Federal Register of Legislation - Australian Government

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Fair Work Bill 2008

  • - C2008B00262
A Bill for an Act relating to workplace relations, and for related purposes
Administered by: Education, Employment and Workplace Relations
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 26 Nov 2008
Introduced HR 25 Nov 2008

2008

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Fair Work Bill 2008

 

No.      , 2008

 

(Education, Employment and Workplace Relations)

 

 

 

A Bill for an Act relating to workplace relations, and for related purposes

  

  

  


Contents

Chapter 1—Introduction                                                                                        1

Part 1‑1—Introduction                                                                                                          1

Division 1—Preliminary                                                                                              1

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 1

Division 2—Object of this Act                                                                                 1

3............ Object of this Act............................................................................... 1

Division 3—Guide to this Act                                                                                  1

4............ Guide to this Act................................................................................ 1

5............ Terms and conditions of employment (Chapter 2)............................ 1

6............ Rights and responsibilities of employees, employers, organisations etc. (Chapter 3)            1

7............ Compliance and enforcement (Chapter 4).......................................... 1

8............ Administration (Chapter 5)................................................................ 1

9............ Miscellaneous (Chapter 6)................................................................. 1

Part 1‑2—Definitions                                                                                                            1

Division 1—Introduction                                                                                            1

10.......... Guide to this Part............................................................................... 1

11.......... Meanings of employee and employer.................................................. 1

Division 2—The Dictionary                                                                                       1

12.......... The Dictionary................................................................................... 1

Division 3—Definitions relating to the meanings of employee, employer etc.  1

13.......... Meaning of national system employee................................................ 1

14.......... Meaning of national system employer................................................ 1

15.......... Ordinary meanings of employee and employer................................... 1

Division 4—Other definitions                                                                                  1

16.......... Meaning of base rate of pay............................................................... 1

17.......... Meaning of child of a person.............................................................. 1

18.......... Meaning of full rate of pay.................................................................. 1

19.......... Meaning of industrial action............................................................... 1

20.......... Meaning of ordinary hours of work for award/agreement free employees              1

21.......... Meaning of pieceworker..................................................................... 1

22.......... Meanings of service and continuous service...................................... 1

23.......... Meaning of small business employer.................................................. 1

Part 1‑3—Application of this Act                                                                                    1

Division 1—Introduction                                                                                            1

24.......... Guide to this Part............................................................................... 1

25.......... Meanings of employee and employer.................................................. 1

Division 2—Interaction with State and Territory laws                                1

26.......... Act excludes State or Territory industrial laws.................................. 1

27.......... State and Territory laws that are not excluded by section 26............ 1

28.......... Act excludes prescribed State and Territory laws.............................. 1

29.......... Interaction of modern awards and enterprise agreements with State and Territory laws        1

30.......... Act may exclude State and Territory laws etc. in other cases............ 1

Division 3—Geographical application of this Act                                          1

31.......... Exclusion of persons etc. insufficiently connected with Australia..... 1

32.......... Regulations may modify application of this Act in certain parts of Australia        1

33.......... Extension of this Act to the exclusive economic zone and the continental shelf     1

34.......... Extension of this Act beyond the exclusive economic zone and the continental shelf            1

35.......... Meanings of Australian employer and Australian‑based employee.... 1

36.......... Geographical application of offences................................................. 1

Division 4—Miscellaneous                                                                                        1

37.......... Act binds Crown................................................................................ 1

38.......... Act not to apply so as to exceed Commonwealth power.................. 1

39.......... Acquisition of property..................................................................... 1

40.......... Interaction between fair work instruments and public sector employment laws    1

Chapter 2—Terms and conditions of employment                       1

Part 2‑1—Core provisions for this Chapter                                                             1

Division 1—Introduction                                                                                            1

41.......... Guide to this Part............................................................................... 1

42.......... Meanings of employee and employer.................................................. 1

Division 2—Core provisions for this Chapter                                                 1

Subdivision A—Terms and conditions of employment provided under this Act   1

43.......... Terms and conditions of employment provided under this Act........ 1

Subdivision B—Terms and conditions of employment provided by the National Employment Standards       1

44.......... Contravening the National Employment Standards........................... 1

Subdivision C—Terms and conditions of employment provided by a modern award           1

45.......... Contravening a modern award............................................................ 1

46.......... The significance of a modern award applying to a person................. 1

47.......... When a modern award applies to an employer, employee, organisation or outworker entity                1

48.......... When a modern award covers an employer, employee, organisation or outworker entity     1

49.......... When a modern award is in operation................................................ 1

Subdivision D—Terms and conditions of employment provided by an enterprise agreement           1

50.......... Contravening an enterprise agreement................................................ 1

51.......... The significance of an enterprise agreement applying to a person..... 1

52.......... When an enterprise agreement applies to an employer, employee or employee organisation 1

53.......... When an enterprise agreement covers an employer, employee or employee organisation      1

54.......... When an enterprise agreement is in operation.................................... 1

Division 3—Interaction between the National Employment Standards, modern awards and enterprise agreements                                                                                              1

Subdivision A—Interaction between the National Employment Standards and a modern award or an enterprise agreement                                                                                                           1

55.......... Interaction between the National Employment Standards and a modern award or enterprise agreement               1

56.......... Terms of a modern award or enterprise agreement contravening section 55 have no effect    1

Subdivision B—Interaction between modern awards and enterprise agreements              1

57.......... Interaction between modern awards and enterprise agreements......... 1

Subdivision C—Interaction between one or more enterprise agreements       1

58.......... Only one enterprise agreement can apply to an employee................ 1

Part 2‑2—The National Employment Standards                                                   1

Division 1—Introduction                                                                                            1

59.......... Guide to this Part............................................................................... 1

60.......... Meanings of employee and employer.................................................. 1

Division 2—The National Employment Standards                                        1

61.......... The National Employment Standards are minimum standards applying to employment of employees                1

Division 3—Maximum weekly hours                                                                   1

62.......... Maximum weekly hours..................................................................... 1

63.......... Modern awards and enterprise agreements may provide for averaging of hours of work       1

64.......... Averaging of hours of work for award/agreement free employees..... 1

Division 4—Requests for flexible working arrangements                        1

65.......... Requests for flexible working arrangements....................................... 1

66.......... State and Territory laws that are not excluded................................... 1

Division 5—Parental leave and related entitlements                                  1

Subdivision A—General                                                                                             1

67.......... General rule—employee must have completed at least 12 months of service         1

68.......... General rule for adoption‑related leave—child must be under 16 etc. 1

69.......... Transfer of employment situations in which employee is entitled to continue on leave etc.  1

Subdivision B—Parental leave                                                                                  1

70.......... Entitlement to unpaid parental leave.................................................. 1

71.......... The period of leave—other than for members of an employee couple who each intend to take leave    1

72.......... The period of leave—members of an employee couple who each intend to take leave           1

73.......... Pregnant employee may be required to take unpaid parental leave within 6 weeks before the birth      1

74.......... Notice and evidence requirements...................................................... 1

75.......... Extending period of unpaid parental leave—extending to use more of available parental leave period   1

76.......... Extending period of unpaid parental leave—extending for up to 12 months beyond available parental leave period............................................................................................................ 1

77.......... Reducing period of unpaid parental leave........................................... 1

78.......... Employee who ceases to have responsibility for care of child........... 1

79.......... Interaction with paid leave................................................................. 1

Subdivision C—Other entitlements                                                                         1

80.......... Unpaid special maternity leave.......................................................... 1

81.......... Transfer to a safe job.......................................................................... 1

82.......... Employee on paid no safe job leave may be asked to provide a further medical certificate    1

83.......... Consultation with employee on unpaid parental leave...................... 1

84.......... Return to work guarantee................................................................... 1

85.......... Unpaid pre‑adoption leave................................................................. 1

Division 6—Annual leave                                                                                           1

86.......... Division applies to employees other than casual employees............. 1

87.......... Entitlement to annual leave................................................................. 1

88.......... Taking paid annual leave..................................................................... 1

89.......... Employee not taken to be on paid annual leave at certain times........ 1

90.......... Payment for annual leave.................................................................... 1

91.......... Transfer of employment situations that affect entitlement to payment for period of untaken paid annual leave  1

92.......... Paid annual leave must not be cashed out except in accordance with permitted cashing out terms        1

93.......... Modern awards and enterprise agreements may include terms relating to cashing out and taking paid annual leave............................................................................................................ 1

94.......... Cashing out and taking paid annual leave for award/agreement free employees      1

Division 7—Personal/carer’s leave and compassionate leave               1

Subdivision A—Paid personal/carer’s leave                                                          1

95.......... Subdivision applies to employees other than casual employees........ 1

96.......... Entitlement to paid personal/carer’s leave.......................................... 1

97.......... Taking paid personal/carer’s leave...................................................... 1

98.......... Employee taken not to be on paid personal/carer’s leave on public holiday           1

99.......... Payment for paid personal/carer’s leave............................................. 1

100........ Paid personal/carer’s leave must not be cashed out except in accordance with permitted cashing out terms         1

101........ Modern awards and enterprise agreements may include terms relating to cashing out paid personal/carer’s leave............................................................................................................ 1

Subdivision B—Unpaid carer’s leave                                                                       1

102........ Entitlement to unpaid carer’s leave.................................................... 1

103........ Taking unpaid carer’s leave................................................................ 1

Subdivision C—Compassionate leave                                                                      1

104........ Entitlement to compassionate leave................................................... 1

105........ Taking compassionate leave............................................................... 1

106........ Payment for compassionate leave (other than for casual employees) 1

Subdivision D—Notice and evidence requirements                                              1

107........ Notice and evidence requirements...................................................... 1

Division 8—Community service leave                                                                1

108........ Entitlement to be absent from employment for engaging in eligible community service activity            1

109........ Meaning of eligible community service activity.................................. 1

110........ Notice and evidence requirements...................................................... 1

111........ Payment to employees (other than casuals) on jury service.............. 1

112........ State and Territory laws that are not excluded................................... 1

Division 9—Long service leave                                                                              1

113........ Entitlement to long service leave........................................................ 1

Division 10—Public holidays                                                                                    1

114........ Entitlement to be absent from employment on public holiday.......... 1

115........ Meaning of public holiday.................................................................. 1

116........ Payment for absence on public holiday.............................................. 1

Division 11—Notice of termination and redundancy pay                           1

Subdivision A—Notice of termination or payment in lieu of notice                   1

117........ Requirement for notice of termination or payment in lieu................. 1

118........ Modern awards and enterprise agreements may provide for notice of termination by employees         1

Subdivision B—Redundancy pay                                                                              1

119........ Redundancy pay................................................................................. 1

120........ Variation of redundancy pay for other employment or incapacity to pay             1

121........ Exclusions from obligation to pay redundancy pay........................... 1

122........ Transfer of employment situations that affect the obligation to pay redundancy pay           1

Subdivision C—Limits on scope of this Division                                                   1

123........ Limits on scope of this Division........................................................ 1

Division 12—Fair Work Information Statement                                            1

124........ FWA to determine and publish Fair Work Information Statement.... 1

125........ Giving new employees the Fair Work Information Statement........... 1

Division 13—Miscellaneous                                                                                     1

126........ Modern awards and enterprise agreements may provide for school‑based apprentices and trainees to be paid loadings in lieu.................................................................................................. 1

127........ Regulations about what modern awards and enterprise agreements can do             1

128........ Relationship between National Employment Standards and agreements etc. permitted by this Part for award/agreement free employees.................................................................................... 1

129........ Regulations about what can be agreed to etc. in relation to award/agreement free employees                1

130........ Restriction on taking or accruing leave or absence while receiving workers’ compensation    1

131........ Relationship with other Commonwealth laws................................... 1

Part 2‑3—Modern awards                                                                                                  1

Division 1—Introduction                                                                                            1

132........ Guide to this Part............................................................................... 1

133........ Meanings of employee and employer.................................................. 1

Division 2—Overarching provisions                                                                    1

134........ The modern awards objective............................................................. 1

135........ Special provisions relating to modern award minimum wages........... 1

Division 3—Terms of modern awards                                                                 1

Subdivision A—Preliminary                                                                                     1

136........ What can be included in modern awards............................................. 1

137........ Terms that contravene section 136 have no effect............................. 1

138........ Achieving the modern awards objective............................................. 1

Subdivision B—Terms that may be included in modern awards                         1

139........ Terms that may be included in modern awards—general................... 1

140........ Outworker terms................................................................................ 1

141........ Industry‑specific redundancy schemes.............................................. 1

142........ Incidental and machinery terms.......................................................... 1

Subdivision C—Terms that must be included in modern awards                       1

143........ Coverage terms................................................................................... 1

144........ Flexibility terms.................................................................................. 1

145........ Effect of individual flexibility arrangement that does not meet requirements of flexibility term             1

146........ Terms about settling disputes............................................................ 1

147........ Ordinary hours of work...................................................................... 1

148........ Base and full rates of pay for pieceworkers....................................... 1

149........ Automatic variation of allowances..................................................... 1

Subdivision D—Terms that must not be included in modern awards                1

150........ Objectionable terms............................................................................ 1

151........ Terms about payments and deductions for benefit of employer etc.. 1

152........ Terms about right of entry................................................................. 1

153........ Terms that are discriminatory............................................................ 1

154........ Terms that contain State‑based differences........................................ 1

155........ Terms dealing with long service leave................................................. 1

Division 4—4 yearly reviews of modern awards                                            1

156........ 4 yearly reviews of modern awards to be conducted......................... 1

Division 5—Exercising modern award powers outside 4 yearly reviews and annual wage reviews      1

Subdivision A—Exercise of powers if necessary to achieve modern awards objective       1

157........ FWA may vary etc. modern awards if necessary to achieve modern awards objective          1

158........ Applications to vary, revoke or make modern award........................ 1

Subdivision B—Other situations                                                                             1

159........ Variation of modern award to update or omit name of employer, organisation or outworker entity      1

160........ Variation of modern award to remove ambiguity or uncertainty or correct error    1

161........ Variation of modern award on referral by HREOC............................ 1

Division 6—General provisions relating to modern award powers     1

162........ General................................................................................................ 1

163........ Special criteria relating to changing coverage of modern awards......... 1

164........ Special criteria for revoking modern awards....................................... 1

165........ When variation determinations come into operation, other than determinations setting, varying or revoking modern award minimum wages........................................................................ 1

166........ When variation determinations setting, varying or revoking modern award minimum wages come into operation............................................................................................................ 1

167........ Special rules relating to retrospective variations of awards................ 1

168........ Varied modern award must be published............................................ 1

Part 2‑4—Enterprise agreements                                                                                  1

Division 1—Introduction                                                                                            1

169........ Guide to this Part............................................................................... 1

170........ Meanings of employee and employer.................................................. 1

171........ Objects of this Part............................................................................. 1

Division 2—Employers and employees may make enterprise agreements        1

172........ Making an enterprise agreement......................................................... 1

Division 3—Bargaining and representation during bargaining              1

173........ Notice of employee representational rights........................................ 1

174........ Content of notice of employee representational rights...................... 1

175........ Relevant employee organisations to be given notice of employer’s intention to make greenfields agreements etc............................................................................................................. 1

176........ Bargaining representatives for proposed enterprise agreements that are not greenfields agreements      1

177........ Bargaining representatives for proposed greenfields agreements....... 1

178........ Appointment of bargaining representatives—other matters.............. 1

179........ Employer etc. must not refuse to recognise or bargain with other bargaining representatives                1

Division 4—Approval of enterprise agreements                                           1

Subdivision A—Pre‑approval steps and applications for FWA approval           1

180........ Employees must be given a copy of a proposed enterprise agreement etc.            1

181........ Employers may request employees to approve a proposed enterprise agreement 1

182........ When an enterprise agreement is made............................................... 1

183........ Entitlement of an employee organisation to have an enterprise agreement cover it                1

184........ Multi‑enterprise agreement to be varied if not all employees approve the agreement            1

185........ Bargaining representative must apply for FWA approval of an enterprise agreement           1

Subdivision B—Approval of enterprise agreements by FWA                             1

186........ When FWA must approve an enterprise agreement—general requirements           1

187........ When FWA must approve an enterprise agreement—additional requirements       1

188........ When employees have genuinely agreed to an enterprise agreement.. 1

189........ FWA may approve an enterprise agreement that does not pass better off overall test—public interest test        1

190........ FWA may approve an enterprise agreement with undertakings........ 1

191........ Effect of undertakings......................................................................... 1

192........ When FWA may refuse to approve an enterprise agreement............. 1

Subdivision C—Better off overall test                                                                     1

193........ Passing the better off overall test....................................................... 1

Subdivision D—Unlawful terms                                                                                1

194........ Meaning of unlawful term................................................................... 1

195........ Meaning of discriminatory term......................................................... 1

Subdivision E—Approval requirements relating to particular kinds of employees            1

196........ Shiftworkers....................................................................................... 1

197........ Pieceworkers—enterprise agreement includes pieceworker term....... 1

198........ Pieceworkers—enterprise agreement does not include a pieceworker term            1

199........ School‑based apprentices and school‑based trainees.......................... 1

200........ Outworkers......................................................................................... 1

Subdivision F—Other matters                                                                                  1

201........ Approval decision to note certain matters......................................... 1

Division 5—Mandatory terms of enterprise agreements                         1

202........ Enterprise agreements to include a flexibility term etc....................... 1

203........ Requirements to be met by a flexibility term..................................... 1

204........ Effect of arrangement that does not meet requirements of flexibility term              1

205........ Enterprise agreements to include a consultation term etc................... 1

Division 6—Base rate of pay under enterprise agreements                   1

206........ Base rate of pay under an enterprise agreement must not be less than the modern award rate or the national minimum wage order rate etc.............................................................................. 1

Division 7—Variation and termination of enterprise agreements        1

Subdivision A—Variation of enterprise agreements by employers and employees            1

207........ Variation of an enterprise agreement may be made by employers and employees 1

208........ Employers may request employees to approve a proposed variation of an enterprise agreement         1

209........ When a variation of an enterprise agreement is made......................... 1

210........ Application for FWA approval of a variation of an enterprise agreement              1

211........ When FWA must approve a variation of an enterprise agreement..... 1

212........ FWA may approve a variation of an enterprise agreement with undertakings        1

213........ Effect of undertakings......................................................................... 1

214........ When FWA may refuse to approve a variation of an enterprise agreement            1

215........ Approval decision to note undertakings............................................. 1

216........ When variation comes into operation................................................. 1

Subdivision B—Variations of enterprise agreements where there is ambiguity, uncertainty or discrimination        1

217........ Variation of an enterprise agreement to remove an ambiguity or uncertainty         1

218........ Variation of an enterprise agreement on referral by HREOC............. 1

Subdivision C—Termination of enterprise agreements by employers and employees       1

219........ Employers and employees may agree to terminate an enterprise agreement           1

220........ Employers may request employees to approve a proposed termination of an enterprise agreement     1

221........ When termination of an enterprise agreement is agreed to................. 1

222........ Application for FWA approval of a termination of an enterprise agreement          1

223........ When FWA must approve a termination of an enterprise agreement 1

224........ When termination comes into operation............................................. 1

Subdivision D—Termination of enterprise agreements after nominal expiry date            1

225........ Application for termination of an enterprise agreement after its nominal expiry date            1

226........ When FWA must terminate an enterprise agreement......................... 1

227........ When termination comes into operation............................................. 1

Division 8—FWA’s general role in facilitating bargaining                       1

Subdivision A—Bargaining orders                                                                         1

228........ Bargaining representatives must meet the good faith bargaining requirements        1

229........ Applications for bargaining orders..................................................... 1

230........ When FWA may make a bargaining order.......................................... 1

231........ What a bargaining order must specify................................................ 1

232........ Operation of a bargaining order.......................................................... 1

233........ Contravening a bargaining order.......................................................... 1

Subdivision B—Serious breach declarations                                                        1

234........ Applications for serious breach declarations...................................... 1

235........ When FWA may make a serious breach declaration........................... 1

Subdivision C—Majority support determinations and scope orders                 1

236........ Majority support determinations....................................................... 1

237........ When FWA must make a majority support determination................ 1

238........ Scope orders....................................................................................... 1

239........ Operation of a scope order................................................................. 1

Subdivision D—FWA may deal with a bargaining dispute on request              1

240........ Application for FWA to deal with a bargaining dispute.................... 1

Division 9—Low‑paid bargaining                                                                           1

241........ Objects of this Division...................................................................... 1

242........ Low‑paid authorisations..................................................................... 1

243........ When FWA must make a low‑paid authorisation.............................. 1

244........ Variation of low‑paid authorisations—general................................... 1

245........ Variation of low‑paid authorisations—enterprise agreement etc. comes into operation         1

246........ FWA assistance for the low‑paid....................................................... 1

Division 10—Single interest employer authorisations                               1

Subdivision A—Declaration that employers may bargain together for a proposed enterprise agreement    1

247........ Ministerial declaration that employers may bargain together for a proposed enterprise agreement       1

Subdivision B—Single interest employer authorisations                                   1

248........ Single interest employer authorisations.............................................. 1

249........ When FWA must make a single interest employer authorisation...... 1

250........ What a single interest employer authorisation must specify............. 1

251........ Variation of single interest employer authorisations.......................... 1

252........ Variation to extend period single interest employer authorisation is in operation  1

Division 11—Other matters                                                                                      1

253........ Terms of an enterprise agreement that are of no effect...................... 1

254........ Applications by bargaining representatives....................................... 1

255........ Part does not empower FWA to make certain orders........................ 1

256........ Prospective employers and employees.............................................. 1

257........ Enterprise agreements may incorporate material in force from time to time etc.    1

Part 2‑5—Workplace determinations                                                                          1

Division 1—Introduction                                                                                            1

258........ Guide to this Part............................................................................... 1

259........ Meanings of employee and employer.................................................. 1

Division 2—Low‑paid workplace determinations                                          1

260........ Applications for low‑paid workplace determinations........................ 1

261........ When FWA must make a consent low‑paid workplace determination 1

262........ When FWA must make a special low‑paid workplace determination—general requirements                1

263........ When FWA must make a special low‑paid workplace determination—additional requirements            1

264........ Terms etc. of a low‑paid workplace determination............................ 1

265........ No other terms.................................................................................... 1

Division 3—Industrial action related workplace determinations          1

266........ When FWA must make an industrial action related workplace determination        1

267........ Terms etc. of an industrial action related workplace determination... 1

268........ No other terms.................................................................................... 1

Division 4—Bargaining related workplace determinations                     1

269........ When FWA must make a bargaining related workplace determination 1

270........ Terms etc. of a bargaining related workplace determination............... 1

271........ No other terms.................................................................................... 1

Division 5—Core terms, mandatory terms and agreed terms of workplace determinations etc.            1

272........ Core terms of workplace determinations............................................ 1

273........ Mandatory terms of workplace determinations................................. 1

274........ Agreed terms for workplace determinations....................................... 1

275........ Factors FWA must take into account in deciding terms of a workplace determination          1

Division 6—Operation, coverage and interaction etc. of workplace determinations     1

276........ When a workplace determination operates etc................................... 1

277........ Employers, employees and employee organisations covered by a workplace determination 1

278........ Interaction of a workplace determination with enterprise agreements etc.              1

279........ Act applies to a workplace determination as if it were an enterprise agreement     1

Division 7—Other matters                                                                                        1

280........ Contravening a workplace determination........................................... 1

281........ Applications by bargaining representatives....................................... 1

Part 2‑6—Minimum wages                                                                                                1

Division 1—Introduction                                                                                            1

282........ Guide to this Part............................................................................... 1

283........ Meanings of employee and employer.................................................. 1

Division 2—Overarching provisions                                                                    1

284........ The minimum wages objective............................................................ 1

Division 3—Annual wage reviews                                                                         1

Subdivision A—Main provisions                                                                              1

285........ Annual wage reviews to be conducted................................................ 1

286........ When annual wage review determinations varying modern awards come into operation        1

287........ When national minimum wage orders come into operation................ 1

Subdivision B—Provisions about conduct of annual wage reviews                    1

288........ General................................................................................................ 1

289........ Everyone to have a reasonable opportunity to make and comment on submissions              1

290........ President may direct investigations and reports................................. 1

291........ Research must be published............................................................... 1

292........ Varied wage rates must be published by 1 July................................. 1

Division 4—National minimum wage orders                                                    1

293........ Contravening a national minimum wage order.................................... 1

294........ Content of national minimum wage order—main provisions............. 1

295........ Content of national minimum wage order—other matters................. 1

296........ Variation of national minimum wage order to remove ambiguity or uncertainty or correct error            1

297........ When determinations varying national minimum wage orders come into operation                1

298........ Special rule about retrospective variations of national minimum wage orders        1

299........ When a national minimum wage order is in operation........................ 1

Part 2‑7—Equal remuneration                                                                                         1

Division 1—Introduction                                                                                            1

300........ Guide to this Part............................................................................... 1

301........ Meanings of employee and employer.................................................. 1

Division 2—Equal remuneration orders                                                             1

302........ FWA may make an order requiring equal remuneration..................... 1

303........ Equal remuneration order may increase, but must not reduce, rates of remuneration             1

304........ Equal remuneration order may implement equal remuneration in stages 1

305........ Contravening an equal remuneration order......................................... 1

306........ Inconsistency with modern awards, enterprise agreements and orders of FWA     1

Part 2‑8—Transfer of business                                                                                       1

Division 1—Introduction                                                                                            1

307........ Guide to this Part............................................................................... 1

308........ Meanings of employee and employer.................................................. 1

309........ Object of this Part.............................................................................. 1

Division 2—Transfer of instruments                                                                    1

310........ Application of this Division............................................................... 1

311........ When does a transfer of business occur.............................................. 1

312........ Instruments that may transfer............................................................ 1

313........ Transferring employees and new employer covered by transferable instrument    1

314........ New non‑transferring employees of new employer may be covered by transferable instrument           1

315........ Organisations covered by transferable instrument............................. 1

316........ Transferring employees who are high income employees.................. 1

Division 3—Powers of FWA                                                                                     1

317........ FWA may make orders in relation to a transfer of business.............. 1

318........ Orders relating to instruments covering new employer and transferring employees               1

319........ Orders relating to instruments covering new employer and non‑transferring employees       1

320........ Variation of transferable instruments................................................. 1

Part 2‑9—Other terms and condition of employment                                         1

Division 1—Introduction                                                                                            1

321........ Guide to this Part............................................................................... 1

322........ Meanings of employee and employer.................................................. 1

Division 2—Payment of wages                                                                                 1

323........ Method and frequency of payment.................................................... 1

324........ Permitted deductions.......................................................................... 1

325........ Unreasonable requirements to spend amount..................................... 1

326........ Certain terms have no effect............................................................... 1

327........ Things given or provided, and amounts required to be spent, in contravention of this Division            1

Division 3—Guarantee of annual earnings                                                        1

328........ Employer obligations in relation to guarantee of annual earnings....... 1

329........ High income employee....................................................................... 1

330........ Guarantee of annual earnings and annual rate of guarantee................. 1

331........ Guaranteed period.............................................................................. 1

332........ Earnings.............................................................................................. 1

333........ High income threshold........................................................................ 1

Chapter 3—Rights and responsibilities of employees, employers, organisations etc.                                                                                                                           1

Part 3‑1—General protections                                                                                         1

Division 1—Introduction                                                                                            1

334........ Guide to this Part............................................................................... 1

335........ Meanings of employee and employer.................................................. 1

336........ Objects of this Part............................................................................. 1

Division 2—Application of this Part                                                                      1

337........ Application of this Part...................................................................... 1

338........ Action to which this Part applies....................................................... 1

339........ Additional effect of this Part.............................................................. 1

Division 3—Workplace rights                                                                                  1

340........ Protection........................................................................................... 1

341........ Meaning of workplace right............................................................... 1

342........ Meaning of adverse action................................................................. 1

343........ Coercion.............................................................................................. 1

344........ Undue influence or pressure............................................................... 1

345........ Misrepresentations............................................................................. 1

Division 4—Industrial activities                                                                             1

346........ Protection........................................................................................... 1

347........ Meaning of engages in industrial activity........................................... 1

348........ Coercion.............................................................................................. 1

349........ Misrepresentations............................................................................. 1

350........ Inducements—membership action..................................................... 1

Division 5—Other protections                                                                                1

351........ Discrimination.................................................................................... 1

352........ Temporary absence—illness or injury............................................... 1

353........ Bargaining services fees...................................................................... 1

354........ Coverage by particular instruments.................................................... 1

355........ Coercion—allocation of duties etc. to particular person.................... 1

356........ Objectionable terms............................................................................ 1

Division 6—Sham arrangements                                                                            1

357........ Misrepresenting employment as independent contracting arrangement  1

358........ Dismissing to engage as independent contractor................................ 1

359........ Misrepresentation to engage as independent contractor.................... 1

Division 7—Ancillary rules                                                                                        1

360........ Multiple reasons for action................................................................ 1

361........ Reason for action to be presumed unless proved otherwise.............. 1

362........ Advising, encouraging, inciting or coercing action.............................. 1

363........ Actions of industrial associations....................................................... 1

364........ Unincorporated industrial associations.............................................. 1

Division 8—Compliance                                                                                              1

Subdivision A—Contraventions involving dismissal                                            1

365........ Application for FWA to deal with a dispute..................................... 1

366........ Time for application........................................................................... 1

367........ Application fees................................................................................. 1

368........ Conferences........................................................................................ 1

369........ Certificate if dispute not resolved...................................................... 1

370........ Advice on general protections court application................................ 1

371........ General protections court applications.............................................. 1

Subdivision B—Other contraventions                                                                     1

372........ Application for FWA to deal with a dispute..................................... 1

373........ Application fees................................................................................. 1

374........ Conferences........................................................................................ 1

375........ Advice on general protections court application................................ 1

Subdivision C—Conference costs                                                                            1

376........ Costs orders against lawyers and paid agents.................................... 1

377........ Applications for costs orders............................................................. 1

378........ Contravening costs orders.................................................................. 1

Part 3‑2—Unfair dismissal                                                                                                 1

Division 1—Introduction                                                                                            1

379........ Guide to this Part............................................................................... 1

380........ Meanings of employee and employer.................................................. 1

381........ Object of this Part.............................................................................. 1

Division 2—Protection from unfair dismissal                                                  1

382........ When a person is protected from unfair dismissal............................. 1

383........ Meaning of minimum employment period.......................................... 1

384........ Period of employment........................................................................ 1

Division 3—What is an unfair dismissal                                                              1

385........ What is an unfair dismissal................................................................. 1

386........ Meaning of dismissed......................................................................... 1

387........ Criteria for considering harshness etc................................................. 1

388........ The Small Business Fair Dismissal Code........................................... 1

389........ Meaning of genuine redundancy......................................................... 1

Division 4—Remedies for unfair dismissal                                                       1

390........ When FWA may order remedy for unfair dismissal........................... 1

391........ Remedy—reinstatement etc............................................................... 1

392........ Remedy—compensation.................................................................... 1

393........ Monetary orders may be in instalments............................................. 1

Division 5—Procedural matters                                                                              1

394........ Application for unfair dismissal remedy............................................ 1

395........ Application fees................................................................................. 1

396........ Initial matters to be considered before merits..................................... 1

397........ Matters involving contested facts...................................................... 1

398........ Conferences........................................................................................ 1

399........ Hearings.............................................................................................. 1

400........ Appeal rights...................................................................................... 1

401........ Costs orders against lawyers and paid agents.................................... 1

402........ Applications for costs orders............................................................. 1

403........ Schedule of costs................................................................................ 1

404........ Security for costs................................................................................ 1

405........ Contravening orders under this Part................................................... 1

Part 3‑3—Industrial action                                                                                                 1

Division 1—Introduction                                                                                            1

406........ Guide to this Part............................................................................... 1

407........ Meanings of employee and employer.................................................. 1

Division 2—Protected industrial action                                                              1

Subdivision A—What is protected industrial action                                            1

408........ Protected industrial action.................................................................. 1

409........ Employee claim action........................................................................ 1

410........ Employee response action.................................................................. 1

411........ Employer response action.................................................................. 1

412........ Pattern bargaining............................................................................... 1

Subdivision B—Common requirements for industrial action to be protected industrial action       1

413........ Common requirements that apply for industrial action to be protected industrial action       1

414........ Notice requirements for industrial action........................................... 1

Subdivision C—Significance of industrial action being protected industrial action          1

415........ Immunity provision............................................................................ 1

416........ Employer response action—employer may refuse to make payments to employees            1

Division 3—No industrial action before nominal expiry date of enterprise agreement etc.       1

417........ Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.     1

Division 4—FWA orders stopping etc. industrial action                           1

418........ FWA must order that industrial action by employees or employers stop etc.       1

419........ FWA must order that industrial action by non‑national system employees or non‑national system employers stop etc............................................................................................................. 1

420........ Interim orders etc................................................................................ 1

421........ Contravening an order etc................................................................... 1

Division 5—Injunction against industrial action if pattern bargaining is being engaged in         1

422........ Injunction against industrial action if a bargaining representative is engaging in pattern bargaining        1

Division 6—Suspension or termination of protected industrial action by FWA                1

423........ FWA may suspend or terminate protected industrial action—significant economic harm etc.               1

