see subsection 793(3).

State or Territory industrial law: see subsection 26(2).

State or Territory OHS law: see subsection 494(3).

State or Territory OHS right: see subsection 494(2).

State public sector employee, of a State, means:

(a) an employee of a State public sector employer of the State; or

(b) any other non‑national system employee in the State of a kind specified in the regulations;

and includes a law enforcement officer of the State but does not include a local government employee of the State.

State public sector employer, of a State, means a non‑national system employer that is:

(a) the State, the Governor of the State or a Minister of the State; or

(b) a body corporate that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or

(d) a person who employs individuals for the purposes of an unincorporated body that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or

(e) any other employer in the State of a kind specified in the regulations;

and includes a non‑national system employer of a law enforcement officer of the State but does not include a local government employer of the State.

State reference public sector employee: see subsection 168E(3).

State reference public sector employer: see subsection 168E(4).

State reference public sector modern award: see subsection 168E(2).

State reference public sector modern awards objective: see section 168F.

step‑child: without limiting who is a step‑child of a person, someone who is a child of the person’s de facto partner is a step‑child of a person, if he or she would be the person’s step‑child except that the person is not legally married to the de facto partner.

stillborn: see subsection 77A(2).

superannuation fund means a superannuation fund or a superannuation scheme.

tailored MySuper product: see subsection 23A(2).

take‑home pay: see subsection 768BR(2).

take‑home pay order: see subsection 768BS(1).

TCF award means an instrument prescribed by the regulations for the purposes of this definition.

TCF award worker: see subsection 483A(1A).

TCF contract outworker: see subsection 789BB(2).

TCF outwork code: see section 789DA.

TCF outworker means an outworker in the textile, clothing or footwear industry.

TCF work means work in the textile, clothing or footwear industry.

termination of industrial action instrument: see subsection 266(2).

termination time, in relation to a transferring employee covered by a transfer of business referred to in Part 6‑3A: see subsection 768AE(2).

territorial sea, in relation to Australia, has the meaning given by Division 1 of Part II of the Seas and Submerged Lands Act 1973.

Territory employer: see subsection 338(4).

test time: see subsection 193(6).

this Act includes the regulations.

trade and commerce employer: see subsection 338(3).

training arrangement means a combination of work and training that is subject to a training agreement, or a training contract, that takes effect under a law of a State or Territory relating to the training of employees.

transferable instrument: see subsection 312(1).

transfer of business:

(a) for a transfer of business between a national system employer and another national system employer—see subsection 311(1); and

(b) for a transfer of business between a non‑national system employer that is a State public sector employer and a national system employer—see subsection 768AD(1).

transfer of employment: see subsection 22(7).

transfer of employment between associated entities: see paragraph 22(8)(a).

transfer of employment between non‑associated entities: see paragraph 22(8)(b).

transferring employee:

(a) in relation to a transfer of business referred to in Part 2‑8—see subsection 311(2); and

(b) in relation to a transfer of business referred to in Part 6‑3A—see subsection 768AE(1).

transferring work:

(a) in relation to a transfer of business referred to in Part 2‑8—see paragraph 311(1)(c); and

(b) in relation to a transfer of business referred to in Part 6‑3A—see paragraph 768AD(1)(c).

Transitional Act means the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

transport arrangement: see subsections 521B(1) and (2).

unfair dismissal application: see subsection 729(2).

unfairly dismissed: see section 385.

unlawful term of an enterprise agreement: see section 194.

unlawful termination court application: see subsection 776(4).

unlawful termination FWC application: see subsection 730(2).

unpaid amount, in relation to TCF work performed by a TCF outworker: see subsections 789CA(1) and (4).

unpaid carer’s leave means unpaid carer’s leave to which a national system employee is entitled under section 102.

unpaid family and domestic violence leave means unpaid family and domestic violence leave to which a national system employee is entitled under section 106A.

unpaid no safe job leave means unpaid no safe job leave to which a national system employee is entitled under section 82A.

unpaid parental leave means unpaid parental leave to which a national system employee is entitled under section 70.

unpaid pre‑adoption leave means unpaid pre‑adoption leave to which a national system employee is entitled under section 85.

unpaid special maternity leave means unpaid special maternity leave to which a national system employee is entitled under section 80.

varying modern award minimum wages: see subsection 284(4).

