Commonwealth Coat of Arms of Australia

Fair Work Act 2009

No. 28, 2009

Compilation No. 52

Compilation date: 18 October 2023

Includes amendments up to: Act No. 74, 2023

Registered: 21 October 2023

This compilation is in 3 volumes

Volume 1: sections 1–257

Volume 2: sections 258–678

Volume 3: sections 679–800

 Schedules

 Endnotes

Each volume has its own contents

About this compilation

This compilation

This is a compilation of the Fair Work Act 2009 that shows the text of the law as amended and in force on 18 October 2023 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.

Selfrepealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

 

 

 

Contents

Chapter 1—Introduction

Part 11—Introduction

Division 1—Preliminary

1 Short title

2 Commencement

Division 2—Object of this Act

3 Object of this Act

Division 3—Guide to this Act

4 Guide to this Act

5 Terms and conditions of employment (Chapter 2)

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

7 Compliance and enforcement (Chapter 4)

8 Administration (Chapter 5)

9 Miscellaneous (Chapter 6)

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

Part 12—Definitions

Division 1—Introduction

10 Guide to this Part

11 Meanings of employee and employer

Division 2—The Dictionary

12 The Dictionary

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

13 Meaning of national system employee

14 Meaning of national system employer

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

15 Ordinary meanings of employee and employer

15A Meaning of casual employee

Division 4—Other definitions

16 Meaning of base rate of pay

17 Meaning of child of a person

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

18 Meaning of full rate of pay

19 Meaning of industrial action

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

21 Meaning of pieceworker

22 Meanings of service and continuous service

23 Meaning of small business employer

23A Terms relating to superannuation

23B Meaning of general building and construction work

Part 13—Application of this Act

Division 1—Introduction

24 Guide to this Part

25 Meanings of employee and employer

Division 2—Interaction with State and Territory laws

26 Act excludes State or Territory industrial laws

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

28 Act excludes prescribed State and Territory laws

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

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

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

30A Meaning of terms used in this Division

30B Meaning of referring State

30C Extended meaning of national system employee

30D Extended meaning of national system employer

30E Extended ordinary meanings of employee and employer

30F Extended meaning of outworker entity

30G General protections

30H Division only has effect if supported by reference

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

30L Meaning of referring State

30M Extended meaning of national system employee

30N Extended meaning of national system employer

30P Extended ordinary meanings of employee and employer

30Q Extended meaning of outworker entity

30R General protections

30S Division only has effect if supported by reference

Division 3—Geographical application of this Act

31 Exclusion of persons etc. insufficiently connected with Australia

32 Regulations may modify application of this Act in certain parts of Australia

32A Rules may modify application of this Act in Norfolk Island

33 Extension of this Act to the exclusive economic zone and the continental shelf

34 Extension of this Act beyond the exclusive economic zone and the continental shelf

35 Meanings of Australian employer and Australianbased employee

35A Regulations excluding application of Act

36 Geographical application of offences

Division 4—Miscellaneous

37 Act binds Crown

38 Act not to apply so as to exceed Commonwealth power

39 Acquisition of property

40 Interaction between fair work instruments and public sector employment laws

40A Application of the Acts Interpretation Act 1901

40B Effect of the Migration Act 1958

Chapter 2—Terms and conditions of employment

Part 21—Core provisions for this Chapter

Division 1—Introduction

41 Guide to this Part

42 Meanings of employee and employer

Division 2—Core provisions for this Chapter

Subdivision A—Terms and conditions of employment provided under this Act

43 Terms and conditions of employment provided under this Act

Subdivision B—Terms and conditions of employment provided by the National Employment Standards

44 Contravening the National Employment Standards

Subdivision C—Terms and conditions of employment provided by a modern award

45 Contravening a modern award

46 The significance of a modern award applying to a person

47 When a modern award applies to an employer, employee, organisation or outworker entity

48 When a modern award covers an employer, employee, organisation or outworker entity

49 When a modern award is in operation

Subdivision D—Terms and conditions of employment provided by an enterprise agreement

50 Contravening an enterprise agreement

51 The significance of an enterprise agreement applying to a person

52 When an enterprise agreement applies to an employer, employee or employee organisation

53 When an enterprise agreement covers an employer, employee or employee organisation

54 When an enterprise agreement is in operation

Division 3—Interaction between the National Employment Standards, modern awards and enterprise agreements

Subdivision A—Interaction between the National Employment Standards and a modern award or an enterprise agreement

55 Interaction between the National Employment Standards and a modern award or enterprise agreement

56 Terms of a modern award or enterprise agreement contravening section 55 have no effect

Subdivision B—Interaction between modern awards and enterprise agreements

57 Interaction between modern awards and enterprise agreements

57A Designated outworker terms of a modern award continue to apply

Subdivision C—Interaction between one or more enterprise agreements

58 Only one enterprise agreement can apply to an employee

Part 22—The National Employment Standards

Division 1—Introduction

59 Guide to this Part

60 Meanings of employee and employer

Division 2—The National Employment Standards

61 The National Employment Standards are minimum standards applying to employment of employees

Division 3—Maximum weekly hours

62 Maximum weekly hours

63 Modern awards and enterprise agreements may provide for averaging of hours of work

64 Averaging of hours of work for award/agreement free employees

Division 4—Requests for flexible working arrangements

65 Requests for flexible working arrangements

65A Responding to requests for flexible working arrangements

65B Disputes about the operation of this Division

65C Arbitration

66 State and Territory laws that are not excluded

Division 4A—Offers and requests for casual conversion

Subdivision A—Application of Division

66A Division applies to casual employees etc.

Subdivision B—Employer offers for casual conversion

66AA Subdivision does not apply to small business employers

66B Employer offers

66C When employer offers not required

66D Employee must give a response

66E Acceptances of offers

Subdivision C—Residual right to request casual conversion

66F Employee requests

66G Employer must give a response

66H Refusals of requests

66J Grants of requests

Subdivision D—Other provisions

66K Effect of conversion

66L Other rights and obligations

66M Disputes about the operation of this Division

Division 5—Parental leave and related entitlements

Subdivision A—General

67 General rule—employee must have completed at least 12 months of service

68 General rule for adoptionrelated leave—child must be under 16 etc.

69 Transfer of employment situations in which employee is entitled to continue on leave etc.

Subdivision B—Parental leave

70 Entitlement to unpaid parental leave

71 The period of leave

72A Flexible unpaid parental leave

73 Pregnant employee may be required to take unpaid parental leave within 6 weeks before the birth

74 Notice and evidence requirements

75 Extending period of unpaid parental leave—extending to use more of available parental leave period

76 Extending period of unpaid parental leave—extending for up to 12 months beyond available parental leave period

76A Responding to requests for extension of unpaid parental leave

76B Disputes about extension of period of unpaid parental leave

76C Arbitration

77 Reducing period of unpaid parental leave

77A Effect of stillbirth or death of child on unpaid parental leave

78 Employee who ceases to have responsibility for care of child

78A Hospitalised children

79 Interaction with paid leave

79A Keeping in touch days

79B Unpaid parental leave not extended by paid leave or keeping in touch days

Subdivision C—Other entitlements

80 Unpaid special parental leave

81 Transfer to a safe job

81A Paid no safe job leave

82 Employee on paid no safe job leave may be asked to provide a further medical certificate

82A Unpaid no safe job leave

83 Consultation with employee on unpaid parental leave

84 Return to work guarantee

84A Replacement employees

85 Unpaid preadoption leave

Division 6—Annual leave

86 Division applies to employees other than casual employees

87 Entitlement to annual leave

88 Taking paid annual leave

89 Employee not taken to be on paid annual leave at certain times

90 Payment for annual leave

91 Transfer of employment situations that affect entitlement to payment for period of untaken paid annual leave

92 Paid annual leave must not be cashed out except in accordance with permitted cashing out terms

93 Modern awards and enterprise agreements may include terms relating to cashing out and taking paid annual leave

94 Cashing out and taking paid annual leave for award/agreement free employees

Division 7—Personal/carer’s leave, compassionate leave and paid family and domestic violence leave

Subdivision A—Paid personal/carer’s leave

95 Subdivision applies to employees other than casual employees

96 Entitlement to paid personal/carer’s leave

97 Taking paid personal/carer’s leave

98 Employee taken not to be on paid personal/carer’s leave at certain times

99 Payment for paid personal/carer’s leave

100 Paid personal/carer’s leave must not be cashed out except in accordance with permitted cashing out terms

101 Modern awards and enterprise agreements may include terms relating to cashing out paid personal/carer’s leave

Subdivision B—Unpaid carer’s leave

102 Entitlement to unpaid carer’s leave

103 Taking unpaid carer’s leave

Subdivision C—Compassionate leave

104 Entitlement to compassionate leave

105 Taking compassionate leave

106 Payment for compassionate leave (other than for casual employees)

Subdivision CA—Paid family and domestic violence leave

106A Entitlement to paid family and domestic violence leave

106B Taking paid family and domestic violence leave

106BA Payment for paid family and domestic violence leave

106C Confidentiality

106D Operation of paid family and domestic violence leave and leave for victims of crime

106E Entitlement to days of leave

Subdivision D—Notice and evidence requirements

107 Notice and evidence requirements

Division 8—Community service leave

108 Entitlement to be absent from employment for engaging in eligible community service activity

109 Meaning of eligible community service activity

110 Notice and evidence requirements

111 Payment to employees (other than casuals) on jury service

112 State and Territory laws that are not excluded

Division 9—Long service leave

113 Entitlement to long service leave

113A Enterprise agreements may contain terms discounting service under prior agreements etc. in certain circumstances

Division 10—Public holidays

114 Entitlement to be absent from employment on public holiday

115 Meaning of public holiday

116 Payment for absence on public holiday

Division 11—Notice of termination and redundancy pay

Subdivision A—Notice of termination or payment in lieu of notice

117 Requirement for notice of termination or payment in lieu

118 Modern awards and enterprise agreements may provide for notice of termination by employees

Subdivision B—Redundancy pay

119 Redundancy pay

120 Variation of redundancy pay for other employment or incapacity to pay

121 Exclusions from obligation to pay redundancy pay

122 Transfer of employment situations that affect the obligation to pay redundancy pay

Subdivision C—Limits on scope of this Division

123 Limits on scope of this Division

Division 12—Fair Work Ombudsman to prepare and publish statements

124 Fair Work Ombudsman to prepare and publish Fair Work Information Statement

125 Giving new employees the Fair Work Information Statement

125A Fair Work Ombudsman to prepare and publish Casual Employment Information Statement

125B Giving new employees the Casual Employment Information Statement

Division 13—Miscellaneous

126 Modern awards and enterprise agreements may provide for schoolbased apprentices and trainees to be paid loadings in lieu

127 Regulations about what modern awards and enterprise agreements can do

128 Relationship between National Employment Standards and agreements etc. permitted by this Part for award/agreement free employees

129 Regulations about what can be agreed to etc. in relation to award/agreement free employees

130 Restriction on taking or accruing leave or absence while receiving workers’ compensation

131 Relationship with other Commonwealth laws

Part 23—Modern awards

Division 1—Introduction

132 Guide to this Part

133 Meanings of employee and employer

Division 2—Overarching provisions

134 The modern awards objective

135 Special provisions relating to modern award minimum wages

Division 3—Terms of modern awards

Subdivision A—Preliminary

136 What can be included in modern awards

137 Terms that contravene section 136 have no effect

138 Achieving the modern awards objective

Subdivision B—Terms that may be included in modern awards

139 Terms that may be included in modern awards—general

140 Outworker terms

141 Industryspecific redundancy schemes

142 Incidental and machinery terms

Subdivision C—Terms that must be included in modern awards

143 Coverage terms of modern awards other than modern enterprise awards and State reference public sector modern awards

143A Coverage terms of modern enterprise awards

143B Coverage terms of State reference public sector modern awards

144 Flexibility terms

145 Effect of individual flexibility arrangement that does not meet requirements of flexibility term

145A Consultation about changes to rosters or hours of work

146 Terms about settling disputes

147 Ordinary hours of work

148 Base and full rates of pay for pieceworkers

149 Automatic variation of allowances

149B Term requiring avoidance of liability to pay superannuation guarantee charge

149C Default fund terms

149D Default fund term must provide for contributions to be made to certain funds

Subdivision D—Terms that must not be included in modern awards

150 Objectionable terms

151 Terms about payments and deductions for benefit of employer etc.

152 Terms about right of entry

153 Terms that are discriminatory

154 Terms that contain Statebased differences

155 Terms dealing with long service leave

Division 4A—4 yearly reviews of default fund terms of modern awards

Subdivision A—4 yearly reviews of default fund terms

156A 4 yearly reviews of default fund terms

Subdivision B—The first stage of the 4 yearly review

156B Making the Default Superannuation List

156C Applications to list a standard MySuper product

156D Submissions on applications to list a standard MySuper product

156E Determining applications to list a standard MySuper product

156F First stage criteria

Subdivision C—Second stage of the 4 yearly review

156G Review of the default fund term of modern awards

156H Default fund term must specify certain superannuation funds

156J Variation to comply with section 149D

156K Transitional authorisation for certain superannuation funds

Subdivision D—The Schedule of Approved Employer MySuper Products

156L The Schedule of Approved Employer MySuper Products

156M FWC to invite applications to include employer MySuper products on schedule

156N Making applications to include employer MySuper products on schedule

156P FWC to determine applications

156Q The first stage test

156R Submissions about the first stage test

156S The second stage test

156T Submissions about the second stage test

Subdivision E—Publishing documents under this Division

156U Publishing documents under this Division

Division 5—Exercising modern award powers

Subdivision A—Exercise of powers if necessary to achieve modern awards objective

157 FWC may vary etc. modern awards if necessary to achieve modern awards objective

158 Applications to vary, revoke or make modern award

Subdivision B—Other situations

159 Variation of modern award to update or omit name of employer, organisation or outworker entity

159A Variation of default fund term of modern award

160 Variation of modern award to remove ambiguity or uncertainty or correct error

161 Variation of modern award on referral by Australian Human Rights Commission

Division 6—General provisions relating to modern award powers

162 General

163 Special criteria relating to changing coverage of modern awards

164 Special criteria for revoking modern awards

165 When variation determinations come into operation, other than determinations setting, varying or revoking modern award minimum wages

166 When variation determinations setting, varying or revoking modern award minimum wages come into operation

167 Special rules relating to retrospective variations of awards

168 Varied modern award must be published

Division 7—Additional provisions relating to modern enterprise awards

168A Modern enterprise awards

168B The modern enterprise awards objective

168C Rules about making and revoking modern enterprise awards

168D Rules about changing coverage of modern enterprise awards

Division 8—Additional provisions relating to State reference public sector modern awards

168E State reference public sector modern awards

168F The State reference public sector modern awards objective

168G Making State reference public sector modern awards on application

168H State reference public sector modern awards may contain Statebased differences

168J When State reference public sector modern awards come into operation

168K Rules about revoking State reference public sector modern awards

168L Rules about varying coverage of State reference public sector modern awards

Part 24—Enterprise agreements

Division 1—Introduction

169 Guide to this Part

170 Meanings of employee and employer

171 Objects of this Part

Division 2—Employers and employees may make enterprise agreements

172 Making an enterprise agreement

172A Special measures to achieve equality

Division 3—Bargaining and representation during bargaining

173 Notice of employee representational rights

174 Content and form of notice of employee representational rights

176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

177 Bargaining representatives for proposed enterprise agreements that are greenfields agreements

178 Appointment of bargaining representatives—other matters

178A Revocation of appointment of bargaining representatives etc.

178B Notified negotiation period for a proposed singleenterprise agreement that is a greenfields agreement

Division 4—Approval of enterprise agreements

Subdivision A—Preapproval steps and applications for the FWC’s approval

179 Disclosure by organisations that are bargaining representatives

179A Disclosure by employers

180 Certain preapproval requirements

180A Agreement of bargaining representatives that are employee organisations

181 Employers may request employees to approve a proposed enterprise agreement

182 When an enterprise agreement is made

183 Entitlement of an employee organisation to have an enterprise agreement cover it

184 Multienterprise agreement to be varied if not all employees approve the agreement

185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

185A Material that must accompany an application under subsection 182(4) for approval of a greenfields agreement

Subdivision B—Approval of enterprise agreements by the FWC

186 When the FWC must approve an enterprise agreement—general requirements

187 When the FWC must approve an enterprise agreement—additional requirements

188 Determining whether an enterprise agreement has been genuinely agreed to by employees

188A Disclosure documents

188B Statement of principles on genuine agreement

189 FWC may approve an enterprise agreement that does not pass better off overall test—public interest test

190 FWC may approve an enterprise agreement with undertakings

191 Effect of undertakings

191A FWC may approve an enterprise agreement with amendments

191B Effect of amendment specified by FWC

192 When the FWC may refuse to approve an enterprise agreement

Subdivision C—Better off overall test

193 Passing the better off overall test

193A Applying the better off overall test

Subdivision D—Unlawful terms

194 Meaning of unlawful term

195 Meaning of discriminatory term

195A Meaning of objectionable emergency management term

Subdivision E—Approval requirements relating to particular kinds of employees

196 Shiftworkers

197 Pieceworkers—enterprise agreement includes pieceworker term

198 Pieceworkers—enterprise agreement does not include a pieceworker term

199 Schoolbased apprentices and schoolbased trainees

200 Outworkers

Subdivision F—Other matters

201 Approval decision to note certain matters

Division 5—Mandatory terms of enterprise agreements

202 Enterprise agreements to include a flexibility term etc.

203 Requirements to be met by a flexibility term

204 Effect of arrangement that does not meet requirements of flexibility term

205 Enterprise agreements to include a consultation term etc.

Division 6—Base rate of pay under enterprise agreements

206 Base rate of pay under an enterprise agreement must not be less than the modern award rate or the national minimum wage order rate etc.

Division 7—Variation and termination of enterprise agreements

Subdivision A—Variation of enterprise agreements by employers and employees: general circumstances

207 Variation of an enterprise agreement may be made by employers and employees

207A Agreement of employee organisations covered by the agreement

208 Employers may request employees to approve a proposed variation of an enterprise agreement

209 When a variation of an enterprise agreement is made

210 Application for the FWC’s approval of a variation of an enterprise agreement

211 When the FWC must approve a variation of an enterprise agreement

212 FWC may approve a variation of an enterprise agreement with undertakings

213 Effect of undertakings

213A FWC may approve variation with amendments

213B Effect of amendment specified by FWC

214 When the FWC may refuse to approve a variation of an enterprise agreement

215 Approval decision to note undertakings

215A Approval decision to note amendments

216 When variation comes into operation

Subdivision AA—Variation of supported bargaining agreement to add employer and employees (with consent)

216A Variation of supported bargaining agreement to add employer and employees

216AAA Terms of variation must be explained to employees

216AA Application for the FWC’s approval of a variation of a supported bargaining agreement to add employer and employees

216AB When the FWC must approve a variation of a supported bargaining agreement to add employer and employees

216AC Determining whether the FWC would have been required to make a supported bargaining authorisation

216AD Determining whether a variation of a supported bargaining agreement to add employer and employees has been genuinely agreed to by affected employees

216AE When the FWC may refuse to approve a variation of a supported bargaining agreement to add employer and employees

216AF When variation comes into operation

Subdivision AB—Variation of supported bargaining agreement to add employer and employees (without consent)

216B Application for the FWC to vary a supported bargaining agreement to add employer and employees

216BA When the FWC must make a variation of a supported bargaining agreement to add employer and employees

216BB When the FWC may refuse to make a variation of a supported bargaining agreement to add employer and employees

216BC When variation comes into operation

Subdivision AC—Variation of cooperative workplace agreement to add employer and employees

216C Variation of cooperative workplace agreement to add employer and employees

216CAA Terms of the variation must be explained to employees

216CA Application for the FWC’s approval of a variation of a cooperative workplace agreement to add employer and employees

216CB When the FWC must approve a variation of a cooperative workplace agreement to add employer and employees

216CC Determining whether a variation of a cooperative workplace agreement to add employer and employees has been genuinely agreed to by affected employees

216CD When the FWC may refuse to approve a variation of a cooperative workplace agreement

216CE When variation comes into operation

Subdivision AD—Variation of single interest employer agreement to add employer and employees

216D Variation of single interest employer agreement to add employer and employees—joint variation

216DAA Terms of variation must be explained to employees

216DA Application for the FWC’s approval of a variation of a single interest employer agreement to add employer and employees—joint variation

216DB Application for the FWC’s approval of a variation of a single interest employer agreement to add employer and employees—application by employee organisation

216DC When the FWC must approve a variation of a single interest employer agreement to add employer and employees

216DD Determining whether a variation of a single interest employer agreement to add employer and employees has been genuinely agreed to by affected employees

216DE When the FWC may refuse to approve a variation of a single interest employer agreement

216DF When variation comes into operation

Subdivision AE—Variation of multienterprise agreement to remove employer and employees

216E Variation of multienterprise agreement to remove employer and employees with consent

216EA Application for the FWC’s approval of variation

216EB When the FWC must approve variation of multienterprise agreement to remove employer and employees

216EC When variation comes into operation

216ED Effect of variation

Subdivision B—Variations of enterprise agreements where there is ambiguity, uncertainty or discrimination

217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

217A FWC may deal with certain disputes about variations

218 Variation of an enterprise agreement on referral by Australian Human Rights Commission

Subdivision BA—Variation of enterprise agreements to correct or amend errors, defects or irregularities

218A Variation of enterprise agreements to correct or amend errors, defects or irregularities

Subdivision C—Termination of enterprise agreements by employers and employees

219 Employers and employees may agree to terminate an enterprise agreement

220 Employers may request employees to approve a proposed termination of an enterprise agreement

221 When termination of an enterprise agreement is agreed to

222 Application for the FWC’s approval of a termination of an enterprise agreement

223 When the FWC must approve a termination of an enterprise agreement

224 When termination comes into operation

Subdivision D—Termination of enterprise agreements after nominal expiry date

225 Application for termination of an enterprise agreement after its nominal expiry date

226 Terminating an enterprise agreement after its nominal expiry date

226A Guarantee of termination entitlements

227 When termination comes into operation

Division 7A—Reconsideration of whether an enterprise agreement passes the better off overall test

227A Application for FWC to reconsider whether an enterprise agreement passes the better off overall test

227B Reconsideration of whether an enterprise agreement passes the better off overall test

227C Effect of undertakings

227D Effect of amendment

227E No creation of liability to pay pecuniary penalty for past conduct

Division 8—FWC’s general role in facilitating bargaining

Subdivision A—Bargaining orders

228 Bargaining representatives must meet the good faith bargaining requirements

229 Applications for bargaining orders

230 When the FWC may make a bargaining order

231 What a bargaining order must specify

232 Operation of a bargaining order

233 Contravening a bargaining order

Subdivision B—Intractable bargaining declarations

234 Applications for intractable bargaining declarations

235 When the FWC may make an intractable bargaining declaration

235A Postdeclaration negotiating period

Subdivision C—Majority support determinations and scope orders

236 Majority support determinations

237 When the FWC must make a majority support determination

238 Scope orders

239 Operation of a scope order

Subdivision D—FWC may deal with a bargaining dispute on request

240 Application for the FWC to deal with a bargaining dispute

Subdivision E—Voting request orders

240A Application to FWC for voting request order

240B FWC must make voting request order

Division 9—Supported bargaining

241 Objects of this Division

242 Supported bargaining authorisations

243 When the FWC must make a supported bargaining authorisation

243A Restrictions on making supported bargaining authorisations

244 Variation of supported bargaining authorisations—general

245 Variation of supported bargaining authorisations—enterprise agreement etc. comes into operation

246 FWC’s assistance

Division 10—Single interest employer authorisations

248 Single interest employer authorisations

249 When the FWC must make a single interest employer authorisation

249A Restriction on making single interest employer authorisations

250 What a single interest employer authorisation must specify

251 Variation of single interest employer authorisations

251A Restriction on variation of single interest employer authorisation

252 Variation to extend period single interest employer authorisation is in operation

Division 11—Other matters

253 Terms of an enterprise agreement that are of no effect

254 Applications by bargaining representatives

254A Entitlement for volunteer bodies to make submissions

255 Part does not empower the FWC to make certain orders

255A Limitations relating to greenfields agreements

256 Prospective employers and employees

256A How employees, employers and employee organisations are to be described

257 Enterprise agreements may incorporate material in force from time to time etc.

An Act relating to workplace relations, and for related purposes

Chapter 1Introduction

Part 11Introduction

Division 1Preliminary

1  Short title

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

2  Commencement

 (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 2Object 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, promote job security and gender equality, 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 enterpriselevel collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and

 (g) acknowledging the special circumstances of small and mediumsized businesses.

