An Act to amend the law relating to workplace relations, and for related purposes
[Assented to 14 December 2005]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Workplace Relations Amendment (Work Choices) Act 2005.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provision(s) | Commencement | Date/Details |
| 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 14 December 2005 |
| 2. Schedule 1 | A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. | 27 March 2006 (see F2006L00836) |
| 2A. Schedule 1A | The day on which this Act receives the Royal Assent. | 14 December 2005 |
| 3. Schedule 2 | A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. | 27 March 2006 (see F2006L00836) |
| 4. Schedule 3 | The day on which this Act receives the Royal Assent. | 14 December 2005 |
| 4A. Schedule 3A | The day on which this Act receives the Royal Assent. | 14 December 2005 |
| 5. Schedule 4, Part 1 | The day on which this Act receives the Royal Assent. | 14 December 2005 |
| 6. Schedule 4, Part 2 | At the same time as the provision(s) covered by table item 2. | 27 March 2006 |
| 7. Schedule 5 | A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. | 27 March 2006 (see F2006L00836) |
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
3 Schedule(s)
(1) Each Act, and each set of regulations, that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
(2) The amendment of any regulation under subsection (1) does not prevent the regulation, as so amended, from being amended or repealed by the Governor‑General.
Schedule 1—Main amendments
Workplace Relations Act 1996
1 Section 3
Repeal the section, substitute:
3 Principal object
The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by:
(a) encouraging the pursuit of high employment, improved living standards, low inflation and international competitiveness through higher productivity and a flexible and fair labour market; and
(b) establishing and maintaining a simplified national system of workplace relations; and
(c) providing an economically sustainable safety net of minimum wages and conditions for those whose employment is regulated by this Act; and
(d) ensuring that, as far as possible, the primary responsibility for determining matters affecting the employment relationship rests with the employer and employees at the workplace or enterprise level; and
(e) enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances; and
(f) ensuring compliance with minimum standards, industrial instruments and bargaining processes by providing effective means for the investigation and enforcement of:
(i) employee entitlements; and
(ii) the rights and obligations of employers and employees, and their organisations; and
(g) ensuring that awards provide minimum safety net entitlements for award‑reliant employees which are consistent with Australian Fair Pay Commission decisions and which avoid creating disincentives to bargain at the workplace level; and
(h) supporting harmonious and productive workplace relations by providing flexible mechanisms for the voluntary settlement of disputes; and
(i) balancing the right to take industrial action for the purposes of collective bargaining at the workplace level with the need to protect the public interest and appropriately deal with illegitimate and unprotected industrial action; and
(j) ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, or not to join an organisation or association; and
(k) protecting the competitive position of young people in the labour market, promoting youth employment, youth skills and community standards and assisting in reducing youth unemployment; and
(l) assisting employees to balance their work and family responsibilities effectively through the development of mutually beneficial work practices with employers; and
(m) respecting and valuing the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; and
(n) assisting in giving effect to Australia’s international obligations in relation to labour standards.
2 Section 4
Repeal the section, substitute:
4 Definitions
(1) In this Act, unless the contrary intention appears:
A.C.T. Consequential Provisions Act means the A.C.T. Self‑Government (Consequential Provisions) Act 1988.
AFPC has the meaning given by section 7F.
allowable award matters means the matters referred to in subsection 116(1).
Note: The matters referred to in subsection 116(1) have a meaning that is affected by section 116B.
alternative dispute resolution process has the meaning given by section 176A.
Anti‑Discrimination Conventions means:
(a) the Equal Remuneration Convention; and
(b) the Convention on the Elimination of all Forms of Discrimination against Women, a copy of the English text of which is set out in the Schedule to the Sex Discrimination Act 1984; and
(c) the Convention concerning Discrimination in respect of Employment and Occupation, a copy of the English text of which is set out in Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986; and
(d) Articles 3 and 7 of the International Covenant on Economic, Social and Cultural Rights.
APCS has the meaning given by section 90B.
applies to employment generally: a law of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to:
(a) all employers and employees in the State or Territory; or
(b) all employers and employees in the State or Territory except those identified (by reference to a class or otherwise) by a law of the State or Territory.
For this purpose, it does not matter whether or not the law also applies to other persons, or whether or not an exercise of a power under the law affects all the persons to whom the law applies.
arbitration powers means the powers of the Commission in relation to arbitration.
Australian‑based employee means:
(a) an employee whose primary place of work is in Australia, in Australia’s exclusive economic zone or in, on, or over Australia’s continental shelf; or
(b) an employee who is employed by the Commonwealth or a Commonwealth authority, except an employee engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories; or
(c) an employee who is prescribed by the regulations for the purposes of this definition.
Note: Subsection 4AA(1) defines employee.
Australian Capital Territory Government Service means the service established by the Public Sector Management Act 1994 of the Australian Capital Territory.
Australian employer means:
(a) an employer that is a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or
(b) an employer that is a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or
(c) an employer that is the Commonwealth; or
(d) an employer that is a Commonwealth authority; or
(e) an employer that is a body corporate incorporated in a Territory; or
(f) an employer that carries on in Australia, in Australia’s exclusive economic zone or in, on, or over Australia’s continental shelf an activity (whether of a commercial, governmental or other nature) whose central management and control is in Australia; or
(g) an employer that is prescribed by the regulations for the purposes of this definition.
Note: Subsection 4AB(1) defines employer.
Australian Fair Pay and Conditions Standard has the meaning given by subsection 89(3).
Australian workplace agreement or AWA has the meaning given by section 96.
Australia’s continental shelf means the continental shelf (as defined in the Seas and Submerged Lands Act 1973) of Australia.
Australia’s exclusive economic zone means the exclusive economic zone (as defined in the Seas and Submerged Lands Act 1973) of Australia.
AWA: see Australian workplace agreement.
award means:
(a) an award made by the Commission under section 118E; or
(b) a pre‑reform award.
award rationalisation process means a process of award rationalisation conducted as a result of an award rationalisation request.
award rationalisation request has the meaning given by section 118.
award‑related order means an order varying, revoking or suspending an award.
award simplification process means a process of reviewing and simplifying awards under section 118M.
bargaining agent means:
(a) in relation to an AWA—a person who has been duly appointed as a bargaining agent in relation to the AWA in accordance with section 97A; or
(b) in relation to an employee collective agreement—a person who has been requested to be a bargaining agent in relation to the agreement in accordance with section 97B.
BCII Act means the Building and Construction Industry Improvement Act 2005.
breach includes non‑observance.
Chief Justice means the Chief Justice of the Court.
civil remedy provision has the meaning given by section 188.
collective agreement means:
(a) an employee collective agreement; or
(b) a union collective agreement; or
(c) an employer greenfields agreement; or
(d) a union greenfields agreement; or
(e) a multiple‑business agreement.
Commission means the Australian Industrial Relations Commission.
Commissioner means a Commissioner of the Commission.
committee of management, in relation to an organisation, association or branch of an organisation or association, means the group or body of persons (however described) that manages the affairs of the organisation, association or branch.
Commonwealth authority means:
(a) a body corporate established for a public purpose by or under a law of the Commonwealth; or
(b) a body corporate:
(i) incorporated under a law of the Commonwealth or a State or Territory; and
(ii) in which the Commonwealth has a controlling interest.
conciliation powers means the powers of the Commission in relation to conciliation.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
constitutional trade or commerce means trade or commerce:
(a) between Australia and a place outside Australia; or
(b) among the States; or
(c) between a State and a Territory; or
(d) between 2 Territories; or
(e) within a Territory.
contingency fee agreement means an agreement between a legal practitioner and a person under which:
(a) the legal practitioner agrees to provide legal services; and
(b) the payment of all, or a substantial proportion, of the legal practitioner’s costs is contingent on the outcome of the matter in which the practitioner provides the legal services for the person.
Court means the Federal Court of Australia.
Note: For the purposes of various provisions of this Act, Court means the Federal Court of Australia or the Federal Magistrates Court. This is indicated by definitions that apply for the purposes of those provisions.
demarcation dispute includes:
(a) a dispute arising between 2 or more organisations, or within an organisation, as to the rights, status or functions of members of the organisations or organisation in relation to the employment of those members; or
(b) a dispute arising between employers and employees, or between members of different organisations, as to the demarcation of functions of employees or classes of employees; or
(c) a dispute about the representation under this Act, or the Registration and Accountability of Organisations Schedule, of the industrial interests of employees by an organisation of employees.
Deputy President means a Deputy President of the Commission.
employee has a meaning affected by section 4AA.
employee collective agreement has the meaning given by section 96A.
employer has a meaning affected by section 4AB.
employer greenfields agreement has the meaning given by section 96D.
employing authority, in relation to a class of employees, means the person or body, or each of the persons or bodies, prescribed as the employing authority in relation to the class of employees.
employment has a meaning affected by section 4AC.
Employment Advocate means the Employment Advocate referred to in Part IVA.
Equal Remuneration Convention means the Equal Remuneration Convention, 1951.
Family Responsibilities Convention means the Workers with Family Responsibilities Convention, 1981, a copy of the English text of which is set out in Schedule 12.
flight crew officer has the meaning given by clause 1 of Schedule 1.
Full Bench means a Full Bench of the Commission.
Full Court means a Full Court of the Court.
greenfields agreement means a union greenfields agreement or an employer greenfields agreement.
industrial action has the meaning given by section 106A.
Industrial Registrar means the Industrial Registrar appointed under section 67.
Industrial Registry means the Australian Industrial Registry.
industry includes:
(a) any business, trade, manufacture, undertaking or calling of employers; and
(b) any calling, service, employment, handicraft, industrial occupation or vocation of employees; and
(c) a branch of an industry and a group of industries.
inspector means a workplace inspector.
Judge means:
(a) in the case of a reference to the Court or a Judge—a Judge (including the Chief Justice) sitting in Chambers; or
(b) otherwise—a Judge of the Court (including the Chief Justice).
judgment means a judgment, decree or order, whether final or interlocutory, or a sentence.
legal practitioner means a legal practitioner (however described) of the High Court or of a Supreme Court of a State or Territory.
magistrate’s court means:
(a) a court constituted by a police, stipendiary or special magistrate; or
(b) a court constituted by an industrial magistrate who is also a police, stipendiary or special magistrate.
maritime employee has the meaning given by clause 1 of Schedule 1.
model dispute resolution process means the process set out in Division 2 of Part VIIA.
multiple‑business agreement has the meaning given by section 96E.
new APCS has the meaning given by subsection 90ZJ(1).
nominal expiry date of a workplace agreement has the meaning given by section 101.
Northern Territory authority means:
(a) a body corporate established for a public purpose by or under a law of the Northern Territory; or
(b) a body corporate:
(i) incorporated under a law of the Northern Territory; and
(ii) in which the Northern Territory has a controlling interest;
other than a prescribed body.
notional agreement preserving State awards has the meaning given by clause 1 of Schedule 15.
occupier, in relation to premises, includes a person in charge of the premises.
office, in relation to an organisation or a branch of an organisation, has the same meaning as in the Registration and Accountability of Organisations Schedule.
officer, in relation to an organisation or a branch of an organisation, means a person who holds an office in the organisation or branch.
organisation means an organisation registered under the Registration and Accountability of Organisations Schedule.
Note: An organisation that was registered under the Workplace Relations Act 1996 immediately before the commencement of item 1 of Schedule 2 to the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002 (the Consequential Provisions Act) is taken to have been registered under the Registration and Accountability of Organisations Schedule (see item 15 of Schedule 1 to the Consequential Provisions Act).
panel means a panel to which an industry has been assigned under section 37.
peak council means a national or State council or federation that is effectively representative of a significant number of organisations representing employers or employees in a range of industries.
penalty unit has the meaning given by section 4AA of the Crimes Act 1914.
person includes an organisation.
pilot has the meaning given by clause 1 of Schedule 1.
premises includes any land, building, structure, mine, mine working, ship, aircraft, vessel, vehicle or place.
pre‑reform AWA has the meaning given by clause 1 of Schedule 14.
pre‑reform award means an instrument that has effect after the reform commencement under item 4 of Schedule 4 to the Workplace Relations Amendment (Work Choices) Act 2005.
prescribed includes prescribed by Rules of the Commission made under section 48.
preserved APCS has the meaning given by subsection 90ZD(1).
preserved award entitlement, in relation to an employee, has the meaning given by section 117B.
preserved award term has the meaning given by section 117.
preserved State agreement has the meaning given by clause 1 of Schedule 15.
President means the President of the Commission.
Presidential Member means the President, a Vice President, a Senior Deputy President or a Deputy President.
previous Act means the Conciliation and Arbitration Act 1904, and includes any other Act so far as the other Act affects the operation of that Act.
proceeding includes a proceeding relating to the following:
(a) an award rationalisation process;
(b) an award simplification process.
protected action has the meaning given by section 108.
protected action ballot means a ballot under Division 4 of Part VC.
public sector employment means employment of, or service by, a person in any capacity (whether permanently or temporarily and whether full‑time or part‑time):
(a) under the Public Service Act 1999 or the Parliamentary Service Act 1999; or
(b) by or in the service of a Commonwealth authority; or
(c) under a law of the Australian Capital Territory relating to employment by that Territory, including a law relating to the Australian Capital Territory Government Service; or
(d) by or in the service of:
(i) an enactment authority as defined by section 3 of the A.C.T. Consequential Provisions Act; or
(ii) a body corporate incorporated under a law of the Australian Capital Territory and in which the Australian Capital Territory has a controlling interest;
other than a prescribed authority or body; or
(e) under a law of the Northern Territory relating to the Public Service of the Northern Territory; or
(f) by or in the service of a Northern Territory authority; or
(g) by or in the service of a prescribed person or under a prescribed law;
but, other than in section 44N, does not include:
(h) employment of, or service by, a person included in a prescribed class of persons; or
(i) employment or service under a prescribed law.
reform commencement means the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005.
Registrar means the Industrial Registrar or a Deputy Industrial Registrar.
Registration and Accountability of Organisations Schedule means Schedule 1B.
registry means the Principal Registry or another registry established under section 64.
regular part‑time employee means an employee who:
(a) works less than full‑time ordinary hours; and
(b) has reasonably predictable hours of work; and
(c) receives, on a pro‑rata basis, equivalent pay and conditions to those specified in an award or awards for full‑time employees who do the same kind of work.
secondary office, in relation to a person who holds an office of member of the Commission and an office of member of a prescribed State industrial authority, means the office to which the person was most recently appointed.
Senior Deputy President means a Senior Deputy President of the Commission.
ship has the meaning given by clause 1 of Schedule 1.
single business has the meaning given by section 95A.
special magistrate means a magistrate appointed as a special magistrate under a law of a State or Territory.
State award means an award, order, decision or determination of a State industrial authority.
State employment agreement means an agreement:
(a) between an employer and one or more of the following:
(i) an employee of the employer;
(ii) a trade union; and
(b) that regulates wages and conditions of employment of one or more of the employees; and
(c) that is in force under a State or Territory industrial law; and
(d) that prevails over an inconsistent State award.
State industrial authority means:
(a) a board or court of conciliation or arbitration, or tribunal, body or persons, having authority under a State Act to exercise any power of conciliation or arbitration in relation to industrial disputes within the limits of the State; or
(b) a special board constituted under a State Act relating to factories; or
(c) any other State board, court, tribunal, body or official prescribed for the purposes of this definition.
State or Territory industrial law means:
(a) any of the following State Acts:
(i) the Industrial Relations Act 1996 of New South Wales;
(ii) the Industrial Relations Act 1999 of Queensland;
(iii) the Industrial Relations Act 1979 of Western Australia;
(iv) the Fair Work Act 1994 of South Australia;
(v) the Industrial Relations Act 1984 of Tasmania; or
(b) an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes:
(i) regulating workplace relations (including industrial matters, industrial disputes and industrial action, within the ordinary meaning of those expressions);
(ii) providing for the determination of terms and conditions of employment;
(iii) providing for the making and enforcement of agreements determining terms and conditions of employment;
(iv) providing for rights and remedies connected with the termination of employment;
(v) prohibiting conduct that relates to the fact that a person either is, or is not, a member of an industrial association (as defined in section 240); or
(c) an instrument made under an Act described in paragraph (a) or (b), so far as the instrument is of a legislative character; or
(d) a law that:
(i) is a law of a State or Territory; and
(ii) is prescribed by regulations for the purposes of this paragraph.
State or Territory training authority means a body authorised by a law or award of a State or Territory for the purpose of overseeing arrangements for the training of employees.
stevedoring operations has the meaning given by clause 1 of Schedule 1.
Termination of Employment Convention means the Termination of Employment Convention, 1982, a copy of the English text of which is set out in Schedule 10.
this Act includes the regulations but does not include Schedule 1B or regulations made under that Schedule.
trade union means:
(a) an organisation of employees; or
(b) an association of employees that is registered or recognised as a trade union (however described) under the law of a State or Territory; or
(c) an association of employees a principal purpose of which is the protection and promotion of the employees’ interests in matters concerning their employment.
training arrangement means a combination of work and training that is subject to a training agreement or a training contract between the employee and employer that is registered:
(a) with the relevant State or Territory training authority; or
(b) under a law of a State or Territory relating to the training of employees.
union collective agreement has the meaning given by section 96B.
union greenfields agreement has the meaning given by section 96C.
Vice President means a Vice President of the Commission.
vocational placement means a placement that is:
(a) undertaken with an employer for which a person is not entitled to be paid any remuneration; and
(b) undertaken as a requirement of an education or training course; and
(c) authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory.
waterside worker has the meaning given by clause 1 of Schedule 1.
wharf has the meaning given by clause 1 of Schedule 1.
working day means a day that is not a Saturday, a Sunday or a public holiday.
workplace agreement means:
(a) an AWA; or
(b) a collective agreement.
Note: Section 95D affects the meaning of workplace agreement.
workplace determination means a determination under Division 8 of Part VC.
workplace inspector means a person appointed as a workplace inspector under section 84.
(2) To avoid doubt, it is declared that a reference in this Act (except in Parts VI and XA, and in regulations made for the purposes of section 101D) to an independent contractor is confined to a natural person.
(3) In this Act, a reference to:
(a) a person who is eligible to become a member of an organisation; or
(b) a person who is eligible for membership of an organisation;
includes a reference to a person who is eligible merely because of an agreement made under rules of the organisation made under subsection 151(1) of the Registration and Accountability of Organisations Schedule.
(4) In this Act, a reference to a person making a statement that is to the person’s knowledge false or misleading in a material particular includes a reference to a person making a statement where the person is reckless as to whether the statement is false or misleading in a material particular.
(5) In this Act, a reference to engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct.
(6) A reference in this Act to a term of an award includes a reference to a provision of an award.
Note: Section 69B of the Australian Federal Police Act 1979 provides that this Act does not apply to certain matters relating to AFP employees.
3 After section 4
Insert:
4AA Employee
Basic definition
(1) In this Act, unless the contrary intention appears:
employee means an individual so far as he or she is employed, or usually employed, as described in the definition of employer in subsection 4AB(1), by an employer, except on a vocational placement.
Note: See also Part XV (employees and employers in Victoria).
References to employee with ordinary meaning
(2) However, a reference to employee has its ordinary meaning (subject to subsections (3) and (4)) if the reference is listed in clause 2 of Schedule 1. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1).
Note: The regulations may amend clause 2 of Schedule 1. See clause 5 of Schedule 1.
(3) In this Act, unless the contrary intention appears, a reference to employee with its ordinary meaning includes a reference to an individual who is usually an employee with that meaning.
(4) In this Act, unless the contrary intention appears, a reference to employee with its ordinary meaning does not include a reference to an individual on a vocational placement.
4AB Employer
Basic definition
(1) In this Act, unless the contrary intention appears:
employer means:
(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or
(b) the Commonwealth, so far as it employs, or usually employs, an individual; or
(c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or
(d) a person or entity (which may be an unincorporated club) so far as the person or entity, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:
(i) a flight crew officer; or
(ii) a maritime employee; or
(iii) a waterside worker; or
(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or
(f) a person or entity (which may be an unincorporated club) that carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person or entity employs, or usually employs, an individual in connection with the activity carried on in the Territory.
Note 1: In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands. See paragraph 17(a) of the Acts Interpretation Act 1901.
Note 2: See also Part XV (employees and employers in Victoria).
References to employer with ordinary meaning
(2) However, a reference to employer has its ordinary meaning (subject to subsection (3)) if the reference is listed in clause 3 of Schedule 1. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1).
Note: The regulations may amend clause 3 of Schedule 1. See clause 5 of Schedule 1.
(3) In this Act, unless the contrary intention appears, a reference to employer with its ordinary meaning includes a reference to a person or entity that is usually an employer with that meaning.
4AC Employment
(1) In this Act, unless the contrary intention appears:
employment means the employment of an employee by an employer.
Note: Subsections 4AA(1) and 4AB(1) define employee and employer.
References to employment with ordinary meaning
(2) However, a reference to employment has its ordinary meaning if the reference is listed in clause 4 of Schedule 1. This does not limit the circumstances in which a contrary intention may appear for the purposes of subsection (1).
Note: The regulations may amend clause 4 of Schedule 1. See clause 5 of Schedule 1.
4 Section 4A
Repeal the section, substitute:
4A Schedules 1B, 13, 14, 15 and 16 have effect
Schedules 1B, 13, 14, 15 and 16 have effect.
Note 1: Schedule 1B is about registration and accountability of organisations.
Note 2: Schedule 13 is about transitional arrangements for parties bound by federal awards.
Note 3: Schedule 14 is about transitional arrangements for existing pre‑reform certified agreements.
Note 4: Schedule 15 is about transitional treatment of State employment agreements and State awards.
Note 5: Schedule 16 is about transitional instruments and transmission of business.
5 Sections 5 and 5AA
Repeal the sections.
6 Section 7
Repeal the section, substitute:
7 Modifications for Christmas Island and Cocos (Keeling) Islands
(1) If the regulations prescribe modifications of this Act for its application in relation to the Territory of Christmas Island, this Act has effect as modified in relation to the Territory.
(2) If the regulations prescribe modifications of this Act for its application in relation to the Territory of Cocos (Keeling) Islands, this Act has effect as modified in relation to the Territory.
(3) In this section:
modifications includes additions, omissions and substitutions.
7AAA Exclusion of persons insufficiently connected with Australia
(1) A provision of this Act prescribed by the regulations does not apply to a person or entity in Australia prescribed by the regulations as a person to whom, or an entity to which, the provision does not apply.
Note 1: In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea. See section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.
Note 2: The regulations may prescribe the person or entity by reference to a class. See subsection 13(3) of the Legislative Instruments Act 2003.
(2) Before the Governor‑General makes regulations for the purposes of subsection (1) prescribing either or both of the following:
(a) a provision of this Act that is not to apply to a person or entity;
(b) a person to whom, or an entity to which, a provision of this Act is not to apply;
the Minister must be satisfied that the provision should not apply to the person or entity in Australia because there is not a sufficient connection between the person or entity and Australia.
(3) In this section:
this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.
7AA Extraterritorial application
(1) Each Part or Division listed in the table, and the rest of this Act so far as it relates to the Part or Division, extends to persons, acts, omissions, matters and things outside Australia as described in the relevant section listed in the table.
| Extraterritorial application |
| Item | This Part or Division: | Which is about this topic: | Extends to persons, acts, omissions, matters and things outside Australia as described in this section: | |
| 1 | Part VA | The Australian Fair Pay and Conditions Standard | Section 89D | |
| 2 | Part VB | Workplace agreements | Section 95E | |
| 3 | Part VI | Awards | Section 115C | |
| 4 | Division 1 of Part VIA | Meal breaks | Section 170AD | |
| 4A | Division 1A of Part VIA | Public holidays | Section 170AM | |
| 5 | Division 2 of Part VIA | Equal remuneration for work of equal value | Section 170BGD | |
| 6 | Division 3 of Part VIA | Termination of employment | Section 170CCB | |
| 7 | Part IX | Right of entry | Section 200 | |
| 8 | Part XA | Freedom of association | Section 249 | |
Note 1: In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea. See section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.
Note 2: Provisions of section 86 giving inspectors power to enter certain premises and places and do certain things there also extend to some premises and places outside Australia, subject to Australia’s international obligations relating to foreign‑flagged ships and foreign‑registered aircraft.
Note 3: Part VC (Industrial action) and related provisions of this Act may extend in relation to Australia’s exclusive economic zone, and in relation to Australia’s continental shelf, as prescribed by the regulations. See section 106C.
Modified application in Australia’s exclusive economic zone
(2) If the regulations prescribe modifications of this Act for its operation in relation to all or part of Australia’s exclusive economic zone, then, so far as this Act extends to the zone or part apart from this subsection, it has effect as modified in relation to the zone or part.
(3) For the purposes of subsection (2), the regulations may prescribe different modifications in relation to different parts of Australia’s exclusive economic zone.
Modified application in relation to Australia’s continental shelf
(4) If the regulations prescribe modifications of this Act for its operation in relation to all or part of Australia’s continental shelf, then, so far as this Act extends in relation to the continental shelf or part apart from this subsection, it has effect as modified in relation to the continental shelf or part.
(5) For the purposes of subsection (4), the regulations may prescribe different modifications in relation to different parts of Australia’s continental shelf.
Definitions
(6) In this section:
modifications includes additions, omissions and substitutions.
this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.
7 Section 7B
Before “Chapter”, insert “(1)”.
8 At the end of section 7B
Add:
(2) However, so far as Part 2.7 of the Criminal Code is relevant to this Act, it has effect subject to the following sections of this Act:
(a) section 7AA;
(b) the sections mentioned in section 7AA;
(c) section 86;
(d) section 106C.
Note: Part 2.7 of the Criminal Code is about geographical jurisdiction in connection with offences. Section 7AA, the sections mentioned there and sections 86 and 106C deal with extraterritorial operation of this Act.
9 At the end of Part I
Add:
7C Act excludes some State and Territory laws
(1) This Act is intended to apply to the exclusion of all the following laws of a State or Territory so far as they would otherwise apply in relation to an employee or employer:
(a) a State or Territory industrial law;
(b) a law that applies to employment generally and deals with leave other than long service leave;
(c) a law providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal value (as defined in section 170BB);
(d) a law providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair;
(e) a law that entitles a representative of a trade union to enter premises.
Note: Subsection 4(1) defines applies to employment generally.
State and Territory laws that are not excluded
(2) However, subsection (1) does not apply to a law of a State or Territory so far as:
(a) the law deals with the prevention of discrimination, the promotion of EEO or both, and is neither a State or Territory industrial law nor contained in such a law; or
(b) the law is prescribed by the regulations as a law to which subsection (1) does not apply; or
(c) the law deals with any of the matters (the non‑excluded matters) described in subsection (3).
(3) The non‑excluded matters are as follows:
(a) superannuation;
(b) workers compensation;
(c) occupational health and safety (including entry of a representative of a trade union to premises for a purpose connected with occupational health and safety);
(ca) matters relating to outworkers (including entry of a representative of a trade union to premises for a purpose connected with outworkers);
(d) child labour;
(e) long service leave;
(f) the observance of a public holiday, except the rate of payment of an employee for the public holiday;
(g) the method of payment of wages or salaries;
(h) the frequency of payment of wages or salaries;
(i) deductions from wages or salaries;
(k) industrial action (within the ordinary meaning of the expression) affecting essential services;
(l) attendance for service on a jury;
(m) regulation of any of the following:
(i) associations of employees;
(ii) associations of employers;
(iii) members of associations of employees or of associations of employers.
Note: Part IX (Right of entry) sets prerequisites for a trade union representative to enter certain premises under a right given by a prescribed law of a State or Territory. The prerequisites apply even though the law deals with such entry for a purpose connected with occupational health and safety and paragraph (2)(c) says this Act is not to apply to the exclusion of a law dealing with that.
This Act excludes prescribed State and Territory laws
(4) This Act is intended to apply to the exclusion of a law of a State or Territory that is prescribed by the regulations for the purposes of this subsection.
(4A) To avoid doubt, subsection (4) has effect even if the law is covered by subsection (2) (so that subsection (1) does not apply to the law). This subsection does not limit subsection (4).
Definition
(5) In this section:
this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.
7D Awards, agreements and Commission orders prevail over State and Territory law etc.
(1) An award or workplace agreement prevails over a law of a State or Territory, a State award or a State employment agreement, to the extent of any inconsistency.
(2) However, a term of an award or workplace agreement dealing with any of the following matters has effect subject to a law of a State or Territory dealing with the matter, except a law that is prescribed by the regulations as a law to which awards and workplace agreements are not subject:
(a) occupational health and safety;
(b) workers compensation;
(c) training arrangements;
(d) a matter prescribed by the regulations for the purposes of this paragraph.
(3) An order of the Commission under Part VIA prevails over a law of a State or Territory, a State award or a State employment agreement, to the extent of any inconsistency.
Note: Part VIA is about minimum entitlements of employees.
7E Act may exclude State and Territory laws in other cases
(1) Sections 7C and 7D are not a complete statement of the circumstances in which this Act and instruments made under it are intended to apply to the exclusion of, or prevail over, laws of the States and Territories or instruments made under those laws.
Note: Other provisions of this Act deal with its relationship with laws of the States and Territories. For example, see clause 87 of Schedule 13, which is about not excluding or limiting Victorian law that can operate concurrently with certain provisions of that Schedule.
(2) In this section:
this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.
11 Section 33
Repeal the section, substitute:
33 Exercise of Commission powers
(1) The Commission may perform a function or exercise a power on its own initiative.
(2) Despite subsection (1), the Commission must not perform a function or exercise a power under a provision of this Act on its own initiative if:
(a) the function is to be performed, or the power exercised, on application by a specified person or class of persons; and
(b) the function is not also expressed to be able to be performed, or the power exercised, on the Commission’s own initiative.
12 Subsection 36(3)
Repeal the subsection.
13 Section 39
Repeal the section.
14 At the end of Division 2 of Part II
Add:
41A Co‑operation with the States by President
The President may invite the heads of State industrial authorities to meet with the President to exchange information and discuss matters of mutual interest in relation to workplace relations.
41B Co‑operation with the States by Registrar
The Industrial Registrar may invite the principal registrars of State industrial authorities to meet with the Industrial Registrar to exchange information and discuss matters of mutual interest in relation to workplace relations.
15 Subsection 42(3)
Repeal the subsection, substitute:
(3) A party (including an employing authority) may be represented by counsel, solicitor or agent if:
(a) all parties have given express consent to that representation; and
(b) the Commission grants leave for the party to be so represented.
(3A) A party (including an employing authority) may be represented by counsel, solicitor or agent if:
(a) the party applies to the Commission to be so represented; and
(b) the Commission grants leave for the party to be so represented.
(3B) In deciding whether or not to grant leave under subsection (3), the Commission must have regard to the following matters:
(a) whether being represented by counsel, solicitor or agent would assist the party concerned to bring the best case possible;
(b) the capacity of the particular counsel, solicitor or agent to represent the party concerned;
(c) the capacity of the particular counsel, solicitor or agent to assist the Commission in performing the Commission’s functions under this Act.
(3C) In deciding whether or not to grant leave under subsection (3A), the Commission must have regard to the following matters:
(a) the matters referred to in paragraphs (3B)(a), (b) and (c);
(b) the complexity of the factual and legal issues relating to the proceeding;
(c) whether there are special circumstances that make it desirable that the party concerned be represented by counsel, solicitor or agent;
(d) if the party applies to be represented by an agent—whether the agent is a person or body, or an officer or employee of a person or body, that is able to represent the interests of the party under a State or Territory industrial relations law.
(3D) An appeal to a Full Bench under section 45 may not be made in relation to a decision under subsection (3) or (3A) to grant leave or not to grant leave.
16 At the end of paragraphs 42(7)(a) and (b)
Add “or”.
17 At the end of subsection 42(7)
Add:
; or (e) a bargaining agent.
18 Subsection 43(1)
Omit “(1)”.
19 Subsection 43(2)
Repeal the subsection.
20 After Division 3 of Part II
Insert:
Division 3A—General matters relating to the powers and procedures of the Commission
Subdivision A—General matters Commission to take into account
44A Commission to take into account the public interest
(1) In the performance of its functions, the Commission must take into account the public interest, and for that purpose must have regard to:
(a) the objects of this Act; and
(b) the state of the national economy and the likely effects on the national economy of any order that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation.
(2) To the extent that the Commission is performing its functions in relation to matters arising under the Registration and Accountability of Organisations Schedule, the Commission must take into account the public interest, and for that purpose must have regard to:
(a) Parliament’s intention in enacting that Schedule; and
(b) the state of the national economy and the likely effects on the national economy of any order that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation.
(3) This section does not apply to the performance of a function under Part VC or Part VI.
44B Commission to take into account discrimination issues
In the performance of its functions, the Commission must take into account the following:
(a) the need to apply the principle of equal pay for work of equal value;
(b) the need to prevent and eliminate discrimination because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
44C Commission to take account of Racial Discrimination Act, Sex Discrimination Act, Disability Discrimination Act and Age Discrimination Act
In the performance of its functions, the Commission must take account of the principles embodied in the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004 relating to discrimination in relation to employment.
44D Commission to take account of Family Responsibilities Convention
(1) In performing its functions, the Commission must take account of the principles embodied in the Family Responsibilities Convention, in particular those relating to:
(a) preventing discrimination against workers who have family responsibilities; and
(b) helping workers to reconcile their employment and family responsibilities.
(2) This section does not apply to the performance of a function under Part VC.
44E Safety, health and welfare of employees
(1) In performing its functions, the Commission must take into account the provisions of any law of a State or Territory relating to the safety, health and welfare of employees in relation to their employment.
(2) This section does not apply to the performance of a function under Division 2 of Part VIA.
44F Commission to act quickly
The Commission must perform its functions as quickly as practicable.
44G Commission to avoid technicalities and facilitate fair conduct of proceedings
The Commission must perform its functions in a way that avoids unnecessary technicalities and facilitates the fair and practical conduct of any proceedings under this Act or the Registration and Accountability of Organisations Schedule.
Subdivision B—Particular powers and procedures of the Commission
44H Procedure of Commission
(1) In a proceeding under this Act or the Registration and Accountability of Organisations Schedule:
(a) the procedure of the Commission is, subject to this Act, the Registration and Accountability of Organisations Schedule and the Rules of the Commission, within the discretion of the Commission; and
(b) the Commission is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just; and
(c) the Commission must act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms.
(2) The Commission may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to the proceeding and require that the cases be presented within the respective periods.
(3) The Commission may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument.
44I Particular powers of Commission
(1) The Commission may do any of the following in relation to a proceeding under this Act or the Registration and Accountability of Organisations Schedule:
(a) inform itself in any manner that it thinks appropriate;
(b) take evidence on oath or affirmation;
(c) give directions orally or in writing in the course of, or for the purposes of, procedural matters relating to the proceeding;
(d) vary or revoke an order, direction or decision of the Commission;
(e) dismiss a matter or part of a matter on the ground:
(i) that the matter, or the part of the matter, is trivial; or
(ii) that further proceedings in relation to the matter are not necessary or desirable in the public interest;
(f) determine the proceeding in the absence of a person who has been summoned or served with a notice to appear;
(g) sit at any place;
(h) conduct the proceeding, or any part of the proceeding, in private;
(i) adjourn the proceeding to any time and place;
(j) refer any matter to an expert and accept the expert’s report as evidence;
(k) direct a member of the Commission to consider a particular matter that is before the Full Bench and prepare a report for the Full Bench on that matter;
(l) allow the amendment, on any terms that it thinks appropriate, of any application or other document relating to the proceeding;
(m) correct, amend or waive any error, defect or irregularity whether in substance or form;
(n) summon before it any persons whose presence the Commission considers would assist in relation to the proceeding;
(o) compel the production before it of documents and other things for the purpose of reference to such entries or matters as relate to the proceeding;
(p) make interim decisions;
(q) make a final decision in respect of the matter to which the proceeding relates.
(2) The Commission may, in writing, authorise a person (including a member of the Commission) to take evidence on its behalf, with any limitations as the Commission directs, in relation to the proceeding, and the person has all the powers of the Commission to secure:
(a) the attendance of witnesses; and
(b) the production of documents and things; and
(c) the taking of evidence on oath or affirmation.
(3) The following provisions do not apply to the performance of a function under Part VC:
(a) paragraph (1)(e);
(b) paragraph (1)(j);
(c) paragraph (1)(k).
(4) The following provisions do not apply to the performance of a function under Division 2, 3 or 4 of Part VIA:
(a) paragraph (1)(a);
(b) paragraph (1)(e);
(c) paragraph (1)(k);
(d) paragraph (1)(p);
(e) paragraph (1)(q);
(f) subsection (2).
(5) Paragraph (1)(j) does not apply to the performance of a function under Division 3 of Part VIA.
(6) If a provision of this Act specifies a time or a period in respect of any matter or thing, the Commission must not extend the time or the period specified unless this Act expressly permits the Commission to do so.
(7) If a provision of the Registration and Accountability of Organisations Schedule specifies a time or a period in respect of any matter or thing, the Commission must not extend the time or the period specified unless the Registration and Accountability of Organisations Schedule expressly permits the Commission to do so.
(8) For the purposes of paragraph (1)(d), order does not include an award or an award‑related order.
44J Reference of proceedings to Full Bench
(1) If a proceeding is before a member of the Commission, a party to the proceeding or the Minister may apply to the member to have the proceeding dealt with by a Full Bench because the subject matter of the proceeding is of such importance that, in the public interest, the proceeding should be dealt with by a Full Bench.
(2) If an application is made under subsection (1) to a member of the Commission other than the President:
(a) the member must refer the application to the President to be dealt with; and
(b) the President must confer with the member about whether the application should be granted.
(3) If the President is of the opinion that the subject matter of the proceeding is of such importance that, in the public interest, the proceeding should be dealt with by a Full Bench, the President must grant the application.
(4) If the President grants an application under subsection (1), the Full Bench must (subject to subsection (5)) hear and determine the proceeding to which the application relates.
(5) If the President grants an application under subsection (1), the Full Bench may do either or both of the following:
(a) have regard to any evidence given, and any arguments adduced, in the proceeding before the Full Bench began to deal with it;
(b) refer a part of the proceeding to a member of the Commission to hear and determine.
(6) The President may, before a Full Bench has been established for the purpose of dealing with a proceeding under this section, authorise a member of the Commission to take evidence for the purposes of the proceeding, and the Full Bench must have regard to the evidence.
(7) The President or a Full Bench may, in relation to the exercise of powers under this section, direct a member of the Commission to provide a report in relation to a specified matter.
(8) The member must, after making such investigation (if any) as is necessary, provide a report to the President or the Full Bench, as required.
(9) In this section:
proceeding includes a part of a proceeding.
44K President may deal with certain proceedings
(1) The President may, whether or not another member of the Commission has begun to deal with a particular proceeding, decide to deal with the proceeding.
(2) If the President decides to deal with the proceeding, the President must:
(a) hear and determine the proceeding; or
(b) refer the proceeding to a Full Bench.
(3) If the President refers an application to a Full Bench, the Full Bench must (subject to subsection (4)) hear and determine the proceeding.
(4) If the President refers the proceeding to a Full Bench, the Full Bench may refer a part of the proceeding to a member of the Commission to hear and determine.
(5) The President or the Full Bench may, in dealing with the proceeding, have regard to any evidence given, and any arguments adduced, in the proceeding before the President or the Full Bench, as the case may be, began to deal with it.
(6) The President or a Full Bench may, in relation to the exercise of powers under this section, direct a member of the Commission to provide a report in relation to a specified matter.
(7) The member must, after making such investigation (if any) as is necessary, provide a report to the President or a Full Bench, as the case may be.
(8) In this section:
proceeding includes a part of a proceeding.
44L Review on application by Minister
(1) The Minister may apply to the President for a review by a Full Bench of an award or order, or a decision relating to the making of an award or order, made by a member of the Commission (whether under this Act, the Registration and Accountability of Organisations Schedule or otherwise) if it appears to the Minister that the award, order or decision is contrary to the public interest.
(2) If an application is made to the President under subsection (1), the President must establish a Full Bench to hear and determine the application.
(3) The Full Bench must, if in its opinion the matter is of such importance that, in the public interest, the award, order or decision should be reviewed, make such review of the award, order or decision as appears to it to be desirable having regard to the matters referred to in the application.
(4) Subject to subsection (5) of this section, subsections 45(4) to (8) apply in relation to a review under this section in the same manner as they apply in relation to an appeal under section 45.
(5) Subsections 45A(4) to (8) apply in relation to a review under this section in relation to a matter arising under the Registration and Accountability of Organisations Schedule in the same manner as they apply in relation to an appeal under section 45A.
(6) In a review under this section:
(a) the Commission must take such steps as it thinks appropriate to ensure that each person and organisation bound by the award or otherwise with an interest in the review is made aware of the review; and
(b) the Minister may intervene in the proceeding.
(7) Each provision of this Act relating to the performance of the Commission’s functions in relation to awards extends to a review under this section.
(8) Nothing in this section affects any right of appeal or any power of a Full Bench under section 45, and an appeal under that section and a review under this section may, if the Full Bench thinks appropriate, be dealt with together.
(9) Nothing in this section affects any right of appeal or any power of a Full Bench under section 45A, and an appeal under that section and a review under this section may, if the Full Bench thinks appropriate, be dealt with together.
44M Compulsory conferences
(1) For the purpose of the performance of a function, or the exercise of a power, of the Commission under this Act or the Registration and Accountability of Organisations Schedule, a member of the Commission may, on the initiative of the member or on application made by a party to, or intervener in, the proceeding, direct a person to attend, at a specified time and place, a conference to be presided over by a member of the Commission or another person nominated by the President.
Note: Contravening a direction may be an offence under section 300.
(2) A direction may be given to anyone whose presence at the conference the member considers would help in the performance of a function under this Act or the Registration and Accountability of Organisations Schedule.
(3) The conference must be held in private except to the extent that the person presiding over the conference directs that it be held in public.
(4) This section does not apply to the performance of a function under Part VC.
44N Power to override certain laws affecting public sector employment
(1) In so far as the performance of its functions under this Act or the Registration and Accountability of Organisations Schedule involves public sector employment, the Commission may, where it considers it proper to do so, make an award or order that is not, or in its opinion may not be, consistent with a relevant law of the Commonwealth or of an internal Territory.
(2) In this section:
enactment means an ordinance made under the Northern Territory (Administration) Act 1910 and continued in force by the Northern Territory (Self‑Government) Act 1978.
relevant law means a law of the Commonwealth or an internal Territory relating to matters pertaining to the relationship between employers and employees in public sector employment, other than:
(a) the Safety, Rehabilitation and Compensation Act 1988, the Long Service Leave (Commonwealth Employees) Act 1976, the Superannuation Act 1976 or the Superannuation Act 1990; or
(b) a prescribed Act or enactment, or prescribed provisions of an Act or enactment.
(3) This section does not apply to the performance of a function under Part VIA.
44O State authorities may be restrained from dealing with matter that is before the Commission
(1) If it appears to a Full Bench that a State industrial authority is dealing or is about to deal with a matter that is the subject of a proceeding before the Commission under this Act or the Registration and Accountability of Organisations Schedule, the Full Bench may make an order restraining the State industrial authority from dealing with the matter.
(2) The State industrial authority must, in accordance with the order, cease dealing or not deal, as the case may be, with the matter.
(3) An order, award, decision or determination of a State industrial authority made in contravention of the order of a Full Bench under this section is, to the extent of the contravention, void.
44P Joint sessions of Commission
If:
(a) the President considers that a question is common to 2 or more proceedings before the Commission; and
(b) the Commission is not constituted by the same person or persons for the purposes of each proceeding;
the President may direct that the Commission constituted by all the persons who constitute the Commission for the purposes of the proceedings may take evidence or hear argument, or take evidence and hear argument, as to the question for the purposes of both or all of the proceedings.
44Q Revocation and suspension of awards and orders
(1) An organisation, a person interested or the Minister may apply to the President, and a member of the Commission or a Registrar may refer a matter to the President, for action by a Full Bench under this section.
(2) If an application is made to the President under subsection (1), the President must establish a Full Bench to hear and determine the application.
(3) If a matter is referred to the President under subsection (1), the President may establish a Full Bench to hear and determine the matter.
(4) If it appears to the Full Bench:
(a) that an organisation has contravened this Act, the Registration and Accountability of Organisations Schedule or an award or order of the Commission; or
(b) that a substantial number of the members of an organisation refuse to accept employment either at all or in accordance with existing awards or orders; or
(c) that for any other reason an award or order should be suspended or revoked in whole or part;
the Full Bench may, subject to such conditions as it thinks appropriate, make an order revoking, or suspending for such period as it thinks appropriate, the award or order or any of the terms of the award or an order.
(5) The Full Bench may also make such other orders as it thinks appropriate in relation to the operation of:
(a) if the Full Bench revokes or suspends an award or order on a ground referred to in paragraph (4)(a) or (b)—any other award or order that binds the organisation; or
(b) in any other case—any other award or order that applies in relation to the employment of:
(i) members of an organisation that is bound by the revoked or suspended award or order; or
(ii) persons eligible to be members of such an organisation.
(6) The revocation or suspension of all or any of the terms of an award or order may be expressed to apply only in relation to:
(a) a particular organisation or person bound by the award or order; or
(b) a particular branch of an organisation; or
(c) a particular class of members of an organisation; or
(d) a particular locality.
21 Paragraph 45(1)(a)
Repeal the paragraph.
22 Paragraph 45(1)(b)
Omit all the words from and including “Commission, ”, substitute “Commission; and”.
23 Paragraph 45(1)(d)
Omit “111(1)(g)”, substitute “44I(1)(e)”.
24 Paragraph 45(1)(da)
Repeal the paragraph.
25 Paragraphs 45(1)(e) and (eaa)
Repeal the paragraphs.
26 Paragraph 45(1)(eba)
Omit “or certified agreement under section 298Z”, substitute “under section 273”.
27 Paragraphs 45(1)(ea) and (eb)
Repeal the paragraphs.
28 Paragraph 45(1)(ed)
Omit “certified agreement”, substitute “workplace agreement”.
29 Paragraphs 45(3)(ab) and (ac)
Repeal the paragraphs, substitute:
(ab) in the case of an appeal under paragraph (1)(b) against an order that was made under subsection 125E(1) or subclause 14(1) or 23(1) of Schedule 16—by the person who applied for the order or any person who made submissions to the Commission on whether the order should be made; and
(ac) in the case of an appeal under paragraph (1)(c) against a decision not to make an order under subsection 125E(1) or subclause 14(1) or 23(1) of Schedule 16—by the person who applied for the order;
30 Paragraphs 45(3)(ad), (b) and (ba)
Repeal the paragraphs.
31 Subparagraphs 45(3)(baa)(i) and (ii)
Repeal the subparagraphs, substitute:
(i) an employer, employee or organisation bound by the award; or
32 Paragraph 45(3)(bab)
Repeal the paragraph.
33 Paragraph 45(3)(bb)
Omit “under section 111A”, substitute “or workplace agreement”.
34 Subsection 45(3) (note)
Repeal the note.
35 Subsection 45(3A)
Repeal the subsection.
36 Subsection 45(3B)
Repeal the subsection.
37 Paragraph 45(7)(d)
Omit “111(1)(g)”, substitute “44I(1)(e)”.
38 Subsection 45(9)
Repeal the subsection.
39 Paragraph 45A(1)(b)
Omit all the words after “Commission”, substitute “in proceedings under that Schedule, other than an order made by consent of the parties to the proceeding; and”.
40 Paragraph 45A(1)(d)
Omit “111(1)(g)”, substitute “44I(1)(e)”.
41 Paragraph 45A(7)(d)
Omit “111(1)(g)”, substitute “44I(1)(e)”.
42 Subsections 48(1A) and (1B)
Repeal the subsections.
43 Sections 83BB and 83BC
Repeal the sections, substitute:
83BB Functions of the Employment Advocate
(1) The functions of the Employment Advocate are:
(a) to promote the making of workplace agreements; and
(b) to provide assistance and advice to employees and employers (especially employers in small business) and organisations in relation to workplace agreements; and
(c) to provide education and information to employees, employers and organisations in relation to workplace agreements; and
(d) to promote better work and management practices through workplace agreements; and
(e) to accept lodgment of:
(i) workplace agreements; and
(ii) notices about transmission of instruments; and
(f) to provide advice to employees, employers and organisations about awards and the Australian Fair Pay and Conditions Standard; and
(g) to provide aggregated statistical information to the Minister; and
(h) to authorise multiple‑business agreements in accordance with the regulations; and
(i) to give to the Minister, in accordance with the regulations, information and copies of documents; and
(j) to disclose information that relates to the functions of workplace inspectors to workplace inspectors in response to requests from workplace inspectors; and
(k) to disclose information to workplace inspectors that the Employment Advocate considers on reasonable grounds is likely to assist the inspectors in performing their functions; and
(l) to analyse workplace agreements; and
(m) to perform any other function conferred on the Employment Advocate by this Act, another Act, the regulations or the Registration and Accountability of Organisations Schedule.
(2) In performing his or her functions relating to workplace agreements, the Employment Advocate must encourage parties to agreement‑making to take account of the needs of workers in disadvantaged bargaining positions (for example: women, people from a non‑English speaking background, young people, apprentices, trainees and outworkers).
(3) In performing his or her functions, the Employment Advocate must have particular regard to:
(a) assisting workers to balance work and family responsibilities; and
(b) the need to prevent and eliminate discrimination because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(4) Regulations made for the purposes of paragraph (1)(i) may require that documents given to the Minister are given with such deletions as are necessary to prevent the identification of individuals to whom the documents refer.
83BC Minister’s directions to Employment Advocate
(1) The Minister may, by legislative instrument, give directions specifying the manner in which the Employment Advocate must exercise or perform the powers or functions of the Employment Advocate.
(2) The directions must not be about a particular workplace agreement.
(3) The Employment Advocate must comply with the directions.
44 Subsection 83BE(2)
Omit “under Part VID relating to the approval of AWAs and ancillary documents”, substitute “relating to the authorisation of multiple‑business agreements”.
45 Subsection 83BE(3)
Repeal the subsection.