Vice President means a Vice President of the FWC.

vocational placement means a placement that is:

(a) undertaken with an employer for which a person is not entitled to be paid any remuneration; and

(b) undertaken as a requirement of an education or training course; and

voluntary emergency management activity: see subsection 109(2).

volunteer of a designated emergency management body: see subsection 195A(6).

waters above the continental shelf means any part of the area in, on or over the continental shelf.

waterside worker has the meaning given by clause 1 of Schedule 2 to the Workplace Relations Act 1996 as in force immediately before the commencement of this section.

worker:

(a) in Part 6‑4B—see subsection 789FC(2); and

(b) otherwise—has its ordinary meaning.

working day means a day that is not a Saturday, a Sunday or a public holiday.

workplace determination means:

(a) a low‑paid workplace determination; or

(b) an industrial action related workplace determination; or

workplace instrument means an instrument that:

(a) is made under, or recognised by, a workplace law; and

(b) concerns the relationships between employers and employees.

workplace law means:

(a) this Act; or

(b) the Registered Organisations Act; or

(d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).

workplace right: see subsection 341(1).

work value reasons: see subsection 157(2A).

Division 3—Definitions relating to the meanings of employee, employer etc.

13 Meaning of national system employee

A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

Note: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.

14 Meaning of national system employer

(1) A national system employer is:

(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or

(b) the Commonwealth, so far as it employs, or usually employs, an individual; or

(d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

(i) a flight crew officer; or

(ii) a maritime employee; or

(iii) a waterside worker; or

(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

(f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.

Note 1: In this context, Australia includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see the definition of Australia in section 12).

Note 2: Sections 30D and 30N extend the meaning of national system employer in relation to a referring State.

Particular employers declared not to be national system employers

(2) Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:

(a) that employer:

(i) is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or

(ii) is a body established for a local government purpose by or under a law of a State or Territory; or

(iii) is a wholly‑owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and

(b) that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and

(3) Paragraph (2)(b) does not apply to an employer that is covered by a declaration by or under such a law only because it is included in a specified class or kind of employer.

Endorsement of declarations

(4) The Minister may, in writing:

(a) endorse, in relation to an employer, a declaration referred to in paragraph (2)(b); or

(b) revoke or amend such an endorsement.

(5) An endorsement, revocation or amendment under subsection (4) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the endorsement, revocation or amendment.

Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the endorsement, revocation or amendment (see regulations made for the purposes of paragraph 54(2)(b) of that Act).

Employers that cannot be declared

(6) Subsection (2) does not apply to an employer that:

(a) generates, supplies or distributes electricity; or

(b) supplies or distributes gas; or

(d) operates a rail service or a port;

unless the employer is a body established for a local government purpose by or under a law of a State or Territory, or is a wholly‑owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, such a body.

(7) Subsection (2) does not apply to an employer if the employer is an Australian university (within the meaning of the Higher Education Support Act 2003) that is established by or under a law of a State or Territory.

14A Transitional matters relating to employers etc. becoming, or ceasing to be, national system employers etc.

(1) The regulations may make provisions of a transitional, application or saving nature in relation to any of the following:

(a) an employer ceasing to be a national system employer because subsection 14(2) applies to the employer;

(b) an individual ceasing to be a national system employee because an employer ceases to be a national system employer for the reason referred to in paragraph (a);

(d) an individual becoming a national system employee because an employer becomes a national system employer for the reason referred to in paragraph (c).

(2) Without limiting subsection (1), regulations made for the purpose of that subsection may:

(a) modify provisions of this Act or the Transitional Act; or

(b) provide for the application (with or without modifications) of provisions of this Act, or the Transitional Act, to matters to which they would otherwise not apply.

15 Ordinary meanings of employee and employer

(1) A reference in this Act to an employee with its ordinary meaning:

(a) includes a reference to a person who is usually such an employee; and

(b) does not include a person on a vocational placement.

Note: Subsections 30E(1) and 30P(1) extend the meaning of employee in relation to a referring State.

(2) A reference in this Act to an employer with its ordinary meaning includes a reference to a person who is usually such an employer.

Note: Subsections 30E(2) and 30P(2) extend the meaning of employer in relation to a referring State.

15A Meaning of casual employee

(1) A person is a casual employee of an employer if:

(a) an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and

(b) the person accepts the offer on that basis; and

(2) For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:

(a) whether the employer can elect to offer work and whether the person can elect to accept or reject work;

(b) whether the person will work as required according to the needs of the employer;

(d) whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

Note: Under Division 4A of Part 2‑2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full‑time employment or part‑time employment.

(3) To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.

(4) To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.

(5) A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:

(a) the employee’s employment is converted to full‑time or part‑time employment under Division 4A of Part 2‑2; or

(b) the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.

Division 4—Other definitions

16 Meaning of base rate of pay

General meaning

(1) The base rate of pay of a national system employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not including any of the following:

(a) incentive‑based payments and bonuses;

(b) loadings;

(d) overtime or penalty rates;

(e) any other separately identifiable amounts.

