Chapter 3B—Minimum standards for persons in a road transport contractual chain
Part 3B‑1—Core provisions for this Chapter
Division 1—Introduction
536NL Guide to this Part
This Part is about the coverage and operation of the provisions of this Chapter.
Division 2 sets out when road transport contractual chain orders and road transport contractual chain guidelines cover persons in a road transport contractual chain.
Division 3 specifies the rules relating to the interaction of the provisions of this Chapter with State and Territory laws.
536NM Meaning of employee and employer
In this Part, employee and employer have their ordinary meanings.
536NN FWC to have regard to minimum standards objective
The FWC must have regard to the minimum standards objective in performing a function or exercising a power under this Chapter.
Note: The FWC must also have regard to the road transport objective as required by section 40D.
Division 2—Provisions relating to coverage and operation of road transport contractual chain orders and road transport contractual chain guidelines
Subdivision A—Coverage and operation of road transport contractual chain orders and guidelines
536NP Contravening a road transport contractual chain order
A person must not contravene a term of a road transport contractual chain order.
Note 1: This section is a civil remedy provision (see Part 4‑1).
Note 2: A person does not contravene a term of a road transport contractual chain order unless the order applies to the person: see subsection 536NQ(1).
536NQ The significance of a road transport contractual chain order applying to a person
(1) A road transport contractual chain order does not impose obligations on a person, and a person does not contravene a term of a road transport contractual chain order, unless the order applies to the person.
(2) A road transport contractual chain order does not give a person an entitlement unless the order applies to the person.
536NR When a road transport contractual chain order applies to a person
When a road transport contractual chain order applies to a regulated road transport contractor or a road transport employee‑like worker
(1) A road transport contractual chain order applies to a regulated road transport contractor or a road transport employee‑like worker in a road transport contractual chain if:
(a) the road transport contractual chain order covers the regulated road transport contractor or road transport employee‑like worker; and
(b) the road transport contractual chain order is in operation; and
(c) no other provision of this Act provides, or has the effect, that the road transport contractual chain order does not apply to the regulated road transport contractor or road transport employee‑like worker.
When a road transport contractual chain order applies to other persons in a road transport contractual chain
(2) A road transport contractual chain order applies to a person in a road transport contractual chain, other than a regulated road transport contractor or a road transport employee‑like worker, if:
(a) the road transport contractual chain order covers the person; and
(b) a regulated road transport contractor or a road transport employee‑like worker to whom the road transport contractual chain order applies, or an employee, performs work for the person; and
(c) the road transport contractual chain order is in operation; and
(d) no other provision of this Act provides, or has the effect, that the road transport contractual chain order does not apply to the person.
536NS When a road transport contractual chain order covers a person in a road transport contractual chain
(1) A road transport contractual chain order covers a person in a road transport contractual chain if the order is expressed to cover the person.
Effect of other provisions of this Act, FWC orders or court orders on coverage
(2) A road transport contractual chain order also covers a person in a road transport contractual chain if any of the following provides, or has the effect, that the order covers the person:
(a) a provision of this 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 road transport contractual chain order does not cover a person in a road transport contractual chain if any of the following provides, or has the effect, that the order does not cover the person:
(a) a provision of this Act;
(b) an FWC order made under a provision of this Act;
(c) an order of a court.
Road transport contractual chain orders that have ceased to operate
(4) Despite subsections (1) and (2), a road transport contractual chain order that has ceased to operate does not cover a person in a road transport contractual chain.
536NT When a road transport contractual chain order is in operation
When a road transport contractual chain order comes into operation
(1) A road transport contractual chain order comes into operation on the day specified in the order.
(2) The specified day must not be earlier than the day on which the road transport contractual chain order is made.
(3) The specified day must not be earlier than 12 months after the relevant notice of intent for the order was published.
(4) Despite subsection (3), the specified day may be a day not earlier than 6 months after the relevant notice of intent for the order was published, if the FWC is satisfied that the circumstances urgently require it.
When a determination varying or revoking a road transport contractual chain order comes into operation
(5) A determination varying or revoking a road transport contractual chain order comes into operation on the day specified in the determination.
(6) The specified day must not be earlier than the day on which the determination is made.
Road transport contractual chain orders operate until revoked
(7) A road transport contractual chain order continues in operation until it is revoked.
Notice of intent
(8) The relevant notice of intent for a road transport contractual chain order is the notice of intent published under subsection 536PG(1) at the same time as the draft of the road transport contractual chain order was published.
536NU When road transport contractual chain guidelines cover a person in a road transport contractual chain
(1) Road transport contractual chain guidelines cover a person in a road transport contractual chain if the guidelines are expressed to cover the person.
Effect of other provisions of this Act, FWC orders or court orders on coverage
(2) Road transport contractual chain guidelines also cover a person in a road transport contractual chain if any of the following provides, or has the effect, that the guidelines cover the person:
(a) a provision of this Act;
(b) an FWC order made under a provision of this Act;
(c) an order of a court.
(3) Despite subsections (1) and (2), road transport contractual chain guidelines do not cover a person in a road transport contractual chain, if any of the following provides, or has the effect, that the guidelines do not cover the person:
(a) a provision of this Act;
(b) an FWC order made under a provision of this Act;
(c) an order of a court.
Road transport contractual chain guidelines that have ceased to operate
(4) Despite subsections (1) and (2), road transport contractual chain guidelines that have ceased to operate do not cover a person in a road transport contractual chain.
536NV When road transport contractual chain guidelines are in operation
When road transport contractual chain guidelines come into operation
(1) Road transport contractual chain guidelines come into operation on the day specified in the guidelines.
(2) The specified day must not be earlier than the day on which the road transport contractual chain guidelines are made.
When a determination varying or revoking road transport contractual chain guidelines comes into operation
(3) A determination varying or revoking road transport contractual chain guidelines comes into operation on the day specified in the determination.
(4) The specified day must not be earlier than the day on which the determination is made.
Road transport contractual chain guidelines operate until revoked
(5) Road transport contractual chain guidelines continue in operation until they are revoked.
Division 3—Exclusion of certain State and Territory laws
536NW Exclusion of certain State and Territory laws
(1) For the purposes of this Chapter, the rights, entitlements, obligations and liabilities of a person in a road transport contractual chain are not affected by a law of a State or Territory to the extent that the law would otherwise do one or more of the following:
(a) take or deem the person to be an employer or employee, or otherwise treat the person as if the person were an employer or employee, for the purposes of a law that relates to one or more workplace relations matters (or provide a means for the person to be so taken, deemed or treated);
(b) confer or impose rights, entitlements, obligations or liabilities on the person in relation to matters that, in an employment relationship, would be workplace relations matters (or provide a means for rights, entitlements, obligations or liabilities in relation to such matters to be conferred or imposed on the person);
(c) without limiting paragraphs (a) and (b)—expressly provide for a court, commission or tribunal to do any of the following in relation to a services contract on an unfairness ground:
(i) make an order or determination (however described) setting aside, or declaring to be void or otherwise unenforceable, all or part of the services contract;
(ii) make an order or determination (however described) amending or varying all or part of the services contract.
Note 1: For the meaning of workplace relations matter, see section 536NX.
Note 2: For the meaning of unfairness ground, see section 536NY.
(2) The rights, entitlements, obligations and liabilities of a person in a road transport contractual chain are not affected by a law of a State or Territory that is specified in regulations made for the purposes of this subsection, to the extent that the law is so specified.
(3) Subsection (1) does not apply in relation to:
(a) a law of a State or Territory, to the extent that the law deals with matters relating to outworkers (including entry of a representative of a trade union to premises for a purpose connected with outworkers), other than matters mentioned in paragraph (1)(c); or
(b) any of the following laws:
(i) Chapter 6 of the Industrial Relations Act 1996 (NSW) (and any other provision of that Act to the extent that it relates to, or has effect for the purposes of, a provision of Chapter 6);
(ii) the Owner Drivers and Forestry Contractors Act 2005 (Vic.); or
(c) a law of a State or Territory that is specified in regulations made for the purposes of this paragraph, to the extent that the law is so specified.
(4) To avoid doubt, subsection (2) has effect even if a law specified in regulations made for the purposes of that subsection:
(a) is a law referred to in paragraph (3)(a) or (b); or
(b) deals with matters that, because of section 536NX, are not workplace relations matters.
References to State and Territory law
(5) Without limiting any other provision of this Act, a reference in this section to a law of a State or Territory:
(a) includes a reference to a regulation, rule or other instrument (however described) made pursuant to, or for the purposes of, a law of a State or Territory; and
(b) is a reference to a law of a State or Territory as in force from time to time.
536NX What are workplace relations matters
For the purposes of this Chapter, workplace relations matter has the same meaning as in section 536JQ.
536NY What is an unfairness ground
For the purposes of this Chapter, an unfairness ground in relation to a services contract has the same meaning as in section 536JR.
536NZ Interaction of road transport contractual chain orders with State and Territory laws
(1) A road transport contractual chain order prevails over a law of a State or Territory, to the extent of any inconsistency.
(2) Despite subsection (1), a term of a road transport contractual chain order applies subject to the following:
(a) a law of a State or Territory specified in regulations made for the purposes of this paragraph, to the extent that the law is so specified;
(b) a law of a State or Territory that provides for rights or remedies by reference to a law described in paragraph (a).
References to State and Territory law
(3) Without limiting any other provision of this Act, a reference in this section to a law of a State or Territory:
(a) includes a reference to a regulation, rule or other instrument (however described) made pursuant to, or for the purposes of, a law of a State or Territory; and
(b) is a reference to a law of a State or Territory as in force from time to time.
536P Authorisation of conduct for the purposes of the Competition and Consumer Act 2010
Conduct in accordance with order or guidelines
(1) For the purposes of subsection 51(1) of the Competition and Consumer Act 2010, and the Competition Code within the meaning of that Act, anything done in accordance with a road transport contractual chain order or road transport contractual chain guidelines by a person or entity covered by the order or guidelines is specified in and specifically authorised by this Act.
Certain conduct not protected
(2) Despite subsection (1), conduct referred to in that subsection is not specified in or specifically authorised by this Act if the conduct is:
(a) making a contract or arrangement, or arriving at an understanding, that is or contains a cartel provision that satisfies the purpose condition in either paragraph 45AD(3)(a) or (b) of the Competition and Consumer Act 2010 or the Competition Code within the meaning of that Act; or
(b) boycott conduct within the meaning of subsection 87AA(2) of the Competition and Consumer Act 2010 or the Competition Code within the meaning of that Act.
Part 3B‑2—Minimum standards for persons in a road transport contractual chain
Division 1—Introduction
536PB Guide to this Part
This Part is about setting minimum standards for persons in a road transport contractual chain.
Division 2 empowers the FWC to make road transport contractual chain orders, which set minimum standards to which certain regulated road transport contractors, road transport employee‑like workers and other persons in a road transport contractual chain are entitled in relation to certain matters.
Divisions 3 and 4 deal with deferral and suspension of road transport contractual chain orders.
Division 5 empowers the FWC to make road transport contractual chain guidelines for persons in a road transport contractual chain.
536PC Meaning of employee and employer
In this Part, employee and employer have their ordinary meanings.
Division 2—Road transport contractual chain orders
Subdivision A—General matters
536PD Road transport contractual chain orders
(1) The FWC may make an order (a road transport contractual chain order) that sets standards for regulated road transport contractors, road transport employee‑like workers and other persons in a road transport contractual chain.
Note: The FWC must be constituted by an Expert Panel for the purposes of making a road transport contractual chain order (see subsection 617(10B)).
(2) A road transport contractual chain order cannot confer rights or impose obligations on a person in the capacity of an employee.
(3) The FWC may make a road transport contractual chain order under this section:
(a) on its own initiative; or
(b) on application under subsection 536PE(1).
(4) The FWC must not make a road transport contractual chain order that covers road transport employee‑like workers unless the FWC considers it appropriate.
536PE Applications for road transport contractual chain orders
(1) Any of the following may apply to the FWC for the making of a road transport contractual chain order:
(a) an organisation that is entitled to represent the industrial interests of one or more persons in a road transport contractual chain;
(b) a regulated business in a road transport contractual chain;
(c) a person who is a primary party to the first contract or arrangement in a road transport contractual chain;
(d) the Minister;
(e) a person or body prescribed by the regulations.
Note: An Expert Panel can hear applications under this Act for the road transport industry together: see subsection 582(4).
Matters to be specified in an application
(2) An application for the making of a road transport contractual chain order must specify the classes of persons in a road transport contractual chain to be covered by the order.
(3) Without limiting the way in which a class may be described for the purposes of subsection (2), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.
Subdivision B—Matters relating to road transport contractual chain orders
536PF Particular matters FWC must take into account in making a decision on a road transport contractual chain order
(1) This section applies if:
(a) an application is made for a road transport contractual chain order under subsection 536PE(1) or for a variation of a road transport contractual chain order under section 536PS; or
(b) the FWC is considering making or varying a road transport contractual chain order on its own initiative.
(2) The FWC:
(a) must not make or vary the road transport contractual chain order unless there has been genuine engagement with the parties to be covered; and
(b) must not make or vary the road transport contractual chain order unless the Road Transport Advisory Group has been consulted; and
(c) must not make or vary the road transport contractual chain order unless the consultation process set out in Subdivision C of this Division has been followed; and
(d) in deciding whether to make or vary the road transport contractual chain order, must have regard to the commercial realities of the road transport industry, including commercial practices in relation to part load, mixed load, no load, multi‑leg and return trips; and
(e) must not make or vary the road transport contractual chain order unless the FWC is satisfied that making or varying the road transport contractual chain order will not unduly affect the viability and competitiveness of road transport businesses, owner drivers or other similar persons; and
(f) in deciding whether to make or vary the road transport contractual chain order, must take into account any current or proposed road transport contractual chain orders and any current or proposed minimum standards orders; and
(g) must take reasonable steps to ensure that the coverage of the road transport contractual chain order is clear.
Subdivision C—Consultation process for road transport contractual chain orders
536PG FWC to prepare and publish a draft of a road transport contractual chain order
(1) Before making a road transport contractual chain order, the FWC must:
(a) publish a notice (a notice of intent) stating that the FWC proposes to make a road transport contractual chain order; and
(b) publish a draft of the proposed road transport contractual chain order.
(2) The FWC must publish the notice of intent and the draft of the road transport contractual chain order on the FWC’s website and by any other means the FWC considers appropriate.
536PH Affected entities to have a reasonable opportunity to make submissions on a draft road transport contractual chain order
(1) The FWC must ensure that affected entities have a reasonable opportunity to make written submissions to the FWC for its consideration in relation to the draft of a road transport contractual chain order published under paragraph 536PG(1)(b).
(2) The FWC must publish submissions made to the FWC.
(3) However, if a submission made by an entity includes information that is claimed by the entity to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive, the FWC:
(a) may decide not to publish the information; and
(b) may instead publish:
(i) a summary of the information which contains sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive); or
(ii) if the FWC considers that it is not practicable to prepare a summary that would comply with subparagraph (i)—a statement that confidential or commercially sensitive information in the submission has not been published.
(4) The publishing of material under subsections (2) and (3) must be on the FWC’s website and by any other means the FWC considers appropriate.
(5) A reference in this Act (other than in this section) to a submission under this section includes a reference to a summary or statement referred to in paragraph (3)(b).
(6) For the purposes of subsection (1), an affected entity, in relation to a draft road transport contractual chain order published under paragraph 536PG(1)(b), is:
(a) a person or body likely to be affected by the making of a road transport contractual chain order based on the draft; or
(b) a person or body prescribed by the regulations, or included in a class prescribed by the regulations.
(7) The FWC may, but is not required to, hold a hearing in relation to a draft road transport contractual chain order.
536PJ Finalising draft order
(1) The FWC may make any changes it thinks appropriate to a draft road transport contractual chain order.
(2) If changes made under subsection (1) are significant, the FWC must:
(a) decide not to make the road transport contractual chain order based on the draft; and
(b) publish a subsequent notice of intent under paragraph 536PG(1)(a) in relation to the revised draft road transport contractual chain order, and publish the revised draft; and
(c) follow the process set out in section 536PH in relation to the revised draft road transport contractual chain order (with the period of consultation under that section to be no shorter than 12 months starting when the subsequent notice of intent and the revised draft required by paragraph (b) of this subsection were published).
(3) Despite paragraph (2)(c), the FWC may reduce the consultation period mentioned in that paragraph to a period not shorter than 6 months if the FWC is satisfied that the circumstances urgently require it.
536PK Decision not to make order based on the draft
The FWC may decide that no road transport contractual chain order is to be made based on the draft. If the FWC does so, the FWC must publish notice of the decision on its website and by any other means the FWC considers appropriate.
Subdivision D—Decisions on road transport contractual chain orders and related matters
536PL Decisions on applications for road transport contractual chain orders
(1) If an application for a road transport contractual chain order is made to the FWC under subsection 536PE(1), the FWC may decide to:
(a) refuse to consider the application; or
(b) make a road transport contractual chain order under subsection 536PD(1); or
(c) not make a road transport contractual chain order; or
(d) if the FWC considers it appropriate to do so, instead make road transport contractual chain guidelines under section 536QP, as if the application had been an application under subsection 536QQ(1) for road transport contractual chain guidelines in relation to the persons in a road transport contractual chain covered by the application under subsection 536PE(1).
(2) Without limiting subsection (1), the FWC may refuse to consider the application if it is not consistent with a direction of the President under subsection 582(4D) (prioritisation).
536PM Terms that must be included in a road transport contractual chain order
Terms relating to coverage
(1) A road transport contractual chain order must include terms setting out in accordance with this section:
(a) the work in the road transport industry covered by the road transport contractual chain order; and
(b) the persons in a road transport contractual chain covered by the road transport contractual chain order.
(2) A road transport contractual chain order must be expressed to cover persons in a road transport contractual chain, including specified regulated road transport contractors or road transport employee‑like workers.
(3) For the purposes of subsection (2):
(a) persons in a road transport contractual chain other than regulated road transport contractors or road transport employee‑like workers may be specified by name or by inclusion in a specified class or specified classes; and
(b) regulated road transport contractors and road transport employee‑like workers must be specified by inclusion in a specified class or specified classes.
(4) Without limiting the way in which a class may be described for the purposes of subsection (3), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.
536PN Road transport contractual chain order must include term about interaction with minimum standards orders
A road transport contractual chain order must include a provision that specifies the extent to which it prevails over, or is subject to, a minimum standards order to the extent of any inconsistency, and the road transport contractual chain order and the minimum standards order have effect according to the provision included in the road transport contractual chain order.
536PP Term about settling disputes must be included in a road transport contractual chain order
A road transport contractual chain order must include a term that provides a procedure for settling disputes about any matters arising under the order.
536PQ Terms that may be included in a road transport contractual chain order
(1) A road transport contractual chain order may also include terms about any of the following matters:
(a) payment times;
(b) fuel levies;
(c) rate reviews;
(d) termination, including one way termination for convenience;
(e) cost recovery.
(2) Subsection (1) does not limit the terms that may be included in a road transport contractual chain order.
536PR Terms that must not be included in a road transport contractual chain order
(1) A road transport contractual chain order must not include terms about any of the following matters:
(a) overtime rates;
(b) rostering arrangements;
(c) a term that would change the form of the engagement or the status of a regulated road transport contractor or a road transport employee‑like worker covered by the road transport contractual chain order including, but not limited to, a term that deems a regulated road transport contractor or a road transport employee‑like worker to be an employee;
(d) a matter relating to work health and safety that is otherwise comprehensively dealt with by a law of the Commonwealth, a State or a Territory;
(e) a matter prescribed by the regulations, or included in a class of matter prescribed by the regulations.
(2) A road transport contractual chain order must not include terms about any of the following matters:
(a) a matter relating to road transport that is otherwise comprehensively dealt with:
(i) by the Heavy Vehicle National Law as set out in the Schedule to the Heavy Vehicle National Law Act 2012 (Qld); or
(ii) by another law of the Commonwealth, a State or a Territory;
(b) a matter prescribed by the regulations, or included in a class of matter prescribed by the regulations.
(3) For the purposes of paragraph (1)(d):
(a) the regulations may specify that a particular matter, or a matter included in a class of matters, is, or is not, dealt with comprehensively by a law of the Commonwealth, a State or a Territory; and
(b) the regulations may prescribe one or more laws of the Commonwealth, a State or a Territory to which that paragraph does, or does not, not apply.
(4) For the purposes of paragraph (2)(b):
(a) the regulations may specify that a particular matter, or a matter included in a class of matters, is, or is not, dealt with comprehensively by the Heavy Vehicle National Law as set out in the Schedule to the Heavy Vehicle National Law Act 2012 (Qld) or another law of the Commonwealth, a State or a Territory; and
(b) the regulations may prescribe one or more laws of the Commonwealth, a State or a Territory to which subparagraph (2)(a)(ii) does, or does not, not apply.
536PS Applications to vary or revoke road transport contractual chain orders
Any of the following may apply to the FWC for a determination varying or revoking a road transport contractual chain order:
(a) an organisation that is entitled to represent the industrial interests of one or more of the persons in the road transport contractual chain to which the order relates or to whom the order as proposed to be varied would relate;
(b) a regulated business in the road transport contractual chain to which the order relates or to which the order as proposed to be varied would relate;
(c) a person who is a primary party to the first contract or arrangement in the road transport contractual chain to which the order relates;
(d) the Minister;
(e) a person or body prescribed by the regulations.
536PT FWC may vary or revoke road transport contractual chain orders
(1) The FWC may make a determination varying or revoking a road transport contractual chain order if the FWC is satisfied that making the determination is consistent with the minimum standards objective and the road transport objective.
(2) The FWC may make a determination varying a road transport contractual chain order in such a way that not all of the elements of the variation sought in an application under section 536PS are implemented, including by refusing to make a variation to the extent that it would result in the order covering persons who are not regulated road transport contractors or road transport employee‑like workers.
(3) The FWC may make a determination varying a road transport contractual chain order to remove an ambiguity or uncertainty or to correct an error.
(4) The FWC may make a determination varying or revoking a road transport contractual chain order:
(a) on its own initiative; or
(b) on application under section 536PS.
(5) The FWC must not vary or revoke a road transport contractual chain order that covers road transport employee‑like workers, or in such a way that it would begin to cover or cease to cover road transport employee‑like workers, unless the FWC considers it appropriate.
(6) The FWC may also make a determination under subsection (1) varying or revoking a road transport contractual chain order to give effect to a decision under paragraph 536QK(2)(a) or (b) to vary or revoke the road transport contractual chain order.
Note: Subsection 536QK(2) requires the FWC to consider whether to vary or revoke a road transport contractual chain order after a deferral declaration, a deferral determination, a suspension declaration or a suspension determination is made in relation to the order.
(7) A road transport contractual chain order that is not in operation can only be revoked or varied under the process set out in Divisions 3 and 4.
Division 3—Deferral and suspension of road transport contractual chain orders
Subdivision A—Ministerial declarations to defer or suspend road transport contractual chain orders
536PU Minister may make a declaration deferring the operation or application of a road transport contractual chain order
(1) If the Minister considers it is in the public interest to do so, the Minister may, by notifiable instrument, make a declaration (a deferral declaration) that defers:
(a) the coming into operation of a road transport contractual chain order; or
(b) the application of:
(i) all of the terms of a road transport contractual chain order to a specified class or specified classes of persons; or
(ii) specified terms of a road transport contractual chain order to a specified class or specified classes of persons; or
(iii) specified terms of a road transport contractual chain order to all persons.
(2) A deferral declaration made under paragraph (1)(a) is a full deferral declaration, and a deferral declaration made under paragraph (1)(b) is a part deferral declaration, in relation to the road transport contractual chain order to which the deferral declaration relates.
(3) A deferral declaration in relation to a road transport contractual chain order:
(a) comes into operation on the day on which it is made; and
(b) ceases to be in operation on the day on which the FWC decides under subsection 536QK(2) whether or not to vary or revoke the road transport contractual chain order.
(4) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.
(5) The Secretary of the Department must publish a deferral declaration on the Department’s website as soon as practicable after the deferral declaration is made.
536PV Limitations on making a deferral declaration
No deferral of road transport contractual chain order that is in operation
(1) The Minister must not make a deferral declaration in relation to a road transport contractual chain order that has already come into operation.
Only one full deferral declaration is permitted etc.
(2) The Minister:
(a) may only make one full deferral declaration in relation to a particular road transport contractual chain order; and
(b) must not make a full deferral declaration in relation to a particular road transport contractual chain order if a deferral determination (whether a full deferral determination or a part deferral determination) has previously been made by the FWC in relation to the road transport contractual chain order.
Note: The FWC may make deferral determinations in relation to road transport contractual chain orders under Subdivision B of this Division.
More than one part deferral declaration is permitted
(3) Subject to subsection (4), the Minister may make more than one part deferral declaration in relation to a particular road transport contractual chain order.
(4) If more than one part deferral declaration or part deferral determination is made in relation to the same road transport contractual chain order as permitted by subsection (3) of this section or subsection 536QC(3), a later part deferral declaration must not have the effect of deferring, or purporting to defer, the application of a term or terms to any person:
(a) to whom the terms already apply when the later part deferral declaration is made; or
(b) in relation to whom the application of the terms has previously been deferred.
536PW Operation of a road transport contractual chain order during deferral
A road transport contractual chain order:
(a) is not in operation during any period when a full deferral declaration in relation to the road transport contractual chain order is in operation; and
(b) is in operation during any period when a part deferral declaration in relation to the road transport contractual chain order is in operation.
Note: Although a road transport contractual chain order is in operation when a part deferral declaration is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.
536PX Minister may make a declaration suspending a road transport contractual chain order
(1) If the Minister considers it is in the public interest to do so, the Minister may, by notifiable instrument, make a declaration (a suspension declaration):
(a) suspending the operation of a road transport contractual chain order; or
(b) suspending the application of:
(i) all of the terms of a road transport contractual chain order to a specified class or specified classes of persons; or
(ii) specified terms of a road transport contractual chain order to a specified class or specified classes of persons; or
(iii) specified terms of a road transport contractual chain order to all persons.