424........ FWA must suspend or terminate protected industrial action—endangering life etc.              1

425........ FWA must suspend protected industrial action—cooling off............ 1

426........ FWA must suspend protected industrial action—significant harm to a third party               1

427........ FWA must specify the period of suspension.................................... 1

428........ Extension of a period of suspension................................................... 1

429........ Employee claim action without a further protected action ballot after a period of suspension etc.       1

430........ Notice of employee claim action engaged in after a period of suspension etc.        1

Division 7—Ministerial declarations                                                                    1

431........ Ministerial declaration terminating industrial action.......................... 1

432........ Informing people of declaration.......................................................... 1

433........ Ministerial directions to remove or reduce threat............................... 1

434........ Contravening a Ministerial direction.................................................. 1

Division 8—Protected action ballots                                                                    1

Subdivision A—Introduction                                                                                     1

435........ Guide to this Division........................................................................ 1

436........ Object of this Division....................................................................... 1

Subdivision B—Protected action ballot orders                                                      1

437........ Application for a protected action ballot order.................................. 1

438........ Restriction on when application may be made................................... 1

439........ Joint applications............................................................................... 1

440........ Notice of application.......................................................................... 1

441........ Application to be determined within 2 days after it is made............. 1

442........ Dealing with multiple applications together....................................... 1

443........ When FWA must make a protected action ballot order..................... 1

444........ FWA may decide on ballot agent other than the Australian Electoral Commission and independent advisor        1

445........ Notice of protected action ballot order............................................... 1

446........ Protected action ballot order may require 2 or more protected action ballots to be held at the same time             1

447........ Variation of protected action ballot order........................................... 1

448........ Revocation of protected action ballot order....................................... 1

Subdivision C—Conduct of protected action ballot                                               1

449........ Protected action ballot to be conducted by Australian Electoral Commission or other specified ballot agent        1

450........ Directions for conduct of protected action ballot............................... 1

451........ Timetable for protected action ballot................................................. 1

452........ Compilation of roll of voters.............................................................. 1

453........ Who is eligible to be included on the roll of voters............................. 1

454........ Variation of roll of voters................................................................... 1

455........ Protected action ballot papers............................................................ 1

456........ Who may vote in protected action ballot........................................... 1

457........ Results of protected action ballot....................................................... 1

458........ Report about conduct of protected action ballot................................ 1

Subdivision D—Effect of protected action ballot                                                    1

459........ Circumstances in which industrial action is authorised by protected action ballot 1

460........ Immunity for persons who act in good faith on protected action ballot results      1

461........ Validity of protected action ballot etc. not affected by technical breaches             1

Subdivision E—Compliance                                                                                       1

462........ Interferences etc. with protected action ballot................................... 1

463........ Contravening a protected action ballot order etc................................ 1

Subdivision F—Liability for costs of protected action ballot                               1

464........ Costs of protected action ballot conducted by the Australian Electoral Commission            1

465........ Costs of protected action ballot conducted by protected action ballot agent other than the Australian Electoral Commission........................................................................................ 1

466........ Costs of legal challenges..................................................................... 1

Subdivision G—Miscellaneous                                                                                 1

467........ Information about employees on roll of voters not to be disclosed... 1

468........ Records............................................................................................... 1

469........ Regulations......................................................................................... 1

Division 9—Payments relating to periods of industrial action                1

Subdivision A—Protected industrial action                                                           1

470........ Payments not to be made relating to certain periods of industrial action                1

471........ Payments relating to partial work bans.............................................. 1

472........ Orders by FWA relating to certain partial work bans........................ 1

473........ Accepting or seeking payments relating to periods of industrial action  1

Subdivision B—Industrial action that is not protected industrial action          1

474........ Payments not to be made relating to certain periods of industrial action                1

475........ Accepting or seeking payments relating to periods of industrial action  1

Subdivision CMiscellaneous                                                                                 1

476........ Other responses to industrial action unaffected................................. 1

Division 10—Other matters                                                                                      1

477........ Applications by bargaining representatives....................................... 1

Part 3‑4—Right of entry                                                                                                      1

Division 1—Introduction                                                                                            1

478........ Guide to this Part............................................................................... 1

479........ Meanings of employee and employer.................................................. 1

480........ Object of this Part.............................................................................. 1

Division 2—Entry rights under this Act                                                             1

Subdivision A—Entry to investigate suspected contravention                            1

481........ Entry to investigate suspected contravention.................................... 1

482........ Rights that may be exercised while on premises................................ 1

483........ Later access to record or document.................................................... 1

Subdivision B—Entry to hold discussions                                                              1

484........ Entry to hold discussions................................................................... 1

485........ Conscientious objection certificates................................................... 1

Subdivision C—Requirements for permit holders                                                1

486........ Permit holder must not contravene this Subdivision.......................... 1

487........ Giving entry notice or exemption certificate...................................... 1

488........ Contravening entry permit conditions................................................ 1

489........ Producing authority documents.......................................................... 1

490........ When right may be exercised.............................................................. 1

491........ Occupational health and safety requirements..................................... 1

492........ Conduct of interviews in particular room etc..................................... 1

493........ Residential premises........................................................................... 1

Division 3—State or Territory OHS rights                                                       1

494........ Official must be permit holder to exercise State or Territory OHS right 1

495........ Giving notice of entry......................................................................... 1

496........ Contravening entry permit conditions................................................ 1

497........ Producing entry permit....................................................................... 1

498........ When right may be exercised.............................................................. 1

499........ Occupational health and safety requirements..................................... 1

Division 4—Prohibitions                                                                                             1

500........ Permit holder must not hinder or obstruct......................................... 1

501........ Person must not refuse or delay entry............................................... 1

502........ Person must not hinder or obstruct permit holder............................. 1

503........ Misrepresentations about things authorised by this Part.................. 1

504........ Unauthorised use or disclosure of employee records......................... 1

Division 5—Powers of FWA                                                                                     1

Subdivision A—Dealing with disputes                                                                    1

505........ FWA may deal with a dispute about the operation of this Part........ 1

506........ Contravening order made to deal with dispute................................... 1

Subdivision B—Taking action against permit holder                                          1

507........ FWA may take action against permit holder...................................... 1

Subdivision C—Restricting rights of organisations and officials where misuse of rights              1

508........ FWA may restrict rights if organisation or official has misused rights 1

509........ Contravening order made for misuse of rights.................................... 1

Subdivision D—When FWA must revoke or suspend entry permits                1

510........ When FWA must revoke or suspend entry permits.......................... 1

Subdivision E—General rules for suspending entry permits                             1

511........ General rules for suspending entry permits....................................... 1

Division 6—Entry permits, entry notices and certificates                        1

Subdivision A—Entry permits                                                                                  1

512........ FWA may issue entry permits........................................................... 1

513........ Considering application...................................................................... 1

514........ When FWA must not issue permit..................................................... 1

515........ Conditions on entry permit................................................................ 1

516........ Expiry of entry permit....................................................................... 1

517........ Return of entry permits to FWA....................................................... 1

Subdivision B—Entry notices                                                                                   1

518........ Entry notice requirements.................................................................. 1

Subdivision C—Exemption certificates                                                                   1

519........ Exemption certificates........................................................................ 1

Subdivision D—Affected member certificates                                                       1

520........ Affected member certificates.............................................................. 1

Subdivision E—Miscellaneous                                                                                  1

521........ Regulations dealing with instruments under this Part........................ 1

Part 3‑5—Stand down                                                                                                           1

Division 1—Introduction                                                                                            1

522........ Guide to this Part............................................................................... 1

523........ Meanings of employee and employer.................................................. 1

Division 2—Circumstances allowing stand down                                          1

524........ Employer may stand down employees in certain circumstances....... 1

525........ Employee not stood down during a period of authorised leave or absence             1

Division 3—Dealing with disputes                                                                         1

526........ FWA may deal with a dispute about the operation of this Part........ 1

527........ Contravening an FWA order dealing with a dispute about the operation of this Part             1

Part 3‑6—Other rights and responsibilities                                                              1

Division 1—Introduction                                                                                            1

528........ Guide to this Part............................................................................... 1

529........ Meanings of employee and employer.................................................. 1

Division 2—Notification and consultation relating to certain dismissals              1

Subdivision A—Requirement to notify Centrelink                                               1

530........ Employer to notify Centrelink of certain proposed dismissals......... 1

Subdivision B—Failure to notify or consult registered employee associations  1

531........ FWA may make orders where failure to notify or consult registered employee associations about dismissals     1

532........ Orders that FWA may make.............................................................. 1

533........ Application for FWA order................................................................ 1

Subdivision C—Limits on scope of this Division                                                   1

534........ Limits on scope of this Division........................................................ 1

Division 3—Employer obligations in relation to employee records and pay slips           1

535........ Employer obligations in relation to employee records....................... 1

536........ Employer obligations in relation to pay slips.................................... 1

Chapter 4—Compliance and enforcement                                           1

Part 4‑1—Civil remedies                                                                                                     1

Division 1—Introduction                                                                                            1

537........ Guide to this Part............................................................................... 1

538........ Meanings of employee and employer.................................................. 1

Division 2—Orders                                                                                                        1

Subdivision A—Applications for orders                                                                 1

539........ Applications for orders in relation to contraventions of civil remedy provisions   1

540........ Limitations on who may apply for orders etc.................................... 1

541........ Applications for orders in relation to safety net contractual entitlements              1

542........ Entitlements under contracts.............................................................. 1

543........ Applications for orders in relation to statutory entitlements derived from contracts             1

544........ Time limit on applications.................................................................. 1

Subdivision B—Orders                                                                                              1

545........ Orders that can be made by particular courts..................................... 1

546........ Pecuniary penalty orders.................................................................... 1

547........ Interest up to judgment...................................................................... 1

Division 3—Small claims procedure                                                                     1

548........ Plaintiffs may choose small claims procedure.................................... 1

Division 4—General provisions relating to civil remedies                      1

549........ Contravening a civil remedy provision is not an offence.................... 1

550........ Involvement in contravention treated in same way as actual contravention            1

551........ Civil evidence and procedure rules for proceedings relating to civil remedy provisions         1

552........ Civil proceedings after criminal proceedings...................................... 1

553........ Criminal proceedings during civil proceedings.................................... 1

554........ Criminal proceedings after civil proceedings...................................... 1

555........ Evidence given in proceedings for pecuniary penalty not admissible in criminal proceedings                1

556........ Civil double jeopardy......................................................................... 1

557........ Course of conduct............................................................................... 1

558........ Regulations dealing with infringement notices.................................... 1

Division 5—Unclaimed money                                                                                 1

559........ Unclaimed money............................................................................... 1

Part 4‑2—Jurisdiction and powers of courts                                                            1

Division 1—Introduction                                                                                            1

560........ Guide to this Part............................................................................... 1

561........ Meanings of employee and employer.................................................. 1

Division 2—Jurisdiction and powers of the Federal Court                      1

562........ Conferring jurisdiction on the Federal Court...................................... 1

563........ Exercising jurisdiction in the Fair Work Division of the Federal Court 1

564........ No limitation on Federal Court’s powers........................................... 1

565........ Appeals from eligible State or Territory courts................................. 1

Division 3—Jurisdiction and powers of the Federal Magistrates Court               1

566........ Conferring jurisdiction on the Federal Magistrates Court.................. 1

567........ Exercising jurisdiction in the Fair Work Division of the Federal Magistrates Court               1

568........ No limitation on Federal Magistrates Court’s powers....................... 1

Division 4—Miscellaneous                                                                                        1

569........ Minister’s entitlement to intervene.................................................... 1

570........ Costs only if proceedings instituted vexatiously etc.......................... 1

571........ No imprisonment for failure to pay pecuniary penalty..................... 1

572........ Regulations dealing with matters relating to court proceedings.......... 1

Chapter 5—Administration                                                                                  1

Part 5‑1—Fair Work Australia                                                                                        1

Division 1—Introduction                                                                                            1

573........ Guide to this Part............................................................................... 1

574........ Meanings of employee and employer.................................................. 1

Division 2—Establishment and functions of Fair Work Australia        1

Subdivision A—Establishment and functions of Fair Work Australia             1

575........ Establishment of Fair Work Australia................................................ 1

576........ Functions of FWA.............................................................................. 1

577........ Performance of functions etc. by FWA.............................................. 1

578........ Matters FWA must take into account in performing functions etc... 1

579........ FWA has privileges and immunities of the Crown............................. 1

580........ Protection of FWA Members............................................................. 1

Subdivision B—Functions and powers of the President                                       1

581........ Functions of the President.................................................................. 1

582........ Directions by the President................................................................ 1

583........ President not subject to direction....................................................... 1

584........ Delegation of functions and powers of the President......................... 1

Division 3—Conduct of matters before FWA                                                  1

Subdivision A—Applications to FWA                                                                      1

585........ Applications in accordance with procedural rules.............................. 1

586........ Correcting and amending applications and documents etc................. 1

587........ Dismissing applications...................................................................... 1

588........ Discontinuing applications................................................................. 1

Subdivision B—Conduct of matters before FWA                                                  1

589........ Procedural and interim decisions........................................................ 1

590........ Powers of FWA to inform itself......................................................... 1

591........ FWA not bound by rules of evidence and procedure......................... 1

592........ Conferences........................................................................................ 1

593........ Hearings.............................................................................................. 1

594........ Confidential evidence.......................................................................... 1

595........ FWA’s power to deal with disputes.................................................. 1

Subdivision C—Representation by lawyers and paid agents and Minister’s entitlement to make submissions           1

596........ Representation by lawyers and paid agents....................................... 1

597........ Minister’s entitlement to make submissions...................................... 1

Subdivision D—Decisions of FWA                                                                          1

598........ Decisions of FWA.............................................................................. 1

599........ FWA not required to decide an application in terms applied for....... 1

600........ Determining matters in the absence of a person................................. 1

601........ Writing and publication requirements for FWA’s decisions.............. 1

602........ Correcting obvious errors etc. in relation to FWA’s decisions........... 1

603........ Varying and revoking FWA’s decisions............................................. 1

Subdivision E—Appeals, reviews and referring questions of law                       1

604........ Appeal of decisions............................................................................ 1

605........ Minister’s entitlement to apply for review of a decision................... 1

606........ Staying decisions that are appealed or reviewed................................ 1

607........ Process for appealing or reviewing decisions..................................... 1

608........ Referring questions of law to the Federal Court................................. 1

Subdivision F—Miscellaneous                                                                                  1

609........ Procedural rules.................................................................................. 1

610........ Regulations dealing with FWA matters.............................................. 1

611........ Costs................................................................................................... 1

Division 4—Organisation of FWA                                                                         1

Subdivision A—Functions etc. to be performed by a single FWA Member, a Full Bench or the Minimum Wage Panel                                                                                                           1

612........ FWA functions etc. may generally be performed by single FWA Member            1

613........ Appeal of decisions to be heard by a Full Bench, the President or a Deputy President         1

614........ Review of decisions by a Full Bench.................................................. 1

615........ FWA functions etc. performed by a Full Bench on direction by the President      1

616........ FWA functions etc. that must be performed by a Full Bench........... 1

617........ FWA functions etc. that must be performed by the Minimum Wage Panel           1

Subdivision B—Constitution of FWA by a single FWA Member, a Full Bench or the Minimum Wage Panel             1

618........ Constitution and decision‑making of a Full Bench............................. 1

619........ Seniority of FWA Members............................................................... 1

620........ Constitution and decision‑making of the Minimum Wage Panel........ 1

621........ Reconstitution of FWA when single FWA Member becomes unavailable              1

622........ Reconstitution of FWA when FWA Member of a Full Bench or the Minimum Wage Panel becomes unavailable............................................................................................................ 1

623........ When new FWA Members begin to deal with matters...................... 1

624........ FWA’s decisions not invalid when improperly constituted.............. 1

Subdivision C—Delegation of FWA’s functions and powers                              1

625........ Delegation by the President of functions and powers of FWA......... 1

Division 5—FWA Members                                                                                     1

Subdivision A—Appointment of FWA Members                                                   1

626........ Appointment of FWA Members....................................................... 1

627........ Qualifications for appointment of FWA Members............................ 1

628........ Basis of appointment of FWA Members........................................... 1

629........ Period of appointment of FWA Members......................................... 1

Subdivision B—Terms and conditions of FWA Members                                   1

630........ Appointment of a Judge not to affect tenure etc................................ 1

631........ Dual federal and State appointments of Deputy Presidents or Commissioners     1

632........ Dual federal and Territory appointments of Deputy Presidents or Commissioners              1

633........ Outside employment of FWA Members........................................... 1

634........ Oath or affirmation of office............................................................... 1

635........ Remuneration of the President........................................................... 1

636........ Application of Judges’ Pensions Act to the President....................... 1

637........ Remuneration of FWA Members other than the President................ 1

638........ Remuneration of Deputy Presidents or Commissioners performing duties on a part‑time basis           1

639........ Leave of absence of FWA Members other than the President........... 1

640........ Disclosure of interests by FWA Members other than the President. 1

641........ Termination of appointment on grounds of misbehaviour or incapacity                1

642........ Suspension on grounds of misbehaviour or incapacity...................... 1

643........ Termination of appointment for bankruptcy, etc.............................. 1

644........ Termination of appointment for outside employment....................... 1

645........ Resignation of FWA Members........................................................... 1

646........ Other terms and conditions of FWA Members.................................. 1

647........ Appointment of acting President....................................................... 1

648........ Appointment of acting Deputy Presidents........................................ 1

Division 6—Cooperation with the States                                                           1

649........ President to cooperate with prescribed State industrial authorities... 1

650........ Provision of administrative support................................................... 1

Division 7—Seals, reviews and reports, and disclosure of information 1

651........ Seals.................................................................................................... 1

652........ Annual report..................................................................................... 1

653........ Reviews and reports about making enterprise agreements................. 1

654........ President must provide certain information etc. to the Minister and Fair Work Ombudsman               1

655........ Disclosure of information by FWA.................................................... 1

Division 8—General Manager, staff and consultants                                  1

Subdivision A—Functions of the General Manager                                             1

656........ Establishment..................................................................................... 1

657........ Functions and powers of the General Manager.................................. 1

658........ Directions from the President............................................................. 1

659........ General Manager not otherwise subject to direction.......................... 1

Subdivision B—Appointment and terms and conditions of the General Manager               1

660........ Appointment of the General Manager............................................... 1

661........ Remuneration of the General Manager............................................... 1

662........ Leave of absence of the General Manager.......................................... 1

663........ Outside employment of the General Manager................................... 1

664........ Disclosure of interests to the President.............................................. 1

665........ Resignation of the General Manager................................................... 1

666........ Termination of appointment of the General Manager........................ 1

667........ Other terms and conditions of the General Manager.......................... 1

668........ Appointment of acting General Manager........................................... 1

669........ Minister to consult the President....................................................... 1

Subdivision C—Staff and consultants                                                                     1

670........ Staff.................................................................................................... 1

671........ Delegation by General Manager to staff............................................. 1

672........ Persons assisting FWA....................................................................... 1

673........ Consultants......................................................................................... 1

Division 9—Offences relating to Fair Work Australia                                1

674........ Offences in relation to FWA.............................................................. 1

675........ Contravening an FWA order............................................................... 1

676........ Intimidation etc................................................................................... 1

677........ Offences in relation to attending before FWA.................................... 1

678........ False or misleading evidence............................................................... 1

Part 5‑2—Office of the Fair Work Ombudsman                                                    1

Division 1—Introduction                                                                                            1

679........ Guide to this Part............................................................................... 1

680........ Meanings of employee and employer.................................................. 1

Division 2—Fair Work Ombudsman                                                                    1

Subdivision A—Establishment and functions and powers of the Fair Work Ombudsman                1

681........ Establishment..................................................................................... 1

682........ Functions of the Fair Work Ombudsman........................................... 1

683........ Delegation by the Fair Work Ombudsman......................................... 1

684........ Directions from the Minister.............................................................. 1

685........ Minister may require reports............................................................. 1

686........ Annual report..................................................................................... 1

Subdivision B—Appointment and terms and conditions of the Fair Work Ombudsman   1

687........ Appointment of the Fair Work Ombudsman..................................... 1

688........ Remuneration of the Fair Work Ombudsman..................................... 1

689........ Leave of absence of the Fair Work Ombudsman................................ 1

690........ Outside employment of the Fair Work Ombudsman......................... 1

691........ Disclosure of interests to the Minister............................................... 1

692........ Resignation of the Fair Work Ombudsman........................................ 1

693........ Termination of appointment of the Fair Work Ombudsman............. 1

694........ Other terms and conditions of the Fair Work Ombudsman............... 1

695........ Appointment of acting Fair Work Ombudsman................................. 1

Division 3—Office of the Fair Work Ombudsman                                        1

Subdivision A—Establishment of the Office of the Fair Work Ombudsman   1

696........ Establishment of the Office of the Fair Work Ombudsman............... 1

Subdivision B—Staff and consultants etc.                                                              1

697........ Staff.................................................................................................... 1

698........ Persons assisting the Fair Work Ombudsman.................................... 1

699........ Consultants......................................................................................... 1

Subdivision C—Appointment of Fair Work Inspectors                                       1

700........ Appointment of Fair Work Inspectors.............................................. 1

701........ Fair Work Ombudsman is a Fair Work Inspector.............................. 1

702........ Identity cards...................................................................................... 1

Subdivision D—Functions and powers of Fair Work Inspectors                       1

703........ Conditions and restrictions on functions and powers........................ 1

704........ General directions by the Fair Work Ombudsman............................. 1

705........ Particular directions by the Fair Work Ombudsman.......................... 1

706........ Purpose for which powers of inspectors may be exercised............... 1

707........ When powers of inspectors may be exercised.................................... 1

708........ Power of inspectors to enter premises............................................... 1

709........ Powers of inspectors while on premises............................................ 1

710........ Persons assisting inspectors............................................................... 1

711........ Power to ask for person’s name and address..................................... 1

712........ Power to require persons to produce records or documents.............. 1

713........ Self‑incrimination................................................................................ 1

714........ Power to keep records or documents................................................. 1

715........ Enforceable undertakings relating to contraventions of civil remedy provisions     1

716........ Compliance notices............................................................................. 1

717........ Review of compliance notices............................................................ 1

Subdivision E—Disclosure of information by the Office of the Fair Work Ombudsman  1

718........ Disclosure of information by the Office of the Fair Work Ombudsman 1

Chapter 6—Miscellaneous                                                                                   1

Part 6‑1—Multiple actions                                                                                                 1

Division 1—Introduction                                                                                            1

719........ Guide to this Part............................................................................... 1

720........ Meanings of employee and employer.................................................. 1

Division 2—Certain actions not permitted if alternative action can be taken    1

721........ Equal remuneration applications........................................................ 1

722........ Notification and consultation requirements applications................... 1

723........ Unlawful termination applications..................................................... 1

Division 3—Preventing multiple actions                                                            1

Subdivision A—Equal remuneration applications                                                 1

724........ Equal remuneration applications........................................................ 1

Subdivision B—Applications and complaints relating to dismissal                  1

725........ General rule......................................................................................... 1

726........ Dismissal remedy bargaining order applications................................ 1

727........ General protections FWA applications.............................................. 1

728........ General protections court applications.............................................. 1

729........ Unfair dismissal applications............................................................. 1

730........ Unlawful termination FWA applications........................................... 1

731........ Unlawful termination court applications............................................ 1

732........ Applications and complaints under other laws.................................. 1

733........ Dismissal does not include failure to provide benefits....................... 1

Subdivision C—General protections applications that do not relate to dismissal               1

734........ General rule......................................................................................... 1

Part 6‑2—Dealing with disputes                                                                                     1

Division 1—Introduction                                                                                            1

735........ Guide to this Part............................................................................... 1

736........ Meanings of employee and employer.................................................. 1

Division 2—Dealing with disputes                                                                         1

Subdivision A—Model term about dealing with disputes                                     1

737........ Model term about dealing with disputes............................................ 1

Subdivision B—Dealing with disputes                                                                    1

738........ Application of this Division............................................................... 1

739........ Disputes dealt with by FWA............................................................. 1

740........ Dispute dealt with by persons other than FWA................................ 1

Part 6‑3—Extension of National Employment Standards entitlements   1

Division 1—Introduction                                                                                            1

741........ Guide to this Part............................................................................... 1

742........ Meanings of employee and employer.................................................. 1

Division 2—Extension of entitlement to unpaid parental leave and related entitlements          1

Subdivision A—Main provisions                                                                              1

743........ Object of this Division....................................................................... 1

744........ Extending the entitlement to unpaid parental leave and related entitlements          1

745........ Contravening the extended parental leave provisions......................... 1

746........ References to the National Employment Standards include extended parental leave provisions            1

747........ State and Territory laws that are not excluded................................... 1

Subdivision B—Modifications of the extended parental leave provisions         1

748........ Non‑national system employees are not award/agreement free employees            1

749........ Modification of meaning of base rate of pay for pieceworkers.......... 1

750........ Modification of meaning of full rate of pay for pieceworkers............ 1

751........ Modification of meaning of ordinary hours of work—if determined by State industrial instrument      1

752........ Modification of meaning of ordinary hours of work—if not determined by State industrial instrument               1

753........ Modification of meaning of ordinary hours of work—regulations may prescribe usual weekly hours  1

754........ Modification of meaning of pieceworker............................................ 1

755........ Modification of provision about interaction with paid leave............. 1

756........ Modification of provision about relationship between National Employment Standards and agreements             1

757........ Modification of power to make regulations....................................... 1

Division 3—Extension of entitlement to notice of termination or payment in lieu of notice      1

Subdivision A—Main provisions                                                                              1

758........ Object of this Division....................................................................... 1

759........ Extending entitlement to notice of termination or payment in lieu of notice           1

760........ Contravening the extended notice of termination provisions............. 1

761........ References to the National Employment Standards include extended notice of termination provisions 1

762........ State and Territory laws that are not excluded................................... 1

Subdivision B—Modifications of the extended notice of termination provisions 1

763........ Non‑national system employees are not award/agreement free employees            1

764........ Modification of meaning of full rate of pay for pieceworkers............ 1

765........ Modification of meaning of pieceworker............................................ 1

766........ Modification of provision about notice of termination by employee 1

767........ Modification of provision about relationship between National Employment Standards and agreements             1

768........ Modification of power to make regulations....................................... 1

Part 6‑4—Additional provisions relating to termination of employment 1

Division 1—Introduction                                                                                            1

769........ Guide to this Part............................................................................... 1

770........ Meanings of employee and employer.................................................. 1

Division 2—Termination of employment                                                           1

771........ Object of this Division....................................................................... 1

772........ Employment not to be terminated on certain grounds....................... 1

773........ Application for FWA to deal with a dispute..................................... 1

774........ Time for application........................................................................... 1

775........ Application fees................................................................................. 1

776........ Conferences........................................................................................ 1

777........ Certificate if dispute not resolved...................................................... 1

778........ Advice on unlawful termination court application............................. 1

779........ Unlawful termination court applications............................................ 1

780........ Costs orders against lawyers and paid agents.................................... 1

781........ Applications for costs orders............................................................. 1

782........ Contravening costs orders.................................................................. 1

783........ Reason for action to be presumed unless proved otherwise.............. 1

Division 3—Notification and consultation requirements relating to certain terminations of employment                                                                                                                        1

Subdivision A—Object of this Division                                                                   1

784........ Object of this Division....................................................................... 1

Subdivision B—Requirement to notify Centrelink                                               1

785........ Employer to notify Centrelink of certain proposed terminations...... 1

Subdivision C—Failure to notify or consult registered employee associations  1

786........ FWA may make orders where failure to notify or consult registered employee associations about terminations  1

787........ Orders that FWA may make.............................................................. 1

788........ Application to FWA for order........................................................... 1

Subdivision D—Limits on scope of this Division                                                   1

789........ Limits on scope of this Division........................................................ 1

Part 6‑5—Miscellaneous                                                                                                    1

Division 1—Introduction                                                                                            1

790........ Guide to this Part............................................................................... 1

791........ Meanings of employee and employer.................................................. 1

Division 2—Miscellaneous                                                                                        1

792........ Delegation by Minister....................................................................... 1

793........ Liability of bodies corporate.............................................................. 1

794........ Signature on behalf of body corporate................................................ 1

795........ Public sector employer to act through employing authority.............. 1

796........ Regulations—general.......................................................................... 1

797........ Regulations dealing with offences....................................................... 1

798........ Regulations dealing with civil penalties.............................................. 1

799........ Regulations dealing with infringement notices.................................... 1

800........ Regulations dealing with exhibiting fair work instruments................. 1

 


A Bill for an Act relating to workplace relations, and for related purposes

The Parliament of Australia enacts:

Chapter 1Introduction

Part 1‑1Introduction

Division 1Preliminary

1  Short title

                   This Act may be cited as the Fair Work Act 2008.

2  Commencement

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

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent.

 

2.  Sections 3 to 800

A day or days to be fixed by Proclamation.

A Proclamation must not specify a day that occurs before the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent, they commence on the first day after the end of that period.

 

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

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


 

Division 2Object of this Act

3  Object of this Act

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

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

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

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

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

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

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


 

Division 3Guide to this Act

4  Guide to this Act

Overview of this Act

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

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

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

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

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

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

Overview of the rest of this Chapter

             (2)  The rest of this Chapter deals with:

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

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

Definitions

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

5  Terms and conditions of employment (Chapter 2)

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

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

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

Main terms and conditions

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

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

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

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

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

Other terms and conditions

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

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

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

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

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

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

                     (a)  protects workplace rights; and

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

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

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

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

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

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

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

                     (a)  termination of employment; and

                     (b)  keeping records and giving payslips.

7  Compliance and enforcement (Chapter 4)

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

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

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

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

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

8  Administration (Chapter 5)

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

             (2)  Part 5‑1 is about FWA. It:

                     (a)  establishes and confers functions on FWA; and

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

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

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

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

9  Miscellaneous (Chapter 6)

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

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

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

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

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

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


 

Part 1‑2Definitions

Division 1Introduction

10  Guide to this Part

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

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

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

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

11  Meanings of employee and employer

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


 

Division 2The Dictionary

12  The Dictionary

                   In this Act:

4 yearly review of modern awards: see subsection 156(1).

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

action includes an omission.

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

adverse action: see section 342.

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

affected employer:

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

                     (b)  in relation to an entry in accordance with Division 3 of Part 3‑4: see subsection 495(2).

affected member certificate: see subsection 520(1).

agreed terms for a workplace determination: see section 274.

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

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

annual wage review: see subsection 285(1).

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

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

applies:

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

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

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

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

appropriate safe job: see subsection 81(4).

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

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

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

Australian employer: see subsection 35(1).

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

authority documents: see subsection 489(3).

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

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

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

award modernisation process means the process of making modern awards under Part 10A of the Workplace Relations Act 1996, as in force immediately before the commencement of Part 2‑3 of this Act (which deals with modern awards).

bargaining order: see subsection 229(1).

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

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

bargaining services: see subsection 353(3).

bargaining services fee: see subsection 353(2).

base rate of pay: see section 16.

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

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

civil remedy provision: see subsection 539(1).

Commissioner means a Commissioner of FWA.

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

Commonwealth authority means:

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

                     (b)  a body corporate:

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

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

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

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

compliance powers: see section 703.

compliance purposes: see subsection 706(1).

conduct includes an omission.

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

conscientious objection certificate: see subsection 485(2).

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

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

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

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

constitutional trade or commerce means trade or commerce:

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

                     (b)  among the States; or

                     (c)  between a State and a Territory; or

                     (d)  between 2 Territories; or

                     (e)  within a Territory.

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

continuous service has a meaning affected by section 22.

coverage terms in relation to a modern award: see subsection 143(1).

covers:

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

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

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

day of placement: see subsection 67(6).

de facto partner of a national system employee:

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

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

Deputy President means a Deputy President of FWA.

discriminatory term of an enterprise agreement: see section 195.

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

dismissed: see section 386.

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

eligible community service activity: see section 109.

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

                     (a)  a District, County or Local Court;

                     (b)  a magistrates court;

                     (c)  the Industrial Relations Court of South Australia;

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

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

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

Note 2:       If the term has its ordinary meaning, see further subsection 15(1).

employee claim action: see section 409.

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

employee organisation means an organisation of employees.

employee record, in relation to an employee, has the meaning given by the Privacy Act 1988.

employee response action: see section 410.

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

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

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

Note 2:       If the term has its ordinary meaning, see further subsection 15(2).

employer organisation means an organisation of employers.

employer response action: see section 411.

employing authority: see subsection 795(6).

engages in industrial activity: see section 347.

enterprise means a business, activity, project or undertaking.

enterprise agreement means:

                     (a)  a single‑enterprise agreement; or

                     (b)  a multi‑enterprise agreement.

entry notice: see subsection 487(2).

entry permit: see section 512.

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

equal remuneration order: see subsection 302(1).

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

exemption certificate: see subsection 519(1).

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

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

Fair Work Australia or FWA means the body established by section 575.

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

Fair Work Inspector means:

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

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

fair work instrument means:

                     (a)  a modern award; or

                     (b)  an enterprise agreement; or

                     (c)  a workplace determination; or

                     (d)  an FWA order.

Federal Court means the Federal Court of Australia.