Meaning for pieceworkers in relation to entitlements under National Employment Standards

(2) Despite subsection (1), if one of the following paragraphs applies to a national system employee who is a pieceworker, the employee’s base rate of pay, in relation to entitlements under the National Employment Standards, is the base rate of pay referred to in that paragraph:

(a) a modern award applies to the employee and specifies the employee’s base rate of pay for the purposes of the National Employment Standards;

(b) an enterprise agreement applies to the employee and specifies the employee’s base rate of pay for the purposes of the National Employment Standards;

(c) the employee is an award/agreement free employee, and the regulations prescribe, or provide for the determination of, the employee’s base rate of pay for the purposes of the National Employment Standards.

Meaning for pieceworkers for the purpose of section 206

(3) The regulations may prescribe, or provide for the determination of, the base rate of pay, for the purpose of section 206, of an employee who is a pieceworker. If the regulations do so, the employee’s base rate of pay, for the purpose of that section, is as prescribed by, or determined in accordance with, the regulations.

Note: Section 206 deals with an employee’s base rate of pay under an enterprise agreement.

17 Meaning of child of a person

(1) A child of a person includes:

(a) someone who is a child of the person within the meaning of the Family Law Act 1975; and

(b) an adopted child or step‑child of the person.

It does not matter whether the child is an adult.

(2) If, under this section, one person is a child of another person, other family relationships are also to be determined on the basis that the child is a child of that other person.

Note: For example, for the purpose of leave entitlements in relation to immediate family under Division 7 of Part 2‑2 (which deals with personal/carer’s leave, compassionate leave and unpaid family and domestic violence leave):

(a) the other person is the parent of the child, and so is a member of the child’s immediate family; and

(b) the child, and any other children, of the other person are siblings, and so are members of each other’s immediate family.

17A Meaning of directly and indirectly (in relation to TCF work)

(1) If there is a chain or series of 2 or more arrangements for the supply or production of goods produced by TCF work performed by a person (the worker), the following provisions have effect:

(a) the work is taken to be performed directly for the person (the direct principal) who employed or engaged the worker (and the direct principal is taken to have arranged for the work to be performed directly for the direct principal);

(b) the work is taken to be performed indirectly for each other person (an indirect principal) who is a party to any of the arrangements in the chain or series (and each indirect principal is taken to have arranged for the work to be performed indirectly for the indirect principal).

(2) This section does not limit the circumstances in which TCF work is performed directly or indirectly for a person (or in which a person arranges for TCF work to be performed directly or indirectly for the person).

(3) This section does not apply for the purposes of Division 2A or 2B of Part 1‑3.

18 Meaning of full rate of pay

General meaning

(1) The full rate of pay of a national system employee is the rate of pay payable to the employee, including all the following:

(a) incentive‑based payments and bonuses;

(b) loadings;

(d) overtime or penalty rates;

(e) any other separately identifiable amounts.

Meaning for pieceworkers in relation to entitlements under National Employment Standards

(2) However, if one of the following paragraphs applies to a national system employee who is a pieceworker, the employee’s full rate of pay, in relation to entitlements under the National Employment Standards, is the full rate of pay referred to in that paragraph:

(a) a modern award applies to the employee and specifies the employee’s full rate of pay for the purposes of the National Employment Standards;

(b) an enterprise agreement applies to the employee and specifies the employee’s full rate of pay for the purposes of the National Employment Standards;

(c) the employee is an award/agreement free employee, and the regulations prescribe, or provide for the determination of, the employee’s full rate of pay for the purposes of the National Employment Standards.

19 Meaning of industrial action

(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d) the lockout of employees from their employment by the employer of the employees.

Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

(2) However, industrial action does not include the following:

(a) action by employees that is authorised or agreed to by the employer of the employees;

(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.

Note: In this section, employee and employer have their ordinary meanings (see section 11).

20 Meaning of ordinary hours of work for award/agreement free employees

Agreed ordinary hours of work

(1) The ordinary hours of work of an award/agreement free employee are the hours agreed by the employee and his or her national system employer as the employee’s ordinary hours of work.

If there is no agreement

(2) If there is no agreement about ordinary hours of work for an award/agreement free employee, the ordinary hours of work of the employee in a week are:

(a) for a full‑time employee—38 hours; or

(b) for an employee who is not a full‑time employee—the lesser of:

(i) 38 hours; and

(ii) the employee’s usual weekly hours of work.

If the agreed hours are less than usual weekly hours

(3) If, for an award/agreement free employee who is not a full‑time employee, there is an agreement under subsection (1) between the employee and his or her national system employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work, the ordinary hours of work of the employee in a week are the lesser of:

(a) 38 hours; and

(b) the employee’s usual weekly hours of work.