Division 3Guide 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

 (c) provides for compliance with, and enforcement of, this Act (Chapter 4); 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 12); and

 (b) the application of this Act (Part 13), 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 21 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 22 contains the National Employment Standards, which are minimum terms and conditions that apply to all national system employees.

 (4) Part 23 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 24 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 25 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 28 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 26) or an equal remuneration order (see Part 27); and

 (b) provided by Part 29 (which deals with the frequency and method of making payments to employees, deductions from payments and highincome 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 31 provides general workplace protections. It:

 (a) protects workplace rights; and

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

 (c) provides other protections, including protection from discrimination.

 (3) Part 32 deals with unfair dismissal of national system employees, and the granting of remedies when that happens.

 (4) Part 33 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 34 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 35 allows a national system employer to stand down a national system employee without pay in certain circumstances.

 (6A) Part 35A prohibits sexual harassment of workers, persons seeking to become workers and persons conducting businesses or undertakings, and provides for the granting of remedies when that happens.

 (7) Part 36 deals with other rights and responsibilities of national system employers in relation to:

 (a) termination of employment; and

 (b) keeping records and giving payslips; and

 (c) advertising rates of pay.

 (8) Part 37 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 41 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 41:

 (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 42 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 51 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 52 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 61 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 62 is about dealing with disputes between national system employees and their employers under modern awards, enterprise agreements and contracts of employment.

 (4) Part 63 extends the National Employment Standards relating to unpaid parental leave and notice of termination to nonnational system employees.

 (4A) Part 63A 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 nonnational system employer that is a State public sector employer of the State to a national system employer.

 (5) Part 64 contains provisions to give effect, or further effect, to certain international agreements relating to termination of employment.

 (5A) Part 64A contains special provisions about TCF outworkers.

 (5B) Part 64B allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying.

 (6) Part 65 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 12Definitions

Division 1Introduction

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 64A (TCF contract outworkers taken to be employees in certain circumstances).

Division 2The 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.

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

action includes an omission.

adoptionrelated leave: see subsection 67(5).

adverse action: see section 342.

affected employees:

 (a) for a variation of an enterprise agreement under Subdivision A of Division 7 of Part 24: see subsection 207(2); and

 (b) for a variation of an enterprise agreement under Subdivision AA, AB or AC of Division 7 of Part 24 to add an employer to a supported bargaining agreement or a cooperative workplace agreement: means an employee employed by the employer at the time the variation is made who will be covered by the agreement if the variation is approved (or made) by the FWC; and

 (c) for a variation of an enterprise agreement under Subdivision AD of Division 7 of Part 24 (variation of single interest employer agreement to add employer and employees): see paragraphs 216D(1)(b) and 216DB(1)(b); and

 (d) for a variation of an enterprise agreement under Subdivision AE of Division 7 of Part 24 (variation of multienterprise agreement to remove employer and employees): see paragraph 216E(1)(b).

affected employer:

 (a) in relation to an entry under Subdivision A of Division 2 of Part 34: 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 34: 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.

aggrieved person in relation to an alleged contravention of Division 2 of Part 35A (prohibiting sexual harassment in connection with work): see subsection 527F(1).

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).

antidiscrimination law: see subsection 351(3).

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

applicable agreementderived long service leave terms: see subsection 113(5).

applicable awardderived long service leave terms: see subsection 113(3).

applicable time: see subsection 23B(2).

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

 (c) in relation to a copied State instrument: see section 768AM.

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.

Australianbased 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 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.

birthrelated leave: see subsection 67(4).

breastfeeding:

 (a) includes the act of expressing milk; and

 (b) includes:

 (i) an act of breastfeeding; and

 (ii) breastfeeding over a period of time.

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

 (c) a person who is a member of a body that is authorised by the President under subsection 581A(3).

compliance powers: see section 703.

compliance purposes: see subsection 706(1).

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).

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 nontransferring employee—see subsection 768BG(1).

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

constitutionallycovered business: see subsection 789FD(3).

constitutionallycovered 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

 (c) between a State and a Territory; 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.

cooperative workplace agreement: a multienterprise agreement is a cooperative workplace agreement if there was no supported bargaining authorisation or single interest employer authorisation in operation in relation to the agreement immediately before the agreement was made.

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

 (c) in relation to a State reference public sector modern award: see section 143B.

covers:

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

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

 (c) in relation to a workplace determination: see section 277; and

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

day of placement: see subsection 67(6).

de facto partner of a person means:

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

 (b) a former de facto partner (within the meaning of paragraph (a)) of the first person.

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 protected action ballot agent: see subsection 468A(1).

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

 (a) a District, County or Local Court;

 (b) a magistrates court;

 (c) the Industrial Relations Court of South Australia;

 (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 11) 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 64A (TCF contract outworkers taken to be employees in certain circumstances).

employee A, in relation to a transfer of business referred to in Part 63A: 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 64A 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 11) 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 64A (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).

end of the minimum bargaining period: see subsection 235(5).

engages in industrial activity: see section 347.

enterprise means a business, activity, project or undertaking.

enterprise agreement means:

 (a) a singleenterprise agreement; or

 (b) a multienterprise 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).

Note: See also subsections 302(3A) to (3C) and (4) and (4A) for matters relevant to the meaning of equal remuneration for work of equal or comparable value.

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

 (c) a workplace determination; or

 (d) an FWC order.

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

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 seabed 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 subsections 72A(1) and (2A).

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).

gender identity has the meaning given by the Sex Discrimination Act 1984.

general building and construction work: see subsection 23B(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).

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).

guarantee of termination entitlements: see subsection 226A(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;

 (c) report on an investigation of 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 person means:

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

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

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

 (c) a law of the Commonwealth, however designated, that regulates the relationships between employers and employees; or

 (d) a State or Territory industrial law.

Industry Minister means the Minister administering the Australian Jobs Act 2013.

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

Infrastructure Minister means the Minister administering the Infrastructure Australia Act 2008.

inspector means a Fair Work Inspector.

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

intersex status has the meaning given by the Sex Discrimination Act 1984.

intractable bargaining declaration: see section 234.

intractable bargaining workplace determination: see section 269.

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).

made:

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

 (b) in relation to a variation of an enterprise agreement under Subdivision A of Division 7 of Part 24 (variation of enterprise agreements by employers and employees): see section 209; and

 (c) in relation to a variation of an enterprise agreement under Subdivision AA of Division 7 of Part 24 (variation of supported bargaining agreement to add employer and employees (with consent)): see subsection 216A(4); and

 (d) in relation to a variation of an enterprise agreement under Subdivision AC of Division 7 of Part 24 (variation of cooperative workplace agreement to add employer and employees): see subsection 216C(4); and

 (e) in relation to a variation of an enterprise agreement under Subdivision AD of Division 7 of Part 24 (variation of single interest employer agreement to add employer and employees): see subsection 216D(5); and

 (f) in relation to a variation of an enterprise agreement under Subdivision AE of Division 7 of Part 24 (variation of multienterprise agreement to remove employer and employees): see subsection 216E(7).

magistrates court means:

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

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

 (c) the Local Court of the Northern Territory.

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).

miscarriage means a spontaneous loss of an embryo or fetus before a period of gestation of 20 weeks.

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 23.

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.

multienterprise 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 64A (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 64A (TCF contract outworkers taken to be employees in certain circumstances).

new employer:

 (a) in relation to a transfer of business referred to in Part 28—see subsection 311(1); and

 (b) in relation to a transfer of business referred to in Part 63A—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

 (c) of a workplace determination, means the date specified in the determination as its nominal expiry date; or

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

nonexcluded matters: see subsection 27(2).

nonmember record or document: see subsection 482(2A).

nonmonetary benefits: see subsection 332(3).

nonnational system employee means an employee who is not a national system employee.

nonnational system employer means an employer that is not a national system employer.

nontransferring employee:

 (a) in relation to a transfer of business referred to in Part 28—see subsection 314(2); and

 (b) in relation to a transfer of business referred to in Part 63A—see subsection 768BG(2).

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

notified negotiation period for a proposed singleenterprise 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:

 (c) a contravention of Part 31 (which deals with general protections);

 (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;

 (c) a Commonwealth authority;

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

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 selfemployed 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, copilot or pilot of any other description.

postdeclaration negotiating period: see subsection 235A(1).

postindustrial 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)).

preparental leave position: an employee’s preparental 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).

protected action ballot means a ballot conducted under Division 8 of Part 33.

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

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

protected employee for a termination of an enterprise agreement under section 226: see subsection 226A(2).

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).

reasonably foreseeable employee for an enterprise agreement: see subsection 193(5).

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

reduction in takehome pay: see subsection 768BR(3).

reemployment time, in relation to a transferring employee covered by a transfer of business referred to in Part 63A: 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.

respondent in relation to an alleged contravention of Division 2 of Part 35A (prohibiting sexual harassment in connection with work): see subsection 527F(1).

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.

schoolbased apprentice means a national system employee who is an apprentice to whom a schoolbased training arrangement applies.

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

schoolbased 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 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.

sexual harassment court application: see subsection 527T(2).

sexual harassment FWC application: see subsection 734A(3).

sexually harass has the meaning given by section 28A of the Sex Discrimination Act 1984.

Note: Other parts of speech and grammatical forms of “sexually harass” (for example, “sexual harassment”) have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).

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

single enterprise: see section 168A.

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

single interest employer agreement: a multienterprise agreement is a single interest employer agreement if a single interest employer authorisation was in operation in relation to the agreement immediately before the agreement was made.

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 measure to achieve equality: see subsections 195(4) to (6).

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 nonnational 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 nonnational 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

 (c) a body corporate in which the State has a controlling interest; 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 nonnational 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.

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

stillborn: see subsection 77A(2).

stop sexual harassment order: see paragraph 527F(1)(a).

superannuation fund means a superannuation fund or a superannuation scheme.

supported bargaining agreement: a multienterprise agreement is a supported bargaining agreement if a supported bargaining authorisation was in operation in relation to the agreement immediately before the agreement was made.

supported bargaining authorisation: see subsection 242(1).

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

takehome pay: see subsection 768BR(2).

takehome 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 63A: 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 nonnational 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 nonassociated entities: see paragraph 22(8)(b).

transferring employee:

 (a) in relation to a transfer of business referred to in Part 28—see subsection 311(2); and

 (b) in relation to a transfer of business referred to in Part 63A—see subsection 768AE(1).

transferring work:

 (a) in relation to a transfer of business referred to in Part 28—see paragraph 311(1)(c); and

 (b) in relation to a transfer of business referred to in Part 63A—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 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 preadoption leave means unpaid preadoption leave to which a national system employee is entitled under section 85.

unpaid special parental leave means unpaid special parental 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

 (c) authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory.

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

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

voting request order: see subsections 240A(1) and (2).

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:

 (aa) in Part 35A—see subsection 527D(2); and

 (a) in Part 64B—see subsection 789FC(2); and

 (b) otherwise—has its ordinary meaning.

worker in a business or undertaking: see subsection 527D(3).

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

workplace determination means:

 (b) an industrial action related workplace determination; or

 (c) an intractable bargaining workplace determination.

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

 (c) the Independent Contractors Act 2006; 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 3Definitions 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

 (c) a Commonwealth authority, 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 whollyowned 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

 (c) an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer.

 (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

 (c) provides services for the supply, distribution or release of water; 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 whollyowned 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);

 (c) an employer becoming a national system employer because subsection 14(2) ceases to apply to the employer;

 (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

 (c) the person is an employee as a result of that acceptance.

 (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;

 (c) whether the employment is described as casual employment;

 (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 22, 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 fulltime employment or parttime 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 fulltime or parttime employment under Division 4A of Part 22; 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 4Other 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) incentivebased payments and bonuses;

 (b) loadings;

 (c) monetary allowances;

 (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 stepchild 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 22 (which deals with personal/carer’s leave, compassionate leave and paid 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 13.

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) incentivebased payments and bonuses;

 (b) loadings;

 (c) monetary allowances;

 (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;

 (c) action by an employee if:

 (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 fulltime employee—38 hours; or

 (b) for an employee who is not a fulltime 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 fulltime 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 fulltime 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

 (c) an award/agreement free employee who is in a class of employees prescribed by the regulations as pieceworkers.

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;

 (c) a particular type of employment.

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 22 (which deals with community service leave); or

 (ii) a period of stand down under Part 35, 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;

 (c) any other period 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 22

 (4) For the purposes of Divisions 4 and 5, and Subdivision A of Division 11, of Part 22:

 (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

 (c) subsections (1), (2) and (3) do not apply.

Note: Divisions 4 and 5, and Subdivision A of Division 11, of Part 22 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 nonassociated entities, for the purpose of Division 6 of Part 22 (which deals with annual leave) or Subdivision B of Division 11 of Part 22 (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 nonassociated 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 employersponsored 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

 (c) has:

 (i) one standard employersponsor (within the meaning of that Act); or

 (ii) 2 or more standard employersponsors (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.

23B  Meaning of general building and construction work

 (1) Work is general building and construction work if:

 (a) the work is done, onsite, by an employee in the industry of:

 (i) general building and construction within the meaning of paragraph 4.3(a) of the Building and Construction General Onsite Award 2020 as in force at the applicable time; or

 (ii) civil construction within the meaning of paragraph 4.3(b) of the Building and Construction General Onsite Award 2020 as in force at the applicable time; and

 (b) the work is not any of the following:

 (ii) work in the industry of metal and engineering construction within the meaning of paragraph 4.3(c) of the Building and Construction General Onsite Award 2020 as in force at the applicable time;

 (iii) work in manufacturing and associated industries and occupations within the meaning of clause 4.8 of the Manufacturing and Associated Industries and Occupations Award 2020 as in force at the applicable time;

 (iv) the work of an employee who is covered by the Joinery and Building Trades Award 2020, as in force at the applicable time, in relation to the work;

 (v) work in the industry of electrical services, within the meaning of clause 4.3 of the Electrical, Electronic and Communications Contracting Award 2022 as in force at the applicable time, provided by electrical, electronics and communications contractors and their employees;

 (vi) work that is plumbing, or fire sprinkler fitting, within the meaning of clause 4.2 of the Plumbing and Fire Sprinklers Award 2020 as in force at the applicable time;

 (vii) work in the black coal mining industry within the meaning of clause 4.2 of the Black Coal Mining Industry Award 2020 as in force at the applicable time;

 (viii) work in the mining industry within the meaning of clause 4.2 of the Mining Industry Award 2020 as in force at the applicable time;

 (ix) work in the quarrying industry within the meaning of clause 4.3 of the Cement, Lime and Quarrying Award 2020 as in force at the applicable time;

 (x) work in the concrete products industry within the meaning of clause 4.2 of the Concrete Products Award 2020 as in force at the applicable time;

 (xi) work in the premixed concrete industry within the meaning of clause 4.2 of the Premixed Concrete Award 2020 as in force at the applicable time;

 (xii) work in connection with the installation, major modernisation, servicing, repair or maintenance of lifts and escalators, or airconditioning or ventilation;

 (xiii) work in the asphalt industry within the meaning of clause 4.2 of the Asphalt Industry Award 2020 as in force at the applicable time;

 (xiv) work, in that part of the industry of civil construction described in subparagraph 4.3(b)(i) of the Building and Construction General Onsite Award 2020 as in force at the applicable time, that is the construction, repair, maintenance or demolition of power houses or other structures that use eligible renewable energy sources (within the meaning of section 17 of the Renewable Energy (Electricity) Act 2000) to generate electricity.

 (2) The applicable time is the start of the day before this section commences.

Part 13Application of this Act

Division 1Introduction

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 64A (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 2Interaction 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 nonmembership 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;

 (c) the Industrial Relations Act 1979 of Western Australia;

 (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 AntiDiscrimination Act 1977 of New South Wales;

 (b) the Equal Opportunity Act 2010 of Victoria;

 (c) the AntiDiscrimination Act 1991 of Queensland;

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

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

 (f) the AntiDiscrimination Act 1998 of Tasmania;

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

 (h) the AntiDiscrimination Act 1992 (NT).

 (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

 (c) the law deals with any nonexcluded matters; 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 nonexcluded 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 nonexcluded matters are as follows:

 (a) superannuation;

 (b) workers compensation;

 (c) occupational health and safety;

 (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 22 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 2AApplication 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;

 (c) workers compensation;

 (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

 (c) a person who has the powers and duties of a member of a police force or police service;

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 enterpriselevel 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

 (c) a body corporate in which the State has a controlling interest; 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 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

 (3) This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by amending this Act, as originally enacted, to include the 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;

 (c) the State’s transition reference terminates.

 (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

 (c) one or more of the following applies:

 (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 31 (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 31), 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 31.

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 2BApplication 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;

 (c) workers compensation;

 (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 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).

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

 (c) a person who has the powers and duties of a member of a police force or police service;

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 30L(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 enterpriselevel 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 30L.

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 of the State.

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

 (c) a body corporate in which the State has a controlling interest; 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 holder of an office of the State whom the State’s referral law provides is to be taken, for the purposes of this Act, to be an employer of law enforcement officers of the State.

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 30L(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.

30L  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, after 1 July 2009 but on or before 1 January 2010, 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

 (3) This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by amending this Act, as originally enacted, and as subsequently amended by amendments enacted at any time before the State’s referral law commenced, to include the 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 (as it continues to apply because of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009); or

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

 (c) the State’s transition reference terminates.

 (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.

30M  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 30N(1)(a), except on a vocational placement; and

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

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

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

30N  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 30P(2) applies.

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

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

30P  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 referring State 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 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 30S may limit the extent to which this section extends the meanings of employee and employer.

30Q  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

 (c) one or more of the following applies:

 (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 30S may limit the extent to which this section extends the meaning of outworker entity.

30R  General protections

 (1) Part 31 (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 31), and does not limit the operation of sections 338 and 339 (which set out the application of that Part).

Note: Section 30S may limit the extent to which this section extends the application of Part 31.

30S  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 30L(1) that result in the Parliament of the Commonwealth having sufficient legislative power for the provision so to have effect.

Division 3Geographical application of this Act

31  Exclusion of persons etc. insufficiently connected with Australia

 (1) A provision of this Act prescribed by the regulations does not apply to a person or entity in Australia prescribed by the regulations as a person to whom, or an entity to which, the provision does not apply.

Note 1: In this context, Australia includes Norfolk Island, the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea (see the definition of Australia in section 12 of this Act and section 15B of the Acts Interpretation Act 1901).

Note 2: The regulations may prescribe the person or entity by reference to a class (see subsection 13(3) of the Legislation Act 2003).