46 Division 2 of Part IVA
Repeal the Division.
47 Section 83BS
Repeal the section, substitute:
83BS Identity of parties to AWAs not to be disclosed
(1) A person commits an offence if:
(a) the person discloses information; and
(b) the information is protected information; and
(c) the discloser has reasonable grounds to believe that the information will identify another person as being, or having been, a party to an AWA; and
(d) the disclosure is not made by the discloser in the course of performing functions or duties as a workplace agreement official; and
(e) the disclosure is not required or permitted by this Act, by another Act, by regulations made for the purposes of another provision of this Act or by regulations made for the purposes of another Act; and
(f) the person whose identity is disclosed has not, in writing, authorised the disclosure.
Penalty: Imprisonment for 6 months.
(2) In this section:
protected information, in relation to a person, means information that the person acquired:
(a) in the course of performing functions or duties, or exercising powers, as a workplace agreement official; or
(b) from a workplace agreement official who acquired the information as mentioned in paragraph (a).
workplace agreement official means:
(a) the Employment Advocate; or
(b) a delegate of the Employment Advocate; or
(c) a member of the staff assisting the Employment Advocate under section 83BD.
48 Section 83BT
Omit “AWAs or ancillary documents”, substitute “workplace agreements”.
49 Part V (heading)
Repeal the heading, substitute:
Part V—Workplace inspectors
50 Subsection 84(1)
Before “inspectors”, insert “workplace”.
51 Subsection 84(2)
Repeal the subsection, substitute:
(2) The Minister may, by instrument, appoint as a workplace inspector:
(a) a person who has been appointed, or who is employed, by the Commonwealth; or
(b) a person, other than a person mentioned in paragraph (a).
52 Subsection 84(3)
Repeal the subsection, substitute:
(3) A person appointed under paragraph (2)(a) is appointed for the period specified in regulations made for the purposes of this subsection.
(3A) A person appointed under paragraph (2)(b) is appointed for the period specified in the person’s instrument of appointment, which must not be longer than the period specified in regulations made for the purposes of this subsection.
53 Subsection 84(4)
Omit “an inspector has such powers and functions in relation to the observance of this Act, awards and certified agreements as are conferred by this Act”, substitute “a workplace inspector has the powers and functions conferred on a workplace inspector by this Act or by the regulations or by another Act”.
54 Subsection 84(4A)
Omit “an inspector has such powers and functions in relation to the observance of this Act, awards and certified agreements as are conferred on an inspector by this Act and”, substitute “a workplace inspector has only such of the powers and functions mentioned in subsection (4) as are”.
55 Subsection 84(5)
Omit “by notice published in the Gazette”, substitute “by legislative instrument”.
56 Subsection 84(6)
Omit “An inspector shall”, substitute “A workplace inspector must”.
57 Subsection 85(2)
Omit “shall”, substitute “must”.
58 At the end of section 85
Add:
(3) A person commits an offence if:
(a) the person ceases to be a workplace inspector; and
(b) the person does not return the person’s identity card to the Secretary of the Department within 14 days of so ceasing.
Penalty: 1 penalty unit.
(4) Subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
59 Subsection 86(1)
Repeal the subsection, substitute:
Purpose for which powers of inspectors can be exercised
(1) The powers of a workplace inspector under this section may be exercised:
(a) for the purpose of determining whether any of the following are being, or have been, observed:
(i) workplace agreements;
(ii) awards;
(iii) the Australian Fair Pay and Conditions Standard;
(iv) minimum entitlements and orders under Part VIA;
(v) the requirements of this Act (other than section 541) and the regulations; or
(b) for the purposes of a provision of the regulations that confers powers or functions on inspectors.
Note: Workplace determinations are treated for the purposes of the Act as if they were collective agreements (see section 113F). Undertakings are treated the same way (see section 103M). This means that inspectors also have powers in relation to those instruments.
60 Subparagraph 86(1A)(a)(i)
Omit “an award or certified agreement”, substitute “an instrument or entitlement mentioned in subparagraphs (1)(a)(i) to (iv)”.
61 Subparagraph 86(1A)(b)(iii)
Omit “any employee”, substitute “any person”.
62 At the end of paragraph 86(1A)(b)
Add:
(vi) to require a person to tell the inspector who has custody of a document; and
63 Paragraph 86(1A)(c)
Omit “to the inspector a document relevant to the purpose set out in subsection (1)”, substitute “a document to the inspector”.
64 At the end of subsection 86(1A)
Add:
Note: Contravening a requirement under subparagraph (b)(iv) or paragraph (c) may be an offence under section 305.
65 Subsection 86(4B)
Omit “paragraph (1A)(c)”, substitute “this section”.
66 Subsection 86(4C)
Omit “paragraph (1A)(c)”, substitute “this section”.
67 Subsections 86(6) and (7)
Repeal the subsections, substitute:
In Australia’s exclusive economic zone
(6) Subsection (1A) extends to premises, and places of business, that:
(a) are in Australia’s exclusive economic zone; and
(b) are owned or occupied by an Australian employer.
This subsection has effect subject to Australia’s obligations under international law concerning jurisdiction over ships that fly the flag of a foreign country and aircraft registered under the law of a foreign country.
On Australia’s continental shelf outside exclusive economic zone
(7) Subsection (1A) also extends to premises, and places of business, that:
(a) are outside the outer limits of Australia’s exclusive economic zone, but in, on or over a part of Australia’s continental shelf that is prescribed by the regulations for the purposes of this subsection; and
(b) are connected with the exploration of the continental shelf or the exploitation of its natural resources; and
(c) meet the requirements that are prescribed by the regulations for that part.
Note: The regulations may prescribe different requirements relating to different parts of Australia’s continental shelf. The regulations may need to do so to give effect to Australia’s international obligations.
68 After section 86
Insert:
86A Disclosure of information by inspectors
(1) A workplace inspector may disclose information acquired by the inspector in the course of exercising powers, or performing functions, as a workplace inspector, if the inspector considers on reasonable grounds that it is necessary or appropriate to do so in the course of exercising his or her powers, or performing his or her functions, as an inspector.
(2) A workplace inspector may disclose information to an officer of the Department administered by the Minister who administers the Migration Act 1958 if the inspector considers on reasonable grounds that the disclosure of the information is likely to assist the officer in the administration of that Act.
(3) The regulations may authorise workplace inspectors to disclose information of the prescribed kind, to officers of the Commonwealth of the prescribed kind, for prescribed purposes.
(4) A workplace inspector may disclose information to an officer of a State who has powers, duties or functions that relate to the administration of a workplace relations or other system relating to terms and conditions, or incidents, of employment, if the inspector considers on reasonable grounds that the disclosure of the information is likely to assist the officer in the administration of that system.
69 Section 87
Repeal the section.
70 Section 88
Repeal the section.
71 Parts VA, VI and VIAAA
Repeal the Parts, substitute:
Part VA—The Australian Fair Pay and Conditions Standard
Division 1—Preliminary
89 Purpose of Part
(1) The purpose of this Part is to set out key minimum entitlements of employment.
(2) The key minimum entitlements relate to the following matters:
(a) basic rates of pay and casual loadings (see Division 2);
(b) maximum ordinary hours of work (see Division 3);
(c) annual leave (see Division 4);
(d) personal leave (see Division 5);
(e) parental leave and related entitlements (see Division 6).
(3) The provisions of Divisions 2 to 6 constitute the Australian Fair Pay and Conditions Standard.
89A Operation of the Australian Fair Pay and Conditions Standard
(1) The Australian Fair Pay and Conditions Standard provides key minimum entitlements of employment for the employees to whom it applies.
(2) The Australian Fair Pay and Conditions Standard prevails over a workplace agreement or a contract of employment that operates in relation to an employee to the extent to which, in a particular respect, the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee.
(2A) A dispute about:
(a) whether the Australian Fair Pay and Conditions Standard provides a more favourable outcome for an employee in a particular respect than a workplace agreement that operates in relation to that employee; or
(b) what the outcome is for an employee in a particular respect under the Australian Fair Pay and Conditions Standard, where a workplace agreement operates in relation to that employee;
is to be resolved using the dispute settlement procedure included (or taken to be included) in the agreement.
(3) The regulations may prescribe:
(a) what a particular respect is or is not for the purposes of subsection (2) or (2A); or
(b) the circumstances in which the Australian Fair Pay and Conditions Standard provides or does not provide a more favourable outcome in a particular respect.
Example 1: The way in which particular amounts of annual leave are accrued could be prescribed as a particular respect under paragraph (3)(a).
Example 2: Both the Standard and a workplace agreement require an employee to attest to certain matters in a statutory declaration made for the purposes of maternity leave. The matters required by the agreement are different in some respects from those set out in the Standard. Regulations made for the purposes of paragraph (3)(b) could prescribe the matters to be attested in a statutory declaration as a circumstance in which the Standard is not taken to provide a more favourable outcome.
89B Australian Fair Pay and Conditions Standard cannot be excluded
A term of a workplace agreement or a contract has no effect to the extent to which it purports to exclude the Australian Fair Pay and Conditions Standard or any part of it.
89D Extraterritorial extension
(1) This Part, and the rest of this Act so far as it relates to this Part, extend:
(a) to an employee outside Australia who meets any of the conditions in this section; and
(b) to the employee’s employer (whether the employer is in or outside Australia); and
(c) to acts, omissions, matters and things relating to the employee (whether they are in or outside Australia).
Note: In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea. See section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.
In Australia’s exclusive economic zone
(2) One condition is that the employee is in Australia’s exclusive economic zone and either:
(a) is an employee of an Australian employer and is not prescribed by the regulations as an employee to whom this subsection does not apply; or
(b) is an employee prescribed by the regulations as an employee to whom this subsection applies.
Note: The regulations may prescribe the employee by reference to a class. See subsection 13(3) of the Legislative Instruments Act 2003.
On Australia’s continental shelf outside exclusive economic zone
(3) Another condition is that the employee:
(a) is outside the outer limits of Australia’s exclusive economic zone, but is in, on or over a part of Australia’s continental shelf that is prescribed by the regulations for the purposes of this subsection, in connection with the exploration of the continental shelf or the exploitation of its natural resources; and
(b) meets the requirements that are prescribed by the regulations for that part.
Note: The regulations may prescribe different requirements relating to different parts of Australia’s continental shelf. The regulations may need to do so to give effect to Australia’s international obligations.
Outside Australia’s exclusive economic zone and continental shelf
(4) Another condition is that the employee:
(a) is neither in Australia’s exclusive economic zone nor in, on or over a part of Australia’s continental shelf described in paragraph (3)(a); and
(b) is an employee of an Australian employer; and
(c) is an Australian‑based employee or bound by a workplace agreement that binds the employer too; and
(d) is not prescribed by the regulations as an employee to whom this subsection does not apply.
(5) Another condition is that the employee:
(a) is neither in Australia’s exclusive economic zone nor in, on or over a part of Australia’s continental shelf described in paragraph (3)(a); and
(b) is an Australian‑based employee of an employer that is not an Australian employer; and
(c) is bound by a workplace agreement that binds the employer too; and
(d) is not prescribed by the regulations as an employee to whom this subsection does not apply.
Definition
(6) In this section:
this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.
89E Model dispute resolution process
The model dispute resolution process applies to a dispute about entitlements under Divisions 3 to 6.
Note: The model dispute resolution process is set out in Part VIIA.
Division 2—Wages
Subdivision A—Preliminary
90 AFPC’s wage‑setting parameters etc.
In exercising any of its powers under this Division, the AFPC must act in accordance with section 7J (AFPC’s wage‑setting parameters).
Note 1: Any additional considerations or limitations on the exercise of the AFPC’s powers are set out in the various sections of this Division (including sections 90A and 90ZR).
Note 2: The AFPC must ensure that APCSs do not (after 3 years) continue to contain coverage rules that are described by reference to State or Territory boundaries—see section 90ZB.
90A AFPC to have regard to recommendations of Award Review Taskforce
In exercising any of its powers under this Division, the AFPC is to have regard to any relevant recommendations made by the Award Review Taskforce.
90B Definitions
In this Division:
APCS means a preserved APCS or a new APCS.
Note: APCS is short for Australian Pay and Classification Scale.
APCS piece rate employee means an employee in relation to whom the following paragraphs are satisfied:
(a) the employee’s employment is covered by an APCS;
(b) the rate provisions of the APCS determine one or more basic piece rates of pay that apply to the employment of the employee.
basic periodic rate of pay means a rate of pay for a period worked (however the rate is described) that does not include incentive‑based payments and bonuses, loadings, monetary allowances, penalty rates or any other similar separately identifiable entitlements. The meaning of basic periodic rate of pay is also affected by section 90ZF.
Note: Most of the kinds of entitlement excluded from this definition are allowable award matters (see section 116).
basic piece rate of pay means a piece rate of pay, other than a piece rate of pay that is payable, as an incentive‑based payment or bonus, in addition to a basic periodic rate of pay.
Note: Incentive‑based payments and bonuses are allowable award matters.
casual loading: the meaning of casual loading is affected by section 90ZF.
casual loading provisions has the meaning given by section 90C.
classification has the meaning given by section 90D.
coverage provisions means:
(a) for a pre‑reform wage instrument—all provisions (whether of that instrument or of another instrument or law), as in force on the reform comparison day, that would have affected the determination of whether the employment of any particular employee was covered by the instrument on that day; or
(b) for an APCS—provisions of the APCS that determine whether the employment of a particular employee is covered by the APCS.
Note: For a preserved APCS, the coverage provisions will (at least initially) be the coverage provisions for the pre‑reform wage instrument from which the APCS is derived (see paragraph 90ZD(1)(f)).
covered: for when the employment of a particular employee is covered by a particular APCS, see sections 90Z and 90ZA.
current circumstances of employment, in relation to an employee, includes any current circumstance of or relating to the employee’s employment.
default casual loading percentage has the meaning given by subsection 90I(1).
derived from: for when a preserved APCS is derived from a particular pre‑reform wage instrument, see subsection 90ZD(2).
employee with a disability means an employee who is qualified for a disability support pension as set out in section 94 or 95 of the Social Security Act 1991, or who would be so qualified but for paragraph 94(1)(e) or 95(1)(c) of that Act.
FMW for an employee: for when there is an FMW for an employee, see section 90P.
Note: FMW is short for Federal Minimum Wage.
frequency of payment provisions means:
(a) for a pre‑reform wage instrument—provisions (whether of that instrument or of another instrument or law), as in force on the reform comparison day, that would have determined the frequency with which an employee covered by the instrument had to be paid; or
(b) for an APCS, a workplace agreement or a contract of employment—provisions of the APCS, workplace agreement or contract that determine the frequency with which an employee covered by the APCS, workplace agreement or contract must be paid.
Note: For a preserved APCS, the frequency of payment provisions will (at least initially) be the frequency of payment provisions (if any) for the pre‑reform wage instrument from which the APCS is derived (see paragraph 90ZD(1)(ea)).
junior employee means an employee who is under the age of 21.
new APCS has the meaning given by subsection 90ZJ(1).
piece rate of pay means a rate of pay that is expressed as a rate for a quantifiable output or task (as opposed to being expressed as a rate for a period worked).
Note: The following are examples of piece rates of pay:
(a) a rate of pay calculated by reference to number of articles produced;
(b) a rate of pay calculated by reference to number of kilometres travelled;
(c) a rate of pay calculated by reference to number of articles delivered;
(d) a rate of pay calculated by reference to number of articles sold;
(e) a rate of pay calculated by reference to number of tasks performed.
pre‑reform federal wage instrument means:
(a) an award (as defined in subsection 4(1) of this Act as in force immediately before the reform commencement) as in force immediately before the reform commencement, but not including:
(i) an order under section 120A of this Act as then in force; or
(ii) an award under section 170MX of this Act as then in force; or
(b) sections 552 and 555 of this Act as in force immediately before the reform commencement; or
(c) a law, or a provision of a law, of the Commonwealth, being a law or provision:
(i) as in force immediately before the reform commencement; and
(ii) that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph; or
(d) an instrument made under a law, or a provision of a law, of the Commonwealth, being an instrument:
(i) as in force immediately before the reform commencement; and
(ii) that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph.
Note: For when regulations made for the purpose of paragraph (c) or (d) may be expressed to take effect, see section 90ZI.
pre‑reform non‑federal wage instrument means a pre‑reform State wage instrument or a pre‑reform Territory wage instrument.
pre‑reform State wage instrument means:
(a) a State award (as defined in subsection 4(1) of this Act as in force immediately before the reform commencement) as in force immediately before the reform commencement; or
(b) a law, or a provision of a law, of a State, being a law or provision:
(i) as in force immediately before the reform commencement; and
(ii) that entitled employees, or a particular class of employees, to payment of a particular rate of pay; or
(c) a law, or a provision of a law, of a State, being a law or provision:
(i) as in force immediately before the reform commencement; and
(ii) that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph; or
(d) an instrument made under a law, or a provision of a law, of a State, being an instrument:
(i) as in force immediately before the reform commencement; and
(ii) that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph.
Note: For when regulations made for the purpose of paragraph (c) or (d) may be expressed to take effect, see section 90ZI.
pre‑reform Territory wage instrument means:
(a) a law, or a provision of a law, of a Territory, being a law or provision:
(i) as in force immediately before the reform commencement; and
(ii) that entitled employees, or a particular class of employees, to payment of a particular rate of pay; or
(b) a law, or a provision of a law, of a Territory, being a law or provision:
(i) as in force immediately before the reform commencement; and
(ii) that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph; or
(c) an instrument made under a law, or a provision of a law, of a Territory, being an instrument:
(i) as in force immediately before the reform commencement; and
(ii) that is specified, or is of a kind specified, in regulations made for the purposes of this paragraph.
Note: For when regulations made for the purpose of paragraph (b) or (c) may be expressed to take effect, see section 90ZI.
pre‑reform wage instrument means a pre‑reform federal wage instrument or a pre‑reform non‑federal wage instrument.
preserved APCS has the meaning given by subsection 90ZD(1).
pro‑rata disability pay method means a method for determining a rate of pay for employees with a disability, being a method that determines the rate by reference to the relative capacities of those employees.
rate provisions has the meaning given by section 90E.
reform comparison day means the day before the day on which the reform commencement occurs.
special FMW has the meaning given by section 90S.
standard FMW has the meaning given by section 90Q.
90C Meaning of casual loading provisions
(1) For the purposes of this Division, casual loading provisions, of a pre‑reform wage instrument or an APCS, are provisions of the instrument or APCS that determine a casual loading payable to an employee, or an employee of a particular classification, in addition to a basic periodic rate of pay.
(2) The means by which such provisions may determine a casual loading include the following, or any combination of any of the following:
(a) direct specification of the loading;
(b) identification of the loading by reference to other provisions (whether or not of the same instrument or APCS);
(c) direct specification, or identification by reference to other provisions (whether or not of the same instrument or APCS), of a method for calculating the loading.
(3) Subject to the regulations, a method referred to in subsection (2) may provide for a person or body to determine a loading in a particular way. For the purposes of this Division, a loading determined by the person or body in that way is taken to be a loading determined by the provisions that specify or identify the method.
90D Meaning of classification
(1) For the purposes of this Division, a classification of employees is a classification or category of employees, however described in the pre‑reform wage instrument or APCS concerned.
(2) A classification or category of employees may be described by reference to matters including (but not limited to) any of the following, or any combination of any of the following:
(a) the nature of work performed by employees;
(b) the skills or qualifications or employees;
(c) the level of responsibility or experience of employees;
(d) whether employees are junior employees, or a particular class of junior employees;
(e) whether employees are employees with a disability, or are a particular class of employees with a disability;
(f) whether employees are employees to whom training arrangements, or are a particular class of employees to whom training arrangements, apply.
90E Meaning of rate provisions
(1) For the purposes of this Division, rate provisions, of a pre‑reform wage instrument or an APCS, are provisions of the instrument or APCS that determine a basic periodic rate of pay, or basic piece rates of pay, payable to an employee, or an employee of a particular classification.
(2) The means by which such provisions may determine a basic periodic rate of pay, or a basic piece rate of pay, include the following, or any combination of any of the following:
(a) direct specification of a rate;
(b) identification of a rate by reference to other provisions (whether or not of the same instrument or APCS);
(c) direct specification, or identification by reference to other provisions (whether or not of the same instrument or APCS), of a method for calculating a rate.
(3) Subject to the regulations, a method referred to in subsection (2) may provide for a person or body to determine a rate in a particular way. For the purposes of this Division, a rate determined by the person or body in that way is taken to be a rate determined by the provisions that specify or identify the method.
Subdivision B—Guarantee of basic rates of pay
90F The guarantee
Guarantee of APCS basic periodic rates of pay
(1) If:
(a) the employment of an employee is covered by an APCS; and
(b) the employee is not an APCS piece rate employee;
the employee must be paid a basic periodic rate of pay for each of the employee’s guaranteed hours (pro‑rated for part hours) that is at least equal to the basic periodic rate of pay (the guaranteed basic periodic rate of pay) that is payable to the employee under the APCS.
Note: For what are the employee’s guaranteed hours, see section 90G.
Guarantee of APCS piece rates of pay
(2) If:
(a) the employment of an employee is covered by an APCS; and
(b) the employee is an APCS piece rate employee;
the employee must be paid basic piece rates of pay for his or her work that are at least equal to the basic piece rates of pay (the guaranteed basic piece rates of pay) that are payable to the employee under the APCS.
Guarantee of standard FMW
(3) If:
(a) the employment of an employee is not covered by an APCS; and
(b) the employee is not a junior employee, an employee with a disability, or an employee to whom a training arrangement applies;
the employee must be paid a basic periodic rate of pay for each of the employee’s guaranteed hours (pro‑rated for part hours) that is at least equal to the standard FMW (the guaranteed basic periodic rate of pay).
Note: For what are the employee’s guaranteed hours, see section 90G.
Guarantee of special FMW
(4) If:
(a) the employment of an employee is not covered by an APCS; and
(b) the employee is a junior employee, an employee with a disability, or an employee to whom a training arrangement applies; and
(c) there is a special FMW for the employee;
the employee must be paid a basic periodic rate of pay for each of the employee’s guaranteed hours (pro‑rated for part hours) that is at least equal to that special FMW (the guaranteed basic periodic rate of pay).
Note: For what are the employee’s guaranteed hours, see section 90G.
90G An employee’s guaranteed hours for the purpose of section 90F
Employees employed to work a specified number of hours
(1) For the purposes of section 90F, if an employee is employed to work a specified number of hours per week, the guaranteed hours for the employee, for each week, are to be worked out as follows:
(a) start with that specified number of hours (subject to subsection (4));
(b) deduct all of the following:
(i) any hours in the week when the employee is absent from work on deductible authorised leave (as defined in subsection (6));
(ii) any hours in the week in relation to which the employer is prohibited by section 114 from making a payment to the employee;
(iii) any other hours of unauthorised absence from work by the employee in the week;
(c) if, during the week, the employee works, and is required or requested to work, additional hours that are, under the terms and conditions of the employee’s employment, not counted towards the specified number of hours—add on those additional hours.
Note: The actual hours worked from week to week by an employee who is employed to work a specified number of hours per week may vary, due to averaging as mentioned in section 91C or to some other kind of flexible working hours scheme that applies to the employee’s employment.
(2) If an employee is employed on a full‑time basis, but the terms and conditions of the employee’s employment do not determine the number of hours in a period that is to constitute employment on a full‑time basis for the employee, the employee is, for the purpose of subsection (1), taken to be employed to work 38 hours per week.
(3) If an employee is employed to work a specified number (the number of non‑week specified hours) of hours per period (the non‑week period), but that period is not a week (for example, it is a fortnight), then, for the purpose of subsection (1), the employee is taken to be employed to work the number of hours per week determined, subject to the regulations (if any), in accordance with the formula:
(4) If:
(a) subsection (1) applies to the employment of an employee to whom a training arrangement applies; and
(b) an APCS includes provisions that determine, in relation to the employee’s employment, that hours attending off‑the‑job training (including hours attending an educational institution) are hours for which a basic periodic rate of pay is payable; and
(c) the hours that would otherwise be the specified number of hours referred to in subsection (1) for the employee for a week do not include all the hours (the paid training hours) in the week that the APCS so determines are hours for which a basic periodic rate of pay is payable;
subsection (1) applies as if the specified number of hours were increased to such number of hours as includes all the paid training hours.
Employees not employed to work a specified number of hours
(5) For the purpose of section 90F, if subsection (1) of this section does not apply to the employment of an employee, the guaranteed hours for the employee are the hours that the employee both is required or requested to work, and does work, for the employer, less any period in relation to which the employer is prohibited by section 114 from making a payment to the employee.
Definitions
(6) In this section:
deductible authorised leave means leave, or an absence, whether paid or unpaid, that is authorised:
(a) by an employee’s employer; or
(b) by or under a term or condition of an employee’s employment; or
(c) by or under a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory;
but not including any leave or absence:
(d) that is on a public holiday and that is so authorised because the day is a public holiday; or
(e) any leave or absence that is authorised in order for the employee to attend paid training hours (within the meaning of paragraph (4)(c)) of off‑the‑job training.
hour includes a part of an hour.
Note: An employee’s guaranteed hours may therefore be a number of hours and part of an hour.
public holiday means:
(a) a day declared by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of that State or Territory, as a public holiday by people who work in that State, Territory or region, other than:
(i) a union picnic day; or
(ii) a day, or kind of day, that is excluded by regulations made for the purposes of this paragraph from counting as a public holiday; or
(b) a day that, under (or in accordance with a procedure under) a law of a State or Territory, or an award or workplace agreement, is substituted for a day referred to in paragraph (a).
90GA Modified operation of section 90F to continue effect of Supported Wage System for certain employees with a disability
(1) This section applies to the employment of an employee with a disability if:
(a) subsection 90F(1) applies (disregarding this section) to the employment of the employee; and
(b) the APCS that covers the employee’s employment does not determine the basic periodic rate of pay for the employee as a rate that is specific to employees with disabilities; and
(c) the employee is eligible for the Supported Wage System; and
(d) the employee’s employment is covered by a workplace agreement; and
(e) the workplace agreement provides for the payment of a basic periodic rate of pay to the employee at a rate that is not less than the rate (the SWS‑compliant rate of pay) set in accordance with the Supported Wage System.
Note: The Supported Wage System was endorsed by the Commission in the Full Bench decision dated 10 October 1994 (print L5723).
(2) If this section applies to the employment of the employee, subsection 90F(1) has effect as if the guaranteed basic periodic rate of pay under that subsection for the employment of the employee were instead a rate equal to the SWS‑compliant rate of pay.
Subdivision C—Guarantee of casual loadings
90H The guarantee
(1) This section applies to a casual employee for whom, under section 90F, there is a guaranteed basic periodic rate of pay, other than a casual employee in relation to whom the following paragraphs are satisfied:
(a) subsection 90F(1) applies to the employee;
(b) the APCS that covers the employment of the employee does not contain casual loading provisions under which a casual loading is payable to the employee;
(c) the employee’s employment is not covered by a workplace agreement.
(2) The casual employee must be paid, in addition to his or her actual basic periodic rate of pay, a casual loading that is at least equal to the guaranteed casual loading percentage of that actual basic periodic rate of pay.
Note: The employee’s actual basic periodic rate of pay should at least equal the guaranteed basic periodic rate of pay under section 90F.
(3) The guaranteed casual loading percentage is as set out in the following table:
| Item | In this situation … | the guaranteed casual loading percentage is … |
| 1 | if: (a) subsection 90F(1) applies to the employment of the employee; and (b) the employee’s employment is not covered by a workplace agreement; and (c) subsection 103R(1) is not operating in relation to the employee’s employment; | the percentage that is the casual loading payable to the employee under casual loading provisions of the APCS referred to in subsection 90F(1). |
| 2 | if: (a) subsection 90F(1) applies to the employment of the employee; and (b) the employee’s employment is not covered by a workplace agreement; and (c) subsection 103R(1) is operating in relation to the employee’s employment; | the higher of: (a) the percentage that is the casual loading payable to the employee under casual loading provisions of the APCS referred to in subsection 90F(1); and (b) the default casual loading percentage. |
| 3 | if: (a) subsection 90F(1) applies to the employment of the employee; and (b) the employee’s employment is covered by a workplace agreement; | the default casual loading percentage. |
| 4 | if subsection 90F(3) or (4) applies to the employment of the employee | the default casual loading percentage. |
90I Default casual loading percentage
(1) The default casual loading percentage is 20%, subject to the power of the AFPC to adjust the percentage.
(2) Any adjustment of the default casual loading percentage must be such that the adjusted rate is still expressed as a percentage.
90J Adjustment of default casual loading percentage
(1) The AFPC may adjust the default casual loading percentage.
(2) The power to adjust the default casual loading percentage is subject to:
(a) sections 90 and 90A; and
(b) subsection 90I(2); and
(c) section 90K; and
(d) section 90N; and
(e) section 90ZR.
90K Only one default casual loading percentage
The AFPC must ensure that there is only ever one default casual loading percentage at any one time.
Subdivision CA—Guarantee of frequency of payment
90KA The guarantee
APCS applies and contains frequency of payment provisions
(1) If:
(a) the employment of an employee is covered by an APCS; and
(b) the APCS contains frequency of payment provisions that apply in relation to the employee’s employment;
the employer must comply with those provisions in relation to the employee.
APCS applies but does not contain frequency of payment provisions
(2) If:
(a) the employment of an employee is covered by an APCS; but
(b) the APCS does not contain frequency of payment provisions that apply in relation to the employee’s employment;
then:
(c) if a workplace agreement that covers the employment of the employee contains frequency of payment provisions that apply in relation to the employee’s employment—the employer must comply with those provisions in relation to the employee; or
(d) if paragraph (c) does not apply, and the employee’s contract of employment contains frequency of payment provisions that apply in relation to the employee’s employment—the employer must comply with those provisions in relation to the employee; or
(e) if neither paragraph (c) nor (d) applies—the employer must pay the employee on the basis of fortnightly payments in arrears.
Other situations
(3) If the employment of an employee is not covered by an APCS, then:
(a) if a workplace agreement that covers the employment of the employee contains frequency of payment provisions that apply in relation to the employee’s employment—the employer must comply with those provisions in relation to the employee; or
(b) if paragraph (a) does not apply, and the employee’s contract of employment contains frequency of payment provisions that apply in relation to the employee’s employment—the employer must comply with those provisions in relation to the employee; or
(c) if neither paragraph (a) nor (b) applies—the employer must pay the employee on the basis of fortnightly payments in arrears.
Subdivision D—Guarantee against reductions below pre‑reform commencement rates
90L The guarantee where only basic periodic rates of pay are involved
(1) This section applies if:
(a) the AFPC proposes to exercise any of the following powers (subject to subsection (4)):
(i) adjusting the standard FMW;
(ii) adjusting a preserved APCS;
(iii) determining or adjusting a new APCS;
(iv) revoking a preserved or new APCS; and
(b) immediately after the exercise of the power takes effect, there will, under section 90F, be a guaranteed basic periodic rate of pay (the resulting guaranteed basic periodic rate) for a particular employee affected by the exercise of the power; and
(c) immediately after the reform commencement (and after any relevant adjustments mentioned in sections 90ZE to 90ZH took effect), there would, under section 90F, have been a guaranteed basic periodic rate of pay (the commencement guaranteed basic periodic rate) for the employee if the employee had at that time been in his or her current circumstances of employment.
(2) The AFPC must ensure that the result of the exercise of the power, so far as it affects the employee, is such that the resulting guaranteed basic periodic rate of pay for the employee will not be less than the commencement guaranteed basic periodic rate of pay for the employee.
(3) In applying this section in relation to a particular exercise of a power by the AFPC, the effect of any other exercise of a power by the AFPC that takes effect at the same time must also be taken into account.
(4) This section does not limit the AFPC’s power to make APCSs for the purpose of section 90ZP or 90ZQ, or to adjust APCSs made for the purpose of either of those sections.
90M The guarantee where basic piece rates of pay are involved
(1) This section applies if:
(a) the AFPC proposes to exercise any of the following powers (subject to subsection (4)):
(i) adjusting the standard FMW;
(ii) adjusting a preserved APCS;
(iii) determining or adjusting a new APCS;
(iv) revoking a preserved or new APCS; and
(b) either or both of the following subparagraphs apply in relation to a particular employee who will be affected by the exercise of the power:
(i) immediately after the exercise of the power takes effect, there will, under section 90F, be guaranteed basic piece rates of pay for the employee;
(ii) immediately after the reform commencement (and after any relevant adjustments mentioned in sections 90ZE to 90ZH took effect), there would, under section 90F, have been guaranteed basic piece rates of pay for the employee if the employee had at that time been in his or her current circumstances of employment.
(2) The AFPC must exercise the power in a way that it considers will not result in an employee of average capacity, after the exercise of the power takes effect, being entitled to less basic pay per week than he or she would have been entitled to because of this Division immediately after the reform commencement if the employee had at that time been in his or her current circumstances of employment.
(3) In applying this section in relation to a particular exercise of a power by the AFPC, the effect of any other exercise of a power by the AFPC that takes effect at the same time must also be taken into account.
(4) This section does not limit the AFPC’s power to make APCSs for the purpose of section 90ZP or 90ZQ, or to adjust APCSs made for the purpose of either of those sections.
90N The guarantee for casual loadings that apply to basic periodic rates of pay
(1) This section applies in relation to the exercise by the AFPC of any of the following powers:
(a) adjusting a preserved APCS;
(b) determining or adjusting a new APCS;
(c) revoking a preserved or new APCS;
(d) adjusting the default casual loading percentage.
(2) The AFPC must ensure that the result of the exercise of the power, so far as it affects any particular employee to whom this Division applies (other than an employee who will, after the exercise of the power, be an APCS piece rate employee), is such that the resulting guaranteed casual loading percentage for the employee will not be less than the commencement guaranteed casual loading percentage for the employee.
(3) For the purposes of subsection (2):
(a) the resulting guaranteed casual loading percentage for the employee is the guaranteed casual loading percentage referred to in section 90H for the employee, as it will be immediately after the exercise of the power takes effect; and
(b) subject to subsection (4), the commencement guaranteed casual loading percentage for the employee is the percentage that, immediately after the reform commencement (and after any relevant adjustments mentioned in sections 90ZE to 90ZH took effect), would have been the guaranteed casual loading percentage referred to in section 90H for the employee if the employee had, at that time, been in his or her current circumstances of employment.
(4) If:
(a) the employee is a casual employee; and
(b) the resulting guaranteed casual loading percentage is the default casual loading percentage because of item 3 of the table in subsection 90H(3);
the commencement guaranteed casual loading percentage for the employee is taken to be the default casual loading percentage, as it was immediately after the reform commencement.
(5) In applying this section in relation to a particular exercise of a power by the AFPC, the effect of any other exercise of a power by the AFPC that takes effect at the same time must also be taken into account.
Subdivision E—The guarantee against reductions below Federal Minimum Wages (FMWs)
90O The guarantee
(1) Subject to subsection (3), when exercising its power to make an APCS, or to adjust an APCS, the AFPC must ensure that the rate provisions in the APCS are such that the resulting APCS basic periodic rate of pay for each employee:
(a) whose employment will be covered by the APCS immediately after the exercise of the power; and
(b) for whom there will be an FMW immediately after the exercise of the power; and
(c) who will not be an APCS piece rate employee immediately after the exercise of the power;
is not less than that FMW.
Note 1: This section does not apply to rates determined by rate provisions as initially included in a preserved APCS from a pre‑reform wage instrument as mentioned paragraph 90ZD(1)(a). However, this section does apply to any subsequent adjustment of those rate provisions, or to any new APCS that replaces the preserved APCS.
Note 2: See also section 90ZC (deeming APCS rates to at least equal FMW rates after first exercise of powers under this Division by the AFPC).
(2) For the purposes of subsection (1), the resulting APCS basic periodic rate of pay for an employee is the basic periodic rate of pay that will be payable to the employee under the APCS immediately after the exercise of the power by the AFPC takes effect.
(3) The requirement in subsection (1) does not apply in relation to a special FMW unless the determination of the special FMW includes a statement to the effect that the special FMW is a minimum standard for all APCSs, for a class of APCSs that includes the APCS or for the particular APCS (see section 90T).
(4) In applying this section in relation to a particular exercise of a power by the AFPC, the effect of any other exercise of a power by the AFPC that takes effect at the same time must also be taken into account.
Subdivision F—Federal Minimum Wages (FMWs)
90P When is there an FMW for an employee?
(1) There is an FMW for an employee if the employee is not:
(a) a junior employee; or
(b) an employee with a disability; or
(c) an employee to whom a training arrangement applies; or
(d) an APCS piece rate employee.
The FMW for the employee is the standard FMW.
(2) There is an FMW for a junior employee (other than an APCS piece rate employee) if the AFPC has determined a special FMW that applies to all junior employees, or to a class of junior employees that includes the employee. The FMW for the employee is that special FMW.
(3) There is an FMW for an employee with a disability (other than an APCS piece rate employee) if the AFPC has determined a special FMW that applies to all employees with a disability, or to a class of employees with a disability that includes the employee. The FMW for the employee is that special FMW.
(4) There is an FMW for an employee to whom a training arrangement applies (other than an APCS piece rate employee) if the AFPC has determined a special FMW that applies to all employees to whom training arrangements apply, or to a class of employees to whom training arrangements apply that includes the employee. The FMW for the employee is that special FMW.
90Q Standard FMW
(1) The standard FMW is $12.75 per hour, subject to the power of the AFPC to adjust the standard FMW.
(2) Any adjustment of the standard FMW must be such that the adjusted rate is still expressed as a monetary amount per hour.
90R Adjustment of standard FMW
(1) The AFPC may adjust the standard FMW.
(2) The power to adjust the standard FMW is subject to:
(a) sections 90 and 90A; and
(b) section 90L; and
(c) section 90M; and
(d) subsection 90Q(2); and
(e) section 90ZR.
90S Determination of special FMWs
The AFPC may determine a special FMW for any of the following:
(a) all junior employees, or a class of junior employees;
(b) all employees with a disability, or a class of employees with a disability;
(c) all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.
90T AFPC to state whether special FMW is a minimum standard for APCSs
(1) When determining a special FMW, the AFPC must consider whether the FMW is to operate as a minimum standard for all, or one or more, APCSs.
(2) If the AFPC considers that the special FMW should operate as a minimum standard for all APCSs, the AFPC must, in the instrument determining the special FMW, include a statement to that effect.
(3) If the AFPC considers that the special FMW should operate as a minimum standard for one or more (but not all) APCSs, the AFPC must, in the instrument determining the special FMW, include a statement to that effect that identifies those APCSs, whether by description of a class or identification of the particular APCS or APCSs.
(4) If the AFPC considers that the special FMW should not operate as a minimum standard for any APCS, the AFPC must, in the instrument determining the special FMW, include a statement to that effect.
90U How a special FMW is to be expressed
(1) A special FMW is to be expressed in a way that produces a monetary amount per hour.
(2) The means by which a special FMW may be expressed to produce a monetary amount per hour include:
(a) specification of a monetary amount per hour; or
(b) specification of a method for calculating a monetary amount per hour.
(3) Any adjustment of a special FMW must be such that the adjusted special FMW still complies with this section.
90V Adjustment of a special FMW
(1) The AFPC may adjust a special FMW.
(2) The power to adjust a special FMW is subject to:
(a) sections 90 and 90A; and
(b) section 90U; and
(c) section 90ZR.
(3) The AFPC may adjust statements of a kind mentioned in section 90T that are included in the instrument determining the special FMW.
Subdivision G—Australian Pay and Classification Scales (APCSs): general provisions
90W What is an APCS?
(1) An APCS is a set of provisions relating to pay and loadings for particular employees that complies with this Subdivision.
(2) An APCS is either:
(a) a preserved APCS (see section 90ZD); or
(b) a new APCS (see section 90ZJ).
90X What must or may be in an APCS?
(1) An APCS must contain:
(a) either or both of the following:
(i) rate provisions determining basic periodic rates of pay for employees whose employment is covered by the APCS;
(ii) rate provisions determining basic piece rates of pay for employees whose employment is covered by the APCS; and
(b) if the rate provisions determine different rates of pay for employees of different classifications—provisions describing those classifications; and
(c) coverage provisions.
(2) An APCS may also contain:
(a) casual loading provisions determining casual loadings for employees whose employment is covered by the APCS and for whom there are not basic piece rates of pay; and
(b) if the casual loading provisions determine different casual loadings for employees of different classifications—provisions describing those classifications; and
(c) provisions that determine, in relation to employees to whom training arrangements apply, whether hours attending off‑the‑job training (including hours attending an educational institution) are hours for which a basic periodic rate of pay is payable; and
(ca) frequency of payment provisions; and
(d) other incidental provisions.
(3) Subject to subsection 90ZD(3A), rate provisions or casual loading provisions in an APCS must not include provisions under which a rate or casual loading provided for by the APCS will or may be increased by operation of the provisions and without anyone having to take any other action.
Note: This does not prevent an APCS, or an adjustment of an APCS, from being expressed to take effect at a future date. However, it does prevent an APCS from containing provisions under which (for example):
(a) there will be one or more specified increases of a rate or loading at a specified future time or times; or
(b) rates of pay or loading are indexed periodically.
(4) The AFPC must not include in a new APCS, or adjust a preserved or new APCS so that it includes, provisions that:
(a) determine whether an employer who acquires a business (whether by transfer or in some other way) is covered by the APCS; or
(b) give a person or body a power to make a decision that affects whether a person is covered by the APCS; or
(c) give the Commission a direct or indirect role in determining a rate of pay or loading.
Note: A preserved APCS may contain provisions referred to in subsection (4) that were contained in the pre‑reform wage instrument from which the APCS is derived, but the effect of those provisions is limited by sections 90Z and 90ZE.
(5) An APCS must not contain any provisions that purport to limit the duration of the APCS.
(6) Subject to the regulations, an APCS must not contain any other provisions.
90Y How pay rates and loadings are to be expressed in an APCS
(1) Rate provisions in an APCS must be such that basic periodic rates of pay determined by the provisions are expressed as a monetary amount per hour.
(2) Rate provisions in an APCS must be such that basic piece rates of pay determined by the provisions are expressed as a monetary amount.
(3) Casual loading provisions in an APCS must be such that casual loadings determined by the provisions are expressed as percentages to be applied to basic periodic rates of pay.
(4) The AFPC must ensure these rules are complied with in exercising its powers to adjust a preserved APCS or make or adjust a new APCS.
90Z When is employment covered by an APCS?
(1) The question whether the employment of a particular employee is covered by a particular APCS is to be determined by reference to the coverage provisions of the APCS.
(2) If coverage provisions of a preserved APCS include provisions that determine whether an employer who acquires a business (whether by transfer or in some other way) is covered by the APCS, those provisions only have effect, for the purpose of determining whether the employment of a particular employee is covered by the APCS, in relation to acquisitions of businesses that occurred before the reform commencement.
(3) If coverage provisions of a preserved APCS include provisions that give a person or body a power to make a decision that affects whether a person is covered by the APCS, those provisions only have effect, for the purpose of determining whether the employment of a particular employee is covered by the APCS, in relation to decisions made by the person or body before the reform commencement.
90ZA What if 2 or more APCSs would otherwise cover an employee?
(1) If, but for this section, 2 or more APCSs would cover the employment of the same employee, the employment of the employee is taken to be covered only by the APCS that prevails.
(2) Apply the following rules to work out which APCS prevails:
(a) the preserved APCS derived from the pre‑reform federal wage instrument referred to in paragraph (b) of the definition of pre‑reform federal wage instrument in section 90B (as that preserved APCS is adjusted from time to time) prevails over any other APCS;
(b) subject to paragraph (a), an APCS made in accordance with Subdivision L (as that APCS is adjusted from time to time) prevails over any other APCS;
(c) subject to paragraphs (a) and (b):
(i) a new APCS prevails over a preserved APCS; and
(ii) a preserved APCS that is derived from a pre‑reform federal wage instrument prevails over a preserved APCS that is derived from a pre‑reform non‑federal wage instrument;
(d) subject to paragraphs (a), (b) and (c):
(i) as between 2 or more APCSs that are made or adjusted on different days, the APCS that is made or adjusted on the more recent day prevails; and
(ii) as between 2 or more APCSs that are made or adjusted on the same day, the APCS that is more generous to the employee prevails.
(3) For the purpose of this section, all preserved APCSs are taken to have been made on the day on which the reform commencement occurs.
90ZB AFPC to remove coverage rules described by reference to State or Territory boundaries
(1) The AFPC must (through exercise of its powers to adjust, revoke and make APCSs) ensure that, by the end of the period of 3 years starting on the reform commencement, all APCSs comply with the following rules:
(a) the question whether the employment of a particular employee is covered by an APCS must not be determined by reference to State or Territory boundaries;
(b) the question whether a particular employee is entitled to a particular basic periodic rate of pay, basic piece rate of pay, or casual loading provided for by an APCS must not be determined by reference to State or Territory boundaries.
(2) In complying with this obligation, the AFPC must do so in a way that also complies with the rest of this Division, including (in particular) sections 90L, 90M, 90N and 90O.
90ZC Deeming APCS rates to at least equal FMW rates after first exercise of AFPC’s powers takes effect
(1) This section applies at all times after the first exercise of powers by the AFPC under this Division takes effect. If the first exercise of powers involves the exercise of powers taking effect at different times, this section applies at all times after the earliest of those times.
(2) Subject to subsection (3), if:
(a) there is an FMW for an employee at a particular time when this section applies; and
(b) an APCS that covers the employment of the employee determines a basic periodic rate of pay for the employee at that time that is less than that FMW;
the basic periodic rate of pay determined by the APCS for the employee at that time is taken to be equal to the rate that is the FMW for the employee at that time.
Note: This subsection ensures that the employee will, under subsection 90F(1), be guaranteed a rate that equals the FMW rate, rather than the lower APCS rate.
(3) Subsection (2) does not apply in relation to a special FMW and a particular APCS unless the determination of the special FMW includes a statement to the effect that the special FMW is a minimum standard for all APCSs, for a class of APCSs that includes the APCS or for the particular APCS (see section 90T).
Subdivision H—Australian Pay and Classification Scales: preserved APCSs
90ZD Deriving preserved APCSs from pre‑reform wage instruments
(1) If a pre‑reform wage instrument contains rate provisions determining one or more basic periodic rates of pay, or basic piece rates of pay, payable to employees, then, from the reform commencement, there is taken to be a preserved APCS that includes (subject to this Subdivision):
(a) those rate provisions; and
(b) if those rate provisions determine different basic periodic rates of pay, or different basic piece rates of pay, for employees of different classifications—the provisions of the instrument that describe those classifications; and
(c) any casual loading provisions of the instrument that determine casual loadings payable to employees, other than employees for whom the instrument provides basic piece rates of pay; and
(d) if the casual loading provisions determine different casual loadings for employees of different classifications—the provisions of the instrument that describe those classifications; and
(e) any provisions of the instrument that determine, in relation to employees to whom training arrangements apply, whether hours attending off‑the‑job training (including hours attending an educational institution) count as hours for which a basic periodic rate of pay is payable; and
(ea) any frequency of payment provisions for the instrument; and
(f) the coverage provisions for the instrument.
(2) The preserved APCS is derived from the pre‑reform wage instrument.
(3) Subject to subsection (3A) and the regulations, the preserved APCS is taken not to include any provision of the pre‑reform wage instrument which, after the adjustments referred to in sections 90ZE to 90ZH take effect, will not comply with the requirements of sections 90X and 90Y.
Note: For when regulations made for the purpose of subsection (3) may be expressed to take effect, see section 90ZI.
(3A) If:
(a) the rate provisions referred to in paragraph (1)(a) include pay increases for particular employees, determined before the reform commencement, that are expressed to take effect at a time or times after the reform commencement; and
(b) those increases were determined by the Commission, or by a State industrial authority, wholly or partly on the ground of work value change or pay equity;
then (despite subsection 90X(3)), the preserved APCS is taken to include provisions under which those increases will take effect for those employees at that time or those times.
(4) The adjustments referred to in sections 90ZE to 90ZH are, subject to the regulations, to be made in the following order:
(a) adjustments referred to in section 90ZE;
(b) adjustments referred to in section 90ZF;
(c) adjustments referred to in section 90ZG;
(d) adjustments referred to in subsection 90ZH(1).
Note: For when regulations made for the purpose of subsection (4) may be expressed to take effect, see section 90ZI.
90ZE Notional adjustment: rates and loadings determined as for reform comparison day
Rate provisions
(1) Subject to subsections (2) and (3), if rate provisions included in a preserved APCS as mentioned in section 90ZD would, apart from this subsection, determine a basic periodic rate of pay otherwise than by direct specification of the monetary amount of the rate, then the APCS is taken to be adjusted as necessary immediately after the reform commencement so that those rate provisions instead directly specify, as that rate of pay, the rate as determined by the provisions for the reform comparison day.
(2) Subsection (1) does not apply to the rate provisions included in the preserved APCS derived from the pre‑reform federal wage instrument referred to in paragraph (b) of the definition of pre‑reform federal wage instrument in section 90B.
(3) If the rate provisions included in a preserved APCS as mentioned in section 90ZD determine a basic periodic rate of pay by (or by referring to) a pro‑rata disability pay method, subsection (1) applies to any other rate of pay that the method refers to, but does not otherwise apply to the method.
(4) If the rate provisions included in a preserved APCS as mentioned in section 90ZD determine a basic piece rate of pay by (or by referring to) a method, subsection (1) does not apply to the rate provisions that determine that rate.
(5) The regulations may provide for other situations in which subsection (1) is not to apply to rate provisions, or is to apply with specified modifications.
Note: For when regulations made for the purpose of subsection (5) may be expressed to take effect, see section 90ZI.
Casual loading provisions
(6) If casual loading provisions included in a preserved APCS as mentioned in section 90ZD would, apart from this subsection, determine a loading otherwise than by direct specification of the loading, then the APCS is taken to be adjusted as necessary immediately after the reform commencement so that those loading provisions instead directly specify, as that loading, the loading as determined by the provisions for the reform comparison day.