Regulations may prescribe usual weekly hours

(4) For an award/agreement free employee who is not a full‑time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of subsections (2) and (3).

21 Meaning of pieceworker

(1) A pieceworker is:

(a) a national system employee to whom a modern award applies and who is defined or described in the award as a pieceworker; or

(b) a national system employee to whom an enterprise agreement applies and who is defined or described in the agreement as a pieceworker; or

Note: Sections 197 and 198 affect whether the FWC may approve an enterprise agreement covering a national system employee that includes a term that:

(a) defines or describes the employee as a pieceworker, if the employee is covered by a modern award that is in operation and does not include such a term; or

(b) does not define or describe the employee as a pieceworker, if the employee is covered by a modern award that is in operation and includes such a term.

(2) Without limiting the way in which a class may be described for the purposes of paragraph (1)(c), the class may be described by reference to one or more of the following:

(a) a particular industry or part of an industry;

(b) a particular kind of work;

22 Meanings of service and continuous service

General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2‑2 (which deals with community service leave); or

(ii) a period of stand down under Part 3‑5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.

Meaning for Divisions 4 and 5, and Subdivision A of Division 11, of Part 2‑2

(4) For the purposes of Divisions 4 and 5, and Subdivision A of Division 11, of Part 2‑2:

(a) a period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include:

(i) any period of unauthorised absence; or

(ii) any other period of a kind prescribed by the regulations; and

(b) a period referred to in subparagraph (a)(i) or (ii) does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service; and

Note: Divisions 4 and 5, and Subdivision A of Division 11, of Part 2‑2 deal, respectively, with requests for flexible working arrangements, parental leave and related entitlements, and notice of termination or payment in lieu of notice.

(4A) Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly.

When service with one employer counts as service with another employer

(5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee:

(a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and

(b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer (taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer.

Note: This subsection does not apply to a transfer of employment between non‑associated entities, for the purpose of Division 6 of Part 2‑2 (which deals with annual leave) or Subdivision B of Division 11 of Part 2‑2 (which deals with redundancy pay), if the second employer decides not to recognise the employee’s service with the first employer for the purpose of that Division or Subdivision (see subsections 91(1) and 122(1)).

(6) If the national system employee has already had the benefit of an entitlement the amount of which was calculated by reference to a period of service with the first employer, subsection (5) does not result in that period of service with the first employer being counted again when calculating the employee’s entitlements of that kind as an employee of the second employer.

Note: For example:

(a) the accrued paid annual leave to which the employee is entitled as an employee of the second employer does not include any period of paid annual leave that the employee has already taken as an employee of the first employer; and

(b) if an employee receives notice of termination or payment in lieu of notice in relation to a period of service with the first employer, that period of service is not counted again in calculating the amount of notice of termination, or payment in lieu, to which the employee is entitled as an employee of the second employer.

Meaning of transfer of employment etc.

(7) There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:

(a) the following conditions are satisfied:

(i) the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer;

(ii) the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or

(b) the following conditions are satisfied:

(i) the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;

(ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.

Note: Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer.

(8) A transfer of employment:

(a) is a transfer of employment between associated entities if paragraph (7)(a) applies; and

(b) is a transfer of employment between non‑associated entities if paragraph (7)(b) applies.

23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.

23A Terms relating to superannuation

(1) MySuper product has the meaning given by the Superannuation Industry (Supervision) Act 1993.

(1A) A standard MySuper product is a MySuper product that is not an employer MySuper product.

(1B) An employer MySuper product is a tailored MySuper product or a corporate MySuper product.

(2) A tailored MySuper product is a MySuper product in relation to which section 29TB of the Superannuation Industry (Supervision) Act 1993 is satisfied.

(3) A corporate MySuper product is a MySuper product that is offered by a superannuation fund that:

(a) is a standard employer‑sponsored fund (within the meaning of the Superannuation Industry (Supervision) Act 1993); and

(b) is not a public offer superannuation fund (within the meaning of that Act); and

(i) one standard employer‑sponsor (within the meaning of that Act); or

(ii) 2 or more standard employer‑sponsors (within the meaning of that Act) that are associates of each other for the purposes of that Act.

(4) A reference in this Act to a superannuation fund doing a thing in relation to a matter (for example, offering a MySuper product or making an application or submission) is a reference to the RSE licensee (within the meaning of the Superannuation Industry (Supervision) Act 1993) of the fund doing that thing.

Part 1‑3—Application of this Act

Division 1—Introduction

24 Guide to this Part

This Part deals with the extent of the application of this Act.