 (2) Before the GovernorGeneral makes regulations for the purposes of subsection (1) prescribing either or both of the following:

 (a) a provision of this Act that is not to apply to a person or entity;

 (b) a person to whom, or an entity to which, a provision of this Act is not to apply;

the Minister must be satisfied that the provision should not apply to the person or entity in Australia because there is not a sufficient connection between the person or entity and Australia.

32  Regulations may modify application of this Act in certain parts of Australia

  If the regulations prescribe modifications of this Act for its application in relation to all or part of any one or more of the following areas:

 (a) all the waters of the sea on the landward side of the outer limits of the territorial sea of Australia, including:

 (i) such waters within the limits of a State or Territory; and

 (ii) the airspace over, and the seabed and subsoil beneath, such waters;

 (b) the Territory of Christmas Island;

 (c) the Territory of Cocos (Keeling) Islands;

then this Act has effect as so modified in relation to any such area or part.

Note: This Act would, in the absence of any such regulations, apply in relation to these areas in the same way as it applies in relation to the rest of Australia.

32A  Rules may modify application of this Act in Norfolk Island

 (1) The Minister may, by legislative instrument, make rules prescribing modifications of this Act for its application in relation to Norfolk Island.

 (2) To avoid doubt, the rules may not do the following:

 (a) create an offence or civil penalty;

 (b) provide powers of:

 (i) arrest or detention; or

 (ii) entry, search or seizure;

 (c) impose a tax;

 (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

 (e) directly amend the text of this Act.

 (3) If the rules prescribe modifications of this Act for its application in relation to Norfolk Island, then this Act has effect as so modified in relation to Norfolk Island.

Note: This Act would, in the absence of any such rules, apply in relation to Norfolk Island in the same way as it applies in relation to the rest of Australia.

33  Extension of this Act to the exclusive economic zone and the continental shelf

Extension to Australian ships etc.

 (1) Without limiting subsection (3), this Act extends to or in relation to:

 (a) any Australian ship in the exclusive economic zone or in the waters above the continental shelf; and

 (b) any fixed platform in the exclusive economic zone or in the waters above the continental shelf; and

 (c) any ship, in the exclusive economic zone or in the waters above the continental shelf, that:

 (i) supplies, services or otherwise operates in connection with a fixed platform in the exclusive economic zone or in the waters above the continental shelf; and

 (ii) operates to and from an Australian port; and

 (d) any ship, in the exclusive economic zone or in the waters above the continental shelf, that:

 (i) is operated or chartered by an Australian employer; and

 (ii) uses Australia as a base.

 (2) For the purposes of extending this Act in accordance with paragraph (1)(d):

 (a) any reference in a provision of this Act to an employer is taken to include a reference to an Australian employer; and

 (b) any reference in a provision of this Act to an employee is taken to include a reference to an employee of an Australian employer.

Extensions prescribed by regulations

 (3) Without limiting subsection (1), if the regulations prescribe further extensions of this Act, or specified provisions of this Act, to or in relation to the exclusive economic zone or to the waters above the continental shelf, then this Act extends accordingly.

Modifications relating to extended application

 (4) Despite subsections (1) and (3), if the regulations prescribe modifications of this Act, or specified provisions of this Act, for its operation under subsection (1) or (3) in relation to one or both of the following:

 (a) all or part of the exclusive economic zone;

 (b) all or part of the continental shelf;

then, so far as this Act would, apart from this subsection, extend to the zone or part, or to the continental shelf or part, it has effect as so modified.

 (5) For the purposes of subsection (4), the regulations may prescribe different modifications in relation to different parts of the exclusive economic zone or continental shelf.

Extension relating to Greater Sunrise special regime area

 (6) Despite subsection 13AB(1) of the Seas and Submerged Lands Act 1973:

 (a) an extension of this Act under subsection (1) of this section has effect; and

 (b) an extension of this Act, or a provision of this Act, because of regulations made for the purposes of subsection (3) of this section may (subject to those regulations) have effect;

in relation to acts, omissions, matters and things directly or indirectly connected with the exploration of, or exploitation of the natural resources of, the continental shelf in the Greater Sunrise special regime area. This subsection has effect whether or not the extension is affected by subsection (4) of this section.

34  Extension of this Act beyond the exclusive economic zone and the continental shelf

Extension to Australian ships etc.

 (1) Without limiting subsection (3), this Act extends to or in relation to:

 (a) any Australian ship outside the outer limits of the exclusive economic zone and the continental shelf; and

 (b) any ship, outside the outer limits of the exclusive economic zone and the continental shelf, that:

 (i) is operated or chartered by an Australian employer; and

 (ii) uses Australia as a base.

 (2) For the purposes of extending this Act in accordance with paragraph (1)(b):

 (a) any reference in a provision of this Act to an employer is taken to include a reference to an Australian employer; and

 (b) any reference in a provision of this Act to an employee is taken to include a reference to an employee of an Australian employer.

Extensions prescribed by regulations

 (3) Without limiting subsection (1), if the regulations prescribe further extensions of this Act, or specified provisions of this Act, in relation to all or part of the area outside the outer limits of the exclusive economic zone and the continental shelf, then this Act, or the specified provisions, extend accordingly to:

 (a) any Australian employer; and

 (b) any Australianbased employee.

 (3A) For the purposes of extending this Act in accordance with subsection (3):

 (a) any reference in a provision of this Act to an employer is taken to include a reference to:

 (i) an Australian employer; and

 (ii) an employer of an Australianbased employee; and

 (b) any reference in a provision of this Act to an employee is taken to include a reference to:

 (i) an employee of an Australian employer; and

 (ii) an Australianbased employee.

Modified application in the area outside the outer limits of the exclusive economic zone and the continental shelf

 (4) Despite subsections (1) and (3), if the regulations prescribe modifications of this Act, or specified provisions of this Act, for their operation under subsection (1) or (3) in relation to all or part of the area outside the outer limits of the exclusive economic zone and the continental shelf, then this Act, or the specified provisions, have effect as so modified in relation to the area or part.

 (5) For the purposes of subsection (4), the regulations may prescribe different modifications in relation to different parts of the area outside the outer limits of the exclusive economic zone and the continental shelf.

35  Meanings of Australian employer and Australianbased employee

 (1) An Australian employer is an employer that:

 (a) is a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or

 (b) is a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or

 (c) is the Commonwealth; or

 (d) is a Commonwealth authority; or

 (e) is a body corporate incorporated in a Territory; or

 (f) carries on in Australia, in the exclusive economic zone or in the waters above the continental shelf an activity (whether of a commercial, governmental or other nature), and whose central management and control is in Australia; or

 (g) is prescribed by the regulations.

 (2) An Australianbased employee is an employee:

 (a) whose primary place of work is in Australia; or

 (b) who is employed by an Australian employer (whether the employee is located in Australia or elsewhere); or

 (c) who is prescribed by the regulations.

 (3) However, paragraph (2)(b) does not apply to an employee who is engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories.

35A  Regulations excluding application of Act

 (1) Regulations made for the purposes of section 32 or subsection 33(4) or 34(4) may exclude the application of the whole of this Act in relation to all or a part of an area referred to in section 32 or subsection 33(4) or 34(4) (as the case may be).

 (2) If subsection (1) applies, this Act has effect as if it did not apply in relation to that area or that part of that area.

36  Geographical application of offences

  Division 14 (Standard geographical jurisdiction) of the Criminal Code does not apply in relation to an offence against this Act.

Note: The extended geographical application that this Division gives to this Act will apply to the offences in this Act.

Division 4Miscellaneous

37  Act binds Crown

 (1) This Act binds the Crown in each of its capacities.

 (2) However, this Act does not make the Crown liable to be prosecuted for an offence.

38  Act not to apply so as to exceed Commonwealth power

 (1) Unless the contrary intention appears, if a provision of this Act:

 (a) would, apart from this section, have an application (an invalid application) in relation to:

 (i) one or more particular persons, things, matters, places, circumstances or cases; or

 (ii) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;

  because of which the provision exceeds the Commonwealth’s legislative power; and

 (b) also has at least one application (a valid application) in relation to:

 (i) one or more particular persons, things, matters, places, circumstances or cases; or

 (ii) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;

  that, if it were the provision’s only application, would be within the Commonwealth’s legislative power;

it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.

 (2) Despite subsection (1), the provision is not to have a particular valid application if:

 (a) apart from this section, it is clear, taking into account the provision’s context and the purpose or object underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth’s legislative power; or

 (b) the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth’s legislative power.

 (3) Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).

 (4) This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section.

39  Acquisition of property

  This Act, or any instrument made under this Act, does not apply to the extent that the operation of this Act or the instrument would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph).

40  Interaction between fair work instruments and public sector employment laws

Generally, public sector employment laws prevail

 (1) A public sector employment law prevails over a fair work instrument that deals with public sector employment, to the extent of any inconsistency.

When fair work instruments or their terms prevail

 (2) However, a fair work instrument, or a term of a fair work instrument, that deals with public sector employment prevails over a public sector employment law, to the extent of any inconsistency, if:

 (a) the instrument or term is prescribed by the regulations for the purposes of that particular law; or

 (b) the instrument or term (other than an FWC order or a term of an FWC order) is included in a class of instruments or terms that are prescribed by the regulations for the purposes of that particular law.

Meaning of public sector employment law

 (3) A public sector employment law is a law of the Commonwealth (other than this Act) or a Territory, or a term of an instrument made under such a law, that deals with public sector employment.

Laws that fair work instruments never prevail over

 (4) Subsection (2) does not apply to any provisions of the following that are public sector employment laws:

 (a) the Safety, Rehabilitation and Compensation Act 1988;

 (b) the Superannuation Act 1976;

 (c) the Superannuation Act 1990;

 (d) the Superannuation Act 2005;

 (e) the Superannuation (Productivity Benefit) Act 1988;

 (f) an instrument made under a law referred to in any of the above paragraphs.

Relationship with section 29

 (5) This section prevails over section 29, to the extent of any inconsistency.

40A  Application of the Acts Interpretation Act 1901

 (1) The Acts Interpretation Act 1901, as in force on 25 June 2009, applies to this Act.

 (2) Amendments of the Acts Interpretation Act 1901 made after that day do not apply to this Act.

40B  Effect of the Migration Act 1958

  For the purposes of this Act, any effect of the Migration Act 1958, or an instrument made under that Act, on the validity of a contract of employment, or the validity of a contract for services, is to be disregarded.

Chapter 2Terms and conditions of employment

Part 21Core provisions for this Chapter

Division 1Introduction

41  Guide to this Part

This Part has the core provisions for this Chapter, which deals with terms and conditions of employment of national system employees. The main terms and conditions come from the National Employment Standards, modern awards, enterprise agreements and workplace determinations.

The National Employment Standards (Part 22) are minimum terms and conditions that apply to all national system employees.

A modern award (see Part 23), an enterprise agreement (see Part 24) or a workplace determination (see Part 25) provides terms and conditions for those national system employees to whom the award, agreement or determination applies. Only one of those instruments can apply to an employee at a particular time.

Division 2 has the provisions to enforce the National Employment Standards, modern awards and enterprise agreements. It also sets out when a modern award or enterprise agreement applies to a person and the significance of that for this Act.

 Note: In most cases, this Act applies to a workplace determination as if it were an enterprise agreement in operation (see section 279). For the rules about workplace determinations, see Part 25.

Division 3 deals with the interaction between the National Employment Standards, modern awards and enterprise agreements.

42  Meanings of employee and employer

  In this Part, employee means a national system employee, and employer means a national system employer.

Note: See also Division 2 of Part 64A (TCF contract outworkers taken to be employees in certain circumstances).

Division 2Core provisions for this Chapter

Subdivision ATerms and conditions of employment provided under this Act

43  Terms and conditions of employment provided under this Act

Main terms and conditions

 (1) The main terms and conditions of employment of an employee that are provided under this Act are those set out in:

 (a) the National Employment Standards (see Part 22); and

 (b) a modern award (see Part 23), an enterprise agreement (see Part 24) or a workplace determination (see Part 25) that applies to the employee.

Note 1: The situations in which a workplace determination, rather than a modern award or enterprise agreement, provides an employee’s terms and conditions of employment are limited. In most cases, this Act applies to a workplace determination as if it were an enterprise agreement in operation (see section 279). See Part 25 generally for the rules on workplace determinations.

Note 2: Part 28 provides for the transfer of certain modern awards, enterprise agreements and workplace determinations if there is a transfer of business from an employee’s employer to another employer.

Note 3: Copied State instruments provide the main terms and conditions of employment for an employee to whom the instrument applies. See Part 63A generally for the rules about those instruments.

Other terms and conditions

 (2) In addition, other terms and conditions of employment include:

 (a) those terms and conditions arising from:

 (i) a national minimum wage order (see Part 26); or

 (ii) an equal remuneration order (see Part 27); and

 (b) those terms and conditions provided by Part 29.

Note: Part 29 deals with miscellaneous terms and conditions of employment, such as payment of wages.

Subdivision BTerms and conditions of employment provided by the National Employment Standards

44  Contravening the National Employment Standards

  An employer must not contravene a provision of the National Employment Standards.

Note: This section is a civil remedy provision (see Part 41).

Subdivision CTerms and conditions of employment provided by a modern award

45  Contravening a modern award

  A person must not contravene a term of a modern award.

Note 1: This section is a civil remedy provision (see Part 41).

Note 2: A person does not contravene a term of a modern award unless the award applies to the person: see subsection 46(1).

46  The significance of a modern award applying to a person

 (1) A modern award does not impose obligations on a person, and a person does not contravene a term of a modern award, unless the award applies to the person.

 (2) A modern award does not give a person an entitlement unless the award applies to the person.

Note: Subsection (2) does not affect the ability of outworker terms in a modern award to be enforced under Part 41 in relation to outworkers who are not employees.

47  When a modern award applies to an employer, employee, organisation or outworker entity

When a modern award applies to an employee, employer, organisation or outworker entity

 (1) A modern award applies to an employee, employer, organisation or outworker entity if:

 (a) the modern award covers the employee, employer, organisation or outworker entity; and

 (b) the modern award is in operation; and

 (c) no other provision of this Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity.

Note 1: Section 57 provides that a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.

Note 2: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).

Modern awards do not apply to high income employees

 (2) However, a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee.

Modern awards apply to employees in relation to particular employment

 (3) A reference in this Act to a modern award applying to an employee is a reference to the award applying to the employee in relation to particular employment.

48  When a modern award covers an employer, employee, organisation or outworker entity

When a modern award covers an employee, employer, organisation or outworker entity

 (1) A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity.

Note: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).

Effect of other provisions of this Act, FWC orders or court orders on coverage

 (2) A modern award also covers an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award covers the employee, employer, organisation or outworker entity:

 (a) a provision of this Act or of the Registered Organisations Act;

 (b) an FWC order made under a provision of this Act;

 (c) an order of a court.

 (3) Despite subsections (1) and (2), a modern award does not cover an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award does not cover the employee, employer or organisation or outworker entity:

 (a) a provision of this Act;

 (b) an FWC order made under a provision of this Act;

 (c) an order of a court.

Modern awards that have ceased to operate

 (4) Despite subsections (1) and (2), a modern award that has ceased to operate does not cover an employee, employer, organisation or outworker entity.

Modern awards cover employees in relation to particular employment

 (5) A reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment.

49  When a modern award is in operation

When a modern award comes into operation

 (1) A modern award comes into operation:

 (a) on 1 July in the next financial year after it is made; or

 (b) if it is made on 1 July in a financial year—on that day.

 (2) However, if the FWC specifies another day as the day on which the modern award comes into operation, it comes into operation on that other day. The FWC must not specify another day unless it is satisfied that it is appropriate to do so.

 (3) The specified day must not be earlier than the day on which the modern award is made.

Note: For when a State reference public sector modern award comes into operation, see section 168J.

When a determination revoking a modern award comes into operation

 (4) A determination revoking a modern award comes into operation on the day specified in the determination.

 (5) The specified day must not be earlier than the day on which the determination is made.

Modern awards and revocation determinations take effect from first full pay period

 (6) A modern award, or a determination revoking a modern award, does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after the day the award or determination comes into operation.

Modern awards operate until revoked

 (7) A modern award continues in operation until it is revoked.

Subdivision DTerms and conditions of employment provided by an enterprise agreement

50  Contravening an enterprise agreement

  A person must not contravene a term of an enterprise agreement.

Note 1: This section is a civil remedy provision (see Part 41).

Note 2: A person does not contravene a term of an enterprise agreement unless the agreement applies to the person: see subsection 51(1).

51  The significance of an enterprise agreement applying to a person

 (1) An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to the person.

 (2) An enterprise agreement does not give a person an entitlement unless the agreement applies to the person.

52  When an enterprise agreement applies to an employer, employee or employee organisation

When an enterprise agreement applies to an employee, employer or organisation

 (1) An enterprise agreement applies to an employee, employer or employee organisation if:

 (a) the agreement is in operation; and

 (b) the agreement covers the employee, employer or organisation; and

 (c) no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.

Enterprise agreements apply to employees in relation to particular employment

 (2) A reference in this Act to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to particular employment.

53  When an enterprise agreement covers an employer, employee or employee organisation

Employees and employers

 (1) An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer.

Employee organisations

 (2) An enterprise agreement covers an employee organisation:

 (a) for an enterprise agreement that is not a greenfields agreement—if the FWC has noted in its decision to approve the agreement that the agreement covers the organisation (see subsection 201(2)); or

 (b) for a greenfields agreement—if the agreement is made by the organisation.

Effect of provisions of this Act, FWC orders and court orders on coverage

 (3) An enterprise agreement also covers an employee, employer or employee organisation if any of the following provides, or has the effect, that the agreement covers the employee, employer or organisation:

 (a) a provision of this Act or of the Registered Organisations Act;

 (b) an FWC order made under a provision of this Act;

 (c) an order of a court.

 (4) Despite subsections (1), (2) and (3), an enterprise agreement does not cover an employee, employer or employee organisation if any of the following provides, or has the effect, that the agreement does not cover the employee, employer or organisation:

 (a) another provision of this Act;

 (b) an FWC order made under another provision of this Act;

 (c) an order of a court.

Enterprise agreements that have ceased to operate

 (5) Despite subsections (1), (2) and (3), an enterprise agreement that has ceased to operate does not cover an employee, employer or employee organisation.

Enterprise agreements cover employees in relation to particular employment

 (6) A reference in this Act to an enterprise agreement covering an employee is a reference to the agreement covering the employee in relation to particular employment.

54  When an enterprise agreement is in operation

 (1) An enterprise agreement approved by the FWC operates from:

 (a) 7 days after the agreement is approved; or

 (b) if a later day is specified in the agreement—that later day.

 (2) An enterprise agreement ceases to operate on the earlier of the following days:

 (a) the day on which a termination of the agreement comes into operation under section 224 or 227;

 (b) the day on which section 58 or subsection 278(1A) first has the effect that there is no employee to whom the agreement applies.

Note: Section 58 and subsection 278(1A) deal with when an enterprise agreement ceases to apply to an employee.

 (3) An enterprise agreement that has ceased to operate can never operate again.

Division 3Interaction between the National Employment Standards, modern awards and enterprise agreements

Subdivision AInteraction between the National Employment Standards and a modern award or an enterprise agreement

55  Interaction between the National Employment Standards and a modern award or enterprise agreement

National Employment Standards must not be excluded

 (1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.

Terms expressly permitted by Part 22 or regulations may be included

 (2) A modern award or enterprise agreement may include any terms that the award or agreement is expressly permitted to include:

 (a) by a provision of Part 22 (which deals with the National Employment Standards); or

 (b) by regulations made for the purposes of section 127.

Note: In determining what is permitted to be included in a modern award or enterprise agreement by a provision referred to in paragraph (a), any regulations made for the purpose of section 127 that expressly prohibit certain terms must be taken into account.

 (3) The National Employment Standards have effect subject to terms included in a modern award or enterprise agreement as referred to in subsection (2).

Note: See also the note to section 63 (which deals with the effect of averaging arrangements).

Ancillary and supplementary terms may be included

 (4) A modern award or enterprise agreement may also include the following kinds of terms:

 (a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;

 (b) terms that supplement the National Employment Standards;

but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.

Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:

(a) under which, instead of taking paid annual leave at the rate of pay required by section 90, an employee may take twice as much leave at half that rate of pay; or

(b) that specify when payment under section 90 for paid annual leave must be made.

Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms:

(a) that increase the amount of paid annual leave to which an employee is entitled beyond the number of weeks that applies under section 87; or

(b) that provide for an employee to be paid for taking a period of paid annual leave or paid/personal carer’s leave at a rate of pay that is higher than the employee’s base rate of pay (which is the rate required by sections 90 and 99).

Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms requiring an employee to give more notice of the taking of unpaid parental leave than is required by section 74.

Enterprise agreements may include terms that have the same effect as provisions of the National Employment Standards

 (5) An enterprise agreement may include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards, whether or not ancillary or supplementary terms are included as referred to in subsection (4).

Effect of terms that give an employee the same entitlement as under the National Employment Standards

 (6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that the terms give an employee an entitlement (the award or agreement entitlement) that is the same as an entitlement (the NES entitlement) of the employee under the National Employment Standards:

 (a) those terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit; and

 (b) the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement.

Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year, the provisions of the National Employment Standards relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.

Terms permitted by subsection (4) or (5) do not contravene subsection (1)

 (7) To the extent that a term of a modern award or enterprise agreement is permitted by subsection (4) or (5), the term does not contravene subsection (1).

Note: A term of a modern award has no effect to the extent that it contravenes this section (see section 56). An enterprise agreement that includes a term that contravenes this section must not be approved (see section 186) and a term of an enterprise agreement has no effect to the extent that it contravenes this section (see section 56).

56  Terms of a modern award or enterprise agreement contravening section 55 have no effect

  A term of a modern award or enterprise agreement has no effect to the extent that it contravenes section 55.