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

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

flexibility term:

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

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

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

franchise has the meaning given by the Corporations Act 2001.

Full Bench means a Full Bench of FWA constituted under section 618.

full rate of pay: see section 18.

FWA: see Fair Work Australia.

FWA Member means the President, a Deputy President, a Commissioner or a Minimum Wage Panel Member.

General Manager means the General Manager of FWA.

general protections court application: see subsection 370(2).

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

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

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

genuine redundancy: see section 389.

good faith bargaining requirements: see section 228.

greenfields agreement: see subsection 172(4).

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

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

high income employee: see section 329.

high income threshold: see section 333.

ILO means the International Labour Organization.

immediate family of a national system employee means:

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

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

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

independent contractor is not confined to an individual.

individual flexibility arrangement:

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

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

industrial action: see section 19.

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

industrial association means:

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

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

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

and includes:

                     (d)  a branch of such an association; and

                     (e)  an organisation; and

                      (f)  a branch of an organisation.

industrial body means:

                     (a)  FWA; or

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

                     (c)  a court or commission (however described) performing or exercising, under a workplace law, functions and powers corresponding to those conferred on FWA by Schedule 1 to the Workplace Relations Act 1996.

industrial law means:

                     (a)  this Act; or

                     (b)  Schedule 1 to the Workplace Relations Act 1996; or

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

                     (d)  a State or Territory industrial law.

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

inspector means a Fair Work Inspector.

involved in: see section 550.

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

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

jury service pay: see subsection 111(6).

jury service summons: see subsection 111(7).

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

lock out: see subsection 19(3).

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

                     (a)  the employee is a casual employee; and

                     (b)  the employee has been employed by the employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months.

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

low‑paid workplace determination means:

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

                     (b)  a special low‑paid workplace determination.

made:

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

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

magistrates court means:

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

                     (b)  a court constituted by an industrial magistrate who is also a police, stipendiary or special magistrate.

majority support determination: see subsection 236(1).

maritime employee means a person who is, or whose occupation is that of, a master as defined in section 6 of the Navigation Act 1912, a seaman as so defined or a pilot as so defined.

medical certificate means a certificate signed by a medical practitioner.

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

membership action: see subsection 350(3).

minimum employment period: see section 383.

Minimum Wage Panel means the Minimum Wage Panel of FWA constituted under section 620.

Minimum Wage Panel Member means a Minimum Wage Panel Member of FWA.

minimum wages objective: see subsection 284(1).

miscellaneous modern award: see subsection 163(4).

model consultation term: see subsection 205(3).

model flexibility term: see subsection 202(5).

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

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

modern award powers: see subsection 134(2).

modern awards objective: see subsection 134(1).

modifications includes additions, omissions and substitutions.

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

named employer award: see subsection 312(2).

National Employment Standards: see subsection 61(3).

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

national system employee: see section 13.

national system employer: see section 14.

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

nominal expiry date:

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

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

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

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

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

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

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

non‑transferring employee of a new employer, in relation to a transfer of business: see subsection 314(2).

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

objectionable term means a term that:

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

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

either of the following:

                     (c)  a contravention of Part 3‑1 (which deals with general protections);

                     (d)  the payment of a bargaining services fee.

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

office, in an industrial association, means:

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

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

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

                             (ii)  the determination of policy for the association;

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

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

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

                              (i)  existing policy of the association; or

                             (ii)  decisions concerning the association; or

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

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

                              (i)  of the association; or

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

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

officer, of an industrial association, means:

                     (a)  an official of the association; or

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

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

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

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

organisation means an organisation registered under Schedule 1 to the Workplace Relations Act 1996.

outworker means:

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

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

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

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

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

                     (a)  a constitutional corporation;

                     (b)  the Commonwealth;

                     (c)  a Commonwealth authority;

                     (d)  a body corporate incorporated in a Territory;

                     (e)  a person who 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.

Note:          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).

outworker terms: see subsection 140(3).

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

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

paid no safe job leave means paid no safe job leave to which a national system employee is entitled under paragraph 81(3)(b).

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

partial work ban: see subsection 470(3).

passes the better off overall test:

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

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

pattern bargaining: see section 412.

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

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

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

period of employment: see section 384.

permissible occasion: see sections 102 and 104.

permit holder means a person who holds an entry permit.

permit qualification matters: see subsection 513(1).

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

pieceworker: see section 21.

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

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

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

premises includes:

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

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

pre‑parental leave position: see subsection 83(2).

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

President means the President of FWA.

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

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

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

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

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

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

protected from unfair dismissal: see section 382.

protected industrial action: see section 408.

public holiday: see section 115.

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

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

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

registered employee association means:

                     (a)  an employee organisation; or

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

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

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

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

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

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

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

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

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

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

scope order: see subsection 238(1).

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

serious breach declaration: see section 234.

serious misconduct has the meaning prescribed by the regulations.

service: see section 22.

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

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

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

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

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

small business employer: see section 23.

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

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

spouse includes a former spouse.

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

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

                     (b)  determines terms and conditions of employment.

state of mind: see subsection 793(3).

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

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

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

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

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

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

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

Territory employer: see subsection 338(4).

test time: see subsection 193(6).

this Act includes the regulations.

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

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

transferable instrument: see subsection 312(1).

transfer of business: see subsection 311(1).

transfer of employment: see subsection 22(7).

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

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

transferring employee, in relation to a transfer of business: see subsection 311(2).

transferring work, in relation to a transfer of business: see paragraph 311(1)(c).

unfair dismissal application: see subsection 729(2).

unfairly dismissed: see section 385.

unlawful term of an enterprise agreement: see section 194.

unlawful termination court application: see subsection 778(2).

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

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

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

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

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

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

vocational placement means a placement that is:

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

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

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

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

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

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

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

workplace determination means:

                     (a)  a low‑paid workplace determination; or

                     (b)  an industrial action related workplace determination; or

                     (c)  a bargaining related workplace determination.

workplace instrument means an instrument that:

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

                     (b)  concerns the relationships between employers and employees.

workplace law means:

                     (a)  this Act; or

                     (b)  Schedule 1 to the Workplace Relations Act 1996; or

                     (c)  the Independent Contractors Act 2006; or

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

workplace right: see subsection 341(1).

work value reasons: see subsection 156(4).


 

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

13  Meaning of national system employee

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

14  Meaning of national system employer

                   A national system employer is:

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

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

                     (c)  a Commonwealth authority, so far as it employs, or usually employs, an individual; or

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

                              (i)  a flight crew officer; or

                             (ii)  a maritime employee; or

                            (iii)  a waterside worker; or

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

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

Note:          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).

15  Ordinary meanings of employee and employer

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

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

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

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


 

Division 4Other definitions

16  Meaning of base rate of pay

General meaning

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

                     (a)  incentive‑based payments and bonuses;

                     (b)  loadings;

                     (c)  monetary allowances;

                     (d)  overtime or penalty rates;

                     (e)  any other separately identifiable amounts.

Meaning for pieceworkers in relation to entitlements under National Employment Standards

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

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

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

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

17  Meaning of child of a person

             (1)  A child of a person includes:

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

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

It does not matter whether the child is an adult.

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

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

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

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

18  Meaning of full rate of pay

General meaning

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

                     (a)  incentive‑based payments and bonuses;

                     (b)  loadings;

                     (c)  monetary allowances;

                     (d)  overtime or penalty rates;

                     (e)  any other separately identifiable amounts.

Meaning for pieceworkers in relation to entitlements under National Employment Standards

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

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

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

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

19  Meaning of industrial action

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

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

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

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

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

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

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

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

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

                     (c)  action by an employee if:

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

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

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

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

Agreed ordinary hours of work

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

If there is no agreement

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

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

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

                              (i)  38 hours; and

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

If the agreed hours are less than usual weekly hours

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

                     (a)  38 hours; and

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

Regulations may prescribe usual weekly hours

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

21  Meaning of pieceworker

             (1)  A pieceworker is:

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

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

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

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

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

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

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

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

                     (b)  a particular kind of work;

                     (c)  a particular type of employment.

22  Meanings of service and continuous service

General meaning

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

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

                     (a)  any period of unauthorised absence;

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

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

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

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

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

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

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

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

                     (b)  a period of unauthorised absence does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service; and

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

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

When service with one employer counts as service with another employer

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

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

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

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

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

Note:          For example:

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

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

Meaning of transfer of employment etc.

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

                     (a)  the following conditions are satisfied:

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

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

                     (b)  the following conditions are satisfied:

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

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

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

             (8)  A transfer of employment:

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

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

23  Meaning of small business employer

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

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

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

                     (b)  a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

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

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

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

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


 

Part 1‑3Application of this Act

Division 1Introduction

24  Guide to this Part

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

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

Division 3 is about the geographical application of this Act.

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

25  Meanings of employee and employer

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


 

Division 2Interaction with State and Territory laws

26  Act excludes State or Territory industrial laws

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

             (2)  A State or Territory industrial law is:

                     (a)  a general State industrial law; or

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

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

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

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

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

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

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

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

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

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

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

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

                     (h)  either of the following:

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

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

                            that is prescribed by the regulations.

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

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

                     (b)  the Industrial Relations Act 1999 of Queensland;

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

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

                     (e)  the Industrial Relations Act 1984 of Tasmania.

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

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

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

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

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

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

                     (a)  the law deals with either or both of the following:

                              (i)  the prevention of discrimination (including discrimination in relation to parental or carer responsibilities);

                             (ii)  the promotion of equal employment opportunity;

                            unless the law is, or is contained in, a State or Territory industrial law; or

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

                     (c)  the law deals with any non‑excluded matters; or

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

                              (i)  any matter covered by paragraph (a); or

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

                            (iii)  any non‑excluded matters.

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

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

                     (a)  superannuation;

                     (b)  workers compensation;

                     (c)  occupational health and safety;

                     (d)  matters relating to outworkers;

                     (e)  child labour;

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

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

                     (h)  leave for victims of crime;

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

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

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

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

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

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

                      (l)  regulation of any of the following:

                              (i)  employee organisations;

                             (ii)  employer organisations;

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

                    (m)  workplace surveillance;

                     (n)  business trading hours;

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

                     (p)  any other matters prescribed by the regulations.

28  Act excludes prescribed State and Territory laws

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

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

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

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

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

             (2)  Despite subsection (1), a term of a modern award or enterprise agreement dealing with any of the following matters applies subject to a law of a State or Territory to the extent that the law deals with the matter:

                     (a)  the prevention of discrimination (including discrimination in relation to parental or carer responsibilities);

                     (b)  the promotion of equal employment opportunity;

                     (c)  a non‑excluded matter;

                     (d)  a matter prescribed by the regulations.

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

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

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


 

Division 3Geographical application of this Act

31  Exclusion of persons etc. insufficiently connected with Australia

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

Note 1:       In this context, Australia includes 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.

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

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

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

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

                             (ii)  the airspace over, and the seabed and sub‑soil beneath, such waters;

                     (b)  the Territory of Christmas Island;

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

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

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

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

Extension to Australian ships etc.

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

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

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

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

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

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

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

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

                             (ii)  uses Australia as a base.

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

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

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

Extensions prescribed by regulations

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

Modifications relating to extended application

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

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

                     (b)  all or part of the continental shelf;

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

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

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

Extension to Australian ships etc.

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

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

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

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

                             (ii)  uses Australia as a base.

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

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

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

Extensions prescribed by regulations

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

                     (a)  any Australian employer;

                     (b)  any Australian‑based employee.

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

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

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

35  Meanings of Australian employer and Australian‑based employee

             (1)  An Australian employer is an employer that:

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

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

                     (c)  is the Commonwealth; or

                     (d)  is a Commonwealth authority; or

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

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

                     (g)  is prescribed by the regulations.

             (2)  An Australian‑based employee is an employee:

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

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

                     (c)  who is prescribed by the regulations.

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

36  Geographical application of offences

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

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


 

Division 4Miscellaneous

37  Act binds Crown

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

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

38  Act not to apply so as to exceed Commonwealth power

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

39  Acquisition of property

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

40  Interaction between fair work instruments and public sector employment laws

Generally, public sector employment laws prevail

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

When fair work instruments or their terms prevail

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

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

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

Meaning of public sector employment law

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

Laws that fair work instruments never prevail over

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

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

                     (b)  the Superannuation Act 1976;

                     (c)  the Superannuation Act 1990;

                     (d)  the Superannuation Act 2005;

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

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

Relationship with section 29

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


 

Chapter 2Terms and conditions of employment

Part 2‑1Core provisions for this Chapter

Division 1Introduction

41  Guide to this Part

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

The National Employment Standards (Part 2‑2) are minimum terms and conditions that apply to all national system employees.

A modern award (see Part 2‑3), an enterprise agreement (see Part 2‑4) or a workplace determination (see Part 2‑5) provides terms and conditions for those national system employees to whom the award, agreement or determination applies. Only one of those instruments can apply to an employee at a particular time.

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

                   Note:             In most cases, this Act applies to a workplace determination as if it were an enterprise agreement in operation (see section 279). For the rules about workplace determinations, see Part 2‑5.

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

42  Meanings of employee and employer

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


 

Division 2Core provisions for this Chapter

Subdivision ATerms and conditions of employment provided under this Act

43  Terms and conditions of employment provided under this Act

Main terms and conditions

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

                     (a)  the National Employment Standards (see Part 2‑2); and

                     (b)  a modern award (see Part 2‑3), an enterprise agreement (see Part 2‑4) or a workplace determination (see Part 2‑5) that applies to the employee.

Note 1:       The situations in which a workplace determination, rather than a modern award or enterprise agreement, provides an employee’s terms and conditions of employment are limited. In most cases, this Act applies to a workplace determination as if it were an enterprise agreement in operation (see section 279). See Part 2‑5 generally for the rules on workplace determinations.

Note 2:       Part 2‑8 provides for the transfer of certain modern awards, enterprise agreements and workplace determinations if there is a transfer of business from an employee’s employer to another employer.

Other terms and conditions

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

                     (a)  those terms and conditions arising from:

                              (i)  a national minimum wage order (see Part 2‑6); or

                             (ii)  an equal remuneration order (see Part 2‑7); and

                     (b)  those terms and conditions provided by Part 2‑9.

Note:          Part 2‑9 deals with miscellaneous terms and conditions of employment, such as payment of wages.

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

44  Contravening the National Employment Standards

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

Note:          This subsection is a civil remedy provision (see Part 4‑1).

             (2)  However, an order cannot be made under Division 2 of Part 4‑1 in relation to a contravention (or alleged contravention) of subsection 65(5) or 76(4).

Note 1:       Subsections 65(5) and 76(4) state that an employer may refuse a request for flexible working arrangements, or an application to extend unpaid parental leave, only on reasonable business grounds.

Note 2:       Modern awards and enterprise agreements include terms about settling disputes in relation to the National Employment Standards (other than disputes as to whether an employer had reasonable business grounds under subsection 65(5) or 76(4)).

Subdivision CTerms and conditions of employment provided by a modern award

45  Contravening a modern award

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

Note 1:       This section is a civil remedy provision (see Part 4‑1).

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

46  The significance of a modern award applying to a person

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

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

Note:          This subsection does not affect the question whether an outworker who is not an employee is an outworker to whom outworker terms in a modern award relate, or is affected by a contravention of such terms.

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

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

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

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

                     (b)  the modern award is in operation; and

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

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

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

Modern awards do not apply to high income employees

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

Modern awards apply to employees in relation to particular employment

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

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

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

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

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

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

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

                     (a)  a provision of this Act;

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

                     (c)  an order of a court.

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

                     (a)  a provision of this Act;

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

                     (c)  an order of a court.

Modern awards that have ceased to operate

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

Modern awards cover employees in relation to particular employment

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

49  When a modern award is in operation

When a modern award comes into operation

             (1)  A modern award comes into operation:

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

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

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

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

When a determination revoking a modern award comes into operation

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

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

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

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

Modern awards operate until revoked

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

Subdivision DTerms and conditions of employment provided by an enterprise agreement

50  Contravening an enterprise agreement

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

Note 1:       This section is a civil remedy provision (see Part 4‑1).

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

51  The significance of an enterprise agreement applying to a person

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

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

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

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

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

                     (a)  the agreement is in operation; and

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

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

Enterprise agreements apply to employees in relation to particular employment

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

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

Employees and employers

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

Employee organisations

             (2)  An enterprise agreement covers an employee organisation:

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

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

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

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

                     (a)  a provision of this Act;

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

                     (c)  an order of a court.

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

                     (a)  another provision of this Act;

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

                     (c)  an order of a court.

Enterprise agreements that have ceased to operate

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

Enterprise agreements cover employees in relation to particular employment

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

54  When an enterprise agreement is in operation

             (1)  An enterprise agreement approved by FWA operates from:

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

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

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

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

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

Note:          Section 58 deals with when an enterprise agreement ceases to apply to an employee.

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


 

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

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

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

National Employment Standards must not be excluded

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

Terms expressly permitted by Part 2‑2 or regulations may be included

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

                     (a)  by a provision of Part 2‑2 (which deals with the National Employment Standards); or

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

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

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

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

Ancillary and supplementary terms may be included

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

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

                     (b)  terms that supplement the National Employment Standards;

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

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

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

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

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

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

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

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

             (5)  A term of a modern award or enterprise agreement that is permitted by subsection (4) does not contravene subsection (1).

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

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

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

Subdivision BInteraction between modern awards and enterprise agreements

57  Interaction between modern awards and enterprise agreements

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

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

Subdivision CInteraction between one or more enterprise agreements

58  Only one enterprise agreement can apply to an employee

Only one enterprise agreement can apply to an employee

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

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

             (2)  If:

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

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

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

then:

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

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

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

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

Special rule—single‑enterprise agreement replaces multi‑enterprise agreement

             (3)  Despite subsection (2), if:

                     (a)  a multi‑enterprise agreement applies to an employee in relation to particular employment; and

                     (b)  a single‑enterprise agreement that covers the employee in relation to the same employment comes into operation;

the multi‑enterprise agreement ceases to apply to the employee in relation to that employment when the single‑enterprise agreement comes into operation, and can never so apply again.


 

Part 2‑2The National Employment Standards

Division 1Introduction

59  Guide to this Part

This Part contains the National Employment Standards.

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

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

The National Employment Standards are minimum standards that apply to the employment of national system employees. Part 2‑1 (which deals with the core provisions for this Chapter) contains the obligation for employers to comply with the National Employment Standards (see section 44).

The National Employment Standards also underpin what can be included in modern awards and enterprise agreements. Part 2‑1 provides that the National Employment Standards cannot be excluded by modern awards or enterprise agreements, and contains other provisions about the interaction between the National Employment Standards and modern awards or enterprise agreements (see sections 55 and 56).

Divisions 2 and 3 of Part 6‑3 extend the operation of the parental leave and notice of termination provisions of the National Employment Standards to employees who are not national system employees.

60  Meanings of employee and employer

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


 

Division 2The National Employment Standards

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

             (1)  This Part sets minimum standards that apply to the employment of employees.

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

                     (a)  maximum weekly hours (Division 3);

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

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

                     (d)  annual leave (Division 6);

                     (e)  personal/carer’s leave and compassionate leave (Division 7);

                      (f)  community service leave (Division 8);

                     (g)  long service leave (Division 9);

                     (h)  public holidays (Division 10);

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

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

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


 

Division 3Maximum weekly hours

62  Maximum weekly hours

Maximum weekly hours of work

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

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

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

                              (i)  38 hours; and

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

Employee may refuse to work unreasonable additional hours

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

Determining whether additional hours are reasonable

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

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

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

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

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

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

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

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

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

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

                      (j)  any other relevant matter.

Authorised leave or absence treated as hours worked

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

                     (a)  by the employee’s employer; or

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

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

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

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

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

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

                              (i)  38 hours; and

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

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

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

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

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

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

                              (i)  38 hours; and

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

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


 

Division 4Requests for flexible working arrangements

65  Requests for flexible working arrangements

Employee may request change in working arrangements

             (1)  An employee who is a parent, or has a responsibility for the care, of a child under school age may request the employer for a change in working arrangements to assist the employee to care for the child.

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

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

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

                     (b)  for a casual employee—the employee:

                              (i)  is a long term casual employee of the employer immediately before making the request; and

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

Formal requirements

             (3)  The request must:

                     (a)  be in writing; and

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

Agreeing to the request

             (4)  The employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request.

             (5)  The employer may refuse the request only on reasonable business grounds.

             (6)  If the employer refuses the request, the written response under subsection (4) must include details of the reasons for the refusal.

66  State and Territory laws that are not excluded

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


 

Division 5Parental leave and related entitlements

Subdivision AGeneral

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

Employees other than casual employees

             (1)  An employee, other than a casual employee, is not entitled to leave under this Division (other than unpaid pre‑adoption leave) unless the employee has, or will have, completed at least 12 months of continuous service with the employer immediately before the date that applies under subsection (3).

Casual employees

             (2)  A casual employee, is not entitled to leave (other than unpaid pre‑adoption leave) under this Division unless:

                     (a)  the employee is, or will be, a long term casual employee of the employer immediately before the date that applies under subsection (3); and

                     (b)  but for:

                              (i)  the birth or expected birth of the child; or

                             (ii)  the placement or the expected placement of the child; or

                            (iii)  if the employee is taking a period of unpaid parental leave that starts under subsection 71(6) or paragraph 72(3)(b) or 72(4)(b)—the taking of the leave;

                            the employee would have a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

Date at which employee must have completed 12 months of service

             (3)  For the purpose of subsections (1) and (2), the date that applies is:

                     (a)  unless paragraph (b) or (c) applies:

                              (i)  if the leave is birth‑related leave—the date of birth, or the expected date of birth, of the child; or

                             (ii)  if the leave is adoption‑related leave—the day of placement, or the expected day of placement, of the child; or

                     (b)  for an employee taking a period of unpaid parental leave that is to start within 12 months after the birth or placement of the child under subsection 71(6)—the date on which the employee’s period of leave is to start; or

                     (c)  for a member of an employee couple taking a period of unpaid parental leave that is to start under paragraph 72(3)(b) or 72(4)(b) after the period of unpaid parental leave of the other member of the employee couple—the date on which the employee’s period of leave is to start.

Meaning of birth‑related leave

             (4)  Birth‑related leave means leave of either of the following kinds:

                     (a)  unpaid parental leave taken in association with the birth of a child (see section 70);

                     (b)  unpaid special maternity leave (see section 80).

Meaning of adoption‑related leave

             (5)  Adoption‑related leave means leave of either of the following kinds:

                     (a)  unpaid parental leave taken in association with the placement of a child for adoption (see section 70);

                     (b)  unpaid pre‑adoption leave (see section 85).

Meaning of day of placement

             (6)  The day of placement, in relation to the adoption of a child by an employee, means the earlier of the following days:

                     (a)  the day on which the employee first takes custody of the child for the adoption;

                     (b)  the day on which the employee starts any travel that is reasonably necessary to take custody of the child for the adoption.

68  General rule for adoption‑related leave—child must be under 16 etc.

                   An employee is not entitled to adoption‑related leave unless the child that is, or is to be, placed with the employee for adoption:

                     (a)  is, or will be, under 16 as at the day of placement, or the expected day of placement, of the child; and

                     (b)  has not, or will not have, lived continuously with the employee for a period of 6 months or more as at the day of placement, or the expected day of placement, of the child; and

                     (c)  is not (otherwise than because of the adoption) a child of the employee or the employee’s spouse or de facto partner.

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

             (1)  If:

                     (a)  there is a transfer of employment in relation to an employee; and

                     (b)  the employee has already started a period of leave under this Division when his or her employment with the first employer ends;

the employee is entitled to continue on that leave for the rest of that period.

             (2)  If:

                     (a)  there is a transfer of employment in relation to an employee; and

                     (b)  the employee has, in relation to the first employer, already taken a step that is required or permitted by a provision of this Division in relation to taking a period of leave;

the employee is taken to have taken the step in relation to the second employer.

Note:          Steps covered by this subsection include (for example) giving the first employer notice under subsection 74(1), confirmation or advice under subsection 74(4) or evidence under subsection 74(5).

Subdivision BParental leave

70  Entitlement to unpaid parental leave

                   An employee is entitled to 12 months of unpaid parental leave if:

                     (a)  the leave is associated with:

                              (i)  the birth of a child of the employee or the employee’s spouse or de facto partner; or

                             (ii)  the placement of a child with the employee for adoption; and

                     (b)  the employee has or will have a responsibility for the care of the child.

Note 1:       Entitlement is also affected by section 67 (which deals with length of the employee’s service) and, for adoption, section 68 (which deals with the age etc. of the adopted child).

Note 2:       The 12 months is reduced by the amount of any unpaid special maternity leave the employee has taken (see subsection 80(7)).

71  The period of leave—other than for members of an employee couple who each intend to take leave

Application of this section

             (1)  This section applies to an employee who intends to take unpaid parental leave if:

                     (a)  the employee is not a member of an employee couple; or

                     (b)  the employee is a member of an employee couple, but the other member of the couple does not intend to take unpaid parental leave.

Leave must be taken in single continuous period

             (2)  The employee must take the leave in a single continuous period.

Note:          An employee may take a form of paid leave at the same time as he or she is on unpaid parental leave (see section 79).

When birth‑related leave must start

             (3)  If the leave is birth‑related leave for a female employee who is pregnant with, or gives birth to, the child, the period of leave may start up to 6 weeks before the expected date of birth of the child, but must not start later than the date of birth of the child.

             (4)  If the leave is birth‑related leave but subsection (3) does not apply, the period of leave must start on the date of birth of the child.

When adoption‑related leave must start

             (5)  If the leave is adoption‑related leave, the period of leave must start on the day of placement of the child.

Leave may start later for employees whose spouse or de facto partner is not an employee

             (6)  Despite subsections (3) to (5), the period of leave may start at any time within 12 months after the date of birth or day of placement of the child if:

                     (a)  the employee has a spouse or de facto partner who is not an employee; and

                     (b)  the spouse or de facto partner has a responsibility for the care of the child for the period between the date of birth or day of placement of the child and the start date of the leave.

Note:          An employee whose leave starts under subsection (6) is still entitled under section 76 to request an extension of the period of leave beyond his or her available parental leave period. However, the period of leave may not be extended beyond 24 months after the date of birth or day of placement of the child (see subsection 76(7)).

72  The period of leave—members of an employee couple who each intend to take leave

Application of this section

             (1)  This section applies to an employee couple if each of the employees intends to take unpaid parental leave.

Leave must be taken in single continuous period

             (2)  Each employee must take the leave in a single continuous period.

Note:          An employee may take a form of paid leave at the same time as he or she is on unpaid parental leave (see section 79).

When birth‑related leave must start

             (3)  If the leave is birth‑related leave:

                     (a)  one employee’s period of leave must start first, in accordance with the following rules:

                              (i)  if the member of the employee couple whose period of leave starts first is a female employee who is pregnant with, or gives birth to, the child—the period of leave may start up to 6 weeks before the expected date of birth of the child, but must not start later than the date of birth of the child;

                             (ii)  if subparagraph (i) does not apply—the period of leave must start on the date of birth of the child; and

                     (b)  the other employee’s period of leave must start immediately after the end of the first employee’s period of leave (or that period as extended under section 75 or 76).

When adoption‑related leave must start

             (4)  If the leave is adoption‑related leave:

                     (a)  one employee’s period of leave must start on the day of placement of the child; and

                     (b)  the other employee’s period of leave must start immediately after the end of the first employee’s period of leave (or that period as extended under section 75 or 76).

Limited entitlement to take concurrent leave

             (5)  If one of the employees takes a period (the first employee’s period of leave) of unpaid parental leave in accordance with paragraph (3)(a) or (4)(a), the other employee may take a period of unpaid parental leave (the concurrent leave) during the first employee’s period of leave, if the concurrent leave complies with the following requirements:

                     (a)  the concurrent leave must be for a period of 3 weeks or less;

                     (b)  unless the employer agrees as referred to in paragraph (c), the concurrent leave must not start before, and must not end more than 3 weeks after:

                              (i)  if the leave is birth‑related leave—the date of birth of the child; or

                             (ii)  if the leave is adoption‑related leave—the day of placement of the child;

                     (c)  if the employer agrees, the concurrent leave may (subject to paragraph (a)):

                              (i)  start earlier than is permitted by paragraph (b); or

                             (ii)  end up to 3 weeks later than is permitted by paragraph (b).

             (6)  Concurrent leave taken by an employee:

                     (a)  is an exception to the rule that the employee must take his or her leave in a single continuous period (see subsection (2)); and

                     (b)  is an exception to the rules about when the employee’s period of unpaid parental leave must start (see subsection (3) or (4)).

Note:          The concurrent leave is unpaid parental leave and so comes out of the employee’s entitlement to 12 months of unpaid parental leave under section 70.

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

Employer may ask employee to provide a medical certificate

             (1)  If a pregnant employee who is entitled to unpaid parental leave (whether or not she has complied with section 74) continues to work during the 6 week period before the expected date of birth of the child, the employer may ask the employee to give the employer a medical certificate containing the following statements (as applicable):

                     (a)  a statement of whether the employee is fit for work;

                     (b)  if the employee is fit for work—a statement of whether it is inadvisable for the employee to continue in her present position during a stated period because of:

                              (i)  illness, or risks, arising out of the employee’s pregnancy; or

                             (ii)  hazards connected with the position.

Note:          Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

Employer may require employee to take unpaid parental leave

             (2)  The employer may require the employee to take a period of unpaid parental leave (the period of leave) as soon as practicable if:

                     (a)  the employee does not give the employer the requested certificate within 7 days after the request; or

                     (b)  within 7 days after the request, the employee gives the employer a medical certificate stating that the employee is not fit for work; or

                     (c)  the following subparagraphs are satisfied:

                              (i)  within 7 days after the request, the employee gives the employer a medical certificate stating that the employee is fit for work, but that it is inadvisable for the employee to continue in her present position for a stated period for a reason referred to in subparagraph (1)(b)(i) or (ii);

                             (ii)  section 81 does not apply to the employee.

Note:          If the medical certificate contains a statement as referred to in subparagraph (c)(i) and section 81 applies to the employee, the employee is entitled under that section to be transferred to a safe job, or to paid no safe job leave.

When the period of leave must end

             (3)  The period of leave must not end later than the earlier of the following:

                     (a)  the end of the pregnancy;

                     (b)  if the employee has given the employer notice of the taking of a period of leave connected with the birth of the child (whether it is unpaid parental leave or some other kind of leave)—the start date of that leave.

Special rules about the period of leave

             (4)  The period of leave:

                     (a)  is an exception to the rule that the employee must take her unpaid parental leave in a single continuous period (see subsection 71(2) or 72(2)); and

                     (b)  is an exception to the rules about when the employee’s period of unpaid parental leave must start (see subsections 71(3) and (6), or subsection 72(3)).

Note:          The period of leave is unpaid parental leave and so comes out of the employee’s entitlement to 12 months of unpaid parental leave under section 70.

             (5)  The employee is not required to comply with section 74 in relation to the period of leave.

74  Notice and evidence requirements

Notice

             (1)  An employee must give his or her employer written notice of the taking of unpaid parental leave under section 71 or 72 by the employee.

             (2)  The notice must be given to the employer:

                     (a)  at least 10 weeks before starting the leave; or

                     (b)  if that is not practicable—as soon as practicable (which may be a time after the leave has started).

             (3)  The notice must specify the intended start and end dates of the leave.

Confirmation or change of intended start and end dates

             (4)  At least 4 weeks before the intended start date specified in the notice given under subsection (1), the employee must:

                     (a)  confirm the intended start and end dates of the leave; or

                     (b)  advise the employer of any changes to the intended start and end dates of the leave;

unless it is not practicable to do so.

Evidence

             (5)  An employee who has given his or her employer notice of the taking of unpaid parental leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person:

                     (a)  if the leave is birth‑related leave—of the date of birth, or the expected date of birth, of the child; or

                     (b)  if the leave is adoption‑related leave:

                              (i)  of the day of placement, or the expected day of placement, of the child; and

                             (ii)  that the child is, or will be, under 16 as at the day of placement, or the expected day of placement, of the child.

             (6)  Without limiting subsection (5), an employer may require the evidence referred to in paragraph (5)(a) to be a medical certificate.

Compliance

             (7)  An employee is not entitled to take unpaid parental leave under section 71 or 72 unless the employee complies with this section.

Note:          Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

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

Application of this section

             (1)  This section applies if:

                     (a)  an employee has, in accordance with section 74, given notice of the taking of a period of unpaid parental leave (the original leave period); and

                     (b)  the original leave period is less than the employee’s available parental leave period; and

                     (c)  the original leave period has started.

             (2)  The employee’s available parental leave period is 12 months, less any periods of the following kinds:

                     (a)  a period of concurrent leave that the employee has taken in accordance with subsection 72(5);

                     (b)  a period of unpaid parental leave that the employee has been required to take under subsection 73(2) or 82(2);

                     (c)  a period by which the employee’s entitlement to unpaid parental leave is reduced under paragraph 76(6)(c);

                     (d)  a period of special maternity leave that the employee has taken.

First extension by giving notice to employer

             (3)  The employee may extend the period of unpaid parental leave by giving his or her employer written notice of the extension at least 4 weeks before the end date of the original leave period. The notice must specify the new end date for the leave.