(2) A suspension declaration made under paragraph (1)(a) is a full suspension declaration, and a suspension declaration made under paragraph (1)(b) is a part suspension declaration, in relation to the road transport contractual chain order to which the suspension declaration relates.
Suspension declaration must specify period of suspension
(3) A suspension declaration must specify the period of the suspension, which:
(a) must not be longer than 12 months; and
(b) must not start before the day on which the suspension declaration is made.
When period of suspension ends
(4) Subject to subsection (5), a period of suspension specified in a suspension declaration ends immediately after the end of the period specified in the suspension declaration under subsection (3).
(5) If a period of suspension has not already ended under subsection (3) when the FWC makes a decision under subsection 536QK(2) as to whether to vary or revoke the road transport contractual chain order, the period of suspension ends on whichever of the following days is applicable:
(a) if the FWC decides to vary or revoke the road transport contractual chain order—on the day that the determination made under subsection 536PT(1) varying or revoking the road transport contractual chain order comes into operation, which must not be later than 12 months after the day on which the suspension declaration was made;
(b) if the FWC decides not to vary or revoke the road transport contractual chain order:
(i) 7 days after the day on which the decision is made; or
(ii) if a 7‑day period would result in the suspension lasting longer than 12 months—such shorter period as is specified in the decision, which must be a period that would result in the suspension lasting 12 months or less.
Classes
(6) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.
Orders
(7) If the Minister makes a suspension declaration, the FWC may make any orders it considers appropriate to ensure that no person is unfairly affected by the suspension.
Publication
(8) The Secretary of the Department must publish a suspension declaration on the Department’s website as soon as practicable after the suspension declaration is made.
Accrued rights, etc.
(9) The making of a suspension declaration does not affect any right or liability that a person acquired, accrued or incurred before the suspension declaration is made.
536PY Suspension declaration must be made within 12 months of certain dates
Full suspension declaration timing
(1) A full suspension declaration in relation to a road transport contractual chain order must be made within 12 months of the day on which the road transport contractual chain order came into operation.
Part suspension declaration timing
(2) A part suspension declaration in relation to a road transport contractual chain order must be made within 12 months of whichever of the following days is applicable:
(a) if the part suspension declaration suspends the application of all of the terms of the road transport contractual chain order to a specified class of persons—the day on which all of the terms of the road transport contractual chain order first applied to the specified class of persons;
(b) if the part suspension declaration suspends the application of all of the terms of the road transport contractual chain order to 2 or more specified classes of persons—the day on which all of the terms of the road transport contractual chain order first applied to at least one of the specified classes of persons (even if all of the terms of the order did not apply to all of the specified classes on that day);
(c) if the part suspension declaration suspends the application of specified terms of the road transport contractual chain order to a specified class of persons—the day on which the specified terms first applied to the specified class of persons;
(d) if the part suspension declaration suspends the application of specified terms of the road transport contractual chain order to 2 or more specified classes of persons—the day on which the specified terms of the road transport contractual chain order first applied to at least one of the specified classes of persons (even if the order did not apply to all of the specified classes on that day);
(e) if the part suspension declaration suspends the application of specified terms of the road transport contractual chain order to all persons—the day on which the specified terms first applied to all persons.
536PZ Operation of a road transport contractual chain order during suspension
A road transport contractual chain order:
(a) is not in operation during any period when a full suspension declaration in relation to the road transport contractual chain order is in operation; and
(b) is in operation during any period when a part suspension declaration in relation to the road transport contractual chain order is in operation.
Note: Although a road transport contractual chain order is in operation during a period when a part suspension declaration is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.
536Q Consultation requirements
The Minister is not required to consult any person or body before making a deferral declaration or a suspension declaration.
Subdivision B—FWC may defer or suspend road transport contractual chain orders
536QA Applications for a deferral determination for a road transport contractual chain order
(1) An application may be made to the FWC for a determination under subsection 536QB(1) (a deferral determination) in relation to a road transport contractual chain order.
(2) An application may be made under subsection (1) by any of the following:
(a) an organisation that is entitled to represent the industrial interests of one or more persons in the road transport contractual chain;
(b) a regulated business in the road transport contractual chain;
(c) a person who is a primary party to the first contract or arrangement in the road transport contractual chain;
(d) a person or body prescribed by the regulations.
Note: An Expert Panel can hear applications under this Act for the road transport industry together: see subsection 582(4).
(3) An application for a deferral determination must not be made in relation to a road transport contractual chain order that has already come into operation.
Note: If the road transport contractual chain order concerned comes into operation before the FWC considers the application, the FWC may treat it as a suspension application: see subsection 536QD(2).
536QB FWC may make a determination deferring the operation or application of a road transport contractual chain order
(1) The FWC may, on application under subsection 536QA(1), make a deferral determination:
(a) that defers the coming into operation of a road transport contractual chain order; or
(b) that defers the application of:
(i) all of the terms of a road transport contractual chain order to a specified class or specified classes of persons; or
(ii) specified terms of a road transport contractual chain order to a specified class or specified classes of persons; or
(iii) specified terms of a road transport contractual chain order to all persons.
(2) A deferral determination made under paragraph (1)(a) is a full deferral determination, and a deferral determination made under paragraph (1)(b) is a part deferral determination, in relation to the road transport contractual chain order to which the deferral determination relates.
(3) A deferral determination in relation to a road transport contractual chain order:
(a) comes into operation on the day on which it is made; and
(b) ceases to be in operation on the day on which the FWC decides under subsection 536QK(2) whether or not to vary or revoke the road transport contractual chain order.
(4) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector.
536QC Limitations on making a deferral determination
No deferral of road transport contractual chain order that is in operation
(1) The FWC must not make a deferral determination in relation to a road transport contractual chain order that has already come into operation.
Only one full deferral determination is permitted, etc.
(2) The FWC:
(a) may only make one full deferral determination in relation to a particular road transport contractual chain order; and
(b) must not make a full deferral determination in relation to a particular road transport contractual chain order if a deferral declaration (whether a full deferral declaration or a part deferral declaration) has previously been made by the Minister in relation to the road transport contractual chain order.
Note: The Minister may make deferral declarations in relation to road transport contractual chain orders under Subdivision A of this Division.
More than one part deferral determination is permitted
(3) Subject to subsection (4), the FWC may make more than one part deferral determination in relation to a particular road transport contractual chain order.
(4) If more than one part deferral determination or part deferral declaration is made in relation to the same road transport contractual chain order as permitted by subsection (3) of this section or subsection 536PV(3), a later part deferral determination must not have the effect of deferring, or purporting to defer, the application of a term to any person or class of persons:
(a) to whom the term already applies when the later part deferral determination is made; or
(b) in relation to whom the application of the terms has previously been deferred.
536QD Decision on an application for a deferral determination in relation to a road transport contractual chain order
(1) If an application for a deferral determination in relation to a road transport contractual chain order is made, the FWC must:
(a) consider the application as soon as practicable; and
(b) consult the Road Transport Advisory Group before making a decision on the application.
(2) If the road transport contractual chain order concerned comes into operation before the FWC makes a decision on the application, the FWC may treat the application as if it were an application for a suspension determination.
(3) The FWC may:
(a) make the deferral determination under subsection 536QB(1); or
(b) decide not to make the deferral determination.
(4) The FWC must make the deferral determination if, and must not make the deferral determination unless, the FWC is satisfied that:
(a) the applicant has provided significant new facts or evidence that was not available at the time the FWC decided to make the road transport contractual chain order; and
(b) the significant new facts or evidence demonstrate that the road transport contractual chain order will not provide, or has not provided, an appropriate safety net of road transport contractual chain for parties in the road transport industry, having regard to the road transport contractual chain objective and the road transport objective.
(5) In considering whether the FWC is satisfied as mentioned in subsection (4), the FWC may have regard to whether one or more previous applications for variation or revocation of the road transport contractual chain order concerned have previously been made.
(6) The FWC must publish a deferral determination on the FWC’s website and by any other means the FWC considers appropriate as soon as practicable after making the determination.
536QE Operation of a road transport contractual chain order during deferral
A road transport contractual chain order:
(a) is not in operation during any period when a full deferral determination in relation to the road transport contractual chain order is in operation; and
(b) is in operation during any period when a part deferral determination is in operation in relation to the road transport contractual chain order.
Note: Although a road transport contractual chain order is in operation during a period when a part deferral determination is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.
536QF Applications for a suspension determination for a road transport contractual chain order
(1) An application may be made to the FWC for a determination (a suspension determination) under subsection 536QG(1) in relation to a road transport contractual chain order.
(2) An application may be made under subsection (1) by any of the following:
(a) an organisation that is entitled to represent the industrial interests of one or more persons in the road transport contractual chain;
(b) a regulated business in the road transport contractual chain;
(c) a person who is a primary party to the first contract or arrangement in the road transport contractual chain;
(d) a person or body prescribed by the regulations.
Note: An Expert Panel can hear applications under this Act for the road transport industry together: see subsection 582(4).
Timing of application for full suspension determination
(3) An application for a full suspension determination in relation to a road transport contractual chain order must be made within 12 months of the day on which the order came into operation.
Timing of application for part suspension determination
(4) An application for a part suspension determination must be made within 12 months of whichever of the following days is applicable:
(a) if the part suspension determination will suspend the application of all of the terms of the road transport contractual chain order to a specified class—the first day on which all of the terms of the road transport contractual chain order applied to the class of person;
(b) if the part suspension determination will suspend the application of all of the terms of the road transport contractual chain order to 2 or more specified classes of persons—the day on which all of the terms of the road transport contractual chain order first applied to at least one of the specified classes of persons (even if all of the terms of the order did not apply to all of the specified classes on that day);
(c) if the part suspension determination will suspend the application of specified terms of the road transport contractual chain order to a specified class of persons—the first day on which the specified terms applied to the specified class of persons;
(d) if the part suspension determination will suspend the application of specified terms of the road transport contractual chain order to 2 or more specified classes of persons—the day on which the specified terms of the road transport contractual chain order first applied to at least one of the specified classes of persons (even if the order did not apply to all of the specified classes on that day);
(e) if the part suspension determination will suspend the application of specified terms of the road transport contractual chain order to all persons—the first day on which the specified terms applied to all persons.
536QG FWC may make a determination suspending a road transport contractual chain order
(1) The FWC may, on application under subsection 536QF(1), make a suspension determination:
(a) suspending the operation of a road transport contractual chain order; or
(b) suspending:
(i) the application of a road transport contractual chain order to a specified class or specified classes of persons; or
(ii) the application of specified terms of a road transport contractual chain order to a specified class or specified classes of persons; or
(iii) the application of specified terms of road transport contractual chain order to all persons.
Note 1: A person may also apply under section 536PS for a variation or revocation of a road transport contractual chain order.
Note 2: Judicial review of decisions of the FWC is available: see paragraph 39B(1A)(c) of the Judiciary Act 1903.
(2) A suspension determination made under paragraph (1)(a) is a full suspension determination, and a suspension determination made under paragraph (1)(b) is a part suspension determination, in relation to the road transport contractual chain order to which the suspension determination relates.
Suspension determination must specify period of suspension
(3) If the FWC makes a suspension determination in relation to a road transport contractual chain order, the suspension determination must specify the period for which the order is suspended, which:
(a) must not be a period of more than 12 months; and
(b) must not start before the day on which the determination is made.
When period of suspension ends
(4) Subject to subsection (5), a period of suspension specified in a suspension determination ends immediately after the end of the period specified in the suspension determination under subsection (3).
(5) If the period of suspension has not already ended under subsection (4) when the FWC makes a decision under subsection 536QK(2) as to whether to vary or revoke the road transport contractual chain order, the period of suspension ends on whichever of the following days is applicable:
(a) if the FWC decides to vary or revoke the road transport contractual chain order—on the day that the determination made under subsection 536PT(1) varying or revoking the road transport contractual chain order comes into operation, which must not be later than 12 months after the day on which the suspension determination was made;
(b) if the FWC decides not to vary or revoke the road transport contractual chain order:
(i) 7 days after the day on which the decision is made; or
(ii) if a 7‑day period would result in the suspension lasting longer than 12 months—such shorter period as is specified in the decision, which must be a period that would result in the suspension lasting 12 months or less.
Classes
(6) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector.
536QH Decision on an application for a suspension determination in relation to a road transport contractual chain order
(1) If an application for a suspension determination in relation to a road transport contractual chain order is made, the FWC must:
(a) consider the application as soon as practicable; and
(b) consult the Road Transport Advisory Group before making a decision on the application.
(2) The FWC may:
(a) make the suspension determination under subsection 536QG(1); or
(b) decide not to make the suspension determination.
(3) The FWC must make the suspension determination if, and must not make the suspension determination unless, the FWC is satisfied that:
(a) the applicant has provided significant new facts or evidence that was not available at the time the FWC decided to make the road transport contractual chain order; and
(b) the significant new facts or evidence demonstrate that the road transport contractual chain order will not provide, or has not provided, an appropriate safety net of road transport contractual chain for parties in the road transport industry, having regard to the road transport contractual chain objective and the road transport objective.
(4) In considering whether the FWC is satisfied as mentioned in subsection (3), the FWC may have regard to whether one or more previous applications for variation or revocation of the road transport contractual chain order have previously been made.
(5) If the FWC makes the suspension determination, the FWC may make any orders it considers appropriate to ensure that no person is unfairly affected by the suspension.
(6) The FWC must publish a suspension determination on the FWC’s website and by any other means the FWC considers appropriate as soon as practicable after making the determination.
(7) The making of a suspension determination does not affect any right or liability that a person acquired, accrued or incurred before the suspension determination is made.
536QJ Operation of a road transport contractual chain order during suspension
A road transport contractual chain order:
(a) is not in operation during any period when a full suspension determination in relation to the road transport contractual chain order is in operation; and
(b) is in operation during any period when a part suspension determination is in operation in relation to the road transport contractual chain order.
Note: Although a road transport contractual chain order is in operation during a period when a part deferral determination is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.
Subdivision C—FWC must consider and decide whether to vary or revoke a deferred or suspended road transport contractual chain order
536QK FWC must consider whether to vary or revoke a road transport contractual chain order that has been deferred or suspended
(1) This section applies if:
(a) the Minister makes a deferral declaration or a suspension declaration in relation to a road transport contractual chain order; or
(b) the FWC makes a deferral determination or a suspension determination in relation to a road transport contractual chain order.
(2) The FWC must, as soon as practicable, consider whether or not to vary or revoke the road transport contractual chain order. The FWC must:
(a) vary the road transport contractual chain order under subsection 536PT(1); or
(b) revoke the road transport contractual chain order under subsection 536PT(1); or
(c) decide not to vary or revoke the road transport contractual chain order.
General preconditions for variation or revocation
(3) The FWC:
(a) must not vary or revoke the road transport contractual chain order unless there has been genuine engagement with the parties to be covered; and
(b) in the case of a road transport contractual chain order—must not vary or revoke the road transport contractual chain order unless the Road Transport Advisory Group has been consulted; and
(c) in the case of a road transport contractual chain order—must have regard to the commercial realities of the road transport industry; and
(d) in the case of a road transport contractual chain order—must be satisfied that the variation or revocation of the road transport contractual chain order will not unduly affect the viability and competitiveness of owner drivers or other similar persons; and
(e) in the case of a road transport contractual chain order that covers road transport employee‑like workers—must have regard to choice and flexibility in working arrangements.
Special preconditions for variation or revocation: road transport contractual chain order
(4) In addition to the matters mentioned in subsection (3), the FWC must not vary or revoke a road transport contractual chain order in relation to which a deferral declaration or a deferral determination has been made unless the FWC has followed the process set out in Division 4 of this Part in relation to the variation or revocation.
Publication requirements
(5) The FWC must publish notice of the FWC’s decision under subsection (2) on the FWC’s website and by any other means the FWC considers appropriate.
End of suspension period does not affect obligations under this section
(6) The end of a period of suspension of a road transport contractual chain order under subsection 536PX(4) or 536QG(4) does not affect the FWC’s obligation to consider whether or not to vary or revoke the road transport contractual chain order.
Division 4—Consultation before varying or revoking road transport contractual chain order after a deferral declaration or deferral determination
536QL FWC to prepare and publish a notice relating to proposed variation or revocation of a road transport contractual chain order
(1) Before deciding to vary or revoke a road transport contractual chain order in relation to which a deferral declaration or a deferral determination has been made, the FWC must:
(a) publish a notice (a notice of intent) stating that the FWC proposes to vary or revoke the road transport contractual chain order; and
(b) if the proposal is to vary the road transport contractual chain order—publish a draft of the road transport contractual chain order as proposed to be varied.
(2) The FWC must publish the notice of intent and the draft of the road transport contractual chain order as proposed to be varied (if applicable) on the FWC’s website and by any other means the FWC considers appropriate as soon as practicable after making the determination.
536QM Affected entities to have a reasonable opportunity to make submissions and comment on a proposed variation or revocation of a road transport contractual chain order
(1) The FWC must ensure that affected entities have a reasonable opportunity to make written submissions to the FWC for its consideration in relation to the proposed variation or revocation of a road transport contractual chain order in relation to which a notice of intent has been published under paragraph 536QL(1)(a).
(2) The FWC must publish submissions made to the FWC.
(3) However, if a submission made by an entity includes information that is claimed by the entity to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive, the FWC:
(a) may decide not to publish the information; and
(b) may instead publish:
(i) a summary of the information which contains sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive); or
(ii) if the FWC considers that it is not practicable to prepare a summary that would comply with subparagraph (i)—a statement that confidential or commercially sensitive information in the submission has not been published.
(4) The publishing of material under subsections (2) and (3) must be on the FWC’s website and by any other means the FWC considers appropriate.
(5) A reference in this Act (other than in this section) to a submission under this section includes a reference to a summary or statement referred to in paragraph (3)(b).
(6) For the purposes of subsection (1), an affected entity, in relation to a proposed variation or revocation of a road transport contractual chain order in relation to which a notice of intent has been published under paragraph 536QL(1)(a), is:
(a) a person or body likely to be affected by the proposed variation or revocation; or
(b) a person or body prescribed by the regulations, or belonging to a class of persons or bodies prescribed by the regulations.
(7) The FWC may, but is not required to, hold a hearing in relation to the following:
(a) a draft road transport contractual chain order as proposed to be varied;
(b) a proposed revocation of a road transport contractual chain order.
536QN Finalising draft order
(1) The FWC may make any changes it thinks appropriate to a draft road transport contractual chain order as proposed to be varied.
(2) If changes proposed to be made under subsection (1) are significant, the FWC must:
(a) decide not to vary the road transport contractual chain order based on the draft; and
(b) publish a subsequent notice of intent under paragraph 536QL(1)(a) in relation to the revised draft road transport contractual chain order, and publish the revised draft; and
(c) follow the process set out in section 536QM in relation to the revised draft road transport contractual chain order (with the period of consultation under that section to be no shorter than 12 months starting when the subsequent notice of intent and the revised draft required by paragraph (b) of this subsection were published).
Division 5—Road transport contractual chain guidelines
536QP Road transport contractual chain guidelines
(1) The FWC may make guidelines under this section (road transport contractual chain guidelines) that set standards for regulated road transport contractors, road transport employee‑like workers and other persons in a road transport contractual chain.
(2) The FWC may make road transport contractual chain guidelines under this section:
(a) on its own initiative; or
(b) on application under section 536QQ.
536QQ Applications for road transport contractual chain guidelines
(1) Any of the following may apply to the FWC for the making of road transport contractual chain guidelines:
(a) an organisation that is entitled to represent the industrial interests of one or more of the persons that would be covered by the proposed road transport contractual chain guidelines;
(b) a regulated business that would be covered by the proposed road transport contractual chain guidelines;
(c) a person who is a primary party to the first contract or arrangement in a road transport contractual chain that would be covered by the proposed road transport contractual chain guidelines;
(d) the Minister;
(e) a person or body prescribed by the regulations.
Matters to be specified in an application
(2) An application for the making of road transport contractual chain guidelines must specify the class of persons in a road transport contractual chain to be covered by the guidelines.
(3) Without limiting the way in which a class may be described for the purposes of subsection (2), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.
536QR Decisions on applications for road transport contractual chain guidelines
(1) If an application for road transport contractual chain guidelines is made to the FWC under subsection 536QQ(1), the FWC may decide to:
(a) refuse to consider the application; or
(b) make road transport contractual chain guidelines under subsection 536QP(1); or
(c) not make road transport contractual chain guidelines; or
(d) if the FWC considers it appropriate to do so, instead make a road transport contractual chain order under subsection 536PD(1), as if the application had been an application under subsection 536PE(1) for a road transport contractual chain order in relation to the persons covered by the application under subsection 536QQ(1).
(2) Without limiting subsection (1), the FWC may refuse to consider the application if it is not consistent with a direction of the President under subsection 582(4D) (prioritisation).
536QS Road transport contractual chain guidelines not to be made if a road transport contractual chain order is in operation
The FWC must not make road transport contractual chain guidelines that cover the same persons in a road transport contractual chain in relation to the same matters as a road transport contractual chain order that is in operation.
536QT Terms that must be included in road transport contractual chain guidelines
Road transport contractual chain guidelines must include terms setting out the same matters in relation to road transport contractual chain orders as set out in section 536PM.
536QU Terms that may be included in road transport contractual chain guidelines
Road transport contractual chain guidelines may include terms about any of the matters that may be included in road transport contractual chain orders under section 536PQ.
536QV Terms that must not be included in road transport contractual chain guidelines
Road transport contractual chain guidelines must not include terms about any of the matters that must not be included in road transport contractual chain orders as set out in section 536PR.
536QW FWC may vary or revoke road transport contractual chain guidelines
(1) The FWC may make a determination varying or revoking road transport contractual chain guidelines if the FWC is satisfied that making the determination is consistent with the road transport objective and the minimum standards objective.
(2) The FWC may make a determination varying road transport contractual chain guidelines in such a way that not all of the elements of the variation sought in an application under section 536QX are implemented, including by refusing to make a variation to the extent that it would result in the guidelines covering persons who are not in a road transport contractual chain.
(3) The FWC may make a determination varying road transport contractual chain guidelines to remove an ambiguity or uncertainty or to correct an error.
(4) The FWC may make a determination varying or revoking road transport contractual chain guidelines:
(a) on its own initiative; or
(b) on application under section 536QX.
(5) If the FWC makes a road transport contractual chain order that covers the same persons in a road transport contractual chain in relation to the same matters as road transport contractual chain guidelines, the FWC must revoke the road transport contractual chain guidelines with effect on and from the day on which the road transport contractual chain order comes into operation.
(6) If the FWC makes a road transport contractual chain order that covers some or all of the same persons in a road transport contractual chain in relation to some or all of the same matters as road transport contractual chain guidelines, the FWC must vary the road transport contractual chain guidelines so that the guidelines do not cover the persons or matters covered by the order, with effect on and from the day on which the order comes into operation.
536QX Applications to vary or revoke road transport contractual chain guidelines
Any of the following may apply to the FWC for a determination varying or revoking road transport contractual chain guidelines:
(a) an organisation that is entitled to represent the industrial interests of one or more of the persons covered by the road transport contractual chain guidelines, or that would be covered by the road transport contractual chain guidelines as proposed to be varied;
(b) a regulated business covered by the road transport contractual chain guidelines, or that would be covered by the road transport contractual chain guidelines as proposed to be varied;
(c) a person who is a primary party to the first contract or arrangement in a road transport contractual chain covered by the road transport contractual chain guidelines, or that would be covered by the road transport contractual chain guidelines as proposed to be varied;
(d) the Minister;
(e) a person or body prescribed by the regulations.
Chapter 4—Compliance and enforcement
Part 4‑1—Civil remedies
Division 1—Introduction
537 Guide to this Part
This Part 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.
Subdivision A of Division 2 deals with applications for orders in relation to contraventions of civil remedy provisions and safety net contractual entitlements, and applications for orders to enforce entitlements arising under subsection 542(1).
Subdivision B of Division 2 sets out the orders that can be made by the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory Court in relation to a contravention of a civil remedy provision.
Division 3 sets out when proceedings relating to a contravention of a civil remedy provision may be dealt with as small claims proceedings.
Division 4 deals with general provisions relating to civil remedies, including rules about evidence and procedure.
Division 4A imposes obligations on responsible franchisor entities in relation to certain contraventions of civil remedy provisions by franchisee entities and on holding companies in relation to certain contraventions of civil remedy provisions by subsidiaries.
Division 5 deals with unclaimed money.
538 Meanings of employee and employer
In this Part, employee and employer have their ordinary meanings.
Note: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).
Division 2—Orders
Subdivision A—Applications for orders
539 Applications for orders in relation to contraventions of civil remedy provisions
(1) A provision referred to in column 1 of an item in the table in subsection (2) is a civil remedy provision.
(2) For each civil remedy provision, the persons referred to in column 2 of the item may, subject to sections 540 and 544 and Subdivision B, apply to the courts referred to in column 3 of the item for orders in relation to a contravention or proposed contravention of the provision, including the maximum penalty referred to in column 4 of the item.
Note 1: Civil remedy provisions within a single Part may be grouped together in a single item of the table.
Note 2: Applications cannot be made by an inspector in relation to a contravention of a civil remedy provision by a person in certain cases where an undertaking or compliance notice has been given (see subsections 715(4) and 716(4A)).
Note 3: The regulations may also prescribe persons for the purposes of an item in column 2 of the table (see subsection 540(8)).
Note 4: See section 557A in relation to a serious contravention of a civil remedy provision.