Subdivision BInteraction between modern awards and enterprise agreements

57  Interaction between modern awards and enterprise agreements

 (1) A modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.

 (2) If a modern award does not apply to an employee in relation to particular employment because of subsection (1), the award does not apply to an employer, or an employee organisation, in relation to the employee.

57A  Designated outworker terms of a modern award continue to apply

 (1) This section applies if, at a particular time:

 (a) an enterprise agreement applies to an employer; and

 (b) a modern award covers the employer (whether the modern award covers the employer in the employer’s capacity as an employer or an outworker entity); and

 (c) the modern award includes one or more designated outworker terms.

 (2) Despite section 57, the designated outworker terms of the modern award apply at that time to the following:

 (a) the employer;

 (b) each employee who is both:

 (i) a person to whom the enterprise agreement applies; and

 (ii) a person who is covered by the modern award;

 (c) each employee organisation that is covered by the modern award.

 (3) To avoid doubt:

 (a) designated outworker terms of a modern award can apply to an employer under subsection (2) even if none of the employees of the employer is an outworker; and

 (b) to the extent to which designated outworker terms of a modern award apply to an employer, an employee or an employee organisation because of subsection (2), the modern award applies to the employer, employee or organisation.

Subdivision CInteraction between one or more enterprise agreements

58  Only one enterprise agreement can apply to an employee

Only one enterprise agreement can apply to an employee

 (1) Only one enterprise agreement can apply to an employee at a particular time.

General rule—later agreement does not apply until earlier agreement passes its nominal expiry date

 (2) If:

 (a) an enterprise agreement (the earlier agreement) applies to an employee in relation to particular employment; and

 (b) another enterprise agreement (the later agreement) that covers the employee in relation to the same employment comes into operation; and

 (c) subsection (3) (which deals with a supported bargaining agreement replacing a single enterprise agreement) does not apply;

then:

 (d) if the earlier agreement has not passed its nominal expiry date:

 (i) the later agreement cannot apply to the employee in relation to that employment until the earlier agreement passes its nominal expiry date; and

 (ii) the earlier agreement ceases to apply to the employee in relation to that employment when the earlier agreement passes its nominal expiry date, and can never so apply again; or

 (e) if the earlier agreement has passed its nominal expiry date—the earlier agreement ceases to apply to the employee when the later agreement comes into operation, and can never so apply again.

Special rule—supported bargaining agreement replaces singleenterprise agreement

 (3) If:

 (a) a singleenterprise agreement applies to an employee in relation to particular employment; and

 (b) a supported bargaining agreement that covers the employee in relation to the same employment comes into operation;

the singleenterprise agreement ceases to apply to the employee when the supported bargaining agreement comes into operation, and can never so apply again.

Part 22The National Employment Standards

Division 1Introduction

59  Guide to this Part

This Part contains the National Employment Standards.

Division 2 identifies the National Employment Standards, the detail of which is set out in Divisions 3 to 12.

Division 13 contains miscellaneous provisions relating to the National Employment Standards.

The National Employment Standards are minimum standards that apply to the employment of national system employees. Part 21 (which deals with the core provisions for this Chapter) contains the obligation for employers to comply with the National Employment Standards (see section 44).

The National Employment Standards also underpin what can be included in modern awards and enterprise agreements. Part 21 provides that the National Employment Standards cannot be excluded by modern awards or enterprise agreements, and contains other provisions about the interaction between the National Employment Standards and modern awards or enterprise agreements (see sections 55 and 56).

Divisions 2 and 3 of Part 63 extend the operation of the parental leave and notice of termination provisions of the National Employment Standards to employees who are not national system employees.

60  Meanings of employee and employer

  In this Part, employee means a national system employee, and employer means a national system employer.

Note: See also Division 2 of Part 64A (TCF contract outworkers taken to be employees in certain circumstances).

Division 2The National Employment Standards

61  The National Employment Standards are minimum standards applying to employment of employees

 (1) This Part sets minimum standards that apply to the employment of employees which cannot be displaced, even if an enterprise agreement includes terms of the kind referred to in subsection 55(5).

Note: Subsection 55(5) allows enterprise agreements to include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards.

 (2) The minimum standards relate to the following matters:

 (a) maximum weekly hours (Division 3);

 (b) requests for flexible working arrangements (Division 4);

 (ba) offers and requests for casual conversion (Division 4A);

 (c) parental leave and related entitlements (Division 5);

 (d) annual leave (Division 6);

 (e) personal/carer’s leave, compassionate leave and paid family and domestic violence leave (Division 7);

 (f) community service leave (Division 8);

 (g) long service leave (Division 9);

 (h) public holidays (Division 10);

 (i) notice of termination and redundancy pay (Division 11);

 (j) Fair Work Information Statement (Division 12).

 (3) Divisions 3 to 12 constitute the National Employment Standards.

Division 3Maximum weekly hours

62  Maximum weekly hours

Maximum weekly hours of work

 (1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:

 (a) for a fulltime employee—38 hours; or

 (b) for an employee who is not a fulltime employee—the lesser of:

 (i) 38 hours; and

 (ii) the employee’s ordinary hours of work in a week.

Employee may refuse to work unreasonable additional hours

 (2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.

Determining whether additional hours are reasonable

 (3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:

 (a) any risk to employee health and safety from working the additional hours;

 (b) the employee’s personal circumstances, including family responsibilities;

 (c) the needs of the workplace or enterprise in which the employee is employed;

 (d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;

 (e) any notice given by the employer of any request or requirement to work the additional hours;

 (f) any notice given by the employee of his or her intention to refuse to work the additional hours;

 (g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;

 (h) the nature of the employee’s role, and the employee’s level of responsibility;

 (i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;

 (j) any other relevant matter.

Authorised leave or absence treated as hours worked

 (4) For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised:

 (a) by the employee’s employer; or

 (b) by or under a term or condition of the employee’s employment; or

 (c) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law.

63  Modern awards and enterprise agreements may provide for averaging of hours of work

 (1) A modern award or enterprise agreement may include terms providing for the averaging of hours of work over a specified period. The average weekly hours over the period must not exceed:

 (a) for a fulltime employee—38 hours; or

 (b) for an employee who is not a fulltime employee—the lesser of:

 (i) 38 hours; and

 (ii) the employee’s ordinary hours of work in a week.

 (2) The terms of a modern award or enterprise agreement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).

Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with averaging terms in a modern award or enterprise agreement (whether the terms comply with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62. The averaging terms will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).

64  Averaging of hours of work for award/agreement free employees

 (1) An employer and an award/agreement free employee may agree in writing to an averaging arrangement under which hours of work over a specified period of not more than 26 weeks are averaged. The average weekly hours over the specified period must not exceed:

 (a) for a fulltime employee—38 hours; or

 (b) for an employee who is not a fulltime employee—the lesser of:

 (i) 38 hours; and

 (ii) the employee’s ordinary hours of work in a week.

 (2) The agreed averaging arrangement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).

Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with an agreed averaging arrangement (whether the arrangement complies with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62. The averaging arrangement will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).

Division 4Requests for flexible working arrangements

65  Requests for flexible working arrangements

Employee may request change in working arrangements

 (1) If:

 (a) any of the circumstances referred to in subsection (1A) apply to an employee; and

 (b) the employee would like to change his or her working arrangements because of those circumstances;

then the employee may request the employer for a change in working arrangements relating to those circumstances.

Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

 (1A) The following are the circumstances:

 (aa) the employee is pregnant;

 (a) the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;

 (b) the employee is a carer (within the meaning of the Carer Recognition Act 2010);

 (c) the employee has a disability;

 (d) the employee is 55 or older;

 (e) the employee is experiencing family and domestic violence;

 (f) the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing family and domestic violence.

 (1B) To avoid doubt, and without limiting subsection (1), an employee who:

 (a) is a parent, or has responsibility for the care, of a child; and

 (b) is returning to work after taking leave in relation to the birth or adoption of the child;

may request to work parttime to assist the employee to care for the child.

 (2) The employee is not entitled to make the request unless:

 (a) for an employee other than a casual employee—the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or

 (b) for a casual employee—the employee:

 (i) is, immediately before making the request, a regular casual employee of the employer who has been employed on that basis for a sequence of periods of employment during a period of at least 12 months; and

 (ii) has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

 (2A) For the purposes of applying paragraph (2)(a) in relation to an employee who has had their employment converted under Division 4A of Part 22, any period for which the employee was a regular casual employee of the employer is taken to be continuous service for the purposes of that paragraph.

Formal requirements

 (3) The request must:

 (a) be in writing; and

 (b) set out details of the change sought and of the reasons for the change.

Agreeing to the request

65A  Responding to requests for flexible working arrangements

Responding to the request

 (1) If, under subsection 65(1), an employee requests an employer for a change in working arrangements relating to circumstances that apply to the employee, the employer must give the employee a written response to the request within 21 days.

 (2) The response must:

 (a) state that the employer grants the request; or

 (b) if, following discussion between the employer and the employee, the employer and the employee agree to a change to the employee’s working arrangements that differs from that set out in the request—set out the agreed change; or

 (c) subject to subsection (3)—state that the employer refuses the request and include the matters required by subsection (6).

 (3) The employer may refuse the request only if:

 (a) the employer has:

 (i) discussed the request with the employee; and

 (ii) genuinely tried to reach an agreement with the employee about making changes to the employee’s working arrangements to accommodate the circumstances mentioned in subsection (1); and

 (b) the employer and the employee have not reached such an agreement; and

 (c) the employer has had regard to the consequences of the refusal for the employee; and

 (d) the refusal is on reasonable business grounds.

Note: An employer’s grounds for refusing a request may be taken to be reasonable business grounds, or not to be reasonable business grounds, in certain circumstances: see subsection 65C(5).

 (4) To avoid doubt, subparagraph (3)(a)(ii) does not require the employer to agree to a change to the employee’s working arrangements if the employer would have reasonable business grounds for refusing a request for the change.

Reasonable business grounds for refusing requests

 (5) Without limiting what are reasonable business grounds for the purposes of paragraph (3)(d) and subsection (4), reasonable business grounds for refusing a request include the following:

 (a) that the new working arrangements requested would be too costly for the employer;

 (b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested;

 (c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested;

 (d) that the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity;

 (e) that the new working arrangements requested would be likely to have a significant negative impact on customer service.

Note: The specific circumstances of the employer, including the nature and size of the enterprise carried on by the employer, are relevant to whether the employer has reasonable business grounds for refusing a request for the purposes of paragraph (3)(d) and subsection (4). For example, if the employer has only a small number of employees, there may be no capacity to change the working arrangements of other employees to accommodate the request (see paragraph (5)(b)).

Employer must explain grounds for refusal

 (6) If the employer refuses the request, the written response under subsection (1) must:

 (a) include details of the reasons for the refusal; and

 (b) without limiting paragraph (a) of this subsection:

 (i) set out the employer’s particular business grounds for refusing the request; and

 (ii) explain how those grounds apply to the request; and

 (c) either:

 (i) set out the changes (other than the requested change) in the employee’s working arrangements that would accommodate, to any extent, the circumstances mentioned in subsection (1) and that the employer would be willing to make; or

 (ii) state that there are no such changes; and

 (d) set out the effect of sections 65B and 65C.

Genuinely trying to reach an agreement

 (7) This section does not affect, and is not affected by, the meaning of the expression “genuinely trying to reach an agreement”, or any variant of the expression, as used elsewhere in this Act.

65B  Disputes about the operation of this Division

Application of this section

 (1) This section applies to a dispute between an employer and an employee about the operation of this Division if:

 (a) the dispute relates to a request by the employee to the employer under subsection 65(1) for a change in working arrangements relating to circumstances that apply to the employee; and

 (b) either:

 (i) the employer has refused the request; or

 (ii) 21 days have passed since the employee made the request, and the employer has not given the employee a written response to the request under section 65A.

Note 1: Modern awards and enterprise agreements must include a term that provides a procedure for settling disputes in relation to the National Employment Standards (see paragraph 146(b) and subsection 186(6)).

Note 2: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards. However, a term of a modern award or an enterprise agreement has no effect to the extent it contravenes section 55 (see section 56).

Resolving disputes

 (2) In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level, by discussions between the parties.

FWC may deal with disputes

 (3) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the FWC.

 (4) If a dispute is referred under subsection (3):

 (a) the FWC must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances; and

 (b) the FWC may deal with the dispute by arbitration in accordance with section 65C.

Note: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate. The FWC commonly deals with disputes by conciliation. The FWC may also deal with the dispute by mediation, making a recommendation or expressing an opinion (see subsection 595(2)).

Representatives

 (5) The employer or employee may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of:

 (a) resolving the dispute; or

 (b) the FWC dealing with the dispute.

Note: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).

65C  Arbitration

 (1) For the purposes of paragraph 65B(4)(b), the FWC may deal with the dispute by arbitration by making any of the following orders:

 (a) if the employer has not given the employee a written response to the request under section 65A—an order that the employer be taken to have refused the request;

 (b) if the employer refused the request:

 (i) an order that it would be appropriate for the grounds on which the employer refused the request to be taken to have been reasonable business grounds; or

 (ii) an order that it would be appropriate for the grounds on which the employer refused the request to be taken not to have been reasonable business grounds;

 (e) if the FWC is satisfied that the employer has not responded, or has not responded adequately, to the employee’s request under section 65A—an order that the employer take such further steps as the FWC considers appropriate, having regard to the matters in section 65A;

 (f) subject to subsection (3) of this section:

 (i) an order that the employer grant the request; or

 (ii) an order that the employer make specified changes (other than the requested changes) in the employee’s working arrangements to accommodate, to any extent, the circumstances mentioned in paragraph 65B(1)(a).

Note: An order by the FWC under paragraph (e) could, for example, require the employer to give a response, or further response, to the employee’s request, and could set out matters that must be included in the response or further response.

 (2) In making an order under subsection (1), the FWC must take into account fairness between the employer and the employee.

 (2A) The FWC must not make an order under paragraph (1)(e) or (f) that would be inconsistent with:

 (a) a provision of this Act; or

 (b) a term of a fair work instrument (other than an order made under that paragraph) that, immediately before the order is made, applies to the employer and employee.

 (3) The FWC may make an order under paragraph (1)(f) only if the FWC is satisfied that there is no reasonable prospect of the dispute being resolved without the making of such an order.

 (4) If the FWC makes an order under paragraph (1)(a), the employer is taken to have refused the request.

 (5) If the FWC makes an order under paragraph (1)(b), the grounds on which the employer refuses the request are taken:

 (a) for an order made under subparagraph (1)(b)(i)—to be reasonable business grounds; or

 (b) for an order made under subparagraph (1)(b)(ii)—not to be reasonable business grounds.

Contravening an order under subsection (1)

 (6) A person must not contravene a term of an order made under subsection (1).

Note: This subsection is a civil remedy provision (see Part 41).

66  State and Territory laws that are not excluded

  This Act is not intended to apply to the exclusion of laws of a State or Territory that provide employee entitlements in relation to flexible working arrangements, to the extent that those entitlements are more beneficial to employees than the entitlements under this Division.

Division 4AOffers and requests for casual conversion

Subdivision AApplication of Division

66A  Division applies to casual employees etc.

 (1) This Division applies in relation to an employee who is a casual employee.

 (2) A reference in this Division to fulltime employment or parttime employment is taken not to include employment for a specified period of time, for a specified task or for the duration of a specified season.

Subdivision BEmployer offers for casual conversion

66AA  Subdivision does not apply to small business employers

  This Subdivision does not apply in relation to an employer that is a small business employer.

66B  Employer offers

 (1) Subject to section 66C, an employer must make an offer to a casual employee under this section if:

 (a) the employee has been employed by the employer for a period of 12 months beginning the day the employment started; and

 (b) during at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a fulltime employee or a parttime employee (as the case may be).

Note: An employee who meets the requirements of paragraphs (a) and (b) would also be a regular casual employee because the employee has been employed by the employer on a regular and systematic basis.

 (2) The offer must:

 (a) be in writing; and

 (b) be an offer for the employee to convert:

 (i) for an employee that has worked the equivalent of fulltime hours during the period referred to in paragraph (1)(b)—to fulltime employment; or

 (ii) for an employee that has worked less than the equivalent of fulltime hours during the period referred to in paragraph (1)(b)—to parttime employment that is consistent with the regular pattern of hours worked during that period; and

 (c) be given to the employee within the period of 21 days after the end of the 12 month period referred to in paragraph (1)(a).

Note: If an offer is accepted, the conversion to fulltime employment or parttime employment has effect for all purposes (see section 66K).

 (3) For the purposes of paragraph (2)(b), in determining whether an award/agreement free employee has worked the equivalent of fulltime hours, regard may be had to the hours of work of any other fulltime employees of the employer employed in the same position as (or in a position that is comparable to) the position of the employee.

66C  When employer offers not required

 (1) Despite section 66B, an employer is not required to make an offer under that section to a casual employee if:

 (a) there are reasonable grounds not to make the offer; and

 (b) the reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time of deciding not to make the offer.

 (2) Without limiting paragraph (1)(a), reasonable grounds for deciding not to make an offer include the following:

 (a) the employee’s position will cease to exist in the period of 12 months after the time of deciding not to make the offer;

 (b) the hours of work which the employee is required to perform will be significantly reduced in that period;

 (c) there will be a significant change in either or both of the following in that period:

 (i) the days on which the employee’s hours of work are required to be performed;

 (ii) the times at which the employee’s hours of work are required to be performed;

  which cannot be accommodated within the days or times the employee is available to work during that period;

 (d) making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.

 (3) An employer must give written notice to a casual employee in accordance with subsection (4) if:

 (a) the employer decides under subsection (1) not to make an offer to the employee; or

 (b) the employee has been employed by the employer for the 12 month period referred to in paragraph 66B(1)(a) but does not meet the requirement referred to in paragraph 66B(1)(b).

Note: If an employer fails to give notice to a casual employee, the employee has a residual right to request conversion to fulltime or parttime employment in certain circumstances: see Subdivision C.

 (4) The notice must:

 (a) advise the employee that the employer is not making an offer under section 66B; and

 (b) include details of the reasons for not making the offer (including any grounds on which the employer has decided to not make the offer); and

 (c) be given to the employee within 21 days after the end of the 12 month period referred to in paragraph 66B(1)(a).

66D  Employee must give a response

 (1) The employee must give the employer a written response to the offer within 21 days after the offer is given to the employee, stating whether the employee accepts or declines the offer.

 (2) If the employee fails to give the employer a written response in accordance with subsection (1), the employee is taken to have declined the offer.

66E  Acceptances of offers

 (1) If the employee accepts the offer, the employer must, within 21 days after the day the acceptance is given to the employer, give written notice to the employee of the following:

 (a) whether the employee is converting to fulltime employment or parttime employment;

 (b) the employee’s hours of work after the conversion takes effect;

 (c) the day the employee’s conversion to fulltime employment or parttime employment takes effect.

 (2) However, the employer must discuss with the employee the matters the employer intends to specify for the purposes of paragraphs (1)(a), (b) and (c) before giving the notice.

 (3) The day specified for the purposes of paragraph (1)(c) must be the first day of the employee’s first full pay period that starts after the day the notice is given, unless the employee and employer agree to another day.

Subdivision CResidual right to request casual conversion

66F  Employee requests

 (1) A casual employee may make a request of an employer under this section if:

 (a) the employee has been employed by the employer for a period of at least 12 months beginning the day the employment started; and

 (b) the employee has, in the period of 6 months ending the day the request is given, worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a fulltime employee or a parttime employee (as the case may be); and

 (c) all of the following apply:

 (i) the employee has not, at any time during the period referred to in paragraph (b), refused an offer made to the employee under section 66B;

 (ii) the employer has not, at any time during that period, given the employee a notice in accordance with paragraph 66C(3)(a) (which deals with notice of employer decisions not to make offers on reasonable grounds);

 (iii) the employer has not, at any time during that period, given a response to the employee under section 66G refusing a previous request made under this section;

 (iv) if the employer is not a small business employer—the request is not made during the period of 21 days after the period referred to in paragraph 66B(1)(a).

Note: Nothing in this Subdivision prevents an employee from requesting to convert to fulltime or parttime employment outside the provisions of this Division, or prevents an employer from granting such a request.

 (2) The request must:

 (a) be in writing; and

 (b) be a request for the employee to convert:

 (i) for an employee that has worked the equivalent of fulltime hours during the period referred to in paragraph (1)(b)—to fulltime employment; or

 (ii) for an employee that has worked less than the equivalent of fulltime hours during the period referred to in paragraph (1)(b)—to parttime employment that is consistent with the regular pattern of hours worked during that period; and

 (c) be given to the employer.

Note: If a request is accepted, the conversion to fulltime employment or parttime employment has effect for all purposes (see section 66K).

 (3) For the purposes of paragraph (1)(b), in determining whether an award/agreement free employee has worked the equivalent of fulltime hours, regard may be had to the hours of work of any other fulltime employees of the employer employed in the same position as (or in a position that is comparable to) the position of the employee.

66G  Employer must give a response

  The employer must give the employee a written response to the request within 21 days after the request is given to the employer, stating whether the employer grants or refuses the request.

66H  Refusals of requests

 (1) The employer must not refuse the request unless:

 (a) the employer has consulted the employee; and

 (b) there are reasonable grounds to refuse the request; and

 (c) the reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time of refusing the request.