90ZF Notional adjustment: deducing basic periodic rate of pay and casual loading from composite rate
If:
(a) a particular rate of pay determined by rate provisions included in a preserved APCS as mentioned in section 90ZD would, apart from this subsection, be a basic periodic rate of pay for a casual employee; and
(b) the rate of pay is, by an amount (the inbuilt casual loading amount), higher than it would have been if the employee had not been a casual employee; and
(c) apart from this subsection, the preserved APCS does not contain casual loading provisions that determine a casual loading for the employee;
the APCS is taken to be adjusted as necessary immediately after the reform commencement so that:
(d) the rate provisions instead determine a basic periodic rate of pay for the employee that equals the rate referred to in paragraph (a), reduced by the inbuilt casual loading amount; and
(e) the preserved APCS contains casual loading provisions that determine a casual loading for the employee that equals the inbuilt casual loading amount.
90ZG Notional adjustment: how basic periodic rates and loadings are expressed
(1) If a particular basic periodic rate of pay determined by rate provisions included in a preserved APCS as mentioned in section 90ZD would, apart from this subsection, be expressed as a monetary amount for a period other than an hour (for example, it would be expressed as a rate for a week), the rate provisions are taken to be adjusted as necessary immediately after the reform commencement so that they produce the result that the rate is expressed as the equivalent monetary hourly rate.
(2) If a particular casual loading determined by casual loading provisions included in a preserved APCS as mentioned in section 90ZD would, apart from this subsection, be expressed as an amount of money that is to be added to a basic periodic rate of pay, the loading provisions are taken to be adjusted as necessary immediately after the reform commencement so that they produce the result that the loading is expressed as the equivalent percentage of the basic periodic rate of pay.
90ZH Regulations dealing with notional adjustments
(1) The regulations may provide for other adjustments (including by determining methods for working out adjustments) that are to be taken to be made to a preserved APCS.
(2) The regulations may determine methods for working out the adjustments mentioned in any of sections 90ZE to 90ZG, or may otherwise clarify the operation of any aspect of those sections. Those sections have effect accordingly.
Note: For when regulations made for the purpose of this section may be expressed to take effect, see section 90ZI.
90ZI Certain regulations relating to preserved APCSs may take effect before registration
(1) This section applies to regulations made for the purpose of any of the following provisions:
(a) paragraph (c) or (d) of the definition of pre‑reform federal wage instrument in section 90B;
(b) paragraph (c) or (d) of the definition of pre‑reform State wage instrument in section 90B;
(c) paragraph (b) or (c) of the definition of pre‑reform Territory wage instrument in section 90B;
(d) subsection 90ZD(3) or (4);
(e) subsection 90ZE(5);
(f) section 90ZH.
(2) Despite subsection 12(2) of the Legislative Instruments Act 2003, regulations to which this section applies may be expressed to take effect from a date before the regulations are registered under that Act.
(3) If regulations to which this section applies take effect before their registration under the Legislative Instruments Act 2003, those regulations are not to be taken into account in determining the effect of sections 90F, 90H, 90L, 90M and 90N in relation to periods of employment before the registration of those regulations.
Subdivision I—Australian Pay and Classification Scales: new APCSs
90ZJ AFPC may determine new APCSs
(1) The AFPC may determine an APCS (a new APCS).
(2) The power to determine a new APCS is subject to:
(a) sections 90 and 90A; and
(b) section 90L; and
(c) section 90M; and
(d) section 90N; and
(e) section 90O; and
(f) section 90X; and
(g) section 90Y; and
(h) Subdivision L; and
(i) section 90ZR.
Subdivision J—Australian Pay and Classification Scales: duration, adjustment and revocation of APCSs (preserved or new)
90ZK Duration of APCSs
An APCS continues to have effect indefinitely (subject to revocation or adjustment by the AFPC under this Subdivision, and to the rules in section 90ZA about when one APCS prevails over another).
90ZL Adjustment of APCSs
(1) The AFPC may adjust an APCS.
(2) The power to adjust an APCS is subject to:
(a) sections 90 and 90A; and
(b) section 90L; and
(c) section 90M; and
(d) section 90N; and
(e) section 90O; and
(f) section 90X; and
(g) section 90Y; and
(h) Subdivision K; and
(i) section 90ZR.
90ZM Revocation of APCSs
(1) The AFPC may revoke an APCS.
(2) The power to revoke an APCS is subject to:
(a) sections 90 and 90A; and
(b) section 90L; and
(c) section 90M; and
(d) section 90N; and
(e) section 90ZR.
Subdivision K—Adjustments to incorporate 2005 Safety Net Review etc.
90ZN Adjustments to incorporate 2005 Safety Net Review
(1) This section applies in relation to a preserved APCS if:
(a) the APCS is derived from a pre‑reform federal wage instrument referred to in paragraph (a) of the definition of pre‑reform federal wage instrument in section 90B; and
(b) either:
(i) in accordance with the Commission’s wage fixing principles that applied at that time, the Commission (before the reform commencement) adjusted the instrument in accordance with the Commission’s 2004 Safety Net Review decision; or
(ii) the instrument took effect after the Commission’s 2004 Safety Net Review decision; and
(c) the Commission did not, before the reform commencement, adjust the instrument in accordance with the Commission’s 2005 Safety Net Review decision.
(2) The AFPC must adjust the rate provisions of the preserved APCS to increase rates in accordance with the Commission’s 2005 Safety Net Review decision (if applicable), except to the extent that the AFPC is satisfied it is not appropriate to do so because of the effect of subsection 90ZD(3A).
(3) The adjustment must be made as part of the first exercise of the powers of the AFPC under this Division.
(4) After the adjustment has been made, section 90L has effect in relation to an employee as if the adjustment had been made to the pre‑reform federal wage instrument immediately before the reform commencement.
Note: This subsection ensures that the post‑adjustment rate is the rate against which compliance with the guarantee in section 90L is measured.
90ZO Regulations may require adjustments to incorporate other decisions
(1) The regulations may require the AFPC to adjust rate provisions in a class of preserved APCSs that are derived from non‑federal pre‑reform wage instruments to increase rates to take account of decisions that were made before the reform commencement but that were not given effect to in those instruments before the reform commencement.
(2) Regulations made for the purposes of subsection (1) may also modify how section 90L applies in relation to any APCSs that are so adjusted.
Subdivision L—Special provisions relating to APCSs for employees with disabilities and employees to whom training arrangements apply
90ZP Employees with disabilities
(1) If the AFPC considers that there should be an APCS that applies to all, or a class of, employees with a disability that determines basic periodic rates of pay for those employees, the AFPC must determine an APCS containing rate provisions that determine basic periodic rates of pay for those employees, and that so determines those rates as rates specific to employees with disabilities.
Note: The usual provisions relating to the content of an APCS apply (see Subdivision G).
(2) The determination of the APCS must include a statement to the effect that it is determined for the purpose of this section.
Note: APCSs determined for the purpose of this section generally prevail over all other APCSs—see section 90ZA.
(3) The APCS (the special APCS) is taken not to cover the employment of a particular employee if:
(a) there is another APCS that covers the employment of the employee (disregarding the effect that paragraph 90ZA(2)(b) would otherwise have because of the special APCS); and
(b) that other APCS determines a basic periodic rate of pay specifically for a particular class of employees with disabilities; and
(c) the employee’s employment is covered by that other APCS because the employee is a member of that class; and
(d) that class is the same as, or is a subclass of, the employees whose employment would otherwise be covered by the special APCS.
(4) This section does not limit the powers of the AFPC to determine APCSs, or to revoke or adjust APCSs (including APCSs determined for the purpose of this section).
90ZQ Employees to whom training arrangements apply
(1) If the AFPC considers that there should be an APCS that applies to all, or a class of, employees to whom training arrangements apply that determines basic periodic rates of pay that are payable to those employees, the AFPC must determine an APCS containing rate provisions that determine basic periodic rates of pay to be payable to those employees, and that so determines those rates as rates specific to employees to whom training arrangements apply.
Note: The usual provisions relating to the content of an APCS apply (see Subdivision G).
(2) The determination of the APCS must include a statement to the effect that it is determined for the purpose of this section.
Note: APCSs determined for the purpose of this section generally prevail over all other APCSs—see section 90ZA.
(3) The APCS (the special APCS) is taken not to cover the employment of a particular employee if:
(a) there is another APCS that covers the employment of the employee (disregarding the effect that paragraph 90ZA(2)(b) would otherwise have because of the special APCS); and
(b) that other APCS determines a basic periodic rate of pay specifically for a particular class of employees to whom training arrangements apply; and
(c) the employee’s employment is covered by that other APCS because the employee is a member of that class; and
(d) that class is the same as, or is a subclass of, the employees whose employment would otherwise be covered by the special APCS.
(4) The AFPC must, as part of the first exercise of the powers of the AFPC under this Division, consider whether it should determine APCSs for the purpose of this section. This does not limit the AFPC’s power to consider whether it should determine APCSs for the purpose of this section at other times.
(5) This section does not limit the powers of the AFPC to determine APCSs, or to revoke or adjust APCSs (including APCSs determined for the purpose of this section).
Subdivision M—Miscellaneous
90ZR Anti‑discrimination considerations
(1) Without limiting sections 90 and 90A, in exercising any of its powers under this Division, the AFPC is to:
(a) apply the principle that men and women should receive equal remuneration for work of equal value; and
(b) have regard to the need to provide pro‑rata disability pay methods for employees with disabilities; and
(c) take account of the principles embodied in the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004 relating to discrimination in relation to employment; and
(d) take account of the principles embodied in the Family Responsibilities Convention, in particular those relating to:
(i) preventing discrimination against workers who have family responsibilities; or
(ii) helping workers to reconcile their employment and family responsibilities; and
(e) ensure that its decisions do not contain provisions that discriminate because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(2) For the purposes of the Acts referred to in paragraph (1)(c), and of paragraph (1)(e), the AFPC does not discriminate against an employee or employees by (in accordance with this Division) determining or adjusting rate provisions in an APCS that determine a basic periodic rate of pay, or by (in accordance with this Division) determining or adjusting a special FMW, for:
(a) all junior employees, or a class of junior employees; or
(b) all employees with a disability, or a class of employees with a disability; or
(c) all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.
Division 3—Maximum ordinary hours of work
Subdivision A—Preliminary
91 Employees to whom Division applies
This Division applies to all employees.
91A Definitions
In this Division:
authorised leave means leave, or an absence, whether paid or unpaid, that is authorised:
(a) by an employee’s employer; or
(b) by or under a term or condition of an employee’s employment; or
(c) by or under a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory.
employee means an employee to whom this Division applies under section 91.
91B Agreement between employees and employers
Via a workplace agreement
(1) For the purposes of this Division, an employee and an employer are taken to agree about a particular matter in a particular way if a provision of a workplace agreement binding the employee and the employer specifies that the matter is to be dealt with in that way.
Via an award
(2) For the purposes of this Division, an employee and an employer are taken to agree about a particular matter in a particular way if a term of an award that binds the employee and the employer specifies that the matter is to be dealt with in that way.
Via other means
(3) To avoid doubt, nothing in this section prevents employees and employers agreeing about matters by other means.
Subdivision B—Guarantee of maximum ordinary hours of work
91C The guarantee
(1) An employee must not be required or requested by an employer to work more than:
(a) either:
(i) 38 hours per week; or
(ii) subject to subsection (3), if the employee and the employer agree in writing that the employee’s hours of work are to be averaged over a specified averaging period that is no longer than 12 months—an average of 38 hours per week over that averaging period; and
(b) reasonable additional hours.
Note 1: An employee and an employer may agree that the employee is to work less than 38 hours per week, or less than an average of 38 hours per week over the employee’s averaging period.
Note 2: A requirement for an employee to work a particular number of hours may come, for example, from an award or a workplace agreement.
Calculating the number of hours worked
(2) For the purposes of paragraph (1)(a), in calculating the number of hours that an employee has worked in a particular week, or the average number of hours that an employee has worked per week over an averaging period, the hours worked by the employee are taken to include any hours of authorised leave taken by the employee during the week, or during that period.
Start of averaging period
(3) For the purpose of subparagraph (1)(a)(ii), if an employee starts to work for an employer after the start of a particular averaging period that applies to the employee, that averaging period is taken, in relation to the employee, not to include the period before the employee started to work for the employer.
Reasonable additional hours
(5) For the purposes of paragraph (1)(b), in determining whether additional hours that an employee is required or requested by an employer to work are reasonable additional hours, all relevant factors must be taken into account. Those factors may include, but are not limited to, the following:
(a) any risk to the employee’s health and safety that might reasonably be expected to arise if the employee worked the additional hours;
(b) the employee’s personal circumstances (including family responsibilities);
(c) the operational requirements of the workplace, or enterprise, in relation to which the employee is required or requested to work the additional hours;
(d) any notice given by the employer of the requirement or request that the employee work the additional hours;
(e) any notice given by the employee of the employee’s intention to refuse to work the additional hours;
(f) whether any of the additional hours are on a public holiday;
(g) the employee’s hours of work over the 4 weeks ending immediately before the employee is required or requested to work the additional hours.
Note: An employee and an employer may agree that the employee may take breaks during any additional hours worked by the employee.
Definition
(6) In this section:
public holiday means:
(a) a day declared by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of that State or Territory, as a public holiday by people who work in that State, Territory or region, other than:
(i) a union picnic day; or
(ii) a day, or kind of day, that is excluded by regulations made for the purposes of this paragraph from counting as a public holiday; or
(b) a day that, under (or in accordance with a procedure under) a law of a State or Territory, or an award or workplace agreement, is substituted for a day referred to in paragraph (a).
Division 4—Annual leave
Subdivision A—Preliminary
92 Employees to whom Division applies
This Division applies to all employees other than casual employees.
92A Definitions
In this Division:
annual leave has the meaning given by subsection 92D(1).
authorised leave means leave, or an absence, whether paid or unpaid, that is authorised:
(a) by an employee’s employer; or
(b) by or under a term or condition of an employee’s employment; or
(c) by or under a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory.
basic periodic rate of pay has the meaning given by section 90B.
Note: See also section 92C.
continuous service, in relation to a period of an employee’s service with an employer, means service with the employer as an employee (other than a casual employee) during the whole of the period, including (as a part of the period) any period of authorised leave.
employee means an employee to whom this Division applies under section 92.
nominal hours worked has the meaning given by section 92AA.
Note: See also section 92C.
piece rate employee means an employee who is paid a piece rate of pay within the meaning of section 90B.
public holiday means:
(a) a day declared by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of that State or Territory, as a public holiday by people who work in that State, Territory or region, other than:
(i) a union picnic day; or
(ii) a day, or kind of day, that is excluded by regulations made for the purposes of this paragraph from counting as a public holiday; or
(b) a day that, under (or in accordance with a procedure under) a law of a State or Territory, or an award or workplace agreement, is substituted for a day referred to in paragraph (a).
shift worker means:
(a) an employee who:
(i) is employed in a business in which shifts are continuously rostered 24 hours a day for 7 days a week; and
(ii) is regularly rostered to work those shifts; and
(iii) regularly works on Sundays and public holidays; or
(b) an employee of a type that is prescribed by regulations made for the purposes of this paragraph.
92AA Meaning of nominal hours worked
Employees employed to work a specified number of hours
(1) For the purposes of this Division, if an employee is employed by an employer to work a specified number of hours per week, the number of nominal hours worked, by the employee for the employer during a week, is to be worked out as follows:
(a) start with that specified number of hours;
(b) deduct all of the following:
(i) the number of hours (if any) in the week when the employee is absent from his or her work for the employer on leave which does not count as service;
(ii) the number of hours (if any) in the week (other than hours mentioned in subparagraph (i)) in relation to which the employer is prohibited by section 114 from making a payment to the employee.
Note: The actual hours worked from week to week by an employee who is employed to work a specified number of hours per week may vary, due to averaging as mentioned in section 91C or to some other kind of flexible working hours scheme that applies to the employee’s employment.
(2) If an employee is employed on a full‑time basis, but the terms and conditions of the employee’s employment do not determine the number of hours in a week that is to constitute employment on a full‑time basis for the employee, the employee is, for the purpose of subsection (1), taken to be employed to work 38 hours per week.
(3) If an employee is employed to work a specified number (the number of non‑week specified hours) of hours over a period (the non‑week period) that is not a week (for example, a fortnight), then, for the purpose of subsection (1), the employee is taken to be employed to work the number of hours per week determined, subject to the regulations (if any), in accordance with the formula:
Employees not employed to work a specified number of hours
(4) For the purposes of this Division, if subsection (1) does not apply to the employment of an employee by an employer, the number of nominal hours worked, by the employee for the employer during a week, is the lesser of the following:
(a) the number worked out as follows:
(i) start with the number of hours (if any) in the week that the employee both works, and is required or requested to work, for the employer;
(ii) add the number of hours (if any) in the week when the employee is absent from his or her work for the employer on leave that counts as service;
(iii) deduct the number of hours (if any) in the week in relation to which the employer is prohibited by section 114 from making a payment to the employee;
(b) the number of nominal hours the employee would be taken to have worked for the employer under subsection (1) during the week if the employee were employed to work 38 hours per week.
Definition
(5) In this section:
hour includes a part of an hour.
Note 1: The regulations may prescribe a different definition of nominal hours worked for piece rate employees (see section 92C).
Note 2: An employee’s hours of work may be varied (by number or time) in accordance with a workplace agreement, award or contract of employment that binds the employee and his or her employer.
Note 3: For whether leave guaranteed under this Part counts as service, see subsections 92I(2) (annual leave), 93T(2) (paid personal leave), 93U(2) (unpaid carer’s leave) and 94ZZB(2) (parental leave).
Note 4: Because of the definition of hour in subsection (5), an employee’s nominal hours worked may be a number of hours and part of an hour.
92B Agreement between employees and employers
Via a workplace agreement
(1) For the purposes of this Division, an employee and an employer are taken to agree about a particular matter in a particular way if a provision of a workplace agreement binding the employee and the employer specifies that the matter is to be dealt with in that way.
Via other means
(2) To avoid doubt, nothing in this section prevents employees and employers agreeing about matters by other means.
92C Regulations may prescribe different definitions for piece rate employees
The regulations may prescribe:
(a) a different definition of basic periodic rate of pay for the purpose of the application of this Division in relation to piece rate employees; and
(b) a different definition of nominal hours worked for the purpose of the application of this Division in relation to piece rate employees.
Subdivision B—Guarantee of annual leave
92D The guarantee
(1) For the purposes of this Division, annual leave means leave to which an employee is entitled under this Subdivision.
All employees to whom this Division applies
(2) An employee is entitled to accrue an amount of paid annual leave, for each completed 4 week period of continuous service with an employer, of 1/13 of the number of nominal hours worked by the employee for the employer during that 4 week period.
Example: An employee whose nominal hours worked for a 12 month period were 38 hours per week would be entitled under this subsection to 152 hours of annual leave (which would be the equivalent of 4 weeks of annual leave if his or her nominal hours worked remained unchanged).
Additional leave entitlement for shift workers
(3) An employee is also entitled to accrue an amount of paid annual leave, for each completed 12 month period of continuous service with an employer, of 1/52 of the number of nominal hours worked by the employee, for the employer, as a shift worker during that 12 month period.
Example: A shift worker whose nominal hours worked for a 12 month period were 38 hours per week, and who worked as a shift worker throughout that period, would be entitled under this subsection to an additional 38 hours of annual leave (which would be the equivalent of one week of annual leave if his or her nominal hours worked remained unchanged).
92E Entitlement to cash out annual leave
(1) An employee is entitled to forgo an entitlement to take an amount of annual leave credited to the employee by an employer if:
(a) a provision in a workplace agreement binding the employee and the employer entitles the employee to forgo the entitlement to the amount of annual leave; and
(b) the employee gives the employer a written election to forgo the amount of annual leave; and
(c) a provision in a workplace agreement binding the employee and the employer entitles the employee to receive pay in lieu of the amount of annual leave at a rate that is no less than the employee’s basic periodic rate of pay at the time that the election is made; and
(d) the employer authorises the employee to forgo the amount of annual leave.
Note: If, under this section, an employee forgoes an entitlement to take an amount of annual leave, the employee’s employer may deduct that amount from the amount of accrued annual leave credited to the employee.
(2) However, during each 12 month period, an employee is not entitled to forgo an amount of annual leave credited to the employee by an employer that is equal to more than 1/26 of the nominal hours worked by the employee for the employer during the period.
(3) An employer must not:
(a) require an employee to forgo an entitlement to take an amount of annual leave; or
(b) exert undue influence or undue pressure on an employee in relation to the making of a decision by the employee whether or not to forgo an entitlement to take an amount of annual leave.
(4) If, under this section, an employee forgoes an entitlement to take an amount of annual leave, the employer must, within a reasonable period, give the employee the amount of pay that the employee is entitled to receive in lieu of the amount of annual leave.
Subdivision C—Annual leave rules
92F Annual leave—accrual, crediting and accumulation rules
Accrual
(1) Annual leave accrues on a pro‑rata basis.
Crediting
(2) Each month an employer must credit to an employee of the employer the amount (if any) of annual leave accrued by the employee under subsection 92D(2) since the employer last credited to the employee an amount of annual leave accrued under that subsection.
(3) Each year an employer must credit to an employee of the employer the amount (if any) of annual leave accrued by the employee under subsection 92D(3) since the employer last credited to the employee an amount of annual leave accrued under that subsection.
Accumulation
(4) Annual leave is cumulative.
92G Annual leave—payment rules
(1) If an employee takes annual leave during a period, the annual leave must be paid at a rate that is no less than the employee’s basic periodic rate of pay immediately before the period begins.
(2) If the employment of an employee who has not taken an amount of accrued annual leave ends at a particular time, the employee’s untaken accrued annual leave must be paid at a rate that is no less than the employee’s basic periodic rate of pay at that time.
92H Rules about taking annual leave
General rules
(1) Subject to this section and section 92E, an employee is entitled to take an amount of annual leave during a particular period if:
(a) at least that amount of annual leave is credited to the employee; and
(b) the employee’s employer has authorised the employee to take the annual leave during that period.
(2) To avoid doubt, there is no maximum or minimum limit on the amount of annual leave that an employer may authorise an employee to take.
(3) Any authorisation given by an employer enabling an employee to take annual leave during a particular period is subject to the operational requirements of the workplace or enterprise in respect of which the employee is employed.
(4) An employer must not unreasonably:
(a) refuse to authorise an employee to take an amount of annual leave that is credited to the employee; or
(b) revoke an authorisation enabling an employee to take annual leave during a particular period.
Shut downs
(5) An employee must take an amount of annual leave during a particular period if:
(a) the employee is directed to do so by the employee’s employer because, during that period, the employer shuts down the business, or any part of the business, in which the employee works; and
(b) at least that amount of annual leave is credited to the employee.
Extensive accumulated annual leave
(6) An employee must take an amount of annual leave during a particular period if:
(a) the employee is directed to do so by his or her employer; and
(b) at the time that the direction is given, the employee has annual leave credited to him or her of more than 1/13 of the number of nominal hours worked by the employee for the employer during the period of 104 weeks ending at the time that the direction is given; and
(c) the amount of annual leave that the employee is directed to take is less than, or equal to, 1/4 of the amount of credited annual leave of the employee at the time that the direction is given.
92HA Annual leave and workers’ compensation
This Division does not apply to the extent that it is inconsistent with a provision of a law of the Commonwealth, a State or a Territory relating to workers’ compensation if the provision would (apart from this Division):
(a) prevent an employee from taking or accruing annual leave during a period while the employee is receiving compensation under such a law; or
(b) restrict the amount of annual leave an employee may take or accrue during such a period.
Subdivision D—Service: annual leave
92I Annual leave—service
(1) A period of annual leave does not break an employee’s continuity of service.
(2) Annual leave counts as service for all purposes except as prescribed by the regulations.
Division 5—Personal leave
Subdivision A—Preliminary
93 Employees to whom Division applies
(1) Subject to this section, this Division applies to all employees other than casual employees.
(2) This Subdivision, Subdivision C and sections 93O and 93P apply to all employees.
93A Definitions
In this Division:
authorised leave means leave, or an absence, whether paid or unpaid, that is authorised:
(a) by an employee’s employer; or
(b) by or under a term or condition of an employee’s employment; or
(c) by or under a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory.
carer’s leave has the meaning given by paragraph 93D(b).
child includes the following:
(a) an adopted child;
(b) a stepchild;
(c) an exnuptial child;
(d) an adult child.
compassionate leave has the meaning given by subsection 93Q(1).
continuous service, in relation to a period of an employee’s service with an employer, means service with the employer as an employee (other than a casual employee) during the whole of the period, including (as a part of the period) any period of authorised leave.
de facto spouse, of an employee, means a person of the opposite sex to the employee who lives with the employee as the employee’s husband or wife on a genuine domestic basis although not legally married to the employee.
employee, when used in a provision of this Division, means an employee to whom the provision applies under section 93.
immediate family: the following are members of an employee’s immediate family:
(a) a spouse, child, parent, grandparent, grandchild or sibling of the employee;
(b) a child, parent, grandparent, grandchild or sibling of a spouse of the employee.
medical certificate means a certificate signed by a registered health practitioner.
nominal hours worked has the meaning given by section 93AA.
Note: See also section 93C.
permissible occasion, for unpaid carer’s leave, has the meaning given by subsection 93J(1).
personal/carer’s leave has the meaning given by section 93D.
piece rate employee means an employee who is paid a piece rate of pay within the meaning of section 90B.
registered health practitioner means a health practitioner registered, or licensed, as a health practitioner (or as a health practitioner of a particular type) under a law of a State or Territory that provides for the registration or licensing of health practitioners (or health practitioners of that type).
sick leave has the meaning given by paragraph 93D(a).
spouse includes the following:
(a) a former spouse;
(b) a de facto spouse;
(c) a former de facto spouse.
93AA Meaning of nominal hours worked
Employees employed to work a specified number of hours
(1) For the purposes of this Division, if an employee is employed by an employer to work a specified number of hours per week, the number of nominal hours worked, by the employee for the employer during a week, is to be worked out as follows:
(a) start with that specified number of hours;
(b) deduct all of the following:
(i) the number of hours (if any) in the week when the employee is absent from his or her work for the employer on leave which does not count as service;
(ii) the number of hours (if any) in the week (other than hours mentioned in subparagraph (i)) in relation to which the employer is prohibited by section 114 from making a payment to the employee.
Note: The actual hours worked from week to week by an employee who is employed to work a specified number of hours per week may vary, due to averaging as mentioned in section 91C or to some other kind of flexible working hours scheme that applies to the employee’s employment.
(2) If an employee is employed on a full‑time basis, but the terms and conditions of the employee’s employment do not determine the number of hours in a week that is to constitute employment on a full‑time basis for the employee, the employee is, for the purpose of subsection (1), taken to be employed to work 38 hours per week.
(3) If an employee is employed to work a specified number (the number of non‑week specified hours) of hours over a period (the non‑week period) that is not a week (for example, a fortnight), then, for the purpose of subsection (1), the employee is taken to be employed to work the number of hours per week determined, subject to the regulations (if any), in accordance with the formula:
Employees not employed to work a specified number of hours
(4) For the purposes of this Division, if subsection (1) does not apply to the employment of an employee by an employer, the number of nominal hours worked, by the employee for the employer during a week, is the lesser of the following:
(a) the number worked out as follows:
(i) start with the number of hours (if any) in the week that the employee both works, and is required or requested to work, for the employer;
(ii) add the number of hours (if any) in the week when the employee is absent from his or her work for the employer on leave that counts as service;
(iii) deduct the number of hours (if any) in the week in relation to which the employer is prohibited by section 114 from making a payment to the employee;
(b) the number of nominal hours the employee would be taken to have worked for the employer under subsection (1) during the week if the employee were employed to work 38 hours per week.
Definition
(5) In this section:
hour includes a part of an hour.
Note 1: The regulations may prescribe a different definition of nominal hours worked for piece rate employees (see section 93C).
Note 2: An employee’s hours of work may be varied (by number or time) in accordance with a workplace agreement, award or contract of employment that binds the employee and his or her employer.
Note 3: For whether leave guaranteed under this Part counts as service, see subsections 92I(2) (annual leave), 93T(2) (paid personal leave), 93U(2) (unpaid carer’s leave) and 94ZZB(2) (parental leave).
Note 4: Because of the definition of hour in subsection (5), an employee’s nominal hours worked may be a number of hours and part of an hour.
93B Agreement between employees and employers
Via a workplace agreement
(1) For the purposes of this Division, an employee and an employer are taken to agree about a particular matter in a particular way if a provision of a workplace agreement binding the employee and the employer specifies that the matter is to be dealt with in that way.
Via other means
(2) To avoid doubt, nothing in this section prevents employees and employers agreeing about matters by other means.
93C Regulations may prescribe different definitions for piece rate employees
The regulations may prescribe a different definition of nominal hours worked for the purpose of the application of this Division in relation to piece rate employees.
93D Meaning of personal/carer’s leave
For the purposes of this Division, personal/carer’s leave is:
(a) paid leave (sick leave) taken by an employee because of a personal illness, or injury, of the employee; or
(b) paid or unpaid leave (carer’s leave) taken by an employee to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:
(i) a personal illness, or injury, of the member; or
(ii) an unexpected emergency affecting the member.
Subdivision B—Guarantee of paid personal/carer’s leave
93E The guarantee
(1) Subject to this Subdivision, an employee is entitled to paid personal/carer’s leave if the employee complies with the notice and documentation requirements under Subdivision D, to the extent to which they apply to the employee.
Note: The entitlement is subject to the restrictions in sections 93F, 93H and 93I.
(2) An employee is taken not to have been entitled to a period of paid personal/carer’s leave at any time after the start of the period if:
(a) Subdivision D:
(i) required the employee to give notice or a document (the required notice or document) to his or her employer; and
(ii) allowed the employee to give the required notice or document to his or her employer after the start of the leave; and
(b) when the employee started the leave, the employee had not given his or her employer the required notice or document; and
(c) the employee did not later give the required notice or document to his or her employer within the period required under Subdivision D.
Note: Under Subdivision D, an employee may be required to give his or her employer notice, a medical certificate or a statutory declaration (depending on the circumstances).
93F Paid personal/carer’s leave—accrual, crediting and accumulation rules
Entitlement to take credited leave
(1) Subject to this Subdivision, an employee is entitled to take an amount of paid personal/carer’s leave if, under this section, that amount of leave is credited to the employee.
Accrual
(2) An employee is entitled to accrue an amount of paid personal/carer’s leave, for each completed 4 week period of continuous service with an employer, of 1/26 of the number of nominal hours worked by the employee for the employer during that 4 week period.
Example: An employee whose nominal hours worked for an employer each week over a 12 month period are 38 hours would be entitled to accrue 76 hours paid personal/carer’s leave (which would amount to 10 days of paid personal/carer’s leave for that employee) over the period.
(3) Paid personal/carer’s leave accrues on a pro‑rata basis.
Crediting
(4) Each month, an employer must credit to an employee of the employer the amount (if any) of paid personal/carer’s leave accrued by the employee since the employer last credited to the employee an amount of paid personal/carer’s leave accrued under this section.
Accumulation
(5) Paid personal/carer’s leave is cumulative.
93G Paid personal/carer’s leave—payment rule
If an employee takes paid personal/carer’s leave during a period, the employer must pay the employee for that period the amount the employee would reasonably have expected to be paid by the employer if the employee had worked during that period.
93H Paid personal/carer’s leave—workers’ compensation
(1) An employee is not entitled to take paid sick leave for a period during which the employee is absent from work because of a personal illness, or injury, for which the employee is receiving compensation payable under a law of the Commonwealth, a State or a Territory relating to workers’ compensation.
(2) Subject to subsection (1), this Division does not apply to the extent that it is inconsistent with a provision of a law of the Commonwealth, a State or a Territory relating to workers’ compensation if the provision would (apart from this Division):
(a) prevent an employee from taking or accruing paid personal/carer’s leave during a period while the employee is receiving compensation under such a law; or
(b) restrict the amount of paid personal/carer’s leave an employee may take or accrue during such a period.
93I Paid carer’s leave—annual limit
(1) This section applies to an employee if, at a particular time, the employee:
(a) is employed by an employer; and
(b) for a continuous period of at least 12 months immediately before the time, has been in continuous service with the employer.
(2) The employee is not entitled to take paid carer’s leave from his or her employment with the employer at the time if, during the period of 12 months ending at the time, the employee has already taken a total amount of paid carer’s leave from that employment of 1/26 of the nominal hours worked by the employee for the employer during that period.
Example: An employee whose nominal hours worked for an employer each week were 38 hours during a 12 month period of continuous service with the employer would not be entitled to take any paid carer’s leave from his or her employment with the employer if the employee had, during the period, already taken 76 hours paid carer’s leave (which amounted to 10 days paid carer’s leave for that employee) from that employment.
Subdivision C—Guarantee of unpaid carer’s leave
93J The guarantee
(1) Subject to this Subdivision, an employee is entitled to a period of up to 2 days unpaid carer’s leave for each occasion (a permissible occasion) when a member of the employee’s immediate family, or a member of the employee’s household, requires care or support during such a period because of:
(a) a personal illness, or injury, of the member; or
(b) an unexpected emergency affecting the member.
Note 1: This entitlement extends to casual employees (see section 93).
Note 2: The entitlement is subject to the restrictions in sections 93K and 93L.
(2) An employee is entitled to unpaid carer’s leave only if the employee complies with the notice and documentation requirements under Subdivision D, to the extent to which they apply to the employee.
(3) An employee is taken not to have been entitled to a period of unpaid carer’s leave at any time after the start of the period if:
(a) Subdivision D:
(i) required the employee to give notice or a document (the required notice or document) to his or her employer; and
(ii) allowed the employee to give the required notice or document to his or her employer after the start of the leave; and
(b) when the employee started the leave, the employee had not given his or her employer the required notice or document; and
(c) the employee did not later give the required notice or document to his or her employer within the period required under Subdivision D.
Note: Under Subdivision D, an employee may be required to give his or her employer notice, a medical certificate or a statutory declaration (depending on the circumstances).
93K Unpaid carer’s leave—how taken
An employee who is entitled to a period of unpaid carer’s leave under section 93J for a particular permissible occasion is entitled to take the unpaid carer’s leave as:
(a) a single, unbroken, period of up to 2 days; or
(b) any separate periods to which the employee and his or her employer agree.
93L Unpaid carer’s leave—paid personal leave exhausted
An employee is entitled to unpaid carer’s leave for a particular permissible occasion during a particular period only if the employee cannot take an amount of any of the following types of paid leave during the period:
(a) paid personal/carer’s leave;
(b) any other authorised leave of the same type as personal/carer’s leave.
Subdivision D—Notice and evidence requirements: personal/carer’s leave
93M Sick leave—notice
(1) To be entitled to sick leave during a period, an employee must give his or her employer notice in accordance with this section that the employee is (or will be) absent from his or her employment during the period because of a personal illness, or injury, of the employee.
(2) The notice must be given to the employer as soon as reasonably practicable (which may be at a time before or after the sick leave has started).
(3) The notice must be to the effect that the employee requires (or required) leave during the period because of a personal illness, or injury, of the employee.
(4) This section does not apply to an employee who could not comply with it because of circumstances beyond the employee’s control.
Note: The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.
93N Sick leave—documentary evidence
(1) This section applies if an employer requires an employee of the employer to give the employer documentary evidence in relation to a period of sick leave taken (or to be taken) by the employee.
(2) To be entitled to sick leave during the period, the employee must, in accordance with this section, give the employer a document (the required document) of whichever of the following types applies:
(a) if it is reasonably practicable to do so—a medical certificate from a registered health practitioner;
(b) if it is not reasonably practicable for the employee to give the employer a medical certificate—a statutory declaration made by the employee.
(3) The required document must be given to the employer as soon as reasonably practicable (which may be at a time before or after the sick leave has started).
(4) The required document must include a statement to the effect that:
(a) if the required document is a medical certificate—in the registered health practitioner’s opinion, the employee was, is, or will be unfit for work during the period because of a personal illness or injury; or
(b) if the required document is a statutory declaration—the employee was, is, or will be unfit for work during the period because of a personal illness or injury.
(5) This section does not apply to an employee who could not comply with it because of circumstances beyond the employee’s control.
Note: The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.
93O Carer’s leave—notice
(1) To be entitled to carer’s leave during a period, an employee must give his or her employer notice in accordance with this section.
(2) The notice must be given to the employer as soon as reasonably practicable (which may be at a time before or after the carer’s leave has started).
(3) The notice must be to the effect that the employee requires (or required) leave during the period to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires (or required) care or support because of:
(a) a personal illness, or injury, of the member; or
(b) an unexpected emergency affecting the member.
(4) This section does not apply to an employee who could not comply with it because of circumstances beyond the employee’s control.
Note: The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.
93P Carer’s leave—documentary evidence
(1) This section applies if an employer requires an employee of the employer to give the employer documentary evidence in relation to a period of carer’s leave taken (or to be taken) by the employee to provide care or support to a member of the employee’s immediate family or a member of the employee’s household.
(2) To be entitled to carer’s leave during the period, the employee must, in accordance with this section, give the employer a document (the relevant document) that is:
(a) if the care or support is required because of a personal illness, or injury, of the member—a medical certificate from a registered health practitioner, or a statutory declaration made by the employee; or
(b) if the care or support is required because of an unexpected emergency affecting the member—a statutory declaration made by the employee.
(3) The relevant document must be given to the employer as soon as reasonably practicable (which may be at a time before or after the carer’s leave has started).
(4) If the relevant document is a medical certificate, it must include a statement to the effect that, in the opinion of the registered health practitioner, the member had, has, or will have a personal illness or injury during the period.
(5) If the relevant document is a statutory declaration, it must include a statement to the effect that the employee requires (or required) leave during the period to provide care or support to the member because the member requires (or required) care or support during the period because of:
(a) a personal illness, or injury, of the member; or
(b) an unexpected emergency affecting the member.
(6) This section does not apply to an employee who could not comply with it because of circumstances beyond the employee’s control.
Note: The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.
Subdivision E—Guarantee of compassionate leave
93Q The guarantee
(1) For the purposes of this Division, compassionate leave is paid leave taken by an employee:
(a) for the purposes of spending time with a person who:
(i) is a member of the employee’s immediate family or a member of the employee’s household; and
(ii) has a personal illness, or injury, that poses a serious threat to his or her life; or
(b) after the death of a member of the employee’s immediate family or a member of the employee’s household.
(2) Subject to this Subdivision, an employee is entitled to a period of 2 days of compassionate leave for each occasion (a permissible occasion) when a member of the employee’s immediate family or a member of the employee’s household:
(a) contracts or develops a personal illness that poses a serious threat to his or her life; or
(b) sustains a personal injury that poses a serious threat to his or her life; or
(c) dies.
(3) However, the employee is entitled to compassionate leave only if the employee gives his or her employer any evidence that the employer reasonably requires of the illness, injury or death.
Note: The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.
93R Taking compassionate leave
(1) An employee who is entitled to a period of compassionate leave under section 93Q for a particular permissible occasion is entitled to take the compassionate leave as:
(a) a single, unbroken period of 2 days; or
(b) 2 separate periods of 1 day each; or
(c) any separate periods to which the employee and his or her employer agree.
(2) An employee who is entitled to a period of compassionate leave under section 93Q because a member of the employee’s immediate family or a member of the employee’s household has contracted or developed a personal illness, or sustained a personal injury, is entitled to start to take the compassionate leave at any time while the illness or injury persists.
93S Compassionate leave—payment rule
If an employee takes compassionate leave during a period, the employer must pay the employee for that period the amount the employee would reasonably have expected to be paid by the employer if the employee had worked during that period.
Subdivision F—Personal leave: service
93T Paid personal leave—service
(1) A period of paid personal leave does not break an employee’s continuity of service.
(2) Paid personal leave counts as service for all purposes except as prescribed by the regulations.
(3) In this section:
paid personal leave means paid personal/carer’s leave or compassionate leave.
93U Unpaid carer’s leave—service
(1) A period of unpaid carer’s leave does not break an employee’s continuity of service.
(2) However, a period of unpaid carer’s leave does not otherwise count as service except:
(a) as expressly provided by or under:
(i) a term or condition of the employee’s employment; or
(ii) a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory; or
(b) as prescribed by the regulations.
Division 6—Parental leave
Subdivision A—Preliminary
94 Employees to whom Division applies
This Division applies to all employees, other than casual employees who are not eligible casual employees.
94A Definitions
In this Division:
adoption agency means an agency, office, court or other entity that is authorised under a law of the Commonwealth, a State, a Territory or a foreign country to perform functions in relation to adoption.
adoption leave has the meaning given by subsection 94ZL(1).
authorised leave means leave, or an absence, whether paid or unpaid, that is authorised:
(a) by an employee’s employer; or
(b) by or under a term or condition of an employee’s employment; or
(c) by or under a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory.
continuous service, in relation to a period of an employee’s service with an employer, means service with the employer as an employee during the whole of the period, including (as a part of the period) any of the following periods:
(a) a period of authorised leave;
(b) a period (the casual period) during which the employee was a casual employee, if:
(i) during the casual period, the employee was engaged on a regular and systematic basis by the employer; and
(ii) during the casual period, the employee had a reasonable expectation of continuing employment by the employer.
day of placement: the day of placement of a child with an employee for an adoption is:
(a) subject to paragraph (b), the earlier of the following days:
(i) the day on which the employee first takes custody of the child for the adoption;
(ii) the day on which the employee starts any travel that is reasonably necessary to take custody of the child for the adoption; or
(b) if the child’s adoption by an employee is authorised by an adoption agency after the child has started living with the employee (unless the employee has travelled overseas to take custody of the child for an adoption intended to occur in Australia)—the day on which the adoption is authorised by the agency.
de facto spouse, of an employee, means a person of the opposite sex to the employee who lives with the employee as the employee’s husband or wife on a genuine domestic basis although not legally married to the employee.
eligible casual employee has the meaning given by section 94B.
eligible child has the meaning given by section 94ZJ.
employee means an employee to whom this Division applies under section 94.
expected date of birth, of a child of an employee who is or was pregnant, means:
(a) if, to comply with a requirement under Subdivision C, the employee has given her employer a medical certificate stating the expected date of birth of the child or a date that would be, or would have been, the expected date of birth of the child—the stated date; or
(b) if the employee could not comply with a requirement mentioned in paragraph (a) because of circumstances beyond her control—the date of birth of the child that could reasonably be expected if the pregnancy were to go to full term.
long adoption leave has the meaning given by paragraph 94ZL(1)(b).
long paternity leave has the meaning given by paragraph
94T(1)(b).
maternity leave has the meaning given by subsection 94C(1).
medical certificate means a certificate signed by a medical practitioner.
medical practitioner means a person registered, or licensed, as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.
ordinary maternity leave has the meaning given by paragraph 94C(1)(b).
paternity leave has the meaning given by subsection 94T(1).
placement, of a child, means:
(a) subject to paragraph (b)—the placement, by an adoption agency, of the child into the custody of an employee for adoption; or
(b) if the child’s adoption by an employee is authorised by an adoption agency after the child has started living with the employee—the authorisation of the adoption by the adoption agency.
Note: Day of placement is also defined in this section.
pre‑adoption leave has the meaning given by subsection 94ZK(2).
pregnancy‑related illness means an illness related to pregnancy.
primary care‑giver, of a child, means a person who assumes the principal role of providing care and attention to the child.
short adoption leave has the meaning given by paragraph 94ZL(1)(a).
short paternity leave has the meaning given by paragraph 94T(1)(a).
special maternity leave has the meaning given by paragraph 94C(1)(a).
spouse includes the following:
(a) a former spouse;
(b) a de facto spouse;
(c) a former de facto spouse.
94B Meaning of eligible casual employee
(1) For the purposes of this Division, an eligible casual employee is a casual employee:
(a) who has been engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months; and
(b) who, but for an expected birth or an expected placement of a child, would have a reasonable expectation of continuing engagement by the employer on a regular and systematic basis.
(2) Without limiting subsection (1), for the purposes of this Division, a casual employee is also an eligible casual employee if:
(a) the employee was engaged by a particular employer on a regular and systematic basis for a sequence of periods during a period (the first period of employment) of less than 12 months; and
(b) at the end of the first period of employment, the employee ceased, on the employer’s initiative, to be so engaged by the employer; and
(c) the employer later again engaged the employee on a regular and systematic basis for a further sequence of periods during a period (the second period of employment) that started not more than 3 months after the end of the first period of employment; and
(d) the combined length of the first period of employment and the second period of employment is at least 12 months; and
(e) the employee, but for an expected birth or an expected placement of a child, would have a reasonable expectation of continuing engagement by the employer on a regular and systematic basis.
Subdivision B—Guarantee of maternity leave
94C The guarantee
(1) For the purposes of this Division, maternity leave is:
(a) unpaid leave (special maternity leave) taken by an employee because:
(i) she is pregnant, and has a pregnancy‑related illness; or
(ii) she has been pregnant, and the pregnancy has ended within 28 weeks before the expected date of birth of the child otherwise than by the birth of a living child; or
(b) a single, unbroken period of unpaid leave (ordinary maternity leave) taken in respect of the birth, or the expected birth, of a child of an employee (other than leave taken as special maternity leave).
(2) Subject to this Subdivision and Subdivision D, an employee is entitled to maternity leave if:
(a) she complies with the documentation requirements under Subdivision C, to the extent to which they apply to her; and
(b) immediately before the expected date of birth of the child:
(i) she has, or will have, completed at least 12 months continuous service with her employer; or
(ii) she is, or will be, an eligible casual employee.
Note: Entitlement to maternity leave is subject to the restrictions in sections 94D and 94E and Subdivision D.
(3) An employee is taken not to have been entitled to a period of maternity leave at any time after the start of the period if:
(a) Subdivision C:
(i) required the employee to give a document (the required document) to her employer; and
(ii) allowed the employee to give the required document to her employer after the start of the leave; and
(b) when the employee started the leave, the employee had not given her employer the required document; and
(c) the employee did not later give the required document to her employer within the period required under Subdivision C.
Note: Under Subdivision C, an employee may be required to give her employer a medical certificate, an application or a statutory declaration (depending on the circumstances).
(4) Subject to this Division, an employee may take special maternity leave, ordinary maternity leave, or both.
94D Period of maternity leave
(1) In this section:
related authorised leave, in relation to maternity leave taken (or to be taken) by an employee, means any of the following types of authorised leave other than the maternity leave:
(a) authorised leave (other than paid leave under subparagraph 94F(2)(b)(i) or (ii)) taken by the employee because of any of the following:
(i) her pregnancy;
(ii) the birth of the child;
(iii) the end of her pregnancy otherwise than by the birth of a living child;
(iv) the death of the child;
(b) paternity leave, or any other authorised leave of the same type as paternity leave, taken by the employee’s spouse because of the birth of the child.
(2) An employee may take a period of maternity leave as part of a continuous period including any other authorised leave.
(3) The maximum total amount of maternity leave (including special maternity leave and ordinary maternity leave) to which an employee is entitled in relation to the birth of a child is 52 weeks, less an amount equal to the total amount of related authorised leave taken:
(a) by the employee before or after the maternity leave; and
(b) by the employee’s spouse before, during or after the maternity leave.
Example: Rosa is a pregnant employee entitled to maternity leave. She has taken 2 weeks of special maternity leave, but no other authorised leave. Rosa intends to take authorised leave because of the birth consisting of 4 weeks of annual leave and 12 weeks of long service leave, and a period of ordinary maternity leave.
Rosa’s spouse Jim intends to take 1 week of short paternity leave.
The maximum amount of ordinary maternity leave to which Rosa is entitled is 33 weeks, worked out as follows:
(a) the maximum entitlement of any employee to maternity leave is 52 weeks;
(b) the maximum amount of ordinary maternity leave available to Rosa must be reduced by 2 weeks for her special maternity leave;
(c) the maximum amount must also be reduced by 16 weeks for Rosa’s annual leave and long service leave;
(d) the maximum amount must be further reduced by 1 week for Jim’s short paternity leave.
94E Period of special maternity leave
(1) An employee is not entitled to a period of special maternity leave longer than the period stated in a medical certificate given to the employer for the purposes of section 94G.
Note: Section 94G requires an employee to give her employer a medical certificate (and other documents) in order to be entitled to special maternity leave. However, the section does not apply to an employee who could not comply with the section because of circumstances beyond her control (see subsection 94G(5)).
(2) In addition, a period of special maternity leave must end before the employee starts any continuous period of leave including (or constituted by) ordinary maternity leave.
94F Transfer to a safe job
(1) This section applies to an employee if:
(a) she is entitled to ordinary maternity leave; and
(b) she has already complied with the documentation requirements under sections 94H and 94I; and
(c) the employee gives her employer a medical certificate from a medical practitioner containing a statement to the effect that, in the medical practitioner’s opinion, the employee is fit to work, but that it is inadvisable for her to continue in her present position for a stated period because of:
(i) illness, or risks, arising out of her pregnancy; or
(ii) hazards connected with that position.
(2) If this section applies to an employee:
(a) if the employee’s employer thinks it to be reasonably practicable to transfer the employee to a safe job—the employer must transfer the employee to the safe job, with no other change to the employee’s terms and conditions of employment; or
(b) if the employee’s employer does not think it to be reasonably practicable to transfer the employee to a safe job:
(i) the employee may take paid leave immediately for a period ending at the time mentioned in paragraph (4)(b); or
(ii) the employer may require the employee to take paid leave immediately for a period ending at the time mentioned in paragraph (4)(b).
(3) If the employee takes paid leave under subparagraph (2)(b)(i) or (ii) during a period, the employer must pay the employee for that period the amount the employee would reasonably have expected to be paid by the employer if the employee had worked during that period.
(4) If the employee takes paid leave under subparagraph (2)(b)(i) or (ii):
(a) the entitlement to leave is in addition to any other leave entitlement she has; and
(b) the period of leave ends at the earliest of whichever of the following times is applicable:
(i) the end of the period stated in the medical certificate;
(ii) if the employee’s pregnancy results in the birth of a living child—the end of the day before the date of birth;
(iii) if the employee’s pregnancy ends otherwise than with the birth of a living child—the end of the day before the end of the pregnancy.