             (4)  Only one extension is permitted under subsection (3).

Further extensions by agreement with employer

             (5)  If the employer agrees, the employee may further extend the period of unpaid parental leave one or more times.

No entitlement to extension beyond available parental leave period

             (6)  The employee is not entitled under this section to extend the period of unpaid parental leave beyond the employee’s available parental leave period.

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

Employee may request further period of leave

             (1)  An employee who takes unpaid parental leave for his or her available parental leave period may request his or her employer to agree to an extension of unpaid parental leave for the employee for a further period of up to 12 months immediately following the end of the available parental leave period.

Making the request

             (2)  The request must be in writing, and must be given to the employer at least 4 weeks before the end of the available parental leave period.

Agreeing to the requested extension

             (3)  The employer must give the employee a written response to the request stating whether the employer grants or refuses the request. The response must be given as soon as practicable, and not later than 21 days, after the request is made.

             (4)  The employer may refuse the request only on reasonable business grounds.

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

Special rules for employee couples

             (6)  The following paragraphs apply in relation to a member of an employee couple extending a period of unpaid parental leave in relation to a child under this section:

                     (a)  the request must specify any amount of unpaid parental leave and unpaid special maternity leave that the other member of the employee couple has taken, or will have taken, in relation to the child before the extension starts;

                     (b)  the period of the extension cannot exceed 12 months, less any period of unpaid parental leave or unpaid special maternity leave that the other member of the employee couple has taken, or will have taken, in relation to the child before the extension starts;

                     (c)  the amount of unpaid parental leave to which the other member of the employee couple is entitled under section 70 in relation to the child is reduced by the period of the extension.

No extension beyond 24 months after birth or placement

             (7)  Despite any other provision of this Division, the employee is not entitled to extend the period of unpaid parental leave beyond 24 months after the date of birth or day of placement of the child.

77  Reducing period of unpaid parental leave

                   If the employer agrees, an employee whose period of unpaid parental leave has started may reduce the period of unpaid parental leave he or she takes.

78  Employee who ceases to have responsibility for care of child

             (1)  This section applies to an employee who has taken unpaid parental leave in relation to a child if the employee ceases to have any responsibility for the care of the child.

             (2)  The employer may give the employee written notice requiring the employee to return to work on a specified day.

             (3)  The specified day:

                     (a)  must be at least 4 weeks after the notice is given to the employee; and

                     (b)  if the leave is birth‑related leave taken by a female employee who has given birth—must not be earlier than 6 weeks after the date of birth of the child.

             (4)  The employee’s entitlement to unpaid parental leave in relation to the child ends immediately before the specified day.

79  Interaction with paid leave

             (1)  This Subdivision (except for subsections (2) and (3)) does not prevent an employee from taking any other kind of paid leave while he or she is taking unpaid parental leave. If the employee does so, the taking of that other paid leave does not break the continuity of the period of unpaid parental leave.

Note:          For example, if the employee has paid annual leave available, he or she may (with the employer’s agreement) take some or all of that paid annual leave at the same time as the unpaid parental leave.

             (2)  An employee is not entitled to take paid personal/carer’s leave or compassionate leave while he or she is taking unpaid parental leave.

             (3)  An employee is not entitled to any payment under Division 8 (which deals with community service leave) in relation to activities the employee engages in while taking unpaid parental leave.

Subdivision COther entitlements

80  Unpaid special maternity leave

Entitlement to unpaid special maternity leave

             (1)  A female employee is entitled to a period of unpaid special maternity leave if she is not fit for work during that period because:

                     (a)  she has a pregnancy‑related illness; or

                     (b)  she has been pregnant, and the pregnancy ends within 28 weeks of the expected date of birth of the child otherwise than by the birth of a living child.

Note:          Entitlement is also affected by section 67 (which deals with the length of the employee’s service).

Notice and evidence

             (2)  An employee must give her employer notice of the taking of unpaid special maternity leave by the employee.

             (3)  The notice:

                     (a)  must be given to the employer as soon as practicable (which may be a time after the leave has started); and

                     (b)  must advise the employer of the period, or expected period, of the leave.

             (4)  An employee who has given her employer notice of the taking of unpaid special maternity leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for a reason specified in subsection (1).

             (5)  Without limiting subsection (4), an employer may require the evidence referred to in that subsection to be a medical certificate.

             (6)  An employee is not entitled to take unpaid special maternity leave unless the employee complies with subsections (2) to (4).

Taking of special maternity leave reduces entitlement to unpaid parental leave

             (7)  A female employee’s entitlement to 12 months of unpaid parental leave associated with the birth of a child (see section 70) is reduced by the amount of any unpaid special maternity leave taken by the employee while she was pregnant.

Note:          Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

81  Transfer to a safe job

Application of this section

             (1)  This section applies to a pregnant employee if:

                     (a)  she is entitled to unpaid parental leave; and

                     (b)  she has already complied with the notice and evidence requirements of section 74 for taking unpaid parental leave; and

                     (c)  she gives her employer evidence that would satisfy a reasonable person that she is fit for work, but that it is inadvisable for her to continue in her present position during a stated period (the risk period) because of:

                              (i)  illness, or risks, arising out of her pregnancy; or

                             (ii)  hazards connected with that position.

Note:          Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

             (2)  Without limiting paragraph (1)(c), an employer may require the evidence referred to in that paragraph to be a medical certificate.

Employee entitled to appropriate safe job or paid no safe job leave during risk period

             (3)  If this section applies to an employee:

                     (a)  if there is an appropriate safe job available—the employer must transfer the employee to that job for the risk period, with no other change to the employee’s terms and conditions of employment; or

                     (b)  if there is no appropriate safe job available—the employee is entitled to take paid no safe job leave for the risk period.

             (4)  An appropriate safe job is a safe job that has:

                     (a)  the same ordinary hours of work as the employee’s present position; or

                     (b)  a different number of ordinary hours agreed to by the employee.

Payment to employee if transferred to appropriate safe job

             (5)  Without limiting paragraph (3)(a), if the employee is transferred to an appropriate safe job for the risk period, the employer must pay the employee for the safe job at the employee’s full rate of pay (for the position she was in before the transfer) for the hours that she works in the risk period.

Payment to employee if on paid no safe job leave

             (6)  If the employee takes paid no safe job leave for the risk period, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the risk period.

Risk period ends if pregnancy ends

             (7)  If the employee’s pregnancy ends before the end of the risk period, the risk period ends when the pregnancy ends.

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

Employer may ask employee to provide a medical certificate

             (1)  If an employee is on paid no safe job leave during the 6 week period before the expected date of birth of the child, the employer may ask the employee to give the employer a medical certificate stating whether the employee is fit for work.

Note:          Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

Employer may require employee to take unpaid parental leave

             (2)  The employer may require the employee to take a period of unpaid parental leave (the period of leave) as soon as practicable if:

                     (a)  the employee does not give the employer the requested certificate within 7 days after the request; or

                     (b)  within 7 days after the request, the employee gives the employer a certificate stating that the employee is not fit for work.

Entitlement to paid no safe job leave ends

             (3)  When the period of leave starts, the employee’s entitlement to paid no safe job leave ends.

When the period of leave must end etc.

             (4)  Subsections 73(3), (4) and (5) apply to the period of leave.

83  Consultation with employee on unpaid parental leave

             (1)  If:

                     (a)  an employee is on unpaid parental leave; and

                     (b)  the employee’s employer makes a decision that will have a significant effect on the status, pay or location of the employee’s pre‑parental leave position;

the employer must take all reasonable steps to give the employee information about, and an opportunity to discuss, the effect of the decision on that position.

             (2)  The employee’s pre‑parental leave position is:

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

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

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

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

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

84  Return to work guarantee

                   On ending unpaid parental leave, an employee is entitled to return to:

                     (a)  the employee’s pre‑parental leave position; or

                     (b)  if that position no longer exists—an available position for which the employee is qualified and suited nearest in status and pay to the pre‑parental leave position.

85  Unpaid pre‑adoption leave

Entitlement to unpaid pre‑adoption leave

             (1)  An employee is entitled to up to 2 days of unpaid pre‑adoption leave to attend any interviews or examinations required in order to obtain approval for the employee’s adoption of a child.

Note:          Entitlement is also affected by section 68 (which deals with the age etc. of the adopted child).

             (2)  However, an employee is not entitled to take a period of unpaid pre‑adoption leave if:

                     (a)  the employee could instead take some other form of leave; and

                     (b)  the employer directs the employee to take that other form of leave.

             (3)  An employee who is entitled to a period of unpaid pre‑adoption leave is entitled to take the leave as:

                     (a)  a single continuous period of up to 2 days; or

                     (b)  any separate periods to which the employee and the employer agree.

Notice and evidence

             (4)  An employee must give his or her employer notice of the taking of unpaid pre‑adoption leave by the employee.

             (5)  The notice:

                     (a)  must be given to the employer as soon as practicable (which may be a time after the leave has started); and

                     (b)  must advise the employer of the period, or expected period, of the leave.

             (6)  An employee who has given his or her employer notice of the taking of unpaid pre‑adoption leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken to attend an interview or examination as referred to in subsection (1).

             (7)  An employee is not entitled to take unpaid pre‑adoption leave unless the employee complies with subsections (4) to (6).

Note:          Personal information given to an employer under this section may be regulated under the Privacy Act 1988.


 

Division 6Annual leave

86  Division applies to employees other than casual employees

                   This Division applies to employees, other than casual employees.

87  Entitlement to annual leave

Amount of leave

             (1)  For each year of service with his or her employer, an employee is entitled to:

                     (a)  4 weeks of paid annual leave; or

                     (b)  5 weeks of paid annual leave, if:

                              (i)  a modern award applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or

                             (ii)  an enterprise agreement applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or

                            (iii)  the employee qualifies for the shiftworker annual leave entitlement under subsection (3) (this relates to award/agreement free employees).

Note:          Section 196 affects whether FWA may approve an enterprise agreement covering an employee, if the employee is covered by a modern award that is in operation and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

Accrual of leave

             (2)  An employee’s entitlement to paid annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.

Note:          If an employee’s employment ends during what would otherwise have been a year of service, the employee accrues paid annual leave up to when the employment ends.

Award/agreement free employees who qualify for the shiftworker entitlement

             (3)  An award/agreement free employee qualifies for the shiftworker annual leave entitlement if:

                     (a)  the employee:

                              (i)  is employed in an enterprise in which shifts are continuously rostered 24 hours a day for 7 days a week; and

                             (ii)  is regularly rostered to work those shifts; and

                            (iii)  regularly works on Sundays and public holidays; or

                     (b)  the employee is in a class of employees prescribed by the regulations as shiftworkers for the purposes of the National Employment Standards.

             (4)  However, an employee referred to in subsection (3) does not qualify for the shiftworker annual leave entitlement if the employee is in a class of employees prescribed by the regulations as not being qualified for that entitlement.

             (5)  Without limiting the way in which a class may be described for the purposes of paragraph (3)(b) or subsection (4), the class may be described by reference to one or more of the following:

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

                     (b)  a particular kind of work;

                     (c)  a particular type of employment.

88  Taking paid annual leave

             (1)  Paid annual leave may be taken for a period agreed between an employee and his or her employer.

             (2)  The employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.

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

Public holidays

             (1)  If the period during which an employee takes paid annual leave includes a day or part‑day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid annual leave on that public holiday.

Other periods of leave

             (2)  If the period during which an employee takes paid annual leave includes a period of any other leave (other than unpaid parental leave) under this Part, or a period of absence from employment under Division 8 (which deals with community service leave), the employee is taken not to be on paid annual leave for the period of that other leave or absence.

90  Payment for annual leave

             (1)  If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

             (2)  If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

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

Transfer of employment situation in which employer may decide not to recognise employee’s service with first employer

             (1)  Subsection 22(5) does not apply (for the purpose of this Division) to a transfer of employment between non‑associated entities in relation to an employee, if the second employer decides not to recognise the employee’s service with the first employer (for the purpose of this Division).

Employee is not entitled to payment for untaken annual leave if service with first employer counts as service with second employer

             (2)  If subsection 22(5) applies (for the purpose of this Division) to a transfer of employment in relation to an employee, the employee is not entitled to be paid an amount under subsection 90(2) for a period of untaken paid annual leave.

Note:          Subsection 22(5) provides that, generally, if there is a transfer of employment, service with the first employer counts as service with the second employer.

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

                   Paid annual leave must not be cashed out, except in accordance with:

                     (a)  cashing out terms included in a modern award or enterprise agreement under section 93, or

                     (b)  an agreement between an employer and an award/agreement free employee under subsection 94(1).

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

Terms about cashing out paid annual leave

             (1)  A modern award or enterprise agreement may include terms providing for the cashing out of paid annual leave by an employee.

             (2)  The terms must require that:

                     (a)  paid annual leave must not be cashed out if the cashing out would result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks; and

                     (b)  each cashing out of a particular amount of paid annual leave must be by a separate agreement in writing between the employer and the employee; and

                     (c)  the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.

Terms about requirements to take paid annual leave

             (3)  A modern award or enterprise agreement may include terms requiring an employee, or allowing for an employee to be required, to take paid annual leave in particular circumstances, but only if the requirement is reasonable.

Terms about taking paid annual leave

             (4)  A modern award or enterprise agreement may include terms otherwise dealing with the taking of paid annual leave.

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

Agreements to cash out paid annual leave

             (1)  An employer and an award/agreement free employee may agree to the employee cashing out a particular amount of the employee’s accrued paid annual leave.

             (2)  The employer and the employee must not agree to the employee cashing out an amount of paid annual leave if the agreement would result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks.

             (3)  Each agreement to cash out a particular amount of paid annual leave must be a separate agreement in writing.

             (4)  The employer must pay the employee at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.

Requirements to take paid annual leave

             (5)  An employer may require an award/agreement free employee to take a period of paid annual leave, but only if the requirement is reasonable.

Note:          A requirement to take paid annual leave may be reasonable if, for example:

(a)           the employee has accrued an excessive amount of paid annual leave; or

(b)           the employer’s enterprise is being shut down for a period (for example, between Christmas and New Year).

Agreements about taking paid annual leave

             (6)  An employer and an award/agreement free employee may agree on when and how paid annual leave may be taken by the employee.

Note:          Matters that could be agreed include, for example, the following:

(a)           that paid annual leave may be taken in advance of accrual;

(b)           that paid annual leave must be taken within a fixed period of time after it is accrued;

(c)           the form of application for paid annual leave;

(d)           that a specified period of notice must be given before taking paid annual leave.


 

Division 7Personal/carer’s leave and compassionate leave

Subdivision APaid personal/carer’s leave

95  Subdivision applies to employees other than casual employees

                   This Subdivision applies to employees, other than casual employees.

96  Entitlement to paid personal/carer’s leave

Amount of leave

             (1)  For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave.

Accrual of leave

             (2)  An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.

97  Taking paid personal/carer’s leave

                   An employee may take paid personal/carer’s leave if the leave is taken:

                     (a)  because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or

                     (b)  to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:

                              (i)  a personal illness, or personal injury, affecting the member; or

                             (ii)  an unexpected emergency affecting the member.

Note:          The notice and evidence requirements of section 107 must be complied with.

98  Employee taken not to be on paid personal/carer’s leave on public holiday

                   If the period during which an employee takes paid personal/carer’s leave includes a day or part‑day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid personal/carer’s leave on that public holiday.

99  Payment for paid personal/carer’s leave

                   If, in accordance with this Subdivision, an employee takes a period of paid personal/carer’s leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

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

                   Paid personal/carer’s leave must not be cashed out, except in accordance with cashing out terms included in a modern award or enterprise agreement under section 101.

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

             (1)  A modern award or enterprise agreement may include terms providing for the cashing out of paid personal/carer’s leave by an employee.

             (2)  The terms must require that:

                     (a)  paid personal/carer’s leave must not be cashed out if the cashing out would result in the employee’s remaining accrued entitlement to paid personal/carer’s leave being less than 15 days; and

                     (b)  each cashing out of a particular amount of paid personal/carer’s leave must be by a separate agreement in writing between the employer and the employee; and

                     (c)  the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.

Subdivision BUnpaid carer’s leave

102  Entitlement to unpaid carer’s leave

                   An employee is entitled to 2 days of unpaid carer’s leave for each occasion (a permissible occasion) when a member of the employee’s immediate family, or a member of the employee’s household, requires care or support because of:

                     (a)  a personal illness, or personal injury, affecting the member; or

                     (b)  an unexpected emergency affecting the member.

103  Taking unpaid carer’s leave

             (1)  An employee may take unpaid carer’s leave for a particular permissible occasion if the leave is taken to provide care or support as referred to in section 102.

             (2)  An employee may take unpaid carer’s leave for a particular permissible occasion as:

                     (a)  a single continuous period of up to 2 days; or

                     (b)  any separate periods to which the employee and his or her employer agree.

             (3)  An employee cannot take unpaid carer’s leave during a particular period if the employee could instead take paid personal/carer’s leave.

Note:          The notice and evidence requirements of section 107 must be complied with.

Subdivision CCompassionate leave

104  Entitlement to compassionate leave

                   An employee is entitled to 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.

105  Taking compassionate leave

             (1)  An employee may take compassionate leave for a particular permissible occasion if the leave is taken:

                     (a)  to spend time with the member of the employee’s immediate family or household who has contracted or developed the personal illness, or sustained the personal injury, referred to in section 104; or

                     (b)  after the death of the member of the employee’s immediate family or household referred to in section 104.

             (2)  An employee may take compassionate leave for a particular permissible occasion as:

                     (a)  a single continuous 2 day period; or

                     (b)  2 separate periods of 1 day each; or

                     (c)  any separate periods to which the employee and his or her employer agree.

             (3)  If the permissible occasion is the contraction or development of a personal illness, or the sustaining of a personal injury, the employee may take the compassionate leave for that occasion at any time while the illness or injury persists.

Note:          The notice and evidence requirements of section 107 must be complied with.

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

                   If, in accordance with this Subdivision, an employee, other than a casual employee, takes a period of compassionate leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

Note:          For casual employees, compassionate leave is unpaid leave.

Subdivision DNotice and evidence requirements

107  Notice and evidence requirements

Notice

             (1)  An employee must give his or her employer notice of the taking of leave under this Division by the employee.

             (2)  The notice:

                     (a)  must be given to the employer as soon as practicable (which may be a time after the leave has started); and

                     (b)  must advise the employer of the period, or expected period, of the leave.

Evidence

             (3)  An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:

                     (a)  if it is paid personal/carer’s leave—the leave is taken for a reason specified in section 97; or

                     (b)  if it is unpaid carer’s leave—the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or

                     (c)  if it is compassionate leave—the leave is taken for a permissible occasion in circumstances specified in subsection 105(1).

Compliance

             (4)  An employee is not entitled to take leave under this Division unless the employee complies with this section.

Modern awards and enterprise agreements may include evidence requirements

             (5)  A modern award or enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave.

Note:          Personal information given to an employer under this section may be regulated under the Privacy Act 1988.


 

Division 8Community service leave

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

                   An employee who engages in an eligible community service activity is entitled to be absent from his or her employment for a period if:

                     (a)  the period consists of one or more of the following:

                              (i)  time when the employee engages in the activity;

                             (ii)  reasonable travelling time associated with the activity;

                            (iii)  reasonable rest time immediately following the activity; and

                     (b)  unless the activity is jury service—the employee’s absence is reasonable in all the circumstances.

109  Meaning of eligible community service activity

General

             (1)  Each of the following is an eligible community service activity:

                     (a)  jury service (including attendance for jury selection) that is required by or under a law of the Commonwealth, a State or a Territory; or

                     (b)  a voluntary emergency management activity (see subsection (2)); or

                     (c)  an activity prescribed in regulations made for the purpose of subsection (4).

Voluntary emergency management activities

             (2)  An employee engages in a voluntary emergency management activity if, and only if:

                     (a)  the employee engages in an activity that involves dealing with an emergency or natural disaster; and

                     (b)  the employee engages in the activity on a voluntary basis (whether or not the employee directly or indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for engaging in the activity); and

                     (c)  the employee is a member of, or has a member‑like association with, a recognised emergency management body; and

                     (d)  either:

                              (i)  the employee was requested by or on behalf of the body to engage in the activity; or

                             (ii)  no such request was made, but it would be reasonable to expect that, if the circumstances had permitted the making of such a request, it is likely that such a request would have been made.

             (3)  A recognised emergency management body is:

                     (a)  a body, or part of a body, that has a role or function under a plan that:

                              (i)  is for coping with emergencies and/or disasters; and

                             (ii)  is prepared by the Commonwealth, a State or a Territory; or

                     (b)  a fire‑fighting, civil defence or rescue body, or part of such a body; or

                     (c)  any other body, or part of a body, a substantial purpose of which involves:

                              (i)  securing the safety of persons or animals in an emergency or natural disaster; or

                             (ii)  protecting property in an emergency or natural disaster; or

                            (iii)  otherwise responding to an emergency or natural disaster; or

                     (d)  a body, or part of a body, prescribed by the regulations;

but does not include a body that was established, or is continued in existence, for the purpose, or for purposes that include the purpose, of entitling one or more employees to be absent from their employment under this Division.

Regulations may prescribe other activities

             (4)  The regulations may prescribe an activity that is of a community service nature as an eligible community service activity.

110  Notice and evidence requirements

Notice

             (1)  An employee who wants an absence from his or her employment to be covered by this Division must give his or her employer notice of the absence.

             (2)  The notice:

                     (a)  must be given to the employer as soon as practicable (which may be a time after the absence has started); and

                     (b)  must advise the employer of the period, or expected period, of the absence.

Evidence

             (3)  An employee who has given his or her employer notice of an absence under subsection (1) must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the absence is because the employee has been or will be engaging in an eligible community service activity.

Compliance

             (4)  An employee’s absence from his or her employment is not covered by this Division unless the employee complies with this section.

Note:          Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

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

Application of this section

             (1)  This section applies if:

                     (a)  in accordance with this Division, an employee is absent from his or her employment for a period because of jury service; and

                     (b)  the employee is not a casual employee.

Employee to be paid base rate of pay

             (2)  Subject to subsections (3), (4) and (5), the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

Evidence

             (3)  The employer may require the employee to give the employer evidence that would satisfy a reasonable person:

                     (a)  that the employee has taken all necessary steps to obtain any amount of jury service pay to which the employee is entitled; and

                     (b)  of the total amount (even if it is a nil amount) of jury service pay that has been paid, or is payable, to the employee for the period.

Note:          Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

             (4)  If, in accordance with subsection (3), the employer requires the employee to give the employer the evidence referred to in that subsection:

                     (a)  the employee is not entitled to payment under subsection (2) unless the employee provides the evidence; and

                     (b)  if the employee provides the evidence—the amount payable to the employee under subsection (2) is reduced by the total amount of jury service pay that has been paid, or is payable, to the employee, as disclosed in the evidence.

Payment only required for first 10 days of absence

             (5)  If an employee is absent because of jury service in relation to a particular jury service summons for a period, or a number of periods, of more than 10 days in total:

                     (a)  the employer is only required to pay the employee for the first 10 days of absence; and

                     (b)  the evidence provided in response to a requirement under subsection (3) need only relate to the first 10 days of absence; and

                     (c)  the reference in subsection (4) to the total amount of jury service pay as disclosed in evidence is a reference to the total amount so disclosed for the first 10 days of absence.

Meaning of jury service pay

             (6)  Jury service pay means an amount paid in relation to jury service under a law of the Commonwealth, a State or a Territory, other than an amount that is, or that is in the nature of, an expense‑related allowance.

Meaning of jury service summons

             (7)  Jury service summons means a summons or other instruction (however described) that requires a person to attend for, or perform, jury service.

112  State and Territory laws that are not excluded

             (1)  This Act is not intended to apply to the exclusion of laws of a State or Territory that provide employee entitlements in relation to engaging in eligible community service activities, to the extent that those entitlements are more beneficial to employees than the entitlements under this Division.

Note:          For example, this Act would not apply to the exclusion of a State or Territory law providing for a casual employee to be paid jury service pay.

             (2)  If the community service activity is an activity prescribed in regulations made for the purpose of subsection 109(4), subsection (1) of this section has effect subject to any provision to the contrary in the regulations.


 

Division 9Long service leave

113  Entitlement to long service leave

General rule

             (1)  An employee is entitled to long service leave in accordance with applicable award‑derived long service leave terms (see subsection (3)).

Note:          This Act does not exclude State and Territory laws that deal with long service leave, except in relation to employees who are entitled to long service leave under this Division (see paragraph 27(2)(g)).

General rule does not apply while workplace agreement, AWA etc. continues to apply

             (2)  However, subsection (1) does not apply if:

                     (a)  a workplace agreement, or an AWA, that came into operation before the commencement of this Part applies to the employee; or

                     (b)  one of the following kinds of instrument that came into operation before the commencement of this Part applies to the employee and expressly deals with long service leave:

                              (i)  a preserved State agreement;

                             (ii)  a workplace determination;

                            (iii)  a pre‑reform certified agreement;

                            (iv)  a pre‑reform AWA;

                             (v)  a section 170MX award;

                            (vi)  an old IR agreement;

                           (vii)  an employment agreement.

Note:          If there ceases to be any agreement or instrument of a kind referred to in paragraph (a) or (b) that applies to the employee, the employee will, at that time, become entitled under subsection (1) to long service leave in accordance with applicable award‑derived long service leave terms.

What are applicable award‑derived long service leave terms?

             (3)  Applicable award‑derived long service leave terms, in relation to an employee, are terms of an award:

                     (a)  that would have applied to the employee immediately before the commencement of this Part if:

                              (i)  the employee had, at that time, been in his or her current circumstances of employment; and

                             (ii)  no workplace agreement, AWA or workplace determination had (whether at that time or earlier) applied to the employee; and

                     (b)  that would have entitled the employee to long service leave (or that relate to matters that are ancillary or incidental to such an entitlement).

References are to instruments as defined in the Workplace Relations Act 1996

             (4)  References in this section to a kind of instrument are references to that kind of instrument as defined in the Workplace Relations Act 1996, as in force immediately before the commencement of this Part.


 

Division 10Public holidays

114  Entitlement to be absent from employment on public holiday

Employee entitled to be absent on public holiday

             (1)  An employee is entitled to be absent from his or her employment on a day or part‑day that is a public holiday in the place where the employee is based for work purposes.

Reasonable requests to work on public holidays

             (2)  However, an employer may request an employee to work on a public holiday if the request is reasonable.

             (3)  If an employer requests an employee to work on a public holiday, the employee may refuse the request if:

                     (a)  the request is not reasonable; or

                     (b)  the refusal is reasonable.

             (4)  In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:

                     (a)  the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;

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

                     (c)  whether the employee could reasonably expect that the employer might request work on the public holiday;

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

                     (e)  the type of employment of the employee (for example, whether full‑time, part‑time, casual or shiftwork);

                      (f)  the amount of notice in advance of the public holiday given by the employer when making the request;

                     (g)  in relation to the refusal of a request—the amount of notice in advance of the public holiday given by the employee when refusing the request;

                     (h)  any other relevant matter.

115  Meaning of public holiday

The public holidays

             (1)  The following are public holidays:

                     (a)  each of these days:

                              (i)  1 January (New Year’s Day);

                             (ii)  26 January (Australia Day);

                            (iii)  Good Friday;

                            (iv)  Easter Monday;

                             (v)  25 April (Anzac Day);

                            (vi)  the Queen’s birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory);

                           (vii)  25 December (Christmas Day);

                           (viii)  26 December (Boxing Day);

                     (b)  any other day, or part‑day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday, other than a day or part‑day, or a kind of day or part‑day, that is excluded by the regulations from counting as a public holiday.

Substituted public holidays under State or Territory laws

             (2)  If, under (or in accordance with a procedure under) a law of a State or Territory, a day or part‑day is substituted for a day or part‑day that would otherwise be a public holiday because of subsection (1), then the substituted day or part‑day is the public holiday.

Substituted public holidays under modern awards and enterprise agreements

             (3)  A modern award or enterprise agreement may include terms providing for an employer and employee to agree on the substitution of a day or part‑day for a day or part‑day that would otherwise be a public holiday because of subsection (1) or (2).

Substituted public holidays for award/agreement free employees

             (4)  An employer and an award/agreement free employee may agree on the substitution of a day or part‑day for a day or part‑day that would otherwise be a public holiday because of subsection (1) or (2).

Note:          This Act does not exclude State and Territory laws that deal with the declaration, prescription or substitution of public holidays, but it does exclude State and Territory laws that relate to the rights and obligations of an employee or employer in relation to public holidays (see paragraph 27(2)(j)).

116  Payment for absence on public holiday

                   If, in accordance with this Division, an employee is absent from his or her employment on a day or part‑day that is a public holiday, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part‑day.

Note:          If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part‑time employee whose part‑time hours do not include the day of the week on which the public holiday occurs.


 

Division 11Notice of termination and redundancy pay

Subdivision ANotice of termination or payment in lieu of notice

117  Requirement for notice of termination or payment in lieu

Notice specifying day of termination

             (1)  An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).

Note 1:       Section 123 describes situations in which this section does not apply.

Note 2:       Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:

(a)           delivering it personally; or

(b)           leaving it at the employee’s last known address; or

(c)           sending it by pre‑paid post to the employee’s last known address.

Amount of notice or payment in lieu of notice

             (2)  The employer must not terminate the employee’s employment unless:

                     (a)  the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or

                     (b)  the employer has paid the employee payment in lieu of notice of at least the amount the employer would have been liable to pay the employee at the full rate of pay for the hours he or she would have worked had the employment continued until the end of the minimum period of notice.

             (3)  Work out the minimum period of notice as follows:

                     (a)  first, work out the period using the following table:

 

Period

 

Employee’s period of continuous service with the employer at the end of the day the notice is given

Period

1

Not more than 1 year

1 week

2

More than 1 year but not more than 3 years

2 weeks

3

More than 3 years but not more than 5 years

3 weeks

4

More than 5 years

4 weeks

 

                     (b)  then increase the period by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.

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

                   A modern award or enterprise agreement may include terms specifying the period of notice an employee must give in order to terminate his or her employment.

Subdivision BRedundancy pay

119  Redundancy pay

Entitlement to redundancy pay

             (1)  An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

                     (a)  at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

                     (b)  because of the insolvency or bankruptcy of the employer.

Note:          Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.

Amount of redundancy pay

             (2)  The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:

 

Redundancy pay period

 

Employee’s period of continuous service with the employer on termination

Redundancy pay period

1

At least 1 year but less than 2 years

4 weeks

2

At least 2 years but less than 3 years

6 weeks

3

At least 3 years but less than 4 years

7 weeks

4

At least 4 years but less than 5 years

8 weeks

5

At least 5 years but less than 6 years

10 weeks

6

At least 6 years but less than 7 years

11 weeks

7

At least 7 years but less than 8 years

13 weeks

8

At least 8 years but less than 9 years

14 weeks

9

At least 9 years but less than 10 years

16 weeks

10

At least 10 years

12 weeks

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

             (1)  This section applies if:

                     (a)  an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

                     (b)  the employer:

                              (i)  obtains other acceptable employment for the employee; or

                             (ii)  cannot pay the amount.

             (2)  On application by the employer, FWA may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that FWA considers appropriate.

             (3)  The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.

121  Exclusions from obligation to pay redundancy pay

                   Section 119 does not apply to the termination of an employee’s employment if, immediately before the time of the termination, or at the time when the person was given notice of the termination as described in subsection 117(1) (whichever happened first):

                     (a)  the employee’s period of continuous service with the employer is less than 12 months; or

                     (b)  the employer is a small business employer.

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

Transfer of employment situation in which employer may decide not to recognise employee’s service with first employer

             (1)  Subsection 22(5) does not apply (for the purpose of this Subdivision) to a transfer of employment between non‑associated entities in relation to an employee if the second employer decides not to recognise the employee’s service with the first employer (for the purpose of this Subdivision).

Employee is not entitled to redundancy pay if service with first employer counts as service with second employer

             (2)  If subsection 22(5) applies (for the purpose of this Subdivision) to a transfer of employment in relation to an employee, the employee is not entitled to redundancy pay under section 119 in relation to the termination of his or her employment with the first employer.

Note:          Subsection 22(5) provides that, generally, if there is a transfer of employment, service with the first employer counts as service with the second employer.

Employee not entitled to redundancy pay if refuses employment in certain circumstances

             (3)  An employee is not entitled to redundancy pay under section 119 in relation to the termination of his or her employment with an employer (the first employer) if:

                     (a)  the employee rejects an offer of employment made by another employer (the second employer) that:

                              (i)  is on terms and conditions substantially similar to, and, considered on an overall basis, no less favourable than, the employee’s terms and conditions of employment with the first employer immediately before the termination; and

                             (ii)  recognises the employee’s service with the first employer, for the purpose of this Subdivision; and

                     (b)  had the employee accepted the offer, there would have been a transfer of employment in relation to the employee.

             (4)  If FWA is satisfied that subsection (3) operates unfairly to the employee, FWA may order the first employer to pay the employee a specified amount of redundancy pay (not exceeding the amount that would be payable but for subsection (3)) that FWA considers appropriate. The first employer must pay the employee that amount of redundancy pay.