Division 2 is about how this Act affects the operation of certain State or Territory laws.

Divisions 2A and 2B are about the extended application of this Act in States that have referred to the Parliament of the Commonwealth matters relating to this Act.

Division 3 is about the geographical application of this Act.

Division 4 deals with other matters relating to the application of this Act.

25 Meanings of employee and employer

In this Part, employee and employer have their ordinary meanings.

Note: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances). However, that Division does not apply for the purposes of Divisions 2A and 2B of this Part.

Division 2—Interaction with State and Territory laws

26 Act excludes State or Territory industrial laws

(1) This Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer.

(2) A State or Territory industrial law is:

(a) a general State industrial law; or

(b) an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes:

(i) regulating workplace relations (including industrial matters, industrial activity, collective bargaining, industrial disputes and industrial action);

(ii) providing for the establishment or enforcement of terms and conditions of employment;

(iii) providing for the making and enforcement of agreements (including individual agreements and collective agreements), and other industrial instruments or orders, determining terms and conditions of employment;

(iv) prohibiting conduct relating to a person’s membership or non‑membership of an industrial association;

(v) providing for rights and remedies connected with the termination of employment;

(vi) providing for rights and remedies connected with conduct that adversely affects an employee in his or her employment; or

(c) a law of a State or Territory that applies to employment generally and deals with leave (other than long service leave or leave for victims of crime); or

(d) a law of a State or Territory providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal or comparable value; or

(e) a law of a State or Territory providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair; or

(f) a law of a State or Territory that entitles a representative of a trade union to enter premises; or

(g) an instrument made under a law described in paragraph (a), (b), (c), (d), (e) or (f), so far as the instrument is of a legislative character; or

(h) either of the following:

(i) a law that is a law of a State or Territory;

(ii) an instrument of a legislative character made under such a law;

that is prescribed by the regulations.

(3) Each of the following is a general State industrial law:

(a) the Industrial Relations Act 1996 of New South Wales;

(b) the Industrial Relations Act 1999 of Queensland;

(d) the Fair Work Act 1994 of South Australia;

(e) the Industrial Relations Act 1984 of Tasmania.

(4) A law or an Act of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to:

(a) all employers and employees in the State or Territory; or

(b) all employers and employees in the State or Territory except those identified (by reference to a class or otherwise) by a law of the State or Territory.

For this purpose, it does not matter whether or not the law also applies to other persons, or whether or not an exercise of a power under the law affects all the persons to whom the law applies.

27 State and Territory laws that are not excluded by section 26

(1A) Section 26 does not apply to any of the following laws:

(a) the Anti‑Discrimination Act 1977 of New South Wales;

(b) the Equal Opportunity Act 2010 of Victoria;

(d) the Equal Opportunity Act 1984 of Western Australia;

(e) the Equal Opportunity Act 1984 of South Australia;

(f) the Anti‑Discrimination Act 1998 of Tasmania;

(g) the Discrimination Act 1991 of the Australian Capital Territory;

(h) the Anti‑Discrimination Act of the Northern Territory.

(1) Section 26 does not apply to a law of a State or Territory so far as:

(b) the law is prescribed by the regulations as a law to which section 26 does not apply; or

(d) the law deals with rights or remedies incidental to:

(i) any law referred to in subsection (1A); or

(ii) any matter dealt with by a law to which paragraph (b) applies; or

(iii) any non‑excluded matters.

Note: Examples of incidental matters covered by paragraph (d) are entry to premises for a purpose connected with workers compensation, occupational health and safety or outworkers.

(2) The non‑excluded matters are as follows:

(a) superannuation;

(b) workers compensation;

(d) matters relating to outworkers (within the ordinary meaning of the term);

(e) child labour;

(f) training arrangements, except in relation to terms and conditions of employment to the extent that those terms and conditions are provided for by the National Employment Standards or may be included in a modern award;

(g) long service leave, except in relation to an employee who is entitled under Division 9 of Part 2‑2 to long service leave;

(h) leave for victims of crime;

(i) attendance for service on a jury, or for emergency service duties;

Note: See also section 112 for employee entitlements in relation to engaging in eligible community service activities.

(j) declaration, prescription or substitution of public holidays, except in relation to the rights and obligations of an employee or employer in relation to public holidays;

(k) the following matters relating to provision of essential services or to situations of emergency:

(i) directions to perform work (including to perform work at a particular time or place, or in a particular way);

(ii) directions not to perform work (including not to perform work at a particular time or place, or in a particular way);

(l) regulation of any of the following:

(i) employee associations;

(ii) employer associations;

(iii) members of employee associations or of employer associations;

(m) workplace surveillance;

(n) business trading hours;

(o) claims for enforcement of contracts of employment, except so far as the law in question provides for a matter to which paragraph 26(2)(e) applies;

(p) any other matters prescribed by the regulations.