Standing, jurisdiction and maximum penalties |
Item | Column 1
Civil remedy provision | Column 2
Persons | Column 3
Courts | Column 4
Maximum penalty |
Part 2‑1—Core provisions |
1 | 44 | (a) an employee; (b) an employee organisation; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | for a serious contravention—600 penalty units; or otherwise—60 penalty units |
2 | 45 (other than in relation to a contravention or proposed contravention of an outworker term) | (a) an employee; (b) an employer; (c) an employee organisation; (d) an employer organisation; (e) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | for a serious contravention—600 penalty units; or otherwise—60 penalty units |
3 | 45 (in relation to a contravention or proposed contravention of an outworker term) | (a) an outworker; (b) an employer; (c) an outworker entity; (d) an employee organisation; (e) an employer organisation; (f) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | for a serious contravention—600 penalty units; or otherwise—60 penalty units |
4 | 50 (other than in relation to a contravention or proposed contravention of a term that would be an outworker term if it were included in a modern award) | (a) an employee; (b) an employer; (c) an employee organisation to which the enterprise agreement concerned applies; (d) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | for a serious contravention—600 penalty units; or otherwise—60 penalty units |
5 | 50 (in relation to a contravention or proposed contravention of a term that would be an outworker term if it were included in a modern award) | (a) an employee; (b) an employer; (c) an employee organisation; (d) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | for a serious contravention—600 penalty units; or otherwise—60 penalty units |
Part 2‑2—The National Employment Standards |
5AA | 65C(6) | (a) an employee; (b) an employee organisation; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
5AAA | 66MA(8) | (a) an employee; (b) an employee organisation; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 300 penalty units |
5AB | 76C(7) | (a) an employee; (b) an employee organisation; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
Part 2‑4—Enterprise agreements |
5AC | 177A(3) | (a) an employee; (b) a bargaining representative for the proposed enterprise agreement; (c) an inspector; (d) the General Manager; (e) the administrator of a scheme determined under subsection
323B(1) of the Registered Organisations Act | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 600 penalty units |
5A | 179(1) 179(5) | (a) an employee; (b) a bargaining representative for the proposed enterprise agreement; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
5B | 180(4A) 180(4B) 180(4C) | (a) an employee; (b) a bargaining representative for the proposed enterprise agreement; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
5C | 226A(6) | (a) an employee; (b) an employee organisation to which the enterprise agreement applied immediately before the termination of the agreement; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | for a serious contravention—600 penalty units; or otherwise—60 penalty units |
6 | 233 | (a) an employee who the proposed enterprise agreement will cover; (b) a bargaining representative for the proposed enterprise agreement; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
Part 2‑5—Workplace determinations |
7 | 280 | (a) an employee; (b) an employer; (c) an employee organisation to which the workplace determination concerned applies; (d) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | for a serious contravention—600 penalty units; or otherwise—60 penalty units |
Part 2‑6—Minimum wages |
8 | 293 | (a) an employee; (b) an employee organisation; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | for a serious contravention—600 penalty units; or otherwise—60 penalty units |
Part 2‑7—Equal remuneration |
9 | 305 | (a) an employee; (b) an employee organisation; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | for a serious contravention—600 penalty units; or otherwise—60 penalty units |
Part 2‑7A—Regulated labour hire arrangement orders |
9A | 306EC(1) 306ED(2) 306ED(4) 306EE(2) 306EE(3) 306F(2) 306H(3) 306N(3) 306Q(7) 306S(1) 306SA(1) 306T 306U 306V | (a) an employee; (b) an employee organisation; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | for a serious contravention—600 penalty units; or otherwise—60 penalty units |
Part 2‑9—Other terms and conditions of employment |
10 | 323(1)
323(3)
325(1)
328(1)
328(2)
328(3) | (a) an employee; (b) an employee organisation; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | for a serious contravention—600 penalty units; or otherwise—60 penalty units |
10A | 325(1A) | (a) a prospective employee; (b) an employee; (c) an employee organisation; (d) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | for a serious contravention—600 penalty units; or otherwise—60 penalty units |
10B | 333D | (a) a prospective employee; (b) an employee; (c) an employee organisation; (d) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | for a serious contravention—600 penalty units; or otherwise—60 penalty units |
10C | 333E | (a) a prospective employee; (b) an employee; (c) an employee organisation; (d) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | for a serious contravention—600 penalty units; or otherwise—60 penalty units |
10D | 333K | (a) a prospective employee; (b) an employee; (c) an employee organisation; (d) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | for a serious contravention—600 penalty units; or otherwise—60 penalty units |
10E | 333Q | (a) a person affected by the contravention; (b) an industrial association; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
Part 3‑1—General protections |
11 | 340(1)
340(2)
343(1)
344
345(1)
346
348
349(1)
350(1)
350(2)
350(2A)
350A(1)
350B(1)
351(1)
352
353(1)
354(1)
354(3)
355
369(3) | (a) a person affected by the contravention; (b) an industrial association; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 60 penalty units |
11A | 357(1)
358
359 | (a) a person affected by the contravention; (b) an industrial association; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 60 penalty units |
11B | 359B
359C | (a) a person affected by the contravention; (b) an industrial association; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 300 penalty units |
12 | 378 | (a) a person to whom the costs are payable; (b) an industrial association; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 60 penalty units |
Part 3‑2—Unfair dismissal |
13 | 405 | (a) a person affected by the contravention; (b) an employee organisation; (c) an employer organisation; (d) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
Part 3‑3—Industrial action |
14 | 417(1) | (a) an employee; (b) an employer; (c) an employee organisation covered by the enterprise agreement or workplace determination concerned; (d) a person affected by the industrial action; (e) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 60 penalty units |
15 | 421(1) | (a) a person affected by the contravention; (b) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 60 penalty units |
16 | 434 | an inspector | the Federal Court | 60 penalty units |
17 | 458(2) | (a) an employee; (b) an employer; (c) an applicant for the protected action ballot order; (d) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 30 penalty units |
18 | 462(1)
462(3) | (a) an employee; (b) an employer; (c) an applicant for the protected action ballot order; (d) the protected action ballot agent (unless the protected action ballot agent is the Australian Electoral Commission); (da) if the protected action ballot agent is the Australian Electoral Commission—the Electoral Commissioner; (e) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 30 penalty units |
19 | 463(1)
463(2) | (a) an employee; (b) an employer; (c) an applicant for the protected action ballot order; (d) the protected action ballot agent (unless the protected action ballot agent is the Australian Electoral Commission); (da) if the protected action ballot agent is the Australian Electoral Commission—the Electoral Commissioner; (e) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 60 penalty units |
20 | 467(1) | (a) an employee; (b) an employer; (c) an applicant for the protected action ballot order; (d) the protected action ballot agent (unless the protected action ballot agent is the Australian Electoral Commission); (da) if the protected action ballot agent is the Australian Electoral Commission—the Electoral Commissioner; (e) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 30 penalty units |
21 | 470(1) | an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 60 penalty units |
22 | 473(1)
473(2) | (a) an employer; (b) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 60 penalty units |
23 | 474(1) | an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 60 penalty units |
24 | 475(1)
475(2) | (a) an employer; (b) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 60 penalty units |
Part 3‑4—Right of entry |
25 | 482(3)
483(4)
483B(4)
483C(5)
483D(4)
483E(5)
494(1)
495(1)
496
497
498
499
500
501
502(1) | (a) a person affected by the contravention; (b) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 60 penalty units |
25A | 503(1) | (a) a person affected by the contravention; (b) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | for a contravention by a removed person—600 penalty units; or otherwise—60 penalty units |
25B | 504 506 509 521C(3) 521D(3) | (a) a person affected by the contravention; (b) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 60 penalty units |
26 | 517(1) | an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 60 penalty units |
Part 3‑5—Stand down |
27 | 527 | (a) an employee; (b) an employee organisation; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
Part 3‑5A—Prohibiting sexual harassment in connection with work |
27A | 527D(1) | (a) a person affected by the contravention; (b) an industrial association; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); | 60 penalty units |
27B | 527K | (a) a person affected by the contravention; (b) an industrial association; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
27C | 527S(4) | a person affected by the contravention; | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); | 60 penalty units |
Part 3‑6—Other rights and responsibilities |
28 | 530(4) | (a) an employee; (b) a registered employee association; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 30 penalty units |
29 | 535(1)
535(2)
535(4)
536(1)
536(2)
536(3) | (a) an employee; (b) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | for a serious contravention—600 penalty units; or otherwise—60 penalty units |
29AA | 536AA(1) 536AA(2) | (a) an employee organisation; (b) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 60 penalty units |
Part 3A‑2—Minimum standards for regulated workers |
29AB | 536JB | (a) a regulated worker covered by the relevant minimum standards order; (b) a regulated business covered by the relevant minimum standards order; (c) an organisation; (d) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | for a serious contravention—600 penalty units; or otherwise—60 penalty units |
Part 3A‑3—Unfair deactivation and unfair termination |
29AC | 536MG | (a) a party to the relevant services contract; (b) a digital labour platform operator that arranged or facilitated entry into the relevant services contract; (c) an organisation; (d) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
Part 3A‑4—Collective agreements |
29AD | 536JJ | (a) a regulated worker covered by the collective agreement; (b) a regulated business covered by the collective agreement; (c) an organisation | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | for a serious contravention—600 penalty units; or otherwise—60 penalty units |
Part 3A‑5—Unfair contract terms of services contracts |
29AE | 536NK | (a) a party to the relevant services contract; (b) an organisation; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
Part 3B‑2—Minimum standards for persons in a road transport contractual chain |
29AF | 536NP | (a) a person (the first person) covered by the relevant road transport contractual chain order; (b) an organisation entitled to represent the interests of the first person; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
Part 4‑1—Civil remedies |
29A | 558B(1) 558B(2) | (a) an employee; (b) an employee organisation; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 60 penalty units |
Part 5‑1—The Fair Work Commission |
30 | 611(3) | (a) a person to whom the costs are payable; (b) an employee organisation; (c) an employer organisation; (d) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
Part 5‑2—Office of the Fair Work Ombudsman |
30A | 707A(1) | an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
31 | 711(3) | an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 30 penalty units |
32 | 712(3) | an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
32A | 712B(1) | an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 600 penalty units |
33 | 716(5) | an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
33A | 718A(1) | an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
Part 6‑3—Extension of National Employment Standards entitlements |
34 | 745
760 | (a) an employee; (b) a registered employee association; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
34AAA | 757BA | (a) an employee; (b) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | for a serious contravention—600 penalty units; or otherwise—60 penalty units |
34AA | 757C | (a) an employee; (b) a registered employee association; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
Part 6‑3A—Transfer of business from a State public sector employer |
34A | 768AG | (a) the transferring employee; (b) an employer; (c) an employee organisation; (d) an employer organisation; (e) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
34B | 768BT | (a) the transferring employee; (b) an employer; (c) an employee organisation; (d) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
Part 6‑4—Additional provisions relating to termination of employment |
35 | 772(1)
777(3) | (a) a person affected by the contravention; (b) an industrial association; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 60 penalty units |
36 | 782 | (a) a person to whom the costs are payable; (b) an industrial association; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 60 penalty units |
37 | 785(4) | (a) an employee; (b) a registered employee association; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2) | 30 penalty units |
Part 6‑4B—Workers bullied at work |
38 | 789FG | (a) a person affected by the contravention; (b) an industrial association; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) an eligible State or Territory court | 60 penalty units |
(3) The regulations may provide that a provision set out in the regulations is a civil remedy provision.
(4) If the regulations make provision as mentioned in subsection (3):
(a) the regulations must set out:
(i) the persons who would be referred to in column 2; and
(ii) the courts that would be referred to in column 3; and
(iii) the maximum penalty that would be referred to in column 4;
of the table in subsection (2) if there were an item for the civil remedy provision in the table; and
(b) this Part has effect as if the matters referred to subparagraphs (a)(i) to (iii) were set out in such an item in the table.
Note: See section 798 for limits on the penalties that may be set out in the regulations.
540 Limitations on who may apply for orders etc.
Employees, employers, outworkers and outworker entities
(1) The following persons may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if the person is affected by the contravention, or will be affected by the proposed contravention:
(a) an employee;
(aa) a prospective employee;
(b) an employer;
(c) an outworker;
(d) an outworker entity.
Employee organisations and registered employee associations
(2) An employee organisation or a registered employee association may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision in relation to an employee, only if:
(a) the employee is affected by the contravention, or will be affected by the proposed contravention; and
(b) the organisation or association is entitled to represent the industrial interests of the employee.
(3) However, subsection (2) does not apply in relation to:
(a) items 4, 7 and 14 in the table in subsection 539(2); or
(b) a contravention or proposed contravention of:
(i) an outworker term in a modern award; or
(ii) a term in an enterprise agreement that would be an outworker term if it were included in a modern award.
(4) An employee organisation may apply for an order under this Division, in relation to a contravention or proposed contravention of:
(a) an outworker term in a modern award; or
(b) a term in an enterprise agreement that would be an outworker term if it were included in a modern award;
only if the employee organisation is entitled to represent the industrial interests of an outworker to whom the term relates.
Employer organisations
(5) An employer organisation may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if the organisation has a member who is affected by the contravention, or who will be affected by the proposed contravention.
Industrial associations
(6) An industrial association may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if:
(a) the industrial association is affected by the contravention, or will be affected by the proposed contravention; or
(b) if the contravention is in relation to a person:
(i) the person is affected by the contravention, or will be affected by the proposed contravention; and
(ii) the industrial association is entitled to represent the industrial interests of the person.
(7) If an item in column 2 of the table in subsection 539(2) refers to an industrial association then, to avoid doubt, an employee organisation, a registered employee association or an employer organisation may apply for an order, in relation to a contravention or proposed contravention of a civil remedy provision, only if the organisation or association is entitled to apply for the order under subsection (6).
Regulated workers and regulated businesses
(7A) The following persons may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if the person is affected by the contravention, or will be affected by the proposed contravention:
(a) a regulated worker;
(b) a regulated business.
Parties to services contracts
(7B) A person who is a party to a services contract to which an order under Division 4 of Part 3A‑5 relates may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if the person is affected by the contravention, or will be affected by the proposed contravention.
Persons in a road transport contractual chain
(7C) A person in a road transport contractual chain may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if:
(a) the person is affected by the contravention, or will be affected by the proposed contravention; and
(b) the person is a party to a contract with another person covered by the relevant road transport contractual chain order, being a person who is alleged to have committed the contravention.
Regulations
(8) The regulations may prescribe a person for the purposes of an item in column 2 of the table in subsection 539(2). The regulations may provide that the person is prescribed only in relation to circumstances specified in the regulations.
541 Applications for orders in relation to safety net contractual entitlements
(1) This section applies if an inspector applies to a court for an order under this Division, in relation to an employer’s contravention or proposed contravention of a provision or term referred to in subsection (3) in relation to an employee.
(2) The inspector may also apply to the court, on behalf of the employee, for an order in relation to the employer’s contravention, or proposed contravention, of a safety net contractual entitlement of the employee.
(3) The provisions and terms are the following:
(a) a provision of the National Employment Standards;
(b) a term of a modern award;
(c) a term of an enterprise agreement;
(d) a term of a workplace determination;
(e) a term of a national minimum wage order;
(f) a term of an equal remuneration order.
542 Entitlements under contracts
(1) For the purposes of this Part, a safety net contractual entitlement of a national system employer or a national system employee, as in force from time to time, also has effect as an entitlement of the employer or employee under this Act.
(2) The entitlement has effect under this Act subject to any modifications, by a law of the Commonwealth (including this Act or a fair work instrument), a State or a Territory, of the safety net contractual entitlement.
543 Applications for orders in relation to statutory entitlements derived from contracts
A national system employer or a national system employee may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) to enforce an entitlement of the employer or employee arising under subsection 542(1).
544 Time limit on applications
A person may apply for an order under this Division in relation to a contravention of one of the following only if the application is made within 6 years after the day on which the contravention occurred:
(a) a civil remedy provision;
(b) a safety net contractual entitlement;
(c) an entitlement arising under subsection 542(1).
Note 1: This section does not apply in relation to general protections court applications, sexual harassment court applications or unlawful termination court applications (see subparagraphs 370(a)(ii), 527T(1)(a)(ii) and 778(a)(ii)).
Note 2: For time limits on orders relating to underpayments, see subsection 545(5).
Subdivision B—Orders
545 Orders that can be made by particular courts
Federal Court and Federal Circuit and Family Court of Australia (Division 2)
(1) The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.
Note 1: For the court’s power to make pecuniary penalty orders, see section 546.
Note 2: For limitations on orders in relation to costs, see section 570.
Note 3: The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) may grant injunctions in relation to industrial action under subsections 417(3) and 421(3).
Note 4: There are limitations on orders that can be made in relation to contraventions of subsection 463(1) or (2) (which deals with protected action ballot orders) (see subsection 463(3)).
(2) Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make include the following:
(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
(b) an order awarding compensation for loss that a person has suffered because of the contravention;
(c) an order for reinstatement of a person;
(d) an order requiring a person to comply, either wholly or partly, with a notice (other than an infringement notice) given to the person by an inspector or the Fair Work Ombudsman.
Eligible State or Territory courts
(3) An eligible State or Territory court may order an employer to pay an amount to, or on behalf of, an employee of the employer if the court is satisfied that:
(a) the employer was required to pay the amount under this Act or a fair work instrument; and
(b) the employer has contravened a civil remedy provision by failing to pay the amount.
Note 1: For the court’s power to make pecuniary penalty orders, see section 546.
Note 2: For limitations on orders in relation to costs, see section 570.
(3A) An eligible State or Territory court may order an outworker entity to pay an amount to, or on behalf of, an outworker if the court is satisfied that:
(a) the outworker entity was required to pay the amount under a modern award; and
(b) the outworker entity has contravened a civil remedy provision by failing to pay the amount.
Note 1: For the court’s power to make pecuniary penalty orders, see section 546.
Note 2: For limitations on orders in relation to costs, see section 570.
When orders may be made
(4) A court may make an order under this section:
(a) on its own initiative, during proceedings before the court; or
(b) on application.
Time limit for orders in relation to underpayments
(5) A court must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced.
545A Orders relating to casual loading amounts
(1) This section applies if:
(a) a person is employed by an employer in circumstances where the employment is described as casual employment; and
(b) the employer pays the person an identifiable amount (the loading amount) paid to compensate the person for not having one or more relevant entitlements during a period (the employment period); and
(c) during the employment period, the person was not a casual employee; and
(d) the person (or another person for the benefit of the person) makes a claim to be paid an amount for one or more of the relevant entitlements with respect to the employment period.
Note: For the purposes of paragraph (d), another person making a claim for the benefit of the person could include an inspector or an employee organisation.
(2) When making any orders in relation to the claim, a court must reduce (but not below nil) any amount payable by the employer to the person for the relevant entitlements (the claim amount) by an amount equal to the loading amount.
Note: If the claim is below a certain amount, the person may choose to use the small claims procedure: see section 548.
(3) Despite subsection (2), the court may reduce the claim amount by an amount equal to a proportion (which may be nil) of the loading amount the court considers appropriate, having regard only to:
(a) if a term of the fair work instrument or contract of employment under which the loading amount is paid specifies the relevant entitlements the loading amount is compensating for and specifies the proportion of the loading amount attributable to each such entitlement—that term (including those proportions); or
(b) if a term of the fair work instrument or contract of employment under which the loading amount is paid specifies the relevant entitlements the loading amount is compensating for but does not specify the proportion of the loading amount attributable to each such entitlement—that term and what would be an appropriate proportion of the loading amount attributable to each of those entitlements in all the circumstances; or
(c) if paragraph (a) or (b) does not apply—the entitlements referred to in subsection (4) and what would be an appropriate proportion of the loading amount attributable to each of those entitlements in all the circumstances.
(4) A reference in this section to a relevant entitlement is a reference to an entitlement under the National Employment Standards, a fair work instrument or a contract of employment to any of the following:
(a) paid annual leave;
(b) paid personal/carer’s leave;
(c) paid compassionate leave;
(d) payment for absence on a public holiday;
(e) payment in lieu of notice of termination;
(f) redundancy pay.
(5) To avoid doubt, an entitlement referred to in subsection (4) includes any such entitlement that has accrued but is untaken.
546 Pecuniary penalty orders
(1) The Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.
Note 1: Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of a modern award, a national minimum wage order or an enterprise agreement only because of the retrospective effect of a determination (see subsections 167(3) and 298(2)).
Note 2: Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of an enterprise agreement only because of the retrospective effect of an amendment made under paragraph 227B(3)(b) (see subsection 227E(2)).
Determining amount of pecuniary penalty
(2) Subject to this section, the pecuniary penalty must not be more than:
(a) if the person is an individual—the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or
(b) if the person is a body corporate—5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).
(2AA) Despite paragraph (2)(b), if:
(a) the civil remedy provision is a selected civil remedy provision; and
(b) the person is a body corporate; and
(c) when the application for the order is made, the person is not a small business employer;
the pecuniary penalty must not be more than 5 times the amount worked out in accordance with paragraph (2)(b).
Payment of penalty
(3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to:
(a) the Commonwealth; or
(b) a particular organisation; or
(c) a particular person.
Recovery of penalty
(4) The pecuniary penalty may be recovered as a debt due to the person to whom the penalty is payable.
No limitation on orders
(5) To avoid doubt, a court may make a pecuniary penalty order in addition to one or more orders under section 545.
547 Interest up to judgment
(1) This section applies to an order (other than a pecuniary penalty order) under this Division in relation to an amount that a person was required to pay to, or on behalf of, another person under this Act or a fair work instrument.
(2) In making the order the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.
(3) Without limiting subsection (2), in determining the amount of interest, the court must take into account the period between the day the relevant cause of action arose and the day the order is made.
Division 3—Small claims procedure
548 Plaintiffs may choose small claims procedure
(1) Proceedings are to be dealt with as small claims proceedings under this section if:
(a) a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit and Family Court of Australia (Division 2); and
(b) the order relates to an amount referred to in subsection (1A); and
(c) the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.
(1A) The amounts are as follows:
(a) an amount that an employer was required to pay to, or on behalf of, an employee:
(i) under this Act or a fair work instrument; or
(ii) because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1);
(b) an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.
(1B) Proceedings are also to be dealt with as small claims proceedings under this section if:
(a) a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit and Family Court of Australia (Division 2) in connection with a dispute relating to one or more of the following matters:
(v) whether a person has contravened subsection 333E(1) (limitations on fixed term contracts);
(vi) whether subsection 333G(1) (effect of entering prohibited fixed term contract) applies in relation to a contract; and
(b) the person applying for the order indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.
(1C) Proceedings are also to be dealt with as small claims proceedings under this section if:
(a) a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit and Family Court of Australia (Division 2) in connection with a dispute; and
(b) the dispute relates to whether a person was a casual employee of an employer when the person commenced employment with that employer; and
(c) the person applying for the order indicates, in a manner prescribed by the regulations or by the rules of the court, that the person wants the small claims procedure to apply to the proceedings.
Note: Orders that a court may make under Division 2 in relation to small claims proceedings under this subsection may include a declaration that the employee was a casual employee, a part‑time employee or a full‑time employee when the employee commenced employment with the employer.
Limits on award
(2) In small claims proceedings, the court may not award more than:
(a) $100,000; or
(b) if a higher amount is prescribed by the regulations—that higher amount.
(2A) Interest awarded under section 547 does not count towards the maximum amount that the court may award under subsection (2) of this section.
Procedure
(3) In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities.
(4) At any stage of the small claims proceedings, the court may amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment.
Legal representation
(5) A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court.
(6) If the court grants leave for a party to the proceedings to be represented by a lawyer, the court may, if it considers appropriate, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.
(7) For the purposes of this section, a person is taken not to be represented by a lawyer if the lawyer is an employee or officer of the person.
Representation by an industrial association
(8) The regulations may provide for a party to small claims proceedings to be represented in the proceedings, in specified circumstances, by an official of an industrial association.
(9) However, if small claims proceedings are heard in a court of a State, the regulations may so provide only if the law of the State allows a party to be represented in that court in those circumstances by officials of bodies representing interests related to the matters in dispute.
Costs for filing fees paid in relation to the proceedings
(10) If the court makes an order (the small claims order) mentioned in subsection (1) against a party to small claims proceedings, the court may make an order as to costs against the party for any filing fees paid to the court by the party that applied for the small claims order.
(11) Subsection (10) applies despite section 570.
Division 4—General provisions relating to civil remedies
549 Contravening a civil remedy provision is not an offence
A contravention of a civil remedy provision is not an offence.
550 Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
Note: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
551 Civil evidence and procedure rules for proceedings relating to civil remedy provisions
A court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention, or proposed contravention, of a civil remedy provision.
552 Civil proceedings after criminal proceedings
A court must not make a pecuniary penalty order against a person for a contravention of a civil remedy provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.
553 Criminal proceedings during civil proceedings
(1) Proceedings for a pecuniary penalty order against a person for a contravention of a civil remedy provision are stayed if:
(a) criminal proceedings are commenced or have already commenced against the person for an offence; and
(b) the offence is constituted by conduct that is substantially the same as the conduct in relation to which the order would be made.
(2) The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.
554 Criminal proceedings after civil proceedings
Criminal proceedings may be commenced against a person for conduct that is substantially the same as conduct constituting a contravention of a civil remedy provision regardless of whether an order has been made against the person under Division 2.
555 Evidence given in proceedings for pecuniary penalty not admissible in criminal proceedings
(1) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:
(a) the individual previously gave the information or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of a civil remedy provision (whether or not the order was made); and
(b) the conduct alleged to constitute the offence is substantially the same as the conduct in relation to which the order was sought.
(2) However, this does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.
556 Civil double jeopardy
If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.
Note: A court may make other orders, such as an order for compensation, in relation to particular conduct even if the court has made a pecuniary penalty order in relation to that conduct (see subsection 546(5)).
557 Course of conduct
(1) For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:
(a) the contraventions are committed by the same person; and
(b) the contraventions arose out of a course of conduct by the person.