Subdivision CLimits on scope of this Division

123  Limits on scope of this Division

Employees not covered by this Division

             (1)  This Division does not apply to any of the following employees:

                     (a)  an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;

                     (b)  an employee whose employment is terminated because of serious misconduct;

                     (c)  a casual employee;

                     (d)  an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement;

                     (e)  an employee prescribed by the regulations as an employee to whom this Division does not apply.

             (2)  Paragraph (1)(a) does not prevent this Division from applying to an employee if a substantial reason for employing the employee as described in that paragraph was to avoid the application of this Division.

Other employees not covered by notice of termination provisions

             (3)  Subdivision A does not apply to:

                     (a)  an employee who has not completed at least the following period of continuous service with his or her employer immediately before the time of the termination, or at the time when the person was given notice of the termination as described in subsection 117(1) (whichever happened first):

                              (i)  if the employer is not a small business employer at that time—6 months of service;

                             (ii)  if the employer is a small business employer at that time—12 months of service;

                     (b)  a daily hire employee working in the building and construction industry (including working in connection with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or structures); or

                     (c)  a daily hire employee working in the meat industry in connection with the slaughter of livestock; or

                     (d)  a weekly hire employee working in connection with the meat industry and whose termination of employment is determined solely by seasonal factors; or

                     (e)  an employee prescribed by the regulations as an employee to whom that Subdivision does not apply.

Other employees not covered by redundancy pay provisions

             (4)  Subdivision B does not apply to:

                     (a)  an employee who is an apprentice; or

                     (b)  an employee to whom an industry‑specific redundancy scheme in a modern award applies; or

                     (c)  an employee to whom a redundancy scheme in an enterprise agreement applies if:

                              (i)  the scheme is an industry‑specific redundancy scheme that is incorporated by reference (and as in force from time to time) into the enterprise agreement from a modern award that is in operation; and

                             (ii)  the employee is covered by the industry‑specific redundancy scheme in the modern award; or

                     (d)  an employee prescribed by the regulations as an employee to whom that Subdivision does not apply.


 

Division 12Fair Work Information Statement

124  FWA to determine and publish Fair Work Information Statement

             (1)  FWA must determine a Fair Work Information Statement. FWA must publish the Statement in the Gazette.

Note:          If FWA changes the Statement, it must publish the new version of the Statement in the Gazette.

             (2)  The Statement must contain information about the following:

                     (a)  the National Employment Standards;

                     (b)  modern awards;

                     (c)  agreement‑making under this Act;

                     (d)  the right to freedom of association;

                     (e)  the role of FWA and the Fair Work Ombudsman.

             (3)  The regulations may prescribe other matters relating to the content or form of the Statement, or the manner in which employers may give the Statement to employees.

125  Giving new employees the Fair Work Information Statement

             (1)  An employer must give each employee the Fair Work Information Statement before, or as soon as practicable after, the employee starts employment.

             (2)  Subsection (1) does not require the employer to give the employee the Statement more than once in any 12 months.

Note:          This is relevant if the employer employs the employee more than once in the 12 months.


 

Division 13Miscellaneous

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

                   A modern award or enterprise agreement may provide for school‑based apprentices or school‑based trainees to be paid loadings in lieu of any of the following:

                     (a)  paid annual leave;

                     (b)  paid personal/carer’s leave;

                     (c)  paid absence under Division 10 (which deals with public holidays).

Note:       Section 199 affects whether FWA may approve an enterprise agreement covering an employee who is a school‑based apprentice or school‑based trainee, if the employee is covered by a modern award that is in operation and provides for the employee to be paid loadings in lieu of paid annual leave, paid personal/carer’s leave or paid absence under Division 10.

127  Regulations about what modern awards and enterprise agreements can do

                   The regulations may:

                     (a)  permit modern awards or enterprise agreements or both to include terms that would or might otherwise be contrary to this Part or section 55 (which deals with the interaction between the National Employment Standards and a modern award or enterprise agreement); or

                     (b)  prohibit modern awards or enterprise agreements or both from including terms that would or might otherwise be permitted by a provision of this Part or section 55.

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

                   The National Employment Standards have effect subject to:

                     (a)  an agreement between an employer and an award/agreement free employee or a requirement made by an employer of an award/agreement free employee, that is expressly permitted by a provision of this Part; or

                     (b)  an agreement between an employer and an award/agreement free employee that is expressly permitted by regulations made for the purpose of section 129.

Note 1:       In determining what matters are permitted to be agreed or required under paragraph (a), any regulations made for the purpose of section 129 that expressly prohibit certain agreements or requirements must be taken into account.

Note 2:       See also the note to section 64 (which deals with the effect of averaging arrangements).

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

                   The regulations may:

                     (a)  permit employers, and award/agreement free employees, to agree on matters that would or might otherwise be contrary to this Part; or

                     (b)  prohibit employers and award/agreement free employees from agreeing on matters, or prohibit employers from making requirements of such employees, that would or might otherwise be permitted by a provision of this Part.

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

             (1)  An employee is not entitled to take or accrue any leave or absence (whether paid or unpaid) under this Part during a period (a compensation period) when the employee is absent from work because of a personal illness, or a personal injury, for which the employee is receiving compensation payable under a law (a compensation law) of the Commonwealth, a State or a Territory that is about workers’ compensation.

             (2)  Subsection (1) does not prevent an employee from taking or accruing leave during a compensation period if the taking or accruing of the leave is permitted by a compensation law.

             (3)  Subsection (1) does not prevent an employee from taking unpaid parental leave during a compensation period.

131  Relationship with other Commonwealth laws

                   This Part establishes minimum standards and so is intended to supplement, and not to override, entitlements under other laws of the Commonwealth.


 

Part 2‑3Modern awards

Division 1Introduction

132  Guide to this Part

This Part provides for FWA to make, vary and revoke modern awards. Modern awards may set minimum terms and conditions for national system employees in particular industries or occupations. Modern awards can have terms that are ancillary or supplementary to the National Employment Standards (see Part 2‑1).

Division 2 provides for the modern awards objective. This requires FWA to ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account certain social and economic factors. Division 2 also contains special provisions about modern award minimum wages.

Division 3 deals with the terms of modern awards.

Division 4 provides for FWA to conduct 4 yearly reviews of modern awards.

Division 5 provides for FWA to exercise modern award powers outside the system of 4 yearly reviews in certain circumstances.

Division 6 contains some general provisions relating to modern award powers.

The obligation to comply with a modern award is in section 45 (in Part 2‑1).

In relation to minimum wages in modern awards, FWA has powers both under this Part and under Part 2‑6 (which deals with minimum wages). The following is a summary of FWA’s powers under the 2 Parts:

(a)   the initial making of a modern award setting modern award minimum wages can only occur under this Part;

(b)   the main power to vary modern award minimum wages is in annual wage reviews under Part 2‑6;

(c)   modern award minimum wages can also be varied under this Part, but only for work value reasons or in other limited circumstances;

(d)   modern award minimum wages can be set (otherwise than in the initial making of a modern award) or revoked either under this Part or in annual wage reviews under Part 2‑6.

133  Meanings of employee and employer

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


 

Division 2Overarching provisions

134  The modern awards objective

What is the modern awards objective?

             (1)  FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

                     (a)  relative living standards and the needs of the low paid; and

                     (b)  the need to encourage collective bargaining; and

                     (c)  the need to promote social inclusion through increased workforce participation; and

                     (d)  the need to promote flexible modern work practices and the efficient and productive performance of work; and

                     (e)  the principle of equal remuneration for work of equal or comparable value; and

                      (f)  the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

                     (g)  the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

                     (h)  the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

             (2)  The modern awards objective applies to the performance or exercise of FWA’s modern award powers, which are:

                     (a)  FWA’s functions or powers under this Part; and

                     (b)  FWA’s functions or powers under Part 2‑6, so far as they relate to modern award minimum wages.

Note:          FWA must also take into account the objects of this Act and any other applicable provisions. For example, if FWA is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).

135  Special provisions relating to modern award minimum wages

             (1)  Modern award minimum wages cannot be varied under this Part except as follows:

                     (a)  modern award minimum wages can be varied if FWA is satisfied that the variation is justified by work value reasons (see subsections 156(3) and 157(2));

                     (b)  modern award minimum wages can be varied under section 160 (which deals with variation to remove ambiguities or correct errors) or section 161 (which deals with variation on referral by HREOC).

Note 1:       The main power to vary modern award minimum wages is in annual wage reviews under Part 2‑6. Modern award minimum wages can also be set or revoked in annual wage reviews.

Note 2:       For the meanings of modern award minimum wages, and setting and varying such wages, see section 284.

             (2)  In exercising its powers under this Part to set, vary or revoke modern award minimum wages, FWA must take into account the rate of the national minimum wage as currently set in a national minimum wage order.


 

Division 3Terms of modern awards

Subdivision APreliminary

136  What can be included in modern awards

Terms that may or must be included

             (1)  A modern award must only include terms that are permitted or required by:

                     (a)  Subdivision B (which deals with terms that may be included in modern awards); or

                     (b)  Subdivision C (which deals with terms that must be included in modern awards); or

                     (c)  section 55 (which deals with interaction between the National Employment Standards and a modern award or enterprise agreement); or

                     (d)  Part 2‑2 (which deals with the National Employment Standards).

Note 1:       Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards.

Note 2:       Part 2‑2 includes a number of provisions permitting inclusion of terms about particular matters.

Terms that must not be included

             (2)  A modern award must not include terms that contravene:

                     (a)  Subdivision D (which deals with terms that must not be included in modern awards); or

                     (b)  section 55 (which deals with the interaction between the National Employment Standards and a modern award or enterprise agreement).

Note:          The provisions referred to in subsection (2) limit the terms that can be included in modern awards under the provisions referred to in subsection (1).

137  Terms that contravene section 136 have no effect

                   A term of a modern award has no effect to the extent that it contravenes section 136.

138  Achieving the modern awards objective

                   A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.

Subdivision BTerms that may be included in modern awards

139  Terms that may be included in modern awards—general

             (1)  A modern award may include terms about any of the following matters:

                     (a)  minimum wages (including wage rates for junior employees, employees with a disability and employees to whom training arrangements apply), and:

                              (i)  skill‑based classifications and career structures; and

                             (ii)  incentive‑based payments, piece rates and bonuses;

                     (b)  type of employment, such as full‑time employment, casual employment, regular part‑time employment and shift work, and the facilitation of flexible working arrangements, particularly for employees with family responsibilities;

                     (c)  arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours;

                     (d)  overtime rates;

                     (e)  penalty rates, including for any of the following:

                              (i)  employees working unsocial, irregular or unpredictable hours;

                             (ii)  employees working on weekends or public holidays;

                            (iii)  shift workers;

                      (f)  annualised wage arrangements that:

                              (i)  have regard to the patterns of work in an occupation, industry or enterprise; and

                             (ii)  provide an alternative to the separate payment of wages and other monetary entitlements; and

                            (iii)  include appropriate safeguards to ensure that individual employees are not disadvantaged;

                     (g)  allowances, including for any of the following:

                              (i)  expenses incurred in the course of employment;

                             (ii)  responsibilities or skills that are not taken into account in rates of pay;

                            (iii)  disabilities associated with the performance of particular tasks or work in particular conditions or locations;

                     (h)  leave, leave loadings and arrangements for taking leave;

                      (i)  superannuation;

                      (j)  procedures for consultation, representation and dispute settlement.

             (2)  Any allowance included in a modern award must be separately and clearly identified in the award.

140  Outworker terms

             (1)  A modern award may include either or both of the following:

                     (a)  terms relating to the conditions under which an employer may employ employees who are outworkers;

                     (b)  terms relating to the conditions under which an outworker entity may arrange for work to be performed for the entity (either directly or indirectly), if the work is, or is reasonably likely to be, performed by outworkers.

             (2)  Without limiting subsection (1), terms referred to in that subsection may include terms relating to the pay or conditions of outworkers.

             (3)  The following terms of a modern award are outworker terms:

                     (a)  terms referred to in subsection (1);

                     (b)  terms that are incidental to terms referred to in subsection (1), included in the modern award under subsection 142(1);

                     (c)  machinery terms in relation to terms referred to in subsection (1), included in the modern award under subsection 142(2).

141  Industry‑specific redundancy schemes

When can a modern award include an industry‑specific redundancy scheme?

             (1)  A modern award may include an industry‑specific redundancy scheme if the scheme was included in the award:

                     (a)  in the award modernisation process; or

                     (b)  in accordance with subsection (2).

Note:          An employee to whom an industry‑specific redundancy scheme in a modern award applies is not entitled to the redundancy entitlements in Subdivision B of Division 11 of Part 2‑2.

Coverage of industry‑specific redundancy schemes must not be extended

             (2)  If:

                     (a)  a modern award includes an industry‑specific redundancy scheme; and

                     (b)  FWA is making or varying another modern award under Division 4 or 5 so that it (rather than the modern award referred to in paragraph (a)) will cover some or all of the classes of employees who are covered by the scheme;

FWA may include the scheme in that other modern award. However, FWA must not extend the coverage of the scheme to classes of employees that it did not previously cover.

Varying industry‑specific redundancy schemes

             (3)  FWA may only vary an industry‑specific redundancy scheme in a modern award under Division 4 or 5:

                     (a)  by varying the amount of any redundancy payment in the scheme; or

                     (b)  in accordance with a provision of Subdivision B of Division 5 (which deals with varying modern awards in some limited situations).

             (4)  In varying an industry‑specific redundancy scheme as referred to in subsection (3), FWA:

                     (a)  must not extend the coverage of the scheme to classes of employees that it did not previously cover; and

                     (b)  must retain the industry‑specific character of the scheme.

Omitting industry‑specific redundancy schemes

             (5)  FWA may vary a modern award under Division 4 or 5 by omitting an industry‑specific redundancy scheme from the award.

142  Incidental and machinery terms

Incidental terms

             (1)  A modern award may include terms that are:

                     (a)  incidental to a term that is permitted or required to be in the modern award; and

                     (b)  essential for the purpose of making a particular term operate in a practical way.

Machinery terms

             (2)  A modern award may include machinery terms, including formal matters (such as a title, date or table of contents).

 Subdivision CTerms that must be included in modern awards

143  Coverage terms

Coverage terms must be included

             (1)  A modern award must include terms (coverage terms) setting out the employers, employees, organisations and outworker entities that are covered by the award, in accordance with this section.

Employers and employees

             (2)  A modern award must be expressed to cover:

                     (a)  specified employers; and

                     (b)  specified employees of employers covered by the modern award.

Organisations

             (3)  A modern award may be expressed to cover one or more specified organisations, in relation to all or specified employees or employers that are covered by the award.

Outworker entities

             (4)  A modern award may be expressed to cover, but only in relation to outworker terms included in the award, specified outworker entities.

How coverage is expressed

             (5)  For the purposes of subsections (2) to (4):

                     (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; and

                     (d)  outworker entities may be specified by name or by inclusion in a specified class or specified classes.

             (6)  Without limiting the way in which a class may be described for the purposes of subsection (5), the class may be described by reference to a particular industry or part of an industry, or particular kinds of work.

Employees not traditionally covered by awards etc.

             (7)  A modern award must not be expressed to cover classes of employees:

                     (a)  who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or

                     (b)  who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.

Note:          For example, in some industries, managerial employees have traditionally not been covered by awards.

144  Flexibility terms

Flexibility terms must be included

             (1)  A modern award must include a term (a flexibility term) enabling an employee and his or her employer to agree on an arrangement (an individual flexibility arrangement) varying the effect of the award in relation to the employee and the employer, in order to meet the genuine needs of the employee and employer.

Effect of individual flexibility arrangements

             (2)  If an employee and employer agree to an individual flexibility arrangement under a flexibility term in a modern award:

                     (a)  the modern award has effect in relation to the employee and the employer as if it were varied by the flexibility arrangement; and

                     (b)  the arrangement is taken, for the purposes of this Act, to be a term of the modern award.

             (3)  To avoid doubt, the individual flexibility arrangement does not change the effect the modern award has in relation to the employer and any other employee.

Requirements for flexibility terms

             (4)  The flexibility term must:

                     (a)  identify the terms of the modern award the effect of which may be varied by an individual flexibility arrangement; and

                     (b)  require that the employee and the employer genuinely agree to any individual flexibility arrangement; and

                     (c)  require the employer to ensure that any individual flexibility arrangement must result in the employee being better off overall than the employee would have been if no individual flexibility arrangement were agreed to; and

                     (d)  set out how any flexibility arrangement may be terminated by the employee or the employer; and

                     (e)  require the employer to ensure that any individual flexibility arrangement must be in writing and signed:

                              (i)  in all cases—by the employee and the employer; and

                             (ii)  if the employee is under 18—by a parent or guardian of the employee; and

                      (f)  require the employer to ensure that a copy of any individual flexibility arrangement must be given to the employee.

             (5)  Except as required by subparagraph (4)(e)(ii), the flexibility term must not require that any individual flexibility arrangement agreed to by an employer and employee under the term must be approved, or consented to, by another person.

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

Application of this section

             (1)  This section applies if:

                     (a)  an employee and employer agree to an arrangement that purports to be an individual flexibility arrangement under a flexibility term in a modern award; and

                     (b)  the arrangement does not meet a requirement set out in section 144.

Note:          A failure to meet such a requirement may be a contravention of a provision of Part 3‑1 (which deals with general protections).

Arrangement has effect as if it were an individual flexibility arrangement

             (2)  The arrangement has effect as if it were an individual flexibility arrangement.

Employer contravenes flexibility term in specified circumstances

             (3)  If subsection 144(4) requires the employer to ensure that the arrangement meets the requirement, the employer contravenes the flexibility term of the award.

Flexibility arrangement may be terminated by agreement or notice

             (4)  The flexibility term is taken to provide (in addition to any other means of termination of the arrangement that the term provides) that the arrangement can be terminated:

                     (a)  by either the employee, or the employer, giving written notice of not more than 28 days; or

                     (b)  by the employee and the employer at any time if they agree, in writing, to the termination.

146  Terms about settling disputes

                   Without limiting paragraph 139(1)(j), a modern award must include a term that provides a procedure for settling disputes:

                     (a)  about any matters arising under the award; and

                     (b)  in relation to the National Employment Standards.

Note:          FWA or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).

147  Ordinary hours of work

                   A modern award must include terms specifying, or providing for the determination of, the ordinary hours of work for each classification of employee covered by the award and each type of employment permitted by the award.

Note:          An employee’s ordinary hours of work are significant in determining the employee’s entitlements under the National Employment Standards.

148  Base and full rates of pay for pieceworkers

                   If a modern award defines or describes employees covered by the award as pieceworkers, the award must include terms specifying, or providing for the determination of, base and full rates of pay for those employees for the purposes of the National Employment Standards.

Note:          An employee’s base and full rates of pay are significant in determining the employee’s entitlements under the National Employment Standards.

149  Automatic variation of allowances

                   If a modern award includes allowances that FWA considers are of a kind that should be varied when wage rates in the award are varied, the award must include terms providing for the automatic variation of those allowances when wage rates in the award are varied.

Subdivision DTerms that must not be included in modern awards

150  Objectionable terms

                   A modern award must not include an objectionable term.

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

                   A modern award must not include a term that has no effect because of subsection 326(1) (which deals with unreasonable payments and deductions for the benefit of an employer) or subsection 326(3) (which deals with unreasonable requirements to spend an amount).

152  Terms about right of entry

                   A modern award must not include terms that require or authorise an official of an organisation to enter premises:

                     (a)  to hold discussions with, or interview, an employee; or

                     (b)  to inspect any work, process or object.

153  Terms that are discriminatory

Discriminatory terms must not be included

             (1)  A modern award must not include terms that discriminate against an employee because of, or for reasons including, the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Certain terms are not discriminatory

             (2)  A term of a modern award does not discriminate against an employee:

                     (a)  if the reason for the discrimination is the inherent requirements of the particular position held by the employee; or

                     (b)  merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

                              (i)  in good faith; and

                             (ii)  to avoid injury to the religious susceptibilities of adherents of that religion or creed.

             (3)  A term of a modern award does not discriminate against an employee merely because it provides for minimum wages 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.

154  Terms that contain State‑based differences

General rule—State‑based difference terms must not be included

             (1)  A modern award must not include terms and conditions of employment (State‑based difference terms) that:

                     (a)  are determined by reference to State or Territory boundaries; or

                     (b)  are not capable of having effect in each State and Territory.

When State‑based difference terms may be included

             (2)  However, a modern award may include State‑based difference terms if the terms were included in the award:

                     (a)  in the award modernisation process; or

                     (b)  in accordance with subsection (3);

but only for up to 5 years starting on the day on which the first modern award that included those terms came into operation.

             (3)  If:

                     (a)  a modern award includes State‑based difference terms as permitted under subsection (2); and

                     (b)  FWA is making or varying another modern award so that it (rather than the modern award referred to in paragraph (a)) will cover some or all of the classes of employees who are covered by those terms;

FWA may include those terms in that other modern award. However, FWA must not extend the coverage of those terms to classes of employees that they did not previously cover.

155  Terms dealing with long service leave

                   A modern award must not include terms dealing with long service leave.


 

Division 44 yearly reviews of modern awards

156  4 yearly reviews of modern awards to be conducted

Timing of 4 yearly reviews

             (1)  FWA must conduct a 4 yearly review of modern awards starting as soon as practicable after each 4th anniversary of the commencement of this Part.

Note 1:       FWA must be constituted by a Full Bench to conduct 4 yearly reviews of modern awards, and to make determinations and modern awards in those reviews (see subsections 616(1), (2) and (3)).

Note 2:       The President may give directions about the conduct of 4 yearly reviews of modern awards (see section 582).

What has to be done in a 4 yearly review?

             (2)  In a 4 yearly review of modern awards, FWA:

                     (a)  must review all modern awards; and

                     (b)  may make:

                              (i)  one or more determinations varying modern awards; and

                             (ii)  one or more modern awards; and

                            (iii)  one or more determinations revoking modern awards.

Note:          Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).

Variation of modern award minimum wages must be justified by work value reasons

             (3)  In a 4 yearly review of modern awards, FWA may make a determination varying modern award minimum wages only if FWA is satisfied that the variation of modern award minimum wages is justified by work value reasons.

             (4)  Work value reasons are reasons justifying the amount that employees should be paid for doing a particular kind of work, being reasons related to any of the following:

                     (a)  the nature of the work;

                     (b)  the level of skill or responsibility involved in doing the work;

                     (c)  the conditions under which the work is done.

Each modern award to be reviewed in its own right

             (5)  A 4 yearly review of modern awards must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at the same time.


 

Division 5Exercising modern award powers outside 4 yearly reviews and annual wage reviews

Subdivision AExercise of powers if necessary to achieve modern awards objective

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

             (1)  FWA may:

                     (a)  make a determination varying a modern award, otherwise than to vary modern award minimum wages; or

                     (b)  make a modern award; or

                     (c)  make a determination revoking a modern award;

if FWA is satisfied that making the determination or modern award outside the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective.

Note 1:       FWA must be constituted by a Full Bench to make a modern award (see subsection 616(1)).

Note 2:       Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).

Note 3:       If FWA is setting modern award minimum wages, the minimum wages objective also applies (see section 284).

             (2)  FWA may make a determination varying modern award minimum wages if FWA is satisfied that:

                     (a)  the variation of modern award minimum wages is justified by work value reasons; and

                     (b)  making the determination outside the system of annual wage reviews and the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective.

Note:          As FWA is varying modern award minimum wages, the minimum wages objective also applies (see section 284).

             (3)  FWA may make a determination or modern award under this section:

                     (a)  on its own initiative; or

                     (b)  on application under section 158.

158  Applications to vary, revoke or make modern award

             (1)  The following table sets out who may apply for the making of a determination varying or revoking a modern award, or for the making of a modern award, under section 157:

 

Who may make an application?

Item

Column 1

This kind of application …

Column 2

may be made by …

1

an application to vary, omit or include terms (other than outworker terms or coverage terms) in a modern award

(a) an employer, employee or organisation that is covered by the modern award; or

(b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award.

2

an application to vary, omit or include outworker terms in a modern award

(a) an employer, employee or outworker entity that is or would be covered by the outworker terms; or

(b) an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker terms relate or would relate.

3

an application to vary or include coverage terms in a modern award to increase the range of employers, employees or organisations that are covered by the award

(a) an employer, employee or organisation that would become covered by the modern award; or

(b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that would become covered by the modern award.

4

an application to vary or include coverage terms in a modern award to increase the range of outworker entities that are covered by outworker terms

(a) an outworker entity that would become covered by the outworker terms; or

(b) an organisation that is entitled to represent the industrial interests of one or more outworkers who would become outworkers to whom the outworker terms relate.

5

an application to vary or omit coverage terms in a modern award to reduce the range of employers, employees or organisations that are covered by the award

(a) an employer, employee or organisation that would stop being covered by the modern award; or

(b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that would stop being covered by the modern award.

6

an application to vary or omit coverage terms in a modern award to reduce the range of outworker entities that are covered by outworker terms

(a) an outworker entity that would stop being covered by the outworker terms; or

(b) an organisation that is entitled to represent the industrial interests of one or more outworkers who would stop being outworkers to whom the outworker terms relate.

7

an application for the making of a modern award

(a) an employee or employer that would be covered by the modern award; or

(b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that would be covered by the modern award.

8

an application to revoke a modern award

(a) an employer, employee or organisation that is covered by the modern award; or

(b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award.

             (2)  Subject to the requirements of the table about who can make what kind of application, an applicant may make applications for 2 or more related things at the same time.

Note:          For example, an applicant may apply for the making of a modern award and for the related revocation of an existing modern award.

Subdivision BOther situations

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

             (1)  FWA may make a determination varying a modern award:

                     (a)  to reflect a change in the name of an employer, organisation or outworker entity; or

                     (b)  to omit the name of an organisation, employer or outworker entity from the modern award, if:

                              (i)  the registration of the organisation has been cancelled under the Workplace Relations Act 1996; or

                             (ii)  the employer, organisation or outworker entity has ceased to exist; or

                     (c)  if the modern award is a named employer award and the named employer is the old employer in a transfer of business—to reflect the transfer of business to the new employer.

             (2)  FWA may make a determination under this section:

                     (a)  in any case—on its own initiative; or

                     (b)  if paragraph (1)(a) or (b) applies—on application by the employer, organisation or outworker entity referred to in that paragraph; or

                     (c)  if paragraph (1)(c) applies—on application by:

                              (i)  the old employer or the new employer; or

                             (ii)  a transferring employee who was covered by the modern award as an employee of the old employer; or

                            (iii)  an organisation that is entitled to represent the industrial interests of the old employer, the new employer, or one or more employees referred to in subparagraph (ii).

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

             (1)  FWA may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.

             (2)  FWA may make the determination:

                     (a)  on its own initiative; or

                     (b)  on application by an employer, employee, organisation or outworker entity that is covered by the modern award.

161  Variation of modern award on referral by HREOC

             (1)  FWA must review a modern award if the award is referred to it under section 46PW of the Human Rights and Equal Opportunity Commission Act 1986 (which deals with discriminatory industrial instruments).

             (2)  The Sex Discrimination Commissioner is entitled to make submissions to FWA for consideration in the review.

             (3)  If FWA considers that the modern award reviewed requires a person to do an act that would be unlawful under Part II of the Sex Discrimination Act 1984 (but for the fact that the act would be done in direct compliance with the modern award), FWA must make a determination varying the modern award so that it no longer requires the person to do an act that would be so unlawful.

Note:          Special criteria apply to changing coverage of modern awards (see section 163).


 

Division 6General provisions relating to modern award powers

162  General

                   This Division contains some specific provisions relevant to the exercise of modern award powers. For other provisions relevant to the exercise of modern award powers, see the general provisions about FWA’s processes in Part 5‑1.

Note:          Relevant provisions of Part 5‑1 include the following:

(a)           section 582 (which deals with the President’s power to give directions);

(b)           section 590 (which deals with FWA’s discretion to inform itself as it considers appropriate, including by commissioning research);

(c)           section 596 (which deals with being represented in a matter before FWA);

(d)           section 601 (which deals with writing and publication requirements).

163  Special criteria relating to changing coverage of modern awards

Special rule about reducing coverage

             (1)  FWA must not make a determination varying a modern award so that certain employers or employees stop being covered by the award unless FWA is satisfied that they will instead become covered by another modern award (other than the miscellaneous modern award) that is appropriate for them.

Special rule about making a modern award

             (2)  FWA must not make a modern award covering certain employers or employees unless FWA has considered whether it should, instead, make a determination varying an existing modern award to cover them.

Special rule about covering organisations

             (3)  FWA must not make a modern award, or make a determination varying a modern award, so that an organisation becomes covered by the award, unless the organisation is entitled to represent the industrial interests of one or more employers or employees who are or will be covered by the award.

The miscellaneous modern award

             (4)  The miscellaneous modern award is the modern award that is expressed to cover employees who are not covered by any other modern award.

164  Special criteria for revoking modern awards

                   FWA must not make a determination revoking a modern award unless FWA is satisfied that:

                     (a)  the award is obsolete or no longer capable of operating; or

                     (b)  all the employees covered by the award are covered by a different modern award (other than the miscellaneous modern award) that is appropriate for them, or will be so covered when the revocation comes into operation.

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

Determinations come into operation on specified day

             (1)  A determination under this Part that varies a modern award (other than a determination that sets, varies or revokes modern award minimum wages) comes into operation on the day specified in the determination.

Note 1:       For when a modern award, or a revocation of a modern award, comes into operation, see section 49.

Note:          For when a determination under this Part setting, varying or revoking modern award minimum wages comes into operation, see section 166.

             (2)  The specified day must not be earlier than the day on which the determination is made, unless:

                     (a)  the determination is made under section 160 (which deals with variation to remove ambiguities or correct errors); and

                     (b)  FWA is satisfied that there are exceptional circumstances that justify specifying an earlier day.

Determinations take effect from first full pay period

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

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

Determinations generally come into operation on 1 July

             (1)  A determination under this Part that sets, varies or revokes modern award minimum wages comes into operation:

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

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

Note:          Modern award minimum wages can also be set, varied or revoked by determinations made in annual wage reviews. For when those determinations come into operation, see section 286.

FWA may specify another day of operation if appropriate

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

             (3)  The specified day must not be earlier than the day on which the determination is made, unless:

                     (a)  the determination is made under section 160 (which deals with variation to remove ambiguities or correct errors); and

                     (b)  FWA is satisfied that there are exceptional circumstances that justify specifying an earlier day.

Determinations may take effect in stages

             (4)  FWA may specify in the determination that changes to modern award minimum wages made by the determination take effect in stages if FWA is satisfied that it is appropriate to do so.

Determinations take effect from first full pay period

             (5)  A change to modern award minimum wages made by the determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after:

                     (a)  unless paragraph (b) applies—the day the determination comes into operation; or

                     (b)  if the determination takes effect in stages under subsection (4)—the day the change to modern award minimum wages is specified to take effect.

167  Special rules relating to retrospective variations of awards

Application of this section

             (1)  This section applies if a determination varying a modern award has a retrospective effect because it comes into operation under subsection 165(2) or 166(3) on a day before the day on which the determination is made.

No effect on past approval of enterprise agreement or variation

             (2)  If, before the determination was made, an enterprise agreement or a variation of an enterprise agreement was approved by FWA, the validity of the approval is not affected by the retrospective effect of the determination.

No creation of liability to pay pecuniary penalty for past conduct

             (3)  If:

                     (a)  a person engaged in conduct before the determination was made; and

                     (b)  but for the retrospective effect of the determination, the conduct would not have contravened a term of the modern award or an enterprise agreement;

a court must not order the person to pay a pecuniary penalty under Division 2 of Part 4‑1 in relation to the conduct, on the grounds that the conduct contravened a term of the modern award or enterprise agreement.

Note 1:       This subsection does not affect the powers of a court to make other kinds of orders under Division 2 of Part 4‑1.

Note 2:       A determination varying a modern award could result in a contravention of a term of an enterprise agreement because of the effect of subsection 206(2).

168  Varied modern award must be published

             (1)  If FWA makes a determination under this Part or Part 2‑6 (which deals with minimum wages) varying a modern award, FWA must publish the award as varied as soon as practicable.

             (2)  The publication may be on FWA’s website or by any other means that FWA considers appropriate.


 

Part 2‑4Enterprise agreements

Division 1Introduction

169  Guide to this Part

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

Division 2 deals with the making of enterprise agreements about permitted matters. An enterprise agreement (including a greenfields agreement) may be a single‑enterprise agreement or a multi‑enterprise agreement.

Division 3 deals with the right of employees to be represented by a bargaining representative during bargaining for a proposed enterprise agreement. It also sets out the persons who are bargaining representatives for such agreements.

Subdivision A of Division 4 deals with the approval of proposed enterprise agreements by employees and sets out when an enterprise agreement is made.

Subdivision B of Division 4 deals with the approval of enterprise agreements by FWA. The remaining Subdivisions of the Division deal with certain approval requirements, including in relation to genuine agreement by employees and the better off overall test.

Division 5 deals with the mandatory terms of enterprise agreements relating to individual flexibility arrangements and consultation requirements.