 (2) Without limiting paragraph (1)(b), reasonable grounds for refusing the request include the following:

 (a) it would require a significant adjustment to the employee’s hours of work in order for the employee to be employed as a fulltime employee or parttime employee;

 (b) the employee’s position will cease to exist in the period of 12 months after giving the request;

 (c) the hours of work which the employee is required to perform will be significantly reduced in the period of 12 months after giving the request;

 (d) there will be a significant change in either or both of the following in the period of 12 months after giving the request:

 (i) the days on which the employee’s hours of work are required to be performed;

 (ii) the times at which the employee’s hours of work are required to be performed;

  which cannot be accommodated within the days or times the employee is available to work during that period;

 (e) granting the request would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.

 (3) If the employer refuses the request, the written response under section 66G must include details of the reasons for the refusal.

66J  Grants of requests

 (1) If the employer grants the request, the employer must, within 21 days after the day the request is given to the employer, give written notice to the employee of the following:

 (a) whether the employee is converting to fulltime employment or parttime employment;

 (b) the employee’s hours of work after the conversion takes effect;

 (c) the day the employee’s conversion to fulltime employment or parttime employment takes effect.

 (2) However, the employer must discuss with the employee the matters the employer intends to specify for the purposes of paragraphs (1)(a), (b) and (c) before giving the notice.

 (3) The day specified for the purposes of paragraph (1)(c) must be the first day of the employee’s first full pay period that starts after the day the notice is given, unless the employee and employer agree to another day.

 (4) To avoid doubt, the notice may be included in the written response under section 66G.

Subdivision DOther provisions

66K  Effect of conversion

  To avoid doubt, an employee is taken, on and after the day specified in a notice for the purposes of paragraph 66E(1)(c) or 66J(1)(c), to be a fulltime employee or parttime employee of the employer for the purposes of the following:

 (a) this Act and any other law of the Commonwealth;

 (b) a law of a State or Territory;

 (c) any fair work instrument that applies to the employee;

 (d) the employee’s contract of employment.

66L  Other rights and obligations

 (1) An employer must not reduce or vary an employee’s hours of work, or terminate an employee’s employment, in order to avoid any right or obligation under this Division.

Note: The general protections provisions in Part 31 also prohibit the taking of adverse action by an employer against an employee (which includes a casual employee) because of a workplace right of the employee under this Division.

 (2) Nothing in this Division:

 (a) requires an employee to convert to fulltime employment or parttime employment; or

 (b) permits an employer to require an employee to convert to fulltime employment or parttime employment; or

 (c) requires an employer to increase the hours of work of an employee who requests conversion to fulltime employment or parttime employment under this Division.

66M  Disputes about the operation of this Division

Application of this section

 (1) This section applies to a dispute between an employer and employee about the operation of this Division.

 (2) However, this section does not apply in relation to the dispute if any of the following includes a term that provides a procedure for dealing with the dispute:

 (a) a fair work instrument that applies to the employee;

 (b) the employee’s contract of employment;

 (c) another written agreement between the employer and employee.

Note: Modern awards and enterprise agreements must include a term that provides a procedure for settling disputes in relation to the National Employment Standards (see paragraph 146(b) and subsection 186(6)).

Resolving disputes

 (3) In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level, by discussions between the parties.

FWC may deal with disputes

 (4) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the FWC.

 (5) If a dispute is referred under subsection (4):

 (a) the FWC must deal with the dispute; and

 (b) if the parties notify the FWC that they agree to the FWC arbitrating the dispute—the FWC may deal with the dispute by arbitration.

Note: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate, including by mediation, conciliation, making a recommendation or expressing an opinion (see subsection 595(2)).

Representatives

 (6) The employer or employee to the dispute may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of resolving, or the FWC dealing with, the dispute.

Note: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).

Division 5Parental leave and related entitlements

Subdivision AGeneral

67  General rule—employee must have completed at least 12 months of service

Employees other than casual employees

 (1) An employee, other than a casual employee, is not entitled to leave under this Division (other than unpaid preadoption leave or unpaid no safe job leave) unless the employee has, or will have, completed at least 12 months of continuous service with the employer immediately before the date that applies under subsection (3).

 (1A) For the purposes of applying subsection (1) in relation to an employee who has had their employment converted under Division 4A of Part 22, any period for which the employee was a regular casual employee of the employer is taken to be continuous service for the purposes of that subsection.

Casual employees

 (2) A casual employee, is not entitled to leave (other than unpaid preadoption leave or unpaid no safe job leave) under this Division unless:

 (a) the employee is, or will be, immediately before the date that applies under subsection (3), a regular casual employee of the employer who has been employed on that basis for a sequence of periods of employment during a period of at least 12 months; and

 (b) but for:

 (i) the birth or expected birth of the child; or

 (ii) the placement or the expected placement of the child;

  the employee would have a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

Date at which employee must have completed 12 months of service

 (3) For the purposes of subsections (1) and (2), the date that applies is:

 (a) if the leave is:

 (i) birthrelated leave starting before the birth of the child; or

 (ii) unpaid special parental leave;

  the expected date of birth of the child; or

 (b) in any other case—the date on which the employee’s period of leave is to start.

Meaning of birthrelated leave

 (4) Birthrelated leave means leave of either of the following kinds:

 (a) unpaid parental leave taken in association with the birth of a child (see section 70);

 (b) unpaid special parental leave (see section 80).

Meaning of adoptionrelated leave

 (5) Adoptionrelated leave means leave of either of the following kinds:

 (a) unpaid parental leave taken in association with the placement of a child for adoption (see section 70);

 (b) unpaid preadoption leave (see section 85).

Meaning of day of placement

 (6) The day of placement, in relation to the adoption of a child by an employee, means the earlier of the following days:

 (a) the day on which the employee first takes custody of the child for the adoption;

 (b) the day on which the employee starts any travel that is reasonably necessary to take custody of the child for the adoption.

68  General rule for adoptionrelated leave—child must be under 16 etc.

  An employee is not entitled to adoptionrelated leave unless the child that is, or is to be, placed with the employee for adoption:

 (a) is, or will be, under 16 as at the day of placement, or the expected day of placement, of the child; and

 (b) has not, or will not have, lived continuously with the employee for a period of 6 months or more as at the day of placement, or the expected day of placement, of the child; and

 (c) is not (otherwise than because of the adoption) a child of the employee or the employee’s spouse or de facto partner.

69  Transfer of employment situations in which employee is entitled to continue on leave etc.

 (1) If:

 (a) there is a transfer of employment in relation to an employee; and

 (b) the employee has already started a period of leave under this Division when the employee’s employment with the first employer ends;

the employee is entitled to continue on that leave for the rest of that period.

 (2) If:

 (a) there is a transfer of employment in relation to an employee; and

 (b) the employee has, in relation to the first employer, already taken a step that is required or permitted by a provision of this Division in relation to taking a period of leave;

the employee is taken to have taken the step in relation to the second employer.

Note: Steps covered by this subsection include (for example) complying with a notice or evidence requirement of section 74 in relation to the first employer.

Subdivision BParental leave

70  Entitlement to unpaid parental leave

  An employee is entitled to 12 months of unpaid parental leave if:

 (a) the leave is associated with:

 (i) the birth of a child of the employee or the employee’s spouse or de facto partner; or

 (ii) the placement of a child with the employee for adoption; and

 (b) the employee has or will have a responsibility for the care of the child.

Note: The employee’s entitlement under this section may be affected by other provisions of this Division.

71  The period of leave

Application of this section

 (1) This section applies to an employee who intends to take unpaid parental leave.

Leave must be taken in single continuous period

 (2) The employee must take the leave in a single continuous period.

Note 1: An employee may take a form of paid leave at the same time as the employee is on unpaid parental leave (see section 79).

Note 2: For provisions affecting the rule in this subsection, see:

(a) subsection 72A(11) (flexible unpaid parental leave); and

(b) subsection 73(4) (pregnant employee may be required to take unpaid parental leave within 6 weeks before the birth); and

(c) paragraph 78A(2)(b) (permitted work periods while child is hospitalised); and

(d) subsection 79A(1) (keeping in touch days).

When birthrelated leave must start and end

 (3) If the leave is birthrelated leave for an employee who is pregnant with, or gives birth to, the child, the period of leave may start:

 (a) up to 6 weeks before the expected date of birth of the child; or

 (b) earlier, if the employer and employee so agree; or

 (c) during the 24month period starting on the date of birth of the child;

but must end during the 24month period starting on the date of birth of the child.

Note 1: If the employee is not fit for work, the employee may be entitled to:

(a) paid personal leave under Subdivision A of Division 7; or

(b) unpaid special parental leave under section 80.

Note 2: If it is inadvisable for the employee to continue in the employee’s present position, the employee may be entitled:

(a) to be transferred to an appropriate safe job under section 81; or

(b) to paid no safe job leave under section 81A; or

(c) to unpaid no safe job leave under section 82A.

Note 3: Section 344 prohibits the exertion of undue influence or undue pressure on the employee in relation to a decision by the employee whether to agree as mentioned in paragraph (3)(b) of this section.

 (4) If the leave is birthrelated leave but subsection (3) does not apply, the period of leave must start and end during the 24month period starting on the date of birth of the child.

When adoptionrelated leave must start and end

 (5) If the leave is adoptionrelated leave, the period of leave must start and end during the 24month period starting on the day of placement of the child.

Limit on amount of leave

 (6) The employee may take unpaid parental leave under this section only if the period of leave is no longer than 12 months, less the employee’s notional flexible period.

Note: An employee is entitled under section 76 to request an extension of the period of leave beyond the employee’s available parental leave period. However, the period of leave may not be extended beyond 24 months after the date of birth or day of placement of the child (see subsection 76(7)).

72A  Flexible unpaid parental leave

Taking leave during 24 months starting on date of birth or day of placement

 (1) An employee may take up to 100 days (or, if a higher number of days is prescribed by the regulations, that higher number of days) of unpaid parental leave (flexible unpaid parental leave) during the 24month period starting on the date of birth or day of placement of the child if the requirements of this section are satisfied in relation to the leave.

Note 1: The flexible unpaid parental leave is unpaid parental leave and so comes out of the employee’s entitlement to 12 months of unpaid parental leave under section 70.

Note 2: The number of days of flexible unpaid parental leave that the employee takes must not be more than the number of flexible days notified to the employer under subsection 74(3C) (subject to any agreement under subsection 74(3D)).

 (2) Flexible unpaid parental leave under subsection (1) is available in full to parttime and casual employees.

Taking leave that starts up to 6 weeks before the expected date of birth of the child

 (2A) A pregnant employee may take unpaid parental leave (flexible unpaid parental leave) during the period that starts 6 weeks before the expected date of birth of the child if the requirements of this section are satisfied in relation to the leave.

Note 1: The flexible unpaid parental leave is unpaid parental leave and so comes out of the employee’s entitlement to 12 months of unpaid parental leave under section 70.

Note 2: The number of days of flexible unpaid parental leave that the employee takes must not be more than the number of flexible days notified to the employer under subsection 74(3C) (subject to any agreement under subsection 74(3D)).

 (2B) Flexible unpaid parental leave under subsection (2A) is available in full to pregnant parttime employees and pregnant casual employees.

 (2C) The amount of flexible unpaid parental leave to which an employee is entitled under subsection (1) in relation to the child is reduced by the number of days of flexible unpaid parental leave taken by the employee under subsection (2A) in relation to the child.

How flexible unpaid parental leave may be taken

 (3) The employee must take the flexible unpaid parental leave as:

 (a) a single continuous period of one or more days; or

 (b) separate periods of one or more days each.

Effect of taking unpaid parental leave under other provisions

 (4) The employee may take the flexible unpaid parental leave whether or not the employee has taken unpaid parental leave under another provision of this Division in relation to the child.

 (5) However, the employee may take flexible unpaid parental leave after taking one or more periods of unpaid parental leave under another provision of this Division only if the total of those periods (disregarding any extension under section 76A) is no longer than 12 months, less the employee’s notional flexible period.

Meaning of notional flexible period

 (6) An employee’s notional flexible period is the period during which the employee would be on flexible unpaid parental leave if the employee took leave for all the employee’s flexible days in a single continuous period. For this purpose, the employee’s flexible days are the flexible days notified to the employer under subsection 74(3C) (subject to any agreement under subsection 74(3D)).

 (7) For the purposes of subsection (6), assume that:

 (a) the employee ordinarily works each day that is not a Saturday or a Sunday; and

 (b) there are no public holidays during the period.

Multiple births

 (10) An employee is not entitled to take flexible unpaid parental leave in relation to a child if:

 (a) the child and another child:

 (i) are born during the same multiple birth; or

 (ii) are both placed with the employee for adoption and have the same day of placement; and

 (b) the employee takes flexible unpaid parental leave in relation to the other child.

Interaction with section 71

 (11) Flexible unpaid parental leave taken by an employee is an exception to the rules in section 71 about:

 (a) taking the employee’s unpaid parental leave in a single continuous period; and

 (b) when the employee’s period of unpaid parental leave must start.

 (12) Despite anything in subsection (11), flexible unpaid parental leave cannot be used to break up a period of unpaid parental leave taken under section 71.

73  Pregnant employee may be required to take unpaid parental leave within 6 weeks before the birth

Employer may ask employee to provide a medical certificate

 (1) If a pregnant employee who is entitled to unpaid parental leave (whether or not the employee has complied with section 74) continues to work during the 6 week period before the expected date of birth of the child, the employer may ask the employee to give the employer a medical certificate containing the following statements (as applicable):

 (a) a statement of whether the employee is fit for work;

 (b) if the employee is fit for work—a statement of whether it is inadvisable for the employee to continue in the employee’s present position during a stated period because of:

 (i) illness, or risks, arising out of the employee’s pregnancy; or

 (ii) hazards connected with the position.

Note: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

Employer may require employee to take unpaid parental leave

 (2) The employer may require the employee to take a period of unpaid parental leave other than flexible unpaid parental leave (the period of leave) as soon as practicable if:

 (a) the employee does not give the employer the requested certificate within 7 days after the request; or

 (b) within 7 days after the request, the employee gives the employer a medical certificate stating that the employee is not fit for work; or

 (c) the following subparagraphs are satisfied:

 (i) within 7 days after the request, the employee gives the employer a medical certificate stating that the employee is fit for work, but that it is inadvisable for the employee to continue in the employee’s present position for a stated period for a reason referred to in subparagraph (1)(b)(i) or (ii);

 (ii) the employee has not complied with the notice and evidence requirements of section 74 for taking unpaid parental leave.

Note: If the medical certificate contains a statement as referred to in subparagraph (c)(i) and the employee has complied with the notice and evidence requirements of section 74, then the employee is entitled to be transferred to a safe job (see section 81) or to paid no safe job leave (see section 81A).

When the period of leave must end

 (3) The period of leave must not end later than the earlier of the following:

 (a) the end of the pregnancy;

 (b) if the employee has given the employer notice of the taking of a period of leave connected with the birth of the child (whether it is unpaid parental leave or some other kind of leave)—the start date of that leave.

Special rules about the period of leave

 (4) The period of leave is an exception to the rules in section 71 about:

 (a) taking the employee’s unpaid parental leave in a single continuous period; and

 (b) when the employee’s period of unpaid parental leave must start.

Note: The period of leave is unpaid parental leave and so comes out of the employee’s entitlement to 12 months of unpaid parental leave under section 70.

 (5) The employee is not required to comply with section 74 in relation to the period of leave.

74  Notice and evidence requirements

General requirement to give notice of taking leave

 (1) An employee must give the employee’s employer written notice of the taking of unpaid parental leave under section 71, or flexible unpaid parental leave, or both, by the employee.

Notice requirements

 (2)  The employee must give the notice to the employer:

 (a) at least 10 weeks before starting any of the leave covered by the notice; or

 (b) if that is not practicable, and:

 (i) the first or only period of leave covered by the notice is leave to be taken under section 71; or

 (ii) any of the leave covered by the notice starts before the child’s date of birth or expected date of birth;

  as soon as practicable (which may be a time after any of the leave covered by the notice has started).

 (2A) However, if the first or only period of leave covered by the notice is leave to be taken under section 72A, the notice may be given at any later time if the employer agrees.

 (3) If any of the leave covered by the notice is to be taken under section 71, the notice must specify the intended start and end dates of the leave to be taken under section 71.

 (3C) If any of the leave covered by the notice is to be taken under section 72A, the notice must specify the total number of days (flexible days) of flexible unpaid parental leave that the employee intends to take in relation to the child.

 (3D) If the employer agrees, the employee may:

 (a) reduce the number of flexible days, including by reducing the number of flexible days to zero; or

 (b) increase the number of flexible days, but not so as to increase the number of flexible days above 100 (or, if a higher number of days is prescribed by regulations made for the purposes of subsection 72A(1), that higher number).

Taking leave under section 71—confirming or changing intended start and end dates

 (4) If any of the leave covered by the notice is to be taken under section 71, then at least 4 weeks before the intended start date specified in the notice given under subsection (1), the employee must:

 (a) confirm the intended start and end dates of the leave to be taken under section 71; or

 (b) advise the employer of any changes to the intended start and end dates of the leave to be taken under section 71;

unless it is not practicable to do so.

Taking flexible unpaid parental leave—notifying days on which employee will take leave

 (4B) The employee must give the employer written notice of a flexible day on which the employee will take flexible unpaid parental leave:

 (a) at least 4 weeks before that day; or

 (b) if that is not practicable—as soon as practicable (which may be a time after the leave has started).

Note: Whether or not it is practicable for the employee to give notice at least 4 weeks before that day will depend on the employee’s personal and family circumstances. For example, it may not be practicable for the employee to give notice at least 4 weeks before that day where the employee experiences a health issue, a pregnancy complication or an unexpected change in the employee’s child care arrangements.

 (4C) If the employer agrees, the employee may change a day on which the employee takes flexible unpaid parental leave from a day specified in a notice under subsection (4B).

Evidence requirements

 (5) An employee who has given the employee’s employer notice of the taking of unpaid parental leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person:

 (a) if the leave is birthrelated leave:

 (i) of the date of birth, or the expected date of birth, of the child; and

 (ii) that paragraph 77A(1)(a) (which deals with the stillbirth of a child) applies in relation to the employee, if relevant; or

 (b) if the leave is adoptionrelated leave:

 (i) of the day of placement, or the expected day of placement, of the child; and

 (ii) that the child is, or will be, under 16 as at the day of placement, or the expected day of placement, of the child.

 (6) Without limiting subsection (5), an employer may require the evidence referred to in paragraph (5)(a) to be a medical certificate.

Example: If the application of paragraph 77A(1)(a) (which deals with the stillbirth of a child) is relevant—certification by a medical practitioner of the child as having been delivered.

Compliance

 (7) An employee is not entitled to take unpaid parental leave under section 71, or flexible unpaid parental leave, unless the employee complies with this section.

Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

75  Extending period of unpaid parental leave—extending to use more of available parental leave period

Application of this section

 (1) This section applies if:

 (a) an employee has, in accordance with section 74, given notice of the taking of a period of unpaid parental leave (the original leave period) under section 71; and

 (b) the original leave period is less than the employee’s available parental leave period; and

 (c) the original leave period has started.

 (2) The employee’s available parental leave period is 12 months, less any periods of the following kinds:

 (b) a period of unpaid parental leave that the employee has been required to take under subsection 73(2) or 82(2);

 (d) if the employee has given notice in accordance with subsection 74(2) or (2A) of the taking of flexible unpaid parental leave—a period equal to the employee’s notional flexible period.

First extension by giving notice to employer

 (3) The employee may extend the period of unpaid parental leave taken under section 71 by giving the employee’s employer written notice of the extension at least 4 weeks before the end date of the original leave period. The notice must specify the new end date for the leave.

 (4) Only one extension is permitted under subsection (3).

Further extensions by agreement with employer

 (5) If the employer agrees, the employee may further extend the period of unpaid parental leave one or more times.

No entitlement to extension beyond available parental leave period

 (6) The employee is not entitled under this section to extend the period of unpaid parental leave beyond the employee’s available parental leave period.

76  Extending period of unpaid parental leave—extending for up to 12 months beyond available parental leave period

Employee may request further period of leave

 (1) An employee who takes unpaid parental leave under section 71 for the employee’s available parental leave period may request the employee’s employer to agree to an extension of unpaid parental leave for the employee for a further period of up to 12 months immediately following the end of the available parental leave period.

Note: Extended periods of unpaid parental leave can include keeping in touch days on which an employee performs work (see section 79A).

Making the request

 (2) The request must be in writing, and must be given to the employer at least 4 weeks before the end of the available parental leave period.

Note: The request must be made when the employee is taking unpaid parental leave under section 71.

No extension beyond 24 months after birth or placement

 (7) Despite any other provision of this Division, the employee is not entitled to extend the period of unpaid parental leave beyond 24 months after the date of birth or day of placement of the child.

76A  Responding to requests for extension of unpaid parental leave

Responding to the request

 (1) If, under subsection 76(1), an employee requests an employer to agree to an extension of unpaid parental leave for the employee for a further period of up to 12 months immediately following the end of the available parental leave period, the employer must give the employee a written response to the request within 21 days.

 (2) The response must:

 (a) state that the employer grants the request; or

 (b) if, following discussion between the employer and the employee, the employer and the employee agree to an extension of unpaid parental leave for the employee for a period that differs from the period requested—set out the agreed extended period; or

 (c) subject to subsection (3)—state that the employer refuses the request and include the matters required by subsection (6).

 (3) The employer may refuse the request only if:

 (a) the employer has:

 (i) discussed the request with the employee; and

 (ii) genuinely tried to reach an agreement with the employee about an extension of the period of unpaid parental leave for the employee; and

 (b) the employer and the employee have not reached such an agreement; and

 (c) the employer has had regard to the consequences of the refusal for the employee; and

 (d) the refusal is on reasonable business grounds.

Note: An employer’s grounds for refusing a request may be taken to be reasonable business grounds, or not to be reasonable business grounds, in certain circumstances (see subsection 76C(6)).