(5) To avoid doubt, this section applies whether the employee gives the medical certificate to the employer because of a request under subsection 94L(2) or otherwise.
Subdivision C—Maternity leave: documentation
94G Special maternity leave—documentation
Requirement for application
(1) To be entitled to special maternity leave during a period, an employee must give her employer a written application for special maternity leave, in accordance with this section, stating the first and last days of the period.
Pregnancy‑related illness—medical certificate
(2) An application for special maternity leave required because of a pregnancy‑related illness must be accompanied by a medical certificate from a medical practitioner containing the following statements of the medical practitioner’s opinion:
(a) a statement that the employee is pregnant;
(b) a statement of the expected date of birth;
(c) a statement to the effect that the employee is, was, or will be unfit to work for a stated period because of a pregnancy‑related illness.
End of pregnancy—medical certificate and statutory declaration
(3) An application for special maternity leave required because of the end of the employee’s pregnancy otherwise than by the birth of a living child must be accompanied by:
(a) a medical certificate from a medical practitioner containing the following statements of the medical practitioner’s opinion:
(i) a statement that the employee was pregnant, but that the pregnancy has ended otherwise than by the birth of a living child;
(ii) a statement of what the expected date of birth would have been if the pregnancy had gone to full term;
(iii) a statement that the pregnancy ended on a stated day within 28 weeks before the expected date of birth;
(iv) a statement to the effect that the employee is, was, or will be unfit for work during a stated period; and
(b) a statutory declaration made by the employee stating the following:
(i) the first and last days of the period (or periods) of any other authorised leave taken by the employee because of a pregnancy‑related illness or the end of the pregnancy;
(ii) that the employee will not engage in any conduct inconsistent with her contract of employment while on maternity leave.
Time for giving application to employer
(4) The application, medical certificate and statutory declaration (if required) must be given to the employer before, or as soon as reasonably practicable after, starting a continuous period of leave including (or constituted by) the special maternity leave.
Section does not apply if could not be complied with
(5) This section does not apply to an employee who could not comply with the section because of circumstances beyond her control.
Note: The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.
94H Ordinary maternity leave—medical certificate
Requirement for medical certificate
(1) To be entitled to ordinary maternity leave, an employee must give her employer a medical certificate from a medical practitioner in accordance with this section.
General rules
(2) The medical certificate must contain the following statements of the medical practitioner’s opinion:
(a) a statement that the employee is pregnant;
(b) a statement of the expected date of birth.
(3) The medical certificate mentioned in subsection (2) must be given to the employer no later than 10 weeks before the expected date of birth (as stated in the certificate).
Premature birth or other compelling reason
(4) However, subsections (2) and (3) do not apply if it was not reasonably practicable for a medical certificate mentioned in subsection (2) to be given to the employer by the time required by subsection (3) because of:
(a) the premature birth of the employee’s child; or
(b) any other compelling reason.
(5) If subsections (2) and (3) do not apply:
(a) subject to paragraph (b), as soon as reasonably practicable before the birth of the child (which may be at a time before or after the maternity leave has started) the employee must give the employer a medical certificate from a medical practitioner containing the following statements of the medical practitioner’s opinion:
(i) a statement that the employee is pregnant;
(ii) a statement of the expected date of birth if the pregnancy were to go to full term; or
(b) if it was not reasonably practicable for the employee to comply with paragraph (a) before the birth of the child—as soon as reasonably practicable after the birth of the child (which may be at a time before or after the maternity leave has started) the employee must give the employer a medical certificate from a medical practitioner containing the following statements of the medical practitioner’s opinion (or knowledge):
(i) a statement of the actual date of birth;
(ii) a statement of the expected date of birth as at the 70th day before the actual date of birth.
Section does not apply if could not be complied with
(6) This section does not apply to an employee who could not comply with the section because of circumstances beyond her control.
Note: The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.
94I Ordinary maternity leave—application
Requirement for application
(1) To be entitled to ordinary maternity leave during a period, an employee must give her employer a written application for ordinary maternity leave in accordance with this section stating the first and last days of the period.
General rule
(2) The application must be given to the employer no later than 4 weeks before the first day of the intended continuous period of leave including (or constituted by) ordinary maternity leave.
Premature birth or other compelling reason
(3) However, subsection (2) does not apply if it was not reasonably practicable for the employee to comply with it because of:
(a) the premature birth of the employee’s child; or
(b) any other compelling reason.
(4) If subsection (2) does not apply, the application must be made as soon as reasonably practicable (which may be at a time before or after the maternity leave has started).
Statutory declaration with application
(5) The application must be accompanied by a statutory declaration made by the employee stating the following:
(a) the first and last days of the period (or periods) of any other authorised leave (other than paid leave under subparagraph 94F(2)(b)(i) or (ii)) intended to be taken (or already taken) by the employee because of her pregnancy or the expected birth;
(b) the first and last days of the period (or periods) of any paternity leave, or any other authorised leave of the same type as paternity leave, intended to be taken (or already taken) by the employee’s spouse because of the expected birth;
(c) that the employee intends to be the child’s primary care‑giver at all times while on maternity leave;
(d) that the employee will not engage in any conduct inconsistent with her contract of employment while on maternity leave.
Section does not apply if could not be complied with
(6) This section does not apply to an employee who could not comply with the section because of circumstances beyond her control.
Note: The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.
Subdivision D—Maternity leave: from start to finish
94J Maternity leave—start of leave
Subject to section 94L, an employee may start a continuous period of leave including (or constituted by) ordinary maternity leave to which she is entitled at any time within 6 weeks before the expected date of birth of the child.
94K Requirement to take leave—for 6 weeks after birth
A continuous period of leave including (or constituted by) ordinary maternity leave must include a period of leave of at least 6 weeks starting from the date of birth of the child.
94L Requirement to take leave—within 6 weeks before birth
(1) This section applies to an employee if:
(a) she is entitled to ordinary maternity leave; and
(b) she has already complied with the documentation requirements under sections 94H and 94I.
(2) If the employee continues to work, during the period of 6 weeks before the expected date of birth, the employer may ask the employee to give the employer a medical certificate from a medical practitioner containing the following statement or statements of the medical practitioner’s opinion:
(a) a statement of whether the employee is fit to work;
(b) if, in the opinion of the medical practitioner, the employee is fit to work—a statement of whether it is inadvisable for the employee to continue in her present position for a stated period because of:
(i) illness, or risks, arising out of the pregnancy; or
(ii) hazards connected with the position.
Note: Under section 94F, the employee is entitled to be transferred to a safe job or to paid leave (depending on the circumstances) if the employee gives the employer a medical certificate stating that the employee is fit to work, but that illness or risks arising out of the employee’s pregnancy or hazards connected with the work assigned to the employee make it inadvisable for the employee to continue in her present position.
(3) The employer may require the employee to start a continuous period of leave including (or constituted by) maternity leave as soon as reasonably practicable, if the employee:
(a) does not give the employer the requested certificate within 7 days after the request; or
(b) within 7 days after the request for the certificate, gives the employer a medical certificate stating that the employee is unfit to work.
94M End of pregnancy—effect on ordinary maternity leave entitlement
(1) This section applies if the pregnancy of an employee ends otherwise than by the birth of a living child.
(2) If, when the pregnancy ended, the employee had not yet started a period of ordinary maternity leave, the employee is not, or is no longer, entitled to ordinary maternity leave in relation to the previously expected birth.
Note: However, the employee may be entitled to take special maternity leave because of the end of the pregnancy. An application for special maternity leave may be made after the leave has started (see section 94G).
(3) If, when the pregnancy ended, the employee had started a period of ordinary maternity leave, the employee’s entitlement to ordinary maternity leave in relation to the previously expected birth is not affected by the end of the pregnancy.
Note: The employee may shorten the period of ordinary maternity leave by agreement with the employer under section 94P. However, to take advantage of the return to work guarantee under section 94R, the employee must also give the employer at least 4 weeks written notice of the proposed day of her return to work.
94N Death of child—effect on ordinary maternity leave entitlement
(1) This section applies if:
(a) an employee gives birth to a living child, but the child later dies; and
(b) when the child died, the employee had started a period of ordinary maternity leave in relation to the child’s birth.
(2) Subject to subsections (3) and (4), the employee’s entitlement to the ordinary maternity leave is not affected by the death of the child.
Note: The employee may shorten the period of ordinary maternity leave by agreement with the employer under section 94P. However, to take advantage of the return to work guarantee under section 94R, the employee must also give the employer at least 4 weeks written notice of the proposed day of her return to work.
(3) The employee’s employer may give the employee written notice that, from a stated day, any untaken ordinary maternity leave that the employee remains entitled to at the stated day is cancelled with effect from that day.
(4) The day stated in the notice must be no earlier than the later of the following days:
(a) the day that is 4 weeks after the day the notice was given;
(b) the day that is 6 weeks after the date of birth.
(5) The employee’s entitlement to any untaken ordinary maternity leave in relation to the birth ends with effect from the day stated in the notice.
94O End of ordinary maternity leave if employee stops being primary care‑giver
(1) This section applies if:
(a) during a substantial period while an employee is on ordinary maternity leave after the birth of a living child, the employee is not the child’s primary care‑giver; and
(b) having regard to the length of that period and to any other relevant circumstances, it is reasonable to expect that the employee will not again become the child’s primary care‑giver within a reasonable period.
(2) The employee’s employer may give the employee written notice that, from a stated day no earlier than 4 weeks after the day the notice is given, any untaken ordinary maternity leave that the employee remains entitled to at the stated day is cancelled with effect from that day.
(3) The employee’s entitlement to any untaken ordinary maternity leave in relation to the birth ends with effect from the day stated in the notice.
94P Variation of period of ordinary maternity leave
(1) This section applies after an employee has started a continuous period of leave including (or constituted by) ordinary maternity leave.
(2) Subject to Subdivision B and sections 94N and 94O:
(a) the employee may extend the period of maternity leave once by giving her employer 14 days written notice before the end of the period stating the period by which the leave is extended; and
(b) the period of maternity leave may be further extended by agreement between the employee and her employer.
(3) Subject to section 94K, the period of maternity leave may be shortened by written agreement between the employee and her employer.
Note: However, to take advantage of the return to work guarantee under section 94R, the employee must also give her employer at least 4 weeks written notice of the proposed day for her return to work.
94Q Employee’s right to terminate employment during maternity leave
(1) An employee may terminate her employment at any time during a period of maternity leave or leave under subparagraph 94F(2)(b)(i) or (ii).
(2) The employee’s right to terminate her employment is subject to any notice required to be given by the employee by or under:
(a) a term or condition of her employment; or
(b) a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory.
94R Return to work guarantee—maternity leave
(1) This section applies to an employee who returns to work after a period of leave including (or constituted by) maternity leave (the maternity‑related leave period) if:
(a) the employee gives her employer written notice of the proposed day of her return to work no later than 4 weeks before that day; or
(b) the period of leave includes (or is constituted by) special maternity leave, and does not include any ordinary maternity leave; or
(c) the employee’s entitlement to ordinary maternity leave ends under section 94N or 94O.
(2) This section also applies if an employee returns to work after a period of leave under subparagraph 94F(2)(b)(i) or (ii).
(3) Subject to subsections (4) and (5), the employee is entitled to return:
(a) unless paragraph (b) or (c) applies—to the position she held immediately before the start of the maternity‑related leave period; or
(b) if she was promoted or voluntarily transferred to a new position (other than to a safe job under paragraph 94F(2)(a)) during the maternity‑related leave period—to the new position; or
(c) if paragraph (b) does not apply, and she began working part‑time because of her pregnancy—to the position she held immediately before starting to work part‑time.
(4) If subsection (3) would, apart from this subsection, entitle the employee to return to a position that the employee had been transferred to under paragraph 94F(2)(a), the employee is instead entitled to return to the position she held immediately before the transfer.
(5) If the position (the former position) no longer exists, and the employee is qualified and able to work for her employer in another position, the employee is entitled to return to:
(a) that position; or
(b) if there are 2 or more such positions—whichever position is nearest in status and remuneration to the former position.
94S Replacement employees—maternity leave
(1) Before an employer engages an employee (a primary replacement) to do the work of another employee because the other employee is taking a continuous period of leave including (or constituted by) maternity leave, the employer must tell the primary replacement:
(a) that the engagement to do that work is temporary; and
(b) what the rights of the employee taking maternity leave are under section 94R when she returns to work after the period of leave.
(2) Before an employer engages an employee (a secondary replacement) to do the work of another employee (the primary replacement) because the primary replacement has been temporarily promoted or transferred to do the work of a third employee while the third employee is taking a continuous period of leave including (or constituted by) maternity leave, the employer must tell the secondary replacement:
(a) that the engagement to do that work is temporary; and
(b) what the rights of the employee taking maternity leave are under section 94R when she returns to work after the period of leave.
(3) In this section:
employee has the meaning given by subsection 4AA(1).
Subdivision E—Guarantee of paternity leave
94T The guarantee
(1) For the purposes of this Division, paternity leave is:
(a) a single, unbroken period of unpaid leave (short paternity leave) of up to one week taken by a male employee within the week starting on the day his spouse begins to give birth; or
(b) a single, unbroken period of unpaid leave (long paternity leave), other than short paternity leave, taken by a male employee after his spouse gives birth to a living child so that the employee can be the child’s primary care‑giver.
(2) Subject to this Subdivision and Subdivision G, an employee is entitled to paternity leave if:
(a) he complies with the documentation requirements under Subdivision F, to the extent to which they apply to him; and
(b) immediately before the first day on which the paternity leave is, or is to be, taken:
(i) he has, or will have, completed at least 12 months continuous service with his employer; or
(ii) he is, or will be, an eligible casual employee.
Note: Entitlement to paternity leave is subject to the restrictions in sections 94U and 94W and Subdivision G.
(3) An employee is taken not to have been entitled to a period of paternity leave at any time after the start of the period if:
(a) Subdivision F:
(i) required the employee to give a document (the required document) to his employer; and
(ii) allowed the employee to give the required document to his employer after the start of the leave; and
(b) when the employee started the leave, the employee had not given his employer the required document; and
(c) the employee did not later give the required document to his employer within the period required under Subdivision F.
Note: Under Subdivision F, an employee may be required to give his employer a medical certificate, an application or a statutory declaration (depending on the circumstances).
(4) Subject to this Division, an employee may take short paternity leave, long paternity leave, or both.
94U Period of paternity leave
(1) In this section:
related authorised leave, in relation to paternity leave taken (or to be taken) by an employee because his spouse has given birth to a living child, means any of the following types of authorised leave other than the paternity leave:
(a) authorised leave taken by the employee because of any of the following:
(i) the birth of the child;
(ii) the death of the child;
(b) maternity leave, or any other authorised leave of the same type as maternity leave, taken by the employee’s spouse because of the birth of the child or the pregnancy.
(2) An employee may take a period of paternity leave as part of a continuous period including any other authorised leave.
(3) The maximum total amount of paternity leave (including short paternity leave and long paternity leave) to which an employee is entitled in relation to the birth of a child by his spouse is 52 weeks, less an amount equal to the total amount of related authorised leave taken:
(a) by the employee before or after the paternity leave; and
(b) by the spouse before, during or after the paternity leave.
Example: Max’s spouse Rachel is pregnant, and Max is an employee entitled to paternity leave. He intends to take 2 periods of authorised leave because of the birth of the child. The first is to consist of 5 weeks: 1 week of short paternity leave and 4 weeks of annual leave. The second is to consist of a later period of long paternity leave starting 20 weeks after the birth, when Max is to be the primary care‑giver for the child after Rachel returns to work.
Rachel has not taken any special maternity leave or other authorised leave during her pregnancy. She intends to take 20 weeks of maternity leave because of the birth of the child.
The maximum amount of long paternity leave to which Max is entitled is 27 weeks, worked out as follows:
(a) the maximum entitlement of any employee to paternity leave is 52 weeks;
(b) the maximum amount of long paternity leave available to Max must be reduced by 1 week for his short paternity leave;
(c) the maximum amount must also be reduced by 4 weeks for Max’s annual leave;
(d) the maximum amount must be further reduced by 20 weeks for Rachel’s maternity leave.
Note: A period of long paternity leave must end within 12 months after the date of birth of the child (see section 94ZB).
94V Short paternity leave—concurrent leave taken by spouse
An employee may take short paternity leave in relation to the birth of a child by his spouse while the spouse is taking any authorised leave, including maternity leave (if any), in relation to the birth.
94W Long paternity leave—not to be concurrent with maternity leave taken by spouse
A period of long paternity leave taken by an employee in relation to the birth of a child by his spouse must not include any period during which the spouse is taking maternity leave, or any other authorised leave of the same type as maternity leave, because of the birth.
Subdivision F—Paternity leave: documentation
94X Paternity leave—medical certificate
Requirement for medical certificate
(1) To be entitled to paternity leave, an employee must give his employer a medical certificate from a medical practitioner in accordance with this section.
(2) The medical certificate must contain the following statements of the medical practitioner’s opinion (or knowledge):
(a) if the child has not yet been born:
(i) the name of the employee’s spouse; and
(ii) that the employee’s spouse is pregnant; and
(iii) the date on which the birth is expected;
(b) if the child has been born:
(i) the name of the employee’s spouse; and
(ii) the actual date of birth of the child.
General rule
(3) The medical certificate must be given to the employer no later than 10 weeks before the date stated in the certificate.
Premature birth or other compelling reason
(4) However, the medical certificate must be given to the employer as soon as reasonably practicable (which may be at a time before or after the paternity leave has started) if it was not reasonably practicable for the employee to comply with subsection (3) because of:
(a) the premature birth of the child; or
(b) any other compelling reason.
Section does not apply if could not be complied with
(5) This section does not apply to an employee who could not comply with the section because of circumstances beyond his control.
Note: The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.
94Y Short paternity leave—application
(1) To be entitled to short paternity leave during a period, an employee must give his employer a written application for short paternity leave, in accordance with this section, stating the first and last days of the period.
(2) The application must be given to the employer as soon as reasonably practicable on or after the first day of the period of leave.
(3) This section does not apply to an employee who could not comply with the section because of circumstances beyond his control.
Note: The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.
94Z Long paternity leave—documentation
Requirement for application
(1) To be entitled to long paternity leave during a period, an employee must give his employer a written application for long paternity leave in accordance with this section stating the first and last days of the period.
General rule
(2) The application must be given to the employer no later than 10 weeks before the first day of the intended continuous period of leave including (or constituted by) the long paternity leave.
Premature birth or other compelling reason
(3) However, the application must be made as soon as reasonably practicable (which may be at a time before or after the long paternity leave has started) if it was not reasonably practicable for the employee to comply with subsection (2) because of:
(a) the premature birth of the child; or
(b) any other compelling reason.
Statutory declaration with application
(4) The application must be accompanied by a statutory declaration made by the employee stating the following:
(a) the first and last days of the period (or periods) of any other authorised leave intended to be taken (or already taken) by the employee because of the birth or the expected birth;
(b) the first and last days of the period (or periods) of any maternity leave, or any other authorised leave of the same type as maternity leave, intended to be taken (or already taken) by the employee’s spouse because of the pregnancy, the birth or the expected birth;
(c) that the employee intends to be the child’s primary care‑giver at all times while on long paternity leave;
(d) that the employee will not engage in any conduct inconsistent with his contract of employment while on long paternity leave.
Section does not apply if could not be complied with
(5) This section does not apply to an employee who could not comply with the section because of circumstances beyond his control.
Note: The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.
Subdivision G—Paternity leave: from start to finish
94ZA Short paternity leave—when taken
An employee may take short paternity leave to which he is entitled at any time within the week starting on the day his spouse begins to give birth.
Note: Short paternity leave must be taken in a single, unbroken period (see section 94T). The combined total of paternity leave and related authorised leave taken by the employee and his spouse must be no more than 52 weeks (see section 94U). Short paternity leave may be taken concurrently with any authorised leave taken by the employee’s spouse in relation to the birth of the child (see section 94V).
94ZB Long paternity leave—when taken
An employee may take long paternity leave to which he is entitled at any time within 12 months after the date of birth of the child.
Note: Long paternity leave must be taken in a single, unbroken period (see section 94T). The combined total of paternity leave and related authorised leave taken by the employee and his spouse must be no more than 52 weeks (see section 94U). Long paternity leave must not be taken concurrently with any maternity leave, or any other authorised leave of the same type as maternity leave, taken by the employee’s spouse because of the birth of the child (see section 94W).
94ZC End of pregnancy—effect on paternity leave
(1) This section applies if the pregnancy of an employee’s spouse ends otherwise than by the birth of a living child.
(2) The employee is not, or is no longer, entitled to paternity leave in relation to the pregnancy.
(3) To avoid doubt, this section does not affect any entitlement of an employee to short paternity leave that was taken by the employee in expectation of the birth.
94ZD Death of child—effect on paternity leave
(1) This section applies if an employee’s spouse gives birth to a living child, but the child later dies.
(2) If, when the child died, the employee had not yet started a period of paternity leave in relation to the birth, the employee is not, or is no longer, entitled to that leave.
(3) Subject to subsections (4) and (5), if, when the child died, the employee had started a period of paternity leave in relation to the birth, the employee’s entitlement to the leave is not affected by the death of the child.
Note: The employee may shorten a period of long paternity leave by agreement with the employer under section 94ZF. However, if the period of leave including (or constituted by) long paternity leave is longer than 4 weeks, to take advantage of the return to work guarantee under section 94ZH, the employee must also give the employer at least 4 weeks written notice of the proposed day of his return to work.
(4) The employee’s employer may give the employee written notice that, from a stated day no earlier than 4 weeks after the day the notice is given, any untaken long paternity leave that the employee remains entitled to at the stated day is cancelled with effect from that day.
(5) The employee’s entitlement to any untaken long paternity leave in relation to the birth ends with effect from the day stated in the notice.
94ZE End of long paternity leave if employee stops being primary care‑giver
(1) This section applies if:
(a) during a substantial period while an employee is on long paternity leave after the birth of a living child, the employee is not the child’s primary care‑giver; and
(b) having regard to the length of that period and to any other relevant circumstances, it is reasonable to expect that the employee will not again become the child’s primary care‑giver within a reasonable period.
(2) The employee’s employer may give the employee written notice that, from a stated day no earlier than 4 weeks after the day the notice is given, any untaken long paternity leave that the employee remains entitled to at the stated day is cancelled with effect from that day.
(3) The employee’s entitlement to any untaken long paternity leave in relation to the birth ends with effect from the day stated in the notice.
94ZF Variation of period of long paternity leave
(1) This section applies after an employee has started a continuous period of leave including (or constituted by) long paternity leave.
(2) Subject to Subdivision E and sections 94ZB, 94ZD and 94ZE:
(a) the employee may extend the period of long paternity leave once by giving his employer 14 days written notice before the end of the period stating the period by which the leave is extended; and
(b) the period of long paternity leave may be further extended by agreement between the employee and his employer.
(3) The period of long paternity leave may be shortened by written agreement between the employee and his employer.
Note: However, if the period of leave including (or constituted by) long paternity leave is longer than 4 weeks, to take advantage of the return to work guarantee under section 94ZH, the employee must also give his employer at least 4 weeks written notice of the proposed day of his return to work.
94ZG Employee’s right to terminate employment during paternity leave
(1) An employee may terminate his employment at any time during a period of paternity leave.
(2) The employee’s right to terminate his employment is subject to any notice required to be given by the employee by or under:
(a) a term or condition of his employment; or
(b) a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory.
94ZH Return to work guarantee—paternity leave
(1) This section applies to an employee who returns to work after a period of leave including (or constituted by) paternity leave (the paternity‑related leave period) if:
(a) the paternity‑related leave period is 4 weeks or less; or
(b) if the paternity‑related leave period is longer than 4 weeks—the employee has given his employer written notice of the proposed day of his return to work no later than 4 weeks before that day; or
(c) the employee’s entitlement to long paternity leave ends under section 94ZD or 94ZE.
(2) The employee is entitled to return:
(a) unless paragraph (b) or (c) applies—to the position he held immediately before the start of the paternity‑related leave period; or
(b) if he was promoted or voluntarily transferred to a new position during the paternity‑related leave period—to the new position; or
(c) if paragraph (b) does not apply, and he began working part‑time because of his spouse’s pregnancy—to the position he held immediately before starting to work part‑time.
(3) However, if the position (the former position) no longer exists, and the employee is qualified and able to work for his employer in another position, the employee is entitled to return to:
(a) that position; or
(b) if there are 2 or more such positions—whichever position is nearest in status and remuneration to the former position.
94ZI Replacement employees—long paternity leave
(1) Before an employer engages an employee (a primary replacement) to do the work of another employee because the other employee is taking a continuous period of leave including (or constituted by) paternity leave, the employer must tell the primary replacement:
(a) that the engagement to do that work is temporary; and
(b) what the rights of the employee taking paternity leave are under section 94ZH when he returns to work after the period of leave.
(2) Before an employer engages an employee (a secondary replacement) to do the work of another employee (the primary replacement) because the primary replacement has been temporarily promoted or transferred to do the work of a third employee while the third employee is taking a continuous period of leave including (or constituted by) paternity leave, the employer must tell the secondary replacement:
(a) that the engagement to do that work is temporary; and
(b) what the rights of the employee taking paternity leave are under section 94ZH when he returns to work after the period of leave.
(3) In this section:
employee has the meaning given by subsection 4AA(1).
Subdivision H—Guarantee of adoption leave
94ZJ Meaning of eligible child
For the purposes of this Division, a child is an eligible child in relation to an employee with whom the child is, or is to be, placed for adoption, if the child:
(a) is (or will be) under the age of 5 years as at the day of placement or the proposed day of placement; and
(b) has not (or will have not) previously lived continuously with the employee for a period of 6 months or more as at the day of placement or the proposed day of placement; and
(c) is not a child or step‑child of the employee or the employee’s spouse.
94ZK The guarantee—pre‑adoption leave
(1) This section applies if an employee is seeking to obtain approval to adopt an eligible child.
Entitlement to leave
(2) The employee is entitled to a period of up to 2 days unpaid leave (pre‑adoption leave) to attend any interviews or examinations required to obtain the approval.
(3) However, the employee is not entitled to take a period of pre‑adoption leave if:
(a) the employee could take other authorised leave instead for the same period for the purpose mentioned in subsection (2); and
(b) the employee’s employer directs the employee to take such leave for the period.
(4) An employee who is entitled to a period of pre‑adoption leave is entitled to take the leave as:
(a) a single, unbroken, period of up to 2 days; or
(b) any separate periods to which the employee and his or her employer agree.
Agreement between employees and employers
(5) For the purposes of paragraph (4)(b), an employee and an employer are taken to agree about a particular matter in a particular way if a provision of a workplace agreement binding the employee and the employer specifies that the matter is to be dealt with in that way.
(6) To avoid doubt, subsection (5) does not prevent employees and employers agreeing about matters by other means.
94ZL The guarantee—adoption leave
(1) For the purposes of this Division, adoption leave is:
(a) a single, unbroken period of unpaid leave (short adoption leave) of up to 3 weeks taken by an employee within the 3 weeks starting on the day of placement of an eligible child with the employee for adoption; or
(b) a single, unbroken period of unpaid leave (long adoption leave), other than short adoption leave, taken by an employee after the day of placement of an eligible child with the employee for adoption so that the employee can be the child’s primary care‑giver.
(2) Subject to this Subdivision and Subdivision J, an employee is entitled to adoption leave if:
(a) the employee complies with the applicable documentation requirements under Subdivision I; and
(b) immediately before the first day on which the adoption leave is, or is to be, taken:
(i) the employee has, or will have, completed at least 12 months continuous service with his or her employer; or
(ii) the employee is, or will be, an eligible casual employee.
Note: Entitlement to adoption leave is subject to the restrictions in sections 94ZM and 94ZO and Subdivision J.
(3) Subject to this Division, an employee may take short adoption leave, long adoption leave, or both.
94ZM Period of adoption leave
(1) In this section:
related authorised leave, in relation to adoption leave taken (or to be taken) by an employee because of the placement of a child with the employee and the employee’s spouse, means any of the following types of authorised leave other than pre‑adoption leave:
(a) authorised leave, other than adoption leave, taken by the employee because of the placement of the child with the employee;
(b) adoption leave, or any other authorised leave of the same type as adoption leave, taken by the spouse because of the placement of the child with the employee.
(2) An employee may take a period of adoption leave as part of a continuous period including any other authorised leave.
(3) The maximum total amount of adoption leave (including short adoption leave and long adoption leave) that an employee is entitled to in relation to a placement is 52 weeks, less an amount equal to the total amount of related authorised leave taken:
(a) by the employee before or after the adoption leave; and
(b) by the employee’s spouse before or after the adoption leave.
Example: Susan and her spouse Ali propose to adopt a child, and both are employees entitled to adoption leave. Because of the placement of the child, Susan intends to take authorised leave consisting of 3 weeks of short adoption leave, 4 weeks of annual leave, 12 weeks of long service leave and a period of long adoption leave.
Because of the placement of the child, Ali intends to take 3 weeks of short adoption leave.
The maximum amount of long adoption leave to which Susan is entitled is 30 weeks, worked out as follows:
(a) the maximum entitlement of any employee to adoption leave is 52 weeks;
(b) the maximum amount of long adoption leave available to Susan must be reduced by 3 weeks for her short adoption leave;
(c) the maximum amount must also be reduced by 16 weeks for Susan’s annual leave and long service leave;
(d) the maximum amount must also be further reduced by 3 weeks for Ali’s short adoption leave.
Note: A period of long adoption leave must end within 12 months after the day of placement of the child (see section 94ZU).
94ZN Short adoption leave—concurrent leave taken by spouse
An employee may take short adoption leave in relation to the placement of a child while his or her spouse is taking any authorised leave, including adoption leave (if any), in relation to the placement.
94ZO Long adoption leave—not to be concurrent with adoption leave taken by spouse
A period of long adoption leave taken by an employee in relation to the placement of a child with the employee and the employee’s spouse must not include any period during which the spouse is taking adoption leave, or any other authorised leave of the same type as adoption leave, because of the placement.
Subdivision I—Adoption leave: documentation
94ZP Adoption leave—notice
Requirement for notice
(1) To be entitled to adoption leave, an employee must give his or her employer notice in accordance with this section.
Note: After an employee has given his or her employer notice in accordance with this section, the employee will have satisfied the notice requirement in relation to the employee’s entitlement to both short adoption leave and long adoption leave.
Notices to be given to the employer
(2) An employee must give written notice to his or her employer of the employee’s intention to apply for adoption leave as soon as reasonably practicable after receiving notice (a placement approval notice) of the approval of the placement of an eligible child with the employee.
(3) An employee must give written notice to his or her employer of the day when the placement of an eligible child with the employee is expected to start as soon as reasonably practicable after receiving notice (a placement notice) of the expected day.
(4) An employee must give written notice to his or her employer of the first and last days of the periods of short and long adoption leave (or of either type of leave) the employee intends to apply for because of the placement:
(a) if the employee receives a placement notice about the placement within the period of 8 weeks after receiving the placement approval notice—before the end of that 8 week period; or
(b) if the employee receives a placement notice about the placement after the end of the period of 8 weeks after receiving the placement approval notice—as soon as reasonably practicable after receiving the placement notice.
Adoption of a relative of the employee
(5) If an eligible child who is to be adopted by an employee is a relative of the employee, and the employee decides to take the child into custody pending the authorisation of the placement of the child with the employee, the employee must:
(a) give notice to his or her employer of the employee’s decision as soon as reasonably practicable after the decision is made; and
(b) give the notices required by subsections (2), (3) and (4) in accordance with those subsections.
Note: The employee’s entitlement to adoption leave after taking the child into custody starts when the adoption is authorised (this is the day of placement of the child—see definition of day of placement in section 94A).
Adoption process started before engagement with the employer
(6) If, before starting an employee’s current period of engagement with his or her employer, the employee had already received a placement approval notice or a placement notice, or had made a decision to take a child into custody as mentioned in subsection (5), the employee must give the notices required by this section to the employer as soon as reasonable practicable after starting the period of engagement.
Note: However, the employee is only entitled to take either short or long adoption leave if the employee will have completed 12 months continuous service with the employer immediately before the first day on which the leave is to be taken, or if the employee is an eligible casual employee (see section 94ZL).
If employee cannot comply
(7) A notice under this section must be given to the employee’s employer as soon as reasonably practicable before the first day of adoption leave taken by the employee, if the employee cannot comply with subsection (2), (3), (4), (5) or (6) because of:
(a) the day when the placement is expected to start; or
(b) any other compelling reason.
(8) In this section:
relative, of an employee, means:
(a) a grandchild, nephew, niece or sibling of the employee; or
(b) a grandchild, nephew, niece or sibling of the employee’s spouse.
Note: The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.
94ZQ Short adoption leave—application
Requirement for application
(1) To be entitled to short adoption leave during a period, an employee must give his or her employer a written application for short adoption leave, in accordance with this section, stating the first and last days of the period.
General rule
(2) The application must be given to the employer no later than 14 days before the proposed day of placement of the child.
If employee cannot comply with general rule
(3) The application must be given to the employer as soon as reasonably practicable before the first day of the short adoption leave applied for if the employee cannot comply with subsection (2) because of:
(a) the day when the placement is expected to start; or
(b) any other compelling reason.
Note: The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.
94ZR Long adoption leave—application
Requirement for application
(1) To be entitled to long adoption leave during a period, an employee must give his or her employer a written application for long adoption leave, in accordance with this section, stating the first and last days of the period.
General rule
(2) The application must be given to the employer no later than 10 weeks before the first day of the proposed continuous period of leave including (or constituted by) the long adoption leave applied for.
If employee cannot comply with general rule
(3) The application must be given to the employer as soon as reasonably practicable before the first day of the long adoption leave applied for if the employee cannot comply with subsection (2) because of:
(a) the day when the placement is expected to start; or
(b) any other compelling reason.
Note: The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.
94ZS Adoption leave—additional documents
(1) To be entitled to adoption leave, an employee must give his or her employer documents as required by this section.
(2) The documents required by this section must be given to the employer:
(a) before the employee begins the period of adoption leave; or
(b) if the employee is taking both short and long adoption leave—before the employee begins the period of short adoption leave.
(3) The employee must give his or her employer the following documents:
(a) a statement from an adoption agency of the day when the placement is expected to start;
(b) a statutory declaration in accordance with subsection (4) made by the employee.
(4) The statutory declaration must state the following:
(a) whether the employee is taking short adoption leave, long adoption leave, or both;
(b) the first and last days of the period (or periods) of any other authorised leave taken, or intended to be taken, by the employee because of the placement of the child;
(c) the first and last days of the period (or periods) of adoption leave, or any other authorised leave of the same type as adoption leave, taken, or intended to be taken, by the employee’s spouse because of the placement of the child;
(d) that the child is an eligible child;
(e) for any period of long adoption leave to be taken by the employee—that the employee intends to be the child’s primary care‑giver at all times while on the long adoption leave;
(f) that the employee will not engage in any conduct inconsistent with his or her contract of employment while on adoption leave.
Note: The use of personal information given to an employer under this section may be regulated under the Privacy Act 1988.
Subdivision J—Adoption leave: from start to finish
94ZT Short adoption leave—when taken
An employee may take short adoption leave to which he or she is entitled at any time within the period of 3 weeks starting on the day of placement of the child.
Note: Short adoption leave must be taken in a single, unbroken period (see section 94ZL). The combined total of adoption leave and related authorised leave taken by the employee and his or her spouse must be no more than 52 weeks (see section 94ZM). Short adoption leave may be taken concurrently with any authorised leave taken by the employee’s spouse (see section 94ZN).
94ZU Long adoption leave—when taken
An employee may take long adoption leave to which he or she is entitled at any time within 12 months after the day of placement of the child.
Note: Long adoption leave must be taken in a single, unbroken period (see section 94ZL). The combined total of adoption and authorised leave taken by the employee and his or her spouse must be no more than 52 weeks (see section 94ZM). Long adoption leave must not be taken concurrently with any adoption leave, or any other authorised leave of the same type as adoption leave, taken by the employee’s spouse because of the placement (see section 94ZO).
94ZV Placement does not proceed—effect on adoption leave
(1) This section applies if a proposed placement of a child with an employee:
(a) is cancelled before it starts, whether at the initiative of an adoption agency, another body, or the employee; or
(b) starts but is later discontinued for any reason (including the death of the child).
(2) If, when this section first applies, the employee had not yet started a period of adoption leave in relation to the placement, the employee is not, or is no longer, entitled to the leave.
(3) Subject to subsections (4) and (5), if, when this section applies, the employee had started a period of adoption leave in relation to the placement, the employee’s entitlement to the adoption leave is not affected by the cancellation or discontinuation of the placement.
Note: The employee may shorten a period of long adoption leave by agreement with the employer under section 94ZX. However, if the period of leave including (or constituted by) long adoption leave is longer than 4 weeks, to take advantage of the return to work guarantee under section 94ZZ, the employee must also give the employer at least 4 weeks written notice of the proposed day of his or her return to work.
(4) The employee’s employer may give the employee written notice that, from a stated day no earlier than 4 weeks after the day the notice is given, any untaken long adoption leave that the employee remains entitled to at the stated day is cancelled with effect from that day.
(5) The employee’s entitlement to any untaken long adoption leave in relation to the placement ends with effect from the day stated in the notice.
94ZW End of long adoption leave if employee stops being primary care‑giver
(1) This section applies if:
(a) during a substantial period while an employee is on long adoption leave after the placement of a child with the employee, the employee is not the child’s primary care‑giver; and
(b) having regard to the length of that period and to any other relevant circumstances, it is reasonable to expect that the employee will not again become the child’s primary care‑giver within a reasonable period.
(2) The employee’s employer may give the employee written notice that, from a stated day no earlier than 4 weeks after the day the notice is given, any untaken long adoption leave that the employee remains entitled to at the stated day is cancelled with effect from that day.
(3) The employee’s entitlement to any untaken long adoption leave in relation to the placement ends with effect from the day stated in the notice.
94ZX Variation of period of long adoption leave
(1) This section applies after an employee has started a continuous period of leave including (or constituted by) long adoption leave.
(2) Subject to Subdivision H and sections 94ZU, 94ZV and 94ZW:
(a) the employee may extend the period of long adoption leave once by giving his or her employer 14 days written notice before the end of the period stating the period by which the leave is extended; and
(b) the period of long adoption leave may be further extended by agreement between the employee and his or her employer.
(3) The period of long adoption leave may be shortened by written agreement between the employee and his or her employer.
Note: However, if the period of leave including (or constituted by) long adoption leave is longer than 4 weeks, to take advantage of the return to work guarantee under section 94ZZ, the employee must also give his or her employer at least 4 weeks written notice of the proposed day for his or her return to work.
94ZY Employee’s right to terminate employment during adoption leave
(1) An employee may terminate his or her employment at any time during a period of adoption leave.
(2) The employee’s right to terminate his or her employment is subject to any notice required to be given by the employee by or under:
(a) a term or condition of his or her employment; or
(b) a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory.
94ZZ Return to work guarantee—adoption leave
(1) This section applies to an employee who returns to work after a period of leave including (or constituted by) adoption leave (the adoption‑related leave period) if:
(a) the adoption‑related leave period is 4 weeks or less; or
(b) if the adoption‑related leave period is longer than 4 weeks—the employee has given his or her employer written notice of the proposed day of his or her return to work no later than 4 weeks before that day; or
(c) the employee’s entitlement to long adoption leave ends under section 94ZV or 94ZW.
(2) The employee is entitled to return:
(a) unless paragraph (b) applies—to the position he or she held immediately before the start of the adoption‑related leave period; or
(b) if he or she was promoted or voluntarily transferred to a new position during the adoption‑related leave period—to the new position.
(3) However, if the position (the former position) no longer exists, and the employee is qualified and able to work for his or her employer in another position, the employer must employ the employee in:
(a) that position; or
(b) if there are 2 or more such positions—whichever position is nearest in status and remuneration to the former position.
94ZZA Replacement employees—long adoption leave
(1) Before an employer engages an employee (a primary replacement) to do the work of another employee because the other employee is taking a continuous period of leave including (or constituted by) adoption leave, the employer must tell the primary replacement:
(a) that the engagement to do that work is temporary; and
(b) what the rights of the employee taking adoption leave are under section 94ZZ when he or she returns to work after the period of leave.
(2) Before an employer engages an employee (a secondary replacement) to do the work of another employee (the primary replacement) because the primary replacement has been temporarily promoted or transferred to do the work of a third employee while the third employee is taking a continuous period of leave including (or constituted by) adoption leave, the employer must tell the secondary replacement:
(a) that the engagement to do that work is temporary; and
(b) what the rights of the employee taking adoption leave are under section 94ZZ when he or she returns to work after the period of leave.
(3) In this section:
employee has the meaning given by subsection 4AA(1).
Subdivision K—Parental leave: service
94ZZB Parental leave and service
(1) A period of parental leave does not break an employee’s continuity of service.
(2) However, a period of parental leave does not otherwise count as service except:
(a) for the purpose of determining the employee’s entitlement to a later period of leave under this Division; or
(b) as expressly provided by or under:
(i) a term or condition of the employee’s employment; or
(ii) a law, or an instrument in force under a law, of the Commonwealth, a State or a Territory; or
(c) as prescribed by the regulations.
(3) In this section:
parental leave means any of the following:
(a) maternity leave;
(b) paid leave under subparagraph 94F(2)(b)(i) or (ii);
(c) paternity leave;
(d) pre‑adoption leave;
(e) adoption leave.
Division 7—Civil remedies
94ZZC Definition
In this Division:
Court means the Federal Court of Australia or the Federal Magistrates Court.
94ZZD Civil remedies
(1) An employer must not contravene a term of the Australian Fair Pay and Conditions Standard contained in Division 3, 4, 5 or 6 of this Part in relation to an employee of the employer to whom that term applies.
(2) Subsection (1) is a civil remedy provision.
(3) The reference in subsection (1) to Division 6 of this Part includes a reference to that Division as it applies because of section 170KB.
94ZZE Standing for civil remedies
(1) Any of the following persons may apply to the Court for an order under this Division in relation to a contravention referred to in subsection 94ZZD(1):
(a) the employee concerned;
(b) an organisation of employees (subject to subsection (2));
(c) a workplace inspector.
(2) An organisation of employees must not apply on behalf of an employee for a remedy under this Division in relation to a contravention unless:
(a) a member of the organisation is employed by the respondent employer; and
(b) the contravention relates to, or affects, the member of the organisation or work carried on by the member for the employer.
94ZZF Court orders
The Court may, on application by a person in accordance with section 94ZZE, make one or more of the following orders in relation to an employer who has contravened a relevant term of the Australian Fair Pay and Conditions Standard:
(a) an order requiring the employer to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention;
(b) any other orders (including injunctions) that the Court considers necessary to stop the contravention or rectify its effects.
Part VB—Workplace agreements
Division 1—Preliminary
95 Definitions
In this Part:
Court means the Federal Court of Australia or the Federal Magistrates Court.
new business has the meaning given by section 95B.
prohibited content has the meaning given by section 101D.
undertakings means undertakings mentioned in section 103M.
verified copy, in relation to a document, means a copy that is certified as being a true copy of the document.
95A Single business and single employer
(1) For the purposes of this Part, a single business is:
(a) a business, project or undertaking that is carried on by an employer; or
(b) the activities carried on by:
(i) the Commonwealth, a State or a Territory; or
(ii) a body, association, office or other entity established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or
(iii) any other body in which the Commonwealth, a State or a Territory has a controlling interest.
(2) For the purposes of this Part:
(a) if 2 or more employers carry on a business, project or undertaking as a joint venture or common enterprise, the employers are taken to be one employer; and
(b) if 2 or more corporations that are related to each other for the purposes of the Corporations Act 2001 each carry on a single business:
(i) the corporations may be treated as one employer; and
(ii) the single businesses may be treated as one single business.
(3) For the purposes of this Part, a part of a single business includes, for example:
(a) a geographically distinct part of the single business; or
(b) a distinct operational or organisational unit within the single business.
95B New business
For the purposes of sections 96C and 96D, an agreement relates to a new business if:
(a) the agreement relates to:
(i) a new business, new project or new undertaking that the employer in relation to the agreement is proposing to establish; or
(ii) if the employer in relation to the agreement is an entity mentioned in paragraph 95A(1)(b)—new activities proposed to be carried on by the employer; and
(b) the business, project or undertaking is, or the activities are, a single business (or a part of a single business).
95D Extended operation of Part in relation to proposed workplace agreements
So far as the context permits:
(a) a reference in this Part to a workplace agreement includes a reference to a proposed workplace agreement; and
(b) a reference in this Part to an employer, in relation to a workplace agreement, includes a reference to a person who will be an employer in relation to a proposed agreement when it comes into operation; and
(c) a reference in this Part to an employee, in relation to a workplace agreement, includes a reference to a person who will be an employee in relation to a proposed agreement when it comes into operation.
95E Extraterritorial extension
(1) This Part, and the rest of this Act so far as it relates to this Part, extends to persons, acts, omissions, matters and things outside Australia that are connected with a workplace agreement relating to an Australian‑based employee or an Australian employer.
Note: In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea. See section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.
(2) In this section:
this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.
Division 2—Types of workplace agreements
96 Australian workplace agreements (AWAs)
(1) An employer may make an agreement (an Australian workplace agreement or AWA) in writing with a person whose employment will be subject to the agreement.
(2) An AWA may be made before commencement of the employment.
96A Employee collective agreements
An employer may make an agreement (an employee collective agreement) in writing with persons employed at the time in a single business (or part of a single business) of the employer whose employment will be subject to the agreement.
96B Union collective agreements
An employer may make an agreement (a union collective agreement) in writing with one or more organisations of employees if, when the agreement is made, each organisation:
(a) has at least one member whose employment in a single business (or part of a single business) of the employer will be subject to the agreement; and
(b) is entitled to represent the industrial interests of the member in relation to work that will be subject to the agreement.
96C Union greenfields agreements
(1) An employer may make an agreement (a union greenfields agreement) in writing with one or more organisations of employees if:
(a) the agreement relates to a new business that the employer proposes to establish, or is establishing, when the agreement is made; and
(b) the agreement is made before the employment of any of the persons:
(i) who will be necessary for the normal operation of the business; and
(ii) whose employment will be subject to the agreement; and
(c) each organisation meets the requirements of subsection (2).
(2) When the agreement is made, each organisation must be entitled to represent the industrial interests of one or more of the persons, whose employment is likely to be subject to the agreement, in relation to work that will be subject to the agreement.
96D Employer greenfields agreements
An employer may make an agreement (an employer greenfields agreement) in writing if:
(a) the agreement relates to a new business that the employer proposes to establish, or is establishing, when the agreement is made; and
(b) the agreement is made before the employment of any of the persons:
(i) who will be necessary for the normal operation of the business; and
(ii) whose employment will be subject to the agreement.
96E Multiple‑business agreements
(1) A multiple‑business agreement is an agreement that:
(a) relates to any combination or combinations of the following:
(i) one or more single businesses;
(ii) one or more parts of single businesses;
carried on by one or more employers; and
(b) would be a collective agreement of a type mentioned in section 96A, 96B, 96C or 96D but for the matter in paragraph (a).
Note: For civil remedy provisions dealing with the making or variation of a multiple‑business agreement, see sections 99A and 102I.
(2) So far as the context permits, this Part (apart from this Division) has effect in relation to a multiple‑business agreement of a particular type as if the agreement were a collective agreement (other than a multiple‑business agreement) of that type.
(3) So far as the context permits, this Part (apart from this Division) has effect in relation to a multiple‑business agreement with more than one employer as if a reference to the employer in relation to an agreement were a reference to an employer in relation to the agreement.
96F Authorisation of multiple‑business agreements
(1) An employer may apply to the Employment Advocate for an authorisation to make or vary a multiple‑business agreement.
(2) The regulations may set out a procedure for applying to the Employment Advocate for the authorisation. The Employment Advocate need not consider an application if it is not made in accordance with the procedure.
(3) The Employment Advocate must not grant the authorisation unless he or she is satisfied that it is in the public interest to do so, having regard to:
(a) whether the matters dealt with by the agreement (or the agreement as varied) could be more appropriately dealt with by a collective agreement other than a multiple‑business agreement; and
(b) any other matter specified in regulations made for the purposes of this subsection.
96G When a workplace agreement is made
For the purposes of this Act, a workplace agreement is made at whichever of the following times is applicable:
(a) for an AWA—the time when the AWA is approved in accordance with section 98C;
(b) for an employee collective agreement—the time when the agreement is approved in accordance with section 98C;
(c) for a union collective agreement—the time when the employer and the organisation or organisations agree to the terms of the agreement;
(d) for a union greenfields agreement—the time when the employer and the organisation or organisations agree to the terms of the agreement;
(e) for an employer greenfields agreement—the time when the employer lodges the agreement (see section 99B).
Division 3—Bargaining agents
97A Bargaining agents—AWAs
(1) An employer or employee may appoint a person to be his or her bargaining agent in relation to the making, variation or termination of an AWA. The appointment must be made in writing.
Note: Subsection 104(3) provides a civil remedy for coercion in relation to appointments under this subsection.
(2) Subject to subsection (3), an employer or employee must not refuse to recognise a bargaining agent duly appointed by the other party for the purposes of subsection (1).
(3) Subsection (2) does not apply if the person refusing has not been given a copy of the bargaining agent’s instrument of appointment before the refusal.
(4) Subsection (2) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
97B Bargaining agents—employee collective agreements
(1) An employee whose employment is or will be subject to an employee collective agreement may request another person (the bargaining agent) to represent the employee in meeting and conferring with the employer about the making or variation of the agreement.
Note: Subsection 104(4) provides a civil remedy for coercion in relation to requests under this subsection.
(2) An employee whose employment is or will be subject to an employer greenfields agreement may request another person (the bargaining agent) to represent the employee in meeting and conferring with the employer about the variation of the agreement.
Note: Subsection 104(4) provides a civil remedy for coercion in relation to requests under this subsection.