28 Act excludes prescribed State and Territory laws

(1) This Act is intended to apply to the exclusion of a law of a State or Territory that is prescribed by the regulations.

(2) However, subsection (1) applies only so far as the law of the State or Territory would otherwise apply in relation to a national system employee or a national system employer.

(3) To avoid doubt, subsection (1) has effect even if the law is covered by section 27 (so that section 26 does not apply to the law). This subsection does not limit subsection (1).

29 Interaction of modern awards and enterprise agreements with State and Territory laws

(1) A modern award or enterprise agreement prevails over a law of a State or Territory, to the extent of any inconsistency.

(2) Despite subsection (1), a term of a modern award or enterprise agreement applies subject to the following:

(a) any law covered by subsection 27(1A);

(b) any law of a State or Territory so far as it is covered by paragraph 27(1)(b), (c) or (d).

Note: In addition, a term of an enterprise agreement could be an unlawful term and of no effect if it requires or permits a designated emergency management body to act other than in accordance with a State or Territory law and this affects or could affect the body’s volunteers (see paragraphs 194(baa), 195A(1)(d) and 253(1)(b)).

(3) Despite subsection (2), a term of a modern award or enterprise agreement does not apply subject to a law of a State or Territory that is prescribed by the regulations as a law to which modern awards and enterprise agreements are not subject.

30 Act may exclude State and Territory laws etc. in other cases

This Division is not a complete statement of the circumstances in which this Act and instruments made under it are intended to apply to the exclusion of, or prevail over, laws of the States and Territories or instruments made under those laws.

Division 2A—Application of this Act in States that refer matters before 1 July 2009

30A Meaning of terms used in this Division

(1) In this Division:

amendment reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30B(4).

excluded subject matter means any of the following matters:

(a) a matter dealt with in a law referred to in subsection 27(1A) of this Act;

(b) superannuation;

(d) occupational health and safety;

(e) matters relating to outworkers (within the ordinary meaning of the term);

(f) child labour;

(g) training arrangements;

(h) long service leave;

(i) leave for victims of crime;

(j) attendance for service on a jury, or for emergency service duties;

(k) declaration, prescription or substitution of public holidays;

(l) the following matters relating to provision of essential services or to situations of emergency:

(i) directions to perform work (including to perform work at a particular time or place, or in a particular way);

(ii) directions not to perform work (including not to perform work at a particular time or place, or in a particular way);

(m) regulation of any of the following:

(i) employee associations;

(ii) employer associations;

(iii) members of employee associations or of employer associations;

(n) workplace surveillance;

(o) business trading hours;

(p) claims for enforcement of contracts of employment, except so far as a law of a State provides for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair;

(q) rights or remedies incidental to a matter referred to in a preceding paragraph of this definition;

except to the extent that this Act as originally enacted deals with the matter (directly or indirectly), or requires or permits instruments made or given effect under this Act so to deal with the matter.

express amendment means the direct amendment of the text of this Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter), but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act.

fundamental workplace relations principles: see subsection 30B(9).

initial reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30B(3).

law enforcement officer means:

(a) a member of a police force or police service; or

(b) a person appointed to a position for the purpose of being trained as a member of a police force or police service; or

and, without limiting paragraphs (a), (b) and (c), includes a police reservist, a police recruit, a police cadet, a junior constable, a police medical officer, a special constable, an ancillary constable or a protective services officer.

local government employee, of a State, means:

(a) an employee of a local government employer of the State; or

(b) any other employee in the State of a kind specified in the regulations.

local government employer, of a State, means an employer that is:

(a) a body corporate that is established for a local government purpose by or under a law of a State; or

(b) a body corporate in which a body to which paragraph (a) applies has, or 2 or more such bodies together have, a controlling interest; or

(c) a person who employs individuals for the purposes of an unincorporated body that is established for a local government purpose by or under a law of a State; or

(d) any other body corporate that is a local government body in the State of a kind specified in the regulations; or

(e) any other person who employs individuals for the purposes of an unincorporated body that is a local government body in the State of a kind specified in the regulations.

referral law, of a State, means the law of the State that refers matters, as mentioned in subsection 30B(1), to the Parliament of the Commonwealth.

referred provisions means the provisions of this Division to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States.

referred subject matters means any of the following:

(a) terms and conditions of employment, including any of the following:

(i) minimum terms and conditions of employment, (including employment standards and minimum wages);