 (4) To avoid doubt, subparagraph (3)(a)(ii) does not require the employer to agree to an extension of the period of unpaid parental leave for the employee if the employer would have reasonable business grounds for refusing a request for the extension.

Reasonable business grounds for refusing requests

 (5) Without limiting what are reasonable business grounds for the purposes of paragraph (3)(d) and subsection (4), reasonable business grounds for refusing a request include the following:

 (a) that the extension of the period of unpaid parental leave requested by the employee would be too costly for the employer;

 (b) that there is no capacity to change the working arrangements of other employees to accommodate the extension of the period of unpaid parental leave requested by the employee;

 (c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the extension of the period of unpaid parental leave requested by the employee;

 (d) that the extension of the period of unpaid parental leave requested by the employee would be likely to result in a significant loss in efficiency or productivity;

 (e) that the extension of the period of unpaid parental leave requested by the employee would be likely to have a significant negative impact on customer service.

Note: The specific circumstances of the employer, including the nature and size of the enterprise carried on by the employer, are relevant to whether the employer has reasonable business grounds for refusing a request for the purposes of paragraph (3)(d) and subsection (4). For example, if the employer has only a small number of employees, there may be no capacity to change the working arrangements of other employees to accommodate the request (see paragraph (5)(b)).

Employer must explain grounds for refusal

 (6) If the employer refuses the request, the written response under subsection (1) must:

 (a) include details of the reasons for the refusal; and

 (b) without limiting paragraph (a) of this subsection:

 (i) set out the employer’s particular business grounds for refusing the request; and

 (ii) explain how those grounds apply to the request; and

 (c) either:

 (i) set out the extension of the period of unpaid parental leave for the employee (other than the period requested by the employee) that the employer would be willing to agree to; or

 (ii) state that there is no extension of the period that the employer would be willing to agree to; and

 (d) set out the effect of sections 76B and 76C.

Genuinely trying to reach an agreement

 (7) This section does not affect, and is not affected by, the meaning of the expression “genuinely trying to reach an agreement”, or any variant of the expression, as used elsewhere in this Act.

76B  Disputes about extension of period of unpaid parental leave

Application of this section

 (1) This section applies to a dispute between an employer and an employee that relates to a request by the employee to the employer under subsection 76(1) to agree to an extension of unpaid parental leave for the employee for a further period of up to 12 months immediately following the end of the available parental leave period if:

 (a) the employer has refused the request; or

 (b) 21 days have passed since the employee made the request, and the employer has not given the employee a written response to the request under section 76A.

Note 1: Modern awards and enterprise agreements must include a term that provides a procedure for settling disputes in relation to the National Employment Standards (see paragraph 146(b) and subsection 186(6)).

Note 2: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards. However, a term of a modern award or an enterprise agreement has no effect to the extent it contravenes section 55 (see section 56).

Resolving disputes

 (2) In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level, by discussions between the parties.

FWC may deal with disputes

 (3) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the FWC.

 (4) If a dispute is referred under subsection (3):

 (a) the FWC must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances; and

 (b) the FWC may deal with the dispute by arbitration in accordance with section 76C.

Note: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate. The FWC commonly deals with disputes by conciliation. The FWC may also deal with the dispute by mediation, making a recommendation or expressing an opinion (see subsection 595(2)).

Representatives

 (5) The employer or employee may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of:

 (a) resolving the dispute; or

 (b) the FWC dealing with the dispute.

Note: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).

76C  Arbitration

 (1) For the purposes of paragraph 76B(4)(b), the FWC may deal with the dispute by arbitration by making any of the following orders:

 (a) if the employer has not given the employee a written response to the request under section 76A—an order that the employer be taken to have refused the request;

 (b) if the employer refused the request:

 (i) an order that it would be appropriate for the grounds on which the employer refused the request to be taken to have been reasonable business grounds; or

 (ii) an order that it would be appropriate for the grounds on which the employer refused the request to be taken not to have been reasonable business grounds;

 (c) if the FWC is satisfied that the employer has not responded, or has not responded adequately, to the employee’s request under section 76A—an order that the employer take such further steps as the FWC considers appropriate, having regard to the matters in section 76A;

 (d) subject to subsection (4) of this section:

 (i) an order that the employer grant the request; or

 (ii) an order that the employer agree to an extension of unpaid parental leave for the employee for a further period of up to 12 months (other than the period requested by the employee) immediately following the end of the available parental leave period.

Note: An order by the FWC under paragraph (c) could, for example, require the employer to give a response, or further response, to the employee’s request, and could set out matters that must be included in the response or further response.

 (2) In making an order under subsection (1), the FWC must take into account fairness between the employer and the employee.

 (3) The FWC must not make an order under paragraph (1)(c) or (d) that would be inconsistent with:

 (a) a provision of this Act; or

 (b) a term of a fair work instrument (other than an order made under that paragraph) that, immediately before the order is made, applies to the employer and employee.

 (4) The FWC may make an order under paragraph (1)(d) only if the FWC is satisfied that there is no reasonable prospect of the dispute being resolved without the making of such an order.

 (5) If the FWC makes an order under paragraph (1)(a), the employer is taken to have refused the request.

 (6) If the FWC makes an order under paragraph (1)(b), the grounds on which the employer refuses the request are taken:

 (a) for an order made under subparagraph (1)(b)(i)—to be reasonable business grounds; or

 (b) for an order made under subparagraph (1)(b)(ii)—not to be reasonable business grounds.

Contravening an order under subsection (1)

 (7) A person must not contravene a term of an order made under subsection (1).

Note: This subsection is a civil remedy provision (see Part 41).

77  Reducing period of unpaid parental leave

  If the employer agrees, an employee whose period of unpaid parental leave has started may reduce the period of unpaid parental leave the employee takes.

77A  Effect of stillbirth or death of child on unpaid parental leave

Stillbirth—preserving entitlement to birthrelated leave

 (1) If:

 (a) a child is stillborn; and

 (b) an employee would have been entitled to unpaid parental leave that is birthrelated leave, if the child had been born alive;

then the employee is taken to be entitled to the unpaid parental leave, despite the stillbirth of the child.

 (2) A stillborn child is a child:

 (a) who weighs at least 400 grams at delivery or whose period of gestation was at least 20 weeks; and

 (b) who has not breathed since delivery; and

 (c) whose heart has not beaten since delivery.

 (3) The provisions of this Division have effect in relation to the employee as if the birth of a child included the stillbirth of a child.

Note: One effect of this subsection is that if the employee has not given notice in accordance with section 74 before the stillbirth of the child, the employee can do so as soon as practicable (which may be a time after the leave has started).

Stillbirth or death of child—cancelling leave or returning to work

 (4) If a child is stillborn, or dies during the 24month period starting on the child’s date of birth, then an employee who is entitled to a period of unpaid parental leave in relation to the child may:

 (a) before the period of leave starts, give the employee’s employer written notice cancelling the leave; or

 (b) if the period of leave has started, give the employee’s employer written notice that the employee wishes to return to work on a specified day.

 (5) For the purposes of paragraph (4)(b), the specified day must be at least 4 weeks after the employer receives the notice.

 (6) If the employee takes action under subsection (4), the employee’s entitlement to unpaid parental leave in relation to the child ends:

 (a) if the action is taken under paragraph (4)(a)—immediately after the cancellation of the leave; or

 (b) if the action is taken under paragraph (4)(b)—immediately before the specified day.

Interaction with section 77

 (7) Subsections (4) to (6) do not limit section 77 (which deals with the employee reducing the period of unpaid parental leave with the agreement of the employer).

78  Employee who ceases to have responsibility for care of child

 (1) This section applies to an employee who has taken unpaid parental leave in relation to a child if the employee ceases to have any responsibility for the care of the child for a reason other than because the child:

 (a) is stillborn; or

 (b) dies during the 24month period starting on the child’s date of birth.

 (2) The employer may give the employee written notice requiring the employee to return to work on a specified day.

 (3) The specified day:

 (a) must be at least 4 weeks after the notice is given to the employee; and

 (b) if the leave is birthrelated leave taken by an employee who has given birth—must not be earlier than 6 weeks after the date of birth of the child.

 (4) The employee’s entitlement to unpaid parental leave in relation to the child ends immediately before the specified day.

78A  Hospitalised children

Agreeing to not take unpaid parental leave for a period while child remains in hospital

 (1) If:

 (a) a child is required to remain in hospital after the child’s birth, or is hospitalised immediately after the child’s birth, including because:

 (i) the child was born prematurely; or

 (ii) the child developed a complication or contracted an illness during the child’s period of gestation or at birth; or

 (iii) the child developed a complication or contracted an illness following the child’s birth; and

 (b) an employee, whether before or after the birth of the child, gives notice in accordance with section 74 of the taking of a period of unpaid parental leave (the original leave period) in relation to the child;

then the employee may agree with the employee’s employer that the employee will not take unpaid parental leave for a period (the permitted work period) while the child remains in hospital.

Note: Section 344 prohibits the exertion of undue influence or undue pressure on the employee in relation to a decision by the employee whether to agree.

 (2) If the employee and employer so agree, then the following rules have effect:

 (a) the employee is taken to not be taking unpaid parental leave during the permitted work period;

 (b) the permitted work period does not break the continuity of the original leave period;

 (c) the employee is taken to have advised the employer, for the purposes of subsection 74(4), of an end date for the original leave period that is the date on which that period would end if it were extended by a period equal to the permitted work period.

Note: One effect of paragraph (b) is that, if the employee takes periods of unpaid parental leave either side of the permitted work period, the periods are still treated as a single continuous period for the purposes of section 71.

When permitted work period must start

 (3) The permitted work period must start after the birth of the child.

When permitted work period ends

 (4) The permitted work period ends at the earliest of the following:

 (a) the time agreed by the employee and employer;

 (b) the end of the day of the child’s first discharge from hospital after birth;

 (c) if the child dies before being discharged—the end of the day the child dies.

Only one permitted work period allowed

 (5) Only one period may be agreed to under subsection (1) for which the employee will not take unpaid parental leave in relation to the child.

Evidence

 (6) The employee must, if required by the employer, give the employer evidence that would satisfy a reasonable person of either or both of the following:

 (a) that paragraph (1)(a) applies in relation to the child;

 (b) that the employee is fit for work.

 (7) Without limiting subsection (6), an employer may require the evidence referred to in that subsection to be a medical certificate.

Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

79  Interaction with paid leave

 (1) This Subdivision (except for subsections (2) and (3)) does not prevent an employee from taking any other kind of paid leave while the employee is taking unpaid parental leave. If the employee does so, the taking of that other paid leave does not break the continuity of the period of unpaid parental leave.

Note: For example, if the employee has paid annual leave available, the employee may (with the employer’s agreement) take some or all of that paid annual leave at the same time as the unpaid parental leave.

 (2) While an employee is taking unpaid parental leave, the employee is not entitled to take:

 (a) paid personal/carer’s leave; or

 (b) compassionate leave, unless the permissible occasion is the stillbirth or death of the child in relation to whom the employee is taking unpaid parental leave.

 (3) An employee is not entitled to any payment under Division 8 (which deals with community service leave) in relation to activities the employee engages in while taking unpaid parental leave.

79A  Keeping in touch days

 (1) This Subdivision does not prevent an employee from performing work for the employee’s employer on a keeping in touch day while the employee is taking unpaid parental leave. If the employee does so, the performance of that work does not break the continuity of the period of unpaid parental leave.

 (2) A day on which the employee performs work for the employer during the period of leave is a keeping in touch day if:

 (a) the purpose of performing the work is to enable the employee to keep in touch with the employee’s employment in order to facilitate a return to that employment after the end of the period of leave; and

 (b) both the employee and the employer consent to the employee performing work for the employer on that day; and

 (c) the day is not within:

 (i) if the employee suggested or requested that the employee perform work for the employer on that day—14 days after the date of birth, or day of placement, of the child to which the period of leave relates; or

 (ii) otherwise—42 days after the date of birth, or day of placement, of the child; and

 (d) the employee has not already performed work for the employer or another entity on 10 days during the period of leave that were keeping in touch days.

The duration of the work the employee performs on that day is not relevant for the purposes of this subsection.

Note: The employer will be obliged, under the relevant contract of employment or industrial instrument, to pay the employee for performing work on a keeping in touch day.

 (3) The employee’s decision whether to give the consent mentioned in paragraph (2)(b) is taken, for the purposes of section 344 (which deals with undue influence or pressure), to be a decision to make, or not make, an arrangement under the National Employment Standards.

 (4) For the purposes of paragraph (2)(d), treat as 2 separate periods of unpaid parental leave:

 (a) a period of unpaid parental leave taken during the employee’s available parental leave period; and

 (b) a period of unpaid parental leave taken as an extension of the leave referred to in paragraph (a) for a further period immediately following the end of the available parental leave period.

 (5) Subsection (1) does not apply in relation to the employee on and after the first day on which the employee takes flexible unpaid parental leave in relation to the child.

79B  Unpaid parental leave not extended by paid leave or keeping in touch days

  If, during a period of unpaid parental leave, an employee:

 (a) takes paid leave; or

 (b) performs work for the employee’s employer on a keeping in touch day;

taking that leave or performing that work does not have the effect of extending the period of unpaid parental leave.

Subdivision COther entitlements

80  Unpaid special parental leave

Entitlement to unpaid special parental leave

 (1) An employee is entitled to a period of unpaid special parental leave if the employee is not fit for work during that period because:

 (a) the employee is pregnant and has a pregnancyrelated illness; or

 (b) all of the following apply:

 (i) the employee has been pregnant;

 (ii) the pregnancy ends after a period of gestation of at least 12 weeks otherwise than by the birth of a living child;

 (iii) the child is not stillborn.

Note 1: Entitlement is also affected by section 67 (which deals with the length of the employee’s service).

Note 1A: If the child is stillborn, the employee may be entitled to unpaid parental leave (see section 77A).

Note 2: If an employee has an entitlement to paid personal/carer’s leave (see section 96), the employee may take that leave instead of taking unpaid special parental leave under this section.

Notice and evidence

 (2) An employee must give the employee’s employer notice of the taking of unpaid special parental leave by the employee.

 (3) The notice:

 (a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and

 (b) must advise the employer of the period, or expected period, of the leave.

 (4) An employee who has given the employee’s employer notice of the taking of unpaid special parental leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for a reason specified in subsection (1).

 (5) Without limiting subsection (4), an employer may require the evidence referred to in that subsection to be a medical certificate.

 (6) An employee is not entitled to take unpaid special parental leave unless the employee complies with subsections (2) to (4).

 (7) Subdivision B does not apply to unpaid special parental leave.

Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

81  Transfer to a safe job

 (1) This section applies to a pregnant employee if the employee gives the employee’s employer evidence that would satisfy a reasonable person that the employee is fit for work, but that it is inadvisable for the employee to continue in the employee’s present position during a stated period (the risk period) because of:

 (a) illness, or risks, arising out of the employee’s pregnancy; or

 (b) hazards connected with that position.

Note: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

 (2) If there is an appropriate safe job available, then the employer must transfer the employee to that job for the risk period, with no other change to the employee’s terms and conditions of employment.

Note: If there is no appropriate safe job available, then the employee may be entitled to paid no safe job leave under section 81A or unpaid no safe job leave under 82A.

 (3) An appropriate safe job is a safe job that has:

 (a) the same ordinary hours of work as the employee’s present position; or

 (b) a different number of ordinary hours agreed to by the employee.

 (4) If the employee is transferred to an appropriate safe job for the risk period, the employer must pay the employee for the safe job at the employee’s full rate of pay (for the position the employee was in before the transfer) for the hours that the employee works in the risk period.

 (5) If the employee’s pregnancy ends before the end of the risk period, the risk period ends when the pregnancy ends.

 (6) Without limiting subsection (1), an employer may require the evidence to be a medical certificate.

81A  Paid no safe job leave

 (1) If:

 (a) section 81 applies to a pregnant employee but there is no appropriate safe job available; and

 (b) the employee is entitled to unpaid parental leave; and

 (c) the employee has complied with the notice and evidence requirements of section 74 for taking unpaid parental leave;

then the employee is entitled to paid no safe job leave for the risk period.

 (2) If the employee takes paid no safe job leave for the risk period, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the risk period.

82  Employee on paid no safe job leave may be asked to provide a further medical certificate

Employer may ask employee to provide a medical certificate

 (1) If an employee is on paid no safe job leave during the 6 week period before the expected date of birth of the child, the employer may ask the employee to give the employer a medical certificate stating whether the employee is fit for work.

Note: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

Employer may require employee to take unpaid parental leave

 (2) The employer may require the employee to take a period of unpaid parental leave (the period of leave) as soon as practicable if:

 (a) the employee does not give the employer the requested certificate within 7 days after the request; or

 (b) within 7 days after the request, the employee gives the employer a certificate stating that the employee is not fit for work.

Entitlement to paid no safe job leave ends

 (3) When the period of leave starts, the employee’s entitlement to paid no safe job leave ends.

When the period of leave must end etc.

 (4) Subsections 73(3), (4) and (5) apply to the period of leave.

82A  Unpaid no safe job leave

 (1) If:

 (a) section 81 applies to a pregnant employee but there is no appropriate safe job available; and

 (b) the employee is not entitled to unpaid parental leave; and

 (c) if required by the employer—the employee has given the employer evidence that would satisfy a reasonable person of the pregnancy;

then the employee is entitled to unpaid no safe job leave for the risk period.

 (2) Without limiting subsection (1), an employer may require the evidence referred to in paragraph (1)(c) to be a medical certificate.

83  Consultation with employee on unpaid parental leave

  If:

 (a) an employee is taking a period of unpaid parental leave, other than flexible unpaid parental leave; and

 (b) the employee’s employer makes a decision that will have a significant effect on the status, pay or location of the employee’s preparental leave position;

the employer must take all reasonable steps to give the employee information about, and an opportunity to discuss, the effect of the decision on that position.

84  Return to work guarantee

  On ending a period of unpaid parental leave, an employee is entitled to return to:

 (a) the employee’s preparental leave position; or

 (b) if that position no longer exists—an available position for which the employee is qualified and suited nearest in status and pay to the preparental leave position.

84A  Replacement employees

 (1) Before an employer engages an employee to perform the work of another employee who is going to take, or is taking, unpaid parental leave, the employer must notify the replacement employee:

 (a) that the engagement to perform that work is temporary; and

 (b) of the rights the employee taking unpaid parental leave has under:

 (i) subsections 77A(4) and (5) (which provide a right to cancel the leave or end the leave early if the child is stillborn or dies within 24 months); and

 (ii) section 84 (which deals with the return to work guarantee); and

 (d) of the effect of section 78 (which provides the employer with a right to require the employee taking unpaid parental leave to return to work if the employee ceases to have any responsibility for the care of the child).

 (2) Subsection (1) does not apply in relation to the taking of flexible unpaid parental leave.

85  Unpaid preadoption leave

Entitlement to unpaid preadoption leave

 (1) An employee is entitled to up to 2 days of unpaid preadoption leave to attend any interviews or examinations required in order to obtain approval for the employee’s adoption of a child.

Note: Entitlement is also affected by section 68 (which deals with the age etc. of the adopted child).

 (2) However, an employee is not entitled to take a period of unpaid preadoption leave if:

 (a) the employee could instead take some other form of leave; and

 (b) the employer directs the employee to take that other form of leave.

 (3) An employee who is entitled to a period of unpaid preadoption leave is entitled to take the leave as:

 (a) a single continuous period of up to 2 days; or

 (b) any separate periods to which the employee and the employer agree.

Notice and evidence

 (4) An employee must give the employee’s employer notice of the taking of unpaid preadoption leave by the employee.

 (5) The notice:

 (a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and

 (b) must advise the employer of the period, or expected period, of the leave.

 (6) An employee who has given the employee’s employer notice of the taking of unpaid preadoption leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken to attend an interview or examination as referred to in subsection (1).

 (7) An employee is not entitled to take unpaid preadoption leave unless the employee complies with subsections (4) to (6).

Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

Division 6Annual leave

86  Division applies to employees other than casual employees

  This Division applies to employees, other than casual employees.

87  Entitlement to annual leave

Amount of leave

 (1) For each year of service with an employer (other than periods of employment as a casual employee of the employer), an employee is entitled to:

 (a) 4 weeks of paid annual leave; or

 (b) 5 weeks of paid annual leave, if:

 (i) a modern award applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or

 (ii) an enterprise agreement applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or

 (iii) the employee qualifies for the shiftworker annual leave entitlement under subsection (3) (this relates to award/agreement free employees).

Note: Section 196 affects whether the FWC may approve an enterprise agreement covering an employee, if the employee is covered by a modern award that is in operation and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

Accrual of leave

 (2) An employee’s entitlement to paid annual leave accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee’s ordinary hours of work, and accumulates from year to year.

Note: If an employee’s employment ends during what would otherwise have been a year of service, the employee accrues paid annual leave up to when the employment ends.

Award/agreement free employees who qualify for the shiftworker entitlement

 (3) An award/agreement free employee qualifies for the shiftworker annual leave entitlement if:

 (a) the employee:

 (i) is employed in an enterprise in which shifts are continuously rostered 24 hours a day for 7 days a week; and

 (ii) is regularly rostered to work those shifts; and

 (iii) regularly works on Sundays and public holidays; or

 (b) the employee is in a class of employees prescribed by the regulations as shiftworkers for the purposes of the National Employment Standards.

 (4) However, an employee referred to in subsection (3) does not qualify for the shiftworker annual leave entitlement if the employee is in a class of employees prescribed by the regulations as not being qualified for that entitlement.

 (5) Without limiting the way in which a class may be described for the purposes of paragraph (3)(b) or subsection (4), 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;

 (c) a particular type of employment.