(3) The employer must give the bargaining agent a reasonable opportunity to meet and confer with the employer about the agreement during the period:
(a) beginning 7 days before the agreement or variation is approved in accordance with section 98C or section 102F; and
(b) ending when the agreement or variation is approved.
(4) Subsection (3) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
(5) The requirement in subsection (3) ceases to apply to the employer if at any time after the request is made the employee withdraws the request.
(6) The Employment Advocate may issue a certificate that he or she is satisfied of one of the following matters if he or she is so satisfied:
(a) on application by a bargaining agent—that the employee has made a request in accordance with subsection (1) or (2) for the bargaining agent to represent the employee in meeting and conferring with the employer;
(b) on application by the employer—that, after the making of the request, the requirement in subsection (3) for the employer to give a reasonable opportunity to the bargaining agent to meet and confer, has, because of subsection (5), ceased to apply to the employer.
(7) The certificate must not identify any of the employees concerned. However, it must identify the bargaining agent, the employer and the agreement.
(8) The certificate is, for all purposes of this Act, prima facie evidence that the employee or employees made the request or that the requirement has ceased to apply.
Division 4—Pre‑lodgment procedure
97C Eligible employee
For the purposes of this Division, an eligible employee in relation to a workplace agreement is:
(a) in the case of an AWA—the person whose employment will be subject to the AWA; or
(b) in the case of a collective agreement—a person employed by the employer whose employment will be subject to the agreement.
98 Providing employees with ready access and information statement
(1) If an employer intends to have a workplace agreement (other than a greenfields agreement) approved under section 98C, the employer must take reasonable steps to ensure that all eligible employees in relation to the agreement either have, or have ready access to, the agreement in writing during the period:
(a) beginning 7 days before the agreement is approved; and
(b) ending when the agreement is approved.
(2) The employer must take reasonable steps to ensure that all eligible employees in relation to the agreement are given an information statement at least 7 days before the agreement is approved.
(3) Despite subsections (1) and (2), if the agreement is a collective agreement and a person becomes an eligible employee at a time during the period mentioned in subsection (1), the employer must take reasonable steps to ensure that:
(a) the person is given an information statement at or before that time; and
(b) the person either has, or has ready access to, the agreement in writing during the period:
(i) beginning at that time; and
(ii) ending when the agreement is approved under section 98C.
(4) The information statement mentioned in subsection (2) and paragraph (3)(a) must contain:
(a) information about the time at which and the manner in which the approval will be sought under section 98C; and
(b) if the agreement is an AWA—information about the effect of section 97A (which deals with bargaining agents); and
(c) if the agreement is an employee collective agreement—information about the effect of section 97B (which deals with bargaining agents); and
(d) any other information that the Employment Advocate requires by notice published in the Gazette.
(5) If a waiver has been made under section 98A in relation to the workplace agreement, subsection (1) and paragraph (3)(b) do not apply in relation to a time after the waiver takes effect.
(6) For the purposes of this section, if the workplace agreement incorporates terms from an industrial instrument mentioned in subsection 101C(2), the eligible employees have ready access to the workplace agreement only if they have ready access to that instrument in writing.
(7) To avoid doubt, if the content of the workplace agreement is changed during the period mentioned in subsection (1), the change results in a separate workplace agreement for the purposes of this section.
Note: If the content of an agreement for which the employer intends to seek approval is changed, the procedural steps set out in subsections (1), (2) and (3) must be repeated for the resulting separate agreement.
Contravention—ready access
(8) An employer contravenes this subsection if:
(a) the employer lodges a workplace agreement; and
(b) the employer failed to comply with subsection (1) or (if applicable) paragraph (3)(b) in relation to the agreement.
Contravention—information statement
(9) An employer contravenes this subsection if:
(a) the employer lodges a workplace agreement; and
(b) the employer failed to comply with subsection (2) or (if applicable) paragraph (3)(a) in relation to the agreement.
(10) Subsections (8) and (9) are civil remedy provisions.
Note: See Division 11 for provisions on enforcement.
(11) An employer cannot contravene subsection (8) or (9) more than once in relation to the lodgment of a particular workplace agreement.
98A Employees may waive ready access
(1) The persons mentioned in subsection (2) may make a waiver under this section in relation to a workplace agreement.
(2) The persons are all the eligible employees at the time the waiver is made.
(3) The waiver must be in writing and dated.
(4) The waiver is made when all the persons mentioned in subsection (2) sign the waiver.
(5) The waiver takes effect when it is made.
98B Prohibition on withdrawal from union collective agreement
(1) An employer that has made a union collective agreement must take reasonable steps to seek approval for the agreement under section 98C, within a reasonable period after the agreement was made.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
98C Approval of a workplace agreement
(1) An AWA is approved if:
(a) the AWA is signed and dated by the employee and the employer; and
(b) those signatures are witnessed; and
(c) if the employee is under the age of 18 years:
(i) the AWA is signed and dated by an appropriate person (such as a parent or guardian of the employee, but not the employer) on behalf of the employee, for the purpose of indicating that person’s consent to the employee making the AWA; and
(ii) that person is aged at least 18 years; and
(iii) that person’s signature is witnessed.
(2) An employee collective agreement or union collective agreement is approved if:
(a) the employer has given all of the persons employed at the time whose employment will be subject to the agreement a reasonable opportunity to decide whether they want to approve the agreement; and
(b) either:
(i) if the decision is made by a vote—a majority of those persons who cast a valid vote decide that they want to approve the agreement; or
(ii) otherwise—a majority of those persons decide that they want to approve the agreement.
98D Employer must not lodge unapproved agreement
(1) An employer contravenes this subsection if:
(a) the employer lodges a workplace agreement (other than a greenfields agreement); and
(b) the agreement has not been approved in accordance with section 98C.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
Division 5—Lodgment
99 Employer must lodge certain workplace agreements with the Employment Advocate
(1) If an AWA, an employee collective agreement or a union collective agreement has been approved in accordance with section 98C, the employer must lodge the agreement, in accordance with section 99B, within 14 days after the approval.
(2) If a union greenfields agreement has been made, the employer must lodge the agreement, in accordance with section 99B, within 14 days after the agreement was made.
(3) Subsections (1) and (2) are civil remedy provisions.
Note: See Division 11 for provisions on enforcement.
99A Lodging multiple‑business agreement without authorisation
(1) An employer contravenes this section if:
(a) the employer lodges a multiple‑business agreement; and
(b) the agreement has not been authorised under section 96F.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
99B Lodging of workplace agreement documents with the Employment Advocate
(1) The employer in relation to a workplace agreement lodges the workplace agreement with the Employment Advocate if:
(a) the employer lodges a declaration under subsection (2); and
(b) a copy of the workplace agreement is annexed to the declaration.
(2) An employer lodges a declaration with the Employment Advocate if:
(a) the employer gives it to the Employment Advocate; and
(b) it meets the form requirements mentioned in subsection (3).
Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
(3) The Employment Advocate may, by notice published in the Gazette, set out requirements for the form of a declaration for the purposes of paragraph (2)(b).
(4) A declaration is given to the Employment Advocate for the purposes of subsection (2) only if the declaration is actually received by the Employment Advocate.
Note: This means that section 29 of the Acts Interpretation Act 1901 (to the extent that it deals with the time of service of documents) and section 160 of the Evidence Act 1995 do not apply to lodgment of a declaration.
(5) The Employment Advocate is not required to consider or determine whether any of the requirements of this Part have been met in relation to the making or content of anything annexed to a declaration lodged in accordance with subsection (2).
99C Employment Advocate must issue receipt for lodgment of declaration for workplace agreement
(1) If a declaration is lodged under subsection 99B(2), the Employment Advocate must issue a receipt for the lodgment.
(2) The Employment Advocate must give a copy of the receipt to:
(a) the employer in relation to the workplace agreement; and
(b) if the workplace agreement is an AWA—the employee; and
(c) if the agreement is a union collective agreement or a union greenfields agreement—the organisation or organisations bound by the agreement.
99D Employer must notify employees after lodging workplace agreement
(1) An employer that has received a receipt under section 99C in relation to a collective agreement must take reasonable steps to ensure that all persons whose employment is subject to the agreement when the employer receives the receipt are given a copy of the receipt within 21 days.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
(3) This section does not apply in relation to a greenfields agreement.
Division 6—Operation of workplace agreements and persons bound
100 When a workplace agreement is in operation
(1) A workplace agreement comes into operation on the day the agreement is lodged.
(2) A workplace agreement comes into operation even if the requirements in Divisions 3 and 4 and section 99 have not been met in relation to the agreement.
(3) A multiple‑business agreement comes into operation only if it has been authorised under section 96F.
(4) A workplace agreement ceases to be in operation if:
(a) it is terminated in accordance with Division 9; or
(b) in the case of an AWA—it is replaced by another AWA; or
(c) the Court declares it to be void under paragraph 105F(a).
(5) A collective agreement ceases to be in operation in relation to an employee if it has:
(a) passed its nominal expiry date; and
(b) been replaced by another collective agreement in relation to that employee.
Note: Part VIAA sets out the circumstances in which a workplace agreement binding an employer because of transmission of business will cease to operate.
(6) A multiple‑business agreement ceases to operate in relation to a single business (or a part of a single business) if:
(a) the multiple‑business agreement came into operation on a particular day; and
(b) a collective agreement (other than a multiple‑business agreement) was lodged on a later day; and
(c) the multiple‑business agreement and the collective agreement apply in relation to the same single business (or the same part of the single business).
Example: Employers A, B and C lodge a multiple‑business agreement which has a nominal expiry date 5 years after it is lodged. Six months later employer B lodges a collective agreement that applies in relation to its single business. This means that the multiple‑business agreement ceases to operate in relation to that single business.
(7) If a workplace agreement has ceased operating under subsection (4), it can never operate again.
(8) If a workplace agreement has ceased operating in relation to an employee because of subsection (5), the agreement can never operate again in relation to that employee.
(9) If a multiple‑business agreement has ceased operating in relation to a single business (or a part of a single business), the agreement can never operate again in relation to that single business (or part of a business).
(10) If:
(a) a person or entity is the employer bound by a workplace agreement; and
(b) the person or entity ceases to be an employer within the meaning of subsection 4AB(1);
the agreement ceases to be in operation.
(11) Despite subsection (10), if the agreement mentioned in that subsection is a multiple‑business agreement, it ceases to be in operation only in relation to a single business or part of a single business carried on by the person or entity.
100A Relationship between overlapping workplace agreements
(1) Only one workplace agreement can have effect at a particular time in relation to a particular employee.
(2) A collective agreement has no effect in relation to an employee while an AWA operates in relation to the employee.
(3) If:
(a) a collective agreement (the first agreement) binding an employee is in operation; and
(b) another collective agreement (the later agreement) binding the employee is lodged before the nominal expiry date of the first agreement;
the later agreement has no effect in relation to the employee until the nominal expiry date of the first agreement.
Note: After that date, the first agreement ceases operating in relation to the employee (see subsection 100(5)), and the later agreement takes effect in relation to the employee.
100B Effect of awards while workplace agreement is in operation
An award has no effect in relation to an employee while a workplace agreement operates in relation to the employee.
100C Workplace agreement displaces certain Commonwealth laws
(1) To the extent of any inconsistency, a workplace agreement displaces prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations.
(2) In this section:
Commonwealth law means an Act or any regulations or other instrument made under an Act.
prescribed conditions means conditions that are identified by the regulations.
100D Persons bound by workplace agreements
A workplace agreement that is in operation binds:
(a) the employer in relation to the agreement; and
(b) all persons whose employment is, at any time when the agreement is in operation, subject to the agreement; and
(c) if the agreement is a union collective agreement or a union greenfields agreement—the organisation or organisations of employees with which the employer made the agreement.
Note: A person can be bound by a workplace agreement because of Part VIAA (which deals with transmission of business).
Division 7—Content of workplace agreements
Subdivision A—Required content
Note: For the operation of the Australian Fair Pay and Conditions Standard, see Part VA.
101 Nominal expiry date
(1) The nominal expiry date of a workplace agreement is:
(a) in the case of an employer greenfields agreement:
(i) if a date is specified in the agreement as its nominal expiry date, and that date is no later than the first anniversary of the date on which the agreement was lodged—that specified date; or
(ii) otherwise—the first anniversary of the date on which the agreement was lodged; or
(b) otherwise:
(i) if a date is specified in the agreement as its nominal expiry date, and that date is no later than the fifth anniversary of the date on which the agreement was lodged—that specified date; or
(ii) otherwise—the fifth anniversary of the date on which the agreement was lodged.
(2) However, if the agreement has been varied to extend its nominal expiry date, the nominal expiry date of the agreement is:
(a) in the case of an employer greenfields agreement—the earlier of the following dates:
(i) the date specified in the agreement as varied as its nominal expiry date;
(ii) the first anniversary of the date on which the agreement was lodged; or
(b) otherwise—the earlier of the following dates:
(i) the date specified in the agreement as varied as its nominal expiry date;
(ii) the fifth anniversary of the date on which the agreement was lodged.
101A Workplace agreement to include dispute settlement procedures
(1) A workplace agreement must include procedures for settling disputes (dispute settlement procedures) about matters arising under the agreement between:
(a) the employer; and
(b) the employees whose employment will be subject to the agreement.
(2) If a workplace agreement does not include dispute settlement procedures, the agreement is taken to include the model dispute resolution process mentioned in Part VIIA.
101B Protected award conditions
(1) This section applies if:
(a) a person’s employment is subject to a workplace agreement; and
(b) protected award conditions would have effect (but for the agreement) in relation to the employment of the person.
(2) Those protected award conditions:
(a) are taken to be included in the workplace agreement; and
(b) have effect in relation to the employment of that person; and
(c) have that effect subject to any terms of the workplace agreement that expressly exclude or modify all or part of them.
(2A) Despite paragraph (2)(c), those protected award conditions have effect in relation to the employment of that person to the extent that those protected award conditions are about outworker conditions, despite any terms of the workplace agreement that provide, in a particular respect, a less favourable outcome for that person.
(3) In this section:
outworker means an employee who, for the purposes of the business of the employer, performs work at private residential premises or at other premises that are not business or commercial premises of the employer.
outworker conditions means conditions (other than pay) for outworkers, but only to the extent necessary to ensure that their overall conditions of employment are fair and reasonable in comparison with the conditions of employment specified in a relevant award or awards for employees who perform the same kind of work at an employer’s business or commercial premises.
protected allowable award matters means the following matters:
(a) rest breaks;
(b) incentive‑based payments and bonuses;
(c) annual leave loadings;
(d) observance of days declared by or under a law of a State or Territory to be observed generally within that State or Territory, or a region of that State or Territory, as public holidays by employees who work in that State, Territory or region, and entitlements of employees to payment in respect of those days;
(da) days to be substituted for, or a procedure for substituting, days referred to in paragraph (d);
(e) monetary allowances for:
(i) expenses incurred in the course of employment; or
(ii) responsibilities or skills that are not taken into account in rates of pay for employees; or
(iii) disabilities associated with the performance of particular tasks or work in particular conditions or locations;
(f) loadings for working overtime or for shift work;
(g) penalty rates;
(h) outworker conditions;
(i) any other matter specified in the regulations.
Note: These matters are the same as certain allowable award matters mentioned in section 116.
protected award conditions means the terms of an award, as in force from time to time, to the extent that those terms:
(a) are:
(i) about protected allowable award matters; or
(ii) terms that are incidental to protected allowable award matters and that may be included in an award as permitted by section 116I; or
(iii) machinery provisions that are in respect of protected allowable award matters and that may be included in an award as permitted by section 116I; and
(b) are not about:
(i) matters that are not allowable award matters because of section 116B; or
(ii) any other matters specified in the regulations.
101C Calling up content of other documents
(1) A workplace agreement may incorporate by reference terms from an industrial instrument mentioned in subsection (2) only if the requirements in subsection (3) are satisfied.
(2) The industrial instruments are as follows:
(a) a workplace agreement;
(b) an award.
Note: For pre‑reform certified agreements, see clause 9 in Schedule 14.
(3) The requirements are as follows:
(a) if the industrial instrument is an award:
(i) just before the agreement is made the award regulates any term or condition of employment of persons engaged in a particular kind of work; and
(ii) the employment of a person engaged in that kind of work will be subject to the agreement when the agreement comes into operation; and
(iii) the award is binding on the employer in relation to the agreement just before the agreement is made;
(b) if the industrial instrument is a workplace agreement—the instrument is binding on the employer in relation to the agreement mentioned in subsection (1) just before that agreement is made.
(4) If those requirements are satisfied, the workplace agreement may incorporate terms by reference from the industrial instrument:
(a) as in operation just before the agreement is made; or
(b) as varied from time to time.
(5) A term of a workplace agreement is void to the extent that:
(a) it incorporates by reference terms from an industrial instrument mentioned in subsection (2); and
(b) the requirements in subsection (3) are not satisfied.
(6) A term of a workplace agreement is void to the extent that it incorporates by reference terms from any of the following instruments (other than an instrument mentioned in subsection (2)):
(a) an award or agreement regulating terms and conditions of employment that is in force under a law of a State (other than a contract of employment);
(b) an agreement, arrangement, deed or memorandum of understanding, that:
(i) regulates terms and conditions of employment; and
(ii) was created by a process of collective negotiation;
(c) an industrial instrument specified in the regulations.
(7) A term of a workplace agreement is void to the extent that it applies or adopts terms from an instrument mentioned in subsection (2) or (6), without incorporating those terms by reference in accordance with this section.
Subdivision B—Prohibited content
101D Prohibited content
The regulations may specify matters that are prohibited content for the purposes of this Act.
101E Employer must not lodge agreement containing prohibited content
(1) An employer contravenes this subsection if:
(a) the employer lodges a workplace agreement (or a variation to a workplace agreement); and
(b) the agreement (or the agreement as varied) contains prohibited content; and
(c) the employer was reckless as to whether the agreement (or the agreement as varied) contains prohibited content.
(2) Subsection (1) does not apply if:
(a) before the agreement (or variation) was lodged, the Employment Advocate advised the employer that the agreement (or the agreement as varied) did not contain prohibited content; and
(b) that advice was in the form specified in regulations made for the purposes of this subsection.
(3) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
101F Prohibited content in workplace agreement is void
A term of a workplace agreement is void to the extent that it contains prohibited content.
Note 1: The Employment Advocate can vary the workplace agreement to remove prohibited content (see section 101K).
Note 2: For civil remedy provisions relating to including prohibited content in a workplace agreement, see sections 101E, 101M and 101N.
101G Initiating consideration of removal of prohibited content
(1) The Employment Advocate may exercise his or her power under section 101K to vary a workplace agreement to remove prohibited content:
(a) on his or her own initiative; or
(b) on application by any person.
(2) This section and sections 101H, 101I and 101K are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the Employment Advocate’s decision whether to make a variation under section 101K.
101H Employment Advocate must give notice that he or she is considering variation
(1) If the Employment Advocate is considering making a variation to a workplace agreement under section 101K, the Employment Advocate must give the persons mentioned in subsection (2) a written notice meeting the requirements in subsection 101I(1).
(2) The persons are:
(a) the employer in relation to the workplace agreement; and
(b) if the workplace agreement is an AWA—the employee; and
(c) if the agreement is a union collective agreement or a union greenfields agreement—the organisation or organisations bound by the agreement.
101I Matters to be contained in notice
(1) The requirements mentioned in subsection 101H(1) are that the notice must:
(a) be dated; and
(b) state that the Employment Advocate is considering making the variation; and
(c) state the reasons why the Employment Advocate is considering making the variation; and
(d) set out the terms of the variation; and
(e) invite each person mentioned in subsection (2) to make a written submission to the Employment Advocate about whether the Employment Advocate should make the variation; and
(f) state that any submission must be made within the period (the objection period) of 28 days after the date of the notice.
(2) The persons are:
(a) the employer in relation to the workplace agreement; and
(b) each person whose employment is subject to the agreement at the date of the notice; and
(c) if the agreement is a union collective agreement or a union greenfields agreement—the organisation or organisations bound by the agreement.
101J Employer must ensure employees have ready access to notice
(1) An employer that has received a notice under section 101H in relation to a collective agreement must take reasonable steps to ensure that all persons whose employment is subject to the agreement at a time during the objection period are given a copy of the notice as soon as practicable.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
101K Employment Advocate must remove prohibited content from agreement
(1) If the Employment Advocate is satisfied that a term of the workplace agreement contains prohibited content, the Employment Advocate must vary the agreement so as to remove that content.
(2) In making a decision under subsection (1), the Employment Advocate must consider all written submissions (if any) received within the objection period from persons mentioned in subsection 101I(2).
(3) The Employment Advocate must not make the variation before the end of the objection period.
(4) If the Employment Advocate decides to make the variation, he or she must:
(a) give the persons mentioned in subsection 101H(2) written notice of the decision, including the terms of the variation; and
(b) if the workplace agreement is a collective agreement—publish a notice in the Gazette stating that the variation has been made and setting out particulars of the variation.
101L Employer must give employees notice of removal of prohibited content
(1) An employer that has received a notice under subsection 101K(4) in relation to a collective agreement must take reasonable steps to ensure that all persons whose employment is subject to the agreement when the employer receives the notice are given a copy of the notice within 21 days.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
101M Seeking to include prohibited content in an agreement
(1) A person contravenes this subsection if:
(a) the person seeks to include a term:
(i) in a workplace agreement in the course of negotiations for the agreement; or
(ii) in a variation to a workplace agreement in the course of negotiations for the variation; and
(b) that term contains prohibited content; and
(c) the person is reckless as to whether the term contains prohibited content.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
101N Misrepresentations about prohibited content
(1) A person contravenes this subsection if:
(a) the person makes a misrepresentation in relation to a workplace agreement (or a variation to a workplace agreement) that a particular term does not contain prohibited content; and
(b) the person is reckless as to whether the term contains prohibited content.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
Division 8—Varying a workplace agreement
Subdivision A—General
102 Varying a workplace agreement
(1) The following persons may make a variation, in writing, to a workplace agreement that is in operation:
(a) in the case of an AWA—the employer and the employee;
(b) in the case of an employee collective agreement or an employer greenfields agreement—the employer and the persons whose employment will be subject to the agreement as varied;
(c) in the case of a union collective agreement or a union greenfields agreement—the employer and the one or more organisations of employees that are bound by the agreement.
Example: A workplace agreement may be varied to provide additional pay.
(2) A workplace agreement cannot be varied except in accordance with:
(a) this Division; or
(b) section 101K (which deals with prohibited content); or
(c) section 352A (which deals with discriminatory agreements); or
(d) an order of the Court under section 105G.
Note: Subsection (2) would not apply where the obligations under the agreement can change because of the terms of the agreement itself.
102A When a variation to a workplace agreement is made
For the purposes of this Act, a variation to a workplace agreement is made at whichever of the following times is applicable:
(a) for an AWA—the time when the variation is approved in accordance with section 102F;
(b) for an employee collective agreement—the time when the variation is approved in accordance with section 102F;
(c) for a union collective agreement—the time when the employer and the organisation or organisations agree to the terms of the variation;
(d) for a union greenfields agreement—the time when the employer and the organisation or organisations agree to the terms of the variation;
(e) for an employer greenfields agreement—the time when the variation is approved in accordance with section 102F.
Subdivision B—Pre‑lodgment procedure for variations
102B Eligible employee in relation to variation of workplace agreement
For the purposes of this Subdivision, an eligible employee in relation to a variation to a workplace agreement is:
(a) in the case of an AWA—the employee; or
(b) in the case of a collective agreement:
(i) a person whose employment is subject to the agreement; or
(ii) a person employed by the employer whose employment will be subject to the agreement as varied.
102C Providing employees with ready access and information statement
(1) If an employer intends to have a variation to a workplace agreement approved under section 102F, the employer must take reasonable steps to ensure that all eligible employees in relation to the variation either have, or have ready access to, the variation in writing during the period:
(a) beginning 7 days before the variation is approved; and
(b) ending when the variation is approved.
(2) The employer must take reasonable steps to ensure that all eligible employees in relation to the variation are given an information statement at least 7 days before the variation is approved.
(3) Despite subsections (1) and (2), if the variation is to a collective agreement and a person becomes an eligible employee at a time during the period mentioned in subsection (1), the employer must take reasonable steps to ensure that:
(a) the person is given an information statement at or before that time; and
(b) the person either has, or has ready access to, the variation in writing during the period:
(i) beginning at that time; and
(ii) ending when the variation is approved under section 102F.
(4) The information statement mentioned in subsection (2) and paragraph (3)(a) must contain:
(a) information about the time at which and the manner in which the approval will be sought under section 102F; and
(b) if the relevant workplace agreement is an AWA—information about the effect of section 97A (which deals with bargaining agents); and
(c) if the relevant workplace agreement is an employee collective agreement or employer greenfields agreement—information about the effect of section 97B (which deals with bargaining agents); and
(d) any other information that the Employment Advocate requires by notice published in the Gazette.
(5) If a waiver has been made under section 102D in relation to the variation, subsection (1) and paragraph (3)(b) do not apply in relation to a time after the waiver takes effect.
(6) For the purposes of this section, if because of the variation, the agreement as varied would incorporate terms from an industrial instrument mentioned in subsection 101C(2), the eligible employees have ready access to the variation only if they have ready access to that instrument in writing.
(7) To avoid doubt, if the content of the variation is changed during the period mentioned in subsection (1), the change results in a separate variation for the purposes of this section.
Note: If the content of a variation for which the employer intends to seek approval is changed, the procedural steps set out in subsections (1), (2) and (3) must be repeated for the resulting separate variation.
Contravention—ready access
(8) An employer contravenes this subsection if:
(a) the employer lodges a variation to a workplace agreement; and
(b) the employer failed to comply with subsection (1) or (if applicable) paragraph (3)(b) in relation to the variation.
Contravention—information statement
(9) An employer contravenes this subsection if:
(a) the employer lodges a variation to a workplace agreement; and
(b) the employer failed to comply with subsection (2) or (if applicable) paragraph (3)(a) in relation to the variation.
(10) Subsections (8) and (9) are civil remedy provisions.
Note: See Division 11 for provisions on enforcement.
(11) An employer cannot contravene subsection (8) or (9) more than once in relation to the lodgment of a particular variation.
102D Employees may waive ready access
(1) The persons mentioned in subsection (2) may make a waiver under this section in relation to a variation to a workplace agreement.
(2) The persons are all the eligible employees at the time the waiver is made.
(3) The waiver must be in writing and dated.
(4) The waiver is made when all the persons mentioned in subsection (2) sign the waiver.
(5) The waiver takes effect when it is made.
102E Prohibition on withdrawal from variation to union collective agreement or union greenfields agreement
(1) An employer that has made a variation to a union collective agreement or a union greenfields agreement must take reasonable steps to seek approval for the variation under section 102F, within a reasonable period after the variation was made.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
102F Approval of a variation to a workplace agreement
(1) A variation to an AWA is approved if:
(a) the variation is signed and dated by the employee and the employer; and
(b) those signatures are witnessed; and
(c) if the employee is under the age of 18 years:
(i) the variation is signed and dated by an appropriate person (such as a parent or guardian of the employee, but not the employer) on behalf of the employee, for the purpose of indicating that person’s consent to the employee making the variation; and
(ii) that person is aged at least 18 years; and
(iii) that person’s signature is witnessed.
(2) A variation to a collective agreement is approved if:
(a) the employer has given all of the persons employed at the time whose employment:
(i) is subject to the agreement; or
(ii) will be subject to the agreement as varied;
a reasonable opportunity to decide whether they want to approve the variation; and
(b) either:
(i) if the decision is made by a vote—a majority of those persons who cast a valid vote decide that they want to approve the variation; or
(ii) otherwise—a majority of those persons decide that they want to approve the variation.
102G Employer must not lodge unapproved variation
(1) An employer contravenes this section if:
(a) the employer lodges a variation to a workplace agreement; and
(b) the variation has not been approved in accordance with section 102F.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
Subdivision C—Lodgment of variations
102H Employer must lodge variations with the Employment Advocate
(1) If a variation has been approved in accordance with section 102F, the employer must lodge the variation, in accordance with section 102J, within 14 days after the variation was approved.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
102I Lodging variation to multiple‑business agreement without authorisation
(1) An employer contravenes this subsection if:
(a) the employer lodges a variation to a multiple‑business agreement; and
(b) the variation has not been authorised under section 96F.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
102J Lodging of variation documents with the Employment Advocate
(1) The employer in relation to a variation to a workplace agreement lodges the variation with the Employment Advocate if:
(a) the employer lodges a declaration under subsection (2); and
(b) a copy of the variation is annexed to the declaration.
(2) An employer lodges a declaration with the Employment Advocate if:
(a) the employer gives it to the Employment Advocate; and
(b) it meets the form requirements mentioned in subsection (3).
Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
(3) The Employment Advocate may, by notice published in the Gazette, set out requirements for the form of a declaration for the purposes of paragraph (2)(b).
(4) A declaration is given to the Employment Advocate for the purposes of subsection (2) only if the declaration is actually received by the Employment Advocate.
Note: This means that section 29 of the Acts Interpretation Act 1901 (to the extent that it deals with the time of service of documents) and section 160 of the Evidence Act 1995 do not apply to lodgment of a declaration.
(5) The Employment Advocate is not required to consider or determine whether any of the requirements of this Part have been met in relation to the making or content of anything annexed to a declaration lodged in accordance with subsection (2).
102K Employment Advocate must issue receipt for lodgment of declaration for variation
(1) If a declaration is lodged under subsection 102J(2), the Employment Advocate must issue a receipt for the lodgment.
(2) The Employment Advocate must give a copy of the receipt to:
(a) the employer in relation to the relevant workplace agreement; and
(b) if the relevant workplace agreement is an AWA—the employee; and
(c) if the relevant workplace agreement is a union collective agreement or a union greenfields agreement—the organisation or organisations bound by the agreement.
102L Employer must notify employees after lodging variation
(1) An employer that has received a receipt under section 102K in relation to a collective agreement must take reasonable steps to ensure that all persons whose employment is subject to the agreement when the employer receives the receipt are given a copy of the receipt within 21 days.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
Subdivision D—When a variation comes into operation
102M When a variation comes into operation
(1) A variation to a workplace agreement comes into operation when the variation is lodged with the Employment Advocate in accordance with section 102J.
(2) The variation comes into operation even if the requirements in Division 3, Subdivision B of this Division and section 102H have not been met in relation to the variation.
(3) A variation to a multiple‑business agreement comes into operation only if the variation has been authorised under section 96F.
Division 9—Terminating a workplace agreement
Subdivision A—General
103 Types of termination
(1) A workplace agreement may be terminated:
(a) by approval (see Subdivisions B and C); or
(b) unilaterally (see Subdivision D).
(2) A workplace agreement is terminated when:
(a) a termination of the agreement is lodged with the Employment Advocate in accordance with section 103H; or
(b) a declaration to terminate the agreement in accordance with subsection 103K(2) is lodged with the Employment Advocate in accordance with section 103N; or
(c) a declaration to terminate the agreement in accordance with subsection 103L(2) is lodged with the Employment Advocate in accordance with section 103N.
Subdivision B—Termination by approval (pre‑lodgment procedure)
103A Terminating a workplace agreement by approval
A workplace agreement may be terminated in accordance with this Subdivision by the following:
(a) in the case of an AWA—the employer and the employee;
(b) in the case of an employee collective agreement or an employer greenfields agreement—the employer and the employees whose employment is subject to the agreement;
(c) in the case of a union collective agreement or a union greenfields agreement—the employer and the one or more organisations of employees that are bound by the agreement.
103B Eligible employee in relation to termination of workplace agreement
For the purposes of this Subdivision, an eligible employee in relation to a termination of a workplace agreement in accordance with this Subdivision is:
(a) in the case of an AWA—the employee; or
(b) in the case of a collective agreement—a person employed at the time whose employment is subject to the agreement.
103C Providing employees with information statement
(1) If an employer intends to have the termination of a workplace agreement approved under section 103E, the employer must take reasonable steps to ensure that all eligible employees in relation to the termination are given an information statement at or before the start of the period of 7 days ending when the termination is approved.
(2) Despite subsection (1), if the relevant workplace agreement is a collective agreement and a person becomes an eligible employee at a time during the period mentioned in subsection (1), the employer must take reasonable steps to ensure that the person is given an information statement at or before that time.
(3) The information statement mentioned in subsections (1) and (2) must contain:
(a) information about the time at which and the manner in which the approval will be sought under section 103E; and
(b) if the relevant workplace agreement is an AWA—information about the effect of section 97A (which deals with bargaining agents); and
(c) any other information that the Employment Advocate requires by notice published in the Gazette.
Contravention—information statement
(4) An employer contravenes this subsection if:
(a) the employer lodges a declaration to terminate a workplace agreement; and
(b) the employer failed to comply with subsection (1) or (if applicable) subsection (2) in relation to the termination.
(5) Subsection (4) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
(6) An employer cannot contravene subsection (4) more than once in relation to the lodgment of a particular termination.
103D Prohibition on withdrawal from termination of union collective agreement or union greenfields agreement
(1) An employer that has agreed to terminate a union collective agreement or a union greenfields agreement with the organisation or organisations bound by the agreement must take reasonable steps to seek approval for the termination under section 103E, within a reasonable period after agreeing to do so.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
103E Approval of a termination
(1) A termination of an AWA is approved if:
(a) the employer and employee make a written termination agreement to terminate the AWA; and
(b) the termination agreement is signed and dated by the employee and the employer; and
(c) those signatures are witnessed; and
(d) if the employee is under the age of 18 years:
(i) the termination agreement is signed and dated by an appropriate person (such as a parent or guardian of the employee, but not the employer) on behalf of the employee, for the purpose of indicating that person’s consent to the employee terminating the AWA; and
(ii) that person is aged at least 18 years; and
(iii) that person’s signature is witnessed.
(2) A termination of a collective agreement is approved if:
(a) the employer has given all of the persons employed at the time whose employment is subject to the agreement a reasonable opportunity to decide whether they want to approve the termination; and
(b) either:
(i) if the decision is made by a vote—a majority of those persons who cast a valid vote decide that they want to approve the termination; or
(ii) otherwise—a majority of those persons decide that they want to approve the termination.
103F Employer must not lodge unapproved termination
(1) An employer contravenes this subsection if:
(a) the employer lodges a termination of a workplace agreement; and
(b) the termination has not been approved in accordance with section 103E.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
Subdivision C—Termination by approval (lodgment)
103G Employer must lodge termination with the Employment Advocate
(1) If a termination has been approved in accordance with section 103E, the employer must lodge the termination, in accordance with section 103H, within 14 days after the termination was approved.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
103H Lodging termination documents with the Employment Advocate
(1) The employer in relation to a workplace agreement to be terminated lodges the termination with the Employment Advocate if:
(a) the employer lodges a declaration under subsection (2) for the termination of the workplace agreement; and
(b) if the workplace agreement is an AWA—a copy of the termination agreement is annexed to the declaration.
(2) An employer lodges a declaration with the Employment Advocate if:
(a) the employer gives it to the Employment Advocate; and
(b) it meets the form requirements mentioned in subsection (3).
Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
(3) The Employment Advocate may, by notice published in the Gazette, set out requirements for the form of a declaration for the purposes of paragraph (2)(b).
(4) A declaration is given to the Employment Advocate for the purposes of subsection (2) only if the declaration is actually received by the Employment Advocate.
Note: This means that section 29 of the Acts Interpretation Act 1901 (to the extent that it deals with the time of service of documents) and section 160 of the Evidence Act 1995 do not apply to lodgment of a declaration.
(5) The Employment Advocate is not required to consider or determine whether any of the requirements of this Division (other than this section) have been met in relation to the termination.
103I Employment Advocate must issue receipt for lodgment of declaration for termination
(1) If a declaration is lodged under subsection 103H(2), the Employment Advocate must issue a receipt for the lodgment.
(2) The Employment Advocate must give a copy of the receipt to:
(a) the employer in relation to the relevant workplace agreement; and
(b) if the relevant workplace agreement is an AWA—the employee; and
(c) if the relevant workplace agreement is a union collective agreement or a union greenfields agreement—the organisation or organisations bound by the agreement.
103J Employer must notify employees after lodging termination
(1) An employer that has received a receipt under section 103I in relation to a collective agreement must take reasonable steps to ensure that all persons whose employment was subject to the agreement just before the declaration was lodged are given a copy of the receipt within 21 days.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
Subdivision D—Unilateral termination after nominal expiry date
103K Unilateral termination in a manner provided for in workplace agreement
(1) This section applies if a workplace agreement provides for a manner of terminating the agreement after its nominal expiry date.
(2) Any of the following persons may terminate the agreement by lodging a declaration in accordance with section 103N:
(a) the employer in relation to the agreement;
(b) a majority of the employees whose employment is subject to the agreement when the notice mentioned in subsection (4) is given;
(c) in the case of an AWA—a bargaining agent at the request of the employer or the employee;
(d) an organisation of employees that is bound by the agreement.
Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
(3) However, this may be done only if:
(a) the nominal expiry date of the workplace agreement has passed; and
(b) all the requirements in the agreement for terminating the agreement are met.
(4) At least 14 days before the lodgment, and after the nominal expiry date of the agreement has passed, the person or persons intending to lodge the declaration must take reasonable steps to ensure that the following are given written notice of the termination:
(a) the employer in relation to the agreement;
(b) each employee whose employment is subject to the agreement when the notice is given;
(c) an organisation of employees that is bound by the agreement.
(5) The notice must:
(a) state that the workplace agreement is to be terminated in the manner provided for by the agreement; and
(b) be in the form (if any) that the Employment Advocate requires by notice published in the Gazette; and
(c) contain the information (if any) that the Employment Advocate requires by notice published in the Gazette.
(6) A person contravenes this subsection if:
(a) the person lodges a declaration to terminate a workplace agreement under subsection (2); and
(b) the person failed to comply with subsection (4) or (5).
(7) Subsection (6) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
(8) This section does not apply in relation to a multiple‑business agreement.
103L Unilateral termination with 90 days written notice
(1) This section applies whether or not a workplace agreement provides for a manner of terminating the agreement after its nominal expiry date.
(2) Any of the following persons may terminate the agreement by lodging a declaration in accordance with section 103N:
(a) the employer in relation to the agreement;
(b) a majority of the employees whose employment is subject to the agreement when the notice mentioned in subsection (4) is given;
(c) in the case of an AWA—a bargaining agent at the request of the employer or the employee;
(d) an organisation of employees that is bound by the agreement.
Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
(3) However, this may be done only if the nominal expiry date of the workplace agreement has passed.
(4) At least 90 days before the lodgment, and after the nominal expiry date of the agreement has passed, the person or persons intending to lodge the declaration must take reasonable steps to ensure that:
(a) the following are given written notice of the termination:
(i) the employer in relation to the agreement;
(ii) each employee whose employment is subject to the agreement when the notice is given;
(iii) an organisation of employees that is bound by the agreement; and
(b) if the person giving the notice is the employer bound by the agreement—a written copy of the undertakings (if any) made by the employer under section 103M.
(5) The notice must:
(a) state that the workplace agreement is to be terminated; and
(b) specify the day on which the person or persons propose to lodge the notice; and
(c) be in the form (if any) that the Employment Advocate requires by notice published in the Gazette; and
(d) contain the information (if any) that the Employment Advocate requires by notice published in the Gazette.
(6) A person contravenes this subsection if:
(a) the person lodges a declaration to terminate a workplace agreement under subsection (2); and
(b) the person failed to comply with subsection (4) or (5).
Note: See Division 11 for provisions on enforcement.
(7) Subsection (6) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
(8) This section does not apply in relation to a multiple‑business agreement.
103M Undertakings about post‑termination conditions
(1) An employer intending to terminate a workplace agreement under subsection 103L(2) may make undertakings as to the terms and conditions of employment of employees who were bound by the workplace agreement just before it was terminated.
(2) The undertakings come into operation on the day that the workplace agreement is terminated.
(3) The undertakings cease to operate in relation to an employee when the employee’s employment becomes subject to a later workplace agreement.
(4) Subject to this section, the following provisions apply to the undertakings as if they were a workplace agreement in operation:
(a) Part VIII;
(b) Part V;
(c) any other provision of this Act specified in the regulations.
(5) An employer contravenes this subsection if:
(a) the employer lodges a declaration to terminate a workplace agreement under subsection (2); and
(b) the employer has made undertakings in relation to that termination; and
(c) the employer did not annex a copy of the undertakings to the declaration.
(6) Subsection (5) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
(7) If undertakings have ceased operating in relation to an employee because of subsection (3), they can never operate again in relation to that employee.
103N Lodging unilateral termination documents with the Employment Advocate
(1) A person lodges a declaration to terminate a workplace agreement under section 103K or 103L with the Employment Advocate if:
(a) the person gives it to the Employment Advocate; and
(b) it meets the form requirements mentioned in subsection (3).
Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
(2) If the person is the employer in relation to the agreement, the employer lodges undertakings in relation to the termination if:
(a) the employer lodges a declaration under subsection (1); and
(b) a copy of the undertakings is annexed to the declaration.
(3) The Employment Advocate may, by notice published in the Gazette, set out requirements for the form of a declaration for the purposes of paragraph (1)(b).
(4) A declaration is given to the Employment Advocate for the purposes of subsection (1) only if the declaration is actually received by the Employment Advocate.
Note: This means that section 29 of the Acts Interpretation Act 1901 (to the extent that it deals with the time of service of documents) and section 160 of the Evidence Act 1995 do not apply to lodgment of a declaration.
(5) The Employment Advocate is not required to consider or determine whether any of the requirements of this Subdivision (apart from this section) have been met in relation to the termination.
103O Employment Advocate must issue receipt for lodgment of declaration for notice of termination
(1) If a declaration is lodged under subsection 103N(1) the Employment Advocate must issue a receipt for the lodgment.
(2) The Employment Advocate must give a copy of the receipt to:
(a) the person that lodged the declaration; and
(b) the employer in relation to the relevant workplace agreement; and
(c) if the relevant workplace agreement is an AWA—the employee; and
(d) if the relevant workplace agreement is a union collective agreement or a union greenfields agreement—the organisation or organisations bound by the agreement.
103P Employer must notify employees after lodging notice of termination
(1) An employer that has received a receipt under section 103O in relation to a collective agreement must take reasonable steps to ensure that all persons whose employment was subject to the agreement just before the declaration was lodged are given a copy of the receipt within 21 days.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
Subdivision E—Effect of termination
103Q When a termination takes effect
A termination takes effect even if:
(a) the requirements in Division 3 have not been met in relation to the termination; or
(b) in the case of a termination mentioned in paragraph 103(1)(a)—the requirements in Subdivision B and section 103G have not been met in relation to the termination; or
(c) in the case of a termination mentioned in paragraph 103(1)(b)—the requirements in subsections 103K(4) and (5) and 103L(4) and (5) have not been met in relation to the termination.
103R Consequence of termination of agreement—application of other industrial instruments
(1) An industrial instrument mentioned in subsection (3) has no effect in relation to an employee if:
(a) a workplace agreement operated in relation to the employee; and
(b) the workplace agreement was terminated.
Note 1: See Part VA for the operation of the Australian Fair Pay and Conditions Standard in these circumstances.
Note 2: See subsections 103M(2), (3) and (4) for the operation of undertakings (if any) in these circumstances.
(2) Subsection (1) operates in relation to the period:
(a) starting when the agreement is terminated; and
(b) ending when another workplace agreement comes into operation in relation to the employee.
(3) The industrial instruments are as follows:
(a) a workplace agreement;
(b) an award, except to the extent to which it contains protected award conditions as defined in section 101B (disregarding any exclusion or modification of those conditions made by the agreement that was terminated).
Division 10—Prohibited conduct
104 Coercion and duress
(1) A person must not:
(a) engage in or organise, or threaten to engage in or organise, any industrial action; or
(b) take, or threaten to take, other action; or
(c) refrain, or threaten to refrain, from taking any action;
with intent to coerce another person to agree, or not to agree, to make, approve, lodge, vary or terminate a collective agreement.
(2) Subsection (1) does not apply to protected action (within the meaning of section 108).
(3) A person must not coerce, or attempt to coerce, an employer or employee in relation to an AWA:
(a) to appoint, or not to appoint, a particular person as a bargaining agent under subsection 97A(1); or
(b) to terminate the appointment of a bargaining agent appointed under subsection 97A(1).
(4) A person must not coerce, or attempt to coerce, an employee of an employer:
(a) not to make a request mentioned in subsection 97B(1) or (2) in relation to a collective agreement; or
(b) to withdraw such a request.
(5) A person must not apply duress to an employer or employee in connection with an AWA.
(6) To avoid doubt, a person does not apply duress for the purposes of subsection (5) merely because the person requires another person to make an AWA as a condition of engagement.
(7) Subsections (1), (3), (4) and (5) are civil remedy provisions.
Note: See Division 11 for provisions on enforcement.
104A False or misleading statements
(1) A person contravenes this section if:
(a) the person makes a false or misleading statement to another person; and
(b) the person is reckless as to whether the statement is false or misleading; and
(c) the making of that statement causes the other person:
(i) to make, approve, lodge, vary or terminate a workplace agreement; or
(ii) not to make, approve, lodge, vary or terminate a workplace agreement.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
104B Employers not to discriminate between unionist and non‑unionist
(1) An employer must not, in negotiating a collective agreement, or a variation to a collective agreement, discriminate between employees of the employer:
(a) because some of those employees are members of an organisation of employees while others are not members of such an organisation; or
(b) because some of those employees are members of a particular organisation of employees, while others are not members of that organisation or are members of a different organisation of employees.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
Division 11—Contravention of civil remedy provisions
Note: For other rules about civil remedy provisions, see Division 4 of Part VIII.
Subdivision A—General
105 General powers of Court not affected by this Division
This Division does not affect the following:
(a) the powers of the Court under Part XIV;
(b) any other powers of the Court.
105A Workplace inspector may take over proceeding
(1) A workplace inspector may take over a proceeding that was instituted or is being carried on by another person for an order under this Division.
(2) If a workplace inspector takes over such a proceeding, he or she may:
(a) carry it on further; or
(b) decline to carry it on further (whether immediately or at a later stage of the proceeding).
105B Standing for civil remedies
(1) Any of the following persons may apply to the Court for an order under this Division in relation to a workplace agreement:
(a) an employee who is or will be bound by the agreement;
(b) if the person who contravened the civil remedy provision was not the employer in relation to the agreement, and the provision is mentioned in subsection (2)—the employer;
(c) an organisation of employees that is or will be bound by the agreement;
(d) an organisation of employees that represents an employee who is or will be bound by the agreement (subject to subsection (3));
(e) if the agreement is an AWA—a bargaining agent of the employee or of the employer;
(f) a workplace inspector;
(g) a person specified in regulations made for the purposes of this paragraph.
(2) The provisions are as follows:
(a) subsection 97A(2);
(b) subsection 101M(1);
(c) subsection 101N(1);
(d) subsection 103K(6);
(e) subsection 103L(6);
(f) subsection 104(1);
(g) subsection 104(3);
(h) subsection 104(5);
(i) subsection 104A(1).
(3) An organisation of employees that represents an employee (as mentioned in paragraph (1)(d)) must not apply on behalf of an employee for a penalty or other remedy under this Division in relation to a contravention of a civil remedy provision unless:
(a) the employee has requested the organisation to apply on the employee’s behalf; and
(b) a member of the organisation is employed by the employee’s employer; and
(c) the organisation is entitled, under its eligibility rules, to represent the industrial interests of the employee.
Subdivision B—Pecuniary penalty for contravention of civil remedy provisions
105C Application of Subdivision
This Subdivision applies to a contravention by a person of a civil remedy provision in this Part.
105D Court may order pecuniary penalty
(1) The Court may order the person who contravened the civil remedy provision to pay a pecuniary penalty of up to:
(a) if the person is an individual—the maximum number of penalty units specified in subsection (2); or
(b) if the person is a body corporate—5 times the maximum number of penalty units specified in subsection (2).
(2) The maximum number of penalty units is as follows:
(a) for subsection 97A(2)—30 penalty units;
(b) for subsection 97B(3)—30 penalty units;
(c) for subsection 98(8)—30 penalty units;
(d) for subsection 98(9)—30 penalty units;
(e) for subsection 98B(1)—30 penalty units;
(f) for subsection 98D(1)—60 penalty units;
(g) for subsection 99(1)—30 penalty units;
(h) for subsection 99(2)—30 penalty units;
(i) for subsection 99A(1)—60 penalty units;
(j) for subsection 99D(1)—30 penalty units;
(k) for subsection 101E(1)—60 penalty units;
(l) for subsection 101J(1)—30 penalty units;
(m) for subsection 101L(1)—30 penalty units;
(n) for subsection 101M(1)—60 penalty units;
(o) for subsection 101N(1)—60 penalty units;
(p) for subsection 102C(8)—30 penalty units;
(q) for subsection 102C(9)—30 penalty units;
(r) for subsection 102E(1)—30 penalty units;
(s) for subsection 102G(1)—60 penalty units;
(t) for subsection 102H(1)—30 penalty units;
(u) for subsection 102I(1)—60 penalty units;
(v) for subsection 102L(1)—30 penalty units;
(w) for subsection 103C(4)—30 penalty units;
(x) for subsection 103D(1)—30 penalty units;
(y) for subsection 103F(1)—60 penalty units;
(z) for subsection 103G(1)—30 penalty units;
(za) for subsection 103J(1)—30 penalty units;
(zb) for subsection 103K(6)—60 penalty units;
(zc) for subsection 103L(6)—60 penalty units;
(zd) for subsection 103M(5)—30 penalty units;
(ze) for subsection 103P(1)—30 penalty units;
(zf) for subsection 104(1)—60 penalty units;
(zg) for subsection 104(3)—60 penalty units;
(zh) for subsection 104(4)—60 penalty units;
(zi) for subsection 104(5)—60 penalty units;
(zj) for subsection 104A(1)—60 penalty units;
(zk) for subsection 104B(1)—60 penalty units.