(ii) terms and conditions of employment contained in instruments (including instruments such as awards, determinations and enterprise‑level agreements);

(iii) bargaining in relation to terms and conditions of employment;

(iv) the effect of a transfer of business on terms and conditions of employment;

(b) terms and conditions under which an outworker entity may arrange for work to be performed for the entity (directly or indirectly), if the work is of a kind that is often performed by outworkers;

(c) rights and responsibilities of persons, including employees, employers, independent contractors, outworkers, outworker entities, associations of employees or associations of employers, being rights and responsibilities relating to any of the following:

(i) freedom of association in the context of workplace relations, and related protections;

(ii) protection from discrimination relating to employment;

(iii) termination of employment;

(iv) industrial action;

(v) protection from payment of fees for services related to bargaining;

(vi) sham independent contractor arrangements;

(vii) standing down employees without pay;

(viii) union rights of entry and rights of access to records;

(d) compliance with, and enforcement of, this Act;

(e) the administration of this Act;

(f) the application of this Act;

(g) matters incidental or ancillary to the operation of this Act or of instruments made or given effect under this Act;

but does not include any excluded subject matter.

referring State: see section 30B.

State public sector employee, of a State, means:

(a) an employee of a State public sector employer of the State; or

(b) any other employee in the State of a kind specified in the regulations;

and includes a law enforcement officer to whom subsection 30E(1) applies.

State public sector employer, of a State, means an employer that is:

(a) the State, the Governor of the State or a Minister of the State; or

(b) a body corporate that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or

(e) any other employer in the State of a kind specified in the regulations;

and includes a holder of an office to whom subsection 30E(2) applies.

transition reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30B(5).

(2) Words or phrases in the definition of excluded subject matter in subsection (1), or in the definition of referred subject matters in subsection (1), that are defined in this Act (other than in this Division) have, in that definition, the meanings set out in this Act as in force on 1 July 2009.

30B Meaning of referring State

Reference of matters by State Parliament to Commonwealth Parliament

(1) A State is a referring State if the Parliament of the State has, before 1 July 2009, referred the matters covered by subsections (3), (4) and (5) in relation to the State to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution:

(a) if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and

(b) if and to the extent that the matters are included in the legislative powers of the Parliament of the State.

This subsection has effect subject to subsection (6).

(2) A State is a referring State even if:

(a) the State’s referral law provides that the reference to the Parliament of the Commonwealth of any or all of the matters covered by subsections (3), (4) and (5) is to terminate in particular circumstances; or

(b) the State’s referral law provides that particular matters, or all matters, relating to State public sector employees, or State public sector employers, of the State are not included in any or all of the matters covered by subsections (3), (4) and (5); or

(c) the State’s referral law provides that particular matters, or all matters, relating to local government employees, or local government employers, of the State are not included in any or all of the matters covered by subsections (3), (4) and (5).

Reference covering referred provisions

Reference covering amendments

(4) This subsection covers the referred subject matters to the extent of making laws with respect to those matters by making express amendments of this Act.

Reference covering transitional matters

(5) This subsection covers making laws with respect to the transition from the regime provided for by:

(a) the Workplace Relations Act 1996; or

(b) a law of a State relating to workplace relations;

to the regime provided for by this Act.

Effect of termination of reference

(6) Despite anything to the contrary in a referral law of a State, a State ceases to be a referring State if any or all of the following occurs:

(a) the State’s initial reference terminates;

(b) the State’s amendment reference terminates, and neither of subsections (7) and (8) apply to the termination;

(7) A State does not cease to be a referring State because of the termination of its amendment reference if:

(a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and

(b) the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and

(c) that State’s amendment reference, and the amendment reference of every other referring State (other than a referring State that has terminated its amendment reference in the circumstances referred to in subsection (8)), terminate on the same day.

(8) A State does not cease to be a referring State because of the termination of its amendment reference if:

(a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and

(b) the day fixed is no earlier than the first day after the end of the period of 3 months beginning on the day on which the proclamation is published; and

(c) the Governor of that State, as part of the proclamation by which the termination is to be effected, declares that, in the opinion of the Governor, this Act:

(i) is proposed to be amended (by an amendment introduced into the Parliament by a Minister); or

(ii) has been amended;

in a manner that is inconsistent with one or more of the fundamental workplace relations principles.

(9) The following are the fundamental workplace relations principles:

(a) that this Act should provide for, and continue to provide for, the following:

(i) a strong, simple and enforceable safety net of minimum employment standards;

(ii) genuine rights and responsibilities to ensure fairness, choice and representation at work, including the freedom to choose whether or not to join and be represented by a union or participate in collective activities;

(iii) collective bargaining at the enterprise level with no provision for individual statutory agreements;

(iv) fair and effective remedies available through an independent umpire;

(v) protection from unfair dismissal;

(b) that there should be, and continue to be, in connection with the operation of this Act, the following:

(i) an independent tribunal system;

(ii) an independent authority able to assist employers and employees within a national workplace relations system.