88  Taking paid annual leave

 (1) Paid annual leave may be taken for a period agreed between an employee and his or her employer.

 (2) The employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.

89  Employee not taken to be on paid annual leave at certain times

Public holidays

 (1) If the period during which an employee takes paid annual leave includes a day or partday that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid annual leave on that public holiday.

Other periods of leave

 (2) If the period during which an employee takes paid annual leave includes a period of any other leave (other than unpaid parental leave) under this Part, or a period of absence from employment under Division 8 (which deals with community service leave), the employee is taken not to be on paid annual leave for the period of that other leave or absence.

90  Payment for annual leave

 (1) If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

 (2) If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

91  Transfer of employment situations that affect entitlement to payment for period of untaken paid annual leave

Transfer of employment situation in which employer may decide not to recognise employee’s service with first employer

 (1) Subsection 22(5) does not apply (for the purpose of this Division) to a transfer of employment between nonassociated entities in relation to an employee, if the second employer decides not to recognise the employee’s service with the first employer (for the purpose of this Division).

Employee is not entitled to payment for untaken annual leave if service with first employer counts as service with second employer

 (2) If subsection 22(5) applies (for the purpose of this Division) to a transfer of employment in relation to an employee, the employee is not entitled to be paid an amount under subsection 90(2) for a period of untaken paid annual leave.

Note: Subsection 22(5) provides that, generally, if there is a transfer of employment, service with the first employer counts as service with the second employer.

92  Paid annual leave must not be cashed out except in accordance with permitted cashing out terms

  Paid annual leave must not be cashed out, except in accordance with:

 (a) cashing out terms included in a modern award or enterprise agreement under section 93, or

 (b) an agreement between an employer and an award/agreement free employee under subsection 94(1).

93  Modern awards and enterprise agreements may include terms relating to cashing out and taking paid annual leave

Terms about cashing out paid annual leave

 (1) A modern award or enterprise agreement may include terms providing for the cashing out of paid annual leave by an employee.

 (2) The terms must require that:

 (a) paid annual leave must not be cashed out if the cashing out would result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks; and

 (b) each cashing out of a particular amount of paid annual leave must be by a separate agreement in writing between the employer and the employee; and

 (c) the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.

Terms about requirements to take paid annual leave

 (3) A modern award or enterprise agreement may include terms requiring an employee, or allowing for an employee to be required, to take paid annual leave in particular circumstances, but only if the requirement is reasonable.

Terms about taking paid annual leave

 (4) A modern award or enterprise agreement may include terms otherwise dealing with the taking of paid annual leave.

94  Cashing out and taking paid annual leave for award/agreement free employees

Agreements to cash out paid annual leave

 (1) An employer and an award/agreement free employee may agree to the employee cashing out a particular amount of the employee’s accrued paid annual leave.

 (2) The employer and the employee must not agree to the employee cashing out an amount of paid annual leave if the agreement would result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks.

 (3) Each agreement to cash out a particular amount of paid annual leave must be a separate agreement in writing.

 (4) The employer must pay the employee at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.

Requirements to take paid annual leave

 (5) An employer may require an award/agreement free employee to take a period of paid annual leave, but only if the requirement is reasonable.

Note: A requirement to take paid annual leave may be reasonable if, for example:

(a) the employee has accrued an excessive amount of paid annual leave; or

(b) the employer’s enterprise is being shut down for a period (for example, between Christmas and New Year).

Agreements about taking paid annual leave

 (6) An employer and an award/agreement free employee may agree on when and how paid annual leave may be taken by the employee.

Note: Matters that could be agreed include, for example, the following:

(a) that paid annual leave may be taken in advance of accrual;

(b) that paid annual leave must be taken within a fixed period of time after it is accrued;

(c) the form of application for paid annual leave;

(d) that a specified period of notice must be given before taking paid annual leave.

Division 7Personal/carer’s leave, compassionate leave and paid family and domestic violence leave

Subdivision APaid personal/carer’s leave

95  Subdivision applies to employees other than casual employees

  This Subdivision applies to employees, other than casual employees.

96  Entitlement to paid personal/carer’s leave

Amount of leave

 (1) For each year of service with an employer (other than periods of employment as a casual employee of the employer), an employee is entitled to 10 days of paid personal/carer’s leave.

Accrual of leave

 (2) An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee’s ordinary hours of work, and accumulates from year to year.

97  Taking paid personal/carer’s leave

  An employee may take paid personal/carer’s leave if the leave is taken:

 (a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or

 (b) to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:

 (i) a personal illness, or personal injury, affecting the member; or

 (ii) an unexpected emergency affecting the member.

Note 1: The notice and evidence requirements of section 107 must be complied with.

Note 2: If an employee has an entitlement to paid personal/carer’s leave, the employee may take that leave instead of taking unpaid special parental leave under section 80.

98  Employee taken not to be on paid personal/carer’s leave at certain times

Public holidays

 (1) If the period during which an employee takes paid personal/carer’s leave includes a day or partday that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid personal/carer’s leave on that public holiday.

Period of paid family and domestic violence leave

 (2) If the period during which an employee takes paid personal/carer’s leave includes a period of paid family and domestic violence leave, the employee is taken not to be on paid personal/carer’s leave for the period of that paid family and domestic violence leave.

99  Payment for paid personal/carer’s leave

  If, in accordance with this Subdivision, an employee takes a period of paid personal/carer’s leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

100  Paid personal/carer’s leave must not be cashed out except in accordance with permitted cashing out terms

  Paid personal/carer’s leave must not be cashed out, except in accordance with cashing out terms included in a modern award or enterprise agreement under section 101.

101  Modern awards and enterprise agreements may include terms relating to cashing out paid personal/carer’s leave

 (1) A modern award or enterprise agreement may include terms providing for the cashing out of paid personal/carer’s leave by an employee.

 (2) The terms must require that:

 (a) paid personal/carer’s leave must not be cashed out if the cashing out would result in the employee’s remaining accrued entitlement to paid personal/carer’s leave being less than 15 days; and

 (b) each cashing out of a particular amount of paid personal/carer’s leave must be by a separate agreement in writing between the employer and the employee; and

 (c) the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.

Subdivision BUnpaid carer’s leave

102  Entitlement to unpaid carer’s leave

  An employee is entitled to 2 days of unpaid carer’s leave for each occasion (a permissible occasion) when a member of the employee’s immediate family, or a member of the employee’s household, requires care or support because of:

 (a) a personal illness, or personal injury, affecting the member; or

 (b) an unexpected emergency affecting the member.

103  Taking unpaid carer’s leave

 (1) An employee may take unpaid carer’s leave for a particular permissible occasion if the leave is taken to provide care or support as referred to in section 102.

 (2) An employee may take unpaid carer’s leave for a particular permissible occasion as:

 (a) a single continuous period of up to 2 days; or

 (b) any separate periods to which the employee and his or her employer agree.

 (3) An employee cannot take unpaid carer’s leave during a particular period if the employee could instead take paid personal/carer’s leave.

Note: The notice and evidence requirements of section 107 must be complied with.

Subdivision CCompassionate leave

104  Entitlement to compassionate leave

 (1) An employee is entitled to 2 days of compassionate leave for each occasion (a permissible occasion) when:

 (a) a member of the employee’s immediate family or a member of the employee’s household:

 (i) contracts or develops a personal illness that poses a serious threat to his or her life; or

 (ii) sustains a personal injury that poses a serious threat to his or her life; or

 (iii) dies; or

 (b) a child is stillborn, where the child would have been a member of the employee’s immediate family, or a member of the employee’s household, if the child had been born alive; or

 (c) the employee, or the employee’s spouse or de facto partner, has a miscarriage.

 (2) Paragraph (1)(c) does not apply:

 (a) if the miscarriage results in a stillborn child; or

 (b) to a former spouse, or former de facto partner, of the employee.

Note: For the definition of a stillborn child, see subsection 77A(2).

105  Taking compassionate leave

 (1) An employee may take compassionate leave for a particular permissible occasion if the leave is taken:

 (a) to spend time with the member of the employee’s immediate family or household who has contracted or developed the personal illness, or sustained the personal injury, referred to in section 104; or

 (b) after the death of the member of the employee’s immediate family or household, or the stillbirth of the child, referred to in section 104; or

 (c) after the employee, or the employee’s spouse or de facto partner, has the miscarriage referred to in section 104.

 (2) An employee may take compassionate leave for a particular permissible occasion as:

 (a) a single continuous 2 day period; or

 (b) 2 separate periods of 1 day each; or

 (c) any separate periods to which the employee and his or her employer agree.

 (3) If the permissible occasion is the contraction or development of a personal illness, or the sustaining of a personal injury, the employee may take the compassionate leave for that occasion at any time while the illness or injury persists.

Note: The notice and evidence requirements of section 107 must be complied with.

106  Payment for compassionate leave (other than for casual employees)

  If, in accordance with this Subdivision, an employee, other than a casual employee, takes a period of compassionate leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

Note: For casual employees, compassionate leave is unpaid leave.

Subdivision CAPaid family and domestic violence leave

106A  Entitlement to paid family and domestic violence leave

 (1) An employee is entitled to 10 days of paid family and domestic violence leave in a 12 month period.

 (2) Paid family and domestic violence leave:

 (a) is available in full at the start of each 12 month period of the employee’s employment; and

 (b) does not accumulate from year to year; and

 (c) is available in full to parttime and casual employees.

 (3) For the purposes of subsection (2), if an employee is employed by a particular employer:

 (a) as a casual employee; or

 (b) for a specified period of time, for a specified task or for the duration of a specified season;

the start of the employee’s employment is taken to be the start of the employee’s first employment with that employer.

 (4) The employee may take paid family and domestic violence leave as:

 (a) a single continuous 10 day period; or

 (b) separate periods of one or more days each; or

 (c) any separate periods to which the employee and the employer agree, including periods of less than one day.

 (5) To avoid doubt, this section does not prevent the employee and the employer agreeing that the employee may take paid or unpaid leave in addition to the entitlement in subsection (1) to deal with the impact of family and domestic violence.

106B  Taking paid family and domestic violence leave

 (1) The employee may take paid family and domestic violence leave if:

 (a) the employee is experiencing family and domestic violence; and

 (b) the employee needs to do something to deal with the impact of the family and domestic violence; and

 (c) it is impractical for the employee to do that thing outside the employee’s work hours.

Note 1: Examples of actions, by an employee who is experiencing family and domestic violence, that could be covered by paragraph (b) include arranging for the safety of the employee or a close relative (including relocation), attending court hearings, accessing police services, attending counselling and attending appointments with medical, financial or legal professionals.

Note 2: The notice and evidence requirements of section 107 must be complied with.

 (2) Family and domestic violence is violent, threatening or other abusive behaviour by a close relative of a person, a member of a person’s household, or a current or former intimate partner of a person, that:

 (a) seeks to coerce or control the person; and

 (b) causes the person harm or to be fearful.

 (3) A close relative of a person is another person who:

 (a) is a member of the first person’s immediate family; or

 (b) is related to the first person according to Aboriginal or Torres Strait Islander kinship rules.

Note: Immediate family is defined in section 12.

106BA  Payment for paid family and domestic violence leave

 (1) If, in accordance with this Subdivision, an employee takes a period of paid family and domestic violence leave, the employer must pay the employee, in relation to the period:

 (a) for an employee other than a casual employee—at the employee’s full rate of pay, worked out as if the employee had not taken the period of leave; or

 (b) for a casual employee—at the employee’s full rate of pay, worked out as if the employee had worked the hours in the period for which the employee was rostered.

 (2) Without limiting paragraph (1)(b), an employee is taken to have been rostered to work hours in a period if the employee has accepted an offer by the employer of work for those hours.

 (3) Paragraph (1)(b) does not prevent a casual employee from taking a period of paid family and domestic violence leave that does not include hours for which the employee is rostered to work. However, the employer is not required to pay the employee in relation to such a period.

106C  Confidentiality

 (1) Employers must take steps to ensure information concerning any notice or evidence an employee has given under section 107 of the employee taking leave under this Subdivision is treated confidentially, as far as it is reasonably practicable to do so.

 (2) An employer must not, other than with the consent of the employee, use such information for a purpose other than satisfying itself in relation to the employee’s entitlement to leave under this Subdivision. In particular, an employer must not use such information to take adverse action against an employee.

 (3) Subsection (2) has effect subject to subsection (4).

 (4) Nothing in this Subdivision prevents an employer from dealing with information provided by an employee if doing so is required by an Australian law or is necessary to protect the life, health or safety of the employee or another person.

Note: Information covered by this section that is personal information may also be regulated under the Privacy Act 1988.

106D  Operation of paid family and domestic violence leave and leave for victims of crime

 (1) This Subdivision does not exclude or limit the operation of a law of a State or Territory to the extent that it provides for leave for victims of crime.

 (2) If an employee who is entitled, under a law of a State or Territory, to leave for victims of crime is also entitled to leave under this Subdivision, that law applies in addition to this Subdivision.

 (3) A person who is a national system employee only because of section 30C or 30M is entitled to leave under this Subdivision only to the extent that the leave would not constitute leave for victims of crime.

Note: Leave for victims of crime is a nonexcluded matter under paragraph 27(2)(h).

106E  Entitlement to days of leave

  What constitutes a day of leave for the purposes of this Subdivision is taken to be the same as what constitutes a day of leave for the purposes of sections 72A and 85 and Subdivisions B and C.

Subdivision DNotice and evidence requirements

107  Notice and evidence requirements

Notice

 (1) An employee must give his or her employer notice of the taking of leave under this Division by the employee.

 (2) The notice:

 (a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and

 (b) must advise the employer of the period, or expected period, of the leave.

Evidence

 (3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:

 (a) if it is paid personal/carer’s leave—the leave is taken for a reason specified in section 97; or

 (b) if it is unpaid carer’s leave—the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or

 (c) if it is compassionate leave—the leave is taken for a permissible occasion in circumstances specified in subsection 105(1); or

 (d) if it is paid family and domestic violence leave, and the employee has met the requirement specified in paragraph 106B(1)(a)—the leave is taken for the purpose specified in paragraph 106B(1)(b), and the requirement specified in paragraph 106B(1)(c) is met.

Compliance

 (4) An employee is not entitled to take leave under this Division unless the employee complies with this section.

Modern awards and enterprise agreements may include evidence requirements

 (5) A modern award or enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave.

Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

Division 8Community service leave

108  Entitlement to be absent from employment for engaging in eligible community service activity

  An employee who engages in an eligible community service activity is entitled to be absent from his or her employment for a period if:

 (a) the period consists of one or more of the following:

 (i) time when the employee engages in the activity;

 (ii) reasonable travelling time associated with the activity;

 (iii) reasonable rest time immediately following the activity; and

 (b) unless the activity is jury service—the employee’s absence is reasonable in all the circumstances.

109  Meaning of eligible community service activity

General

 (1) Each of the following is an eligible community service activity:

 (a) jury service (including attendance for jury selection) that is required by or under a law of the Commonwealth, a State or a Territory; or

 (b) a voluntary emergency management activity (see subsection (2)); or

 (c) an activity prescribed in regulations made for the purpose of subsection (4).

Voluntary emergency management activities

 (2) An employee engages in a voluntary emergency management activity if, and only if:

 (a) the employee engages in an activity that involves dealing with an emergency or natural disaster; and

 (b) the employee engages in the activity on a voluntary basis (whether or not the employee directly or indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for engaging in the activity); and

 (c) the employee is a member of, or has a memberlike association with, a recognised emergency management body; and

 (d) either:

 (i) the employee was requested by or on behalf of the body to engage in the activity; or

 (ii) no such request was made, but it would be reasonable to expect that, if the circumstances had permitted the making of such a request, it is likely that such a request would have been made.

 (3) A recognised emergency management body is:

 (a) a body, or part of a body, that has a role or function under a plan that:

 (i) is for coping with emergencies and/or disasters; and

 (ii) is prepared by the Commonwealth, a State or a Territory; or

 (b) a firefighting, civil defence or rescue body, or part of such a body; or

 (c) any other body, or part of a body, a substantial purpose of which involves:

 (i) securing the safety of persons or animals in an emergency or natural disaster; or

 (ii) protecting property in an emergency or natural disaster; or

 (iii) otherwise responding to an emergency or natural disaster; or

 (d) a body, or part of a body, prescribed by the regulations;

but does not include a body that was established, or is continued in existence, for the purpose, or for purposes that include the purpose, of entitling one or more employees to be absent from their employment under this Division.

Regulations may prescribe other activities

 (4) The regulations may prescribe an activity that is of a community service nature as an eligible community service activity.

110  Notice and evidence requirements

Notice

 (1) An employee who wants an absence from his or her employment to be covered by this Division must give his or her employer notice of the absence.

 (2) The notice:

 (a) must be given to the employer as soon as practicable (which may be a time after the absence has started); and

 (b) must advise the employer of the period, or expected period, of the absence.

Evidence

 (3) An employee who has given his or her employer notice of an absence under subsection (1) must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the absence is because the employee has been or will be engaging in an eligible community service activity.

Compliance

 (4) An employee’s absence from his or her employment is not covered by this Division unless the employee complies with this section.

Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

111  Payment to employees (other than casuals) on jury service

Application of this section

 (1) This section applies if:

 (a) in accordance with this Division, an employee is absent from his or her employment for a period because of jury service; and

 (b) the employee is not a casual employee.

Employee to be paid base rate of pay

 (2) Subject to subsections (3), (4) and (5), the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

Evidence

 (3) The employer may require the employee to give the employer evidence that would satisfy a reasonable person:

 (a) that the employee has taken all necessary steps to obtain any amount of jury service pay to which the employee is entitled; and

 (b) of the total amount (even if it is a nil amount) of jury service pay that has been paid, or is payable, to the employee for the period.

Note: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

 (4) If, in accordance with subsection (3), the employer requires the employee to give the employer the evidence referred to in that subsection:

 (a) the employee is not entitled to payment under subsection (2) unless the employee provides the evidence; and

 (b) if the employee provides the evidence—the amount payable to the employee under subsection (2) is reduced by the total amount of jury service pay that has been paid, or is payable, to the employee, as disclosed in the evidence.

Payment only required for first 10 days of absence

 (5) If an employee is absent because of jury service in relation to a particular jury service summons for a period, or a number of periods, of more than 10 days in total:

 (a) the employer is only required to pay the employee for the first 10 days of absence; and

 (b) the evidence provided in response to a requirement under subsection (3) need only relate to the first 10 days of absence; and

 (c) the reference in subsection (4) to the total amount of jury service pay as disclosed in evidence is a reference to the total amount so disclosed for the first 10 days of absence.

Meaning of jury service pay

 (6) Jury service pay means an amount paid in relation to jury service under a law of the Commonwealth, a State or a Territory, other than an amount that is, or that is in the nature of, an expenserelated allowance.

Meaning of jury service summons

 (7) Jury service summons means a summons or other instruction (however described) that requires a person to attend for, or perform, jury service.

112  State and Territory laws that are not excluded

 (1) This Act is not intended to apply to the exclusion of laws of a State or Territory that provide employee entitlements in relation to engaging in eligible community service activities, to the extent that those entitlements are more beneficial to employees than the entitlements under this Division.

Note: For example, this Act would not apply to the exclusion of a State or Territory law providing for a casual employee to be paid jury service pay.

 (2) If the community service activity is an activity prescribed in regulations made for the purpose of subsection 109(4), subsection (1) of this section has effect subject to any provision to the contrary in the regulations.

Division 9Long service leave

113  Entitlement to long service leave

Entitlement in accordance with applicable awardderived long service leave terms

 (1) If there are applicable awardderived long service leave terms (see subsection (3)) in relation to an employee, the employee is entitled to long service leave in accordance with those terms.

Note: This Act does not exclude State and Territory laws that deal with long service leave, except in relation to employees who are entitled to long service leave under this Division (see paragraph 27(2)(g)), and except as provided in subsection 113A(3).

 (2) However, subsection (1) does not apply if:

 (a) a workplace agreement, or an AWA, that came into operation before the commencement of this Part applies to the employee; or

 (b) one of the following kinds of instrument that came into operation before the commencement of this Part applies to the employee and expressly deals with long service leave:

 (i) an enterprise agreement;

 (ii) a preserved State agreement;

 (iii) a workplace determination;

 (iv) a prereform certified agreement;

 (v) a prereform AWA;

 (vi) a section 170MX award;

 (vii) an old IR agreement.

Note: If there ceases to be any agreement or instrument of a kind referred to in paragraph (a) or (b) that applies to the employee, the employee will, at that time, become entitled under subsection (1) to long service leave in accordance with applicable awardderived long service leave terms.

 (3) Applicable awardderived long service leave terms, in relation to an employee, are:

 (a) terms of an award, or a State reference transitional award, that (disregarding the effect of any instrument of a kind referred to in subsection (2)):

 (i) would have applied to the employee at the test time (see subsection (3A)) if the employee had, at that time, been in his or her current circumstances of employment; and

 (ii) would have entitled the employee to long service leave; and

 (b) any terms of the award, or the State reference transitional award, that are ancillary or incidental to the terms referred to in paragraph (a).

 (3A) For the purpose of subparagraph (3)(a)(i), the test time is:

 (a) immediately before the commencement of this Part; or

 (b) if the employee is a Division 2B State reference employee (as defined in Schedule 2 to the Transitional Act)—immediately before the Division 2B referral commencement (as defined in that Schedule).

Entitlement in accordance with applicable agreementderived long service leave terms

 (4) If there are applicable agreementderived long service leave terms (see subsection (5)) in relation to an employee, the employee is entitled to long service leave in accordance with those terms.