(2) The civil remedy provisions are the following:
(a) section 44 (which deals with contraventions of the National Employment Standards);
(b) section 45 (which deals with contraventions of modern awards);
(c) section 50 (which deals with contraventions of enterprise agreements);
(d) section 280 (which deals with contraventions of workplace determinations);
(e) section 293 (which deals with contraventions of national minimum wage orders);
(f) section 305 (which deals with contraventions of equal remuneration orders);
(fa) subsection 306F(2) (which deals with the protected rate of pay payable to employees covered by a regulated labour hire arrangement order);
(fb) subsection 306H(3) (which deals with the obligations of regulated hosts covered by a regulated labour hire arrangement order);
(fc) subsection 306N(3) (which deals with the contravention of alternative protected rate of pay orders);
(fd) subsection 306Q(7) (which deals with the contravention of arbitrated protected rate of pay orders);
(g) subsection 323(1) (which deals with methods and frequency of payment);
(h) subsection 323(3) (which deals with methods of payment specified in modern awards or enterprise agreements);
(i) subsection 325(1) (which deals with unreasonable requirements on employees to spend or pay amounts);
(ia) subsection 325(1A) (which deals with unreasonable requirements on prospective employees to spend or pay amounts);
(j) subsection 417(1) (which deals with industrial action before the nominal expiry date of an enterprise agreement etc.);
(k) subsection 421(1) (which deals with contraventions of orders in relation to industrial action);
(l) section 434 (which deals with contraventions of Ministerial directions in relation to industrial action);
(la) subsection 527D(1) (which deals with sexual harassment in connection with work);
(m) subsection 530(4) (which deals with notifying Centrelink of certain proposed dismissals);
(n) subsections 535(1), (2) and (4) (which deal with employer obligations in relation to employee records);
(o) subsections 536(1), (2) and (3) (which deal with employer obligations in relation to pay slips);
(oa) subsections 536AA(1) and (2) (which deal with employer obligations in relation to advertising rates of pay);
(ob) section 536JB (which deals with contraventions of minimum standards orders);
(oc) section 536JJ (which deals with contraventions of collective agreements);
(od) section 536NK (which deals with contraventions of orders under Division 4 of Part 3A‑5);
(oe) section 536NP (which deals with contraventions of road transport contractual chain orders);
(p) section 745 (which deals with contraventions of the extended parental leave provisions);
(paa) section 757BA (which deals with employer obligations in relation to pay slips relating to paid leave to which the person is entitled because of section 757B);
(pa) section 757C (which deals with contraventions of the extended paid family and domestic violence leave provisions);
(q) section 760 (which deals with contraventions of the extended notice of termination provisions);
(r) subsection 785(4) (which deals with notifying Centrelink of certain proposed terminations);
(s) any other civil remedy provisions prescribed by the regulations.
(3) Subsection (1) does not apply to a contravention of a civil remedy provision that is committed by a person after a court has imposed a pecuniary penalty on the person for an earlier contravention of the provision.
557A Serious contravention of civil remedy provisions
(1) A contravention of a civil remedy provision by a person is a serious contravention if:
(a) the person knowingly contravened the provision; or
(b) the person was reckless as to whether the contravention would occur.
Note: For the liability of bodies corporate for serious contraventions, see section 557B.
Example: Generally, subsection 323(1) requires an employer to pay an employee the full amount payable to the employee in relation to the performance of work.
A contravention of subsection 323(1) is a serious contravention if the employer knowingly does not pay the employee in full or is reckless as to whether the failure would occur. It does not matter if the employer does not know the exact amount of the underpayment.
(2) For the purposes of subsection (1), a person is reckless as to whether a contravention would occur if:
(a) the person is aware of a substantial risk that the contravention would occur; and
(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.
Involvement in a serious contravention
(5A) A person (the involved person) who is involved in a contravention of a civil remedy provision by another person (the principal) commits a serious contravention of the provision only if:
(a) the principal’s contravention was a serious contravention; and
(b) the involved person knew that the principal’s contravention was a serious contravention.
Application for a serious contravention order and alternative orders
(6) If a person is applying for an order in relation to a serious contravention of a civil remedy provision, the person’s application under subsection 539(2) must specify the relevant serious contravention.
(7) If, in proceedings for an order in relation to a serious contravention of a civil remedy provision, the court:
(a) is not satisfied that the person has committed a serious contravention against that provision; and
(b) is satisfied that the person has contravened that provision;
the court may make a pecuniary penalty order against the person not for the serious contravention but for the contravention of that provision.
557B Liability of bodies corporate for serious contravention
(1) For the purposes of subsection 557A(1), a body corporate knowingly contravenes a civil remedy provision if the body corporate expressly, tacitly or impliedly authorised the contravention.
(2) This section does not limit section 793.
557C Presumption where records not provided
(1) If:
(a) in proceedings relating to a contravention by an employer of a civil remedy provision referred to in subsection (3), an applicant makes an allegation in relation to a matter; and
(b) the employer was required:
(i) by subsection 535(1) or (2) to make and keep a record; or
(ii) by regulations made for the purposes of subsection 535(3) to make available for inspection a record; or
(iii) by subsection 536(1) or (2) to give a pay slip;
in relation to the matter; and
(c) the employer failed to comply with the requirement;
the employer has the burden of disproving the allegation.
(2) Subsection (1) does not apply if the employer provides a reasonable excuse as to why there has not been compliance with subsection 557C(1)(b).
(3) The civil remedy provisions are the following:
(a) section 44 (which deals with contraventions of the National Employment Standards);
(b) section 45 (which deals with contraventions of modern awards);
(c) section 50 (which deals with contraventions of enterprise agreements);
(d) section 280 (which deals with contraventions of workplace determinations);
(e) section 293 (which deals with contraventions of national minimum wage orders);
(f) section 305 (which deals with contraventions of equal remuneration orders);
(g) subsection 323(1) (which deals with methods and frequency of payment);
(h) subsection 323(3) (which deals with methods of payment specified in modern awards or enterprise agreements);
(i) subsection 325(1) (which deals with unreasonable requirements to spend or pay amounts);
(j) any other civil remedy provisions prescribed by the regulations.
558 Regulations dealing with infringement notices
(1) The regulations may provide for a person who is alleged to have contravened a civil remedy provision to pay a penalty to the Commonwealth as an alternative to civil proceedings.
(2) The penalty must not exceed one‑tenth of the maximum penalty that a court could have ordered the person to pay under section 546 if the court was satisfied that the person had contravened that provision.
Division 4A—Responsibility of responsible franchisor entities and holding companies for certain contraventions
558A Meaning of franchisee entity and responsible franchisor entity
(1) A person is a franchisee entity of a franchise if:
(a) the person is a franchisee (including a subfranchisee) in relation to the franchise; and
(b) the business conducted by the person under the franchise is substantially or materially associated with intellectual property relating to the franchise.
(2) A person is a responsible franchisor entity for a franchisee entity of a franchise if:
(a) the person is a franchisor (including a subfranchisor) in relation to the franchise; and
(b) the person has a significant degree of influence or control over the franchisee entity’s affairs.
558B Responsibility of responsible franchisor entities and holding companies for certain contraventions
Responsible franchisor entities
(1) A person contravenes this subsection if:
(a) an employer who is a franchisee entity of a franchise contravenes a civil remedy provision referred to in subsection (7); and
(b) the person is a responsible franchisor entity for the franchisee entity; and
(c) the contravention by the franchisee entity occurs in the franchisee entity’s capacity as a franchisee entity; and
(d) either:
(i) the responsible franchisor entity or an officer (within the meaning of the Corporations Act 2001) of the responsible franchisor entity knew or could reasonably be expected to have known that the contravention by the franchisee entity would occur; or
(ii) at the time of the contravention by the franchisee entity, the responsible franchisor entity or an officer (within the meaning of the Corporations Act 2001) of the responsible franchisor entity knew or could reasonably be expected to have known that a contravention by the franchisee entity of the same or a similar character was likely to occur.
Note: This subsection is a civil remedy provision (see this Part).
Holding companies
(2) A person contravenes this subsection if:
(a) the person is a body corporate; and
(b) a subsidiary (within the meaning of the Corporations Act 2001) of the body corporate who is an employer contravenes a civil remedy provision referred to in subsection (7); and
(c) either:
(i) the body corporate or an officer (within the meaning of the Corporations Act 2001) of the body corporate knew or could reasonably be expected to have known that the contravention by the subsidiary would occur; or
(ii) at the time of the contravention by the subsidiary, the body corporate or an officer (within the meaning of the Corporations Act 2001) of the body corporate knew or could reasonably be expected to have known that a contravention by the subsidiary of the same or a similar character was likely to occur.
Note: This subsection is a civil remedy provision (see this Part).
Reasonable steps to prevent a contravention of the same or a similar character
(3) A person does not contravene subsection (1) or (2) if, as at the time of the contravention referred to in paragraph (1)(a) or (2)(b), the person had taken reasonable steps to prevent a contravention by the franchisee entity or subsidiary of the same or a similar character.
(4) For the purposes of subsection (3), in determining whether a person took reasonable steps to prevent a contravention by a franchisee entity or subsidiary (the contravening employer) of the same or a similar character, a court may have regard to all relevant matters, including the following:
(a) the size and resources of the franchise or body corporate (as the case may be);
(b) the extent to which the person had the ability to influence or control the contravening employer’s conduct in relation to the contravention referred to in paragraph (1)(a) or (2)(b) or a contravention of the same or a similar character;
(c) any action the person took directed towards ensuring that the contravening employer had a reasonable knowledge and understanding of the requirements under the applicable provisions referred to in subsection (7);
(d) the person’s arrangements (if any) for assessing the contravening employer’s compliance with the applicable provisions referred to in subsection (7);
(e) the person’s arrangements (if any) for receiving and addressing possible complaints about alleged underpayments or other alleged contraventions of this Act within:
(i) the franchise; or
(ii) the body corporate or any subsidiary (within the meaning of the Corporations Act 2001) of the body corporate;
as the case may be;
(f) the extent to which the person’s arrangements (whether legal or otherwise) with the contravening employer encourage or require the contravening employer to comply with this Act or any other workplace law.
(5) Subsection (4) does not limit subsection (3).
Civil proceedings in relation to contravention by franchisee entity or subsidiary not required
(6) To avoid doubt, a reference in paragraph (1)(a) or (2)(b) to a contravention by a franchisee entity or subsidiary includes any contravention whether or not an order has been sought or made against the franchisee entity or subsidiary under Division 2 for the contravention.
Relevant civil remedy provisions
(7) The civil remedy provisions are the following:
(a) section 44 (which deals with contraventions of the National Employment Standards);
(b) section 45 (which deals with contraventions of modern awards);
(c) section 50 (which deals with contraventions of enterprise agreements);
(d) section 280 (which deals with contraventions of workplace determinations);
(e) section 293 (which deals with contraventions of national minimum wage orders);
(f) section 305 (which deals with contraventions of equal remuneration orders);
(g) subsection 323(1) (which deals with methods and frequency of payment);
(h) subsection 323(3) (which deals with methods of payment specified in modern awards or enterprise agreements);
(i) subsection 325(1) (which deals with unreasonable requirements on employees to spend or pay amounts);
(ia) subsection 325(1A) (which deals with unreasonable requirements on prospective employees to spend or pay amounts);
(j) subsection 328(1), (2) or (3) (which deal with employer obligations in relation to guarantees of annual earnings);
(k) subsection 357(1) (which deals with misrepresenting employment as an independent contracting arrangement);
(l) section 358 (which deals with dismissing an employee to engage as an independent contractor);
(m) section 359 (which deals with misrepresentations to engage an individual as an independent contractor);
(n) subsection 535(1), (2) or (4) (which deal with employer obligations in relation to employee records);
(o) subsection 536(1), (2) or (3) (which deal with employer obligations in relation to pay slips).
558C Right of responsible franchisor entity or holding company to recover
(1) This section applies if:
(a) a person pays an amount to, or on behalf of, an employee pursuant to an order under subsection 545(1) relating to a contravention by the person of subsection 558B(1) or (2) in relation to a franchisee entity or subsidiary (the contravening employer); and
(b) the person has not otherwise recovered from the contravening employer an amount (the recoverable amount) equal to the amount paid by the person.
(2) The person may commence proceedings against the contravening employer for payment to the person of so much of the recoverable amount as has not been recovered.
(3) The proceedings may be commenced in:
(a) the Federal Court; or
(b) the Federal Circuit and Family Court of Australia (Division 2); or
(c) an eligible State or Territory court.
(4) The court may make an order requiring the contravening employer to pay the person the recoverable amount (or so much of it as has not been recovered from the contravening employer), if the court is satisfied that this section applies as referred to in subsection (1).
(5) In making the order, the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.
(6) Without limiting subsection (5), in determining the amount of interest, the court must take into account the period between the day when the amount referred to in paragraph (1)(a) was paid by the person and the day when the order is made.
(7) Proceedings cannot be commenced under this section more than 6 years after the time when the person paid the amount referred to in paragraph (1)(a).
Division 5—Unclaimed money
559 Unclaimed money
Payment to the Commonwealth
(1) An employer may pay an amount to the Commonwealth if:
(a) the employer was required to pay the amount to an employee under this Act or a fair work instrument; and
(b) the employee has left the employment of the employer without having been paid the amount; and
(c) the employer is unable to pay the amount to the employee because the employer does not know the employee’s whereabouts.
Discharge of employer
(2) Payment of the amount to the Commonwealth is a sufficient discharge to the employer, as against the employee, for the amount paid.
Payment where money later claimed
(3) The Fair Work Ombudsman, on behalf of the Commonwealth, must pay an amount to a person if:
(a) the amount has been paid to the Commonwealth under this section; and
(b) the person has made a claim for the amount in accordance with the form prescribed by the regulations; and
(c) the Fair Work Ombudsman is satisfied that the person is entitled to the amount.
Interest
(3A) If:
(a) an amount is paid to a person under subsection (3) at a particular time; and
(b) the amount is at least $100; and
(c) the amount is attributable to an amount that was paid to the Commonwealth under subsection (1) more than 6 months before that time;
the Fair Work Ombudsman, on behalf of the Commonwealth, must also pay to the person the amount of interest (if any) worked out in accordance with an instrument under subsection (3B).
(3B) The Minister may make an instrument for the purposes of subsection (3A).
(3C) An instrument under subsection (3B) may involve different rates of interest for different periods over which the interest accrues. For this purpose, rate includes a nil rate.
(3D) An instrument made under subsection (3B) is a legislative instrument.
Appropriation of Consolidated Revenue Fund
(4) The Consolidated Revenue Fund is appropriated for the purposes of subsection (3).
Part 4‑2—Jurisdiction and powers of courts
Division 1—Introduction
560 Guide to this Part
This Part is about the jurisdiction and powers of the courts in relation to matters arising under this Act.
Divisions 2 and 3 confer jurisdiction on the Federal Court and the Federal Circuit and Family Court of Australia (Division 2). That jurisdiction is generally required to be exercised in the Fair Work Divisions of those courts.
Division 4 deals with intervention, costs, limitation on imprisonment, and regulations, in relation to proceedings in the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) and, in some cases, a court of a State or Territory.
561 Meanings of employee and employer
In this Part, employee and employer have their ordinary meanings.
Note: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).
Division 2—Jurisdiction and powers of the Federal Court
562 Conferring jurisdiction on the Federal Court
Jurisdiction is conferred on the Federal Court in relation to any matter (whether civil or criminal) arising under this Act.
563 Exercising jurisdiction in the Fair Work Division of the Federal Court
The jurisdiction conferred on the Federal Court under section 562 is to be exercised in the Fair Work Division of the Federal Court if:
(a) an application is made to the Federal Court under this Act; or
(b) a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Act; or
(c) a declaration is sought under section 21 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or
(d) an injunction is sought under section 23 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or
(e) a prosecution is instituted in the Federal Court under this Act; or
(f) an appeal is instituted in the Federal Court from a judgment of the Federal Circuit and Family Court of Australia (Division 2) or a court of a State or Territory in a matter arising under this Act; or
(g) proceedings in relation to a matter arising under this Act are transferred to the Federal Court from the Federal Circuit and Family Court of Australia (Division 2); or
(h) the Federal Circuit and Family Court of Australia (Division 2) or a court of a State or Territory states a case or reserves a question for the consideration of the Federal Court in a matter arising under this Act; or
(i) the President refers, under section 608 of this Act, a question of law to the Federal Court; or
(j) the High Court remits a matter arising under this Act to the Federal Court.
564 No limitation on Federal Court’s powers
To avoid doubt, nothing in this Act limits the Federal Court’s powers under section 21, 22 or 23 of the Federal Court of Australia Act 1976.
565 Appeals from eligible State or Territory courts
Appeals from original decisions of eligible State or Territory courts
(1) An appeal lies to the Federal Court from a decision of an eligible State or Territory court exercising jurisdiction under this Act.
(1A) No appeal lies from a decision of an eligible State or Territory court exercising jurisdiction under this Act, except:
(a) if the court was exercising summary jurisdiction—an appeal, to that court or another eligible State or Territory court of the same State or Territory, as provided for by a law of that State or Territory; or
(b) in any case—an appeal as provided for by subsection (1).
Appeals from appellate decisions of eligible State or Territory courts
(1B) An appeal lies to the Federal Court from a decision of an eligible State or Territory court made on appeal from a decision that:
(a) was a decision of that court or another eligible State or Territory court of the same State or Territory; and
(b) was made in the exercise of jurisdiction under this Act.
(1C) No appeal lies from a decision to which subsection (1B) applies, except an appeal as provided for by that subsection.
Leave to appeal not required
(2) It is not necessary to obtain the leave of the Federal Court, or the court appealed from, in relation to an appeal under subsection (1) or (1B).
Division 3—Jurisdiction and powers of the Federal Circuit and Family Court of Australia (Division 2)
566 Conferring jurisdiction on the Federal Circuit and Family Court of Australia (Division 2)
Jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in relation to any civil matter arising under this Act.
567 Exercising jurisdiction in the Fair Work Division of the Federal Circuit and Family Court of Australia (Division 2)
Jurisdiction conferred on the Federal Circuit and Family Court of Australia (Division 2) under section 566 is to be exercised in the Fair Work Division of the Court if:
(a) an application is made to the Court under this Act; or
(b) an injunction is sought under section 140 of the Federal Circuit and Family Court of Australia Act 2021 in relation to a matter arising under this Act; or
(c) a declaration is sought under section 141 of the Federal Circuit and Family Court of Australia Act 2021 in relation to a matter arising under this Act; or
(d) proceedings in relation to a matter arising under this Act are transferred to the Federal Circuit and Family Court of Australia (Division 2) from the Federal Court; or
(e) the High Court remits a matter arising under this Act to the Federal Circuit and Family Court of Australia (Division 2).
568 No limitation on powers of the Federal Circuit and Family Court of Australia (Division 2)
To avoid doubt, nothing in this Act limits the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 139, 140 or 141 of the Federal Circuit and Family Court of Australia Act 2021.
Division 4—Miscellaneous
569 Minister’s entitlement to intervene
(1) The Minister may intervene on behalf of the Commonwealth in proceedings before a court (including a court of a State or Territory) in relation to a matter arising under this Act if the Minister believes it is in the public interest to do so.
(2) If the Minister intervenes, the Minister is taken to be a party to the proceedings for the purposes of instituting an appeal from a judgment given in the proceedings.
(3) Despite section 570, a court may make an order as to costs against the Commonwealth if:
(a) the Minister intervenes under subsection (1); or
(b) the Minister institutes an appeal from a judgment as referred to in subsection (2).
569A State or Territory Minister’s entitlement to intervene
(1) The Minister of a State or Territory who has responsibility for workplace relations matters may intervene on behalf of the State or Territory in proceedings before a court (including a court of a State or Territory) in relation to a matter arising under this Act if he or she believes it is in the public interest of the State or Territory to do so.
(2) If the Minister of a State or Territory who has responsibility for workplace relations matters intervenes, he or she is taken to be a party to the proceedings for the purposes of instituting an appeal from a judgment given in the proceedings.
(3) Despite section 570, a court may make an order as to costs against a State or Territory if:
(a) the Minister of a State or Territory who has responsibility for workplace relations matters intervenes under subsection (1); or
(b) he or she institutes an appeal from a judgment as referred to in subsection (2).
570 Costs only if proceedings instituted vexatiously etc.
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.
(2) The party may be ordered to pay the costs only if:
(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or
(c) the court is satisfied of both of the following:
(i) the party unreasonably refused to participate in a matter before the FWC;
(ii) the matter arose from the same facts as the proceedings.
571 No imprisonment for failure to pay pecuniary penalty
(1) A court (including a court of a State or Territory) may not order a person to serve a sentence of imprisonment if the person fails to pay a pecuniary penalty imposed under this Act.
(2) This section applies despite any other law of the Commonwealth, a State or a Territory.
572 Regulations dealing with matters relating to court proceedings
The regulations may provide for the fees to be charged in relation to proceedings in a court (including a court of a State or Territory) under this Act.
Chapter 5—Administration
Part 5‑1—The Fair Work Commission
Division 1—Introduction
573 Guide to this Part
This Part is about the Fair Work Commission.
Division 2 establishes and confers functions on the FWC. The FWC consists of the President, Vice Presidents, Deputy Presidents, Commissioners and Expert Panel Members. Division 2 also confers functions on the President.
Division 3 deals with the conduct of matters before the FWC (such as applications, representation by lawyers, the FWC’s decisions and appeals).
Division 4 deals with the organisation of the FWC, who may perform functions of the FWC and delegation of the FWC’s functions and powers. Certain functions must be performed by a Full Bench or an Expert Panel.
Division 5 deals with the appointment, terms and conditions of FWC Members.
Division 6 deals with cooperation with the States.
Division 7 deals with the FWC’s seal. It also deals with other powers and functions of the President and the General Manager (including in relation to annual reports, reports on making enterprise agreements, arrangements with certain courts, and disclosing information obtained by the FWC).
Division 8 is about the General Manager of the FWC (whose function is to assist the President), staff of the FWC and others assisting the FWC.
Division 9 contains offences in relation to the FWC.
574 Meanings of employee and employer
In this Part, employee and employer have their ordinary meanings.
Note: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).
Division 2—Establishment and functions of the Fair Work Commission
Subdivision A—Establishment and functions of the Fair Work Commission
575 Establishment of the Fair Work Commission
(1) The body known immediately before the commencement of this subsection as Fair Work Australia is continued in existence as the Fair Work Commission.
Note: See also subsection 25B(1) of the Acts Interpretation Act 1901.
(2) The Fair Work Commission consists of:
(a) the President; and
(aa) 2 Vice Presidents; and
(b) such number of Deputy Presidents as, from time to time, hold office under this Act; and
(c) such number of Commissioners as, from time to time, hold office under this Act; and
(d) such number of Expert Panel Members as, from time to time, hold office under this Act.
Note: The Fair Work Commission also has a General Manager and staff (see Division 8).
576 Functions of the FWC
(1) The FWC has the functions conferred by this Act in relation to the following subject matters:
(a) the National Employment Standards (Part 2‑2);
(b) modern awards (Part 2‑3);
(c) enterprise agreements (Part 2‑4);
(d) workplace determinations (Part 2‑5);
(e) minimum wages (Part 2‑6);
(f) equal remuneration (Part 2‑7);
(fa) regulated labour hire arrangement orders (Part 2‑7A);
(g) transfer of business (Part 2‑8);
(ga) other terms and conditions of employment (Part 2‑9);
(h) general protections (Part 3‑1);
(i) unfair dismissal (Part 3‑2);
(j) industrial action (Part 3‑3);
(k) right of entry (Part 3‑4);
(l) stand down (Part 3‑5);
(la) prohibiting sexual harassment in connection with work (Part 3‑5A);
(m) other rights and responsibilities (Part 3‑6);
(ma) minimum standards for regulated workers (Part 3A‑2);
(mb) unfair deactivation or unfair termination of regulated workers (Part 3A‑3);
(mc) collective agreements for regulated workers (Part 3A‑4);
(md) unfair contract terms of services contracts (Part 3A‑5);
(me) minimum standards for persons in a road transport contractual chain (Part 3B‑2);
(n) the extension of the National Employment Standards entitlements (Part 6‑3);
(na) transfer of business from a State public sector employer (Part 6‑3A);
(o) unlawful termination protections (Part 6‑4);
(p) special provisions about TCF outworkers (Part 6‑4A);
(q) workers bullied at work (Part 6‑4B);
(r) Coronavirus economic response (Part 6‑4C).
(2) The FWC also has the following functions:
(aa) promoting cooperative and productive workplace relations and preventing disputes;
(ab) promoting good faith bargaining and the making of enterprise agreements;
(a) dealing with disputes as referred to in section 595;
(b) providing assistance and advice about its functions and activities;
(c) providing administrative support in accordance with an arrangement under section 650 or 653A;
(ca) mediating any proceedings, part of proceedings or matter arising out of any proceedings that, under section 53A of the Federal Court of Australia Act 1976 or section 169 of the Federal Circuit and Family Court of Australia Act 2021, have been referred by the Fair Work Division of the Federal Court or Federal Circuit and Family Court of Australia (Division 2) to the FWC for mediation;
(d) any other function conferred on the FWC by a law of the Commonwealth.
Note: Section 13 of the Registered Organisations Act confers an additional function on the FWC.
577 Performance of functions etc. by the FWC
(1) The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).
(2) In performing its functions under paragraph 576(2)(b), the FWC must have regard to:
(a) the need for guidelines and other materials to be available in multiple languages; and
(b) the need for community outreach in multiple languages.
578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.
579 FWC has privileges and immunities of the Crown
The FWC has the privileges and immunities of the Crown in right of the Commonwealth.
580 Protection of FWC Members
An FWC Member has, in performing his or her functions or exercising his or her powers as an FWC Member, the same protection and immunity as a Justice of the High Court.
Note: See also section 584B (which deals with protection of persons involved in handling etc. complaints about FWC Members).
Subdivision B—Functions and powers of the President
581 Functions of the President
The President is responsible for ensuring that the FWC performs its functions and exercises its powers in a manner that:
(a) is efficient; and
(b) adequately serves the needs of employers and employees throughout Australia; and
(c) adequately serves the needs of persons covered by Chapter 3A; and
(d) adequately serves the needs of persons covered by Chapter 3B.
Note: The President must perform his or her own functions and exercise his or her own powers in a manner that facilitates cooperation with prescribed State industrial authorities (see section 649).