Subdivision C—Other remedies for contravention of certain civil remedy provisions
105E Application of Subdivision
This Subdivision applies to a contravention by a person of any of the following civil remedy provisions in relation to a workplace agreement:
(a) subsection 98D(1);
(b) subsection 102G(1);
(c) subsection 103F(1);
(d) subsection 103K(6);
(e) subsection 103L(6);
(f) subsection 104(1);
(g) subsection 104(5);
(h) subsection 104A(1).
105F Court may declare workplace agreement or part of workplace agreement void
The Court may make an order:
(a) declaring that the workplace agreement is void; or
(b) declaring that specified terms of the workplace agreement are void.
105G Court may vary terms of workplace agreement
The Court may make an order varying the terms of the workplace agreement.
105H Court may order that workplace agreement continues to operate despite termination
(1) This section applies if the workplace agreement has been terminated as a result of the contravention mentioned in section 105E.
(2) The Court may make an order declaring that the workplace agreement continues to operate despite the termination.
105I Date of effect and preconditions for orders under sections 105F, 105G and 105H
(1) An order under section 105F, 105G or 105H takes effect from the date of the order or a later date specified in the order.
(2) The Court may make an order under section 105F, 105G or 105H only to the extent that the Court considers appropriate to remedy the following:
(a) all or part of any loss or damage resulting from the contravention mentioned in section 105E;
(b) prevention or reduction of all or part of that loss or damage.
105J Court may order compensation
The Court may make an order that the person mentioned in section 105E pay compensation of such amount as the Court considers appropriate for any loss or damage resulting from the contravention suffered by an employee whose employment is subject to the agreement.
105K Court may order injunction
(1) The Court may grant an injunction requiring the person mentioned in section 105E to cease contravening (or not to contravene) the civil remedy provision.
(2) Subsection (1) also applies in relation to a contravention of subsection 104B(1).
Division 12—Miscellaneous
105L AWAs with Commonwealth employees
(1) An Agency Head (within the meaning of the Public Service Act 1999) may act on behalf of the Commonwealth in relation to AWAs with persons in the Agency who are engaged under the Public Service Act 1999.
(2) A Secretary of a Department (within the meaning of the Parliamentary Service Act 1999) may act on behalf of the Commonwealth in relation to AWAs with persons in the Department who are engaged under the Parliamentary Service Act 1999.
105M Evidence—verified copies
(1) The Employment Advocate may issue a verified copy of any of the following:
(a) a declaration lodged under subsection 99B(2), 102J(2), 103H(2) or 103N(1) in relation to a workplace agreement;
(b) a document annexed to a declaration mentioned in paragraph (a);
(c) a receipt issued by the Employment Advocate under section 99C, 102K, 103I or 103O in relation to a workplace agreement;
(d) a written notice given by the Employment Advocate under subsection 101H(1) or paragraph 101K(4)(a) in relation to a workplace agreement;
(e) an authorisation granted by the Employment Advocate under section 96F for a workplace agreement that is a multiple‑business agreement;
(f) a written advice in relation to a workplace agreement given by the Employment Advocate to an employer for the purposes of paragraph 101E(2)(a).
Note: For the definition of verified copy, see section 95.
(2) The verified copy may only be issued to a person who is or was bound by the workplace agreement to which the verified copy relates.
(3) In the Court and in proceedings in the Court, a verified copy issued by the Employment Advocate under subsection (1) is prima facie evidence of the document of which it is a verified copy.
(4) A document that purports to be a verified copy issued by the Employment Advocate under subsection (1) is taken to be such a copy, unless evidence to the contrary is adduced.
105N Evidence—certificates
(1) The Employment Advocate may issue a certificate stating any one or more of the following in relation to one or more workplace agreements:
(a) that a particular person lodged a particular declaration under subsection 99B(2), 102J(2), 103H(2) or 103N(1) with the Employment Advocate on a particular day;
(b) if the certificate states that a declaration was lodged with the Employment Advocate as mentioned in paragraph (a)—that a particular document was annexed to the declaration;
(c) that particular declarations lodged with the Employment Advocate as mentioned in paragraph (a) in relation to a particular workplace agreement are the only such declarations that were so lodged in relation to that workplace agreement before a particular day;
(d) if the certificate states that particular documents were annexed to declarations lodged with the Employment Advocate as mentioned in paragraph (b)—that those documents were the only documents annexed to those declarations;
(e) that the Employment Advocate issued a receipt under section 99C, 102K, 103I or 103O to a particular person on a particular day for such a lodgment;
(f) if the certificate states that particular receipts were issued by the Employment Advocate as mentioned in paragraph (e) in relation to a particular workplace agreement—that those receipts were the only receipts so issued in relation to the workplace agreement before a particular day;
(g) that the Employment Advocate gave a particular advice for the purposes of paragraph 101E(2)(a) to a particular person on a particular day;
(h) if the certificate states that particular advices were given by the Employment Advocate as mentioned in paragraph (g) in relation to a particular workplace agreement—that those advices were the only advices so given in relation to the workplace agreement before a particular day;
(i) that the Employment Advocate granted an authorisation under section 96F on a particular day for a particular employer to make or vary a particular multiple‑business agreement;
(j) if the certificate states that particular authorisations were granted by the Employment Advocate as mentioned in paragraph (i) in relation to a particular multiple‑business agreement—that those authorisations were the only authorisations so granted in relation to the multiple‑business agreement before a particular day;
(k) that the Employment Advocate gave a particular notice under subsection 101H(1) or paragraph 101K(4)(a) on a particular day to a particular employer;
(l) if the certificate states that particular notices were given by the Employment Advocate as mentioned in paragraph (k) in relation to a particular workplace agreement—that those notices were the only notices so given in relation to that workplace agreement before a particular day.
(2) The certificate may only be issued to a person who is or was bound by the workplace agreement or all of the workplace agreements to which the certificate relates.
(3) In the Court and in proceedings in the Court, a certificate issued by the Employment Advocate under subsection (1) is prima facie evidence of the matters stated in the certificate.
(4) A document that purports to be a certificate issued by the Employment Advocate under subsection (1) is taken to be such a certificate, unless evidence to the contrary is adduced.
105O Regulations relating to workplace agreements
The regulations may make provision in relation to the following matters:
(a) requiring an employer who is bound by a workplace agreement to supply copies of prescribed documents to the employee or employees bound by the workplace agreement;
(b) the qualifications and appointment of bargaining agents;
(c) the required form of workplace agreements (including a requirement that documents be in the English language);
(d) the witnessing of signatures on AWAs;
(e) the signing of workplace agreements by persons bound by those agreements, or representatives of those persons;
(f) the retention by employers of signed workplace agreements (including the manner and period of retention);
(g) prescribing fees for the issue by the Employment Advocate of certificates and verified copies.
Note: See section 359 for the types of sanctions that the regulations may provide for a breach of the regulations.
Part VC—Industrial action
Division 1—Preliminary
106 Definitions
(1) In this Part:
authorised ballot agent means an authorised ballot agent as defined in section 109A for the purpose of Division 4.
bargaining period has the meaning given by section 107.
Court means the Federal Court of Australia or the Federal Magistrates Court.
industrial action has the meaning given by section 106A.
initiating notice has the meaning given by section 107.
initiating party has the meaning given by section 107.
negotiating party has the meaning given by section 107.
pattern bargaining has the meaning given by section 106B.
proposed collective agreement has the meaning given by section 107.
protected action has the meaning given by section 108.
protected action ballot means a ballot under Division 4.
(2) Expressions used in this Part that are also used in Part VB have the same meanings in this Part as they have in that Part.
106A Meaning of industrial action
(1) For the purposes of this Act, industrial action means any action of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees;
but does not include the following:
(e) action by employees that is authorised or agreed to by the employer of the employees;
(f) action by an employer that is authorised or agreed to by or on behalf of employees of the employer;
(g) action by an employee if:
(i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
Note 1: See also subsection (4), which deals with the burden of proof of the exception in subparagraph (g)(i) of this definition.
Note 2: The issue of whether action that is not industrial in character is industrial action was considered by the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290. In that case, the Full Bench of the Commission drew a distinction between an employee who does not attend for work in support of a collective demand that the employer agree to alteration of the conditions of employment as being clearly engaged in industrial action and an employee who does not attend for work on account of illness.
(2) For the purposes of this Act:
(a) conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that employees are required to perform in the course of their employment; and
(b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.
Meaning of lockout
(3) For the purposes of this section, an employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts (except to the extent that this would be an expansion of the ordinary meaning of that expression).
Burden of proof
(4) Whenever a person seeks to rely on subparagraph (g)(i) of the definition of industrial action in subsection (1), that person has the burden of proving that subparagraph (g)(i) applies.
106B Meaning of pattern bargaining
What is pattern bargaining?
(1) For the purposes of this Part, a course of conduct by a person is pattern bargaining if:
(a) the person is a negotiating party to 2 or more proposed collective agreements; and
(b) the course of conduct involves seeking common wages or conditions of employment for 2 or more of those proposed collective agreements; and
(c) the course of conduct extends beyond a single business.
Exception: terms or conditions determined as national standards
(2) The course of conduct is not pattern bargaining to the extent that the negotiating party is seeking, for 2 or more of the proposed collective agreements, terms or conditions of employment determined by the Full Bench in a decision establishing national standards.
Exception: genuinely trying to reach an agreement for a single business or part of a single business
(3) The course of conduct, to the extent that it relates to a particular single business or part of a single business, is not pattern bargaining if the negotiating party is genuinely trying to reach an agreement for the business or part.
(4) For the purposes of subsection (3), factors relevant to working out whether the negotiating party is genuinely trying to reach an agreement for a single business or part of a single business include (but are not limited to) the following:
(a) demonstrating a preparedness to negotiate an agreement which takes into account the individual circumstances of the business or part;
(b) demonstrating a preparedness to negotiate a workplace agreement with a nominal expiry date which takes into account the individual circumstances of the business or part;
(c) negotiating in a manner consistent with wages and conditions of employment being determined as far as possible by agreement between the employer and its employees at the level of the single business or part;
(d) agreeing to meet face‑to‑face at reasonable times proposed by another negotiating party;
(e) considering and responding to proposals made by another negotiating party within a reasonable time;
(f) not capriciously adding or withdrawing items for bargaining.
(5) Whenever a person seeks to rely on subsection (3), the person has the burden of proving that subsection (3) applies.
(6) This section does not affect, and is not affected by, the meaning of the term “genuinely trying to reach an agreement”, or any variant of the term, as used elsewhere in this Act.
106C Extraterritorial extension
Australia’s exclusive economic zone
(1) This Part, and the rest of this Act so far as it relates to this Part, extend in relation to Australia’s exclusive economic zone in the way prescribed by the regulations (if any).
(2) If the regulations prescribe modifications of this Act (other than this section) for its operation in relation to Australia’s exclusive economic zone under subsection (1), this Act has effect (in accordance with that subsection) as modified in relation to Australia’s exclusive economic zone.
Australia’s continental shelf
(3) This Part, and the rest of this Act so far as it relates to this Part, extend, in the way prescribed by the regulations (if any), in relation to a part of Australia’s continental shelf that is prescribed by the regulations.
(4) If the regulations prescribe modifications of this Act (other than this section) for its operation in relation to a prescribed part of Australia’s continental shelf under subsection (3), this Act has effect (in accordance with that subsection) as modified in relation to that part.
Note: The regulations may prescribe different modifications relating to different parts of Australia’s continental shelf. The regulations may need to do so to give effect to Australia’s international obligations.
Definitions
(5) In this section:
modifications includes additions, omissions and substitutions.
this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.
Division 2—Bargaining periods
107 Initiation of bargaining period
(1) This section applies in relation to a collective agreement that a person referred to in subsection (2) wants to try to make if the agreement, if made:
(a) will be made under section 96A or 96B; and
(b) will not be:
(i) a multiple‑business agreement; or
(ii) an agreement with 2 or more corporations that are treated as one employer because of paragraph 95A(2)(b).
(2) If:
(a) an employer; or
(b) an organisation of employees; or
(c) an employee acting on his or her own behalf and on behalf of other employees;
wants to try to make a collective agreement to which this section applies in relation to employees who are employed in a single business or a part of a single business, the employer, organisation or employee (the initiating party) may initiate a period (the bargaining period) for negotiating the agreement.
Note: This subsection has effect subject to subsections 107F(2), 107G(12) and (13), 107H(6) and (7) and 112(6).
(3) The bargaining period is initiated by the initiating party giving written notice (the initiating notice) to each other negotiating party and to the Commission stating that the initiating party intends to try to make a collective agreement to which this section applies (the proposed collective agreement) with the other negotiating parties under section 96A or 96B.
(4) Each of the following is a negotiating party in relation to the proposed collective agreement:
(a) the initiating party;
(b) if the initiating party is an employer who intends to try to make the proposed collective agreement under section 96A—the employees at the time whose employment will be subject to the proposed collective agreement;
(c) if the initiating party is an employer who intends to try to make the proposed collective agreement under section 96B—the organisation or organisations who are proposed to be bound by the proposed collective agreement;
(d) if the initiating party is an organisation of employees—the employer who is proposed to be bound by the proposed collective agreement;
(e) if the initiating party is an employee acting on his or her own behalf and on behalf of other employees—the employer who is proposed to be bound by the proposed collective agreement and the employees whose employment will be subject to the proposed collective agreement.
107A Employee may appoint agent to initiate bargaining period
(1) A person referred to in paragraph 107(2)(c) who wishes to initiate a bargaining period under section 107, without disclosing the person’s identity to the person’s employer, may appoint an agent to initiate the bargaining period on the person’s behalf.
(2) If a person has appointed an agent under subsection (1), the notice to the Commission under subsection 107(3) must be accompanied by a document containing the person’s name.
(3) The regulations may make provision in relation to the qualifications and appointment of agents appointed under this section.
107B Identity of person who has appointed agent not to be disclosed
Disclosure by Commission prohibited
(1) The Commission must not disclose information that the Commission has reasonable grounds to believe will identify a person who has appointed an agent under section 107A as a person who has initiated a bargaining period under section 107.
(2) Each of the following is an exception to subsection (1):
(a) the disclosure is required or authorised by this Act or by another Act, by regulations made for the purposes of another provision of this Act, or by regulations made for the purposes of another Act;
(b) the person whose identity is disclosed has, in writing, authorised the disclosure.
Disclosure by person prohibited
(3) A person commits an offence if:
(a) the person discloses information; and
(b) the information is protected information; and
(c) the person has reasonable grounds to believe that the information will identify another person as a person referred to in subsection (1); and
(d) the disclosure is not made by the person in the course of performing functions or duties:
(i) as a Registry official; or
(ii) as, or on behalf of, an authorised ballot agent; and
(e) the disclosure is not required or authorised by this Act or by another Act, by regulations made for the purposes of another provision of this Act, or by regulations made for the purposes of another Act; and
(f) the person whose identity is disclosed has not, in writing, authorised the disclosure.
Penalty: Imprisonment for 6 months.
(4) In this section:
protected information, in relation to a person, means information that the person acquired:
(a) in the course of performing functions or duties as a Registry official; or
(b) in the course of performing functions or duties as, or on behalf of, an authorised ballot agent; or
(c) from a person referred to in paragraph (a) or (b) who acquired the information as mentioned in paragraph (a) or (b).
Registry official means:
(a) the Industrial Registrar; or
(b) a member of the staff of the Industrial Registry (including a Deputy Industrial Registrar).
107C Particulars to accompany notice
An initiating notice is to be accompanied by particulars of:
(a) the single business or part of the single business to be covered by the proposed collective agreement; and
(b) the types of employees whose employment will be subject to the proposed collective agreement and the other persons who will be bound by the proposed collective agreement; and
(c) the matters that the initiating party proposes should be dealt with by the proposed collective agreement; and
(d) the proposed nominal expiry date of the proposed collective agreement; and
(e) any other matters prescribed by the regulations.
107D When bargaining period begins
A bargaining period begins at the end of 7 days after:
(a) the day on which the initiating notice was given; or
(b) if the notice was given to different persons on different days—the later or latest of those days.
107E When bargaining period ends
A bargaining period ends if any of the following events occurs:
(a) a collective agreement under section 96A or 96B is made by the employer and any one or more of the other negotiating parties;
(b) the initiating party tells the other negotiating party or each of the other negotiating parties in writing that the initiating party no longer wants to reach a collective agreement under section 96A or 96B with that other party or those other parties;
(c) the bargaining period is terminated under section 107G, 107H or 112.
107F Power of Commission to restrict initiation of new bargaining periods
(1) This section applies if a bargaining period (the former bargaining period) in relation to a proposed collective agreement has ended because a negotiating party (the former negotiating party) has given a notice under paragraph 107E(b).
(2) Subject to this section, the Commission may, by order, declare that, during a specified period, a specified former negotiating party, or a specified employee of the employer:
(a) is not allowed to initiate a new bargaining period in relation to specified matters that were dealt with by the proposed collective agreement; or
(b) may initiate a bargaining period only on conditions specified in the order.
(3) The Commission must not make an order under subsection (2) unless:
(a) the Commission has given the former negotiating parties an opportunity to be heard; and
(b) the Commission considers that it is in the public interest to make the order; and
(c) either subsection (4) or (5) applies.
(4) The Commission may make an order under subsection (2):
(a) on application by a former negotiating party; and
(b) if, assuming the former bargaining period had not ended, the Commission could make an order under subsection 107G(1) because a circumstance set out in subsection 107G(2), (7) or (8) exists or existed.
(5) The Commission may make an order under subsection (2):
(a) on its own initiative, or on application by a former negotiating party; and
(b) if, assuming the former bargaining period had not ended, the Commission could make an order under subsection 107G(1) because a circumstance set out in subsection 107G(3) exists or existed.
107G Suspension and termination of bargaining periods—general powers of Commission
Suspension or termination required if certain circumstances exist
(1) Subject to subsection (9), the Commission must, by order, suspend or terminate a bargaining period if, after giving the negotiating parties an opportunity to be heard, it is satisfied that any of the circumstances set out in subsections (2), (3) (7) and (8) exists or existed.
Circumstance—failing to genuinely try to reach agreement etc.
(2) A circumstance for the purposes of subsection (1) is that a negotiating party (not being the applicant for the order) that, before or during the bargaining period, has organised or taken, or is organising or taking, industrial action to support or advance claims in respect of the proposed collective agreement:
(a) did not genuinely try to reach an agreement with the other negotiating parties before organising or taking the industrial action; or
(b) is not genuinely trying to reach an agreement with the other negotiating parties; or
(c) has failed to comply with any orders or directions of the Commission made during the bargaining period that relate to, or that relate to industrial action relating to, the making of the proposed collective agreement or to a matter that has arisen in the negotiations for the proposed collective agreement.
Note: The issue of whether or not a negotiating party is genuinely trying to reach agreement with the other negotiating parties was considered by Justice Munro in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Print T1982.
Circumstance—industrial action endangering life etc.
(3) A circumstance for the purposes of subsection (1) is that:
(a) industrial action to support or advance claims in respect of the proposed collective agreement is being taken, or is threatened, impending or probable; and
(b) that industrial action is adversely affecting, or would adversely affect, the employer or employees of the employer; and
(c) that industrial action is threatening, or would threaten:
(i) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or
(ii) to cause significant damage to the Australian economy or an important part of it.
Note: See also Division 8 (about workplace determinations once a bargaining period has been terminated).
(4) If an application is made to the Commission for an order under subsection (1) on the grounds of or including a circumstance set out in subsection (3), the Commission must, as far as practicable, hear and determine the application within 5 days after the application is made.
(5) If subsection (4) applies to an application and the Commission is unable to determine the application within the period referred to in that subsection, the Commission must, within that period, make an interim order suspending the bargaining period until the application is determined.
(6) If the Commission makes an order under subsection (1) terminating a bargaining period in a circumstance set out in subsection (3), the Commission must send each of the negotiating parties a notice:
(a) setting out the effect of Division 8; and
(b) informing the negotiating parties that they may agree to submit the matters at issue to an alternative dispute resolution process conducted by the Commission or another provider (see Divisions 4 and 6 of Part VIIA).
Circumstance—organisations and employees who are not members
(7) A circumstance for the purposes of subsection (1) is that industrial action is being organised or taken by:
(a) an organisation that is a negotiating party; or
(b) a member of such an organisation who is employed by the employer; or
(c) an officer or employee of such an organisation acting in that capacity;
against an employer to support or advance claims in respect of employees:
(d) whose employment will be subject to the agreement; and
(e) who are neither members, nor eligible to become members, of the organisation.
Circumstance—demarcation disputes
(8) A circumstance for the purposes of subsection (1) is that industrial action that is being organised or taken by an organisation that is a negotiating party:
(a) relates, to a significant extent, to a demarcation dispute; or
(b) contravenes an order of the Commission that relates, to a significant extent, to a demarcation dispute.
Orders on application or Commission’s initiative
(9) The Commission:
(a) may not make an order under subsection (1), in a circumstance set out in subsection (2), (7) or (8), except on application by a negotiating party; but
(b) may make an order under subsection (1), in a circumstance set out in subsection (3):
(i) on its own initiative; or
(ii) on application by a negotiating party or the Minister.
Application does not have to identify bargaining periods
(10) An application may be made to the Commission for an order under subsection (1) for the suspension or termination of whatever bargaining periods apply to:
(a) a specified business, or any part of that business; or
(b) a specified part of a specified business;
without specifically identifying the bargaining periods. The application has effect as if it were an application for the suspension or termination of the bargaining period, or each of the bargaining periods, that applies to the specified business (or any part of it), or to the specified part of the business, as the case requires.
Note: The other requirements of this section must still be complied with in relation to the application.
(11) If subsection (10) applies to an application, the Commission must satisfy itself as to which bargaining periods the application has effect in relation to.
Restrictions on initiating new bargaining periods
(12) An order under subsection (1) suspending a bargaining period may, if the Commission considers it to be appropriate, contain a declaration that, during some or all of the period while the suspension has effect, a specified negotiating party or employee of the employer:
(a) is not allowed to initiate a new bargaining period in relation to specified matters that are dealt with by the proposed collective agreement; or
(b) may initiate such a bargaining period only on conditions specified in the declaration.
(13) An order under subsection (1) terminating a bargaining period may, if the Commission considers it to be appropriate, contain a declaration that, during a specified period beginning at the time of the termination, a specified negotiating party or employee of the employer:
(a) is not allowed to initiate a new bargaining period in relation to specified matters that are dealt with by the proposed collective agreement; or
(b) may initiate such a bargaining period only on conditions specified in the declaration.
Extension of notice period required by subsection 107K(3)
(14) In an order under subsection (1), the Commission may, if it is satisfied, in relation to any industrial action that might be taken (by virtue of section 107K) after the end of the period of suspension, that there are exceptional circumstances justifying the period of written notice required by subsection 107K(3) being longer than 3 days, specify a longer period, of up to 7 days.
107H Suspension and termination of bargaining periods—pattern bargaining
Suspension or termination required for pattern bargaining
(1) The Commission must, by order, suspend a bargaining period for a period specified in the order, or terminate the bargaining period, if:
(a) a negotiating party, or a person prescribed by the regulations, applies to the Commission for an order under this section; and
(b) another negotiating party is engaged in pattern bargaining in relation to the proposed collective agreement.
Note: For other provisions relating to pattern bargaining, see:
(a) section 108D; and
(b) section 109L; and
(c) section 111A.
Negotiating parties must be given the opportunity to be heard
(2) The Commission must not make an order under subsection (1) unless it has given the negotiating parties the opportunity to be heard.
Commission may suspend or terminate as it considers appropriate
(3) If the Commission is required by subsection (1) to make an order under that subsection, then regardless of the order applied for:
(a) the order may be for the suspension or termination of the bargaining period, as the Commission considers appropriate; and
(b) any period of suspension specified in the order must be such a period as the Commission considers appropriate.
Application does not have to identify bargaining periods
(4) An application may be made to the Commission for an order under subsection (1) for the suspension or termination of whatever bargaining periods apply to:
(a) a specified business, or any part of that business; or
(b) a specified part of a specified business;
without specifically identifying the bargaining periods. The application has effect as if it were an application for the suspension or termination of the bargaining period, or each of the bargaining periods, that applies to the specified business (or any part of it), or to the specified part of the business, as the case requires.
Note: The other requirements of this section must still be complied with in relation to the application.
(5) If subsection (4) applies to an application, the Commission must satisfy itself as to which bargaining periods the application has effect in relation to.
Restrictions on initiating new bargaining periods
(6) An order under subsection (1) suspending a bargaining period may, if the Commission considers it to be appropriate, contain a declaration that, during some or all of the period while the suspension has effect, a specified negotiating party or employee of the employer:
(a) is not allowed to initiate a new bargaining period in relation to specified matters that are dealt with by the proposed collective agreement; or
(b) may initiate such a bargaining period only on conditions specified in the declaration.
(7) An order under subsection (1) terminating a bargaining period may, if the Commission considers it to be appropriate, contain a declaration that, during a specified period beginning at the time of the termination, a specified negotiating party or employee of the employer:
(a) is not allowed to initiate a new bargaining period in relation to specified matters that are dealt with by the proposed collective agreement; or
(b) may initiate such a bargaining period only on conditions specified in the declaration.
Extension of notice period required by subsection 107K(3)
(8) In an order under subsection (1) suspending a bargaining period, the Commission may, if it is satisfied, in relation to any industrial action that might be taken (by virtue of section 107K) after the end of the period of suspension, that there are exceptional circumstances justifying the period of written notice required by subsection 107K(3) being longer than 3 days, specify a longer period, of up to 7 days.
107I Suspension of bargaining periods—cooling off
Suspension if would assist in resolving matters at issue
(1) The Commission must, by order, suspend a bargaining period for a period specified in the order if:
(a) a negotiating party applies to the Commission for the bargaining period to be suspended under this section; and
(b) protected action is being taken in respect of the proposed collective agreement; and
(c) the Commission considers that the suspension is appropriate, having regard to:
(i) whether suspending the bargaining period would be beneficial to the negotiating parties because it would assist in resolving the matters at issue; and
(ii) the duration of the action; and
(iii) whether suspending the bargaining period would be contrary to the public interest or inconsistent with the objects of this Act; and
(iv) any other matters that the Commission considers relevant.
Period of suspension
(2) The period of suspension specified in the order must be a period that the Commission considers appropriate.
Extension of suspension
(3) The Commission must, by order, extend the period of suspension by a specified period that the Commission considers appropriate if:
(a) a negotiating party applies to the Commission for the period of suspension to be extended; and
(b) the Commission considers that the extension is appropriate, having regard to:
(i) the matters referred to in paragraph (1)(c); and
(ii) whether the negotiating parties, during the period of suspension, genuinely tried to reach an agreement.
(4) The Commission must not make an order under subsection (3) extending the period of suspension if that period has previously been extended.
Negotiating parties must be given opportunity to be heard
(5) The Commission must not make an order under subsection (1) or (3) unless it has given the negotiating parties the opportunity to be heard.
Commission to inform negotiating parties that they may submit matters at issue for alternative dispute resolution
(6) If the Commission makes an order under subsection (1) or (3), the Commission must send each of the negotiating parties a notice informing the negotiating parties that they may agree to submit the matters at issue to an alternative dispute resolution process conducted by the Commission or another provider (see Part VIIA).
Extension of notice period required by subsection 107K(3)
(7) In an order under subsection (1) or (3), the Commission may, if it is satisfied, in relation to any industrial action that might be taken (by virtue of section 107K) after the end of the period of suspension, that there are exceptional circumstances justifying the period of written notice required by subsection 107K(3) being longer than 3 days, specify a longer period, of up to 7 days.
107J Suspension of bargaining periods—significant harm to third party
Suspension if industrial action threatens significant harm to a person
(1) The Commission must, by order, suspend a bargaining period for a period specified in the order if:
(a) industrial action is being taken in respect of the proposed collective agreement; and
(b) an application for the bargaining period to be suspended under this section is made to the Commission by or on behalf of:
(i) an organisation, person or body directly affected by the action (other than a negotiating party); or
(ii) the Minister; and
(c) the Commission considers that the action is adversely affecting the employer or employees of the employer; and
(d) the Commission considers that the action is threatening to cause significant harm to any person (other than a negotiating party); and
(e) the Commission considers that the suspension is appropriate, having regard to:
(i) whether suspending the bargaining period would be contrary to the public interest or inconsistent with the objects of this Act; and
(ii) any other matters that the Commission considers relevant.
(2) For the purposes of paragraph (1)(d), in considering whether the action is threatening to cause significant harm to a person, the Commission may have regard to the following:
(a) if the person is an employee—the extent to which the action affects the interests of the person as an employee;
(b) the extent to which the person is particularly vulnerable to the effects of the action;
(c) the extent to which the action threatens to:
(i) damage the ongoing viability of a business carried on by the person; or
(ii) disrupt the supply of goods or services to a business carried on by the person; or
(iii) reduce the person’s capacity to fulfil a contractual obligation; or
(iv) cause other economic loss to the person;
(d) any other matters that the Commission considers relevant.
Period of suspension
(3) The period of suspension specified in the order must be a period that the Commission considers appropriate. The period of suspension (as extended under subsection (4), if applicable) must not exceed 3 months.
Extension of suspension
(4) The Commission must, by order, extend the period of suspension by a specified period that the Commission considers appropriate if:
(a) an application for the period of suspension to be extended is made to the Commission by or on behalf of:
(i) an organisation, person or body directly affected by the action (other than a negotiating party); or
(ii) the Minister; and
(b) the Commission considers that the extension is appropriate, having regard to the matters referred to in paragraphs (1)(c), (d) and (e).
(5) The Commission must not make an order under subsection (4) extending the period of suspension if that period has previously been extended.
Negotiating parties must be given opportunity to be heard
(6) The Commission must not make an order under subsection (1) or (4) unless it has given the negotiating parties the opportunity to be heard.
Commission to inform negotiating parties that they may submit matters at issue for alternative dispute resolution
(7) If the Commission makes an order under subsection (1) or (4), the Commission must send each of the negotiating parties a notice informing the negotiating parties that they may agree to submit the matters at issue to an alternative dispute resolution process conducted by the Commission or another provider (see Part VIIA).
Extension of notice period required by subsection 107K(3)
(8) In an order under subsection (1) or (4), the Commission may, if it is satisfied, in relation to any industrial action that might be taken (by virtue of section 107K) after the end of the period of suspension, that there are exceptional circumstances justifying the period of written notice required by subsection 107K(3) being longer than 3 days, specify a longer period, of up to 7 days.
107K Industrial action without further protected action ballot after end of suspension of bargaining period
(1) This section applies if:
(a) before a bargaining period was suspended under subsection 107G(1), 107H(1), 107I(1) or 107J(1), industrial action was authorised by a protected action ballot; and
(b) the ballot authorised industrial action:
(i) some or all of which had not been taken before the period of suspension began; or
(ii) that had not ended before the period of suspension began; or
(iii) beyond the period of suspension.
(2) After the period of suspension, as extended under subsection 107I(3) or 107J(4) (if applicable), has ceased (whether because the period ended or was revoked):
(a) a relevant employee (within the meaning of Division 4) may organise, or engage in, that industrial action without another protected action ballot; and
(b) a negotiating party that is an organisation of employees may organise, or engage in, that industrial action without another protected action ballot.
For the purposes of working out when that industrial action may be organised, or engaged in, the period of suspension (including any dates authorised by a protected action ballot as dates on which action is to be taken) is to be ignored.
(3) However, that industrial action is not protected action unless, after the period of suspension, the organisation, or the employee, gives the employer at least the required written notice of the intention to take the action. The notice must state the nature of the intended action and the day when it will begin.
(4) For the purposes of subsection (3), the required written notice is:
(a) 3 working days’ written notice; or
(b) if the Commission, in the order under subsection 107G(1), 107H(1), 107I(1) or 107J(1) suspending the bargaining period, or an order under subsection 107I(3) or 107J(4) extending the period of suspension, specifies a higher number of days—that number of days’ written notice.
Note: For the maximum number of days the suspension order can specify, see subsection 107G(14), 107H(8), 107I(7) or 107J(8).
(5) Nothing in this section authorises industrial action after the end of the period of suspension that is different in type or duration from the industrial action that was authorised by the protected action ballot.
Example 1: A protected action ballot authorised strike action for 20 consecutive working days from a specified date. Fourteen working days into the strike, the bargaining period was suspended for one month.
Under this section, once the period of suspension ends, the initiating party could give the required written notice, without another protected action ballot, of 6 further consecutive working days of strike action (the balance of the strike action authorised).
Example 2: A protected action ballot authorised the imposition of certain work bans every Monday, for a period of 8 consecutive weeks starting from a specified date. After 3 weeks, the bargaining period was suspended for a period of 2 weeks.
Under this section, once the period of suspension ends, the initiating party could give the required written notice, without another protected action ballot, that the work bans authorised by the ballot will be imposed for 5 further consecutive Mondays (the balance of the industrial action authorised).
Division 3—Protected action
Subdivision A—What is protected action?
108 Protected action
General
(1) Action by a person is protected action if:
(a) the action is protected action under subsection (2) or (3); and
(b) no provision of Subdivision B excludes the action from being protected action; and
(c) subsection 107K(3) does not exclude the action from being protected action.
Employee and employee organisation actions
(2) During a bargaining period:
(a) an organisation of employees that is a negotiating party; or
(b) a member of such an organisation who is employed by the employer; or
(c) an officer or employee of such an organisation acting in that capacity; or
(d) an employee who is a negotiating party;
is entitled, for the purpose of:
(e) supporting or advancing claims made in respect of the proposed collective agreement; or
(f) responding to industrial action by the employer against employees whose employment will be subject to the proposed collective agreement;
to organise or engage in industrial action against the employer and, if the organisation, member, officer or employee does so, the organising of, or engaging in, that industrial action is protected action.
Employer actions
(3) Subject to subsection (5), during a bargaining period, the employer is entitled, for the purpose of:
(a) supporting or advancing claims made by the employer in respect of the proposed collective agreement; or
(b) responding to industrial action by any of the employees whose employment will be subject to the proposed collective agreement;
to engage in industrial action against all or any of the employees whose employment will be subject to the agreement and, if the employer does so, the organising of, or engaging in, that industrial action is protected action.
Note 1: The existence of this entitlement does not affect any right of the employer to refuse to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed.
Note 2: The existence of this entitlement also does not affect any authorisation of the employer to stand‑down the employee under an award.
(4) If the employer engages in industrial action against employees in accordance with subsection (3), the employer is entitled to refuse to pay any remuneration to the employees in respect of the period of the industrial action.
(5) The employer is not entitled to engage in industrial action against employees under subsection (3) (and so the industrial action will not be protected action) unless the continuity of the employees’ employment, for such purposes as are prescribed by the regulations, is not affected by the industrial action.
Subdivision B—Exclusions from protected action
108A Exclusion—claims in support of inclusion of prohibited content
Engaging in industrial action in relation to a proposed collective agreement is not protected action if it is to support or advance claims to include prohibited content in the agreement.
108B Exclusion—industrial action while bargaining period is suspended
Engaging in industrial action in relation to a proposed collective agreement is not protected action if it is engaged in while the bargaining period is suspended.
108C Exclusion—industrial action must not involve persons who are not protected for that industrial action
(1) Engaging in industrial action in relation to a proposed collective agreement is not protected action if:
(a) it is engaged in in concert with one or more persons who are not protected persons for the industrial action; or
(b) it is organised other than solely by one or more protected persons for the industrial action.
(2) Organising industrial action in relation to a proposed collective agreement is not protected action if:
(a) it is organised in concert with one or more persons who are not protected persons for the industrial action; or
(b) it is intended to be engaged in other than solely by one or more protected persons for the industrial action.
(3) In this section:
protected person, for industrial action in relation to a proposed collective agreement, means:
(a) an organisation of employees that is a negotiating party to the proposed collective agreement; or
(b) a member of such an organisation who is employed by the employer and whose employment will be subject to the proposed collective agreement; or
(c) an officer or employee of such an organisation acting in that capacity; or
(d) an employee who is a negotiating party to the proposed collective agreement; or
(e) an employer who is a negotiating party to the proposed collective agreement.
108D Exclusion—industrial action must not be in support of pattern bargaining claims
Engaging in or organising industrial action is not protected action if:
(a) the industrial action is for the purpose of supporting or advancing claims made by a negotiating party to a proposed collective agreement; and
(b) the party is engaged in pattern bargaining in relation to the proposed collective agreement.
Note: For other provisions relating to pattern bargaining, see:
(a) section 107H; and
(b) section 109L; and
(c) section 111A.
108E Exclusion—industrial action must not be taken until after nominal expiry date of workplace agreements or workplace determinations
Engaging in or organising industrial action in contravention of section 110 or 110A is not protected action.
108F Exclusion—notice of action to be given
Notice of employee and employee organisation actions
(1) Any action taken as mentioned in subsection 108(2) by:
(a) an organisation of employees; or
(b) a member of such an organisation; or
(c) an officer or employee of such an organisation acting in that capacity; or
(d) an employee who is a negotiating party;
is not protected action unless the requirements set out in subsection (2) are met.
(2) The requirements are that:
(a) if the action is in response to, and is taken after the start of, industrial action against employees by the employer in respect of the proposed collective agreement—the organisation, or the employee who is a negotiating party, has given the employer written notice of the intention to take the action; or
(b) in any other case—the organisation, or the employee who is a negotiating party, has given the employer at least the required written notice of the intention to take the action.
(3) For the purposes of paragraph (2)(b), the required written notice is:
(a) 3 working days’ written notice; or
(b) if a ballot order made under section 109M in respect of the action specifies a higher number of days—that number of days’ written notice.
Note: For the maximum number of days the ballot order can specify, see subsection 109N(5).
Notice of employer actions
(4) If one or more of the negotiating parties is an organisation of employees, any action taken as mentioned in subsection 108(3) by the employer:
(a) is not protected action unless the employer has given the other negotiating party or each of the other negotiating parties:
(i) if the industrial action is in response to, and takes place after the start of, industrial action organised or engaged in by an organisation that is a negotiating party in respect of the proposed collective agreement—written notice of the intended industrial action; or
(ii) in any other case—at least 3 working days’ written notice of the intended industrial action; and
(b) is not protected action in so far as it relates to a particular employee unless:
(i) if subparagraph (a)(i) applies—before the industrial action begins; or
(ii) in any other case—at least 3 working days before the industrial action begins;
the employer has given written notice to the particular employee, or has taken other reasonable steps to notify the particular employee, of the intended industrial action.
(5) If one or more of the negotiating parties is an employee whose employment will be subject to the proposed collective agreement, any action taken as mentioned in subsection 108(3) by the employer is not protected action in so far as it relates to a particular employee unless:
(a) if the industrial action is in response to, and takes place after the start of, industrial action organised or engaged in by any of the employees who are negotiating parties in respect of the proposed collective agreement—before the industrial action begins; or
(b) in any other case—at least 3 working days before the industrial action begins;
the employer has given written notice to the particular employee, or has taken other reasonable steps to notify the particular employee, of the intended industrial action.
Notice to state nature of intended action and start day
(6) A written notice or other notification under this section must state the nature of the intended action and the day when it will begin.
Limitations on when notice may be given
(7) A written notice or other notification under this section cannot be given:
(a) if the notification relates to action that must, in order to be protected action, be authorised by a protected action ballot—before the declaration of the results of the ballot (see section 109ZA); or
(b) if the notification relates to industrial action by an employer (whether the notification is to be given by the employer, an organisation of employees or an employee)—before the start of the bargaining period.
108G Employee may appoint agent to give notice under section 108F
If:
(a) a person referred to in paragraph 108F(1)(d) has appointed an agent under section 107A to initiate a bargaining period in relation to a proposed collective agreement; and
(b) the person wishes to give notice to an employer under section 108F of intention to take industrial action relating to the proposed collective agreement without disclosing the person’s identity to the person’s employer;
the notice may be given by the agent on the person’s behalf.
108H Exclusion—requirement that employee organisation or employee comply with Commission orders and directions
(1) If:
(a) an organisation of employees is a negotiating party to a proposed collective agreement; and
(b) the Commission has, during the bargaining period, made or given orders or directions that relate to, or that relate to industrial action relating to, the making of the proposed collective agreement or to a matter that has arisen in the negotiations for the proposed collective agreement;
industrial action engaged in by a person who is a member of the organisation is not protected action unless, before the person begins to engage in the industrial action, the organisation has complied with the order or direction so far as it applies to the organisation.
(2) If:
(a) an employee is a negotiating party to a proposed collective agreement; and
(b) the Commission has, during the bargaining period, made or given orders or directions that relate to, or that relate to industrial action relating to, the making of the proposed collective agreement or to a matter that has arisen in the negotiations for the proposed collective agreement;
industrial action engaged in by the employee is not protected action unless, before the employee begins to engage in the industrial action, the employee has complied with the order or direction so far as it applies to the employee.
108I Exclusion—requirement that employer genuinely try to reach agreement etc.
Industrial action engaged in by an employer against employees is not protected action unless the employer has, before the employer begins to engage in the industrial action:
(a) if the employees are members of an organisation or organisations that are negotiating parties—genuinely tried to reach agreement with the organisation or organisations; and
(b) if the employees are negotiating parties—genuinely tried to reach agreement with the employees; and
(c) complied with all orders or directions made or given by the Commission during the bargaining period that relate to, or that relate to industrial action relating to, the making of the proposed collective agreement or to a matter that has arisen in the negotiations for the proposed collective agreement, so far as the orders or directions apply to the employer.
108J Exclusion—employee and employee organisation action to be authorised by secret ballot or be in response to employer action
Any action taken as mentioned in subsection 108(2) by:
(a) an organisation of employees; or
(b) a member of such an organisation; or
(c) an officer or employee of such an organisation acting in that capacity; or
(d) an employee who is a negotiating party;
is not protected action unless:
(e) the action is in response to industrial action by the employer against employees whose employment will be subject to the proposed collective agreement; or
(f) the action has been authorised by a protected action ballot (see section 109ZC).
Note: The question whether industrial action is authorised by a protected action ballot is also affected by section 107K.
108K Exclusion—employee organisation action must be duly authorised
(1) Engaging in industrial action by members of an organisation of employees that is a negotiating party is not protected action unless, before the industrial action begins:
(a) the industrial action is duly authorised by a committee of management of the organisation or by someone authorised by such a committee to authorise the industrial action; and
(b) if the rules of the organisation provide for the way in which the industrial action is to be authorised—the industrial action is duly authorised under those rules; and
(c) written notice of the giving of the authorisation is given to a Registrar.
(2) Industrial action is taken, for the purposes of this section, to be duly authorised under the rules of an organisation of employees even though a technical breach has occurred in authorising the industrial action, so long as the person or persons who committed the breach acted in good faith.
(3) Examples of a technical breach in authorising industrial action are as follows:
(a) a contravention of the rules of the organisation;
(b) an error or omission in complying with the requirements of this Act;
(c) participation, by a person not eligible to do so, in the making of a decision by a committee of management, or by members, of the organisation.
(4) Industrial action is taken, for the purposes of this section, to have been duly authorised under the rules of an organisation of employees, and to have been so authorised before the industrial action began, unless:
(a) the Court declares in a proceeding that the industrial action was not duly authorised under those rules; and
(b) the proceeding was brought in the Court within 6 months after the notification in relation to the industrial action was given to a Registrar under paragraph (1)(c).
(5) In so far as the rules of an organisation of employees provide for the way in which industrial action that section 108 entitles the organisation to organise or engage in is to be authorised, the rules do not contravene section 159 of the Registration and Accountability of Organisations Schedule unless the manner provided for contravenes that section.
Subdivision C—Significance of action being protected action
108L Immunity provisions
(1) Subject to subsection (2), no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of any industrial action that is protected action unless the industrial action has involved or is likely to involve:
(a) personal injury; or
(b) wilful or reckless destruction of, or damage to, property; or
(c) the unlawful taking, keeping or use of property.
(2) Subsection (1) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action.
Note: Subsection 111(13) provides that an order under subsection 111(1) or (6) directing that industrial action stop or not occur does not apply to protected action.
108M Employer not to dismiss employee etc. for engaging in protected action
(1) An employer must not:
(a) dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice; or
(b) threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice;
wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action.
(2) Subsection (1) does not apply to any of the following actions taken by the employer:
(a) standing‑down the employee;
(b) refusing to pay the employee, if:
(i) the refusal is in accordance with section 114; or
(ii) under the common law, the employer is permitted to do so because the employee has not performed work as directed;
(c) action that is itself protected action.
Civil remedy provisions
(3) Subsection (1) is a civil remedy provision.
(4) The Court may make one or more of the following orders in relation to a person who has contravened subsection (1):
(a) an order imposing a pecuniary penalty on the person;
(b) injunctions, and any other orders, that the Court considers necessary to stop the contravention or remedy its effects.
(5) The pecuniary penalty under paragraph (4)(a) cannot be more than 300 penalty units for a body corporate or 60 penalty units in any other case.
(6) Other orders the Court may make under paragraph (4)(b) include (but are not limited to):
(a) if the contravention was constituted by dismissing an employee—an order to reinstate the person dismissed to the position that the person occupied immediately before the dismissal or to a position no less favourable than that position; and
(b) in any case—to pay, to the person dismissed, injured or prejudiced, compensation for loss suffered as a result of the dismissal, injury or prejudice.
(7) An application for an order under subsection (4) may be made by:
(a) the employee concerned; or
(b) an organisation of employees of which that employee is a member; or
(c) a workplace inspector; or
(d) any other person prescribed by the regulations.
(8) In proceedings for an order under subsection (4), it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to engage, was engaging, or had engaged, in protected action.
Note: For other provisions about civil remedy provisions, see Division 4 of Part VIII.
Division 4—Secret ballots on proposed protected action
Subdivision A—General
109 Object of Division and overview of Division
Object
(1) The object of this Division is to establish a transparent process which allows employees directly concerned to choose, by means of a fair and democratic secret ballot, whether to authorise industrial action supporting or advancing claims by organisations of employees, or by employees.
Overview of Division
(2) Under Division 3, industrial action by employees is not protected action unless it has been authorised in advance by a secret ballot held under this Division (a protected action ballot). This Division establishes the steps that organisations of employees, or employees, who wish to organise or engage in protected action must take in order to:
(a) obtain an order from the Commission that will authorise a protected action ballot to be held; and
(b) hold a protected action ballot that may authorise the industrial action.
(3) The rule that industrial action by employees is not protected action unless it has been authorised by a protected action ballot does not apply to action in response to an employer engaging in industrial action against the employees (see section 108J).
109A Definitions
In this Division:
applicant means an applicant for a ballot order.
applicant’s agent means an agent appointed by an employee, or by a group of employees, under subsection 109B(5).
authorised ballot agent, in relation to a protected action ballot, means the person authorised by the Commission in the ballot order to conduct the ballot.
authorised independent adviser, in relation to a protected action ballot, means the person authorised by the Commission in the ballot order to be the independent adviser for the ballot.
ballot order means an order made under section 109M requiring a protected action ballot to be held.
declaration envelope means an envelope in the form prescribed by the regulations on which a voter is required to make a declaration containing the information prescribed by the regulations.
joint applicant means a person who is participating, or has participated, in making a joint application under section 109F.
party, in relation to an application for a ballot order, means either of the following:
(a) the applicant;
(b) the employer of the relevant employees.
prescribed number, in relation to relevant employees, means:
(a) if there are fewer than 80 relevant employees—4; or
(b) if there are at least 80, but not more than 5,000, relevant employees—5% of the number of such employees; or
(c) if there are more than 5,000 relevant employees—250.
protected action ballot means a ballot under this Division.
relevant employee, in relation to proposed industrial action against an employer in respect of a proposed collective agreement, means:
(a) if an organisation of employees is a negotiating party to the agreement—any member of the organisation who is employed by the employer and whose employment will be subject to the agreement; and
(b) if an employee is a negotiating party to the agreement—any employee who is a negotiating party to the agreement;
but does not include an employee who is bound by an AWA whose nominal expiry date has not passed.
roll of voters means a list compiled:
(a) by the Commission under section 109Q; or
(b) by an authorised ballot agent in compliance with an order of the Commission under section 109Q.
Subdivision B—Application for order for protected action ballot to be held
109B Who may apply for a ballot order etc.
When application can be made
(1) A person referred to in subsection (3) may, during a bargaining period, apply to the Commission for an order for a ballot to be held to determine whether proposed industrial action has the support of relevant employees.
Note: For the duration of a bargaining period, see sections 107D (when it begins) and 107E (when it ends).
(2) However, if there are one or more existing collective agreements binding on relevant employees, the application must not be made before:
(a) if there is only one existing collective agreement—the nominal expiry date of the existing collective agreement; or
(b) if there are 2 or more existing collective agreements—whichever is the last occurring of the nominal expiry dates of those existing collective agreements.
Who can apply
(3) The following people may apply:
(a) if the bargaining period was initiated by an organisation of employees—that organisation;
(b) if the bargaining period was initiated by an employee or employees—any employee who is a negotiating party to the proposed collective agreement, or a group of such employees acting jointly.
Note: For joint applications, see section 109F.
Employee applications need support of prescribed number of employees
(4) An employee, or a group of such employees acting jointly, cannot make an application unless the application has the support of at least the prescribed number of relevant employees.
Note: Prescribed number is defined in section 109A.
Employee applicants can appoint agent
(5) A person or persons referred to in paragraph (3)(b) who wish to make an application under this section without disclosing their identities to their employer may appoint an agent to represent them for all purposes connected with the application.
109C Contents of application
(1) The application must include the following:
(a) the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed industrial action;
(b) details of the types of employees who are to be balloted;
(c) any details required by Rules of the Commission (see subsection (3)).
(2) The application may include the name of a person nominated by the applicant to conduct the ballot.
Note: The question of who conducts the ballot is ultimately decided by the Commission—see paragraph 109N(1)(e) and section 109ZE.
(3) Without limiting the generality of section 48, Rules of the Commission made under that section may deal with:
(a) the matters to be included in an application for a ballot order; and
(b) the form in which the application is to be made.
109D Material to accompany application
(1) The application must be accompanied by:
(a) a copy of the notice given under subsection 107(3) to initiate the relevant bargaining period; and
(b) a copy of the particulars that accompanied that notice as required by section 107C; and
(c) a declaration by the applicant under subsection (4) of this section.