 (5) There are applicable agreementderived long service leave terms, in relation to an employee if:

 (a) an order under subsection (6) is in operation in relation to terms of an instrument; and

 (b) those terms of the instrument would have applied to the employee immediately before the commencement of this Part if the employee had, at that time, been in his or her current circumstances of employment; and

 (c) there are no applicable awardderived long service leave terms in relation to the employee.

 (6) If the FWC is satisfied that:

 (a) any of the following instruments that was in operation immediately before the commencement of this Part contained terms entitling employees to long service leave:

 (i) an enterprise agreement;

 (ii) a collective agreement;

 (iii) a prereform certified agreement;

 (iv) an old IR agreement; and

 (b) those terms constituted a long service leave scheme that was applying in more than one State or Territory; and

 (c) the scheme, considered on an overall basis, is no less beneficial to the employees than the long service leave entitlements that would otherwise apply in relation to the employees under State and Territory laws;

the FWC may, on application by, or on behalf of, a person to whom the instrument applies, make an order that those terms of the instrument (and any terms that are ancillary or incidental to those terms) are applicable agreementderived long service leave terms.

References to instruments

 (7) References in this section to a kind of instrument (other than an enterprise agreement) are references to a transitional instrument of that kind, as continued in existence by Schedule 3 to the Transitional Act.

113A  Enterprise agreements may contain terms discounting service under prior agreements etc. in certain circumstances

 (1) This section applies if:

 (a) an instrument (the first instrument) of one of the following kinds that came into operation before the commencement of this Part applies to an employee on or after the commencement of this Part:

 (i) an enterprise agreement;

 (ii) a workplace agreement;

 (iii) a workplace determination;

 (iv) a preserved State agreement;

 (v) an AWA;

 (vi) a prereform certified agreement;

 (vii) a prereform AWA;

 (viii) an old IR agreement;

 (ix) a section 170MX award; and

 (b) the instrument states that the employee is not entitled to long service leave; and

 (c) the instrument ceases, for whatever reason, to apply to the employee; and

 (d) immediately after the first instrument ceases to apply, an enterprise agreement (the replacement agreement) starts to apply to the employee.

 (2) The replacement agreement may include terms to the effect that an employee’s service with the employer during a specified period (the excluded period) (being some or all of the period when the first instrument applied to the employee) does not count as service for the purpose of determining whether the employee is qualified for long service leave, or the amount of long service leave to which the employee is entitled, under this Division or under a law of a State or Territory.

 (3) If the replacement agreement includes terms as permitted by subsection (2), the excluded period does not count, and never again counts, as service for the purpose of determining whether the employee is qualified for long service leave, or the amount of long service leave to which the employee is entitled, under this Division or under a law of a State or Territory, unless a later agreement provides otherwise. This subsection has effect despite sections 27 and 29.

 (4) References in this section to a kind of instrument (other than an enterprise agreement) are references to a transitional instrument of that kind, as continued in existence by Schedule 3 to the Transitional Act.

Division 10Public holidays

114  Entitlement to be absent from employment on public holiday

Employee entitled to be absent on public holiday

 (1) An employee is entitled to be absent from his or her employment on a day or partday that is a public holiday in the place where the employee is based for work purposes.

Reasonable requests to work on public holidays

 (2) However, an employer may request an employee to work on a public holiday if the request is reasonable.

 (3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if:

 (a) the request is not reasonable; or

 (b) the refusal is reasonable.

 (4) In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:

 (a) the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;

 (b) the employee’s personal circumstances, including family responsibilities;

 (c) whether the employee could reasonably expect that the employer might request work on the public holiday;

 (d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;

 (e) the type of employment of the employee (for example, whether fulltime, parttime, casual or shiftwork);

 (f) the amount of notice in advance of the public holiday given by the employer when making the request;

 (g) in relation to the refusal of a request—the amount of notice in advance of the public holiday given by the employee when refusing the request;

 (h) any other relevant matter.

115  Meaning of public holiday

The public holidays

 (1) The following are public holidays:

 (a) each of these days:

 (i) 1 January (New Year’s Day);

 (ii) 26 January (Australia Day);

 (iii) Good Friday;

 (iv) Easter Monday;

 (v) 25 April (Anzac Day);

 (vi) the Queen’s birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory);

 (vii) 25 December (Christmas Day);

 (viii) 26 December (Boxing Day);

 (b) any other day, or partday, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday, other than a day or partday, or a kind of day or partday, that is excluded by the regulations from counting as a public holiday.

Substituted public holidays under State or Territory laws

 (2) If, under (or in accordance with a procedure under) a law of a State or Territory, a day or partday is substituted for a day or partday that would otherwise be a public holiday because of subsection (1), then the substituted day or partday is the public holiday.

Substituted public holidays under modern awards and enterprise agreements

 (3) A modern award or enterprise agreement may include terms providing for an employer and employee to agree on the substitution of a day or partday for a day or partday that would otherwise be a public holiday because of subsection (1) or (2).

Substituted public holidays for award/agreement free employees

 (4) An employer and an award/agreement free employee may agree on the substitution of a day or partday for a day or partday that would otherwise be a public holiday because of subsection (1) or (2).

Note: This Act does not exclude State and Territory laws that deal with the declaration, prescription or substitution of public holidays, but it does exclude State and Territory laws that relate to the rights and obligations of an employee or employer in relation to public holidays (see paragraph 27(2)(j)).

116  Payment for absence on public holiday

  If, in accordance with this Division, an employee is absent from his or her employment on a day or partday that is a public holiday, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or partday.

Note: If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a parttime employee whose parttime hours do not include the day of the week on which the public holiday occurs.

Division 11Notice of termination and redundancy pay

Subdivision ANotice of termination or payment in lieu of notice

117  Requirement for notice of termination or payment in lieu

Notice specifying day of termination

 (1) An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).

Note 1: Section 123 describes situations in which this section does not apply.

Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:

(a) delivering it personally; or

(b) leaving it at the employee’s last known address; or

(c) sending it by prepaid post to the employee’s last known address.

Amount of notice or payment in lieu of notice

 (2) The employer must not terminate the employee’s employment unless:

 (a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or

 (b) the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.

 (3) Work out the minimum period of notice as follows:

 (a) first, work out the period using the following table:

 

Period

 

Employee’s period of continuous service with the employer at the end of the day the notice is given

Period

1

Not more than 1 year

1 week

2

More than 1 year but not more than 3 years

2 weeks

3

More than 3 years but not more than 5 years

3 weeks

4

More than 5 years

4 weeks

 (b) then increase the period by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.

 (4) A reference in this section to continuous service with the employer does not include periods of employment as a casual employee of the employer.

118  Modern awards and enterprise agreements may provide for notice of termination by employees

  A modern award or enterprise agreement may include terms specifying the period of notice an employee must give in order to terminate his or her employment.

Subdivision BRedundancy pay

119  Redundancy pay

Entitlement to redundancy pay

 (1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

 (a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

 (b) because of the insolvency or bankruptcy of the employer.

Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.

Amount of redundancy pay

 (2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:

 

Redundancy pay period

 

Employee’s period of continuous service with the employer on termination

Redundancy pay period

1

At least 1 year but less than 2 years

4 weeks

2

At least 2 years but less than 3 years

6 weeks

3

At least 3 years but less than 4 years

7 weeks

4

At least 4 years but less than 5 years

8 weeks

5

At least 5 years but less than 6 years

10 weeks

6

At least 6 years but less than 7 years

11 weeks

7

At least 7 years but less than 8 years

13 weeks

8

At least 8 years but less than 9 years

14 weeks

9

At least 9 years but less than 10 years

16 weeks

10

At least 10 years

12 weeks

 (3) A reference in this section to continuous service with the employer does not include periods of employment as a casual employee of the employer.

120  Variation of redundancy pay for other employment or incapacity to pay

 (1) This section applies if:

 (a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

 (b) the employer:

 (i) obtains other acceptable employment for the employee; or

 (ii) cannot pay the amount.

 (2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.

 (3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.

121  Exclusions from obligation to pay redundancy pay

 (1) Section 119 does not apply to the termination of an employee’s employment if, immediately before the time of the termination, or at the time when the person was given notice of the termination as described in subsection 117(1) (whichever happened first):

 (a) the employee’s period of continuous service with the employer (other than periods of employment as a casual employee of the employer) is less than 12 months; or

 (b) the employer is a small business employer.

 (2) A modern award may include a term specifying other situations in which section 119 does not apply to the termination of an employee’s employment.

 (3) If a modern award that is in operation includes such a term (the award term), an enterprise agreement may:

 (a) incorporate the award term by reference (and as in force from time to time) into the enterprise agreement; and

 (b) provide that the incorporated term covers some or all of the employees who are also covered by the award term.

122  Transfer of employment situations that affect the obligation to pay redundancy pay

Transfer of employment situation in which employer may decide not to recognise employee’s service with first employer

 (1) Subsection 22(5) does not apply (for the purpose of this Subdivision) to a transfer of employment between nonassociated entities in relation to an employee if the second employer decides not to recognise the employee’s service with the first employer (for the purpose of this Subdivision).

Employee is not entitled to redundancy pay if service with first employer counts as service with second employer

 (2) If subsection 22(5) applies (for the purpose of this Subdivision) to a transfer of employment in relation to an employee, the employee is not entitled to redundancy pay under section 119 in relation to the termination of his or her employment with the first employer.

Note: Subsection 22(5) provides that, generally, if there is a transfer of employment, service with the first employer counts as service with the second employer.

Employee not entitled to redundancy pay if refuses employment in certain circumstances

 (3) An employee is not entitled to redundancy pay under section 119 in relation to the termination of his or her employment with an employer (the first employer) if:

 (a) the employee rejects an offer of employment made by another employer (the second employer) that:

 (i) is on terms and conditions substantially similar to, and, considered on an overall basis, no less favourable than, the employee’s terms and conditions of employment with the first employer immediately before the termination; and

 (ii) recognises the employee’s service with the first employer, for the purpose of this Subdivision; and

 (b) had the employee accepted the offer, there would have been a transfer of employment in relation to the employee.

 (4) If the FWC is satisfied that subsection (3) operates unfairly to the employee, the FWC may order the first employer to pay the employee a specified amount of redundancy pay (not exceeding the amount that would be payable but for subsection (3)) that the FWC considers appropriate. The first employer must pay the employee that amount of redundancy pay.

Subdivision CLimits on scope of this Division

123  Limits on scope of this Division

Employees not covered by this Division

 (1) This Division does not apply to any of the following employees:

 (a) an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;

 (b) an employee whose employment is terminated because of serious misconduct;

 (c) a casual employee;

 (d) an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement;

 (e) an employee prescribed by the regulations as an employee to whom this Division does not apply.

 (2) Paragraph (1)(a) does not prevent this Division from applying to an employee if a substantial reason for employing the employee as described in that paragraph was to avoid the application of this Division.

Other employees not covered by notice of termination provisions

 (3) Subdivision A does not apply to:

 (b) a daily hire employee working in the building and construction industry (including working in connection with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or structures); or

 (c) a daily hire employee working in the meat industry in connection with the slaughter of livestock; or

 (d) a weekly hire employee working in connection with the meat industry and whose termination of employment is determined solely by seasonal factors; or

 (e) an employee prescribed by the regulations as an employee to whom that Subdivision does not apply.

Other employees not covered by redundancy pay provisions

 (4) Subdivision B does not apply to:

 (a) an employee who is an apprentice; or

 (b) an employee to whom an industryspecific redundancy scheme in a modern award applies; or

 (c) an employee to whom a redundancy scheme in an enterprise agreement applies if:

 (i) the scheme is an industryspecific redundancy scheme that is incorporated by reference (and as in force from time to time) into the enterprise agreement from a modern award that is in operation; and

 (ii) the employee is covered by the industryspecific redundancy scheme in the modern award; or

 (d) an employee prescribed by the regulations as an employee to whom that Subdivision does not apply.

Division 12Fair Work Ombudsman to prepare and publish statements

124  Fair Work Ombudsman to prepare and publish Fair Work Information Statement

 (1) The Fair Work Ombudsman must prepare a Fair Work Information Statement. The Fair Work Ombudsman must publish the Statement in the Gazette.

Note: If the Fair Work Ombudsman changes the Statement, the Fair Work Ombudsman must publish the new version of the Statement in the Gazette.

 (2) The Statement must contain information about the following:

 (a) the National Employment Standards;

 (b) modern awards;

 (c) agreementmaking under this Act;

 (d) the right to freedom of association;

 (e) the role of the FWC and the Fair Work Ombudsman;

 (f) termination of employment;

 (g) individual flexibility arrangements;

 (h) right of entry (including the protection of personal information by privacy laws).

 (3) The Fair Work Information Statement is not a legislative instrument.

 (4) The regulations may prescribe other matters relating to the content or form of the Statement, or the manner in which employers may give the Statement to employees.

125  Giving new employees the Fair Work Information Statement

 (1) An employer must give each employee the Fair Work Information Statement before, or as soon as practicable after, the employee starts employment.

 (2) Subsection (1) does not require the employer to give the employee the Statement more than once in any 12 months.

Note: This is relevant if the employer employs the employee more than once in the 12 months.

125A  Fair Work Ombudsman to prepare and publish Casual Employment Information Statement

 (1) The Fair Work Ombudsman must prepare a Casual Employment Information Statement. The Fair Work Ombudsman must publish the Statement in the Gazette.

Note: If the Fair Work Ombudsman changes the Statement, the Fair Work Ombudsman must publish the new version of the Statement in the Gazette.

 (2) The Statement must contain information about casual employment and offers and requests for casual conversion under Division 4A of Part 22, including the following:

 (a) the meaning of casual employee under section 15A;

 (b) an employer offer for casual conversion must generally be made to certain casual employees within 21 days after the employee has completed 12 months of employment;

 (c) an employer can decide not to make an offer for casual conversion if there are reasonable grounds to do so, but the employer must notify the employee of these grounds;

 (d) certain casual employees will also have a residual right to request casual conversion;

 (da) casual conversion entitlements of casual employees employed by small business employers;

 (e) the FWC may deal with disputes about the operation of that Division.

 (3) The Casual Employment Information Statement is not a legislative instrument.

 (4) The regulations may prescribe other matters relating to the content or form of the Statement, or the manner in which employers may give the Statement to employees.

125B  Giving new employees the Casual Employment Information Statement

 (1) An employer must give each casual employee the Casual Employment Information Statement before, or as soon as practicable after, the employee starts employment as a casual employee with the employer.

 (2) Subsection (1) does not require the employer to give the employee the Statement more than once in any 12 months.

Note: This is relevant if the employer employs the employee more than once in the 12 months.

Division 13Miscellaneous

126  Modern awards and enterprise agreements may provide for schoolbased apprentices and trainees to be paid loadings in lieu

  A modern award or enterprise agreement may provide for schoolbased apprentices or schoolbased trainees to be paid loadings in lieu of any of the following:

 (a) paid annual leave;

 (b) paid personal/carer’s leave;

 (c) paid absence under Division 10 (which deals with public holidays).

Note: Section 199 affects whether the FWC may approve an enterprise agreement covering an employee who is a schoolbased apprentice or schoolbased trainee, if the employee is covered by a modern award that is in operation and provides for the employee to be paid loadings in lieu of paid annual leave, paid personal/carer’s leave or paid absence under Division 10.

127  Regulations about what modern awards and enterprise agreements can do

  The regulations may:

 (a) permit modern awards or enterprise agreements or both to include terms that would or might otherwise be contrary to this Part or section 55 (which deals with the interaction between the National Employment Standards and a modern award or enterprise agreement); or

 (b) prohibit modern awards or enterprise agreements or both from including terms that would or might otherwise be permitted by a provision of this Part or section 55.

128  Relationship between National Employment Standards and agreements etc. permitted by this Part for award/agreement free employees

  The National Employment Standards have effect subject to:

 (a) an agreement between an employer and an award/agreement free employee or a requirement made by an employer of an award/agreement free employee, that is expressly permitted by a provision of this Part; or

 (b) an agreement between an employer and an award/agreement free employee that is expressly permitted by regulations made for the purpose of section 129.

Note 1: In determining what matters are permitted to be agreed or required under paragraph (a), any regulations made for the purpose of section 129 that expressly prohibit certain agreements or requirements must be taken into account.

Note 2: See also the note to section 64 (which deals with the effect of averaging arrangements).

129  Regulations about what can be agreed to etc. in relation to award/agreement free employees

  The regulations may:

 (a) permit employers, and award/agreement free employees, to agree on matters that would or might otherwise be contrary to this Part; or

 (b) prohibit employers and award/agreement free employees from agreeing on matters, or prohibit employers from making requirements of such employees, that would or might otherwise be permitted by a provision of this Part.

130  Restriction on taking or accruing leave or absence while receiving workers’ compensation

 (1) An employee is not entitled to take or accrue any leave or absence (whether paid or unpaid) under this Part during a period (a compensation period) when the employee is absent from work because of a personal illness, or a personal injury, for which the employee is receiving compensation payable under a law (a compensation law) of the Commonwealth, a State or a Territory that is about workers’ compensation.

 (2) Subsection (1) does not prevent an employee from taking or accruing leave during a compensation period if the taking or accruing of the leave is permitted by a compensation law.

 (3) Subsection (1) does not prevent an employee from taking unpaid parental leave during a compensation period.

131  Relationship with other Commonwealth laws

  This Part establishes minimum standards and so is intended to supplement, and not to override, entitlements under other laws of the Commonwealth.

Part 23Modern awards

Division 1Introduction

132  Guide to this Part

This Part provides for the FWC to make, vary and revoke modern awards. Modern awards may set minimum terms and conditions for national system employees in particular industries or occupations. Modern awards can have terms that are ancillary or supplementary to the National Employment Standards (see Part 21).

Division 2 provides for the modern awards objective. This requires the FWC to ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account certain social and economic factors. Division 2 also contains special provisions about modern award minimum wages.

Division 3 deals with the terms of modern awards.

Division 4A provides for the FWC to conduct 4 yearly reviews of default fund terms of modern awards.

It also sets out the process for making the Schedule of Approved Employer MySuper products in a 4 yearly review, and amending the schedule after it is made to include other employer MySuper products. If an employer MySuper product is on the schedule, an employer covered by a modern award can make contributions, for the benefit of a default fund employee, to a superannuation fund that offers the product (see subsection 149D(1A)).

Division 5 provides for the FWC to exercise modern award powers in certain circumstances.

Division 6 contains some general provisions relating to modern award powers.

Division 7 contains additional provisions relating to modern enterprise awards.

Division 8 contains additional provisions relating to State reference public sector modern awards.

The obligation to comply with a modern award is in section 45 (in Part 21).

In relation to minimum wages in modern awards, the FWC has powers both under this Part and under Part 26 (which deals with minimum wages). The following is a summary of the FWC’s powers under the 2 Parts:

(a) the initial making of a modern award setting modern award minimum wages can only occur under this Part;

(b) the main power to vary modern award minimum wages is in annual wage reviews under Part 26;

(c) modern award minimum wages can also be varied under this Part, but only for work value reasons or in other limited circumstances;

(d) modern award minimum wages can be set (otherwise than in the initial making of a modern award) or revoked either under this Part or in annual wage reviews under Part 26.

133  Meanings of employee and employer

  In this Part, employee means a national system employee, and employer means a national system employer.

Note: See also Division 2 of Part 64A (TCF contract outworkers taken to be employees in certain circumstances).

Division 2Overarching provisions

134  The modern awards objective

What is the modern awards objective?

 (1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

 (a) relative living standards and the needs of the low paid; and

 (aa) the need to improve access to secure work across the economy; and

 (ab) the need to achieve gender equality in the workplace by ensuring equal remuneration for work of equal or comparable value, eliminating genderbased undervaluation of work and providing workplace conditions that facilitate women’s full economic participation; and

 (b) the need to encourage collective bargaining; and

 (c) the need to promote social inclusion through increased workforce participation; and

 (d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

 (da) the need to provide additional remuneration for:

 (i) employees working overtime; or

 (ii) employees working unsocial, irregular or unpredictable hours; or

 (iii) employees working on weekends or public holidays; or

 (iv) employees working shifts; and

 (f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

 (g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

 (h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

 (2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:

 (a) the FWC’s functions or powers under this Part; and

 (b) the FWC’s functions or powers under Part 26, so far as they relate to modern award minimum wages.

Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).

135  Special provisions relating to modern award minimum wages

 (1) Modern award minimum wages cannot be varied under this Part except as follows:

 (a) modern award minimum wages can be varied if the FWC is satisfied that the variation is justified by work value reasons (see subsection 157(2));

 (b) modern award minimum wages can be varied under section 160 (which deals with variation to remove ambiguities or correct errors) or section 161 (which deals with variation on referral by the Australian Human Rights Commission).

Note 1: The main power to vary modern award minimum wages is in annual wage reviews under Part 26. Modern award minimum wages can also be set or revoked in annual wage reviews.

Note 2: For the meanings of modern award minimum wages, and setting and varying such wages, see section 284.

 (2) In exercising its powers under this Part to set, vary or revoke modern award minimum wages, the FWC must take into account the rate of the national minimum wage as currently set in a national minimum wage order.

Division 3Terms of modern awards

Subdivision APreliminary

136  What can be included in modern awards

Terms that may or must be included

 (1) A modern award must only include terms that are permitted or required by:

 (a) Subdivision B (which deals with terms that may be included in modern awards); or

 (b) Subdivision C (which deals with terms that must be included in modern awards); or

 (c) section 55 (which deals with interaction between the National Employment Standards and a modern award or enterprise agreement); or

 (d) Part 22 (which deals with the National Employment Standards).

Note 1: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards.

Note 2: Part 22 includes a number of provisions permitting inclusion of terms about particular matters.

Terms that must not be included

 (2)