581A Dealing with a complaint about an FWC Member
(1) Without limiting section 581 (which deals with the functions of the President), the President may:
(a) deal, in accordance with subsection (2) of this section, with a complaint about the performance by another FWC Member of his or her duties; and
(b) take any measures that the President believes are reasonably necessary to maintain public confidence in the FWC, including (but not limited to) temporarily restricting the duties of the FWC Member.
Note 1: The complaint is a complaint about an FWC Member (see section 12).
Note 2: The Minister may also handle complaints about FWC Members (see section 641A).
(2) The President may deal with a complaint about an FWC Member referred to in paragraph (1)(a) by doing either or both of the following:
(a) deciding whether or not to handle the complaint and then doing one of the following:
(i) dismissing the complaint;
(ii) handling the complaint if the President has a relevant belief in relation to the complaint;
(iii) arranging for any other person to assist the President to handle the complaint if the President has a relevant belief in relation to the complaint;
(b) arranging for any other complaint handlers to decide whether or not to handle the complaint and then to do one of the following:
(i) dismiss the complaint;
(ii) handle the complaint if each of the complaint handlers has a relevant belief in relation to the complaint.
Note 1: A complaint handler (other than the President) may handle a complaint by referring it to the President. The President may then do either or both of the things referred to in paragraph (2)(a) or (b) in respect of the complaint.
Note 2: For protections for persons involved in relation to handling a complaint about an FWC Member, see section 584B.
Authorisation of persons or bodies
(3) The President may authorise, in writing, a person or a body to do one or more of the following in relation to a complaint about an FWC Member referred to in paragraph (1)(a) (whether in relation to a specific complaint or generally):
(a) assist the President to handle the complaint or complaints;
(b) decide whether or not to handle the complaint or complaints;
(c) dismiss the complaint or complaints;
(d) handle the complaint or complaints.
Referral to Minister
(4) The President must refer a complaint about an FWC Member referred to in paragraph (1)(a) to the Minister if, after the complaint has been handled in accordance with subsection (2), the President is satisfied that:
(a) one or more of the circumstances that gave rise to the complaint have been substantiated; and
(b) each House of the Parliament should consider whether to present to the Governor‑General an address praying for the termination of the appointment of the FWC Member.
Note: The appointment of an FWC Member may be terminated under section 641 if each House of the Parliament presents such an address to the Governor‑General.
(5) The Minister must consider whether each House of the Parliament should consider the matter referred to in paragraph (4)(b).
581B Code of Conduct
(1) After consulting the other FWC Members, the President may determine a Code of Conduct for FWC Members.
(2) Subsection (1) does not limit section 582 (which deals with directions by the President).
(3) The Code of Conduct must be published on the FWC’s website or by any other means that the President considers appropriate.
(4) A determination under subsection (1) is not a legislative instrument.
582 Directions by the President
The President may give directions
(1) The President may give directions under subsection (2) as to the manner in which the FWC is to perform its functions, exercise its powers or deal with matters.
(2) The President may give a direction that is of a general nature, or that relates to a particular matter, to one or more of the following persons:
(a) an FWC Member;
(b) a Full Bench;
(c) an Expert Panel;
(d) the General Manager.
(3) The direction must not relate to a decision by the FWC.
(4) Without limiting subsection (2), the direction may be a direction of the following kind:
(aa) a direction about the conduct of 4 yearly reviews of default fund terms of modern awards under Division 4A of Part 2‑3;
(ab) a direction about the exercise of modern award powers in accordance with Division 5 of Part 2‑3;
(ac) a direction about the exercise of powers under Part 3A‑2 (which deals with minimum standards for regulated workers);
(ad) a direction about the exercise of powers under Part 3B‑2 (which deals with road transport contractual chains);
(b) a direction about the conduct of annual wage reviews;
(c) a direction that 2 or more matters be dealt with jointly by one or more single FWC Members, one or more Full Benches or one or more Expert Panels;
(d) a direction about the transfer between FWC Members (including a transfer between Full Benches) of one or more matters being dealt with by the FWC;
(e) a direction that a single FWC Member perform a function or exercise a power in relation to the variation of a modern award.
(4A) If:
(a) the President gives a direction that 2 or more matters be dealt with jointly; and
(b) at least one of the matters:
(i) must be dealt with by an Expert Panel constituted to deal with a matter that relates to the road transport industry (see subsection 617(10B); or
(ii) is a matter that the President considers might relate to the road transport industry and has directed be dealt with by an Expert Panel constituted for the purpose (see subsection 617(10D);
the direction that the matters be dealt with jointly must require that all the matters be dealt with by an Expert Panel constituted to deal with a matter that relates to the road transport industry.
Note: For the constitution of an Expert Panel for that purpose, see subsection 620(1E).
(4B) Subsection (4A) does not limit the power of the President to direct that other matters be dealt jointly with by an Expert Panel.
(4C) The President may give a direction that an FWC member deal with a matter that the President considers might relate to the road transport industry, if the FWC member has knowledge of, or experience in, the road transport industry, whether or not the President considers that the matter might relate to another industry or sector.
(4D) In addition to giving a direction of a general nature under subsection (2), the President must give a direction as to how the FWC is to prioritise its work under Parts 3A‑2 and 3B‑2 including, but not limited to, prioritising types of orders under those Parts and specified cohorts of workers.
(4E) The FWC must publish a direction under subsection (4D) on the FWC’s website, or by any other means that the FWC considers appropriate, as soon as reasonably practicable after the President gives the direction.
Persons must comply with the President’s directions
(5) A person to whom a direction is given must comply with the direction.
Note: For directions to the General Manager, see section 658.
Direction is not a legislative instrument
(6) If a direction is in writing, the direction is not a legislative instrument.
583 President not subject to direction
The President is not subject to direction by or on behalf of the Commonwealth.
584 Delegation of functions and powers of the President
(1) The President may, in writing, delegate to a Vice President or a Deputy President all or any of the President’s functions or powers, other than under:
(aa) paragraph 581A(1)(b) (which deals with taking measures to maintain public confidence in the FWC); or
(a) section 620 (which deals with the constitution and decision‑making of an Expert Panel); or
(b) section 625 (which deals with the delegation of functions and powers of the FWC).
(2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the President.
Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.
Subdivision C—Protection of persons involved in handling etc. complaints about FWC Members
584B Protection of persons involved in handling etc. complaints about FWC Members
(1) A person who is exercising powers or performing functions under or for the purposes of paragraph 581A(1)(a), subsections 581A(2) to (5), or section 641A, in relation to a complaint about an FWC Member, or assisting in exercising those powers or performing those functions, has the same protection and immunity as a Justice of the High Court.
(2) A witness requested to attend, or appearing, before a complaint handler or any other person, in relation to a complaint about an FWC Member, has the same protection, and is subject to the same liabilities in proceedings, as a witness in a case tried by the High Court.
(3) A lawyer assisting, or appearing on behalf of a person before, a complaint handler or any other person, in relation to a complaint about an FWC Member, has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.
Division 3—Conduct of matters before the FWC
Subdivision A—Applications to the FWC
585 Applications in accordance with procedural rules
An application to the FWC must be in accordance with the procedural rules (if any) relating to applications of that kind.
Note 1: Certain provisions might impose additional requirements in relation to particular kinds of applications (see for example subsection 185(2)).
Note 2: The FWC may, under section 587, dismiss an application that is not made in accordance with the procedural rules.
586 Correcting and amending applications and documents etc.
The FWC may:
(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to the FWC.
587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
588 Discontinuing applications
A person who has applied to the FWC may discontinue the application:
(a) in accordance with the procedural rules (if any); and
(b) whether or not the matter has been settled.
Subdivision B—Conduct of matters before the FWC
589 Procedural and interim decisions
(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.
(2) The FWC may make an interim decision in relation to a matter before it.
(3) The FWC may make a decision under this section:
(a) on its own initiative; or
(b) on application.
(4) This section does not limit the FWC’s power to make decisions.
590 Powers of the FWC to inform itself
(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:
(a) by requiring a person to attend before the FWC;
(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;
(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);
(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;
(f) by conducting inquiries;
(g) by undertaking or commissioning research;
(h) by conducting a conference (see section 592);
(i) by holding a hearing (see section 593).
591 FWC not bound by rules of evidence and procedure
The FWC is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not the FWC holds a hearing in relation to the matter).
592 Conferences
(1) For the purpose of performing a function or exercising a power of the FWC (other than a function or power under Part 2‑6), the FWC may direct a person to attend a conference at a specified time and place.
Note: Part 2‑6 deals with minimum wages. For the conduct of annual wage reviews, see Subdivision B of Division 3 of Part 2‑6.
(2) An FWC Member (other than an Expert Panel Member), or a delegate of the FWC, is responsible for conducting the conference.
(3) The conference must be conducted in private, unless the person responsible for conducting the conference directs that it be conducted in public.
Note: This subsection does not apply in relation to conferences conducted in relation to unfair dismissal, general protection or sexual harassment matters (see sections 368, 374, 398, 527R and 776).
(4) At a conference, the FWC may:
(a) mediate or conciliate; or
(b) make a recommendation or express an opinion.
(5) Subsection (4) does not limit what the FWC may do at a conference.
593 Hearings
(1) The FWC is not required to hold a hearing in performing functions or exercising powers, except as provided by this Act.
(2) If the FWC holds a hearing in relation to a matter, the hearing must be held in public, except as provided by subsection (3).
Confidential evidence in hearings
(3) The FWC may make the following orders in relation to a hearing that the FWC holds if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:
(a) orders that all or part of the hearing is to be held in private;
(b) orders about who may be present at the hearing;
(c) orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing;
(d) orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following:
(i) evidence given in the hearing;
(ii) matters contained in documents before the FWC in relation to the hearing.
(4) Subsection (3) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).
594 Confidential evidence
(1) The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:
(a) evidence given to the FWC in relation to the matter;
(b) the names and addresses of persons making submissions to the FWC in relation to the matter;
(c) matters contained in documents lodged with the FWC or received in evidence by the FWC in relation to the matter;
(d) the whole or any part of its decisions or reasons in relation to the matter.
(2) Subsection (1) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).
595 FWC’s power to deal with disputes
(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:
(a) by mediation or conciliation;
(b) by making a recommendation or expressing an opinion.
(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).
(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.
Example: The FWC could direct a person to attend a conference under section 592.
(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.
Subdivision C—Representation by lawyers and paid agents and Minister’s entitlement to make submissions
596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:
(a) where a person is from a non‑English speaking background or has difficulty reading or writing;
(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.
(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2‑3 or 2‑6 (which deal with modern awards and minimum wages).
(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:
(a) is an employee or officer of the person; or
(b) is an employee or officer of:
(i) an organisation; or
(ii) an association of employers that is not registered under the Registered Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.
597 Minister’s entitlement to make submissions
(1) The Minister is entitled to make a submission for consideration in relation to a matter before the FWC if:
(a) the matter is before a Full Bench and it is in the public interest for the Minister to make a submission; or
(b) the matter involves public sector employment.
(2) Subsection (1) applies whether or not the FWC holds a hearing in relation to the matter.
597A State or Territory Minister’s entitlement to make submissions
(1) The Minister of a State or Territory who has responsibility for workplace relations matters is entitled to make a submission for consideration in relation to a matter before the FWC if:
(a) the matter is before a Full Bench; and
(b) it is in the public interest of the State or Territory for the Minister of the State or Territory to make a submission.
(2) Subsection (1) applies whether or not the FWC holds a hearing in relation to the matter.
Subdivision D—Decisions of the FWC
598 Decisions of the FWC
(1) A reference in this Part to a decision of the FWC includes any decision of the FWC however described. However, to avoid doubt, a reference to a decision of the FWC does not include a statement under section 188B (which deals with principles on genuine agreement to enterprise agreements) or an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC’s power to deal with disputes).
Note: Examples of decisions that the FWC makes include making modern awards, approving or refusing to approve enterprise agreements, decisions as to how, when and where a matter is to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals.
(2) If the FWC makes a decision that makes or varies an instrument, a reference in this Part to a decision of the FWC includes the FWC’s decision to make or vary the instrument in the particular terms decided.
(3) A decision of the FWC that is described as an order must be made by order.
Note: An example of a decision that is described as an order is a bargaining order.
(4) A decision of the FWC that is not described as an order may be made by order.
599 FWC not required to decide an application in terms applied for
Except as provided by this Act, the FWC is not required to make a decision in relation to an application in the terms applied for.
600 Determining matters in the absence of a person
The FWC may determine a matter before it in the absence of a person who has been required to attend before it.
601 Writing and publication requirements for the FWC’s decisions
(1) The following decisions of the FWC must be in writing:
(a) a decision of the FWC made under a Part of this Act other than this Part;
(b) an interim decision that relates to a decision to be made under a Part of this Act other than this Part;
(c) a decision in relation to an appeal or review.
Note: For appeals and reviews, see sections 604 and 605.
(2) The FWC may give written reasons for any decision that it makes.
(3) A decision, and reasons, that are in writing must be expressed in plain English and be easy to understand in structure and content.
(4) The FWC must publish the following, on its website or by any other means that the FWC considers appropriate:
(a) a decision that is required to be in writing and any written reasons that the FWC gives in relation to such a decision;
(b) an enterprise agreement that has been approved by the FWC under Part 2‑4.
The FWC must do so as soon as practicable after making the decision or approving the agreement.
(5) Subsection (4) does not apply to any of the following decisions or reasons in relation to such decisions:
(a) a decision to issue, or refuse to issue, a certificate under paragraph 368(3)(a) or 527R(3)(a);
(c) a decision to issue an entry permit under section 512;
(d) a decision to impose conditions on an entry permit under section 515;
(e) a decision to issue, or refuse to issue, an exemption certificate under section 519;
(f) a decision to issue, or refuse to issue, an affected member certificate under section 520;
(g) a decision or reasons in relation to which an order is in operation under paragraph 594(1)(d).
(6) Subsections (1) and (4) do not limit the FWC’s power to put decisions in writing or publish decisions.
602 Correcting obvious errors etc. in relation to the FWC’s decisions
(1) The FWC may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the FWC (other than an error, defect or irregularity in a modern award, national minimum wage order, minimum standards order, minimum standards guidelines, road transport contractual chain orders or road transport contractual chain guidelines).
Note 1: If the FWC makes a decision to make an instrument, the FWC may correct etc. the instrument under this section (see subsection 598(2)).
Note 2: The FWC corrects modern awards and national minimum wage orders under sections 160 and 296.
Note 3: The FWC corrects minimum standards orders and minimum standards guidelines under subsections 536KQ(3) and 536KZ(3) respectively, and corrects road transport contractual chain orders and road transport contractual chain guidelines under subsections 536PT(3) and 536QW(3) respectively.
(2) The FWC may correct or amend the error, defect or irregularity:
(a) on its own initiative; or
(b) on application.
602A Validation of approval of enterprise agreement
(1) If:
(a) after an enterprise agreement was made:
(i) an application for the approval of a draft of the enterprise agreement was erroneously made to the FWC; and
(ii) the FWC approved the draft of the agreement; and
(b) the FWC is satisfied that, assuming that the application had been an application for the approval of the enterprise agreement that was made, the FWC would have approved the enterprise agreement that was made;
the FWC may determine in writing that the approval is as valid and effective, and is taken to have been as valid and effective, as it would have been if:
(c) the application had been an application for the approval of the enterprise agreement that was made instead of an application for the approval of the draft of the agreement; and
(d) the requirements set out in subsection 185(2) or section 185A (whichever is applicable) had been met in relation to the application; and
(e) the approval had been an approval of the enterprise agreement that was made instead of an approval of the draft of the agreement.
(2) The FWC may make a determination under subsection (1):
(a) on its own initiative; or
(b) on application.
(3) If the FWC makes a determination under subsection (1) in relation to an enterprise agreement that was made, the FWC must:
(a) publish the agreement on the FWC’s website or by any other means that the FWC considers appropriate; and
(b) do so as soon as practicable after making the determination.
602B Validation of approval of variation of enterprise agreement
(1) If:
(a) after a variation of an enterprise agreement was made:
(i) an application for the approval of a draft of the variation was erroneously made to the FWC; and
(ii) the FWC approved the draft of the variation; and
(b) the FWC is satisfied that, assuming that the application had been an application for the approval of the variation that was made, the FWC would have approved the variation that was made;
the FWC may determine in writing that the approval is as valid and effective, and is taken to have been as valid and effective, as it would have been if:
(c) the application had been an application for the approval of the variation that was made instead of an application for the approval of the draft of the variation; and
(d) the requirements set out in subsection 210(2) had been met in relation to the application; and
(e) the approval had been an approval of the variation that was made instead of an approval of the draft of the variation.
(2) The FWC may make a determination under subsection (1):
(a) on its own initiative; or
(b) on application.
603 Varying and revoking the FWC’s decisions
(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).
Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).
(2) The FWC may vary or revoke a decision under this section:
(a) on its own initiative; or
(b) on application by:
(i) a person who is affected by the decision; or
(ii) if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision.
(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:
(a) a decision under Part 2‑3 (which deals with modern awards);
(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2‑4 (which deal with enterprise agreements);
(c) a decision under Part 2‑5 (which deals with workplace determinations);
(d) a decision under Part 2‑6 (which deals with minimum wages);
(e) a decision under Division 3 of Part 2‑8 (which deals with transfer of business);
(f) a decision under Division 8 of Part 3‑3 (which deals with protected action ballots);
(g) a decision under section 472 (which deals with partial work bans);
(ga) a decision under Part 3A‑2 (which deals with minimum standards orders);
(gb) a decision under Part 3A‑4 (which deals with collective agreements);
(gc) a decision under Part 3B‑2 (which deals with road transport contractual chain orders);
(h) a decision that is prescribed by the regulations.
Note: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).
Subdivision E—Appeals, reviews and referring questions of law
604 Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made under the Registered Organisations Act by the General Manager (including a delegate of the General Manager);
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400) or for an unfair deactivation or an unfair termination (see section 536MA).
(3) A person may appeal the decision by applying to the FWC.
605 Minister’s entitlement to apply for review of a decision
(1) The Minister may apply to the FWC for a review to be conducted by the FWC of a decision made by the FWC (other than a decision of a Full Bench or an Expert Panel) if the Minister believes that the decision is contrary to the public interest.
(2) Without limiting when the FWC may conduct a review, the FWC must conduct a review of the decision if the FWC is satisfied that it is in the public interest to conduct the review.
Note: The FWC must be constituted by a Full Bench to decide whether to conduct a review, and to conduct the review (see section 614).
(3) In conducting a review:
(a) the FWC must take such steps as it considers appropriate to ensure that each person with an interest in the review is made aware of the review; and
(b) the Minister is entitled to make submissions for consideration in the review.
(4) Nothing in this section affects any right of appeal or any power of the FWC under section 604 or 607. A review of a decision and an appeal of the decision may be dealt with together if the FWC considers it appropriate.
606 Staying decisions that are appealed or reviewed
(1) If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.
(2) If a Full Bench is hearing the appeal or conducting the review, an order under subsection (1) in relation to the appeal or review may be made by:
(a) the Full Bench; or
(b) the President; or
(c) a Vice President; or
(d) a Deputy President.
(3) This section does not apply in relation to a decision to make a protected action ballot order.
607 Process for appealing or reviewing decisions
(1) An appeal from, or a review of, a decision of the FWC or the General Manager may be heard or conducted without holding a hearing only if:
(a) it appears to the FWC that the appeal or review can be adequately determined without persons making oral submissions for consideration in the appeal or review; and
(b) the persons who would otherwise, or who will, make submissions (whether oral or written) for consideration in the appeal or review consent to the appeal or review being heard or conducted without a hearing.
(2) The FWC may:
(a) admit further evidence; and
(b) take into account any other information or evidence.
(3) The FWC may do any of the following in relation to the appeal or review:
(a) confirm, quash or vary the decision;
(b) make a further decision in relation to the matter that is the subject of the appeal or review;
(c) refer the matter that is the subject of the appeal or review to an FWC Member (other than an Expert Panel Member) and:
(i) require the FWC Member to deal with the subject matter of the decision; or
(ii) require the FWC Member to act in accordance with the directions of the FWC.
608 Referring questions of law to the Federal Court
(1) The President may refer a question of law arising in a matter before the FWC for the opinion of the Federal Court.
(2) A question of law referred under subsection (1) must be determined by the Full Court of the Federal Court.
(3) The FWC may make a decision in relation to the matter even if the Federal Court is determining the question of law, except if the question is whether the FWC may exercise powers in relation to the matter.
(4) Once the Federal Court has determined the question, the FWC may only make a decision in relation to the matter that is not inconsistent with the opinion of the Federal Court (if the FWC has not already done so).
(5) However, if the FWC has made a decision in relation to the matter that is inconsistent with the opinion of the Federal Court, the FWC must vary the decision in such a way as to make it consistent with the opinion of the Federal Court.
Subdivision F—Miscellaneous
609 Procedural rules
(1) After consulting the other FWC Members, the President may, by legislative instrument, make procedural rules in relation to:
(a) the practice and procedure to be followed by the FWC; or
(b) the conduct of business in relation to matters allowed or required to be dealt with by the FWC.
(2) Without limiting subsection (1), the procedural rules may provide for the following:
(a) the requirements for making an application to the FWC;
(b) the circumstances in which a lawyer or paid agent may make an application or submission to the FWC on behalf of a person who is entitled to make the application or submission;
(c) the form and manner in which, and the time within which, submissions may or must be made to the FWC;
(d) the procedural requirements for making decisions of the FWC;
(e) the form and manner in which the FWC gives directions and notifies persons of things;
(ea) the requirements for making a notification to the FWC;
(f) who is notified by the FWC of things;
(g) the manner in which conferences are to be conducted in relation to applications made under Part 3‑1, 3‑2, 3‑5A or Part 6‑4 (which deal with general protections, unfair dismissal, prohibiting sexual harassment in connection with work and unlawful termination).
(3) To avoid doubt, subsection (1) includes the power to make procedural rules in relation to any functions conferred on the FWC by any other law of the Commonwealth.
610 Regulations dealing with any FWC matters
The regulations may provide for any matter that the procedural rules may provide for.
Note: Regulations made under this section prevail over procedural rules (see subsection 796(2)).
611 Costs
(1) A person must bear the person’s own costs in relation to a matter before the FWC.
(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:
(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.
Note: The FWC can also order costs under sections 376, 400A, 401 and 780.
(3) A person to whom an order for costs applies must not contravene a term of the order.
Note: This subsection is a civil remedy provision (see Part 4‑1).
Division 4—Organisation of the FWC
Subdivision A—Functions etc. to be performed by a single FWC Member, a Full Bench or an Expert Panel
612 FWC’s functions etc. may generally be performed by single FWC Member
(1) A function or power of the FWC may be performed or exercised by a single FWC Member (other than an Expert Panel Member), as directed by the President, except as provided by this Subdivision.
Note: The President gives directions under section 582.
(2) Action taken under subsection 508(1) (which deals with misuse of rights under Part 3‑4) must be taken by a Vice President or a Deputy President, except as provided by section 615.
(3) This section does not limit the power of the President to delegate a function or power of the FWC under section 625.
613 Appeal of decisions
(1) A Full Bench must (except as provided by subsection (2)):
(a) decide under section 604 whether to grant permission to appeal a decision; and
(b) if the Full Bench decides to grant the permission—hear the appeal in accordance with section 607.
Note: For the constitution of a Full Bench, see section 618.
(2) The President, a Vice President or a Deputy President directed by the President, may:
(a) decide under section 604 whether to grant permission to appeal:
(i) a decision of a delegate under subsection 625(2); or
(ii) a decision of the General Manager (including a delegate of the General Manager) under the Registered Organisations Act; and
(b) if the President, the Vice President or the Deputy President (as the case may be) grants the permission—hear the appeal in accordance with section 607.
Note: The President gives directions under section 582.
614 Review of decisions by a Full Bench
A Full Bench must:
(a) decide under section 605 whether to conduct a review of a decision; and
(b) if the Full Bench decides to conduct the review—conduct the review in accordance with section 607.
Note: For the constitution of a Full Bench, see section 618.
615 The President may direct a Full Bench to perform function etc.
(1) A function or power of the FWC may be performed or exercised by a Full Bench if the President so directs.
Note: The President gives directions under section 582.
(2) The President may direct that the function or power be exercised by a Full Bench generally, or in relation to a particular matter or class of matters.
(3) To avoid doubt, a reference in this section to a Full Bench includes a reference to more than one Full Bench.
Note: For the constitution of a Full Bench, see section 618.
615A When the President must direct a Full Bench to perform function etc.
Full Benches—directions on application
(1) The President must direct a Full Bench to perform a function or exercise a power in relation to a matter if:
(a) an application is made under subsection (2); and
(b) the President is satisfied that it is in the public interest to do so.
Note: The President gives directions under section 582.
(2) For the purposes of paragraph (1)(a), the following persons may apply to the FWC to have a Full Bench perform a function or exercise a power in relation to a matter:
(a) a person who has made, or will make, submissions for consideration in the matter;
(b) the Minister.
Full Benches—directions for certain terminations of enterprise agreements
(3) The President must direct a Full Bench to perform a function or exercise a power in relation to a matter arising under section 226 in relation to an application for the termination of an enterprise agreement if:
(a) the President has given a direction to an FWC Member to perform the function or exercise the power; and
(b) the FWC Member is satisfied that any of the following persons covered by the agreement oppose the termination:
(i) an employee;
(ii) an employer;
(iii) an employee organisation.
(4) Subsection (3) does not apply if the FWC Member is satisfied that the enterprise agreement does not, and is not likely to, cover any employees.
(5) Subsection (3) does not prevent a power that may be delegated under subsection 625(1) from being exercised by a single FWC Member or a person to whom the power has been delegated.
Note: The powers that may be delegated under subsection 625(1) include:
(a) the FWC’s power to inform itself as it considers appropriate under section 590 (other than the FWC’s power to hold a hearing); and
(b) the FWC’s power to conduct a conference in accordance with section 592.