(2) If the applicant is an organisation of employees, the application must be accompanied by a written notice showing that the application has been duly authorised by a committee of management of the organisation or by someone authorised by such a committee to authorise the application.
(3) If the applicant is an employee, or a group of employees, represented by an applicant’s agent, the application must be accompanied by a document containing the name of the employee, or each of those employees.
(4) The applicant’s declaration must state that the industrial action to which the application relates is not for the purpose of supporting or advancing claims to include in the proposed collective agreement any prohibited content.
(5) The declaration must be in the form prescribed by the regulations.
(6) A person commits an offence if:
(a) the person makes, or joins in making, a declaration under subsection (4); and
(b) the declaration contains a statement that is false or misleading in a material particular.
Penalty for contravention of this subsection: 30 penalty units.
109E Notice of application
The applicant must give a copy of the application (but not the material referred to in section 109D) to:
(a) the other party; and
(b) any person nominated in the application to conduct the ballot;
within 24 hours after lodging the application with the Commission.
109F Joint applications
(1) If the bargaining period for the proposed collective agreement was initiated by an employee, 2 or more employees who are negotiating parties may make a joint application for a ballot order.
(2) An employee who has participated in making a joint application may withdraw his or her name from the application before the application is determined but cannot do so after the application is determined by the Commission.
(3) If employees have made a joint application, the name of another employee who is a negotiating party may, before the application is determined, be joined to the application if the other applicants consent.
(4) Without limiting the generality of section 48, Rules of the Commission made under that section may deal with:
(a) in the case of a provision of this Act permitting an applicant for a ballot order to do any thing—how the provision is to apply to joint applicants; and
(b) in the case of a provision of this Act requiring an applicant for a ballot order to be given notice, or otherwise informed, of any thing—how the requirement is to be fulfilled in relation to joint applicants.
Subdivision C—Determination of application and order for ballot to be held
109G Commission may notify parties etc. of procedure
If:
(a) an application for a ballot order is lodged with the Commission; and
(b) the Commission considers that notifying the parties, or a person who may become the authorised ballot agent, of the procedure to be followed by the Commission in dealing with that application will not delay, and may expedite, the determination of the application;
the Commission may notify the parties or person concerned accordingly.
109H Commission to act quickly in relation to application etc.
(1) In exercising its powers under this Division, the Commission:
(a) must act as quickly as is practicable; and
(b) must, as far as is reasonably possible, determine all applications made under this Division within 2 working days after the application is made.
Note: In exercising its powers, the Commission is also required to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms (see paragraph 44H(1)(c)). It is not bound by the rules of evidence, and may inform itself in any manner it considers just (see paragraph 44H(1)(b)).
(2) However, the Commission must not determine an application for a ballot order until it is satisfied that:
(a) the applicant has complied with section 109E; and
(b) the persons referred to in subsections 109I(1) and (2) have had a reasonable opportunity to make submissions in relation to the application.
109I Parties and relevant employees may make submissions and apply for directions
(1) A party or a relevant employee may make submissions, and may apply for directions, relating to:
(a) an application for a ballot order; or
(b) any aspect of the conduct of a protected action ballot.
(2) A person nominated in an application to conduct a ballot may make submissions, and apply for directions, relating to the application.
(3) An authorised ballot agent may make submissions, and apply for directions, relating to any aspect of a protected action ballot.
(4) The Commission may decline to consider a person’s submission if the Commission is satisfied that the submission is vexatious, frivolous, misconceived or lacking in substance.
109J Commission may make orders or give directions
(1) The Commission may make orders, or give directions, in connection with:
(a) an application for a ballot order; or
(b) any aspect of the conduct of a protected action ballot.
(2) Without limiting subsection (1), the Commission may make orders, or give directions, aimed at ensuring that a protected action ballot is conducted expeditiously.
(3) In deciding whether to make an order, or give a direction, under this section, and in deciding the content of any such order or direction, the Commission must have regard to the desirability of the ballot results being available to the parties within 10 days after the ballot order is made.
109K Commission procedure regarding multiple applications
(1) If:
(a) more than one application for a ballot order is before the Commission for determination; and
(b) the applications relate to industrial action by employees of the same employer or by employees at the same place of work; and
(c) the Commission considers that determining the applications at the same time will not unreasonably delay the determination of any of the applications;
the Commission may determine the applications at the same time.
(2) If:
(a) the Commission has made an order requiring a ballot to be held in relation to industrial action by employees of an employer, or by employees at a place of work; and
(b) the Commission proposes to make another order requiring a ballot to be held in relation to industrial action against that employer, or at the same place of work; and
(c) the Commission considers that the level of disruption of the employer’s business, or at the place of work (as the case requires), could be reduced if the ballots were held at the same time; and
(d) the Commission considers that requiring the ballots to be held at the same time will not unreasonably delay the conduct of either ballot;
the Commission may make, or vary, the relevant orders so as to require the ballots to be held at the same time.
109L Application not to be granted unless certain conditions are met
Commission must be satisfied of various matters
(1) The Commission must grant an application for a ballot order if, and must not grant the application unless, it is satisfied that:
(a) during the bargaining period, the applicant genuinely tried to reach agreement with the employer of the relevant employees; and
(b) the applicant is genuinely trying to reach agreement with the employer; and
(c) the applicant is not engaged in pattern bargaining.
Note 1: An application for a ballot order must comply with the requirements set out in Subdivision B.
Note 2: To work out when a bargaining period began, see section 107D.
Note 3: For other provisions relating to pattern bargaining, see:
(a) section 107H; and
(b) section 108D; and
(c) section 111A.
When Commission has discretion to refuse application
(2) Despite subsection (1), the Commission may refuse the application if it is satisfied:
(a) that granting the application would be inconsistent with the object of this Division (see section 109); or
(b) that the applicant, or a relevant employee, has at any time contravened a provision of this Division or an order made, or direction given, under this Division.
109M Grant of application—order for ballot to be held
If the Commission grants the application, the Commission must order the applicant to hold a protected action ballot.
109N Matters to be included in order
(1) An order for a protected action ballot to be held must specify the following:
(a) the name of:
(i) if the applicant is an organisation of employees—the organisation; or
(ii) if the applicant is an employee, or a group of employees, represented by an applicant’s agent—the applicant’s agent; or
(iii) if the applicant is an employee, or a group of employees, not represented by an applicant’s agent—the employee or employees;
(b) the types of employees who are to be balloted;
(c) the voting method;
(d) the timetable for the ballot, including:
(i) the day on which the roll of voters is to close, which must be a day at least 2 working days before the day on which the ballot is to be held, or is to start to be held; and
(ii) the day on which the ballot is to close, and the time (the voting closing time) on that day by which votes must be received (if the order specifies a postal ballot) or by which votes must be cast (if the order specifies an attendance ballot);
(e) the name of the person authorised by the Commission to conduct the ballot;
(f) the name of the person (if any) authorised by the Commission to be the independent adviser for the ballot;
(g) the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed industrial action.
Note 1: Section 109ZE specifies who may be authorised by the Commission to conduct protected action ballots.
Note 2: Section 109ZF specifies who may be authorised by the Commission to be the independent adviser for a protected action ballot.
(2) The order must specify a postal ballot as the voting method unless:
(a) the order specifies another voting method; and
(b) the Commission is satisfied that the other voting method is more efficient and expeditious than a postal ballot.
(3) If the order specifies a postal ballot as the voting method, it must specify that the voting must take place by way of declaration voting. For this purpose, a person votes by way of declaration voting if the person:
(a) marks his or her vote on a ballot paper; and
(b) places the ballot paper in a declaration envelope; and
(c) seals that envelope and signs his or her name in the space provided on the back flap of that envelope; and
(d) places that envelope in an outer envelope that is addressed to the authorised ballot agent; and
(e) posts the outer envelope so that it reaches the authorised ballot agent before the voting closing time on the day on which the ballot is to close.
(4) If the order specifies an attendance ballot as the voting method, then:
(a) votes must be cast before the voting closing time on the day on which the ballot is to close; and
(b) subject to paragraph (a):
(i) the order must specify that the voting must take place during the voters’ meal‑time or other breaks, or outside their hours of employment; and
(ii) the order may also specify other rules about the times when voters may vote.
(5) If the Commission is satisfied, in relation to the proposed industrial action that is the subject of the order, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 108F(2)(b) being longer than 3 days, the order may specify a longer period, of up to 7 days.
109O Guidelines for ballot timetables
(1) The President may develop guidelines in relation to appropriate timetables for the conduct of protected action ballots. The President may consult the Australian Electoral Commission, and any other person, in developing guidelines.
(2) Guidelines developed under this section are not legislative instruments.
109P Power of Commission to require information relevant to roll of voters
(1) The Commission may order the employer of the relevant employees, or the applicant, or both, to provide:
(a) a list of employees of the type described in the application; and
(b) any other information that it is reasonable for the Commission to require in order to assist in the compilation of a roll of voters for the proposed ballot.
(2) The order may require the list, or other information, to be provided to the Commission or to the authorised ballot agent.
(3) The order may require the list, or other information, to be provided in whatever form the Commission considers appropriate.
109Q Roll to be compiled by Commission or ballot agent
If the Commission makes a ballot order, it must:
(a) compile a list of the names of the persons who are eligible to be included on the roll of voters for the ballot and provide that list, as the roll of voters, to the authorised ballot agent; or
(b) order, by separate order, the authorised ballot agent to compile the roll of voters for the ballot.
109R Eligibility to be included on the roll
(1) A person is eligible to be included on the roll of voters for the ballot if, and only if:
(a) if the applicant is an organisation of employees—the person:
(i) was a member of the organisation on the day the ballot order was made; and
(ii) was employed by the employer on the day the ballot order was made; and
(iii) will be subject to the proposed collective agreement; or
(b) if the applicant is an employee, or a group of employees—the person:
(i) was employed by the employer on the day the ballot order was made; and
(ii) will be subject to the proposed collective agreement.
(2) A person is not eligible to be included on the roll of voters for the ballot if, on the day the ballot order was made, the person was bound by an AWA whose nominal expiry date had not passed.
109S Adding or removing names from the roll
(1) If:
(a) a person requests the authorised ballot agent to include the person’s name on the roll of voters for a protected action ballot; and
(b) the ballot agent is satisfied that the person is eligible to be included on the roll; and
(c) the request is made before the day on which the roll of voters is to close;
the ballot agent must add the person’s name to the roll.
(2) If:
(a) a person applies to the Commission for a declaration that the person is eligible to be included on the roll of voters for the ballot; and
(b) the Commission is satisfied that the person is eligible to be included on the roll; and
(c) the application is made before the day on which the roll of voters is to close;
the Commission must make the declaration and direct the authorised ballot agent to include the person’s name on the roll.
(3) If:
(a) a party, the authorised ballot agent, or a person whose name is on the roll of voters for a protected action ballot, applies to the Commission for a declaration that a person whose name has been included on the roll of voters for the ballot is not eligible to be so included; and
(b) the application is made before the day on which the roll of voters is to close; and
(c) the Commission is satisfied that the person is not eligible to be so included;
the Commission must make the declaration and direct the authorised ballot agent to remove the person’s name from the roll.
(4) A person’s name cannot be added to, or removed from, the roll of voters for a protected action ballot after the day on which the roll of voters is to close.
109T Variation of order
Variation sought by applicant
(1) An applicant for a ballot order may apply to the Commission, at any time before the order expires, to vary the ballot order.
Variation sought by ballot agent
(2) The authorised ballot agent for a particular ballot may apply to the Commission, at any time before the ballot has closed, to vary:
(a) the voting method specified in the ballot order; or
(b) the timetable for the ballot specified in the ballot order.
109U Expiry and revocation of order
(1) If a ballot has not been held within the period specified in the ballot order, the order expires at the end of that period.
(2) An applicant for a ballot order may apply to the Commission, at any time before the order expires, to revoke the ballot order.
(3) If the applicant makes an application under subsection (2), the Commission must revoke the order.
109V Compliance with orders and directions
(1) A person to whom an order or a direction under this Division is expressed to apply must comply with the order or direction.
Civil remedy provisions
(2) Subsection (1) is a civil remedy provision.
(3) The Court may order a person who has contravened subsection (1) to pay a pecuniary penalty.
(4) The pecuniary penalty cannot be more than 300 penalty units for a body corporate or 60 penalty units in any other case.
(5) An application for an order under subsection (3) may be made by:
(a) an employee who is eligible to be included on the roll of voters for the protected action ballot concerned; or
(b) an employer of employees referred to in paragraph (a); or
(c) an applicant for the order for the protected action ballot concerned to be held; or
(d) a workplace inspector; or
(e) any other person prescribed by the regulations.
Note: For other provisions about civil remedy provisions, see Division 4 of Part VIII.
109W Commission to notify parties and authorised ballot agent
(1) As soon as practicable after making a ballot order, the Commission must ensure that a copy of the order is given to each party and to the authorised ballot agent.
(2) As soon as practicable after varying a ballot order, the Commission must ensure that a copy of the variation is given to each party and to the authorised ballot agent.
(3) As soon as practicable after revoking a ballot order, the Commission must ensure that a copy of the revocation is given to each party and to the authorised ballot agent.
Subdivision D—Conduct and results of protected action ballot
109X Conduct of ballot
A ballot is not a protected action ballot unless it is conducted by the authorised ballot agent for the ballot.
109Y Form of ballot paper
The ballot paper must be in the prescribed form and must include the following:
(a) the name of the applicant or the applicant’s agent (as the case requires);
(b) the types of employees who are to be balloted;
(c) the name of the ballot agent authorised to conduct the ballot;
(d) the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed industrial action;
(e) a statement that the voter’s vote is secret and that the voter is free to choose whether or not to support the proposed industrial action;
(f) instructions to the voter on how to complete the ballot paper;
(g) the day on which the ballot is to close.
109Z Who can vote
A person cannot vote in a protected action ballot unless the person’s name is on the roll of voters for the ballot.
109ZA Declaration of ballot results
As soon as practicable after the day on which the ballot closes, the authorised ballot agent must, in writing:
(a) make a declaration of the results of the ballot; and
(b) inform the parties and the Industrial Registrar of the result.
109ZB Ballot reports
Report by authorised ballot agent
(1) As soon as practicable after the day on which the ballot closes, the authorised ballot agent must give the Industrial Registrar a written report about the conduct of the ballot.
Note: This subsection is a civil remedy provision: see subsection (7).
(2) A report under subsection (1) must set out details of:
(a) any complaints made to the authorised ballot agent about the conduct of the ballot; and
(b) any irregularities in relation to the conduct of the ballot that have come to the attention of the authorised ballot agent.
(3) Subsection (2) does not limit subsection (1).
Report by authorised independent adviser
(4) As soon as practicable after the end of the voting, the authorised independent adviser (if any) must give the Industrial Registrar a written report about the conduct of the ballot.
Note: This subsection is a civil remedy provision: see subsection (7).
(5) A report under subsection (4) must set out details of:
(a) any complaints made to the authorised independent adviser about the conduct of the ballot; and
(b) any irregularities in relation to the conduct of the ballot that have come to the attention of the authorised independent adviser.
(6) Subsection (5) does not limit subsection (4).
Civil remedy provisions
(7) Subsections (1) and (4) are civil remedy provisions.
(8) The Court may order a person who has contravened subsection (1) or (4) to pay a pecuniary penalty.
(9) The pecuniary penalty cannot be more than 300 penalty units for a body corporate or 60 penalty units in any other case.
(10) An application for an order under subsection (8) may be made by:
(a) an employee who is eligible to be included on the roll of voters for the protected action ballot concerned; or
(b) an employer of employees referred to in paragraph (a); or
(c) an applicant for the order for the protected action ballot concerned to be held; or
(d) a workplace inspector; or
(e) any other person prescribed by the regulations.
Note: For other provisions about civil remedy provisions, see Division 4 of Part VIII.
Definitions
(11) In this section:
conduct, in relation to a protected action ballot, includes, but is not limited to, the compilation of the roll of voters for the ballot.
irregularity, in relation to the conduct of a protected action ballot, includes, but is not limited to, an act or omission by means of which the full and free recording of votes by all persons entitled to record votes and by no other persons is, or is attempted to be, prevented or hindered.
109ZC Effect of ballot
(1) Industrial action is authorised by a protected action ballot if:
(a) the action was the subject of a protected action ballot; and
(b) at least 50% of persons on the roll of voters for the ballot voted in the ballot; and
(c) more than 50% of the votes validly cast were votes approving the action; and
(d) the action commences during the 30‑day period beginning on the date of the declaration of the results of the ballot.
Note: Industrial action must be authorised under this Division if it is to be protected action under Division 3 (unless the action is in response to industrial action by the employer)—see section 108J.
(2) However, the action is not authorised to the extent that it occurs after the end of the bargaining period referred to in section 109B.
Note: If another bargaining period is initiated later, and industrial action is proposed for that later period, it can only be authorised if a fresh application for a ballot order is granted, and the other steps required by this Division are completed, during that later period.
(3) The Commission may, by order, extend the 30‑day period mentioned in paragraph (1)(d) by up to 30 days if the employer and the applicant for the ballot order jointly apply to the Commission for the period to be extended.
(4) The Commission must not make an order under subsection (3) extending the 30‑day period if that period has previously been extended.
109ZD Registrar to record questions put in ballot, and to publish results of ballot
(1) The Industrial Registrar must, in relation to each protected action ballot that has been held, keep a record of:
(a) the questions put to voters in the ballot; and
(b) the results of the ballot declared by the authorised ballot agent under section 109ZA.
(2) The Industrial Registrar must, as soon as practicable after being informed of the results of a ballot by the authorised ballot agent under section 109ZA, publish the results.
Subdivision E—Authorised ballot agents and authorised independent advisers
109ZE Who may be an authorised ballot agent?
(1) In a ballot order, the Commission may name as the authorised ballot agent:
(a) the Australian Electoral Commission; or
(b) another person.
(2) The Commission must not name a person other than the Australian Electoral Commission as the authorised ballot agent for the ballot unless the Commission is satisfied that the person:
(a) is capable of ensuring the secrecy and security of votes cast in the ballot; and
(b) is capable of ensuring that the ballot will be fair and democratic; and
(c) will conduct the ballot expeditiously; and
(d) is otherwise a fit and proper person to conduct the ballot.
(3) The Commission must not name the applicant as the authorised ballot agent for the ballot unless:
(a) the applicant nominates another person to be the authorised independent adviser for the ballot; and
(b) the Commission names the other person as the authorised independent adviser for the ballot.
Note: Section 109ZF specifies who may be authorised by the Commission to be the independent adviser for a protected action ballot.
(4) If the Commission is satisfied that a person is not sufficiently independent of the applicant, the Commission must not name the person as the authorised ballot agent for the ballot unless:
(a) the applicant nominates a third person as the authorised independent adviser for the ballot; and
(b) the Commission names the third person as the authorised independent adviser for the ballot.
Note: Section 109ZF specifies who may be authorised by the Commission to be the independent adviser for a protected action ballot.
(5) The regulations may prescribe:
(a) conditions that a person must meet in order to satisfy the Commission that the person is a fit and proper person to conduct a ballot; and
(b) factors to be taken into account by the Commission in determining whether a person is a fit and proper person to conduct a ballot.
109ZF Who may be an authorised independent adviser?
(1) In a ballot order, the Commission may name a person nominated by the applicant as the authorised independent adviser.
(2) The Commission must not name a person as the authorised independent adviser for the ballot unless the Commission is satisfied that the person:
(a) is sufficiently independent of the applicant; and
(b) is capable of giving the authorised ballot agent:
(i) advice that is; and
(ii) recommendations that are;
directed towards ensuring that the ballot will be fair and democratic; and
(c) has consented to be so named.
(3) The regulations may prescribe factors to be taken into account by the Commission in determining whether a person is capable of giving an authorised ballot agent:
(a) advice that is; and
(b) recommendations that are;
directed towards ensuring that a protected action ballot will be fair and democratic.
Subdivision F—Funding of ballots
109ZG Liability for cost of ballot
(1) The applicant for a ballot order is liable for the cost of holding the ballot.
(2) If the application for the ballot order was made by joint applicants, each applicant is jointly and severally liable for the cost of holding the ballot.
(3) Subsections (1) and (2) have effect subject to subsections 109ZH(3) and (6).
(4) In this section:
cost of holding the ballot means:
(a) if the applicant, or one of the applicants, is the authorised ballot agent—the costs incurred by the authorised ballot agent in relation to the holding of the ballot; or
(b) otherwise—the amount the authorised ballot agent charges to the applicant or applicants in relation to the holding of the ballot.
109ZH Commonwealth has partial liability for cost of ballot
Authorised ballot agent someone other than the Australian Electoral Commission
(1) If:
(a) the authorised ballot agent for the ballot is not the Australian Electoral Commission; and
(b) the applicant notifies the Industrial Registrar of the cost of holding the ballot; and
(c) the applicant does so within a reasonable time after the day on which the ballot closed;
the Industrial Registrar must determine how much (if any) of that cost was reasonably and genuinely incurred in relation to the holding of the ballot.
(2) If subsection (1) applies, the Commonwealth is liable to pay to the authorised ballot agent 80% of the amount determined under that subsection.
(3) The applicant is, to the extent of the Commonwealth’s liability under subsection (2), discharged from liability under section 109ZG for the cost of holding the ballot.
(4) The regulations may prescribe matters to be taken into account by the Industrial Registrar in determining whether costs are reasonably and genuinely incurred in relation to the holding of the ballot.
Authorised ballot agent the Australian Electoral Commission
(5) If the authorised ballot agent for the ballot is the Australian Electoral Commission, the Australian Electoral Commission must certify, within a reasonable time after the completion of the ballot, the amount of the reasonable costs charged by the Australian Electoral Commission to the applicant in relation to holding the ballot.
(6) The applicant is, to the extent of 80% of the amount certified under subsection (5), discharged from liability under section 109ZG for the cost of holding the ballot.
Definition
(7) In this section:
cost of holding the ballot has the same meaning as in section 109ZG.
109ZI Liability for cost of legal challenges
(1) The regulations may make provision for who is liable for costs incurred in relation to legal challenges to matters connected with protected action ballots.
(2) The regulations may also make provision for a person who is liable for costs referred to in subsection (1) to be indemnified by another person for some or all of those costs.
(3) For the purposes of sections 109ZG and 109ZH, costs of holding the ballot do not include costs referred to in subsection (1) of this section.
Subdivision G—Miscellaneous
109ZJ Identity of certain persons not to be disclosed by Commission
(1) The Commission must not disclose information that the Commission has reasonable grounds to believe will identify a person as:
(a) an applicant who is represented by an applicant’s agent; or
(b) a relevant employee who was one of the prescribed number of employees supporting an application for a ballot order (as required by subsection 109B(4)); or
(c) a person whose name appears on the roll of voters for a protected action ballot; or
(d) a person who is a party to an AWA.
(2) Each of the following is an exception to subsection (1):
(a) the disclosure is required or authorised by this Act or by another Act, by regulations made for the purposes of another provision of this Act, or by regulations made for the purposes of another Act;
(b) the person whose identity is disclosed has, in writing, authorised the disclosure.
109ZK Persons not to disclose identity of certain persons
(1) A person commits an offence if:
(a) the person discloses information; and
(b) the information is protected information; and
(c) the person has reasonable grounds to believe that the information will identify another person as a person referred to in paragraph 109ZJ(1)(a), (b), (c) or (d); and
(d) the disclosure is not made by the person in the course of performing functions or duties:
(i) as a Registry official; or
(ii) as, or on behalf of, an authorised ballot agent; or
(iii) as an authorised independent adviser; and
(e) the disclosure is not required or authorised by this Act or by another Act, by regulations made for the purposes of another provision of this Act, or by regulations made for the purposes of another Act; and
(f) the person whose identity is disclosed has not, in writing, authorised the disclosure.
Penalty: Imprisonment for 6 months.
(2) In this section:
protected information, in relation to a person, means information that the person acquired:
(a) in the course of performing functions or duties as a Registry official; or
(b) in the course of performing functions or duties as, or on behalf of, an authorised ballot agent; or
(c) from a person referred to in paragraph (a) or (b) who acquired the information as mentioned in paragraph (a) or (b).
Registry official means:
(a) the Industrial Registrar; or
(b) a member of the staff of the Industrial Registry (including a Deputy Industrial Registrar).
109ZL Immunity if person acted in good faith on ballot results
(1) If:
(a) the results of a protected action ballot, as declared by the authorised ballot agent, purported to authorise particular industrial action; and
(b) an organisation or person, acting in good faith on the declared ballot results, organised or engaged in that industrial action; and
(c) it is subsequently determined that the action was not authorised by the ballot;
no action lies against the organisation or person under any law (whether written or unwritten) in force in a State or Territory in respect of the action unless the action involved:
(d) personal injury; or
(e) wilful or reckless destruction of, or damage to, property; or
(f) the unlawful taking, keeping or use of property.
(2) Subsection (1) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action.
109ZM Limits on challenges etc. to ballot orders etc.
(1) An order of the Commission that a person hold a protected action ballot, and any order, direction or decision of the Commission in connection with the order:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed, set aside or called in question in any court on any ground; and
(c) is not subject to mandamus, prohibition, certiorari or injunction, or the making of a declaratory or other order, in any court on any ground;
unless subsection (2) applies to the order or decision.
(2) This subsection applies to an order for a protected action ballot, or to an order, direction or decision of the Commission in connection with the order, if:
(a) in proceedings relating to the order, direction or decision, as the case requires, a person claims that another person or persons:
(i) contravened this Division, or an order or direction of the Commission under this Division, if the contravention is not merely a technical breach; or
(ii) misled the Commission (whether by a false statement or by an omission) in such a way as to affect the order, direction or decision; and
(b) the court is satisfied that there are reasonable grounds for the claim.
109ZN Limits on challenges etc. to ballots
(1) If a protected action ballot has been conducted, or has purportedly been conducted:
(a) the declaration of the results of the ballot is final and conclusive; and
(b) the declaration of the results of the ballot must not be quashed or set aside by any court on any ground; and
(c) the conduct of the ballot, and the declaration of the results of the ballot, must not be challenged, appealed against, reviewed or called in question, as applicable, in any court on any ground; and
(d) the conduct of the ballot, and the declaration of the results of the ballot, are not subject to mandamus, prohibition, certiorari or injunction, or the making of a declaratory or other order, as applicable, in any court on any ground;
unless subsection (2) applies to the conduct or declaration.
(2) This subsection applies to the conduct of a protected action ballot, and to the declaration of the results of a ballot, if:
(a) in proceedings relating to the conduct or declaration, as the case requires, a person claims that another person or persons:
(i) contravened this Division, or an order or direction of the Commission under this Division, if the contravention is not merely a technical breach; or
(ii) acted fraudulently in relation to the conduct or declaration; or
(iii) acted in such a way as to cause an irregularity in relation to the conduct or declaration, being an irregularity that affected the outcome of the ballot; and
(b) the court is satisfied that there are reasonable grounds for the claim.
(3) In this section:
conduct, in relation to a protected action ballot, includes, but is not limited to, the compilation of the roll of voters for the ballot.
irregularity, in relation to the conduct or declaration of a protected action ballot, includes, but is not limited to, an act or omission by means of which:
(a) the full and free recording of votes by all persons entitled to record votes and by no other persons; or
(b) a correct ascertainment or declaration of the results of the voting;
is, or is attempted to be, prevented or hindered.
109ZO Penalties not affected
Nothing in section 109ZM or 109ZN is to be taken to prevent a penalty being imposed upon a person for a contravention of this Act.
109ZP Preservation of roll of voters, ballot papers etc.
A person commits an offence if:
(a) the person has conducted a protected action ballot; and
(b) the person was the authorised ballot agent for the ballot; and
(c) the person fails to keep the following for a period of one year after the day on which the ballot closed:
(i) the roll of voters;
(ii) all the ballot papers, envelopes and other documents and records relevant to the ballot.
Penalty: Imprisonment for 6 months.
109ZQ Conferral of function on Australian Electoral Commission
(1) If the Australian Electoral Commission is the authorised ballot agent for a protected action ballot, it is a function of the Australian Electoral Commission to conduct the ballot.
(2) If the Australian Electoral Commission is:
(a) the ballot agent nominated in an application for a ballot order; or
(b) the authorised ballot agent for such a ballot;
the Australian Electoral Commission cannot make a submission or an application to the Commission seeking to cease having that status in relation to the ballot.
109ZR Regulations
The regulations may make provision in relation to the following matters:
(a) the qualifications and appointment of applicants’ agents;
(b) procedures to be followed in relation to the conduct of a ballot, or class of ballot, under this Division;
(c) the qualifications, appointment, powers and duties of scrutineers;
(d) the powers and duties of authorised independent advisers;
(e) the manner in which ballot results are to be published under section 109ZD.
Division 5—Industrial action not to be engaged in before nominal expiry date of workplace agreement or workplace determination
110 Industrial action etc. must not be taken before nominal expiry date of collective agreement or workplace determinations
(1) From the day when:
(a) a collective agreement; or
(b) a workplace determination;
comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not organise or engage in industrial action (whether or not that action relates to a matter dealt with in the agreement or determination).
Note 1: This subsection is a civil remedy provision: see subsection (4).
Note 2: Action that contravenes this subsection is not protected action (see section 108E).
(2) For the purposes of subsection (1), the following are covered by this subsection:
(a) an employee who is bound by the agreement or determination;
(b) an organisation of employees that is bound by the agreement or determination;
(c) an officer or employee of such an organisation acting in that capacity.
(3) From the time when:
(a) a collective agreement; or
(b) a workplace determination;
is made until its nominal expiry date has passed, the employer must not engage in industrial action against an employee whose employment is subject to the agreement or determination (whether or not that industrial action relates to a matter dealt with in the agreement or determination).
Note 1: This subsection is a civil remedy provision: see subsection (4).
Note 2: Action that contravenes this subsection is not protected action (see section 108E).
Civil remedy provisions
(4) Subsections (1) and (3) are civil remedy provisions.
(5) The Court may make one or more of the following orders in relation to a person who has contravened subsection (1) or (3):
(a) an order imposing a pecuniary penalty on the person;
(b) injunctions, and any other orders, that the Court considers necessary to stop the contravention or remedy its effects.
(6) The pecuniary penalty under paragraph (5)(a) cannot be more than 300 penalty units for a body corporate or 60 penalty units in any other case.
(7) An application for an order under subsection (5), in relation to a contravention of subsection (1), may be made by:
(a) the employer concerned; or
(b) a workplace inspector; or
(c) any person affected by the industrial action; or
(d) any other person prescribed by the regulations.
(8) An application for an order under subsection (5), in relation to a contravention of subsection (3), may be made by:
(a) the employee concerned; or
(b) an organisation of employees if:
(i) a member of the organisation is employed by the employer concerned; and
(ii) the contravention relates to, or affects, the member of the organisation or work carried on by the member for that employer; or
(c) a workplace inspector; or
(d) any person affected by the industrial action; or
(e) any other person prescribed by the regulations.
Note: For other provisions about civil remedy provisions, see Division 4 of Part VIII.
110A Industrial action must not be taken before nominal expiry date of AWA
(1) From the day when an AWA comes into operation until its nominal expiry date, the employee must not engage in industrial action in relation to the employment to which the AWA relates.
Note 1: This subsection is a civil remedy provision: see subsection (3).
Note 2: Action that contravenes this subsection is not protected action: see section 108E.
(2) From the day when an AWA comes into operation until its nominal expiry date, the employer must not engage in industrial action against the employee.
Note 1: This subsection is a civil remedy provision: see subsection (3).
Note 2: Action that contravenes this subsection is not protected action (see section 108E).
Civil remedy provisions
(3) Subsections (1) and (2) are civil remedy provisions.
(4) The Court may make one or more of the following orders in relation to a person who has contravened subsection (1) or (2):
(a) an order imposing a pecuniary penalty on the person;
(b) injunctions, and any other orders, that the Court considers necessary to stop the contravention or remedy its effects.
(5) The pecuniary penalty under paragraph (4)(a) cannot be more than 300 penalty units for a body corporate or 60 penalty units in any other case.
(6) An application for an order under subsection (4), in relation to a contravention of subsection (1), may be made by:
(a) the employer concerned; or
(b) a workplace inspector; or
(c) any other person prescribed by the regulations.
(7) An application for an order under subsection (4), in relation to a contravention of subsection (2), may be made by:
(a) the employee concerned; or
(b) an organisation of employees that represents that employee if:
(i) that employee has requested the organisation to apply on that employee’s behalf; and
(ii) a member of the organisation is employed by that employee’s employer; and
(iii) the organisation is entitled, under its eligibility rules, to represent the industrial interests of that employee in relation to work carried on by that employee for the employer; or
(c) a workplace inspector; or
(d) any other person prescribed by the regulations.
Note: For other provisions about civil remedy provisions, see Division 4 of Part VIII.
Division 6—Orders and injunctions against industrial action
111 Orders and injunctions against industrial action—general
Orders relating to action by federal‑system employees and employers
(1) If it appears to the Commission that industrial action by an employee or employees, or by an employer, that is not, or would not be, protected action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
the Commission must make an order that the industrial action stop, not occur and not be organised.
Orders relating to action by non‑federal system employees and employers
(2) If it appears to the Commission that industrial action by a non‑federal system employee or non‑federal system employees, or by a non‑federal system employer:
(a) is:
(i) happening; or
(ii) threatened, impending or probable; or
(iii) being organised; and
(b) will, or would, be likely to have the effect of causing substantial loss or damage to the business of a constitutional corporation;
the Commission must make an order that the relevant industrial action stop, not occur and not be organised.
(3) For the purposes of subsection (2), and other provisions of this Act as they relate to orders under that subsection:
(a) non‑federal system employee means a person who is an employee, within the ordinary meaning of that word, but who is not covered by the definition of employee in subsection 4AA(1); and
(b) non‑federal system employer means a person who is an employer, within the ordinary meaning of that word, but who is not covered by the definition of employer in subsection 4AB(1); and
(c) section 106A (which defines industrial action) applies as if references in that section to employees and employers were instead references to non‑federal system employees and non‑federal system employers.
Order may be made on application or on Commission’s own initiative
(4) The Commission may make an order under subsection (1) or (2) on its own initiative, or on the application of:
(a) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action; or
(b) an organisation of which a person referred to in paragraph (a) is a member.
Applications generally to be heard and determined within 48 hours
(5) As far as practicable, the Commission must hear and determine an application for an order under subsection (1) or (2) within 48 hours after the application is made.
Interim orders if applications cannot be heard and determined within 48 hours
(6) If the Commission is unable to determine an application for an order under subsection (1) or (2) within the period referred to in subsection (5), the Commission must (within that period) make an interim order to stop and prevent engagement in, and organisation of, the industrial action referred to in subsection (1) or (2).
(7) However, the Commission must not make such an interim order if the Commission is satisfied that it would be contrary to the public interest to do so.
(8) An interim order is to have effect until the application is determined.
Commission does not have to specify the industrial action
(9) In ordering under subsection (1), (2) or (6) that industrial action stop, not occur and not be organised, the Commission does not have to specify the particular industrial action.
Obligation to comply with orders
(10) A person to whom an order under subsection (1), (2) or (6) is expressed to apply must comply with the order.
(11) Subsection (10) is a civil remedy provision.
(12) The Court may, on application by a person affected by an order of the Commission under subsection (1), (2) or (6), grant an injunction on such terms as the Court considers appropriate if it is satisfied that another person:
(a) has engaged in conduct that constitutes a contravention of subsection (10); or
(b) is proposing to engage in conduct that would constitute such a contravention.
Note: For other provisions about civil remedy provisions, see Division 4 of Part VIII.
Orders do not apply to protected action
(13) An order under subsection (1), or under subsection (6) that relates to an application for an order under subsection (1), does not apply to protected action.
111A Injunction against industrial action if pattern bargaining engaged in in relation to proposed collective agreement
The Court may grant an injunction in such terms as the Court considers appropriate if, on application by any person, the Court is satisfied that:
(a) industrial action in relation to a proposed collective agreement is being engaged in, or is threatened, impending or probable; and
(b) the industrial action is or would be for the purpose of supporting or advancing claims made by a negotiating party to the proposed collective agreement; and
(c) the party is engaged in pattern bargaining in relation to the proposed collective agreement.
Note: For other provisions relating to pattern bargaining, see:
(a) section 107H; and
(b) section 108D; and
(c) section 109L.
Division 7—Ministerial declarations terminating bargaining periods
112 Minister’s declaration
Making of declaration
(1) The Minister may make a written declaration terminating a specified bargaining period, or specified bargaining periods, if the Minister is satisfied that:
(a) industrial action is being taken, or is threatened, impending or probable; and
(b) the industrial action is adversely affecting, or would adversely affect, the employer or employers who are negotiating parties, or employees of the employer or employers; and
(c) the industrial action is threatening, or would threaten:
(i) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or
(ii) to cause significant damage to the Australian economy or an important part of it.
Note: See also Division 8 (about workplace determinations once a bargaining period has been terminated).
(2) The declaration takes effect on the day that it is made.
Making persons aware of the declaration
(3) The Minister must publish the declaration in the Gazette.
(4) The Minister must inform the Commission of the making of the declaration.
(5) The Minister must, as soon as reasonably practicable, take all reasonable steps to make the negotiating parties to the proposed collective agreement or agreements concerned aware:
(a) of the making of the declaration; and
(b) of the effect of Division 8 (about workplace determinations once a bargaining period has been terminated); and
(c) that the negotiating parties may agree to submit the matters at issue to an alternative dispute resolution process conducted by the Commission or another provider (see Divisions 4 and 6 of Part VIIA).
Restriction on initiating new bargaining period
(6) The Minister may specify in the declaration that, during a specified period beginning on the day that the declaration is made, a specified person:
(a) is not allowed to initiate a new bargaining period in relation to specified matters that are dealt with by the proposed collective agreement or agreements concerned; or
(b) may initiate such a bargaining period only on specified conditions.
Declaration not a legislative instrument
(7) A declaration made under subsection (1) is not a legislative instrument.
112A Minister’s directions to remove or reduce the threat
(1) If the Minister makes a declaration under 112, the Minister may make the following kinds of written directions if the Minister is satisfied that they are reasonably directed to removing or reducing the threat referred to in paragraph 112(1)(c):
(a) directions requiring specified negotiating parties, or specified employees of an employer who is a negotiating party, to take specified actions;
(b) directions requiring specified negotiating parties, or specified employees of an employer who is a negotiating party, to refrain from taking specified actions.
Making persons aware of the directions
(2) The Minister must, as soon as reasonably practicable, take all reasonable steps to make the specified persons concerned aware of the directions.
Directions not legislative instruments
(3) Directions made under subsection (1) are not legislative instruments.
Compliance with directions
(4) A person must comply with a direction under this section.
Civil remedy provisions
(5) Subsection (4) is a civil remedy provision.
(6) The Court may order a person who has contravened subsection (4) to pay a pecuniary penalty.
(7) The pecuniary penalty cannot be more than 300 penalty units for a body corporate or 60 penalty units in any other case.
(8) An application for an order under subsection (6) may be made by a workplace inspector.
Note: For other provisions about civil remedy provisions, see Division 4 of Part VIII.
Division 8—Workplace determinations
113 Application of Division
This Division applies if a bargaining period has been terminated:
(a) on the ground set out in subsection 107G(3); or
(b) because a declaration has been made under Division 7.
113A Definitions
In this Division:
matters at issue means the matters that were at issue during the bargaining period.
negotiating period has the meaning given by section 113B.
113B Negotiating period
(1) The negotiating period is the period that:
(a) starts on the day on which the bargaining period was terminated; and
(b) ends:
(i) if the Commission has not extended the period under subsection (2)—21 days after that day; or
(ii) if the Commission has so extended the period—42 days after that day.
(2) The Commission must extend the period if:
(a) all of the negotiating parties apply to the Commission for an extension under this subsection within 21 days after the day on which the bargaining period was terminated; and
. (b) the negotiating parties have not settled the matters at issue (whether or not by making a workplace agreement).
113C When Full Bench must make workplace determination
(1) The Commission must make a determination (a workplace determination) under this section if:
(a) the negotiating period has ended; and
(b) the negotiating parties have not settled the matters at issue (whether or not by making a workplace agreement).
(2) The workplace determination can be made only by a Full Bench.
(3) The Full Bench must make the workplace determination as quickly as practicable after the end of the negotiating period.
(4) For the purposes of paragraph (1)(b), the negotiating parties are taken not to have settled the matters at issue if:
(a) the negotiating parties make a workplace agreement purporting to settle the matters at issue; and
(b) the workplace agreement is not approved in accordance with section 98C.
(5) Workplace determinations are not legislative instruments.
113D Content of workplace determination
(1) The workplace determination must contain terms that, in the opinion of the Full Bench, deal with the matters at issue.
(2) The workplace determination comes into operation on the day on which it is made.
(3) The workplace determination must contain a term specifying a nominal expiry date for the determination that is no later than 5 years after the date on which the determination commences operating.
(4) The workplace determination must not contain prohibited content.
(5) In deciding which terms to include in the workplace determination, the Full Bench must have regard to the following factors only:
(a) the matters at issue;
(b) the merits of the case;
(c) the interests of the negotiating parties and the public interest;
(d) how productivity might be improved in the business or part of the business concerned;
(e) the extent to which the conduct of the negotiating parties during the bargaining period was reasonable;
(f) incentives to encourage parties to pursue negotiated outcomes at a later stage;
(g) the employer’s capacity to pay;
(h) decisions of the AFPC;
(i) any other factors specified in the regulations.
(6) The workplace determination must require disputes about matters arising under the determination to be dealt with in accordance with the model dispute resolution process (see Part VIIA).
(7) The workplace determination must not contain any terms other than those required by this section.
113E Who is bound by a workplace determination?
A workplace determination binds:
(a) the negotiating parties referred to in subsection 113C(1)(b); and
(b) all employees whose employment is subject to the determination.
113F Act applies to workplace determination as if it were a collective agreement
(1) Subject to this section, this Act applies to the workplace determination as if it were a collective agreement in operation.
(2) The following provisions do not apply to the workplace determination:
(a) section 100D (persons bound by workplace agreements);
(b) Subdivision A of Division 7 of Part VB (content of workplace agreements);
(c) Division 8 of Part VB (varying workplace agreements).
(3) Subdivision B of Division 9 of Part VB (termination by approval (pre‑lodgment procedures)) applies in relation to the workplace determination, but only after the determination has passed its nominal expiry date.
(4) Despite sections 100(5), the workplace determination ceases to be in operation in relation to an employee if a collective agreement that binds the employee is lodged, even if this happens before the nominal expiry date of the determination.
Division 9—Payments in relation to periods of industrial action
114 Payments not to be made or accepted in relation to periods of industrial action
(1) This section applies if an employee engaged, or engages, in industrial action (whether or not protected action) in relation to an employer on a day.
(2) The employer must not make a payment to an employee in relation to:
(a) if the total duration of the industrial action on that day is less than 4 hours—4 hours of that day; or
(b) otherwise—the total duration of the industrial action on that day.
Note: This subsection is a civil remedy provision: see subsection (6).
(3) If:
(a) the industrial action is during a shift (or other period of work); and
(b) the shift (or other period of work) occurs partly on 1 day and partly on the next day;
then, for the purposes of this section, the shift is taken to be a day and the remaining parts of the days are taken not to be part of that day.
Example: An employee, who is working a shift from 10 pm on Tuesday until 7 am on Wednesday, engages in industrial action from 11 pm on Tuesday until 1 am on Wednesday. That industrial action would prevent the employer making a payment to the employee in relation to 4 hours of the shift, but would not prevent the employer from making a payment in relation to the remaining 5 hours of the shift.
(4) For the purposes of subsection (3), overtime is taken not to be a separate shift.
(5) An employee must not accept a payment from an employer if the employer would contravene subsection (2) by making the payment.
Note: This subsection is a civil remedy provision: see subsection (6).
Civil remedy provisions
(6) Subsections (2) and (5) are civil remedy provisions.
(7) The Court may make one or more of the following orders in relation to a person who has contravened subsection (2) or (5):
(a) an order imposing a pecuniary penalty on the person;
(b) injunctions, and any other orders, that the Court considers necessary to stop the contravention or remedy its effects;
(c) any other consequential orders.
(8) The pecuniary penalty under paragraph (7)(a) cannot be more than 300 penalty units for a body corporate or 60 penalty units in any other case.
(9) An application for an order under subsection (7) may be made by:
(a) a workplace inspector; or
(b) a person who has an interest in the matter; or
(c) any other person prescribed by the regulations.
Note: For other provisions about civil remedy provisions, see Division 4 of Part VIII.
(10) A regulation prescribing persons for the purposes of paragraph (9)(c) may limit its application to specified circumstances.
114A Organisations not to take action for payments in relation to periods of industrial action
(1) An organisation, or an officer, member or employee of an organisation, must not:
(a) make a claim for an employer to make a payment to an employee in relation to a day during which the employee engaged, or engages, in industrial action; or
(b) organise or engage in, or threaten to organise or engage in, industrial action against an employer with intent to coerce the employer to make such a payment.
Note: This subsection is a civil remedy provision: see subsection (4).
(2) For the purposes of subsection (1), action done by one of the following bodies or persons is taken to have been done by an organisation:
(a) the committee of management of the organisation;
(b) an officer, employee or agent of the organisation acting in that capacity;
(c) a member or group of members of the organisation acting under the rules of the organisation;
(d) a member of the organisation, who performs the function of dealing with an employer on behalf of the member and other members of the organisation, acting in that capacity.
(3) Paragraphs (2)(c) and (d) do not apply if:
(a) a committee of management of the organisation; or
(b) a person authorised by the committee; or
(c) an officer of the organisation;
has taken reasonable steps to prevent the action.
Civil remedy provisions
(4) Subsection (1) is a civil remedy provision.
(5) The Court may make one or more of the following orders in relation to a person who has contravened subsection (1):
(a) an order imposing a pecuniary penalty on the person;
(b) an order requiring the person to pay to the employer concerned compensation of such amount as the Court thinks appropriate;
(c) injunctions, and any other orders, that the Court considers necessary to stop the contravention or remedy its effects;
(d) any other consequential orders.
(6) The pecuniary penalty under paragraph (5)(a) cannot be more than 300 penalty units for a body corporate or 60 penalty units in any other case.
(7) The Court must not make an order under paragraph (5)(b) if the employer concerned has contravened subsection 114(2) in connection with the contravention of subsection (1) of this section.
(8) An application for an order under subsection (5) may be made by:
(a) the employer concerned; or
(b) a workplace inspector; or
(c) a person who has an interest in the matter; or
(d) any other person prescribed by the regulations.
Note: For other provisions about civil remedy provisions, see Division 4 of Part VIII.
(9) A regulation prescribing persons for the purposes of paragraph (8)(d) may limit its application to specified circumstances.
114B Persons not to coerce people for payments in relation to periods of industrial action
(1) A person must not take, or threaten to take, action that would have the effect of directly or indirectly prejudicing the engagement, or possible engagement, of another person as an independent contractor with the intention of coercing the other person to make a payment to an employee of the other person in relation to a day on which the employee engaged or engages in industrial action (whether or not protected action).
Civil remedy provisions
(2) Subsection (1) is a civil remedy provision.
(3) The Court may make one or more of the following orders in relation to a person who has contravened subsection (1):
(a) an order imposing a pecuniary penalty on the person;
(b) injunctions, and any other orders, that the Court considers necessary to stop the contravention or remedy its effects;
(c) any other consequential orders.
(4) The pecuniary penalty under paragraph (3)(a) cannot be more than 300 penalty units for a body corporate or 60 penalty units in any other case.
(5) An application for an order under subsection (3) may be made by:
(a) the other person referred to in subsection (1); or
(b) a workplace inspector; or
(c) a person who has an interest in the matter; or
(d) any other person prescribed by the regulations.
Note: For other provisions about civil remedy provisions, see Division 4 of Part VIII.
(6) A regulation prescribing persons for the purposes of paragraph (5)(d) may limit its application to specified circumstances.
Interpretation
(7) In this section, a reference to an independent contractor is not confined to a natural person.
Part VI—Awards
Division 1—Preliminary
115 Objects of Part
The objects of this Part are:
(a) to ensure that minimum safety net entitlements are protected through a system of enforceable awards maintained by the Commission; and
(b) to ensure that awards are rationalised and simplified so they are less complex and are more conducive to the efficient performance of work; and
(c) to ensure that the Commission performs its functions under this Part in a way that:
(i) encourages the making of agreements between employers and employees at the workplace or enterprise level; and
(ii) protects the competitive position of young people in the labour market, promotes youth employment, youth skills and community standards, and assists in reducing youth unemployment.
115A Performance of functions by the Commission
(1) The Commission must perform its functions under this Part in a way that furthers the objects of this Act and, in particular, the objects of this Part.
(2) In performing its functions under this Part, the Commission must have regard to:
(a) the desirability of high levels of productivity, low inflation, creation of jobs and high levels of employment; and
(b) decisions of the AFPC, and, in particular, the need to ensure that Commission decisions are not inconsistent with AFPC decisions; and
(c) the importance of providing minimum safety net entitlements that do not act as a disincentive to bargaining at the workplace level.
115C Extraterritorial extension
(1) This Part, and the rest of this Act so far as it relates to this Part, extend:
(a) to an employee outside Australia who meets any of the conditions in this section; and
(b) to the employee’s employer (whether the employer is in or outside Australia); and
(c) to acts, omissions, matters and things relating to the employee (whether they are in or outside Australia).
Note: In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea. See section 15B and paragraph 17(a) of the Acts Interpretation Act 1901.
In Australia’s exclusive economic zone
(2) One condition is that the employee is in Australia’s exclusive economic zone and either:
(a) is an employee of an Australian employer and is not prescribed by the regulations as an employee to whom this subsection does not apply; or
(b) is an employee prescribed by the regulations as an employee to whom this subsection applies.
Note: The regulations may prescribe the employee by reference to a class. See subsection 13(3) of the Legislative Instruments Act 2003.