Division 6 deals with the base rate of pay under an enterprise agreement.

Division 7 deals with the variation and termination of enterprise agreements.

Division 8 provides for FWA to facilitate bargaining by making bargaining orders, serious breach declarations, majority support determinations and scope orders. It also permits bargaining representatives to apply for FWA to deal with bargaining disputes.

Division 9 provides for the making of low‑paid authorisations in relation to proposed multi‑enterprise agreements. The effect of such an authorisation is that specified employers are subject to certain rules that would not otherwise apply (for example, bargaining orders that would not usually be available for multi‑enterprise agreements will be available). It also permits FWA to assist the bargaining representatives for such agreements.

Division 10 deals with single interest employer authorisations. The effect of such an authorisation is that the employers specified in the authorisation are single interest employers in relation to a proposed enterprise agreement.

Division 11 deals with other matters relating to enterprise agreements.

170  Meanings of employee and employer

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

171  Objects of this Part

                   The objects of this Part are:

                     (a)  to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

                     (b)  to enable FWA to facilitate good faith bargaining and the making of enterprise agreements, including through:

                              (i)  making bargaining orders; and

                             (ii)  dealing with disputes where the bargaining representatives request assistance; and

                            (iii)  ensuring that applications to FWA for approval of enterprise agreements are dealt with without delay.


 

Division 2Employers and employees may make enterprise agreements

172  Making an enterprise agreement

Enterprise agreements may be made about permitted matters

             (1)  An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:

                     (a)  matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;

                     (b)  matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement;

                     (c)  deductions from wages for any purpose authorised by an employee who will be covered by the agreement;

                     (d)  how the agreement will operate.

Note 1:       For when an enterprise agreement covers an employer, employee or employee organisation, see section 53.

Note 2:       An employee organisation that was a bargaining representative for a proposed enterprise agreement will be covered by the agreement if the organisation notifies FWA under section 183 that it wants to be covered.

Single‑enterprise agreements

             (2)  An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single‑enterprise agreement):

                     (a)  with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

                     (b)  with one or more relevant employee organisations if:

                              (i)  the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and

                             (ii)  the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise.

Note:          The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).

Multi‑enterprise agreements

             (3)  Two or more employers that are not all single interest employers may make an enterprise agreement (a multi‑enterprise agreement):

                     (a)  with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

                     (b)  with one or more relevant employee organisations if:

                              (i)  the agreement relates to a genuine new enterprise that the employers are establishing or propose to establish; and

                             (ii)  the employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise.

Note:          The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).

Greenfields agreements

             (4)  A single‑enterprise agreement made as referred to in paragraph (2)(b), or a multi‑enterprise agreement made as referred to in paragraph (3)(b), is a greenfields agreement.

Single interest employers

             (5)  Two or more employers are single interest employers if:

                     (a)  the employers are engaged in a joint venture or common enterprise; or

                     (b)  the employers are related bodies corporate; or

                     (c)  the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.


 

Division 3Bargaining and representation during bargaining

173  Notice of employee representational rights

Employer to notify each employee of representational rights

             (1)  An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

                     (a)  will be covered by the agreement; and

                     (b)  is employed at the notification time for the agreement.

Note:          For the content of the notice, see section 174.

Notification time

             (2)  The notification time for a proposed enterprise agreement is the time when:

                     (a)  the employer agrees to bargain, or initiates bargaining, for the agreement; or

                     (b)  a majority support determination in relation to the agreement comes into operation; or

                     (c)  a scope order in relation to the agreement comes into operation; or

                     (d)  a low‑paid authorisation in relation to the agreement that specifies the employer comes into operation.

Note:          The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).

When notice must be given

             (3)  The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.

Notice need not be given in certain circumstances

             (4)  An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.

How notices are given

             (5)  The regulations may prescribe how notices under subsection (1) may be given.

174  Content of notice of employee representational rights

Application of this section

             (1)  This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee.

Content of notice—employee may appoint a bargaining representative

             (2)  The notice must specify that the employee may appoint a bargaining representative to represent the employee:

                     (a)  in bargaining for the agreement; and

                     (b)  in a matter before FWA that relates to bargaining for the agreement.

Content of notice—default bargaining representative

             (3)  If subsection (4) does not apply, the notice must explain that:

                     (a)  if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and

                     (b)  the employee does not appoint another person as his or her bargaining representative for the agreement;

the organisation will be the bargaining representative of the employee.

Content of notice—bargaining representative if a low‑paid authorisation is in operation

             (4)  If a low‑paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).

Content of notice—copy of instrument of appointment to be given

             (5)  The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).

175  Relevant employee organisations to be given notice of employer’s intention to make greenfields agreements etc.

Notice of intention to make greenfields agreement

             (1)  An employer that agrees to bargain, or initiates bargaining, for a proposed greenfields agreement must take all reasonable steps to give notice of its intention to make the agreement to each employee organisation that is a relevant employee organisation in relation to the agreement.

Note:          The agreement cannot be made until 14 days after the last notice is given (see subsection 182(4)).

             (2)  Subsection (1) does not apply if the employer does not know, or could not reasonably be expected to know, that the employee organisation is a relevant employee organisation in relation to the agreement.

Content of notice

             (3)  The notice must state that the relevant employee organisation is a bargaining representative for the agreement.

When notice must be given

             (4)  The employer must give the notice, as soon as practicable, and not later than 14 days, after the obligation to give the notice first arises.

Copy of notice to be given to FWA

             (5)  The employer must give a copy of the notice to FWA at the same time as, or as soon as practicable after, the notice is given to the relevant employee organisation.

How notices are given

             (6)  The regulations may prescribe how notices under subsection (1) may be given.

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

Bargaining representatives

             (1)  The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

                     (a)  an employer that will be covered by the agreement is a bargaining representative for the agreement;

                     (b)  an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

                              (i)  the employee is a member of the organisation; and

                             (ii)  in the case where the agreement is a multi‑enterprise agreement in relation to which a low‑paid authorisation is in operation—the organisation applied for the authorisation;

                            unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement; or

                     (c)  a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

                     (d)  a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.

Bargaining representatives for a proposed multi‑enterprise agreement if a low‑paid authorisation is in operation

             (2)  If:

                     (a)  the proposed enterprise agreement is a multi‑enterprise agreement in relation to which a low‑paid authorisation is in operation; and

                     (b)  an employee organisation applied for the authorisation; and

                     (c)  but for this subsection, the organisation would not be a bargaining representative of an employee who will be covered by the agreement;

the organisation is taken to be a bargaining representative of such an employee unless:

                     (d)  the employee is a member of another employee organisation that also applied for the authorisation; or

                     (e)  the employee has appointed another person under paragraph (1)(c) as his or her bargaining representative for the agreement.

Requirement relating to employee organisations

             (3)  Despite subsections (1) and (2), an employee organisation cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.

Employee may appoint himself or herself

             (4)  To avoid doubt, an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.

Note:          Section 228 sets out the good faith bargaining requirements. Applications may be made for bargaining orders that require bargaining representatives to meet the good faith bargaining requirements (see section 229).

177  Bargaining representatives for proposed greenfields agreements

                   The following paragraphs set out the persons who are bargaining representatives for a proposed greenfields agreement:

                     (a)  an employer that will be covered by the agreement is a bargaining representative for the agreement;

                     (b)  a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement;

                     (c)  a relevant employee organisation in relation to the agreement is a bargaining representative for the agreement.

Note:          Section 228 sets out the good faith bargaining requirements. Applications may be made for bargaining orders that require bargaining representatives to meet the good faith bargaining requirements (see section 229).

178  Appointment of bargaining representatives—other matters

When appointment of a bargaining representative comes into force

             (1)  An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment.

Copies of instruments of appointment must be given

             (2)  A copy of an instrument of appointment of a bargaining representative for a proposed enterprise agreement must:

                     (a)  for an appointment made by an employee who will be covered by the agreement—be given to the employee’s employer; and

                     (b)  for an appointment made by an employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement—be given, on request, to a bargaining representative of an employee who will be covered by the agreement; and

                     (c)  for an appointment made by an employer that will be covered by a proposed greenfields agreement—be given, on request, to a relevant employee organisation that is a bargaining representative for the agreement.

Regulations may prescribe matters relating to qualifications and appointment

             (3)  The regulations may prescribe matters relating to the qualifications or appointment of bargaining representatives.

179  Employer etc. must not refuse to recognise or bargain with other bargaining representatives

             (1)  An employer that will be covered by a proposed enterprise agreement, or a bargaining representative of such an employer, must not refuse to recognise or bargain with another bargaining representative for the agreement.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

             (2)  Subsection (1) does not apply if the employer or the bargaining representative does not know, or could not reasonably be expected to know, that the other person is a bargaining representative for the agreement.


 

Division 4Approval of enterprise agreements

Subdivision APre‑approval steps and applications for FWA approval

180  Employees must be given a copy of a proposed enterprise agreement etc.

Pre‑approval requirements

             (1)  Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.

Employees must be given copy of the agreement etc.

             (2)  The employer must take all reasonable steps to ensure that:

                     (a)  during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

                              (i)  the written text of the agreement;

                             (ii)  any other material incorporated by reference in the agreement; or

                     (b)  the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.

             (3)  The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

                     (a)  the time and place at which the vote will occur;

                     (b)  the voting method that will be used.

             (4)  The access period for a proposed enterprise agreement is the 7‑day period ending immediately before the start of the voting process referred to in subsection 181(1).

Terms of the agreement must be explained to employees etc.

             (5)  The employer must take all reasonable steps to ensure that:

                     (a)  the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

                     (b)  the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

             (6)  Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:

                     (a)  employees from culturally and linguistically diverse backgrounds;

                     (b)  young employees;

                     (c)  employees who did not have a bargaining representative for the agreement.

181  Employers may request employees to approve a proposed enterprise agreement

             (1)  An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

             (2)  The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

             (3)  Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

182  When an enterprise agreement is made

Single‑enterprise agreement that is not a greenfields agreement

             (1)  If the employees of the employer, or each employer, that will be covered by a proposed single‑enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.

Multi‑enterprise agreement that is not a greenfields agreement

             (2)  If:

                     (a)  a proposed enterprise agreement is a multi‑enterprise agreement; and

                     (b)  the employees of each of the employers that will be covered by the agreement have been asked to approve the agreement under subsection 181(1); and

                     (c)  those employees have voted on whether or not to approve the agreement; and

                     (d)  a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement;

the agreement is made immediately after the end of the voting process referred to in subsection 181(1).

Greenfields agreement

             (3)  A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that will be covered by the agreement.

             (4)  A greenfields agreement is not made unless the agreement is signed as referred to in subsection (3) at least 14 days after the day on which the last notice under subsection 175(1) (which deals with giving notice of the intention to make a greenfields agreement etc.) in relation to the agreement is given.

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

             (1)  After an enterprise agreement that is not a greenfields agreement is made, an employee organisation that was a bargaining representative for the proposed enterprise agreement concerned may give FWA a written notice stating that the organisation wants the enterprise agreement to cover it.

             (2)  The notice must be given to FWA, and a copy given to each employer covered by the enterprise agreement, before FWA approves the agreement.

Note:          FWA must note in its decision to approve the enterprise agreement that the agreement covers the employee organisation (see subsection 201(2)).

184  Multi‑enterprise agreement to be varied if not all employees approve the agreement

Application of this section

             (1)  This section applies if:

                     (a)  a multi‑enterprise agreement is made; and

                     (b)  the agreement was not approved by the employees of all of the employers that made a request under subsection 181(1) in relation to the agreement.

Variation of agreement

             (2)  Before a bargaining representative applies under section 185 for approval of the agreement, the bargaining representative must vary the agreement so that the agreement is expressed to cover only the following:

                     (a)  each employer whose employees approved the agreement;

                     (b)  the employees of each of those employers.

             (3)  The bargaining representative who varies the agreement as referred to in subsection (2) must give written notice of the variation to all the other bargaining representatives for the agreement.

             (4)  The notice must specify the employers and employees that the agreement as varied covers.

             (5)  Subsection (3) does not require the bargaining representative to give a notice to a person if the bargaining representative does not know, or could not reasonably be expected to know, that the person is a bargaining representative for the agreement.

185  Bargaining representative must apply for FWA approval of an enterprise agreement

Application for approval

             (1)  If an enterprise agreement is made, a bargaining representative for the agreement must apply to FWA for approval of the agreement.

Material to accompany the application

             (2)  The application must be accompanied by:

                     (a)  a signed copy of the agreement; and

                     (b)  any declarations that are required by the procedural rules to accompany the application.

When the application must be made

             (3)  If the agreement is not a greenfields agreement, the application must be made:

                     (a)  within 14 days after the agreement is made; or

                     (b)  if in all the circumstances FWA considers it fair to extend that period—within such further period as FWA allows.

             (4)  If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.

Signature requirements

             (5)  The regulations may prescribe requirements relating to the signing of enterprise agreements.

Subdivision BApproval of enterprise agreements by FWA

186  When FWA must approve an enterprise agreement—general requirements

Basic rule

             (1)  If an application for the approval of an enterprise agreement is made under section 185, FWA must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note:          FWA may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.

             (2)  FWA must be satisfied that:

                     (a)  if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and

                     (b)  if the agreement is a multi‑enterprise agreement:

                              (i)  the agreement has been genuinely agreed to by each employer covered by the agreement; and

                             (ii)  no person coerced, or threatened to coerce, any of the employers to make the agreement; and

                     (c)  the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

                     (d)  the agreement passes the better off overall test.

Note 1:       For when an enterprise agreement has been genuinely agreed to by employees, see section 188.

Note 2:       FWA may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).

Note 3:       The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).

Requirement that the group of employees covered by the agreement is fairly chosen

             (3)  If:

                     (a)  the agreement does not cover all the employees of the employer or employers covered by the agreement; and

                     (b)  the group of employees covered by the agreement is not geographically, operationally or organisationally distinct;

FWA must be satisfied that the group was fairly chosen.

Requirement that there be no unlawful terms

             (4)  FWA must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).

Requirement for a nominal expiry date etc.

             (5)  FWA must be satisfied that:

                     (a)  the agreement specifies a date as its nominal expiry date; and

                     (b)  the date will not be more than 4 years after the day on which FWA approves the agreement.

Requirement for a term about settling disputes

             (6)  FWA must be satisfied that the agreement includes a term:

                     (a)  that provides a procedure that requires or allows FWA, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

                              (i)  about any matters arising under the agreement; and

                             (ii)  in relation to the National Employment Standards; and

                     (b)  that allows for the representation of employees covered by the agreement for the purposes of that procedure.

Note:          FWA or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).

187  When FWA must approve an enterprise agreement—additional requirements

Additional requirements

             (1)  This section sets out additional requirements that must be met before FWA approves an enterprise agreement under section 186.

Requirement that approval not be inconsistent with good faith bargaining etc.

             (2)  FWA must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.

Requirement relating to notice of variation of agreement

             (3)  If a bargaining representative is required to vary the agreement as referred to in subsection 184(2), FWA must be satisfied that the bargaining representative has complied with that subsection and subsection 184(3) (which deals with giving notice of the variation).

Requirements relating to particular kinds of employees

             (4)  FWA must be satisfied as referred to in any provisions of Subdivision E of this Division that apply in relation to the agreement.

Note:          Subdivision E of this Division deals with approval requirements relating to particular kinds of employees.

188  When employees have genuinely agreed to an enterprise agreement

                   An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:

                     (a)  the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

                              (i)  subsections 180(2), (3) and (5) (which deal with pre‑approval steps);

                             (ii)  subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

                     (b)  the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

                     (c)  there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

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

Application of this section

             (1)  This section applies if:

                     (a)  FWA is not required to approve an enterprise agreement under section 186; and

                     (b)  the only reason for this is that FWA is not satisfied that the agreement passes the better off overall test.

Approval of agreement if not contrary to the public interest

             (2)  FWA may approve the agreement under this section if FWA is satisfied that, because of exceptional circumstances, the approval of the agreement would not be contrary to the public interest.

Note:          FWA may approve an enterprise agreement under this section with undertakings (see section 190).

             (3)  An example of a case in which FWA may be satisfied of the matter referred to in subsection (2) is where the agreement is part of a reasonable strategy to deal with a short‑term crisis in, and to assist in the revival of, the enterprise of an employer covered by the agreement.

Nominal expiry date

             (4)  The nominal expiry date of an enterprise agreement approved by FWA under this section is the earlier of the following:

                     (a)  the date specified in the agreement as the nominal expiry date of the agreement;

                     (b)  2 years after the day on which FWA approved the agreement.

190  FWA may approve an enterprise agreement with undertakings

Application of this section

             (1)  This section applies if:

                     (a)  an application for the approval of an enterprise agreement has been made under section 185; and

                     (b)  FWA has a concern that the agreement does not meet the requirements set out in sections 186 and 187.

Approval of agreement with undertakings

             (2)  FWA may approve the agreement under section 186 if FWA is satisfied that an undertaking accepted by FWA under subsection (3) of this section meets the concern.

Undertakings

             (3)  FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:

                     (a)  cause financial detriment to any employee covered by the agreement; or

                     (b)  result in substantial changes to the agreement.

FWA must seek views of bargaining representatives

             (4)  FWA must not accept an undertaking under subsection (3) unless FWA has sought the views of each person who FWA knows is a bargaining representative for the agreement.

Signature requirements

             (5)  The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.

191  Effect of undertakings

             (1)  If:

                     (a)  FWA approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement; and

                     (b)  the agreement covers a single employer;

the undertaking is taken to be a term of the agreement, as the agreement applies to the employer.

             (2)  If:

                     (a)  FWA approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement; and

                     (b)  the agreement covers 2 or more employers;

the undertaking is taken to be a term of the agreement, as the agreement applies to each employer that gave the undertaking.

192  When FWA may refuse to approve an enterprise agreement

             (1)  If an application for the approval of an enterprise agreement is made under section 185, FWA may refuse to approve the agreement if FWA considers that compliance with the terms of the agreement may result in:

                     (a)  a person committing an offence against a law of the Commonwealth; or

                     (b)  a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth.

             (2)  Subsection (1) has effect despite sections 186 and 189 (which deal with the approval of enterprise agreements).

             (3)  If FWA refuses to approve an enterprise agreement under this section, FWA may refer the agreement to any person or body FWA considers appropriate.

Subdivision CBetter off overall test

193  Passing the better off overall test

When a non‑greenfields agreement passes the better off overall test

             (1)  An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if FWA is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

FWA must disregard individual flexibility arrangement

             (2)  If, under the flexibility term in the relevant modern award, an individual flexibility arrangement has been agreed to by an award covered employee and his or her employer, FWA must disregard the individual flexibility arrangement for the purposes of determining whether the agreement passes the better off overall test.

When a greenfields agreement passes the better off overall test

             (3)  A greenfields agreement passes the better off overall test under this section if FWA is satisfied, as at the test time, that the prospective award covered employees for the agreement would be better off overall if the agreement applied to the employees than if the relevant modern award applied to the employees.

Award covered employee

             (4)  An award covered employee for an enterprise agreement is an employee who:

                     (a)  is covered by the agreement; and

                     (b)  at the test time, is covered by a modern award (the relevant modern award) that:

                              (i)  is in operation; and

                             (ii)  covers the employee in relation to the work that he or she is to perform under the agreement; and

                            (iii)  covers his or her employer.

Prospective award covered employee

             (5)  A prospective award covered employee for an enterprise agreement is a person who, if he or she were an employee at the test time of an employer covered by the agreement:

                     (a)  would be covered by the agreement; and

                     (b)  would be covered by a modern award (the relevant modern award) that:

                              (i)  is in operation; and

                             (ii)  would cover the person in relation to the work that he or she would perform under the agreement; and

                            (iii)  covers the employer.

Test time

             (6)  The test time is the time the application for approval of the agreement by FWA was made under section 185.

Subdivision DUnlawful terms

194  Meaning of unlawful term

                   A term of an enterprise agreement is an unlawful term if it is:

                     (a)  a discriminatory term; or

                     (b)  an objectionable term; or

                     (c)  if a particular employee would be protected from unfair dismissal under Part 3‑2 after completing a period of employment of at least the minimum employment period—a term that confers an entitlement or remedy in relation to a termination of the employee’s employment that is unfair (however described) before the employee has completed that period; or

                     (d)  a term that excludes the application to, or in relation to, a person of a provision of Part 3‑2 (which deals with unfair dismissal), or modifies the application of such a provision in a way that is detrimental to, or in relation to, a person; or

                     (e)  a term that is inconsistent with a provision of Part 3‑3 (which deals with industrial action); or

                      (f)  a term that provides for an entitlement:

                              (i)  to enter premises for a purpose referred to in section 481 (which deals with investigation of suspected contraventions); or

                             (ii)  to enter premises to hold discussions of a kind referred to in section 484;

                            other than in accordance with Part 3‑4 (which deals with right of entry); or

                     (g)  a term that provides for the exercise of a State or Territory OHS right other than in accordance with Part 3‑4 (which deals with right of entry).

195  Meaning of discriminatory term

Discriminatory term

             (1)  A term of an enterprise agreement is a discriminatory term to the extent that it discriminates against an employee covered by the agreement because of, or for reasons including, the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Certain terms are not discriminatory terms

             (2)  A term of an enterprise agreement does not discriminate against an employee:

                     (a)  if the reason for the discrimination is the inherent requirements of the particular position concerned; or

                     (b)  merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

                              (i)  in good faith; and

                             (ii)  to avoid injury to the religious susceptibilities of adherents of that religion or creed.

             (3)  A term of an enterprise agreement does not discriminate against an employee merely because it provides for wages 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.

Subdivision EApproval requirements relating to particular kinds of employees

196  Shiftworkers

Application of this section

             (1)  This section applies if:

                     (a)  an employee is covered by an enterprise agreement; and

                     (b)  a modern award that is in operation and covers the employee defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

Shiftworkers and the National Employment Standards

             (2)  FWA must be satisfied that the agreement defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

Note:          Section 87 provides an employee with an entitlement to 5 weeks of paid annual leave if an enterprise agreement that applies to the employee defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

197  Pieceworkers—enterprise agreement includes pieceworker term

Application of this section

             (1)  This section applies if:

                     (a)  an enterprise agreement that covers an employee includes a term that defines or describes the employee as a pieceworker; and

                     (b)  a modern award that is in operation and covers the employee does not include such a term.

No detriment test

             (2)  FWA must be satisfied that the effect of including such a term in the agreement is not detrimental to the employee in relation to the entitlements of the employee under the National Employment Standards.

198  Pieceworkers—enterprise agreement does not include a pieceworker term

Application of this section

             (1)  This section applies if:

                     (a)  an enterprise agreement that covers an employee does not include a term that defines or describes the employee as a pieceworker; and

                     (b)  a modern award that is in operation and covers the employee includes such a term.

No detriment test

             (2)  FWA must be satisfied that the effect of not including such a term in the agreement is not detrimental to the employee in relation to the entitlements of the employee under the National Employment Standards.

199  School‑based apprentices and school‑based trainees

Application of this section

             (1)  This section applies if:

                     (a)  an employee who is a school‑based apprentice or a school‑based trainee is covered by an enterprise agreement; and

                     (b)  the agreement provides for the employee to be paid loadings (the agreement loadings) in lieu of any of the following:

                              (i)  paid annual leave;

                             (ii)  paid personal/carer’s leave;

                            (iii)  paid absence under Division 10 of Part 2‑2 (which deals with public holidays); and

                     (c)  a modern award that is in operation and covers the employee provides for the employee to be paid loadings (the award loadings) in lieu of leave or absence of that kind.

No detriment test

             (2)  FWA must be satisfied that the amount or rate (as the case may be) of the agreement loadings is not detrimental to the employee when compared to the amount or rate of the award loadings.

200  Outworkers

Application of this section

             (1)  This section applies if:

                     (a)  an employee who is an outworker is covered by an enterprise agreement; and

                     (b)  a modern award that is in operation and covers the employee includes outworker terms.

Agreement must include outworker terms etc.

             (2)  FWA must be satisfied that:

                     (a)  the agreement includes terms of that kind; and

                     (b)  those terms of the agreement are not detrimental to the employee when compared to the outworker terms of the modern award.

Subdivision FOther matters

201  Approval decision to note certain matters

Approval decision to note model terms included in an enterprise agreement

             (1)  If:

                     (a)  FWA approves an enterprise agreement; and

                     (b)  either or both of the following apply:

                              (i)  the model flexibility term is taken, under subsection 202(4), to be a term of the agreement;

                             (ii)  the model consultation term is taken, under subsection 205(2), to be a term of the agreement;

FWA must note in its decision to approve the agreement that those terms are so included in the agreement.

Approval decision to note that an enterprise agreement covers an employee organisation

             (2)  If:

                     (a)  an employee organisation has given a notice under subsection 183(1) that the organisation wants the enterprise agreement to cover it; and

                     (b)  FWA approves the agreement;

FWA must note in its decision to approve the agreement that the agreement covers the organisation.

Approval decision to note undertakings

             (3)  If FWA approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement, FWA must note in its decision to approve the agreement that the undertaking is taken to be a term of the agreement.


 

Division 5Mandatory terms of enterprise agreements

202  Enterprise agreements to include a flexibility term etc.

Flexibility term must be included in an enterprise agreement

             (1)  An enterprise agreement must include a term (a flexibility term) that:

                     (a)  enables an employee and his or her employer to agree to an arrangement (an individual flexibility arrangement) varying the effect of the agreement in relation to the employee and the employer, in order to meet the genuine needs of the employee and employer; and

                     (b)  complies with section 203.

Effect of an individual flexibility arrangement

             (2)  If an employee and employer agree to an individual flexibility arrangement under a flexibility term in an enterprise agreement:

                     (a)  the agreement has effect in relation to the employee and the employer as if it were varied by the arrangement; and

                     (b)  the arrangement is taken to be a term of the agreement.

             (3)  To avoid doubt, the individual flexibility arrangement:

                     (a)  does not change the effect the agreement has in relation to the employer and any other employee; and

                     (b)  does not have any effect other than as a term of the agreement.

Model flexibility term

             (4)  If an enterprise agreement does not include a flexibility term, the model flexibility term is taken to be a term of the agreement.

             (5)  The regulations must prescribe the model flexibility term for enterprise agreements.

203  Requirements to be met by a flexibility term

Flexibility term must meet requirements

             (1)  A flexibility term in an enterprise agreement must meet the requirements set out in this section.

Requirements relating to content

             (2)  The flexibility term must:

                     (a)  set out the terms of the enterprise agreement the effect of which may be varied by an individual flexibility arrangement agreed to under the flexibility term; and

                     (b)  require the employer to ensure that any individual flexibility arrangement agreed to under the flexibility term:

                              (i)  must be about matters that would be permitted matters if the arrangement were an enterprise agreement; and

                             (ii)  must not include a term that would be an unlawful term if the arrangement were an enterprise agreement.

Requirement for genuine agreement

             (3)  The flexibility term must require that any individual flexibility arrangement is genuinely agreed to by the employer and the employee.

Requirement that the employee be better off overall

             (4)  The flexibility term must require the employer to ensure that any individual flexibility arrangement agreed to under the term must result in the employee being better off overall than the employee would have been if no individual flexibility arrangement were agreed to.

Requirement relating to approval or consent of another person

             (5)  Except as required by subparagraph (7)(a)(ii), the employer must ensure that the flexibility term does not require that any individual flexibility arrangement agreed to by an employer and employee under the term be approved, or consented to, by another person.

Requirement relating to termination of individual flexibility arrangements

             (6)  The flexibility term must require the employer to ensure that any individual flexibility arrangement agreed to under the term must be able to be terminated:

                     (a)  by either the employee, or the employer, giving written notice of not more than 28 days; or

                     (b)  by the employee and the employer at any time if they agree, in writing, to the termination.

Other requirements

             (7)  The flexibility term must require the employer to ensure that:

                     (a)  any individual flexibility arrangement agreed to under the term must be in writing and signed:

                              (i)  in all cases—by the employee and the employer; and

                             (ii)  if the employee is under 18—by a parent or guardian of the employee; and

                     (b)  a copy of any individual flexibility arrangement agreed to under the term must be given to the employee within 14 days after it is agreed to.

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

Application of this section

             (1)  This section applies if:

                     (a)  an employee and employer agree to an arrangement that purports to be an individual flexibility arrangement under a flexibility term in an enterprise agreement; and

                     (b)  the arrangement does not meet a requirement set out in section 203.

Note:          A failure to meet such a requirement may be a contravention of a provision of Part 3‑1 (which deals with general protections).

Arrangement has effect as if it were an individual flexibility arrangement

             (2)  The arrangement has effect as if it were an individual flexibility arrangement.

Employer contravenes flexibility term in specified circumstances

             (3)  If section 203 requires the employer to ensure that the arrangement meets the requirement, the employer contravenes the flexibility term of the agreement.

Requirement relating to termination of arrangement

             (4)  If the arrangement does not provide that the arrangement is able to be terminated:

                     (a)  by either the employee, or the employer, giving written notice of not more than 28 days; or

                     (b)  by the employee and the employer at any time if they agree, in writing, to the termination;

the arrangement is taken to provide that the arrangement is able to be so terminated.

205  Enterprise agreements to include a consultation term etc.

Consultation term must be included in an enterprise agreement

             (1)  An enterprise agreement must include a term (a consultation term) that:

                     (a)  requires the employer or employers to which the agreement applies to consult the employees to whom the agreement applies about major workplace changes that are likely to have a significant effect on the employees; and

                     (b)  allows for the representation of those employees for the purposes of that consultation.

Model consultation term

             (2)  If an enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement.

             (3)  The regulations must prescribe the model consultation term for enterprise agreements.


 

Division 6Base rate of pay under enterprise agreements

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

If an employee is covered by a modern award that is in operation

             (1)  If:

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

                     (b)  a modern award that is in operation covers the employee;

the base rate of pay payable to the employee under the agreement (the agreement rate) must not be less than the base rate of pay that would be payable to the employee under the modern award (the award rate) if the modern award applied to the employee.

             (2)  If the agreement rate is less than the award rate, the agreement has effect in relation to the employee as if the agreement rate were equal to the award rate.

If an employer is required to pay an employee the national minimum wage etc.

             (3)  If:

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

                     (b)  the employee is not covered by a modern award that is in operation; and

                     (c)  a national minimum wage order would, but for the agreement applying to the employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;

the base rate of pay payable to the employee under the enterprise agreement (the agreement rate) must not be less than the employee’s order rate.

             (4)  If the agreement rate is less than the employee’s order rate, the agreement has effect in relation to the employee as if the agreement rate were equal to the employee’s order rate.


 

Division 7Variation and termination of enterprise agreements

Subdivision AVariation of enterprise agreements by employers and employees

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

Variation by employers and employees

             (1)  The following may jointly make a variation of an enterprise agreement:

                     (a)  if the agreement covers a single employer—the employer and:

                              (i)  the employees employed at the time who are covered by the agreement; and

                             (ii)  the employees employed at the time who will be covered by the agreement if the variation is approved by FWA;

                     (b)  if the agreement covers 2 or more employers—all of those employers and:

                              (i)  the employees employed at the time who are covered by the agreement; and

                             (ii)  the employees employed at the time who will be covered by the agreement if the variation is approved by FWA.

Note:          For when a variation of an enterprise agreement is made, see section 209.

             (2)  The employees referred to in paragraphs (1)(a) and (b) are the affected employees for the variation.

Variation has no effect unless approved by FWA

             (3)  A variation of an enterprise agreement has no effect unless it is approved by FWA under section 211.

Limitation—greenfields agreement

             (4)  Subsection (1) applies to a greenfields agreement only if one or more of the persons who will be necessary for the normal conduct of the enterprise concerned have been employed.

Exception—enterprise agreements approved if not contrary to the public interest

             (5)  Subsection (1) does not apply to an enterprise agreement that was approved under section 189 (which deals with the approval of agreements that do not pass the better off overall test, if approval is not contrary to the public interest).

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

             (1)  An employer covered by an enterprise agreement may request the affected employees for a proposed variation of the agreement to approve the proposed variation by voting for it.

             (2)  Without limiting subsection (1), the employer may request that the affected employees vote by ballot or by an electronic method.

209  When a variation of an enterprise agreement is made

Single‑enterprise agreement

             (1)  If the affected employees of an employer, or each employer, covered by a single‑enterprise agreement have been asked to approve a proposed variation under subsection 208(1), the variation is made when a majority of the affected employees who cast a valid vote approve the variation.

Multi‑enterprise agreement

             (2)  If the affected employees of each employer covered by a multi‑enterprise agreement have been asked to approve a proposed variation under subsection 208(1), the variation is made when a majority of the affected employees of each individual employer who cast a valid vote have approved the variation.

210  Application for FWA approval of a variation of an enterprise agreement

Application for approval

             (1)  If a variation of an enterprise agreement has been made, a person covered by the agreement must apply to FWA for approval of the variation.

Material to accompany the application

             (2)  The application must be accompanied by:

                     (a)  a signed copy of the variation; and

                     (b)  a copy of the agreement as proposed to be varied; and

                     (c)  any declarations that are required by the procedural rules to accompany the application.