615B Transfer to a Full Bench from an FWC Member
(1) This section applies if:
(a) the President gives a direction referred to in section 615 or 615A that a function be performed or a power be exercised by a Full Bench; and
(b) before the President gave the direction, the President had given a direction (the earlier direction) to an FWC Member to perform the function or exercise the power.
(2) The President is taken to have revoked the earlier direction.
(3) The Full Bench must, when performing the function or exercising the power, take into account:
(a) everything that occurred before the FWC; and
(b) everything that the FWC did;
in relation to the matter before the Full Bench began to perform the function or exercise the power.
615C Transfer to the President from an FWC Member or a Full Bench
(1) This section applies if:
(a) the President decides to perform a function or exercise a power; and
(b) before the President made that decision, the President had given a direction (the earlier direction) that the function be performed or the power be exercised by a Full Bench or an FWC Member.
(2) The President is taken to have revoked the earlier direction.
(3) The President must, when performing the function or exercising the power, take into account:
(a) everything that occurred before the FWC; and
(b) everything that the FWC did;
in relation to the matter before the President began to perform the function or exercise the power.
616 FWC’s functions etc. that must be performed by a Full Bench
Modern awards
(1) Subject to subsections 617(8) and (10B), a modern award must be made under Part 2‑3 by a Full Bench.
Note: Subsection 617(8) relates to modern awards that must be made by an Expert Panel.
(2A) A 4 yearly review of default fund terms of modern awards must be conducted under Division 4A of Part 2‑3 by a Full Bench.
(3A) A determination that varies a default fund term of a modern award made in a 4 yearly review conducted under Division 4A of Part 2‑3 must be made by a Full Bench.
Note: A determination that varies a default fund term of a modern award may be made by a single FWC Member under Division 5 of Part 2‑3.
(3B) Subject to subsections 617(8) and (10B), a determination that revokes a modern award under Division 5 of Part 2‑3 must be made by a Full Bench.
Note: Subsection 617(8) relates to determinations that must be made by an Expert Panel.
(3C) Subject to subsection (3D) of this section and subsections 617(6), (8), (9), (10B) and (11), a determination that varies a modern award under Division 5 of Part 2‑3 (other than a determination varying the default fund term of a modern award under section 159A) must be made by a Full Bench.
Note: Subsections 617(6), (8), (9), (10B) and (11) relate to determinations that must be made by an Expert Panel.
(3D) Subject to subsections 617(6), (8), (9), (10B) and (11), the President may direct a single FWC Member to perform a function or exercise a power:
(a) under section 159, 160 or 161 (varying a modern award); or
(b) in relation to any other variation under section 157 that the President considers appropriate of:
(i) a modern award; or
(ii) if 2 or more modern awards relate to the same industry or occupation—those awards.
Note 1: The President may give directions as to the manner in which the FWC is to perform its functions or exercise its powers (see section 582).
Note 2: Subsections 617(6), (8), (9), (10B) and (11) relate to determinations and modern awards that must be made by an Expert Panel.
Workplace determinations
(4) A workplace determination must be made under Part 2‑5 by a Full Bench.
Minimum standards orders
(4B) Subject to subsections 582(4A) and 617(10D), the following must be made under Chapter 3A by a Full Bench:
(a) an employee‑like worker minimum standards order;
(b) a determination under subsection 536KQ(1) varying or revoking an employee‑like worker minimum standards order;
(c) employee‑like worker minimum standards guidelines;
(d) a determination under subsection 536KZ(1) varying or revoking employee‑like worker minimum standards guidelines.
Note 1: A determination under subsection 536KQ(3) or 536KZ(3) (which deal with minor technical variations) does not need to be made by a Full Bench.
Note 2: Subsection 617(10D) provides for the President to direct that certain matters relating to the road transport industry be dealt with by an Expert Panel for the road transport industry.
Full Benches
(5) To avoid doubt, a reference in this section to a Full Bench includes a reference to more than one Full Bench.
Note: For the constitution of a Full Bench, see section 618.
617 FWC’s functions etc. that must be performed by an Expert Panel
Expert Panel for annual wage reviews
(1) An annual wage review must be conducted under Part 2‑6 by an Expert Panel constituted for the purposes of the review.
Note: For the constitution of an Expert Panel for the purposes of an annual wage review, see subsection 620(1).
(2) A national minimum wage order, or a determination, made in an annual wage review must be made by an Expert Panel constituted for the purposes of the review.
(3) A determination that varies a national minimum wage order must be made under Part 2‑6 by an Expert Panel constituted for the purposes of the review.
Expert Panel for 4 yearly review of default fund terms
(4) In a 4 yearly review of default fund terms of modern awards, the following must be made by an Expert Panel constituted for the purposes of the review:
(a) the Default Superannuation List;
(b) a determination under section 156E on an application to have a standard MySuper product included on the Default Superannuation List;
(c) the Schedule of Approved Employer MySuper Products;
(d) a determination under section 156P on an application made in the standard application period to have an employer MySuper product included on the Schedule of Approved Employer MySuper Products.
Note: For the constitution of an Expert Panel for those purposes, see subsection 620(1A).
Expert Panel for amending the Schedule of Approved Employer MySuper Products
(5) If an application is made in the interim application period to have an employer MySuper product included on the Schedule of Approved Employer MySuper Products, the following must be made by an Expert Panel constituted for the purposes of determining the application:
(a) a determination under section 156P on the application;
(b) if the determination is to include the product on the schedule—an amendment of the schedule to specify the product.
Note: For the constitution of an Expert Panel for those purposes, see subsection 620(1A).
Expert Panel for pay equity
(6) If the President considers that substantive gender pay equity matters might require the making of a determination under subsection 157(2) (other than a determination that the President considers might relate to the Care and Community Sector), the determination must be made by an Expert Panel constituted for the purpose of deciding whether to make the determination.
Note: For the constitution of an Expert Panel for that purpose, see subsection 620(1B).
(7) An equal remuneration order made under section 302 (other than an equal remuneration order that the President considers might relate to the Care and Community Sector) must be made by an Expert Panel constituted for the purpose of deciding whether to make the equal remuneration order.
Note: For the constitution of an Expert Panel for that purpose, see subsection 620(1B).
Expert Panel for the Care and Community Sector
(8) A determination or modern award made under subsection 157(1) that the President considers might relate to the Care and Community Sector must be made by an Expert Panel constituted for the purpose of deciding whether to make the determination or modern award.
Note: For the constitution of an Expert Panel for that purpose, see subsection 620(1C).
Expert Panel for pay equity in the Care and Community Sector
(9) A determination made under subsection 157(2) that the President considers might relate to the Care and Community Sector must be made by an Expert Panel constituted for the purpose of deciding whether to make the determination.
Note: For the constitution of an Expert Panel for that purpose, see subsection 620(1D).
(10) An equal remuneration order made under section 302 that the President considers might relate to the Care and Community Sector must be made by an Expert Panel constituted for the purpose of deciding whether to make the equal remuneration order.
Note: For the constitution of an Expert Panel for that purpose, see subsection 620(1D).
President’s considerations
(10A) For the purposes of subsections (6), (7), (8), (9) and (10), if the President considers that an equal remuneration order, determination or modern award might relate to the Care and Community Sector, it does not matter if the President considers that the equal remuneration order, determination or modern award might also relate to another sector.
Expert Panel for road transport industry
(10B) The following must be made by an Expert Panel constituted for that purpose:
(a) a modern award made under Part 2‑3 that the President considers might relate to the road transport industry;
(b) a determination made under subsection 157(1) varying or revoking a modern award that the President considers might relate to the road transport industry;
(c) a road transport minimum standards order made under paragraph 536JY(1)(b) or a determination made under subsection 536KQ(1) varying or revoking a road transport minimum standards order;
(ca) a deferral determination made under subsection 536KQJ(1) in relation to a road transport minimum standards order;
(cb) a suspension determination made under subsection 536KQP(1) in relation to a road transport minimum standards order;
(cc) a determination made under subsection 536KQ(1) varying or revoking a road transport minimum standards order to give effect to a decision to vary or revoke the minimum standards order under paragraph 536KQS(2)(a) or (b);
(cd) a decision made under paragraph 536KQS(2)(a), (b) or (c) as to whether or not to vary or revoke a road transport minimum standards order;
(d) road transport guidelines made under subsection 536KR(1) or a determination made under subsection 536KZ(1) varying or revoking road transport guidelines;
(da) a road transport contractual chain order made under section 536PD or a determination made under 536PT varying or revoking a road transport contractual chain order;
(db) road transport contractual chain guidelines made under section 536QP or a determination made under section 536QW varying or revoking road transport contractual chain guidelines;
(dc) a deferral determination made under subsection 536QB(1) in relation to a road transport contractual chain order;
(dd) a suspension determination made under subsection 536QG(1) in relation to a road transport contractual chain order;
(de) a determination made under subsection 536PT(1) varying or revoking a road transport contractual chain order to give effect to a decision to vary or revoke the road transport contractual chain order under paragraph 536QK(2)(a) or (b);
(df) a decision made under paragraph 536QK(2)(a), (b) or (c) as to whether or not to vary or revoke a road transport contractual chain order;
(e) such other instruments as are prescribed that the President considers might relate to the road transport industry.
Note 1: For the constitution of an Expert Panel for that purpose, see subsection 620(1E).
Note 2: The road transport objective is relevant to the functions of an Expert Panel referred to in this subsection, see section 40D.
President’s considerations
(10C) For the purposes of subsection (10B), if the President considers that a determination or a modern award, or a prescribed instrument, might relate to the road transport industry, it does not matter if the President considers that the determination or modern award or prescribed instrument might relate to another industry or sector.
(10D) The President may direct that the following matters be dealt with by an Expert Panel constituted for the purpose:
(a) an employee‑like worker minimum standards order or a determination varying or revoking an employee‑like worker minimum standards order, if the President considers that the order might relate to the road transport industry or sector;
(b) employee‑like guidelines or a determination varying or revoking employee‑like guidelines, if the President considers that the guidelines might relate to the road transport industry;
(c) any other prescribed instrument or matter that the President considers might relate to the road transport industry;
whether or not the President considers that the matter might also relate to another industry or sector.
Note: For the constitution of an Expert Panel for that purpose, see subsection 620(1E).
Other variations of modern awards
(11) The President may direct an Expert Panel constituted for the purpose of performing a function or exercising a power under section 159, 160 or 161 (about variations of modern awards) to perform the function or exercise the power.
Note: For the constitution of an Expert Panel for that purpose, see subsection 620(1B), (1C) or (1D).
617AA Full Bench and Expert Panel with identical membership
(1) This section applies if a Full Bench and an Expert Panel consist of the same FWC Members.
(2) In performing its functions or exercising its powers, the Full Bench is not limited by:
(a) the functions or powers of the Expert Panel; or
(b) the purposes for which the Expert Panel was constituted.
(3) In performing its functions or exercising its powers, the Expert Panel is not limited by the functions or powers of the Full Bench.
(4) Without limiting subsection (2) or (3), a reference in this section to performing a function or exercising a power includes a reference to the following:
(a) making a determination or modern award under subsection 157(1);
(b) making a determination under subsection 157(2);
(c) making an equal remuneration order under section 302;
(d) performing a function or exercising a power under section 159, 160 or 161 (about variations of modern awards);
(e) performing a function or exercising a power under Chapter 3A;
(f) dealing with a matter that the President considers might relate to the road transport industry.
(5) This section is enacted for the avoidance of doubt.
617A President may direct investigations and reports
(1) The President may give a direction under section 582 requiring that a matter that is relevant to the function of an Expert Panel constituted under subsection 620(1B), (1C), (1D) or (1E) be investigated, and that a report about the matter be prepared.
Note: Matters that may be relevant include gender pay equity, equal remuneration, the road transport industry, and the Care and Community Sector, in Australia.
(2) The direction may be given to:
(a) an Expert Panel; or
(b) an Expert Panel Member; or
(c) a Commissioner; or
(d) a Full Bench that includes one or more Expert Panel Members.
617B Research must be published
(1) If the President gives a direction under section 617A requiring a matter to be investigated, and a report about the matter to be prepared, the FWC must publish the report so that submissions can be made addressing issues covered by the report.
(2) The publication may be on the FWC’s website or by any other means that the FWC considers appropriate.
Subdivision B—Constitution of the FWC by a single FWC Member, a Full Bench or an Expert Panel
618 Constitution and decision‑making of a Full Bench
Constitution of a Full Bench
(1) A Full Bench constituted under this section consists of at least 3 FWC Members, including at least one FWC Member who is the President, a Vice President or a Deputy President.
Note: An Expert Panel Member might form part of a Full Bench.
(2) The President may determine which FWC Members form part of a Full Bench.
Making decisions
(3) A decision of a majority of the FWC Members on the Full Bench prevails.
(4) However, if there is no majority, the decision of the FWC Member who has seniority under section 619 prevails.
619 Seniority of FWC Members
(1) While the FWC is constituted by a Full Bench, the FWC Members on the Full Bench have seniority according to the following order:
(a) the President;
(aa) the Vice Presidents, according to the days on which their appointments as Vice Presidents took effect;
(ab) if 2 appointments as Vice Presidents took effect on the same day—the Vice Presidents, according to the precedence assigned to them in their instruments of appointment;
(b) the Deputy Presidents, according to the days on which their appointments as Deputy Presidents took effect;
(c) if 2 or more appointments as Deputy Presidents took effect on the same day—the Deputy Presidents, according to the precedence assigned to them in their instruments of appointment.
(2) The FWC Member on a Full Bench who has seniority under this section is responsible for managing the Full Bench in performing functions and exercising powers of the FWC.
Note: The FWC Member who has seniority also has a deciding vote if there is no majority (see subsection 618(4)).
620 Constitution and decision‑making of an Expert Panel
Constitution of an Expert Panel for annual wage reviews
(1) An Expert Panel constituted under this subsection for the purpose of an annual wage review conducted under Part 2‑6 consists of 7 FWC Members (except as provided by section 622), and must include:
(a) the President; and
(b) 3 Expert Panel Members who have knowledge of, or experience in, one or more of the following fields:
(i) workplace relations;
(ii) economics;
(iii) social policy;
(iv) business, industry or commerce.
Constitution of an Expert Panel for 4 yearly reviews of default fund terms etc.
(1A) An Expert Panel constituted under this subsection for a purpose referred to in subsection 617(4) or (5) consists of 7 FWC Members (except as provided by section 622), and must include:
(a) the President, or a Vice President or Deputy President appointed by the President to be the Chair of the Panel; and
(b) 3 Expert Panel Members who have knowledge of, or experience in, one or more of the following fields:
(i) finance;
(ii) investment management;
(iii) superannuation.
Constitution of Expert Panel for pay equity
(1B) An Expert Panel constituted under this subsection for a purpose referred to in subsection 617(6), (7) or (11) or section 617A must include (except as provided by section 622):
(a) the President, or a Vice President or Deputy President appointed by the President to be the Chair of the Panel; and
(b) at least 2 Expert Panel Members or other FWC Members who have knowledge of, or experience in, one or both of the following fields:
(i) gender pay equity;
(ii) anti‑discrimination; and
(c) subject to subsection (2A), such number (if any) of other FWC Members as the President considers appropriate.
Constitution of Expert Panel for the Care and Community Sector
(1C) An Expert Panel constituted under this subsection for a purpose referred to in subsection 617(8) or (11) or section 617A must include (except as provided by section 622):
(a) the President, or a Vice President or Deputy President appointed by the President to be the Chair of the Panel; and
(b) at least 2 Expert Panel Members or other FWC Members who have knowledge of, or experience in, the Care and Community Sector; and
(c) subject to subsection (2A), such number (if any) of other FWC Members as the President considers appropriate.
Constitution of Expert Panel for pay equity in the Care and Community Sector
(1D) An Expert Panel constituted under this subsection for a purpose referred to in subsection 617(9), (10) or (11) or section 617A must include (except as provided by section 622):
(a) the President, or a Vice President or Deputy President appointed by the President to be the Chair of the Panel; and
(b) at least one Expert Panel Member or other FWC Member who has knowledge of, or experience in, one or both of the following fields:
(i) gender pay equity;
(ii) anti‑discrimination; and
(c) at least one Expert Panel Member or other FWC Member who has knowledge of, or experience in, the Care and Community Sector; and
(d) subject to subsection (2A), such number (if any) of other FWC Members as the President considers appropriate.
Constitution of Expert Panel for the road transport industry
(1E) An Expert Panel constituted under this subsection for a purpose referred to in subsection 617(10B) or (10D) must include (except as provided by section 622):
(a) the President, or a Vice President or Deputy President appointed by the President to be the Chair of the Panel; and
(b) at least one Expert Panel Member or other FWC Member who has knowledge of, or experience in, the road transport industry; and
(c) subject to subsection (2A), such number (if any) of other FWC Members as the President considers appropriate.
Additional requirement relating to the constitution of an Expert Panel for deferral or suspension of road transport minimum standards orders
(1F) If an Expert Panel is constituted under subsection (1E) for a purpose referred to in paragraph 617(10B)(ca), (cb), (cc) or (cd) in relation to a road transport minimum standards order (which deal with deferral and suspension), a majority of the members of the Expert Panel must not be members of the Expert Panel that made the road transport minimum standards order concerned.
Additional requirement relating to the constitution of an Expert Panel for deferral or suspension of road transport contractual chain orders
(1G) If an Expert Panel is constituted under subsection (1E) for a purpose referred to in paragraph 617(10B)(dc), (dd), (de) or (df) in relation to a road transport contractual chain order (which deal with deferral and suspension), a majority of the members of the Expert Panel must not be members of the Expert Panel that made the road transport chain order concerned.
President to choose FWC Members
(2) The President may determine which FWC Members form part of an Expert Panel.
Expert Panels to consist of majority of qualified FWC Members
(2A) The President must ensure that an Expert Panel constituted under subsection (1B), (1C), (1D) or (1E) consists of a majority of FWC Members who have the knowledge or experience required under paragraph 620(1B)(b), paragraph (1C)(b), paragraphs (1D)(b) and (c) or paragraph (1E)(b) (as the case may be).
Managing Expert Panels
(3) The following person is responsible for managing an Expert Panel in performing the functions and exercising the powers referred to in section 617:
(a) if paragraph (b) does not apply—the President;
(b) if the President has appointed a person to be the Chair of the Expert Panel under paragraph 620(1A)(a), (1B)(a), (1C)(a) or (1D)(a)—the Chair.
Making decisions
(4) A decision of the majority of the FWC Members of an Expert Panel prevails.
(5) However, if there is no majority, the decision of:
(a) if paragraph (b) does not apply—the President; or
(b) if the President has appointed a person to be the Chair of the Expert Panel under paragraph 620(1A)(a), (1B)(a), (1C)(a) or (1D)(a)—the Chair;
prevails.
621 Reconstitution of the FWC when single FWC Member becomes unavailable
(1) This section applies if:
(a) an FWC Member is dealing with a matter (other than by forming part of a Full Bench or an Expert Panel in relation to a matter); and
(b) the FWC Member becomes unavailable to continue dealing with the matter before the matter is completely dealt with.
(2) The President must direct another FWC Member to constitute the FWC for the purposes of dealing with the matter.
Note: The new FWC Member must take into account everything that happened before the FWC Member began to deal with the matter (see section 623).
622 Reconstitution of the FWC when FWC Member of a Full Bench or an Expert Panel becomes unavailable
(1) This section applies if:
(a) an FWC Member (the unavailable member) forms part of a Full Bench or an Expert Panel in relation to a matter; and
(b) the FWC Member becomes unavailable to continue dealing with the matter before the matter is completely dealt with.
(2) The Full Bench or the Expert Panel may continue to deal with the matter without the unavailable member if the Full Bench or the Expert Panel consists of the following:
(a) for an Expert Panel other than an Expert Panel referred to in paragraph (aa)—the President and at least 2 Expert Panel Members;
(aa) for an Expert Panel constituted under subsection 620(1B), (1C), (1D) or (1E)—at least 3 FWC Members, of whom:
(i) at least one FWC Member is the President, a Vice President or a Deputy President; and
(ii) a majority of the FWC Members have the knowledge or experience required under paragraph 620(1B)(b), paragraph (1C)(b), paragraphs (1D)(b) and (c) or paragraph (1E)(b) (as the case may be);
(b) for a Full Bench—at least 3 FWC Members, including at least one FWC Member who is the President, a Vice President or a Deputy President.
(3) Otherwise, the President must direct another FWC Member to form part of the Full Bench or the Expert Panel. After the President does so, the Full Bench or the Expert Panel may continue to deal with the matter without the unavailable member.
Note: The new FWC Member must take into account everything that happened before the FWC Member began to deal with the matter (see section 623).
(4) For the purposes of subsection (3), if the President is directing an FWC member to form part of an Expert Panel constituted under subsection 620(1B), (1C), (1D) or (1E), the President must give preference to directing an FWC member that has the knowledge or experience required under paragraph 620(1B)(b), paragraph (1C)(b), paragraphs (1D)(b) and (c) or paragraph (1E)(b) (as the case may be).
623 When new FWC Members begin to deal with matters
If an FWC Member begins to deal with a matter under section 621 or 622, the FWC Member must take into account everything that occurred before the FWC, and everything that the FWC did, in relation to the matter before the FWC Member began to deal with the matter.
624 FWC’s decisions not invalid when improperly constituted
A decision of the FWC is not invalid merely because it was made by a Full Bench, or an Expert Panel, constituted otherwise than as provided by this Division.
Note: If the FWC makes a decision to make an instrument while constituted otherwise than as provided by this Division, the instrument is not invalid (see subsection 598(2)).
Subdivision C—Delegation of the FWC’s functions and powers
625 Delegation by the President of functions and powers of the FWC
(1) The President may, in writing, delegate all or any of the following powers of the FWC to the General Manager or a member of the staff of the FWC:
(a) correcting or amending applications and documents, or waiving irregularities, under section 586;
(b) informing itself as it considers appropriate under section 590 (other than the FWC’s power to hold a hearing);
(c) conducting a conference in accordance with section 592;
(d) correcting or amending obvious errors, defects or irregularities under section 602.
(2) The President may, in writing, delegate all or any of the following functions or powers of the FWC to a person referred to in subsection (3):
(a) publishing varied modern awards under section 168;
(b) publishing submissions under section 289;
(c) publishing research under section 291;
(d) publishing varied wage rates under section 292;
(da) publishing the results of a protected action ballot under section 457;
(f) imposing conditions on entry permits, revoking or suspending entry permits, or banning the issue of any further entry permits, under section 507 or 510;
(g) the functions and powers of the FWC under Division 6 of Part 3‑4 (which deals with entry permits, entry notices and certificates);
(h) publishing enterprise agreements under paragraph 601(4)(b);
(i) any function or power prescribed by the regulations.
(3) The people to whom a delegation may be given under subsection (2) are any of the following:
(a) the General Manager;
(b) a member of the staff of the FWC who is an SES employee or acting SES employee;
(c) a member of the staff of the FWC who is in a class of employees prescribed by the regulations.
(4) In performing functions or exercising powers under a delegation under subsection (1) or (2), the delegate must comply with any directions of the President.
Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.
Division 5—FWC Members
Subdivision A—Appointment of FWC Members
626 Appointment of FWC Members
(1) An FWC Member is to be appointed by the Governor‑General by written instrument.
(2) The instrument of appointment must specify whether the FWC Member is the President, a Vice President, a Deputy President, a Commissioner or an Expert Panel Member.
(3) The instrument of appointment must assign a precedence to the FWC Member if:
(a) the FWC Member and one other FWC Member are appointed as Vice Presidents on the same day; or
(b) the FWC Member and one or more other FWC Members are appointed as Deputy Presidents on the same day.
Note: Precedence is relevant to the seniority of Vice Presidents and Deputy Presidents (see paragraphs 619(1)(ab) and (c)).
(4) The same person must not hold, at the same time, an appointment as both:
(a) an Expert Panel Member; and
(b) the President, a Vice President, a Deputy President or a Commissioner.
627 Qualifications for appointment of FWC Members
President and Vice Presidents
(1) Before the Governor‑General appoints a person as the President or a Vice President, the Minister must be satisfied that the person:
(a) is or has been a Judge of a court created by the Parliament; or
(b) is qualified for appointment because the person has knowledge of, or experience in, one or more of the following fields:
(i) workplace relations;
(ii) law;
(iii) business, industry or commerce.
(1A) Paragraph (1)(a) does not apply to a person who is a Judge of the Federal Circuit and Family Court of Australia (Division 2).
Deputy Presidents
(2) Before the Governor‑General appoints a person as a Deputy President, the Minister must be satisfied that the person:
(a) either:
(i) is or has been a Judge of a court created by the Parliament; or
(ii) has been a Judge of a court of a State or Territory; or
(b) has a high level of experience in the field of workplace relations, including a high level of experience that has been acquired:
(i) through legal practice; or
(ii) in the service of a peak council or another association representing the interests of employers or employees; or
(iii) in the service of government or an authority of government; or
(iv) in academia.
(2A) Subparagraph (2)(a)(i) does not apply to a person who is a Judge of the Federal Circuit and Family Court of Australia (Division 2).
Commissioners
(3) Before the Governor‑General appoints a person as a Commissioner, the Minister must be satisfied that the person is qualified for appointment because the person has knowledge of, or experience in, one or more of the following fields:
(a) workplace relations;
(b) law;
(c) business, industry or commerce.
Expert Panel Members
(4) Before the Governor‑General appoints a person as an Expert Panel Member, the Minister must be satisfied that the person is qualified for appointment because the person has knowledge of, or experience in, one or more of the following fields:
(a) workplace relations;
(b) economics;
(c) social policy;
(d) business, industry or commerce;
(e) finance;
(f) investment management;
(g) superannuation;
(h) gender pay equity;
(i) anti‑discrimination;
(j) the Care and Community Sector;
(k) the road transport industry.
628 Basis of appointment of FWC Members
President, Vice Presidents, Deputy Presidents and Commissioners
(1) The President, a Vice President, a Deputy President or a Commissioner holds office on a full‑time basis.