30C Extended meaning of national system employee

(1) A national system employee includes:

(a) any individual in a State that is a referring State because of this Division so far as he or she is employed, or usually employed, as described in paragraph 30D(1)(a), except on a vocational placement; and

(b) a law enforcement officer of the State to whom subsection 30E(1) applies.

(2) This section does not limit the operation of section 13 (which defines a national system employee).

Note: Section 30H may limit the extent to which this section extends the meaning of national system employee.

30D Extended meaning of national system employer

(1) A national system employer includes:

(a) any person in a State that is a referring State because of this Division so far as the person employs, or usually employs, an individual; and

(b) a holder of an office to whom subsection 30E(2) applies.

(2) This section does not limit the operation of section 14 (which defines a national system employer).

Note: Section 30H may limit the extent to which this section extends the meaning of national system employer.

30E Extended ordinary meanings of employee and employer

(1) A reference in this Act to an employee with its ordinary meaning includes a reference to a law enforcement officer of a State that is a referring State because of this Division if the State’s referral law so provides for the purposes of that law.

(2) A reference in this Act to an employer with its ordinary meaning includes a reference to a holder of an office of a State that is a referring State because of this Division if the State’s referral law provides, for the purposes of that law, that the holder of the office is taken to be the employer of a law enforcement officer of the State.

(3) This section does not limit the operation of section 15 (which deals with references to employee and employer with their ordinary meanings).

Note: Section 30H may limit the extent to which this section extends the meanings of employee and employer.

30F Extended meaning of outworker entity

(1) An outworker entity includes a person, other than in the person’s capacity as a national system employer, so far as:

(a) the person arranges for work to be performed for the person (either directly or indirectly); and

(b) the work is of a kind that is often performed by outworkers; and

(i) at the time the arrangement is made, one or more parties to the arrangement is in a State that is a referring State because of this Division;

(ii) the work is to be performed in a State that is a referring State because of this Division;

(iii) the person referred to in paragraph (a) carries on an activity (whether of a commercial, governmental or other nature) in a State that is a referring State because of this Division, and the work is reasonably likely to be performed in that State;

(iv) the person referred to in paragraph (a) carries on an activity (whether of a commercial, governmental or other nature) in a State that is a referring State because of this Division, and the work is to be performed in connection with that activity.

(2) This section does not limit the operation of the definition of outworker entity in section 12.

Note: Section 30H may limit the extent to which this section extends the meaning of outworker entity.

30G General protections

(1) Part 3‑1 (which deals with general protections) applies to action taken in a State that is a referring State because of this Division.

(2) This section applies despite section 337 (which limits the application of Part 3‑1), and does not limit the operation of sections 338 and 339 (which set out the application of that Part).

Note: Section 30H may limit the extent to which this section extends the application of Part 3‑1.

30H Division only has effect if supported by reference

A provision of this Division has effect in relation to a State that is a referring State because of this Division only to the extent that the State’s referral law refers to the Parliament of the Commonwealth the matters mentioned in subsection 30B(1) that result in the Parliament of the Commonwealth having sufficient legislative power for the provision so to have effect.

Division 2B—Application of this Act in States that refer matters after 1 July 2009 but on or before 1 January 2010

30K Meaning of terms used in this Division

(1) In this Division:

amendment reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30L(4).

excluded subject matter means any of the following matters:

(a) a matter dealt with in a law referred to in subsection 27(1A) of this Act;

(b) superannuation;

(d) occupational health and safety;

(e) matters relating to outworkers (within the ordinary meaning of the term);

(f) child labour;

(g) training arrangements;

(h) long service leave;

(i) leave for victims of crime;

(j) attendance for service on a jury, or for emergency service duties;

(k) declaration, prescription or substitution of public holidays;

(l) the following matters relating to provision of essential services or to situations of emergency:

(i) directions to perform work (including to perform work at a particular time or place, or in a particular way);

(ii) directions not to perform work (including not to perform work at a particular time or place, or in a particular way);

(m) regulation of any of the following:

(i) employee associations;

(ii) employer associations;

(iii) members of employee associations or of employer associations;

(n) workplace surveillance;

(o) business trading hours;

(q) rights or remedies incidental to a matter referred to in a preceding paragraph of this definition;

fundamental workplace relations principles: see subsection 30L(9).

initial reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection 30L(3).