On Australia’s continental shelf outside exclusive economic zone
(3) Another condition is that the employee:
(a) is outside the outer limits of Australia’s exclusive economic zone, but is in, on or over a part of Australia’s continental shelf prescribed by the regulations for the purposes of this subsection, in connection with the exploration of the continental shelf or the exploitation of its natural resources; and
(b) meets the requirements that are prescribed by the regulations for that part.
Note: The regulations may prescribe different requirements relating to different parts of Australia’s continental shelf. The regulations may need to do so to give effect to Australia’s international obligations.
Outside Australia’s exclusive economic zone and continental shelf
(4) Another condition is that the employee:
(a) is neither in Australia’s exclusive economic zone nor in, on or over a part of Australia’s continental shelf described in paragraph (3)(a); and
(b) is an Australian‑based employee of an Australian employer; and
(c) is not prescribed by the regulations as an employee to whom this subsection does not apply.
Definition
(5) In this section:
this Act includes the Registration and Accountability of Organisations Schedule and regulations made under it.
Division 2—Terms that may be included in awards
Subdivision A—Allowable award matters
116 Allowable award matters
(1) Subject to this Part, an award may include terms about the following matters (allowable award matters) only:
(a) ordinary time hours of work and the time within which they are performed, rest breaks, notice periods and variations to working hours;
(b) incentive‑based payments and bonuses;
(c) annual leave loadings;
(d) ceremonial leave;
(da) leave for the purpose of seeking other employment after the giving of a notice of termination by an employer to an employee;
(e) observance of days declared by or under a law of a State or Territory to be observed generally within that State or Territory, or a region of that State or Territory, as public holidays by employees who work in that State, Territory or region, and entitlements of employees to payment in respect of those days;
(ea) days to be substituted for, or a procedure for substituting, days referred to in paragraph (e);
(f) monetary allowances for:
(i) expenses incurred in the course of employment; or
(ii) responsibilities or skills that are not taken into account in rates of pay for employees; or
(iii) disabilities associated with the performance of particular tasks or work in particular conditions or locations;
(g) loadings for working overtime or for shift work;
(h) penalty rates;
(i) redundancy pay, within the meaning of subsection (4);
(j) stand‑down provisions;
(k) dispute settling procedures, but only as provided by section 116A;
(l) type of employment, such as full‑time employment, casual employment, regular part‑time employment and shift work;
(m) conditions for outworkers, but only to the extent necessary to ensure that their overall conditions of employment are fair and reasonable in comparison with the conditions of employment specified in a relevant award or awards for employees who perform the same kind of work at an employer’s business or commercial premises.
Note 1: The matters referred to in subsection 116(1) have a meaning that is affected by section 116B.
Note 2: Entitlements relating to certain matters that were allowable award matters immediately before the reform commencement are preserved under Division 3.
Note 3: Certain allowable award matters are protected in workplace agreements as protected award conditions—see section 101B.
(2) A matter referred to in subsection (1) is an allowable award matter only to the extent that the matter pertains to the relationship between employers bound by the award and employees of those employers.
(3) An award may include terms about the matters referred to in subsection (1) only to the extent that the terms provide minimum safety net entitlements.
(4) For the purposes of paragraph (1)(i), redundancy pay means redundancy pay in relation to a termination of employment that is:
(a) by an employer of 15 or more employees; and
(b) either:
(i) at the initiative of the employer and on the grounds of operational requirements; or
(ii) because the employer is insolvent.
(5) For the purposes of paragraph (4)(a):
(a) whether an employer employs 15 or more employees, or fewer than 15 employees, is to be worked out as at the time (the relevant time):
(i) when notice of the redundancy is given; or
(ii) when the redundancy occurs;
whichever happens first; and
(b) a reference to employees includes a reference to:
(i) the employee who becomes redundant and any other employee who becomes redundant at the relevant time; and
(ii) any casual employee who, at the relevant time, has been engaged by the employer on a regular and systematic basis for at least 12 months (but not including any other casual employee).
(6) For the purposes of paragraph (1)(m):
conditions does not include pay.
outworker means an employee who, for the purposes of the business of the employer, performs work at private residential premises or at other premises that are not business or commercial premises of the employer.
116A Dispute settling procedures
(1) Each award is taken to include a term that specifies a model dispute resolution process in the same terms as the model dispute resolution process set out in Division 1 of Part VIIA, and a term providing for any other dispute settling process or procedure is taken not to be about an allowable award matter for the purposes of paragraph 116(1)(k).
(2) The dispute settling process included in an award may only be used to resolve disputes:
(a) about matters arising under the award; and
(b) between persons bound by the award.
116B Matters that are not allowable award matters
(1) For the purposes of subsection 116(1), matters that are not allowable award matters within the meaning of that subsection include, but are not limited to, the following:
(a) rights of an organisation of employers or employees to participate in, or represent an employer or employee in, the whole or part of a dispute settling procedure, unless the organisation is the representative of the employer’s or employee’s choice;
(b) conversion from casual employment to another type of employment;
(c) the number or proportion of employees that an employer may employ in a particular type of employment;
(d) prohibitions (whether direct or indirect) on an employer employing employees in a particular type of employment;
(e) the maximum or minimum hours of work for regular part‑time employees;
(f) restrictions on the range or duration of training arrangements;
(g) restrictions on the engagement of independent contractors and requirements relating to the conditions of their engagement;
(h) restrictions on the engagement of labour hire workers, and requirements relating to the conditions of their engagement, imposed on an entity or person for whom the labour hire worker performs work under a contract with a labour hire agency;
(i) union picnic days;
(j) tallies in the meat industry;
(k) dispute resolution training leave;
(l) trade union training leave.
(2) Paragraph (1)(e) does not prevent any of the following being included in an award:
(a) terms setting a minimum number of consecutive hours that an employer may require a regular part‑time employee to work;
(b) terms facilitating a regular pattern in the hours worked by regular part‑time employees.
(2A) Paragraph (1)(g) does not limit the operation of paragraph 116(1)(m).
(3) In this section:
labour hire agency means an entity or a person who conducts a business that includes the employment or engagement of workers for the purpose of supplying those workers to another entity or person under a contract with that other entity or person.
labour hire worker means a person:
(a) who:
(i) is employed by a labour hire agency; or
(ii) is engaged by a labour hire agency as an independent contractor; and
(b) who performs work for another entity or person under a contract between that entity or person and the labour hire agency.
Note: In this Part, references to independent contractors are not confined to natural persons (see subsection 4(2)).
116C Matters provided for by the Australian Fair Pay and Conditions Standard
(1) A matter for which provision is made by the Australian Fair Pay and Conditions Standard is not an allowable award matter, except as mentioned in subsection (2).
(2) Despite subsection (1), an award may include a term about ordinary time hours of work.
Note: An award may also include preserved award terms (see section 116G).
116D Awards may not include terms involving discrimination and preference
To the extent that a term of an award requires or permits, or has the effect of requiring or permitting, any conduct that would contravene Part XA, it is taken not to be about allowable award matters.
116E Awards may not include certain terms about rights of entry
To the extent that a term of an award requires or authorises an officer or employee of an organisation:
(a) to enter premises:
(i) occupied by an employer that is bound by the award; or
(ii) in which work to which the award applies is being carried on; or
(b) to inspect or view any work, material, machinery, appliance, article, document or other thing on such premises; or
(c) to interview an employee on such premises;
it is taken not to be about allowable award matters.
116F Awards may not include enterprise flexibility provisions
To the extent that a term of an award is an enterprise flexibility provision within the meaning of section 113A of this Act as in force immediately before the reform commencement, it is taken not to be about allowable award matters.
Subdivision B—Other terms that are permitted to be in awards
116G Preserved award terms
An award may include preserved award terms (see Division 3).
116H Facilitative provisions
(1) An award may include a facilitative provision that allows agreement at the workplace or enterprise level, between employers and employees (including individual employees), on how a term in the award about an allowable award matter or a preserved award term is to operate.
(2) A facilitative provision must not require agreement between a majority of employees and an employer, but must permit agreement between an individual employee and an employer, on how a term in an award about an allowable award matter or a preserved award term is to operate.
(3) A facilitative provision may only operate in respect of an allowable award matter or a preserved award term.
(4) A facilitative provision is of no effect to the extent that it does not comply with subsections (2) and (3).
116I Incidental and machinery terms
(1) An award may include terms that are:
(a) incidental to an allowable award matter about which there is a term in the award; and
(b) essential for the purpose of making a particular term operate in a practical way.
(2) For the purposes of this section, to the extent that a term of an award is about a matter that is not an allowable award matter because of the operation of section 116B, 116D, 116E or 116F, the term is not, and cannot be, incidental to an allowable award matter, and is of no effect to that extent.
(2A) However, to avoid doubt, paragraph 116B(1)(g) does not limit the operation of subsections (1) and (3) to the extent that those subsections relate to the matter referred to in paragraph 116(1)(m).
(3) An award may include machinery provisions including, but not limited to, provisions about the following:
(a) commencement;
(b) definitions;
(c) titles;
(d) arrangement;
(e) employers, employees and organisations;
(f) term of the award.
116J Anti‑discrimination clauses
An award may include a model anti‑discrimination clause.
116K Boards of reference
(1) An award may include, in accordance with subsection (2) or (3), a term:
(a) appointing, or giving power to appoint, for the purposes of the award, a board of reference consisting of a person or 2 or more persons; and
(b) assigning to the board of reference functions as described in subsection (4).
(2) A term of a pre‑reform award that appoints, or gives power to appoint, a board of reference is taken:
(a) to continue in effect after the reform commencement, to the extent that it complies with subsection (4); and
(b) to cease to have effect after the reform commencement, to the extent that it does not comply with subsection (4).
(3) An award (the rationalised award) made under section 118E or varied under section 118J may include a term that appoints, or gives power to appoint, a board of reference, but the term has effect only to the extent that:
(a) the term was included in one or more of the following awards (the replaced award):
(i) any award that the rationalised award has the effect of replacing;
(ii) if the rationalised award is an award varied under section 118J—the award as in force immediately before the variation; and
(b) the functions of the board of reference that relate to preserved award terms relate only to preserved award terms that were included in the replaced award immediately before the making or variation of the rationalised award; and
(c) the term complies with subsection (4).
(4) A term of an award that appoints, or gives power to appoint, a board of reference:
(a) may confer upon the board of reference an administrative function in respect of allowing, approving, fixing or dealing with, in the manner and subject to the conditions specified in the award, a matter or thing that, under the award, may from time to time be required to be allowed, approved, fixed or dealt with; and
(b) must not confer upon the board of reference a function of settling or determining disputes about any matter arising under the award.
(5) A function conferred under subsection (4) may relate only to allowable award matters or terms permitted by this Subdivision to be included in the award.
(6) A board of reference may consist of or include a Commissioner.
(7) Subject to this section, the regulations may make provision in relation to:
(a) a particular board of reference; or
(b) boards of reference in general;
including, but not limited to, the functions and powers of the board or boards.
Subdivision C—Terms in awards that cease to have effect
116L Terms in awards that cease to have effect after the reform commencement
(1) Immediately after the reform commencement, a term of an award ceases to have effect to the extent that it is about matters that are not allowable award matters, except to the extent (if any) that the term is permitted by Subdivision B to be included in the award.
(2) This section does not affect the operation of preserved award terms.
Subdivision D—Regulations relating to part‑time employees
116M Award conditions for part‑time employees
(1) The regulations may do either or both of the following in relation to an award:
(a) provide for the award to have effect so that a part‑time employee is entitled to conditions to which a full‑time employee is entitled under the award;
(b) provide for the award to have effect so that conditions to which a part‑time employee is otherwise entitled under the award (including because of paragraph (a)) are adjusted (in accordance with the regulations or a method set out in the regulations) in proportion to the hours worked by the part‑time employee.
(2) The award has effect accordingly.
Division 3—Preserved award entitlements
117 Preservation of certain award terms
(1) A preserved award term is a term, or more than one term, of an award that is about a matter referred to in subsection (2), and:
(a) if the award is a pre‑reform award that has not been varied under section 118J—was in effect immediately before the reform commencement; or
(b) in any other case—is taken to be included in the award because of the operation of section 117A.
Note: Section 116L, which provides for certain terms of awards to cease immediately after the reform commencement, does not affect the operation of preserved award terms—see subsection 116L(2).
(2) For the purposes of subsection (1), the matters are as follows:
(a) annual leave;
(b) personal/carer’s leave;
(c) parental leave, including maternity and adoption leave;
(d) long service leave;
(e) notice of termination;
(f) jury service;
(g) superannuation.
(3) If a term of an award referred to in subsection (1) is about both matters referred to in subsection (2) and other matters, it is taken to be a preserved award term only to the extent that it is about the matters referred to in subsection (2).
(3A) If more than one term of an award is about a matter referred to in subsection (2), then those terms, taken together, constitute the preserved award term of that award about that matter.
(4) A preserved award term about the matter referred to in paragraph (2)(g) (superannuation) ceases to have effect at the end of 30 June 2008.
(5) A preserved award term continues to have effect for the purposes of this Act.
Note: Preserved award terms may not be varied.
(6) In this section:
personal/carer’s leave includes war service sick leave, infectious diseases sick leave and other like forms of sick leave.
(7) The regulations may provide that for the purposes of subsection (2):
(a) the matter referred to in paragraph (2)(c) does not include one or both of the following:
(i) special maternity leave (within the meaning of section 94C);
(ii) the entitlement under section 94F to transfer to a safe job or to take paid leave; and
(b) personal/carer’s leave does not include one or both of the following:
(i) compassionate leave (within the meaning of section 93Q);
(ii) unpaid carer’s leave (within the meaning of section 93D).
Note: The effect of excluding a form of leave or an entitlement in relation to a matter is that the entitlement in relation to that form of leave or matter under the Australian Fair Pay and Conditions Standard will automatically apply.
(8) Regulations under subsection (7) may be expressed to apply generally or in respect of employees engaged in specified types of employment, such as full‑time employment, part‑time employment, casual employment, regular part‑time employment or shift work.
117A Preserved award terms of rationalised awards
(1) This section applies to an award (the rationalised award) if:
(a) the award is made under section 118E or is varied under section 118J; and
(b) immediately before the making or variation, a preserved award term was included in one or more of the following awards (the replaced award):
(i) any award that the rationalised award has the effect of replacing;
(ii) if the rationalised award is an award varied under section 118J—the award as in force immediately before the variation.
Note: A replaced award may be either an award made under section 118E or a pre‑reform award (which may subsequently have been varied).
(2) The preserved award term of the replaced award is taken to be included in the rationalised award.
(3) The preserved award term is taken to have the effect that:
(a) employees belonging to the class of employees that had entitlements under the preserved award term of the replaced award have corresponding entitlements under the rationalised award; and
(b) employees belonging to any class of employees that did not have entitlements under the preserved award term of the replaced award do not gain entitlements under the rationalised award.
Note: This means that the class of employees who had preserved award entitlements under replaced awards retain those preserved award entitlements after award rationalisation, but the class of employees who have such entitlements is not expanded.
(4) The preserved award term is taken to have the effect that:
(a) only an employer bound by the preserved award term of the replaced award is bound by the corresponding preserved award term of the rationalised award; and
(b) other employers are not so bound.
Note 1: This means that the class of employers bound by preserved award terms is not expanded as a result of award rationalisation.
Note 2: The operation of this subsection is affected by Part VIAA, which deals with transmission of business.
(5) For the purposes of subsection (3), whether an employee belongs to a class of employees that had entitlements under a preserved award term of a replaced award is to be determined without reference to whether the employee was employed before or after the making of the rationalised award.
117B When preserved award entitlements have effect
(1) This section applies to an employee if:
(a) the employee’s employment is regulated by an award that includes a preserved award term about a matter; and
(b) the employee has an entitlement (the preserved award entitlement) in relation to that matter under the preserved award term.
(2) If:
(a) the preserved award term is about a matter referred to in paragraph 117(2)(a), (b) or (c); and
(b) the employee’s preserved award entitlement in relation to the matter is more generous than the employee’s entitlement in relation to the corresponding matter under the Australian Fair Pay and Conditions Standard;
the employee’s entitlement under the Australian Fair Pay and Conditions Standard is excluded, and the employee’s preserved award entitlement has effect in accordance with the preserved award term. Otherwise, the employee’s entitlement under the Australian Fair Pay and Conditions Standard has effect.
Note: See section 117C for the meaning of more generous.
(3) If:
(a) the preserved award term is about a matter referred to in paragraph 117(2)(a), (b) or (c) and the employee has no entitlement in relation to the corresponding matter under the Australian Fair Pay and Conditions Standard; or
(b) the preserved award term is about a matter referred to in paragraph 117(2)(d), (e), (f) or (g);
the employee’s preserved award entitlement has effect in accordance with the preserved award term.
Note 1: Preserved award terms relating to matters referred to in paragraph 117(2)(g) cease to have effect at the end of 30 June 2008—see subsection 117(4).
Note 2: Subsection 7C(2) provides that State laws dealing with long service leave, jury service or superannuation (among other things) are not excluded by this Act, but section 7D provides that awards prevail over State laws to the extent of any inconsistency.
117C Meaning of more generous
(1) Whether an employee’s entitlement under a preserved award term in relation to a matter is more generous than the employee’s entitlement in relation to the corresponding matter under the Australian Fair Pay and Conditions Standard:
(a) is as specified in, or as worked out in accordance with a method specified in, regulations made under this paragraph; or
(b) to the extent that regulations made under paragraph (a) do not so specify—is to be ascertained in accordance with the ordinary meaning of the term more generous.
(2) If a matter to which an entitlement under a preserved award term relates does not correspond directly to a matter to which the Australian Fair Pay and Conditions Standard relates, regulations made under paragraph (1)(a) may nevertheless specify that the matters correspond for the purposes of this Division.
117D Modifications that may be prescribed—personal/carer’s leave
(1) The regulations may provide that a preserved award term about personal/carer’s leave is to be treated as a separate preserved award term about separate matters, to the extent that the preserved award term is about any of the following:
(a) war service sick leave;
(b) infectious diseases sick leave;
(c) any other like form of sick leave.
(2) If the regulations so provide, sections 117, 117A, 117B and 117C have effect in relation to each separate matter.
Note: There is no entitlement in relation to war service sick leave, infectious diseases sick leave or any other like form of sick leave under the Australian Fair Pay and Conditions Standard, so there is no corresponding matter for the purposes of subsection 117B(3).
117E Modifications that may be prescribed—parental leave
(1) The regulations may provide that a preserved award term about parental leave is to be treated as being about separate matters to the extent that it is about paid and unpaid parental leave.
(2) If the regulations provide that a preserved award term about parental leave is to be treated as being about separate matters to the extent that it is about paid and unpaid parental leave:
(a) sections 117, 117A and 117B have effect in relation to each separate matter; and
(b) in accordance with section 94D, the entitlement that an employee would have to unpaid parental leave under the Australian Fair Pay and Conditions Standard is reduced by any amount of paid parental leave to which the employee is entitled under the preserved award term.
Note 1: There is no entitlement in relation to paid parental leave under the Australian Fair Pay and Conditions Standard, so there is no corresponding matter for the purposes of subsection 117B(3).
Note 2: Paragraph (b) does not have the effect of reducing entitlements. It simply ensures that the operation of section 94D is not affected by treating paid and unpaid parental leave separately under the regulations.
117F Preserved award terms—employers bound after reform commencement
An employer that was not bound by a particular award immediately before the reform commencement, but is subsequently bound by the award under section 120, is not bound by any preserved award terms included in the award.
Division 4—Award rationalisation and award simplification
Subdivision A—Award rationalisation
118 Commission’s award rationalisation function
(1) It is a function of the Commission to undertake award rationalisation.
(2) Award rationalisation is to be carried out in accordance with a written request (an award rationalisation request) made to the President by the Minister.
(3) Each award rationalisation request must specify:
(a) the award rationalisation process that is to be undertaken under this section; and
(b) the principles to be applied by the Commission in undertaking the award rationalisation process; and
(c) the time by which the award rationalisation process must be completed, which must not be later than 3 years after the making of the request.
(4) Principles under paragraph (3)(b) relating to an award rationalisation request may include, but are not limited to the following:
(a) the awards to which the award rationalisation process relates;
(b) the nature of, and the extent of the coverage of, awards that may be made as a result of the award rationalisation process;
(c) subject to this Act, the matters that may be included in such awards and limits on the matters that may be included in such awards.
(5) An award rationalisation request may be varied or revoked by the Minister by written instrument.
(6) The following are not legislative instruments:
(a) an award rationalisation request;
(b) an instrument under subsection (5).
118A Commission must deal with State‑based differences
(1) In undertaking the first award rationalisation process requested under subsection 118(2), the Commission must ensure that:
(a) terms and conditions of employment included in awards are not determined by reference to State or Territory boundaries; and
(b) awards have effect in each State and Territory.
(2) If the award rationalisation request under which the first award rationalisation process is undertaken is not expressed to relate to all awards, the Commission must nevertheless review all awards as part of that award rationalisation process to the extent necessary to satisfy the requirements of subsection (1).
(3) In undertaking subsequent award rationalisation processes, the Commission must ensure that:
(a) terms and conditions of employment included in awards made or varied as a result of the subsequent award rationalisation process are not determined by reference to State or Territory boundaries; and
(b) an award made or varied as a result of the subsequent award rationalisation process has effect in each State and Territory.
(4) This section does not affect the operation of Division 3.
118B Award rationalisation to be undertaken by Full Bench
As soon as practicable after receiving an award rationalisation request, the President must establish one or more Full Benches to undertake the award rationalisation process requested.
118C Award rationalisation request to be published
(1) As soon as practicable after receiving an award rationalisation request, the President must give a copy of the request to a Registrar.
(2) The Registrar must publish the request as follows:
(a) if requirements relating to publication are prescribed by the regulations—in accordance with those requirements;
(b) if no such requirements are prescribed—in such manner as the Registrar thinks appropriate.
118D Minister may intervene
The Minister may intervene in a proceeding that relates to an award rationalisation process.
118E Making awards as a result of award rationalisation
A Full Bench may make one or more awards to give effect to the outcome of an award rationalisation process.
118F Making awards as a result of award rationalisation
The Commission must not make an award other than under section 118E.
118G Awards may not include certain terms
A Full Bench must not include a term in an award made under section 118E if the term may not be included in the award because of the operation of Division 2.
118H Awards must include term about regular part‑time employment
A Full Bench must include in an award made under section 118E a term providing for regular part‑time employment.
Note: Clauses 15.3.1 to 15.3.5 of the Hospitality Industry—Accommodation, Hotels, Resorts and Gaming Award 1998 provide a model (see the Award Simplification Decision at P7500).
118I Who is bound by awards
(1) An award made under section 118E binds the employers, employees and organisations that it is expressed to bind.
Note: An award may be expressed to bind additional employers, employees and organisations under Division 6 and may bind eligible entities under Division 6A.
(2) An award must be expressed to bind the following:
(a) specified employers;
(b) specified employees of employers bound by the award, in respect of work that is expressed to be regulated by the award.
(3) An award may be expressed to bind one or more specified organisations.
(4) For the purposes of subsections (2) and (3):
(a) employers may be specified by name or by inclusion in a specified class or specified classes; and
(b) employees must be specified by inclusion in a specified class or specified classes; and
(c) organisations must be specified by name.
(5) Without limiting the way in which a class may be described for the purposes of subsection (4), the class may be described by reference to a particular industry or particular kinds of work.
(6) The power of the Commission under subsections (2) and (3) must be exercised in accordance with the terms of the award rationalisation request to which the making of the award relates.
118J Variation of awards as part of award rationalisation
(1) The Commission may make an order varying an award to give effect to the outcome of an award rationalisation process.
(2) The Commission must not vary an award under this section in such a way that the award includes a term that may not be included in the award because of the operation of Division 2.
(3) If the Commission varies an award under this section, the Commission must include in the award a term providing for regular part‑time employment, unless such a term is already included in the award.
Note: Clauses 15.3.1 to 15.3.5 of the Hospitality Industry—Accommodation, Hotels, Resorts and Gaming Award 1998 provide a model (see the Award Simplification Decision at P7500).
(4) If the Commission varies an award under this section, it must specify the additional employers, employees and organisations (if any) bound by the award.
Note: An award may also be varied to bind eligible entities and employers under Division 6A.
(5) For the purposes of subsection (4), employers, employees and organisations must be specified in the same manner, and subject to the same limitations, as provided in subsections 118I(2) to (6) in relation to awards made under section 118E.
118K Revocation of awards as part of award rationalisation
The Commission may make an order revoking an award to give effect to the outcome of an award rationalisation process.
118L Preserved award terms
To avoid doubt, the Commission’s power under this Division to make or vary an award is subject to, and must not be exercised in a manner that is inconsistent with, Division 3.
Subdivision B—Award simplification
118M Review and simplification of awards
(1) The Commission must review all awards for the purpose of determining whether the awards include terms that may not be included in awards under this Part.
Note: Division 2 deals with terms that may be included in awards.
(2) The Commission may review awards for this purpose at the same time as reviewing them for other purposes.
(3) The Commission must carry out the review:
(a) within the period prescribed by the regulations; and
(b) in accordance with any directions prescribed by the regulations.
(4) After reviewing an award, the Commission must make an order varying the award to the extent (if any) necessary to ensure that the award includes only terms that may be included under this Part.
(5) After reviewing an award, the Commission must make an order revoking the award if the Commission is satisfied that the award is obsolete or no longer capable of operating.
118N Principles for award simplification
(1) A Full Bench may (subject to section 118M) establish principles for the review and simplification of awards under section 118M.
(2) Principles under subsection (1) may relate to the following:
(a) the making or varying of awards in relation to each of the allowable award matters;
(b) terms that may be included in awards (including, subject to Division 2, about allowable award matters).
(3) After principles (if any) have been established under subsection (1), the power of the Commission to vary an award is exercisable only in a manner consistent with those principles.
(4) The President or a Full Bench may, in relation to the exercise of powers under this section, direct a member of the Commission to provide a report in relation to a specified matter.
(5) After making such investigation (if any) as is necessary, a member given a direction under subsection (4) must provide a report to the President or Full Bench.
(6) To avoid doubt, principles under subsection (1) must be consistent with, and cannot be such as to override, a provision of this Act that relates to the variation of awards.
118O Minister may intervene
The Minister may intervene in a proceeding that relates to an award simplification process.
Subdivision C—Special technical requirements
118P Inclusion of preserved award terms in written awards
(1) This section applies if a preserved award term is taken under Division 3 to be included in an award (a rationalised award) made under section 118E or varied under section 118J.
(2) In reducing the rationalised award to writing as required by section 121, the Commission must:
(a) include the preserved award term in the rationalised award; and
(b) identify it as a preserved award term; and
(c) identify the employers bound by the preserved award term; and
(d) identify the employees bound by the preserved award term.
Note: Section 117A deals with the employers bound by preserved award terms.
(3) If more than one preserved award term to the same substantive effect is taken under Division 3 to be included in the rationalised award:
(a) paragraph (2)(a) requires that the preserved award term be included only once in the rationalised award; and
(b) to avoid doubt, paragraphs (2)(b), (c) and (d) have effect according to their terms in relation to the preserved award term.
(4) For the purposes of paragraphs (2)(c) and (d) respectively:
(a) employers may be identified by name or by inclusion in a specified class or specified classes; and
(b) employees must be identified by inclusion in a specified class or specified classes.
(5) Without limiting the way in which a class may be described for the purposes of this section, the class may be described by reference to a particular industry or particular kinds of work.
118Q Reprints of varied awards
(1) If an award is varied under this Division, the Registrar must, as soon as practicable after receiving a copy of the order varying the award under subsection 121(2), publish a consolidated reprint of the award as varied.
(2) To avoid doubt, this requirement is in addition to, and not instead of, the requirements of Division 7.
Division 5—Variation and revocation of awards
Subdivision A—Variation of awards
119 Variation of awards—general
(1) The Commission must not make an order varying an award except:
(a) as a result of an award rationalisation process; or
(b) as a result of an award simplification process; or
(c) if the variation is essential to the maintenance of minimum safety net entitlements (see section 119A); or
(d) on a ground set out in section 119B; or
(e) to bind additional employers, employees or organisations in accordance with section 120; or
(f) under section 273; or
(g) in circumstances prescribed by the regulations for the purposes of this paragraph.
Note: The variation that the Commission can make as a result of an award rationalisation process is affected by sections 117F and 118P.
(2) The Commission must not vary a preserved award term.
(3) The Commission must not vary a facilitative provision within the meaning of section 116H except:
(a) as a result of an award rationalisation process; or
(b) as a result of an award simplification process; or
(c) on a ground set out in section 119B.
(4) The Commission must not vary a term taken to be included in an award by section 116A (which deals with dispute settling procedures).
119A Variation of awards if essential to maintain minimum safety net entitlements
(1) An employer, employee or organisation bound by an award may apply to the Commission for an order varying the award on the ground that that the variation is essential to the maintenance of minimum safety net entitlements.
. (2) If an application is made under subsection (1), the Commission must take such steps as it thinks appropriate to ensure that each employer, employee and organisation bound by the award, and any other interested persons and bodies, are made aware of the application.
(3) The Minister may intervene in relation to the application.
(4) The Commission may make an order under this subsection varying the award only if the Commission is satisfied that:
(a) the variation is essential to the maintenance of minimum safety net entitlements; and
(b) all of the following conditions are met:
(i) the award as varied would not be inconsistent with decisions of the AFPC;
(ii) the award as varied would provide only minimum safety net entitlements for employees bound by the award;
(iii) the award as varied would not be inconsistent with the outcomes (if any) of award simplification and award rationalisation;
(iv) the making of the variation would not operate as a disincentive to agreement‑making at the workplace level;
(v) such other requirements prescribed by the regulations (if any) for the purposes of this paragraph have been satisfied.
119B Variation of awards—other grounds
(1) The Commission may, if it considers that an award or a term of an award is ambiguous or uncertain, make an order varying the award so as to remove the ambiguity or uncertainty.
(2) If an award is referred to the Commission under section 46PW of the Human Rights and Equal Opportunity Commission Act 1986, the Commission must convene a hearing to review the award.
(3) In a review under subsection (2):
(a) the Commission must take such steps as it thinks appropriate to ensure that each employer, employee and organisation bound by the award is made aware of the hearing; and
(b) the Sex Discrimination Commissioner may intervene in the proceeding.
(4) If the Commission considers that an award reviewed under subsection (2) is a discriminatory award, the Commission must take the necessary action to remove the discrimination by making an order varying the award.
(5) The Commission may, on application by an employer or organisation bound by an award, make an order varying a term of the award referring by name to an employer or organisation bound by the award:
(a) to reflect a change in the name of the employer or organisation; or
(b) if:
(i) the registration of the organisation has been cancelled; or
(ii) the employer or organisation has ceased to exist;
to omit the reference to its name.
(6) The onus of demonstrating that an award should be varied as set out in an application under subsection (5) rests with the applicant.
(7) In this section:
discriminatory award means an award that:
(a) has been referred to the Commission under section 46PW of the Human Rights and Equal Opportunity Commission Act 1986; and
(b) requires a person to do any act that would be unlawful under Part II of the Sex Discrimination Act 1984, except for the fact that the act would be done in direct compliance with the award.
For the purposes of this definition, the fact that an act is done in direct compliance with the award does not of itself mean that the act is reasonable.
Subdivision B—Revocation of awards
119C Revocation of awards—general
The Commission must not make an order revoking an award except:
(a) as a result of an award rationalisation process; or
(b) as a result of an award simplification process; or
(c) if the award is obsolete or no longer capable of operating (see section 119D).
119D Revocation of awards—award obsolete or no longer capable of operating
(1) An employer, employee or organisation bound by an award may apply to the Commission to have the award revoked on the ground that the award is obsolete or is no longer capable of operating.
(2) If an application is made under subsection (1), the Commission must take such steps as it thinks appropriate to ensure that each employer, employee and organisation bound by the award is made aware of the application.
(3) The Commission must make an order revoking the award if it is satisfied that:
(a) the award is obsolete or is no longer capable of operating; and
(b) revocation of the award would not be contrary to the public interest.
Division 6—Binding additional employers, employees and organisations to awards
120 Binding additional employers, employees and organisations to an award
(1) The Commission may make an order varying an award to bind an employer, employee or organisation to the award.
Note 1: Section 118E enables the Commission to make awards binding specified employers, employees and organisations.
Note 2: Pre‑reform awards are taken to bind certain employers, employees and organisations. A pre‑reform award may be varied under section 118J in a manner that affects who is bound.
Note 3: An award may also be varied to bind eligible entities and employers under Division 6A.
(2) The Commission may make an order varying an award under subsection (1) only in accordance with this Division.
120A Application to be bound by an award—agreement between employer and employees
(1) An employer may apply to the Commission for an order varying a specified award to bind the employer and a specified class or specified classes of employees of the employer.
(2) If an application is made under subsection (1), the Commission must take such steps as it thinks appropriate to ensure that each employer, employee and organisation bound by the award is made aware of the application.
(3) The Commission may make an order varying the award as specified in the application if it is satisfied that:
(a) a valid majority of the employees of the employer who would be bound by the award support the application; and
(b) the award is appropriate to regulate the terms and conditions of employment of those employees; and
(c) the employer is not already bound by an award that regulates the terms and conditions of employment of those employees.
(4) The Commission may make the order without holding a hearing unless the Commission considers that it cannot be satisfied of the matters referred to in paragraphs (3)(a) and (b) based on the information provided.
120B Application to be bound by an award—no agreement between employer and employees
(1) An employer, or an employee or employees of an employer, may apply to the Commission for an order varying an award specified in the application to bind the employer and a specified class or specified classes of employees of the employer.
(2) An employer may make an application under subsection (1) even if a valid majority of the employees of the employer who would be bound by the award do not support the application.
(3) An employee or employees of an employer may make an application under subsection (1) even if the employer does not support the application.
(4) If an application is made under subsection (1), the Commission must take such steps as it thinks appropriate to ensure that each employer, employee and organisation bound by the award is made aware of the application.
(5) The Commission may make an order varying the award as specified in the application only if the Commission is satisfied:
(a) that the employer, and the employees of the employer who would be bound by the award, have been unable to make a workplace agreement, despite having made reasonable efforts to do so; and
(b) the award is appropriate to govern the terms and conditions of employment of those employees; and
(c) the employer is not already bound by an award that regulates the terms and conditions of employment of those employees.
(6) An organisation may make an application under subsection (1) on behalf of an employee or employees, and may represent the employee or employees in proceedings relating to the application, if:
(a) the employee or employees have requested that the organisation do so; and
(b) the organisation is entitled (under its eligibility rules) to represent the interests of the employee or employees.
(7) In this section:
protected action has the meaning given by section 108.
reasonable efforts does not require the taking of protected action.
120C Application to be bound by an award—new organisations
(1) A new organisation may apply to the Commission for an order varying an award to bind the organisation.
(2) If an application is made under subsection (1), the Commission must take such steps as it thinks appropriate to ensure that each employer, employee and organisation bound by the award, and any other interested persons and bodies, are made aware of the application.
(3) The Minister may intervene in relation to the application.
(4) The Commission may make the order if the Commission is satisfied that:
(a) the new organisation has at least one member bound by the award whose industrial interests the new organisation is entitled (under its eligibility rules) to represent; and
(b) the making of the order is necessary to enable the new organisation to represent properly the industrial interests of those of its members who are bound by the award; and
(c) the award regulates an industry in respect of which the new organisation has traditionally been entitled to represent the industrial interests of its members.
(5) In this section:
new organisation means:
(a) an association granted registration as an organisation under the Registration and Accountability of Organisations Schedule on or after the reform commencement; or
(b) a transitionally registered association registered under clause 2 of Schedule 17.
120D Application by new organisation to be bound by an award—additional matters
(1) An application under subsection 120C(1) must be made within the period of one year commencing on the day on which the new organisation was registered under the Registration and Accountability of Organisations Schedule or Schedule 17.
(2) If an application under subsection 120C(1) relates to an award made under section 118E or an award that has been varied under section 118J, a Full Bench must consider the application.
120E Process for valid majority of employees
The regulations may prescribe the meaning of, or the method for establishing what constitutes, a valid majority of the employees of an employer or of a class of employees of an employer, for the purposes of this Division.
120F General provisions
(1) Without limiting the way in which a class of employees may be described for the purposes of this Division, the class may be described by reference to a particular industry or particular kinds of work.
(2) For the purposes of making an order binding an employer, employee or organisation to an award:
(a) employers may be specified by name or by inclusion in a specified class or specified classes; and
(b) employees must be specified by inclusion in a specified class or specified classes; and
(c) organisations must be specified by name.
Division 6A—Outworkers
120G Definitions
In this Division:
eligible entity means any of the following entities, other than in the entity’s capacity as an employer:
(a) a constitutional corporation;
(b) the Commonwealth;
(c) a Commonwealth authority;
(d) a body corporate incorporated in a Territory;
(e) a person or entity (which may be an unincorporated club) that carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, in connection with the activity carried on in the Territory.
outworker term means a term of an award that is:
(a) about the matter referred to in paragraph 116(1)(m); or
(b) incidental to such a matter, and included in the award as permitted by section 116I; or
(c) a machinery provision in respect of such a matter included in the award as permitted by section 116I.
120H Outworker terms may bind eligible entities and employers
(1) This section applies to an award made under section 118E or varied under section 118J if the award includes outworker terms.
(2) In addition to the employers, organisations and persons that the award is expressed to bind under section 118I or 118J, as the case requires, the award may be expressed to bind, but only in relation to the outworker terms, an eligible entity or an employer that operates in an industry:
(a) to which the award relates; or
(b) in respect of which the outworker terms are applicable.
120I Binding additional eligible entities and employers
(1) An organisation, an eligible entity or an employer may apply to the Commission for an order varying an award that includes outworker terms to bind an eligible entity or an employer to the award, but only in relation to the outworker terms.
(2) If an application is made under subsection (1), the Commission must take such steps as it thinks appropriate to ensure that each employer, employee and organisation bound by the award, and any other interested persons and bodies, are made aware of the application.
(3) The Minister may intervene in relation to the application.
(4) If an application is made under subsection (1), the Commission may make the order if it is satisfied that:
(a) the eligible entity or employer operates in an industry to which the award relates; and
(b) the eligible entity or employer is not already bound by an award that includes outworker terms in respect of such an industry in relation to those terms; and
(c) making the order is consistent with the objective of protecting the overall conditions of employment of outworkers.
Division 7—Technical matters
121 Making and publication of awards and award‑related orders
(1) An award or award‑related order must:
(a) be reduced to writing; and
(b) be signed by:
(i) in the case of an award or order made by a Full Bench—at least one member of the Full Bench; or
(ii) in the case of any other order—at least one member of the Commission; and
(c) show the day on which it is signed.
(2) If the Commission makes an award or an award‑related order, the Commission must promptly give to a Registrar:
(a) a copy of the award or order; and
(b) written reasons for the award or order; and
(c) a list specifying the employers, employees and organisations bound by the award or order.
(3) A Registrar who receives a copy of an award or an award‑related order under subsection (2) must promptly:
(a) make available a copy of the award or order and the written reasons received by a Registrar in respect of the making of the award or order to each employer, employee and organisation shown on the list given to the Registrar under paragraph (2)(c); and
(b) ensure that a copy of the award or order and the written reasons received by the Registrar in respect of the making of the award or order are available for inspection at each registry; and
(c) ensure that the award or order and any written reasons received by the Registrar in respect of the making of the award or order are published as soon as practicable.
121A Awards and award‑related orders must meet certain requirements
(1) The Commission must, when making an award or an award‑related order, if it considers it appropriate, ensure that the award or order:
(a) does not include matters of detail or process that are more appropriately dealt with by agreement at the workplace or enterprise level; and
(b) does not prescribe work practices or procedures that restrict or hinder the efficient performance of work; and
(c) does not include terms that have the effect of restricting or hindering productivity, having regard to fairness to employees.
(2) The Commission must, when making an award or an award‑related order, ensure that the award or order:
(a) where appropriate, includes facilitative provisions that allow agreement at the workplace or enterprise level, between employers and employees (including individual employees), on how the award terms are to apply; and
(b) includes terms providing for the employment of regular part‑time employees; and
Note: Clauses 15.3.1 to 15.3.5 of the Hospitality Industry—Accommodation, Hotels, Resorts and Gaming Award 1998 provide a model (see the Award Simplification Decision at P7500).
(c) is expressed in plain English and is easy to understand in structure and content; and
(d) does not include terms that are obsolete or that need updating; and
(e) does not include terms that discriminate against an employee because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(3) An award or an award‑related order does not discriminate against an employee for the purposes of paragraph (2)(e) merely because:
(a) it discriminates, in respect of particular employment, on the basis of the inherent requirements of that employment; or
(b) it discriminates, in respect of employment as a member of the staff of an institution that is conducted in accordance with the teachings or beliefs of a particular religion or creed:
(i) on the basis of those teachings or beliefs; and
(ii) in good faith.
121B Registrar’s powers if member ceases to be a member
If:
(a) a member of the Commission ceases to be a member at a time after an award or an award‑related order has been made by the Commission constituted by the member; and
(b) at that time, the award or order has not yet been reduced to writing or has been reduced to writing but has not yet been signed by the member;
the Registrar must reduce the award or order to writing, sign it and seal it with the seal of the Commission, and the award or order has effect as if it had been signed by the member of the Commission.
121C Form of awards
An award or an award‑related order is to be framed so as best to express the decision of the Commission and to avoid unnecessary technicalities.
121D Date of awards
The date of an award or an award‑related order is the day on which the award or order was signed under section 121.
121E Commencement of awards
(1) An award or an award‑related order is to be expressed to come into force on a specified day.
(2) Unless the Commission is satisfied that there are exceptional circumstances, the day specified in an award or an award‑related order for the purposes of subsection (1) must not be earlier than the date of the award or order.
121F Continuation of awards
An award continues in force until it is revoked under a provision referred to in section 119C.
121G Awards of Commission are final
(1) Subject to this Act, an award or an award‑related order (including an award or order made on appeal):
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus or injunction in any court on any account.
(2) An award or an award‑related order is not invalid because it was made by the Commission constituted otherwise than as provided by this Act.
121H Reprints of awards as varied
A document purporting to be a copy of a reprint of an award as varied, and purporting to have been printed by the Government Printer, is in all courts evidence of the award as varied.
121I Expressions used in awards
Unless the contrary intention appears in an award or an award‑related order, an expression used in the award or order has the same meaning as it has in an Act because of the Acts Interpretation Act 1901 or as it has in this Act.
Part VIAA—Transmission of business rules
Division 1—Introductory
122 Object
The object of this Part is to provide for the transfer of employer obligations under certain instruments when the whole, or a part, of a person’s business is transmitted to another person.
122A Simplified outline
(1) Division 2 describes the transmission of business situation this Part is designed to deal with. It identifies the old employer, the new employer, the business being transferred, the time of transmission and the transferring employees.
(2) Divisions 3 to 6 deal with the transmission of particular instruments as follows:
(a) Division 3 deals with the transmission of AWAs;
(b) Division 4 deals with the transmission of collective agreements;
(c) Division 5 deals with the transmission of awards;
(d) Division 6 deals with the transmission of APCSs.
(3) Division 7 deals with what happens with entitlements under the Australian Fair Pay and Conditions Standard when there is a transmission of business.
(4) Division 8 deals with notification requirements, the lodgment of notices with the Employment Advocate and the enforcement of employer obligations by pecuniary penalties.
(5) Division 9 allows regulations to be made to deal with other transmission of business issues.
122B Definitions
In this Part:
business being transferred has the meaning given by subsection 123(2).
Court means the Federal Court of Australia or the Federal Magistrates Court.
instrument means:
(a) an AWA; or
(b) a collective agreement; or
(c) an award; or
(d) an APCS.
new employer has the meaning given by subsection 123(1).
old employer has the meaning given by subsection 123(1).
operational reasons has the meaning given by subsection 170CE(5D).
parental leave has the same meaning as in subsection 94ZZB(3).
time of transmission has the meaning given by subsection 123(3).
transferring employee has the meaning given by sections 123A and 123B.
transmission period has the meaning given by subsection 123(4).
Division 2—Application of Part
123 Application of Part
(1) This Part applies if a person (the new employer) becomes the successor, transmittee or assignee of the whole, or a part, of a business of another person (the old employer).
(2) The business, or the part of the business, to which the new employer is successor, transmittee or assignee is the business being transferred for the purposes of this Part.
(3) The time at which the new employer becomes the successor, transmittee or assignee of the business being transferred is the time of transmission for the purposes of this Part.
(4) The period of 12 months after the time of transmission is the transmission period for the purposes of this Part.
123A Transferring employees
(1) A person is a transferring employee for the purposes of this Part if:
(a) the person is employed by the old employer immediately before the time of transmission; and
(b) the person:
(i) ceases to be employed by the old employer; and
(ii) becomes employed by the new employer in the business being transferred;
within 2 months after the time of transmission.
(2) A person is also a transferring employee for the purposes of this Part if:
(a) the person is employed by the old employer at any time within the period of 1 month before the time of transmission; and
(b) the person’s employment with the old employer is terminated by the old employer before the time of transmission for genuine operational reasons or for reasons that include genuine operational reasons; and
(c) the person becomes employed by the new employer in the business being transferred within 2 months after the time of transmission.
(3) In applying section 123B and Divisions 3 to 7 in relation to a person who is a transferring employee under subsection (2) of this section, a reference in those provisions to a particular state of affairs existing immediately before the time of transmission is to be read as a reference to that state of affairs existing immediately before the person last ceased to be an employee of the old employer.
123B Transferring employees in relation to particular instrument
(1) A transferring employee is a transferring employee in relation to a particular instrument if:
(a) the instrument applied to the transferring employee’s employment with the old employer immediately before the time of transmission; and
(b) when the transferring employee becomes employed by the new employer, the nature of the transferring employee’s employment with the new employer is such that the instrument is capable of applying to employment of that nature.
(2) The transferring employee ceases to be a transferring employee in relation to the instrument if:
(a) the transferring employee ceases to be employed by the new employer after the time of transmission; or
(b) the nature of the transferring employee’s employment with the new employer changes so that the instrument is no longer capable of applying to employment of that nature; or
(c) the transmission period ends.
Paragraph (c) does not apply if the instrument is an APCS.
(3) This section applies to a preserved APCS as if it were an instrument.
Division 3—Transmission of AWA
124 Transmission of AWA
New employer bound by AWA
(1) If:
(a) immediately before the time of transmission:
(i) the old employer; and
(ii) an employee;
were bound by an AWA; and
(b) the employee is a transferring employee in relation to the AWA;
the new employer is bound by the AWA by force of this section.
Note: The new employer must notify the transferring employee and lodge a copy of the notice with the Employment Advocate (see sections 129 and 129A).
Period for which new employer remains bound
(2) The new employer remains bound by the AWA, by force of this section, until whichever of the following first occurs:
(a) the AWA is terminated (see Division 9 of Part VB as modified by section 124A);
(b) the AWA ceases to be in operation because it is replaced by another AWA between the new employer and the transferring employee (see paragraph 100(4)(b));
(c) the transferring employee ceases to be a transferring employee in relation to the AWA;
(d) the transmission period ends.
Old employer’s rights and obligations that arose before time of transmission not affected
(3) This section does not affect the rights and obligations of the old employer that arose before the time of transmission.
124A Termination of transmitted AWA
Modified operation of subsections 103K(2) and 103L(2)
(1) The AWA cannot be terminated under subsection 103K(2) or 103L(2) during the transmission period (even if the AWA has passed its nominal expiry date).
Subsection 103R(1) does not apply
(2) Despite subsection 103R(1), a workplace agreement or an award may have effect in relation to the transferring employee’s employment with the new employer even if:
(a) the AWA is terminated during the transmission period; or
(b) the new employer ceases to be bound by the AWA because the transmission period ends.
Note: Paragraph (2)(b) is included for the avoidance of doubt. Subsection 103R(1) only applies if a workplace agreement is terminated. Technically, the end of the transmission period does not terminate the transmitted AWA. The new employer merely ceases to be bound by it.
Division 4—Transmission of collective agreement
Subdivision A—General
125 Transmission of collective agreement
New employer bound by collective agreement
(1) If:
(a) immediately before the time of transmission:
(i) the old employer; and
(ii) employees of the old employer;
were bound by a collective agreement; and
(b) there is at least one transferring employee in relation to the collective agreement;
the new employer is bound by the collective agreement by force of this section.
Note 1: The new employer must notify transferring employees and lodge a copy of a notice with the Employment Advocate (see sections 129 and 129A).
Note 2: See also section 125A for the interaction between the collective agreement and other industrial instruments.
Period for which new employer remains bound
(2) The new employer remains bound by the collective agreement, by force of this section, until whichever of the following first occurs:
(a) the collective agreement is terminated (see Division 9 of Part VB as modified by section 125C);
(b) there cease to be any transferring employees in relation to the collective agreement;
(c) the new employer ceases to be bound by the collective agreement in relation to all the transferring employees in relation to the collective agreement;
(d) the transmission period ends.
Note: Paragraph (c)—see subsection (3).
Period for which new employer remains bound in relation to particular transferring employee
(3) The new employer remains bound by the collective agreement in relation to a particular transferring employee, by force of this section, until whichever of the following first occurs:
(a) the collective agreement ceases to be in operation in relation to the transferring employee’s employment with the new employer because the new employer makes an AWA with the transferring employee (see subsection 125B(2));
(b) the collective agreement ceases to be in operation in relation to the transferring employee’s employment with the new employer because it has been replaced by another collective agreement in relation to the transferring employee’s employment with the new employer (see subsection 100(5) as modified by subsection 125B(3));
(c) the employer ceases to be bound by the collective agreement under subsection (2).
New employer bound only in relation to employment of transferring employees in the business being transferred
(4) The new employer is bound by the collective agreement, by force of this section, only in relation to the employment, in the business being transferred, of employees who are transferring employees in relation to the collective agreement.
New employer bound subject to Commission order
(5) Subsections (1), (2) and (3) have effect subject to any order of the Commission under section 125E.
Old employer’s rights and obligations that arose before time of transmission not affected
(6) This section does not affect the rights and obligations of the old employer that arose before the time of transmiss