(2) A Deputy President or a Commissioner may perform his or her duties on a part‑time basis, with the President’s approval.
Expert Panel Members
(3) An Expert Panel Member holds office on a part‑time basis.
629 Period of appointment of FWC Members
President, Vice Presidents, Deputy Presidents and Commissioners
(1) The President, a Vice President, a Deputy President or a Commissioner holds office until the earliest of the following:
(a) he or she attains the age of 65 years;
(b) he or she resigns or the appointment is terminated under this Part.
Members of a prescribed State industrial authority
(2) Despite subsection (1), a person who is a member of a prescribed State industrial authority may be appointed as a Deputy President or Commissioner for a period specified in the instrument of appointment.
Note: A member of a prescribed State industrial authority may hold office as a Deputy President or Commissioner (see section 631).
(3) If a person is so appointed, the person holds office as Deputy President or Commissioner until the earliest of the following:
(a) the specified period ends;
(b) the person ceases to be a member of the prescribed State industrial authority;
(c) the person resigns or the appointment is terminated under this Part.
Expert Panel Members
(4) An Expert Panel Member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note: An Expert Panel Member is eligible for reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).
Subdivision B—Terms and conditions of FWC Members
629A Status of the President
The President has the same status as a Judge of the Federal Court.
630 Appointment of a Judge not to affect tenure etc.
(1) The appointment of a Judge of a court created by the Parliament as an FWC Member, or service by such a Judge as an FWC Member, does not affect:
(a) the Judge’s tenure of office as a Judge; or
(b) the Judge’s rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of his or her office as a Judge.
(2) For all purposes, the Judge’s service as the FWC Member is taken to be service as a Judge.
631 Dual federal and State appointments of Deputy Presidents or Commissioners
(1) Nothing in this Act prevents a Deputy President or Commissioner from being appointed to, and holding at the same time, an office as a member of a prescribed State industrial authority, with the President’s approval.
(2) Nothing in this Act prevents a member of a prescribed State industrial authority from being appointed to, and holding at the same time, an office as a Deputy President or Commissioner.
Note 1: A member of a prescribed State industrial authority may hold office as a Deputy President or Commissioner only if he or she is qualified for appointment (see section 627).
Note 2: For the period of appointment, and remuneration and allowances, of a Deputy President or Commissioner who is a member of a prescribed State industrial authority, see sections 629 and 637.
(3) Subsections (1) and (2) have effect subject to any law of the relevant State.
632 Dual federal and Territory appointments of Deputy Presidents or Commissioners
Nothing in this Act prevents a Deputy President or Commissioner from being appointed to, and holding at the same time, one of the following offices, with the President’s approval:
(a) an office as a member of a Commonwealth or Territory tribunal prescribed by the regulations (other than a court);
(b) an office under a Commonwealth or Territory law.
633 Outside work of FWC Members
Vice Presidents, Deputy Presidents and Commissioners
(1) A Vice President, Deputy President or Commissioner (whether performing duties on a full‑time or part‑time basis) must not engage in paid work outside the duties of his or her office without the President’s approval.
(2) However, the President’s approval is not required if the paid work is an office or appointment in the Defence Force.
Expert Panel Members
(3) An Expert Panel Member must not engage in any paid work that, in the President’s opinion, conflicts or may conflict with the proper performance of his or her duties.
634 Oath or affirmation of office
Before beginning to discharge the duties of his or her office, an FWC Member must take an oath or affirmation in accordance with the regulations.
635 Remuneration of the President
Remuneration if the President is not a Judge
(1) The President (other than a President who is a Judge of a court created by the Parliament) is to be paid:
(a) salary at an annual rate equal to the annual rate of salary payable to the Chief Justice of the Federal Court; and
(b) such travelling allowances as are determined from time to time by the Remuneration Tribunal; and
(c) such other allowances as are prescribed by the regulations.
Remuneration if the President is a Judge
(2) A President who is a Judge of a court created by the Parliament must be paid an additional allowance, in accordance with subsection (3), if the salary payable to the person as a Judge is less than the salary that would be payable to the person as President under subsection (1).
(3) The amount of the allowance is the difference between the Judge’s salary and the salary that is payable to the President under subsection (1).
Additional amount
(4) The President or a former President must be paid an amount in accordance with subsection 7(5E) of the Remuneration Tribunal Act 1973 if the President, or former President, would be entitled to that amount had the President or former President held the office of Chief Justice of the Federal Court instead of the office of President.
636 Application of Judges’ Pensions Act to the President
(1) The Judges’ Pensions Act 1968 does not apply to the President if:
(a) immediately before being appointed as the President, he or she was one of the following (a public sector superannuation scheme member):
(i) an eligible employee for the purposes of the Superannuation Act 1976;
(ii) a member of the superannuation scheme established by deed under the Superannuation Act 1990;
(iii) an ordinary employer‑sponsored member of PSSAP (within the meaning of the Superannuation Act 2005); and
(b) he or she does not make an election under subsection (2).
(2) The President may elect to cease to be a public sector superannuation scheme member.
(3) The election must be made:
(a) within 3 months of the President’s appointment; and
(b) by written notice to the Minister.
(4) If the President makes the election:
(a) he or she is taken to have ceased to be a public sector superannuation scheme member immediately before being appointed as the President; and
(b) the Judges’ Pensions Act 1968 applies to him or her, and is taken to have so applied, immediately after he or she was appointed as the President.
637 Remuneration of FWC Members other than the President
Remuneration if an FWC Member is not a Judge
(1) An FWC Member (other than an FWC Member who is a Judge of a court created by the Parliament) is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the FWC Member is to be paid the remuneration that is prescribed by the regulations.
(2) An FWC Member is to be paid the allowances that are prescribed by the regulations.
(3) Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973 and to section 638 (which deals with remuneration of part‑time Deputy Presidents and Commissioners).
(4) Despite subsections (1) to (3), if a person who is a member of a prescribed State industrial authority is appointed as a Deputy President or Commissioner, the person is not to be paid any remuneration or allowances in relation to the office of Deputy President or Commissioner other than any travel allowance prescribed under subsection (2).
Remuneration if an FWC Member is a Judge
(5) An FWC Member who is a Judge (other than the Chief Justice of the Federal Court) of a court created by the Parliament is to be paid an additional allowance, in accordance with subsection (6), if the salary payable to the person as a Judge is less than the salary that would be payable to the person as an FWC Member under subsection (1).
(6) The amount of the allowance is the difference between the Judge’s salary and the salary that is payable to the FWC Member under subsection (1).
Section does not apply to the President
(7) This section does not apply to the President.
638 Remuneration of Deputy Presidents or Commissioners performing duties on a part‑time basis
(1) If the President approves a Deputy President or Commissioner (the part‑time member) performing his or her duties on a part‑time basis, the President and the part‑time member are to enter into a written agreement specifying the proportion (the agreed proportion) of full‑time duties to be worked by the part‑time member.
(2) The agreed proportion may be varied by a written agreement between the President and the part‑time member.
(3) The part‑time member’s annual rate of salary at a particular time is equal to the agreed proportion at that time of the annual rate of salary that would be payable to the part‑time member if he or she were performing his or her duties on a full‑time basis.
(4) The allowances that are to be paid to the part‑time member under section 637 are not affected by this section.
639 Leave of absence of FWC Members other than the President
(1) An FWC Member has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The President may grant an FWC Member leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise as the President determines.
(3) In making a determination in accordance with this section, the Remuneration Tribunal and the President must take into account:
(a) any past employment of the FWC Member in the service of a State or an authority of a State; or
(b) any past service of the FWC Member as a member of an authority of a State.
(4) This section does not apply to the President.
640 Disclosure of interests by FWC Members other than the President
(1) This section applies if:
(a) an FWC Member (other than the President) is dealing, or will deal, with a matter; and
(b) the FWC Member has or acquires any interest (the potential conflict), pecuniary or otherwise, that conflicts or could conflict with the proper performance of the FWC Member’s functions in relation to the matter.
(2) The FWC Member must disclose the potential conflict to:
(a) a person who has made, or will make, a submission for consideration in the matter; and
(b) a person who the FWC Member considers is likely to make a submission for consideration in the matter; and
(c) the President.
(4) The President must give a direction to the FWC Member not to deal, or to no longer deal, with the matter if:
(a) the President becomes aware that an FWC Member has a potential conflict in relation to a matter (whether or not because of a disclosure under subsection (2)); and
(b) the President considers that the FWC Member should not deal, or should no longer deal, with the matter.
641 Termination of appointment on grounds of misbehaviour or incapacity
The Governor‑General may terminate the appointment of an FWC Member if an address praying for the termination, on one of the following grounds, is presented to the Governor‑General by each House of the Parliament in the same session:
(a) proved misbehaviour;
(b) the FWC Member is unable to perform the duties of his or her office because of physical or mental incapacity.
641A Minister may handle complaints about FWC Members
The Minister may handle a complaint about the performance by an FWC Member of his or her duties:
(a) for the purpose of considering whether each House of the Parliament should consider whether to present to the Governor‑General an address praying for the termination of the appointment of the FWC Member; and
(b) for the purpose of considering whether to advise the Governor‑General to suspend the FWC Member.
Note 1: The appointment of an FWC Member may be terminated under section 641 if each House of the Parliament presents such an address to the Governor‑General.
Note 2: The FWC Member may be suspended under section 642.
Note 3: The complaint is a complaint about an FWC Member (see section 12).
Note 4: For protections for persons involved in relation to handling a complaint about an FWC Member, see section 584B.
641B Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012
(1) The object of this section is to modify the application of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (the JMIPC Act) so as to allow a Commission to be established by the Houses of Parliament to investigate and report on alleged misbehaviour or incapacity of an FWC Member, so the Houses can be well‑informed to consider whether to pray for:
(a) the termination of the FWC Member’s appointment under section 641; or
(b) the removal of the FWC Member from office under section 82 or 86 of the WR Act (within the meaning of the Transitional Act), as those sections continue to apply because of the operation of item 2 of Schedule 18 to the Transitional Act.
(2) The JMIPC Act applies, in addition to its general application, as if a provision of that Act referred to in an item in column 1 of the following table were amended as specified in column 2 of the item.
Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 |
Item | Column 1 Provision of the JMIPC Act | Column 2 Amendment |
1 | Subsection 3(1) | Omit “a Commonwealth judicial officer”, substitute “an FWC Member”. |
2 | Subsection 3(1) | Omit all the words after “whether to”, substitute: “pray for: (a) for a non‑transitioned FWC Member—the termination of the FWC Member’s appointment under section 641 of the FW Act; or (b) for a transitioned FWC Member—the removal of the FWC Member from office under section 82 or 86 of the WR Act (as those sections continue to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act).”. |
3 | Paragraph 3(2)(b) | Omit “removal of a Commonwealth judicial officer under paragraph 72(ii) of the Constitution”, substitute “termination of appointment or removal from office of an FWC Member under the relevant provisions referred to in subsection (1)”. |
4 | Section 4 | Omit “a Commonwealth judicial officer (that is, a High Court judge or a judge of the Federal Court of Australia, the Federal Circuit and Family Court of Australia (Division 1) or the Federal Circuit and Family Court of Australia (Division 2))”, substitute “an FWC Member”. |
5 | Section 4 | Omit “removal of the judicial officer, the judicial officer may be removed by the Governor‑General in Council in accordance with paragraph 72(ii) of the Constitution”, substitute “termination of appointment or removal from office of the FWC Member, the FWC Member’s appointment may be terminated, or the FWC Member may be removed from office, by the Governor‑General in Council under the applicable provisions of the FW Act or the WR Act”. |
6 | Section 7 | Insert: FW Act means the Fair Work Act 2009. FWC Member has the same meaning as in the FW Act and includes a transitioned FWC Member. FW Transitional Act means the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. |
7 | Section 7 (definition of incapacity) | Omit the definition (including the note), substitute: incapacity: (a) in relation to the termination of appointment of a non‑transitioned FWC Member under section 641 of the FW Act—has the same meaning as in that section; and (b) in relation to the removal of a transitioned FWC Member from office under section 82 of the WR Act (as that section continues to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act)—has the same meaning as in that section; and (c) in relation to the removal of a transitioned FWC Member from office under section 86 of the WR Act (as that section continues to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act)—has the same meaning as in that section; and (d) in relation to the termination of appointment of a member of the Commission under section 73 of this Act—has its ordinary meaning. |
8 | Section 7 (definition of misbehaviour) | Omit the definition (including the note), substitute: misbehaviour: (a) in relation to the termination of appointment of a non‑transitioned FWC Member under section 641 of the FW Act—has the same meaning as in that section; and (b) in relation to the removal of a transitioned FWC Member from office under section 82 of the WR Act (as that section continues to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act)—has the same meaning as in that section; and (c) in relation to the removal of a transitioned FWC Member from office under section 86 of the WR Act (as that section continues to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act)—has the same meaning as in that section; and (d) in relation to the termination of appointment of a member of the Commission under section 73 of this Act—has its ordinary meaning. |
9 | Section 7 | Insert: non‑transitioned FWC Member means an FWC Member who is not a transitioned FWC Member. |
10 | Section 7 (definition of proved) | Omit the definition, substitute: proved: (a) in relation to the termination of appointment of a non‑transitioned FWC Member for misbehaviour under paragraph 641(a) of the FW Act—has the same meaning as in that paragraph; and (b) in relation to the termination of appointment of a non‑transitioned FWC Member for incapacity under paragraph 641(b) of the FW Act—means the grounds referred to in that paragraph are established; and (c) in relation to the removal of a transitioned FWC Member from office for misbehaviour or incapacity under section 82 of the WR Act (as that section continues to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act)—has the same meaning as in that section; and (d) in relation to the removal of a transitioned FWC Member from office for misbehaviour or incapacity under section 86 of the WR Act (as that section continues to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act)—has the same meaning as in that section. |
11 | Section 7 | Insert: transitioned FWC Member means a person who is taken to be appointed as an FWA Member under item 1 of Schedule 18 to the FW Transitional Act. WR Act has the same meaning as in the FW Transitional Act. WR Act repeal day has the same meaning as in the FW Transitional Act. |
12 | Section 8 | Omit “a Commonwealth judicial officer”, substitute “an FWC Member”. |
13 | Section 8 | Omit “removal of the judicial officer, the judicial officer may be removed by the Governor‑General in Council in accordance with paragraph 72(ii) of the Constitution”, substitute “termination of appointment or removal from office of the FWC Member, the FWC Member’s appointment may be terminated, or the FWC Member may be removed from office, by the Governor‑General in Council under the applicable provisions of the FW Act or the WR Act”. |
14 | Subsection 9(1) | Omit “Commonwealth judicial officer”, substitute “FWC Member”. |
15 | Subsection 9(1) (note 2) | Omit “Commonwealth judicial officer”, substitute “FWC Member”. |
16 | Paragraph 16(1)(b) | Omit “a Commonwealth judicial officer”, substitute “an FWC Member”. |
17 | Subsection 19(6) | After paragraph 19(6)(c), insert: (ca) an investigation into a complaint about an FWC Member; and |
18 | Subsection 20(2) | Omit “a Commonwealth judicial officer”, substitute “an FWC Member”. |
19 | Subsection 20(2) | Omit “the Commonwealth judicial officer” (wherever occurring), substitute “the FWC Member”. |
20 | Section 21 | Omit “a Commonwealth judicial officer” (wherever occurring), substitute “an FWC Member”. |
21 | Paragraph 23(3)(a) | Omit “Commonwealth judicial officer to whom the investigation relates to perform his or her duties as such an officer”, substitute “FWC Member to whom the investigation relates to perform his or her duties as an FWC Member”. |
22 | Paragraph 23(3)(b) and subparagraph 23(3)(c)(i) | Omit “judiciary”, substitute “Fair Work Commission”. |
23 | Subparagraph 23(3)(c)(ii) | Omit “Commonwealth judicial officer”, substitute “FWC Member”. |
24 | Subsection 24(4) (heading) | Omit “Commonwealth judicial officer”, substitute “FWC Member”. |
25 | Subsections 24(4) and (5) | Omit “Commonwealth judicial officer” (wherever occurring), substitute “FWC Member”. |
26 | Paragraph 24(7)(c) | Omit “Commonwealth judicial officer”, substitute “FWC Member”. |
27 | Subdivision D of Division 2 of Part 3 (heading) | Omit “Commonwealth judicial officer”, substitute “FWC Member”. |
28 | Section 45 (heading) | Omit “Commonwealth judicial officer”, substitute “FWC Member”. |
29 | Subsections 45(1) and 46(2) | Omit “Commonwealth judicial officer”, substitute “FWC Member”. |
642 Suspension on grounds of misbehaviour or incapacity
Governor‑General may suspend an FWC Member
(1) The Governor‑General may suspend an FWC Member (other than the President) from office:
(a) for misbehaviour; or
(b) if the FWC Member is unable to perform the duties of his or her office because of physical or mental incapacity.
Statement of grounds
(2) The Minister must cause to be tabled in each House of Parliament, within 7 sitting days of that House after the suspension, a statement identifying the FWC Member and setting out the ground of the suspension.
Resolution by a House of Parliament
(3) A House of the Parliament may, within 15 sitting days of that House after the day on which the statement has been tabled in it, declare by resolution that the appointment of the FWC Member should be terminated.
Suspension terminates
(4) If a House does not pass a resolution in that way, the suspension terminates.
Appointment to be terminated
(5) If each House of the Parliament passes a resolution in that way, the Governor‑General must terminate the appointment of the FWC Member.
Suspension not to affect entitlements
(6) The suspension of an FWC Member under this section does not affect any entitlement of the FWC Member to be paid remuneration, and allowances, in accordance with this Act.
643 Termination of appointment for bankruptcy, etc.
The Governor‑General must terminate the appointment of an FWC Member (other than the President) if:
(a) the FWC Member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors, or makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the FWC Member is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months.
644 Termination of appointment for outside work
Vice Presidents, Deputy Presidents and Commissioners
(1) The Governor‑General must terminate the appointment of a Vice President, Deputy President or Commissioner if the Vice President, Deputy President or Commissioner engages, except with the President’s approval, in paid work outside the duties of his or her office (see subsection 633(1)).
Expert Panel Members
(2) The Governor‑General must terminate the appointment of an Expert Panel Member if the Expert Panel Member engages in paid work that, in the President’s opinion, conflicts or may conflict with the proper performance of his or her duties (see subsection 633(3)).
645 Resignation of FWC Members
(1) An FWC Member may resign his or her appointment by giving the Governor‑General a written resignation.
(2) The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.
646 Other terms and conditions of FWC Members
An FWC Member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor‑General.
647 Appointment of acting President and Vice President
Appointment by Governor‑General
(1) The Governor‑General may, by written instrument, appoint a Vice President to act as the President:
(a) during a vacancy in the office of the President (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the President is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.
(1A) The Governor‑General may, by written instrument, appoint a Deputy President to act as a Vice President:
(a) during a vacancy in the office of a Vice President (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when a Vice President is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.
No invalidity
(2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion for the person to act had not arisen or had ceased.
Not disqualified
(3) A person is not disqualified from being appointed under subsection (1) or (1A) merely because the person is over 65.
648 Appointment of acting Deputy Presidents and Commissioners
Appointment by Governor‑General
(1) The Governor‑General may, by written instrument, appoint a person who is qualified for appointment as a Deputy President to act as a Deputy President for a specified period (including a period that exceeds 12 months).
Note: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.
(1A) The Governor‑General may, by written instrument, appoint a person who is qualified for appointment as a Commissioner to act as a Commissioner for a specified period (including a period that exceeds 12 months).
Note: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.
(2) Before the Governor‑General appoints a person under subsection (1) or (1A), the Minister must be satisfied that the appointment is necessary to enable the FWC to perform its functions effectively.
No invalidity
(3) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion for the person to act had not arisen or had ceased.
Not disqualified
(4) A person is not disqualified from being appointed under subsection (1) or (1A) merely because the person is over 65.
Division 6—Cooperation with the States
649 President to cooperate with prescribed State industrial authorities
(1) The President must perform his or her functions, and exercise his or her powers, in a manner that facilitates and encourages cooperation between the FWC and prescribed State industrial authorities.
(2) Without limiting subsection (1), the President may invite the heads of prescribed State industrial authorities, or the principal registrars of prescribed State industrial authorities, to meet with the President to exchange information and discuss matters of mutual interest in relation to workplace relations.
650 Provision of administrative support
The President may make a written arrangement with a prescribed State industrial authority for:
(a) the FWC to provide administrative support to the authority; or
(b) the authority to provide administrative support to the FWC.
Division 7—Seals and additional powers and functions of the President and the General Manager
651 Seals
Seal of the FWC
(1) The FWC must have a seal on which are inscribed the words “The Seal of the Fair Work Commission”.
Duplicate seals
(2) There are to be such duplicates of the seal of the FWC as the President directs.
Note: The President gives directions under section 582.
(3) A document to which a duplicate seal of the FWC is affixed is taken to have the seal of the FWC affixed to it.
Custody and use of the seal of the FWC and duplicate seals
(4) The seal of the FWC, and the duplicates of that seal, are to be kept in such custody as the President directs and must not be used except as authorised by the President.
Note: The President gives directions under section 582.
Judicial notice of the seal of the FWC
(5) All courts, judges and persons acting judicially must:
(a) take judicial notice of the imprint of the seal of the FWC appearing on a document; and
(b) presume that the document was duly sealed.
652 Annual report
(1) The President must, as soon as practicable after the end of each financial year, prepare a report on the operations of the FWC during that year.
Note 1: See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.
Note 2: The report prepared by the General Manager and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 may be included in the report prepared under this section. Section 329D of the Registered Organisations Act sets out additional requirements for the General Manager’s report.
(1A) A report prepared after the end of a financial year must be given to the Minister by 15 October in the next financial year for presentation to the Parliament.
(2) To avoid doubt, subsection (1) does not require or authorise the disclosure of information for the purposes of the Privacy Act 1988.
653 Reports about making enterprise agreements, individual flexibility arrangements etc.
Review and research
(1) The General Manager must:
(a) review the developments, in Australia, in making enterprise agreements; and
(b) conduct research into the extent to which individual flexibility arrangements under modern awards and enterprise agreements are being agreed to, and the content of those arrangements; and
(c) conduct research into the operation of the provisions of the National Employment Standards relating to:
(i) requests for flexible working arrangements under subsection 65(1); and
(ii) requests for extensions of unpaid parental leave under subsection 76(1); and
(d) conduct research into:
(i) the circumstances in which employees make such requests; and
(ii) the outcome of such requests; and
(iii) the circumstances in which such requests are refused.
(1A) The review and research must be conducted in relation to each of the following periods:
(a) the 3 year period that starts when this section commences;
(b) each later 3 year period.
(2) Without limiting subsection (1), the General Manager must, in conducting the review and research, consider the effect that the matters referred to in paragraphs (1)(a) to (d) have had, during the period, on the employment (including wages and conditions of employment) of the following persons:
(a) women;
(b) part‑time employees;
(c) persons from a non‑English speaking background;
(d) mature age persons;
(e) young persons;
(f) any other persons prescribed by the regulations.
Report
(3) The General Manager must give the Minister a written report of the review and research as soon as practicable, and in any event within 6 months, after the end of the period to which it relates.
(4) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.
(5) Subsections 34C(4) to (7) of the Acts Interpretation Act 1901 apply to the report as if it were a periodic report as defined in subsection 34C(1) of that Act.
653A Arrangements with the Federal Court and the Federal Circuit and Family Court of Australia (Division 2)
The General Manager may make a written arrangement with the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for the FWC to provide administrative support to the Fair Work Division of the Court.
654 President must provide certain information etc. to the Minister and Fair Work Ombudsman
(1) The President must provide to the Minister and the Fair Work Ombudsman information and copies of documents prescribed by the regulations by the time, and in the form, prescribed.
(2) The regulations may prescribe:
(a) information that is publicly available, or derived from information that is publicly available, relating to:
(i) a decision of the FWC; or
(ii) a notice, notification or application given or made to the FWC; and
(b) a decision of the FWC that is publicly available.
655 Disclosure of information by the FWC
Information to which this section applies
(1) This section applies to the following information:
(a) information acquired by the FWC, or a member of the staff of the FWC, in the course of performing functions or exercising powers as the FWC;
(b) information acquired by a person in the course of assisting the FWC under section 672, or in the course of performing functions, or exercising powers, as a consultant under section 673.
Disclosure that is necessary or appropriate, or likely to assist administration or enforcement
(2) The President may disclose, or authorise the disclosure of, the information if the President reasonably believes:
(a) that it is necessary or appropriate to do so in the course of performing functions, or exercising powers, of the FWC; or
(b) that the disclosure is likely to assist in the administration or enforcement of a law of the Commonwealth, a State or a Territory.
Division 8—General Manager, staff and consultants
Subdivision A—Functions of the General Manager
656 Establishment
There is to be a General Manager of the Fair Work Commission.
657 Functions and powers of the General Manager
(1) The General Manager is to assist the President in ensuring that the FWC performs its functions and exercises its powers.
(1A) The General Manager also has the following functions:
(a) any function conferred on him or her by a fair work instrument;
(b) any function conferred on him or her by a law of the Commonwealth.
Note 1: Sections 653 and 653A confer additional functions and powers on the General Manager.
Note 2: Section 329A of the Registered Organisations Act confers additional functions on the General Manager.
(2) The General Manager has power to do all things necessary or convenient to be done for the purpose of performing his or her functions.
658 Directions from the President
Despite the President’s power of direction under section 582, the General Manager is not required to comply with a direction by the President to the extent that:
(a) compliance with the direction would be inconsistent with the General Manager’s performance of functions or exercise of powers under the Public Governance, Performance and Accountability Act 2013 in relation to the FWC; or
(b) the direction relates to the General Manager’s performance of functions or exercise of powers under the Public Service Act 1999 in relation to the FWC; or
(c) the direction relates to the conduct by the General Manager of the review and research, and the preparation of the report, under section 653; or
(d) the direction relates to the General Manager’s performance of functions or exercise of powers under the Registered Organisations Act.