When the application must be made

             (3)  The application must be made:

                     (a)  within 14 days after the variation is made; or

                     (b)  if in all the circumstances FWA considers it fair to extend that period—within such further period as FWA allows.

Signature requirements

             (4)  The regulations may prescribe requirements relating to the signing of variations of enterprise agreements.

211  When FWA must approve a variation of an enterprise agreement

Approval of variation by FWA

             (1)  If an application for the approval of a variation of an enterprise agreement is made under section 210, FWA must approve the variation if:

                     (a)  FWA is satisfied that had an application been made under section 185 for the approval of the agreement as proposed to be varied, FWA would have been required to approve the agreement under section 186; and

                     (b)  FWA is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which FWA approved the agreement; and

                     (c)  FWA considers it appropriate to approve the variation taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

Note:          FWA may approve a variation under this section with undertakings (see section 212).

Modification of approval requirements

             (2)  For the purposes of FWA deciding whether it is satisfied of the matter referred to in paragraph (1)(a), FWA must:

                     (a)  take into account subsections (3) and (4) and any regulations made for the purposes of subsection (6); and

                     (b)  comply with subsection (5); and

                     (c)  disregard sections 190 and 191 (which deal with the approval of enterprise agreements with undertakings).

             (3)  The following provisions:

                     (a)  section 180 (which deals with pre‑approval steps);

                     (b)  subsection 186(2) (which deals with FWA approval of enterprise agreements);

                     (c)  section 188 (which deals with genuine agreement);

have effect as if:

                     (d)  references in those provisions to the proposed enterprise agreement, or the enterprise agreement, were references to the proposed variation, or the variation, of the enterprise agreement (as the case may be); and

                     (e)  references in those provisions to the employees employed at the time who will be covered by the proposed enterprise agreement, or the employees covered by the enterprise agreement, were references to the affected employees for the variation; and

                      (f)  references in section 180 to subsection 181(1) were references to subsection 208(1); and

                     (g)  the words “if the agreement is not a greenfields
agreement—” in paragraph 186(2)(a) were omitted; and

                     (h)  paragraph 186(2)(b) and subparagraph 188(a)(ii) were omitted; and

                      (j)  the words “182(1) or (2)” in paragraph 188(b) were omitted and the words “209(1) or (2)” were substituted.

             (4)  Section 193 (which deals with passing the better off overall test) has effect as if:

                     (a)  the words “that is not a greenfields agreement” in subsection (1) were omitted; and

                     (b)  subsection (3) were omitted; and

                     (c)  the words “the agreement” in subsection (6) were omitted and the words “the variation of the enterprise agreement” were substituted; and

                     (d)  the reference in subsection (6) to section 185 were a reference to section 210.

             (5)  For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, FWA must disregard any individual flexibility arrangement that has been agreed to by an award covered employee and his or her employer under the flexibility term in the agreement.

Regulations may prescribe additional modifications

             (6)  The regulations may provide that, for the purposes of FWA deciding whether it is satisfied of the matter referred to in paragraph (1)(a), specified provisions of this Part have effect with such modifications as are prescribed by the regulations.

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

Application of this section

             (1)  This section applies if:

                     (a)  an application for the approval of a variation of an enterprise agreement has been made under section 210; and

                     (b)  FWA has a concern that the variation does not meet the requirements set out in section 211.

Approval of agreement with undertakings

             (2)  FWA may approve the variation under section 211 if FWA is satisfied that an undertaking accepted by FWA under subsection (3) of this section meets the concern.

Undertakings

             (3)  FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:

                     (a)  cause financial detriment to any affected employee for the variation; or

                     (b)  result in substantial changes to the variation.

Signature requirements

             (4)  An undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.

213  Effect of undertakings

             (1)  If:

                     (a)  FWA approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation; and

                     (b)  the agreement covers a single employer;

the undertaking is taken to be a term of the agreement, as the agreement applies to the employer.

             (2)  If:

                     (a)  FWA approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation; and

                     (b)  the agreement covers 2 or more employers;

the undertaking is taken to be a term of the agreement, as the agreement applies to each employer that gave the undertaking.

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

             (1)  If an application for the approval of a variation of an enterprise agreement is made under section 210, FWA may refuse to approve the variation if FWA considers that compliance with the terms of the agreement as proposed to be varied may result in:

                     (a)  a person committing an offence against a law of the Commonwealth; or

                     (b)  a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth.

             (2)  Subsection (1) has effect despite section 211 (which deals with the approval of variations of enterprise agreements).

             (3)  If FWA refuses to approve a variation of an enterprise agreement under this section, FWA may refer the agreement as proposed to be varied to any person or body FWA considers appropriate.

215  Approval decision to note undertakings

                   If FWA approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation, FWA must note in its decision to approve the variation that the undertaking is taken to be a term of the agreement.

216  When variation comes into operation

                   If a variation of an enterprise agreement is approved under section 211, the variation operates from the day specified in the decision to approve the variation.

Subdivision BVariations of enterprise agreements where there is ambiguity, uncertainty or discrimination

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

             (1)  FWA may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

                     (a)  one or more of the employers covered by the agreement;

                     (b)  an employee covered by the agreement;

                     (c)  an employee organisation covered by the agreement.

             (2)  If FWA varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.

218  Variation of an enterprise agreement on referral by HREOC

Review of an enterprise agreement

             (1)  FWA must review an enterprise agreement if the agreement is referred to it under section 46PW of the Human Rights and Equal Opportunity Commission Act 1986 (which deals with discriminatory industrial instruments).

             (2)  The Sex Discrimination Commissioner is entitled to make submissions to FWA for consideration in the review.

Variation of an enterprise agreement

             (3)  If FWA considers that the agreement reviewed requires a person to do an act that would be unlawful under Part II of the Sex Discrimination Act 1984 (but for the fact that the act would be done in direct compliance with the agreement), FWA must vary the agreement so that it no longer requires the person to do an act that would be so unlawful.

             (4)  If the agreement is varied under subsection (3), the variation operates from the day specified in the decision to vary the agreement.

Subdivision CTermination of enterprise agreements by employers and employees

219  Employers and employees may agree to terminate an enterprise agreement

Termination by employers and employees

             (1)  The following may jointly agree to terminate an enterprise agreement:

                     (a)  if the agreement covers a single employer—the employer and the employees covered by the agreement; or

                     (b)  if the agreement covers 2 or more employers—all of the employers and the employees covered by the agreement.

Note:          For when a termination of an enterprise agreement is agreed to, see section 221.

Termination has no effect unless approved by FWA

             (2)  A termination of an enterprise agreement has no effect unless it is approved by FWA under section 223.

Limitation—greenfields agreement

             (3)  Subsection (1) applies to a greenfields agreement only if one or more of the persons who will be necessary for the normal conduct of the enterprise concerned have been employed.

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

             (1)  An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

             (2)  Before making the request, the employer must:

                     (a)  take all reasonable steps to notify the employees of the following:

                              (i)  the time and place at which the vote will occur;

                             (ii)  the voting method that will be used; and

                     (b)  give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

             (3)  Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

221  When termination of an enterprise agreement is agreed to

Single‑enterprise agreement

             (1)  If the employees of an employer, or each employer, covered by a single‑enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

Multi‑enterprise agreement

             (2)  If the employees of each employer covered by a multi‑enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees of each individual employer who cast a valid vote have approved the termination.

222  Application for FWA approval of a termination of an enterprise agreement

Application for approval

             (1)  If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to FWA for approval of the termination.

Material to accompany the application

             (2)  The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

             (3)  The application must be made:

                     (a)  within 14 days after the termination is agreed to; or

                     (b)  if in all the circumstances FWA considers it fair to extend that period—within such further period as FWA allows.

223  When FWA must approve a termination of an enterprise agreement

                   If an application for the approval of a termination of an enterprise agreement is made under section 222, FWA must approve the termination if:

                     (a)  FWA is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

                     (b)  FWA is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

                     (c)  FWA is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

                     (d)  FWA considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

224  When termination comes into operation

                   If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.

Subdivision DTermination of enterprise agreements after nominal expiry date

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

                   If an enterprise agreement has passed its nominal expiry date, any of the following may apply to FWA for the termination of the agreement:

                     (a)  one or more of the employers covered by the agreement;

                     (b)  an employee covered by the agreement;

                     (c)  an employee organisation covered by the agreement.

226  When FWA must terminate an enterprise agreement

                   If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

                     (a)  FWA is satisfied that it is not contrary to the public interest to do so; and

                     (b)  FWA considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

                              (i)  the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

                             (ii)  the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227  When termination comes into operation

                   If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.


 

Division 8FWA’s general role in facilitating bargaining

Subdivision ABargaining orders

228  Bargaining representatives must meet the good faith bargaining requirements

             (1)  The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

                     (a)  attending, and participating in, meetings at reasonable times;

                     (b)  disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

                     (c)  responding to proposals made by other bargaining representatives for the agreement in a timely manner;

                     (d)  giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;

                     (e)  refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining.

             (2)  The good faith bargaining requirements do not require:

                     (a)  a bargaining representative to make concessions during bargaining for the agreement; or

                     (b)  a bargaining representative to reach agreement on the terms that are to be included in the agreement.

229  Applications for bargaining orders

Persons who may apply for a bargaining order

             (1)  A bargaining representative for a proposed enterprise agreement may apply to FWA for an order (a bargaining order) under section 230 in relation to the agreement.

Multi‑enterprise agreements

             (2)  An application for a bargaining order must not be made in relation to a proposed multi‑enterprise agreement unless a low‑paid authorisation is in operation in relation to the agreement.

Timing of applications

             (3)  The application may only be made at whichever of the following times applies:

                     (a)  if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:

                              (i)  not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or

                             (ii)  after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;

                     (b)  otherwise—at any time.

Note:          An employer cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice of employee representational rights is given.

Prerequisites for making an application

             (4)  The bargaining representative may only apply for the bargaining order if the bargaining representative:

                     (a)  has concerns that:

                              (i)  one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

                             (ii)  the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

                     (b)  has given a written notice setting out those concerns to the relevant bargaining representatives; and

                     (c)  has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

                     (d)  considers that the relevant bargaining representatives have not responded appropriately to those concerns.

Non‑compliance with notice requirements may be permitted

             (5)  Despite subsection (4), if the bargaining representative has not complied with paragraph (4)(b) or (c), the bargaining representative may apply for the bargaining order if FWA is satisfied that it is appropriate for the application to be made in all the circumstances.

230  When FWA may make a bargaining order

Bargaining orders

             (1)  FWA may make a bargaining order under this section in relation to a proposed enterprise agreement if:

                     (a)  an application for the order has been made; and

                     (b)  the requirements of this section are met in relation to the agreement; and

                     (c)  FWA is satisfied that it is reasonable in all the circumstances to make the order.

Agreement to bargain or certain instruments in operation

             (2)  FWA must be satisfied in all cases that one of the following applies:

                     (a)  the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;

                     (b)  a majority support determination in relation to the agreement is in operation;

                     (c)  a scope order in relation to the agreement is in operation;

                     (d)  all of the employers are specified in a low‑paid authorisation that is in operation in relation to the agreement.

Good faith bargaining requirements not met

             (3)  FWA must in all cases be satisfied:

                     (a)  that:

                              (i)  one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

                             (ii)  the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

                     (b)  that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.

Bargaining order must be in accordance with section 231

             (4)  The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).

231  What a bargaining order must specify

             (1)  A bargaining order in relation to a proposed enterprise agreement must specify all or any of the following:

                     (a)  the actions to be taken by, and requirements imposed upon, the bargaining representatives for the agreement, for the purpose of ensuring that they meet the good faith bargaining requirements;

                     (b)  requirements imposed upon those bargaining representatives not to take action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining;

                     (c)  the actions to be taken by those bargaining representatives to deal with the effects of such capricious or unfair conduct;

                     (d)  such matters, actions or requirements as FWA considers appropriate, taking into account subparagraph 230(3)(a)(ii) (which deals with multiple bargaining representatives), for the purpose of promoting the efficient or fair conduct of bargaining for the agreement.

             (2)  The kinds of bargaining orders that FWA may make in relation to a proposed enterprise agreement include the following:

                     (a)  an order excluding a bargaining representative for the agreement from bargaining;

                     (b)  an order requiring some or all of the bargaining representatives of the employees who will be covered by the agreement to meet and appoint one of the bargaining representatives to represent the bargaining representatives in bargaining;

                     (c)  an order that an employer not terminate the employment of an employee, if the termination would constitute, or relate to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining);

                     (d)  an order to reinstate an employee whose employment has been terminated if the termination constitutes, or relates to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining).

             (3)  The regulations may:

                     (a)  specify the factors FWA may or must take into account in deciding whether or not to make a bargaining order for reinstatement of an employee; and

                     (b)  provide for FWA to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind.

232  Operation of a bargaining order

                   A bargaining order in relation to a proposed enterprise agreement:

                     (a)  comes into operation on the day on which it is made; and

                     (b)  ceases to be in operation at the earliest of the following:

                              (i)  if the order is revoked—the time specified in the instrument of revocation;

                             (ii)  when the agreement is approved by FWA;

                            (iii)  when a workplace determination that covers the employees that would have been covered by the agreement comes into operation;

                            (iv)  when the bargaining representatives for the agreement agree that bargaining has ceased.

233  Contravening a bargaining order

                   A person to whom a bargaining order applies must not contravene a term of the order.

Note:          This section is a civil remedy provision (see Part 4‑1).

Subdivision BSerious breach declarations

234  Applications for serious breach declarations

                   A bargaining representative for a proposed enterprise agreement may apply to FWA for a declaration (a serious breach declaration) under section 235 in relation to the agreement.

Note:          The consequence of a serious breach declaration being made in relation to the agreement is that FWA may, in certain circumstances, make a bargaining related workplace determination under section 269 in relation to the agreement.

235  When FWA may make a serious breach declaration

Serious breach declaration

             (1)  FWA may make a serious breach declaration in relation to a proposed enterprise agreement if:

                     (a)  an application for the declaration has been made; and

                     (b)  FWA is satisfied of the matters set out in subsection (2).

Matters of which FWA must be satisfied before making a serious breach declaration

             (2)  FWA must be satisfied that:

                     (a)  one or more bargaining representatives for the agreement has contravened one or more bargaining orders in relation to the agreement; and

                     (b)  the contravention or contraventions:

                              (i)  are serious and sustained; and

                             (ii)  have significantly undermined bargaining for the agreement; and

                     (c)  the other bargaining representatives for the agreement (the designated bargaining representatives) have exhausted all other reasonable alternatives to reach agreement on the terms that should be included in the agreement; and

                     (d)  agreement on the terms that should be included in the agreement will not be reached in the foreseeable future; and

                     (e)  it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement.

Factors FWA must take into account in deciding whether reasonable alternatives exhausted

             (3)  In deciding whether or not the designated bargaining representatives have exhausted all other reasonable alternatives to reach agreement on the terms that should be included in the agreement, FWA may take into account any matter FWA considers relevant, including the following:

                     (a)  whether FWA has provided assistance under section 240 in relation to the agreement;

                     (b)  whether a designated bargaining representative has applied to a court for an order under Part 4‑1 in relation to the contravention or contraventions referred to in paragraph (2)(a) of this section; and

                     (c)  any findings or orders made by the court in relation to such an application.

What declaration must specify

             (4)  The declaration must specify:

                     (a)  the proposed enterprise agreement to which the declaration relates; and

                     (b)  any other matter prescribed by the procedural rules.

Operation of declaration

             (5)  The declaration:

                     (a)  comes into operation on the day on which it is made; and

                     (b)  ceases to be in operation when each employer specified in the declaration is covered by an enterprise agreement or a workplace determination.

Subdivision CMajority support determinations and scope orders

236  Majority support determinations

             (1)  A bargaining representative of an employee who will be covered by a proposed single‑enterprise agreement may apply to FWA for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

             (2)  The application must specify:

                     (a)  the employer, or employers, that will be covered by the agreement; and

                     (b)  the employees who will be covered by the agreement.

237  When FWA must make a majority support determination

Majority support determination

             (1)  FWA must make a majority support determination in relation to a proposed single‑enterprise agreement if:

                     (a)  an application for the determination has been made; and

                     (b)  FWA is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which FWA must be satisfied before making a majority support determination

             (2)  FWA must be satisfied that:

                     (a)  a majority of the employees:

                              (i)  who are employed by the employer or employers at a time determined by FWA; and

                             (ii)  who will be covered by the agreement;

                            want to bargain; and

                     (b)  the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

                     (c)  if the agreement will not cover all the employees of the employer or employers, and the group of employees that will be covered is not geographically, operationally or organisationally distinct—the group was fairly chosen; and

                     (d)  it is reasonable in all the circumstances to make the determination.

             (3)  For the purposes of paragraph (2)(a), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.

Operation of determination

             (4)  The determination comes into operation on the day on which it is made.

238  Scope orders

Bargaining representatives may apply for scope orders

             (1)  A bargaining representative for a proposed single‑enterprise agreement may apply to FWA for an order (a scope order) under this section if:

                     (a)  the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and

                     (b)  the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.

No scope order if a single interest employer authorisation is in operation

             (2)  Despite subsection (1), the bargaining representative must not apply for the scope order if a single interest employer authorisation is in operation in relation to the agreement.

Bargaining representative must have given notice of concerns

             (3)  The bargaining representative may only apply for the scope order if the bargaining representative:

                     (a)  has given a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and

                     (b)  has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

                     (c)  considers that the relevant bargaining representatives have not responded appropriately.

When FWA may make scope order

             (4)  FWA may make the scope order if FWA is satisfied:

                     (a)  that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and

                     (b)  that making the order will promote the fair and efficient conduct of bargaining; and

                     (c)  if the agreement will not cover all the employees of the employer or employers, and the group of employees that will be covered is not geographically, operationally or organisationally distinct—the group was fairly chosen; and

                     (d)  it is reasonable in all the circumstances to make the order.

Scope order must specify employer and employees to be covered

             (5)  The scope order must specify, in relation to a proposed single‑enterprise agreement:

                     (a)  the employer, or employers, that will be covered by the agreement; and

                     (b)  the employees who will be covered by the agreement.

Scope order must be in accordance with this section etc.

             (6)  The scope order:

                     (a)  must be in accordance with this section; and

                     (b)  may relate to more than one proposed single‑enterprise agreement.

Orders etc. that FWA may make

             (7)  If FWA makes the scope order, FWA may also:

                     (a)  amend any existing bargaining orders; and

                     (b)  make or vary such other orders (such as protected action ballot orders), determinations or other instruments made by FWA, or take such other actions, as FWA considers appropriate.

239  Operation of a scope order

                   A scope order in relation to a proposed single‑enterprise agreement:

                     (a)  comes into operation on the day on which it is made; and

                     (b)  ceases to be in operation at the earliest of the following:

                              (i)  if the order is revoked—the time specified in the instrument of revocation;

                             (ii)  when the agreement is approved by FWA;

                            (iii)  when a workplace determination that covers the employees that would have been covered by the agreement comes into operation;

                            (iv)  when the bargaining representatives for the agreement agree that bargaining has ceased.

Subdivision DFWA may deal with a bargaining dispute on request

240  Application for FWA to deal with a bargaining dispute

Bargaining representative may apply for FWA to deal with a dispute

             (1)  A bargaining representative for a proposed enterprise agreement may apply to FWA for FWA to deal with a dispute about the agreement if the bargaining representatives for the agreement are unable to resolve the dispute.

             (2)  If the proposed enterprise agreement is:

                     (a)  a single‑enterprise agreement; or

                     (b)  a multi‑enterprise agreement in relation to which a low‑paid authorisation is in operation;

the application may be made by one bargaining representative, whether or not the other bargaining representatives for the agreement have agreed to the making of the application.

             (3)  If subsection (2) does not apply, a bargaining representative may only make the application if all of the bargaining representatives for the agreement have agreed to the making of the application.

             (4)  If the bargaining representatives have agreed that FWA may arbitrate (however described) the dispute, FWA may do so.


 

Division 9Low‑paid bargaining

241  Objects of this Division

                   The objects of this Division are:

                     (a)  to assist and encourage low‑paid employees and their employers, who have not historically had the benefits of collective bargaining, to make an enterprise agreement that meets their needs; and

                     (b)  to assist low‑paid employees and their employers to identify improvements to productivity and service delivery through bargaining for an enterprise agreement that covers 2 or more employers, while taking into account the specific needs of individual enterprises; and

                     (c)  to address constraints on the ability of low‑paid employees and their employers to bargain at the enterprise level, including constraints relating to a lack of skills, resources, bargaining strength or previous bargaining experience; and

                     (d)  to enable FWA to provide assistance to low‑paid employees and their employers to facilitate bargaining for enterprise agreements.

Note:          A low‑paid workplace determination may be made in specified circumstances under Division 2 of Part 2‑5 if the bargaining representatives for a proposed enterprise agreement in relation to which a low‑paid authorisation is in operation are unable to reach agreement.

242  Low‑paid authorisations

             (1)  The following persons may apply to FWA for an authorisation (a low‑paid authorisation) under section 243 in relation to a proposed multi‑enterprise agreement:

                     (a)  a bargaining representative for the agreement;

                     (b)  an employee organisation that is entitled to represent the industrial interests of an employee in relation to work to be performed under the agreement.

Note:          The effect of a low‑paid authorisation is that the employers specified in it are subject to certain rules in relation to the agreement that would not otherwise apply (such as in relation to the availability of bargaining orders, see subsection 229(2)).

             (2)  The application must specify:

                     (a)  the employers that will be covered by the agreement; and

                     (b)  the employees who will be covered by the agreement.

             (3)  An application under this section must not be made in relation to a proposed greenfields agreement.

243  When FWA must make a low‑paid authorisation

Low‑paid authorisation

             (1)  FWA must make a low‑paid authorisation in relation to a proposed multi‑enterprise agreement if:

                     (a)  an application for the authorisation has been made; and

                     (b)  FWA is satisfied that it is in the public interest to make the authorisation, taking into account the matters specified in subsections (2) and (3).

FWA must take into account historical and current matters relating to collective bargaining

             (2)  In deciding whether or not to make the authorisation, FWA must take into account the following:

                     (a)  whether granting the authorisation would assist low‑paid employees who have not had access to collective bargaining or who face substantial difficulty bargaining at the enterprise level;

                     (b)  the history of bargaining in the industry in which the employees who will be covered by the agreement work;

                     (c)  the relative bargaining strength of the employers and employees who will be covered by the agreement;

                     (d)  the current terms and conditions of employment of the employees who will be covered by the agreement, as compared to relevant industry and community standards;

                     (e)  the degree of commonality in the nature of the enterprises to which the agreement relates, and the terms and conditions of employment in those enterprises.

FWA must take into account matters relating to the likely success of collective bargaining

             (3)  In deciding whether or not to make the authorisation, FWA must also take into account the following:

                     (a)  whether granting the authorisation would assist in identifying improvements to productivity and service delivery at the enterprises to which the agreement relates;

                     (b)  the extent to which the likely number of bargaining representatives for the agreement would be consistent with a manageable collective bargaining process;

                     (c)  the views of the employers and employees who will be covered by the agreement;

                     (d)  the extent to which the terms and conditions of employment of the employees who will be covered by the agreement is controlled, directed or influenced by a person other than the employer, or employers, that will be covered by the agreement;

                     (e)  the extent to which the applicant for the authorisation is prepared to consider and respond reasonably to claims, or responses to claims, that may be made by a particular employer named in the application, if that employer later proposes to bargain for an agreement that:

                              (i)  would cover that employer; and

                             (ii)  would not cover the other employers specified in the application.

What authorisation must specify etc.

             (4)  The authorisation must specify:

                     (a)  the employers that will be covered by the agreement (which may be some or all of the employers specified in the application); and

                     (b)  the employees who will be covered by the agreement (which may be some or all of the employees specified in the application); and

                     (c)  any other matter prescribed by the procedural rules.

Operation of authorisation

             (5)  The authorisation comes into operation on the day on which it is made.

244  Variation of low‑paid authorisations—general

Variation to remove employer

             (1)  An employer specified in a low‑paid authorisation may apply to FWA for a variation of the authorisation to remove the employer’s name from the authorisation.

             (2)  If an application is made under subsection (1), FWA must vary the authorisation to remove the employer’s name if FWA is satisfied that, because of a change in the employer’s circumstances, it is no longer appropriate for the employer to be specified in the authorisation.

Variation to add employer

             (3)  The following may apply to FWA for a variation of a low‑paid authorisation to add the name of an employer that is not specified in the authorisation:

                     (a)  the employer;

                     (b)  a bargaining representative of an employee who will be covered by the proposed multi‑enterprise agreement to which the authorisation relates;

                     (c)  an employee organisation that is entitled to represent the industrial interests of an employee in relation to work to be performed under that agreement.

             (4)  If an application is made under subsection (3), FWA must vary the authorisation to add the employer’s name if FWA is satisfied that it is in the public interest to do so, taking into account the matters specified in subsections 243(2) and (3).

245  Variation of low‑paid authorisations—enterprise agreement etc. comes into operation

                   FWA is taken to have varied a low‑paid authorisation to remove an employer’s name when an enterprise agreement, or a workplace determination, that covers the employer comes into operation.

246  FWA assistance for the low‑paid

Application of this section

             (1)  This section applies if a low‑paid authorisation is in operation in relation to a proposed multi‑enterprise agreement.

FWA assistance

             (2)  FWA may, on its own initiative, provide to the bargaining representatives for the agreement such assistance:

                     (a)  that FWA considers appropriate to facilitate bargaining for the agreement; and

                     (b)  that FWA could provide if it were dealing with a dispute.

Note:          This section does not empower FWA to arbitrate, because subsection 595(3) provides that FWA may arbitrate only if expressly authorised to do so.

FWA may direct a person to attend a conference

             (3)  Without limiting subsection (2), FWA may provide assistance by directing a person who is not an employer specified in the authorisation to attend a conference at a specified time and place if FWA is satisfied that the person exercises such a degree of control over the terms and conditions of the employees who will be covered by the agreement that the participation of the person in bargaining is necessary for the agreement to be made.

             (4)  Subsection (3) does not limit FWA’s powers under Subdivision B of Division 3 of Part 5‑1.


 

Division 10Single interest employer authorisations

Subdivision ADeclaration that employers may bargain together for a proposed enterprise agreement

247  Ministerial declaration that employers may bargain together for a proposed enterprise agreement

Application for declaration

             (1)  Two or more employers that will be covered by a proposed enterprise agreement may apply to the Minister for a declaration under subsection (3).

Note:          Employers named in a declaration may apply for a single interest employer authorisation (see Subdivision B of this Division).

             (2)  The application must specify the employers (the relevant employers) that will be covered by the agreement.

Declaration by the Minister

             (3)  If an application is made under subsection (1), the Minister may declare, in writing, that the relevant employers may bargain together for agreement.

             (4)  In deciding whether or not to make the declaration, the Minister must take into account the following matters:

                     (a)  the history of bargaining of each of the relevant employers, including whether they have previously bargained together;

                     (b)  the interests that the relevant employers have in common, and the extent to which those interests are relevant to whether they should be permitted to bargain together;

                     (c)  whether the relevant employers are governed by a common regulatory regime;

                     (d)  whether it would be more appropriate for each of the relevant employers to make a separate enterprise agreement with its employees;

                     (e)  the extent to which the relevant employers operate collaboratively rather than competitively;

                      (f)  whether the relevant employers are substantially funded, directly or indirectly, by the Commonwealth, a State or a Territory;

                     (g)  any other matter the Minister considers relevant.

             (5)  If the Minister decides to make the declaration, the relevant employers must be specified in the declaration.

             (6)  A declaration under subsection (3) is not a legislative instrument.

Subdivision BSingle interest employer authorisations

248  Single interest employer authorisations

             (1)  Two or more employers may apply to FWA for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement.

Note:          The effect of a single interest employer authorisation is that the employers are single interest employers in relation to the agreement (see paragraph 172(5)(c)).

             (2)  The application must specify the following:

                     (a)  the employers that will be covered by the agreement;

                     (b)  the employees who will be covered by the agreement;

                     (c)  the person (if any) nominated by the employers to make applications under this Act if the authorisation is made.

249  When FWA must make a single interest employer authorisation

Single interest employer authorisation

             (1)  FWA must make a single interest employer authorisation in relation to a proposed enterprise agreement if:

                     (a)  an application for the authorisation has been made; and

                     (b)  FWA is satisfied that:

                              (i)  the employers that will be covered by the agreement have agreed to bargain together; and

                             (ii)  no person coerced, or threatened to coerce, any of the employers to agree to bargain together; and

                     (c)  the requirements of either subsection (2) (which deals with franchisees) or (3) (which deals with employers that may bargain together for a proposed enterprise agreement) are met.

Franchisees

             (2)  The requirements of this subsection are met if FWA is satisfied that the employers carry on similar business activities under the same franchise and are:

                     (a)  franchisees of the same franchisor; or

                     (b)  related bodies corporate of the same franchisor; or

                     (c)  any combination of the above.

Employers that may bargain together for the agreement

             (3)  The requirements of this subsection are met if FWA is satisfied that all of the employers are specified in a declaration made under section 247 in relation to the agreement.

Operation of authorisation

             (4)  The authorisation:

                     (a)  comes into operation on the day on which it is made; and

                     (b)  ceases to be in operation at the earlier of the following:

                              (i)  the day on which the enterprise agreement to which the authorisation relates is made;

                             (ii)  12 months after the day on which the authorisation is made or, if the period is extended under section 252, at the end of that period.

250  What a single interest employer authorisation must specify

What authorisation must specify

             (1)  A single interest employer authorisation in relation to a proposed enterprise agreement must specify the following:

                     (a)  the employers that will be covered by the agreement;

                     (b)  the employees who will be covered by the agreement;

                     (c)  the person (if any) nominated by the employers to make applications under this Act if the authorisation is made;

                     (d)  any other matter prescribed by the procedural rules.

Authorisation may relate to only some of employers or employees

             (2)  If FWA is satisfied of the matters specified in subsection 249(2) or (3) (which deal with franchisees and employers that may bargain together for a proposed enterprise agreement) in relation to only some of the employers that will be covered by the agreement, FWA may make a single interest employer authorisation specifying those employers and their employees only.

251  Variation of single interest employer authorisations

Variation to remove employer

             (1)  An employer specified in a single interest employer authorisation in relation to a proposed enterprise agreement may apply to FWA for a variation of the authorisation to remove the employer’s name from the authorisation.

             (2)  If an application is made under subsection (1), FWA must vary the authorisation to remove the employer’s name if FWA is satisfied that, because of a change in the employer’s circumstances, it is no longer appropriate for the employer to be specified in the authorisation.

Variation to add employer

             (3)  An employer that is not specified in a single interest employer authorisation may apply to FWA for a variation of the authorisation to add the employer’s name to the authorisation.

             (4)  If an application is made under subsection (3), FWA must vary the authorisation to add the employer’s name if FWA is satisfied that:

                     (a)  each employer specified in the authorisation has agreed to the employer’s name being added; and

                     (b)  no person coerced, or threatened to coerce, the employer to make the application; and

                     (c)  the requirements of subsection 249(2) or (3) (which deal with franchisees and employers that may bargain together for a proposed enterprise agreement) are met.

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

             (1)  A bargaining representative for a proposed enterprise agreement to which a single interest employer authorisation relates may apply to FWA to vary the authorisation to extend the period for which the authorisation is in operation.

             (2)  FWA may vary the authorisation to extend the period if FWA is satisfied that:

                     (a)  there are reasonable prospects that the agreement will be made if the authorisation is in operation for a longer period; and

                     (b)  it is appropriate in all the circumstances to extend the period.


 

Division 11Other matters

253  Terms of an enterprise agreement that are of no effect

             (1)  A term of an enterprise agreement has no effect to the extent that:

                     (a)  it is not a term about a permitted matter; or

                     (b)  it is an unlawful term.

Note 1:       A term of an enterprise agreement has no effect to the extent that it contravenes section 55 (see section 56).

Note 2:       A term of an enterprise agreement permitting or requiring deductions or payments to be made has no effect if it benefits the employer and is unreasonable in the circumstances (see section 326).

             (2)  However, if an enterprise agreement includes a term that has no effect because of subsection (1), or section 56 or 326, the inclusion of the term does not prevent the agreement from being an enterprise agreement.

254  Applications by bargaining representatives

Application of this section

             (1)  This section applies if a provision of this Part permits an application to be made by a bargaining representative of an employer that will be covered by a proposed enterprise agreement.

Persons who may make applications

             (2)  If the agreement will cover more than one employer, the application may be made by:

                     (a)  in the case of a proposed enterprise agreement in relation to which a single interest employer authorisation is in operation—the person (if any) specified in the authorisation as the person who may make applications under this Act; or

                     (b)  in any case—a bargaining representative of an employer that will be covered by the agreement, on behalf of one or more other such bargaining representatives, if those other bargaining representatives have agreed to the application being made on their behalf.

255  Part does not empower FWA to make certain orders

             (1)  This Part does not empower FWA to make an order that requires, or has the effect of requiring:

                     (a)  particular content to be included or not included in a proposed enterprise agreement; or

                     (b)  an employer to request under subsection 181(1) that employees approve a proposed enterprise agreement; or

                     (c)  an employee to approve, or not approve, a proposed enterprise agreement.