659 General Manager not otherwise subject to direction
Except as provided by this or any other Act, the General Manager is not subject to direction by or on behalf of the Commonwealth.
Subdivision B—Appointment and terms and conditions of the General Manager
660 Appointment of the General Manager
(1) The General Manager is to be appointed by the Governor‑General by written instrument on the nomination of the President.
(2) The General Manager holds office on a full‑time basis.
(3) The General Manager holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note: The General Manager is eligible for reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).
661 Remuneration of the General Manager
(1) The General Manager is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the General Manager is to be paid the remuneration that is prescribed by the regulations.
(2) The General Manager is to be paid the allowances that are prescribed by the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
662 Leave of absence of the General Manager
(1) The General Manager has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the General Manager leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
663 Outside work of the General Manager
The General Manager must not engage in paid work outside the duties of his or her office without the President’s approval.
664 Disclosure of interests to the President
(1) The General Manager must give written notice to the President of all material personal interests that the General Manager has or acquires that relate to the affairs of the FWC.
(2) Section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) does not apply to the General Manager.
665 Resignation of the General Manager
(1) The General Manager may resign his or her appointment by giving the Governor‑General a written resignation.
(2) The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.
666 Termination of appointment of the General Manager
(1) The Governor‑General may terminate the appointment of the General Manager:
(a) for misbehaviour; or
(b) if the General Manager is unable to perform the duties of his or her office because of physical or mental incapacity.
(2) The Governor‑General must terminate the appointment of the General Manager if:
(a) the General Manager becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors, or makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the General Manager is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) the General Manager engages, except with the President’s approval, in paid work outside the duties of his or her office (see section 663); or
(d) the General Manager fails, without reasonable excuse, to comply with section 664 (which deals with disclosure of interests to the President).
667 Other terms and conditions of the General Manager
The General Manager holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor‑General.
668 Appointment of acting General Manager
(1) The Minister may, by written instrument, appoint a person who is nominated by the President to act as the General Manager:
(a) during a vacancy in the office of the General Manager (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the General Manager is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.
(2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
669 Minister to consult the President
The Minister must consult the President before terms and conditions are determined under section 667.
Subdivision C—Staff and consultants
670 Staff
(1) The staff of the FWC must be persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the General Manager and the staff of the FWC together constitute a Statutory Agency; and
(b) the General Manager is the Head of that Statutory Agency.
671 Delegation by General Manager to staff
(1) The General Manager may, in writing, delegate all or any of his or her functions or powers to:
(a) a member of the staff of the FWC who is an SES employee or acting SES employee; or
(b) a member of the staff of the FWC who is in a class of employees prescribed by the regulations.
(2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the General Manager.
Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.
672 Persons assisting the FWC
The FWC may also be assisted:
(a) by employees of Agencies (within the meaning of the Public Service Act 1999); or
(b) by officers and employees of a State or Territory; or
(c) by officers and employees of authorities of the Commonwealth, a State or a Territory;
whose services are made available to the FWC in connection with the performance of any of its functions.
673 Consultants
The General Manager may engage persons having suitable qualifications and experience as consultants to the FWC.
Subdivision D—Application of the finance law
673A Application of the finance law
For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):
(a) the following group of persons is a listed entity:
(i) the General Manager;
(ii) the staff of the FWC referred to in section 670;
(iii) persons whose services are made available to the FWC under section 672;
(iv) consultants engaged under section 673; and
(b) the listed entity is to be known as the Fair Work Commission; and
(c) the General Manager is the accountable authority of the listed entity; and
(d) the persons referred to in paragraph (a) are officials of the listed entity; and
(e) the purposes of the listed entity include the functions of the General Manager referred to in section 657.
Division 9—Offences relating to the Fair Work Commission
674 Offences in relation to the FWC
Insulting or disturbing an FWC Member
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct insults or disturbs an FWC Member in the performance of functions, or the exercise of powers, as an FWC Member.
Penalty: Imprisonment for 12 months.
Using insulting language
(2) A person commits an offence if:
(a) the person uses insulting language towards another person; and
(b) the person is reckless as to whether the language is insulting; and
(c) the other person is an FWC Member performing functions, or exercising powers, as an FWC Member.
Penalty: Imprisonment for 12 months.
Interrupting matters before the FWC
(3) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct interrupts a matter before the FWC.
Penalty: Imprisonment for 12 months.
Creating or continuing a disturbance
(4) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct creates, or contributes to creating or continuing, a disturbance; and
(c) the disturbance is in or near a place where the FWC is dealing with a matter.
Penalty: Imprisonment for 12 months.
Improper influence of FWC Members etc.
(5) A person commits an offence if:
(a) the person uses words (whether by writing or speech) that are intended to improperly influence another person; and
(b) the other person is an FWC Member or a person attending before the FWC.
Penalty: Imprisonment for 12 months.
Delegates of the FWC
(6) A reference in subsections (1) to (5) to the FWC or an FWC Member includes a delegate of the FWC.
Adversely affecting public confidence in the FWC
(7) A person commits an offence if:
(a) the person publishes a statement; and
(b) the statement implies or states that an FWC Member (whether identified or not) has engaged in misconduct in relation to the performance of functions, or the exercise of powers, as an FWC Member; and
(c) the FWC Member has not engaged in that misconduct; and
(d) the publication is likely to have a significant adverse effect on public confidence that the FWC is properly performing its functions and exercising its powers.
Penalty: 12 months imprisonment.
Note 1: Sections 135.1, 135.4, 139.1, 141.1 and 142.1 of the Criminal Code create offences of using various dishonest means to influence a Commonwealth public official.
Note 2: Sections 676 and 678 of this Act and sections 36A, 37, 38 and 40 of the Crimes Act 1914 create offences relating to interference with a witness. Section 39 of that Act makes it an offence to destroy anything that may be required in evidence.
675 Contravening an FWC order
(1) A person commits an offence if:
(a) the FWC has made an order under this Act; and
(b) either of the following applies:
(i) the order applies to the person;
(ii) a term of the order applies to the person; and
(c) the person engages in conduct; and
(d) the conduct contravenes:
(i) a term of the order referred to in subparagraph (b)(i); or
(ii) the term referred to in subparagraph (b)(ii).
(2) However, subsection (1) does not apply to the following orders:
(aa) an order under subsection 65C(1) (which deals with arbitration of disputes relating to requests for flexible working arrangements);
(ab) an order under subsection 76C(1) (which deals with the extension of periods of unpaid parental leave);
(ac) an order under subsection 66MA(1) (which deals with casual employment);
(a) an order under Part 2‑3 (which deals with modern awards);
(aaa) an order under subsection 177A(7) (certificate to be a bargaining representative);
(b) a bargaining order;
(c) a scope order;
(d) an order under Part 2‑6 (which deals with minimum wages);
(e) an equal remuneration order;
(f) an order under Part 2‑8 (which deals with transfer of business);
(fa) an order under Division 6 of Part 2‑9 (which deals with the employee right to disconnect);
(g) an order under Division 6 of Part 3‑3 (which deals with the suspension or termination of protected industrial action);
(h) a protected action ballot order, or an order in relation to a protected action ballot order or a protected action ballot;
(i) an order under Part 3‑5 (which deals with stand down);
(ia) an order under Part 3‑5A (which deals with sexual harassment in connection with work);
(j) an order under Part 6‑4B (which deals with workers bullied at work);
(k) an order under Part 6‑4C (which deals with the Coronavirus economic response);
(l) a minimum standards order;
(m) a road transport contractual chain order.
Penalty: Imprisonment for 12 months.
(3) Strict liability applies to paragraphs (1)(a) and (b).
Note: For strict liability, see section 6.1 of the Criminal Code.
676 Intimidation etc.
A person commits an offence if:
(a) the person threatens, intimidates, coerces or prejudices another person; and
(b) the person does so because the other person has given, or proposes to give, information or documents to the FWC.
Penalty: Imprisonment for 12 months.
Note: A person may also contravene a civil remedy provision by threatening etc. a person who has given, or proposes to give, information or documents to the FWC (see section 343).
677 Offences in relation to attending before the FWC
Required to attend
(1) A person commits an offence if:
(a) the person has been required to attend before the FWC; and
(b) the person fails to attend as required.
Penalty: Imprisonment for 6 months.
Oath or affirmation
(2) A person commits an offence if:
(a) the person attends before the FWC; and
(b) the FWC requires the person to take an oath or make an affirmation; and
(c) the person refuses or fails to be sworn or to make an affirmation as required.
Penalty: Imprisonment for 6 months.
Questions or documents
(3) A person commits an offence if:
(a) the person attends before the FWC; and
(b) the FWC requires the person to answer a question or produce a document; and
(c) the person refuses or fails to answer the question or produce the document.
Penalty: Imprisonment for 6 months.
Reasonable excuse
(4) Subsection (1), (2) or (3) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
(5) A reference in this section to the FWC or an FWC Member includes a delegate of the FWC.
678 False or misleading evidence
Giving false or misleading evidence
(1) A person (the witness) commits an offence if:
(a) the witness gives sworn or affirmed evidence; and
(b) the witness gives the evidence as a witness:
(i) in a matter before the FWC; or
(ii) before a person taking evidence on behalf of the FWC for use in a matter that the witness will start by application to the FWC; and
(c) the evidence is false or misleading.
Penalty: Imprisonment for 12 months.
Note: A person will not commit an offence if the person carries out the conduct constituting the offence under duress (see section 10.2 of the Criminal Code).
Inducing or coercing another person to give false or misleading evidence
(2) A person (the offender) commits an offence if:
(a) another person (the witness) has been, or will be, required to appear as a witness in a matter before the FWC (whether the person is to appear before the FWC or a delegate of the FWC); and
(b) the offender induces, threatens or intimidates the witness to give false or misleading evidence in the matter.
Penalty: Imprisonment for 12 months.
Part 5‑2—Office of the Fair Work Ombudsman
Division 1—Introduction
679 Guide to this Part
This Part is about the Office of the Fair Work Ombudsman.
Division 2 is about the Fair Work Ombudsman. The Fair Work Ombudsman’s functions include promoting and monitoring compliance with this Act, and providing education, assistance and advice to employees, employers, outworkers, outworker entities and organisations.
Division 3 is about the Office of the Fair Work Ombudsman. The Office of the Fair Work Ombudsman consists of the Fair Work Ombudsman, Fair Work Inspectors and staff.
The inspectors exercise compliance powers for purposes including determining whether this Act is being complied with. The compliance powers include the power to enter certain premises, and to inspect and make copies of documents on the premises.
680 Meanings of employee and employer
In this Part, employee and employer have their ordinary meanings.
Note: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).
Division 2—Fair Work Ombudsman
Subdivision A—Establishment and functions and powers of the Fair Work Ombudsman
681 Establishment
There is to be a Fair Work Ombudsman.
682 Functions of the Fair Work Ombudsman
(1) The Fair Work Ombudsman has the following functions:
(a) to promote:
(i) harmonious, productive and cooperative workplace relations; and
(ii) compliance with this Act and fair work instruments;
including by providing education, assistance and advice to employees, employers, regulated workers, regulated businesses, persons in a road transport contractual chain, outworkers, outworker entities and organisations and producing best practice guides to workplace relations or workplace practices;
(b) to monitor compliance with this Act and fair work instruments;
(c) to inquire into, and investigate, any act or practice that may be contrary to this Act, a fair work instrument or a safety net contractual entitlement;
(d) to commence proceedings in a court, or to make applications to the FWC, to enforce this Act, fair work instruments and safety net contractual entitlements;
(da) to publish a compliance and enforcement policy, including guidelines relating to the circumstances in which the Fair Work Ombudsman will, or will not:
(i) accept or consider accepting undertakings under section 715; or
(ii) enter or consider entering into cooperation agreements under section 717B;
(e) to refer matters to relevant authorities;
(f) to represent employees, regulated workers, or outworkers who are, or may become, a party to proceedings in a court, or a party to a matter before the FWC, under this Act or a fair work instrument, if the Fair Work Ombudsman considers that representing the employees, regulated workers, or outworkers will promote compliance with this Act or the fair work instrument;
(g) any other functions conferred on the Fair Work Ombudsman by any Act.
Note 1: The Fair Work Ombudsman also has the functions of an inspector (see section 701).
Note 2: In performing functions under paragraph (a), the Fair Work Ombudsman might, for example, produce a best practice guide to achieving productivity through bargaining.
(1A) In performing functions under paragraph (1)(a), the Fair Work Ombudsman must have regard to:
(a) the need for guidelines and other materials to be available in multiple languages; and
(b) the need for community outreach in multiple languages.
(2) The Fair Work Ombudsman must consult with the FWC in producing guidance material that relates to the functions of the FWC.
(3) Before publishing a compliance and enforcement policy under paragraph (1)(da), the Fair Work Ombudsman must consult with the National Workplace Relations Consultative Council about the guidelines referred to in that paragraph.
(3) The Fair Work Ombudsman has the functions of:
(a) providing education, assistance and advice to regulated workers, regulated businesses and organisations, and persons in a road transport contractual chain, in relation to minimum standards guidelines and road transport contractual chain guidelines; and
(b) producing best practice guides in relation to minimum standards guidelines and road transport contractual chain guidelines.
683 Delegation by the Fair Work Ombudsman
(1) The Fair Work Ombudsman may, in writing, delegate to a member of the staff of the Office of the Fair Work Ombudsman or to an inspector all or any of the Fair Work Ombudsman’s functions or powers under any Act (subject to subsections (1A) and (1B)).
(1A) The Fair Work Ombudsman must not delegate his or her functions or powers as an inspector.
(1B) The Fair Work Ombudsman may delegate to a member of the staff of the Office of the Fair Work Ombudsman who is an SES employee or an acting SES employee:
(a) the power under subsection 712AA(1) to apply for the issue of an FWO notice; and
(b) the power under subsection 712AD(1) to give an FWO notice; and
(c) the power under subsections 712AD(3) and (4) to give notice of a later time.
Note: SES employee and acting SES employee are defined in the Acts Interpretation Act 1901.
(2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Fair Work Ombudsman.
684 Directions from the Minister
(1) The Minister may, by legislative instrument, give written directions to the Fair Work Ombudsman about the performance of his or her functions.
Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the direction (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).
(2) The direction must be of a general nature only.
(3) The Fair Work Ombudsman must comply with the direction.
(4) The Fair Work Ombudsman is not required to comply with the direction to the extent that it relates to the Fair Work Ombudsman’s performance of functions, or exercise of powers, under the Public Service Act 1999 in relation to the Office of the Fair Work Ombudsman.
685 Minister may require reports
(1) The Minister may, in writing, direct the Fair Work Ombudsman to give the Minister specified reports relating to the Fair Work Ombudsman’s functions.
Note: A report must not include information relating to an individual’s affairs (see section 714A).
(2) The Fair Work Ombudsman must comply with the direction.
(3) The direction, or the report (if made in writing), is not a legislative instrument.
686 Annual report
To avoid doubt, the requirement on the Fair Work Ombudsman to give an annual report to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 does not require or authorise the disclosure of information for the purposes of the Privacy Act 1988.
Note: An annual report must not include information relating to an individual’s affairs (see section 714A).
Subdivision B—Appointment and terms and conditions of the Fair Work Ombudsman
687 Appointment of the Fair Work Ombudsman
(1) The Fair Work Ombudsman is to be appointed by the Governor‑General by written instrument.
(2) Before the Governor‑General appoints a person as the Fair Work Ombudsman, the Minister must be satisfied that the person:
(a) has suitable qualifications or experience; and
(b) is of good character.
(3) The Fair Work Ombudsman holds office on a full‑time basis.
(4) The Fair Work Ombudsman holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note: The Fair Work Ombudsman is eligible for reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).
688 Remuneration of the Fair Work Ombudsman
(1) The Fair Work Ombudsman is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Fair Work Ombudsman is to be paid the remuneration that is prescribed by the regulations.
(2) The Fair Work Ombudsman is to be paid the allowances that are prescribed by the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
689 Leave of absence of the Fair Work Ombudsman
(1) The Fair Work Ombudsman has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the Fair Work Ombudsman leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
690 Outside work of the Fair Work Ombudsman
The Fair Work Ombudsman must not engage in paid work outside the duties of his or her office without the Minister’s approval.
692 Resignation of the Fair Work Ombudsman
(1) The Fair Work Ombudsman may resign his or her appointment by giving the Governor‑General a written resignation.
(2) The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.
693 Termination of appointment of the Fair Work Ombudsman
(1) The Governor‑General may terminate the appointment of the Fair Work Ombudsman:
(a) for misbehaviour; or
(b) if the Fair Work Ombudsman is unable to perform the duties of his or her office because of physical or mental incapacity.
(2) The Governor‑General must terminate the appointment of the Fair Work Ombudsman if:
(a) the Fair Work Ombudsman becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors, or makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the Fair Work Ombudsman is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) the Fair Work Ombudsman engages, except with the Minister’s approval, in paid work outside the duties of his or her office (see section 690); or
(d) the Fair Work Ombudsman fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.
694 Other terms and conditions of the Fair Work Ombudsman
The Fair Work Ombudsman holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor‑General.
695 Appointment of acting Fair Work Ombudsman
(1) The Minister may, by written instrument, appoint a person who is qualified for appointment as the Fair Work Ombudsman to act as the Fair Work Ombudsman:
(a) during a vacancy in the office of Fair Work Ombudsman (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Fair Work Ombudsman is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.
(2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
Division 3—Office of the Fair Work Ombudsman
Subdivision A—Establishment of the Office of the Fair Work Ombudsman
696 Establishment of the Office of the Fair Work Ombudsman
(1) The Office of the Fair Work Ombudsman is established by this section.
(2) The Office of the Fair Work Ombudsman consists of:
(a) the Fair Work Ombudsman; and
(b) the staff of the Office of the Fair Work Ombudsman; and
(c) the inspectors appointed under section 700.
(3) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):
(a) the Office of the Fair Work Ombudsman is a listed entity; and
(b) the Fair Work Ombudsman is the accountable authority of the Office of the Fair Work Ombudsman; and
(c) the following persons are officials of the Office of the Fair Work Ombudsman:
(i) the Fair Work Ombudsman;
(ii) the staff of the Office of the Fair Work Ombudsman;
(iii) the inspectors appointed under section 700;
(iv) persons whose services are made available to the Fair Work Ombudsman under section 698;
(v) consultants engaged under section 699; and
(d) the purposes of the Office of the Fair Work Ombudsman include:
(i) the functions of the Fair Work Ombudsman referred to in section 682; and
(ii) the functions of inspectors under Subdivision D.
Subdivision B—Staff and consultants etc.
697 Staff
(1) The staff of the Office of the Fair Work Ombudsman must be persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the Fair Work Ombudsman and the staff of the Office of the Fair Work Ombudsman together constitute a Statutory Agency; and
(b) the Fair Work Ombudsman is the Head of that Statutory Agency.
698 Persons assisting the Fair Work Ombudsman
The Fair Work Ombudsman may also be assisted:
(a) by employees of Agencies (within the meaning of the Public Service Act 1999); or
(b) by officers and employees of a State or Territory; or
(c) by officers and employees of authorities of the Commonwealth, a State or a Territory;
whose services are made available to the Fair Work Ombudsman in connection with the performance of any of his or her functions.
Note: For example, State or Territory employees could be made available to assist the Fair Work Ombudsman in providing education in a particular region.
699 Consultants
The Fair Work Ombudsman may engage persons having suitable qualifications and experience as consultants to the Office of the Fair Work Ombudsman.
Subdivision C—Appointment of Fair Work Inspectors
700 Appointment of Fair Work Inspectors
(1) The Fair Work Ombudsman may, in writing, appoint as a Fair Work Inspector:
(a) a person who has been appointed, or who is employed, by the Commonwealth; or
(b) a person who is employed by a State or Territory.
(2) The Fair Work Ombudsman may appoint a person as a Fair Work Inspector only if the Fair Work Ombudsman is satisfied that the person is of good character.
(3) A Fair Work Inspector is appointed for the period specified in the instrument of appointment. The period must not exceed 4 years.
Note: A Fair Work Inspector is eligible for reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).
701 Fair Work Ombudsman is a Fair Work Inspector
The Fair Work Ombudsman is a Fair Work Inspector by force of this section.
702 Identity cards
(1) The Fair Work Ombudsman must issue an identity card to an inspector appointed under section 700.
(2) The Minister must issue an identity card to the Fair Work Ombudsman.
Form of identity card
(3) The identity card must:
(a) be in the form approved by the Fair Work Ombudsman; and
(b) contain a recent photograph of the inspector.
Inspector must carry card
(4) An inspector must carry the identity card at all times when performing functions or exercising powers as an inspector.
Offence
(5) A person commits an offence if:
(a) the person ceases to be an inspector; and
(b) the person does not, within 14 days of so ceasing, return the person’s identity card to the Fair Work Ombudsman or the Minister (as the case may be).
Penalty: 1 penalty unit.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Defence—card lost or destroyed
(7) Subsection (5) does not apply if the identity card was lost or destroyed.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
Subdivision D—Functions and powers of Fair Work Inspectors—general
703 Conditions and restrictions on functions and powers
(1) The functions, and powers (compliance powers), conferred on an inspector are subject to such conditions and restrictions as are specified in his or her instrument of appointment.
(2) To avoid doubt, the power to apply for the issue of an FWO notice under section 712AA and the power to give an FWO notice under section 712AD are not compliance powers.
704 General directions by the Fair Work Ombudsman
(1) The Fair Work Ombudsman may, by legislative instrument, give a written direction to inspectors relating to the performance of their functions or the exercise of their powers as inspectors.
(2) The direction must be of a general nature only, and cannot relate to a particular case.
(3) An inspector must comply with the direction.
705 Particular directions by the Fair Work Ombudsman
(1) The Fair Work Ombudsman may give a direction to an inspector relating to the performance of the inspector’s functions or the exercise of the inspector’s powers as an inspector.
(2) The inspector must comply with the direction.
(3) If a direction is in writing, the direction is not a legislative instrument.
706 Purpose for which powers of inspectors may be exercised
(1) An inspector may exercise compliance powers (other than a power under section 715 or 716) for one or more of the following purposes (compliance purposes):
(a) determining whether this Act or a fair work instrument is being, or has been, complied with;
(b) subject to subsection (2), determining whether a safety net contractual entitlement is being, or has been, contravened by a person;
(c) the purposes of a provision of the regulations that confers functions or powers on inspectors;
(d) the purposes of a provision of another Act that confers functions or powers on inspectors.
Note: The powers in sections 715 (which deals with enforceable undertakings) and 716 (which deals with compliance notices) may be exercised for the purpose of remedying the effects of certain contraventions.
(2) An inspector may exercise compliance powers for the purpose referred to in paragraph (1)(b) only if the inspector reasonably believes that the person has contravened one or more of the following:
(a) a provision of the National Employment Standards;
(b) a term of a modern award;
(c) a term of an enterprise agreement;
(d) a term of a workplace determination;
(e) a term of a national minimum wage order;
(f) a term of an equal remuneration order.
707 When powers of inspectors may be exercised
An inspector may exercise compliance powers:
(a) at any time during working hours; or
(b) at any other time, if the inspector reasonably believes that it is necessary to do so for compliance purposes.
707A Hindering or obstructing the Fair Work Ombudsman and inspectors etc.
(1) A person must not intentionally hinder or obstruct:
(a) the Fair Work Ombudsman or an inspector in the performance of his or her functions or the exercise of his or her powers as the Fair Work Ombudsman or an inspector; or
(b) an assistant referred to in section 710 assisting an inspector on premises; or
(c) a member of the staff of the Office of the Fair Work Ombudsman in the performance of his or her functions or the exercise of his or her powers in relation to an FWO notice.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) Subsection (1) does not apply if:
(a) the person has a reasonable excuse; or
(b) if the Fair Work Ombudsman or inspector referred to in paragraph (1)(a) or (b) (as the case requires) was required to show his or her identity card to the person under subsection 708(3) or paragraph 711(3)(b)—the Fair Work Ombudsman or inspector:
(i) failed to do so; or
(ii) failed to tell the person of the effect of this section.
(3) A reference in subsection (1) to the Fair Work Ombudsman includes a reference to a delegate of the Fair Work Ombudsman.
Subdivision DA—Power to enter premises
708 Power of inspectors to enter premises
(1) An inspector may, without force:
(a) enter premises, if the inspector reasonably believes that this Act or a fair work instrument applies to work that is being, or applied to work that has been, performed on the premises; or
(b) enter business premises, if the inspector reasonably believes that there are records or documents relevant to compliance purposes on the premises, or accessible from a computer on the premises.
(2) Despite paragraph (1)(a), an inspector must not enter a part of premises that is used for residential purposes unless the inspector reasonably believes that the work referred to in that paragraph is being performed on that part of the premises.
(3) The inspector must, either before or as soon as practicable after entering premises, show his or her identity card to the occupier, or another person who apparently represents the occupier, if the occupier or other person is present at the premises.
709 Powers of inspectors while on premises
The inspector may exercise one or more of the following powers while on the premises:
(a) inspect any work, process or object;
(b) interview any person;
(c) require a person to tell the inspector who has custody of, or access to, a record or document;
(d) require a person who has the custody of, or access to, a record or document to produce the record or document to the inspector either while the inspector is on the premises, or within a specified period;
(e) inspect, and make copies of, any record or document that:
(i) is kept on the premises; or
(ii) is accessible from a computer that is kept on the premises;
(f) take samples of any goods or substances in accordance with any procedures prescribed by the regulations.
Note: See also sections 713, 713A and 714 (which deal with self‑incrimination and produced documents etc.).
710 Persons assisting inspectors
(1) A person (the assistant) may accompany the inspector onto the premises to assist the inspector if the Fair Work Ombudsman is satisfied that:
(a) the assistance is necessary and reasonable; and
(b) the assistant has suitable qualifications and experience to properly assist the inspector.
&#x