             (2)  Despite paragraph (1)(a), FWA may make an order that particular content be included or not included in a proposed enterprise agreement if the order is made in the course of arbitration undertaken when dealing with a dispute under section 240.

Note:          FWA may only arbitrate a dispute under section 240 if arbitration has been agreed to by the bargaining representatives for the agreement (see subsection 240(4)).

256  Prospective employers and employees

                   A reference to an employer, or an employee, in relation to a greenfields agreement, includes a reference to a person who may become an employer or employee.

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

Despite section 46AA of the Acts Interpretation Act 1901, an enterprise agreement may incorporate material contained in an instrument or other writing:

                     (a)  as in force at a particular time; or

                     (b)  as in force from time to time.


 

Part 2‑5Workplace determinations

Division 1Introduction

258  Guide to this Part

This Part is about workplace determinations, which provide terms and conditions for those national system employees to whom they apply.

Division 2 deals with low‑paid workplace determinations. Bargaining representatives for a proposed multi‑enterprise agreement may apply to FWA for such a determination if they are unable to reach agreement on the terms that should be included in the agreement.

Division 3 deals with industrial action related workplace determinations. FWA must make such a determination if:

(a)   a termination of industrial action instrument is made in relation to a proposed enterprise agreement; and

(b)   after the end of the post‑industrial action negotiating period, the bargaining representatives for the agreement have not settled the matters that were at issue during bargaining for the agreement.

Division 4 deals with bargaining related workplace determinations. FWA must make such a determination if:

(a)   a serious breach declaration is made in relation to a proposed enterprise agreement; and

(b)   after the end of the post‑declaration negotiating period, the bargaining representatives for the agreement have not settled the matters that were at issue during bargaining for the agreement.

Division 5 sets out the core terms, mandatory terms and agreed terms of workplace determinations. It also sets out the factors that FWA must take into account in deciding the terms of a workplace determination.

Division 6 deals with the operation, coverage and interaction etc. of workplace determinations. It also provides that, subject to certain exceptions, this Act applies to a workplace determination that is in operation as if it were an enterprise agreement that is in operation.

Division 7 deals with contraventions of workplace determinations and other matters relating to applications by bargaining representatives.

259  Meanings of employee and employer

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


 

Division 2Low‑paid workplace determinations

260  Applications for low‑paid workplace determinations

Application of this section

             (1)  This section applies if:

                     (a)  a low‑paid authorisation is in operation in relation to a proposed multi‑enterprise agreement; and

                     (b)  one or more of the bargaining representatives for the agreement are unable to reach agreement on the terms that should be included in the agreement.

Consent low‑paid workplace determination

             (2)  The following bargaining representatives for the agreement may jointly apply to FWA for a determination (a consent low‑paid workplace determination) under section 261:

                     (a)  one or more bargaining representatives of one or more of the employers that would have been covered by the agreement;

                     (b)  the bargaining representative or representatives of the employees of those employers.

             (3)  An application for a consent low‑paid workplace determination must specify the following:

                     (a)  the bargaining representatives making the application;

                     (b)  the terms that those bargaining representatives have, at the time of the application, agreed should be included in the agreement;

                     (c)  the matters at issue at the time of the application;

                     (d)  the employers that have consented to being covered by the determination;

                     (e)  those employers’ employees who will be covered by the determination;

                      (f)  each employee organisation (if any) that is a bargaining representative of those employees.

Special low‑paid workplace determination

             (4)  A bargaining representative for the agreement may apply to FWA for a determination (a special low‑paid workplace determination) under section 262.

             (5)  An application for a special low‑paid workplace determination must specify the following:

                     (a)  the terms that the bargaining representatives concerned have, at the time of the application, agreed should be included in the agreement;

                     (b)  the matters at issue at the time of the application;

                     (c)  the employers that will be covered by the determination;

                     (d)  the employees who will be covered by the determination;

                     (e)  each employee organisation (if any) that is a bargaining representative of those employees.

261  When FWA must make a consent low‑paid workplace determination

                   FWA must make a consent low‑paid workplace determination if:

                     (a)  an application for the determination has been made; and

                     (b)  FWA is satisfied that the bargaining representatives who made the application have made all reasonable efforts to agree on the terms that should be included in the agreement; and

                     (c)  there is no reasonable prospect of agreement being reached.

Note:          FWA must be constituted by a Full Bench to make a consent low‑paid workplace determination (see subsection 616(4)).

262  When FWA must make a special low‑paid workplace determination—general requirements

Special low‑paid workplace determination

             (1)  FWA must make a special low‑paid workplace determination under this section if:

                     (a)  an application for the determination has been made; and

                     (b)  the requirements set out in this section and section 263 are met.

Note:          FWA must be constituted by a Full Bench to make a special low‑paid workplace determination (see subsection 616(4)).

Genuinely unable to reach agreement etc.

             (2)  FWA must be satisfied that:

                     (a)  the bargaining representatives for the proposed multi‑enterprise agreement concerned are genuinely unable to reach agreement on the terms that should be included in the agreement; and

                     (b)  there is no reasonable prospect of agreement being reached.

Minimum safety net

             (3)  FWA must be satisfied that, at the time of the application, the terms and conditions of the employees who will be covered by the determination were substantially equivalent to the minimum safety net of terms and conditions provided by modern awards together with the National Employment Standards.

Promotion of future bargaining for an enterprise agreement etc.

             (4)  FWA must be satisfied that the making of the determination will promote:

                     (a)  bargaining in the future for an enterprise agreement or agreements that will cover the employers and employees who will be covered by the workplace determination; and

                     (b)  productivity and efficiency in the enterprise or enterprises concerned.

Public interest

             (5)  FWA must be satisfied that it is in the public interest to make the determination.

263  When FWA must make a special low‑paid workplace determination—additional requirements

Additional requirements

             (1)  This section sets out additional requirements that must be met before FWA makes a special low‑paid determination (the relevant determination) under section 262.

No employer is specified in an application for a consent low‑paid workplace determination

             (2)  FWA must be satisfied that no employer that will be covered by the relevant determination is specified in an application for a consent low‑paid workplace determination that was made by bargaining representatives for the proposed multi‑enterprise agreement concerned before or after the application for the relevant determination was made.

No employer is, or has previously been, covered by an enterprise agreement or workplace determination

             (3)  FWA must be satisfied that no employer that will be covered by the relevant determination is, or has previously been, covered by an enterprise agreement, or another workplace determination, in relation to the work to be performed by the employees who will be covered by the relevant determination.

264  Terms etc. of a low‑paid workplace determination

Basic rule

             (1)  A low‑paid workplace determination must comply with subsection (4) and include:

                     (a)  the terms set out in subsections (2) and (3); and

                     (b)  the core terms set out in section 272; and

                     (c)  the mandatory terms set out in section 273.

Note:          For the factors that FWA must take into account in deciding the terms of the determination, see section 275.

Agreed terms

             (2)  The determination must include the agreed terms (see subsection 274(1)) for the determination.

Terms dealing with the matters at issue

             (3)  The determination must include the terms that FWA considers deal with the matters at issue specified in the application for the determination.

Coverage

             (4)  The determination must be expressed to cover the employers, employees and employee organisations (if any) that were specified in the application for the determination.

265  No other terms

                   A low‑paid workplace determination must not include any terms other than those required by subsection 264(1).


 

Division 3Industrial action related workplace determinations

266  When FWA must make an industrial action related workplace determination

Industrial action related workplace determination

             (1)  If:

                     (a)  a termination of industrial action instrument has been made in relation to a proposed enterprise agreement; and

                     (b)  the post‑industrial action negotiating period ends; and

                     (c)  the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the agreement;

FWA must make a determination (an industrial action related workplace determination) as quickly as possible after the end of that period.

Note:          FWA must be constituted by a Full Bench to make an industrial action related workplace determination (see subsection 616(4)).

Termination of industrial action instrument

             (2)  A termination of industrial action instrument in relation to a proposed enterprise agreement is:

                     (a)  an order under section 423 or 424 terminating protected industrial action for the agreement; or

                     (b)  a declaration under section 431 terminating protected industrial action for the agreement.

Post‑industrial action negotiating period

             (3)  The post‑industrial action negotiating period is the period that:

                     (a)  starts on the day on which the termination of industrial action instrument is made; and

                     (b)  ends:

                              (i)  21 days after that day; or

                             (ii)  if FWA extends that period under subsection (4)—42 days after that day.

             (4)  FWA must extend the period referred to in subparagraph (3)(b)(i) if:

                     (a)  all of the bargaining representatives for the agreement jointly apply to FWA for the extension within 21 days after the termination of industrial action instrument was made; and

                     (b)  those bargaining representatives have not settled all of the matters that were at issue during bargaining for the agreement.

267  Terms etc. of an industrial action related workplace determination

Basic rule

             (1)  An industrial action related workplace determination must comply with subsection (4) and include:

                     (a)  the terms set out in subsections (2) and (3); and

                     (b)  the core terms set out in section 272; and

                     (c)  the mandatory terms set out in section 273.

Note:          For the factors that FWA must take into account in deciding the terms of the determination, see section 275.

Agreed terms

             (2)  The determination must include the agreed terms (see subsection 274(2)) for the determination.

Terms dealing with the matters at issue

             (3)  The determination must include the terms that FWA considers deal with the matters that were still at issue at the end of the post‑industrial action negotiating period.

Coverage

             (4)  The determination must be expressed to cover:

                     (a)  each employer that would have been covered by the proposed enterprise agreement concerned; and

                     (b)  the employees who would have been covered by that agreement; and

                     (c)  each employee organisation (if any) that was a bargaining representative of those employees.

268  No other terms

                   An industrial action related workplace determination must not include any terms other than those required by subsection 267(1).


 

Division 4Bargaining related workplace determinations

269  When FWA must make a bargaining related workplace determination

Bargaining related workplace determination

             (1)  If:

                     (a)  a serious breach declaration has been made in relation to a proposed enterprise agreement; and

                     (b)  the post‑declaration negotiating period ends; and

                     (c)  the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the agreement;

FWA must make a determination (a bargaining related workplace determination) as quickly as possible after the end of that period.

Note 1:       A serious breach declaration may be made in relation to a proposed single‑enterprise agreement or a proposed multi‑enterprise agreement in relation to which a low‑paid authorisation is in operation (see sections 229 and 235).

Note 2:       FWA must be constituted by a Full Bench to make a bargaining related workplace determination (see subsection 616(4)).

Post‑declaration negotiating period

             (2)  The post‑declaration negotiating period is the period that:

                     (a)  starts on the day on which the serious breach declaration is made; and

                     (b)  ends:

                              (i)  21 days after that day; or

                             (ii)  if FWA extends that period under subsection (3)—42 days after that day.

             (3)  FWA must extend the period referred to in subparagraph (2)(b)(i) if:

                     (a)  all of the bargaining representatives for the agreement jointly apply to FWA for the extension within 21 days after the serious breach declaration was made; and

                     (b)  those bargaining representatives have not settled all of the matters that were at issue during bargaining for the agreement.

270  Terms etc. of a bargaining related workplace determination

Basic rule

             (1)  A bargaining related workplace determination must comply with whichever of subsection (4), (5) or (6) applies and include:

                     (a)  the terms set out in this section; and

                     (b)  the core terms set out in section 272; and

                     (c)  the mandatory terms set out in section 273.

Note:          For the factors that FWA must take into account in deciding the terms of the determination, see section 275.

Agreed terms

             (2)  The determination must include the agreed terms (see subsection 274(3)) for the determination.

Terms dealing with the matters at issue

             (3)  The determination must include the terms that FWA considers deal with the matters that were still at issue at the end of the post‑declaration negotiating period.

Coverage—single‑enterprise agreement

             (4)  If the serious breach declaration referred to in paragraph 269(1)(a) was made in relation to a proposed single‑enterprise agreement, the determination must be expressed to cover:

                     (a)  each employer that would have been covered by the agreement; and

                     (b)  the employees who would have been covered by that agreement; and

                     (c)  each employee organisation (if any) that was a bargaining representative of those employees.

Coverage—multi‑enterprise agreement

             (5)  If:

                     (a)  the serious breach declaration referred to in paragraph 269(1)(a) was made in relation to a proposed multi‑enterprise agreement in relation to which a low‑paid authorisation is in operation; and

                     (b)  the bargaining representatives for the agreement that contravened a bargaining order as referred to in subsection 235(2) were bargaining representatives of one or more employers that would have been covered by the agreement;

the determination must be expressed to cover:

                     (c)  each of those employers; and

                     (d)  their employees who would have been covered by the agreement; and

                     (e)  each employee organisation (if any) that was a bargaining representative of those employees.

             (6)  If:

                     (a)  the serious breach declaration referred to in paragraph 269(1)(a) was made in relation to a proposed multi‑enterprise agreement in relation to which a low‑paid authorisation is in operation; and

                     (b)  the bargaining representatives for the agreement that contravened a bargaining order as referred to in subsection 235(2) were bargaining representatives of one or more employees who would have been covered by the agreement;

the determination must be expressed to cover:

                     (c)  the employers of those employees if they are employers that would have been covered by the agreement; and

                     (d)  all of their employees who would have been covered by the agreement; and

                     (e)  each employee organisation (if any) that was a bargaining representative of those employees.

271  No other terms

                   A bargaining related workplace determination must not include any terms other than those required by subsection 270(1).


 

Division 5Core terms, mandatory terms and agreed terms of workplace determinations etc.

272  Core terms of workplace determinations

Core terms

             (1)  This section sets out the core terms that a workplace determination must include.

Nominal expiry date

             (2)  The determination must include a term specifying a date as the determination’s nominal expiry date, which must not be more than 4 years after the date on which the determination comes into operation.

Permitted matters etc.

             (3)  The determination must not include:

                     (a)  any terms that would not be about permitted matters if the determination were an enterprise agreement; or

                     (b)  a term that would be an unlawful term if the determination were an enterprise agreement.

Better off overall test

             (4)  The determination must include terms such that the determination would, if the determination were an enterprise agreement, pass the better off overall test under section 193.

Safety net requirements

             (5)  The determination must not include a term that would, if the determination were an enterprise agreement, mean that FWA could not approve the agreement:

                     (a)  because the term would contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); or

                     (b)  because of the operation of Subdivision E of Division 4 of Part 2‑4 (which deals with approval requirements relating to particular kinds of employees).

273  Mandatory terms of workplace determinations

Mandatory terms

             (1)  This section sets out the mandatory terms that a workplace determination must include.

Term about settling disputes

             (2)  The determination must include a term that provides a procedure for settling disputes:

                     (a)  about any matters arising under the determination; and

                     (b)  in relation to the National Employment Standards.

             (3)  Subsection (2) does not apply to the determination if FWA is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy paragraphs 186(6)(a) and (b) (which deal with terms in enterprise agreements about settling disputes).

Flexibility term

             (4)  The determination must include the model flexibility term unless FWA is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy paragraph 202(1)(a) and section 203 (which deal with flexibility terms in enterprise agreements).

Consultation term

             (5)  The determination must include the model consultation term unless FWA is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy subsection 205(1) (which deals with terms about consultation in enterprise agreements).

274  Agreed terms for workplace determinations

Agreed term for a low‑paid workplace determination

             (1)  An agreed term for a low‑paid workplace determination is a term that the application for the determination specifies as a term that the bargaining representatives concerned had, at the time of the application, agreed should be included in the proposed multi‑enterprise agreement concerned.

Note:          The determination must include an agreed term (see subsection 264(2)).

Agreed term for an industrial action related workplace determination

             (2)  An agreed term for an industrial action related workplace determination is a term that the bargaining representatives for the proposed enterprise agreement concerned had, at end of the post‑industrial action negotiating period, agreed should be included in the agreement.

Note:          The determination must include an agreed term (see subsection 267(2)).

Agreed term for a bargaining related workplace determination

             (3)  An agreed term for a bargaining related workplace determination is a term that the bargaining representatives for the proposed enterprise agreement concerned had, at end of the post‑declaration negotiating period, agreed should be included in the agreement.

Note:          The determination must include an agreed term (see subsection 270(2)).

275  Factors FWA must take into account in deciding terms of a workplace determination

                   The factors that FWA must take into account in deciding which terms to include in a workplace determination include the following:

                     (a)  the merits of the case;

                     (b)  for a low‑paid workplace determination—the interests of the employers and employees who will be covered by the determination, including ensuring that the employers are able to remain competitive;

                     (c)  for a workplace determination other than a low‑paid workplace determination—the interests of the employers and employees who will be covered by the determination;

                     (d)  the public interest;

                     (e)  how productivity might be improved in the enterprise or enterprises concerned;

                      (f)  the extent to which the conduct of the bargaining representatives for the proposed enterprise agreement concerned was reasonable during bargaining for the agreement;

                     (g)  the extent to which the bargaining representatives for the proposed enterprise agreement concerned have complied with the good faith bargaining requirements;

                     (h)  incentives to continue to bargain at a later time.


 

Division 6Operation, coverage and interaction etc. of workplace determinations

276  When a workplace determination operates etc.

             (1)  A workplace determination operates from the day on which it is made.

             (2)  A workplace determination ceases to operate on the earlier of the following days:

                     (a)  the day on which a termination of the determination comes into operation under section 224 or 227 as applied to the determination by section 279 (which deals with the application of this Act to workplace determinations);

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

Note:          Section 278 deals with when a workplace determination ceases to apply to an employee.

             (3)  A workplace determination that has ceased to operate can never operate again.

277  Employers, employees and employee organisations covered by a workplace determination

Employers, employees and employee organisations

             (1)  A workplace determination covers an employer, employee or employee organisation if the determination is expressed to cover the employer, employee or organisation.

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

             (2)  A workplace determination also covers an employer, employee or employee organisation if any of the following provides, or has the effect, that the determination covers the employer, employee or organisation:

                     (a)  a provision of this Act;

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

                     (c)  an order of a court.

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

                     (a)  another provision of this Act;

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

                     (c)  an order of a court.

Workplace determinations that have ceased to operate

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

Workplace determinations cover employees in relation to particular employment

             (5)  A reference in this Act to a workplace determination covering an employee is a reference to the determination covering the employee in relation to particular employment.

278  Interaction of a workplace determination with enterprise agreements etc.

Interaction with an enterprise agreement

             (1)  If:

                     (a)  a workplace determination applies to an employee in relation to particular employment; and

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

the determination ceases to apply to the employee in relation to that employment, and can never so apply again.

Interaction with another workplace determination

             (2)  If:

                     (a)  a workplace determination (the earlier determination) applies to an employee in relation to particular employment; and

                     (b)  another workplace determination (the later determination) that covers the employee in relation to the same employment comes into operation;

the earlier determination ceases to apply to the employee in relation to that employment when the later determination comes into operation, and can never so apply again.

279  Act applies to a workplace determination as if it were an enterprise agreement

             (1)  This Act applies to a workplace determination that is in operation as if it were an enterprise agreement that is in operation.

             (2)  However, the following provisions do not apply to the determination:

                     (a)  section 50 (which deals with contraventions of enterprise agreements);

                     (b)  section 53 (which deals with the coverage of enterprise agreements);

                     (c)  section 54 (which deals with the operation of enterprise agreements);

                     (d)  section 58 (which deals with the interaction between one or more enterprise agreements);

                     (e)  section 183 (which deals with the entitlement of employee organisations to be covered by enterprise agreements);

                      (f)  the provisions of Subdivisions A and B of Division 7 of Part 2‑4 (which deal with the variation of enterprise agreements).

             (3)  In addition, Subdivision C of Division 7 of Part 2‑4 (which deals with the termination of enterprise agreements by employers and employees) only applies to a workplace determination after the determination has passed its nominal expiry date.


 

Division 7Other matters

280  Contravening a workplace determination

                   A person must not contravene a term of a workplace determination.

Note 1:       This section is a civil remedy provision (see Part 4‑1).

Note 2:       A person does not contravene a term of a workplace determination unless the determination applies to the person: see subsections 51(1) and 279(1).

281  Applications by bargaining representatives

Application of this section

             (1)  This section applies if a provision of this Part permits an application to be made by a bargaining representative of an employer that would have been covered by a proposed enterprise agreement.

Persons who may make applications

             (2)  If the agreement would have covered more than one employer, the application may be made by:

                     (a)  in the case of a proposed enterprise agreement in relation to which a single interest employer authorisation is in operation—the person (if any) specified in the authorisation as the person who may make applications under this Act; or

                     (b)  in any case—a bargaining representative of an employer that would have been covered by the agreement, on behalf of one or more other such bargaining representatives, if those other bargaining representatives have agreed to the application being made on their behalf.


 

Part 2‑6Minimum wages

Division 1Introduction

282  Guide to this Part

This Part provides for FWA (constituted by the Minimum Wage Panel) to set and vary minimum wages for national system employees. For employees covered by modern awards, minimum wages are specified in the modern award. For award/agreement free employees, minimum wages are specified in the national minimum wage order.

Division 2 provides for the minimum wages objective. This requires FWA to establish and maintain a safety net of fair minimum wages, taking into account certain social and economic factors.

Division 3 provides for FWA (constituted by the Minimum Wage Panel) to conduct annual wage reviews. In an annual wage review, FWA may set or vary minimum wages in modern awards, and must make a national minimum wage order. Minimum wages in modern awards can also be set, or varied (in limited circumstances), under Part 2‑3 (which deals with modern awards).

Division 4 provides for national minimum wage orders and requires employers to comply with them. The orders set the national minimum wage, as well as special national minimum wages for junior employees, employees to whom training arrangements apply and employees with a disability. The orders also set the casual loading for award/agreement free employees.

National minimum wages and special national minimum wages apply to award/agreement free employees. However, they are also relevant to other employees as follows:

(a)   in setting or varying modern award minimum wages, FWA must take the national minimum wage into account (see subsection 135(2) (in Part 2‑3) and subsection 285(3) (in this Part));

(b)   for an employee who is not covered by a modern award and to whom an enterprise agreement applies, the employee’s base rate of pay under the agreement must not be less than the relevant national minimum wage or special national minimum wage (see subsection 206(3) (in Part 2‑4)).

For an employee who is covered by a modern award and to whom an enterprise agreement applies, the employee’s base rate of pay under the agreement must not be less than the base rate of pay that would have been payable to the employee if the award applied (see subsection 206(1) (in Part 2‑4)).

283  Meanings of employee and employer

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


 

Division 2Overarching provisions

284  The minimum wages objective

What is the minimum wages objective?

             (1)  FWA must establish and maintain a safety net of fair minimum wages, taking into account:

                     (a)  the performance and competitiveness of the national economy, including productivity, business competitiveness and viability, inflation and employment growth; and

                     (b)  promoting social inclusion through increased workforce participation; and

                     (c)  relative living standards and the needs of the low paid; and

                     (d)  the principle of equal remuneration for work of equal or comparable value; and

                     (e)  providing a comprehensive range of fair minimum wages to junior employees, employees to whom training arrangements apply and employees with a disability.

This is the minimum wages objective.

When does the minimum wages objective apply?

             (2)  The minimum wages objective applies to the performance or exercise of:

                     (a)  FWA’s functions or powers under this Part; and

                     (b)  FWA’s functions or powers under Part 2‑3, so far as they relate to setting, varying or revoking modern award minimum wages.

Note:          FWA must also take into account the objects of this Act and any other applicable provisions. For example, if FWA is setting, varying or revoking modern award minimum wages, the modern awards objective also applies (see section 134).

Meaning of modern award minimum wages

             (3)  Modern award minimum wages are the rates of minimum wages in modern awards, including:

                     (a)  wage rates for junior employees, employees to whom training arrangements apply and employees with a disability; and

                     (b)  casual loadings; and

                     (c)  piece rates.

Meaning of setting and varying modern award minimum wages

             (4)  Setting modern award minimum wages is the initial setting of one or more new modern award minimum wages in a modern award, either in the award as originally made or by a later variation of the award. Varying modern award minimum wages is varying the current rate of one or more modern award minimum wages.


 

Division 3Annual wage reviews

Subdivision AMain provisions

285  Annual wage reviews to be conducted

             (1)  FWA must conduct and complete an annual wage review in each financial year.

Note 1:       FWA must be constituted by the Minimum Wage Panel to conduct annual wage reviews, and to make determinations and orders in those reviews (see section 617).

Note 2:       The President may give directions about the conduct of annual wage reviews (see section 582).

             (2)  In an annual wage review, FWA:

                     (a)  must review:

                              (i)  modern award minimum wages; and

                             (ii)  the national minimum wage order; and

                     (b)  may make one or more determinations varying modern awards to set, vary or revoke modern award minimum wages; and

                     (c)  must make a national minimum wage order.

Note:          For provisions about national minimum wage orders, see Division 4.

             (3)  In exercising its power in an annual wage review to make determinations referred to in paragraph (2)(b), FWA must take into account the rate of the national minimum wage that it proposes to set in the review.

286  When annual wage review determinations varying modern awards come into operation

Determinations generally come into operation on 1 July

             (1)  A determination (a variation determination) varying one or more modern awards to set, vary or revoke modern award minimum wages that is made in an annual wage review comes into operation on 1 July in the next financial year.

Later operation of determinations in exceptional circumstances

             (2)  If FWA is satisfied that there are exceptional circumstances justifying why a variation determination should not come into operation until a later day, FWA may specify that later day as the day on which it comes into operation. However, the determination must be limited just to the particular situation to which the exceptional circumstances relate.

Note:          This may mean that FWA needs to make more than one determination, if different circumstances apply to different employees.

             (3)  If a later day is so specified, the variation determination comes into operation on that later day.

Effect of determinations cannot be deferred

             (4)  FWA cannot provide for the effect of a variation determination on modern award minimum wages to be deferred to a day that is later than the day on which the determination comes into operation.

Determinations take effect from first full pay period

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

287  When national minimum wage orders come into operation

Orders come into operation on 1 July

             (1)  A national minimum wage order that is made in an annual wage review comes into operation on 1 July in the next financial year.

Effect of orders cannot be deferred

             (2)  FWA cannot provide for the effect of the order to be deferred to a day that is later than that 1 July.

Orders take effect from first full pay period

             (3)  The order does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after the day the order comes into operation.

Subdivision BProvisions about conduct of annual wage reviews

288  General

                   This Subdivision contains some specific provisions relevant to the conduct of annual wage reviews. For other provisions relevant to the conduct of annual wage reviews, see the general provisions about FWA’s processes in Part 5‑1.

Note:          Relevant provisions of Part 5‑1 include the following:

(a)           section 582 (which deals with the President’s power to give directions);

(b)           section 590 (which deals with FWA’s discretion to inform itself as it considers appropriate, including by commissioning research);

(c)           section 596 (which deals with being represented in a matter before FWA);

(d)           section 601 (which deals with writing and publication requirements).

289  Everyone to have a reasonable opportunity to make and comment on submissions

             (1)  FWA must, in relation to each annual wage review, ensure that all persons and bodies have a reasonable opportunity to make written submissions to FWA for consideration in the review.

             (2)  FWA must:

                     (a)  publish all submissions made to FWA for consideration in the review; and

                     (b)  ensure that all persons and bodies have a reasonable opportunity to make comments to FWA on those submissions for consideration in the review.

             (3)  The publication may be on FWA’s website or by any other means that FWA considers appropriate.

290  President may direct investigations and reports

             (1)  The President may give a direction under section 582 requiring that a matter be investigated, and that a report about the matter be prepared, for consideration in an annual wage review.

             (2)  The direction:

                     (a)  may be given to:

                              (i)  the Minimum Wage Panel; or

                             (ii)  a Minimum Wage Panel Member; or

                            (iii)  a Full Bench that includes one or more Minimum Wage Panel Members; and

                     (b)  must (unless the direction is given to the Minimum Wage Panel) require the report be given to the Minimum Wage Panel.

291  Research must be published

             (1)  If FWA undertakes or commissions research for the purposes of an annual wage review, FWA must publish the research so that submissions can be made addressing issues covered by the research.

             (2)  The publication may be on FWA’s website or by any other means that FWA considers appropriate.

292  Varied wage rates must be published by 1 July

             (1)  If FWA makes one or more determinations varying modern award minimum wages in an annual wage review, FWA must publish the rates of those wages as so varied before 1 July in the next financial year.

Note:          FWA must also publish the modern award as varied (see section 168).

             (2)  The publication may be on FWA’s website or by any other means that FWA considers appropriate.


 

Division 4National minimum wage orders

293  Contravening a national minimum wage order

                   An employer must not contravene a term of a national minimum wage order.

Note:          This section is a civil remedy provision (see Part 4‑1).

294  Content of national minimum wage order—main provisions

Setting minimum wages and the casual loading

             (1)  A national minimum wage order:

                     (a)  must set the national minimum wage; and

                     (b)  must set special national minimum wages for all award/agreement free employees in the following classes:

                              (i)  junior employees;

                             (ii)  employees to whom training arrangements apply;

                            (iii)  employees with a disability; and

                     (c)  must set the casual loading for award/agreement free employees.

Note:          A national minimum wage order must be made in each annual wage review (see section 285).

Requiring employers to pay minimum wages and the casual loading

             (2)  The order:

                     (a)  must require employers to pay employees to whom the national minimum wage applies a base rate of pay that at least equals the national minimum wage; and

                     (b)  must require employers to pay to employees to whom a special national minimum wage applies a base rate of pay that at least equals that special national minimum wage; and

                     (c)  must require employers to pay, to award/agreement free employees who are casual employees, a casual loading that at least equals the casual loading for award/agreement free employees (as applied to the employees’ base rates of pay).

What employees does the national minimum wage apply to?

             (3)  The national minimum wage applies to all award/agreement free employees who are not:

                     (a)  junior employees; or

                     (b)  employees to whom training arrangements apply; or

                     (c)  employees with a disability.

What employees does a special national minimum wage apply to?

             (4)  A special national minimum wage applies to the employees to whom it is expressed in the order to apply. Those employees must be:

                     (a)  all junior employees who are award/agreement free employees, or a specified class of those employees; or

                     (b)  all employees to whom training arrangements apply and who are award/agreement free employees, or a specified class of those employees; or

                     (c)  all employees with a disability who are award/agreement free employees, or a specified class of those employees.

295  Content of national minimum wage order—other matters

Expressing minimum wages and the casual loading

             (1)  In a national minimum wage order:

                     (a)  the national minimum wage, and the special national minimum wages, set by the order must be expressed in a way that produces a monetary amount per hour; and

                     (b)  the casual loading for award/agreement free employees must be expressed as a percentage.

Note:          The means by which the national minimum wage or a special national minimum wage may be expressed include:

(a)           a monetary amount per hour; or

(b)           a monetary amount for a specified number of hours; or

(c)           a method for calculating a monetary amount per hour.

Terms about how the order applies

             (2)  The order may also include terms about how the order, or any of the requirements in it, applies.

296  Variation of national minimum wage order to remove ambiguity or uncertainty or correct error

Permitted variations

             (1)  FWA may make a determination varying a national minimum wage order to remove an ambiguity or uncertainty or to correct an error.

Note:          FWA must be constituted by the Minimum Wage Panel to vary a national minimum wage order (see section 617).

             (2)  If FWA varies a national minimum wage order, FWA must, as soon as practicable, publish the order as varied on its website or by any other means that FWA considers appropriate.

No other variation or revocation permitted

             (3)  A national minimum wage order:

                     (a)  cannot be varied except as referred to in subsection (1); and

                     (b)  cannot be revoked.

297  When determinations varying national minimum wage orders come into operation

Determinations come into operation on specified day

             (1)  A determination varying a national minimum wage order under section 296 comes into operation on the day specified in the determination.

Note:          For when a national minimum wage order comes into operation, see section 287.

             (2)  The specified day must not be earlier than the day on which the determination is made, unless FWA is satisfied that there are exceptional circumstances that justify specifying an earlier day.

Determinations take effect from first full pay period

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

298  Special rule about retrospective variations of national minimum wage orders

Application of this section

             (1)  This section applies if a determination varying a national minimum wage order has a retrospective effect because it comes into operation under subsection 297(2) on a day before the day on which the determination is made.

No creation of liability to pay pecuniary penalty for past conduct

             (2)  If:

                     (a)  a person engaged in conduct before the determination was made; and

                     (b)  but for the retrospective effect of the determination, the conduct would not have contravened a term of the national minimum wage order or an enterprise agreement;

a court must not order the person to pay a pecuniary penalty under Division 2 of Part 4‑1 in relation to the conduct, on the grounds that the conduct contravened a term of the national minimum wage order or enterprise agreement.

Note 1:       This subsection does not affect the powers of a court to make other kinds of orders under Division 2 of Part 4‑1.

Note 2:       A determination varying a national minimum wage order could result in a contravention of a term of an enterprise agreement because of the effect of subsection 206(4).

299  When a national minimum wage order is in operation

                   A national minimum wage order continues in operation until the next national minimum wage order comes into operation.

Note:          For when a national minimum wage order comes into operation, see section 287.


 

Part 2‑7Equal remuneration

Division 1Introduction

300  Guide to this Part

This Part allows FWA to make orders to ensure that there will be equal remuneration for men and women workers for work of equal or comparable value.

301  Meanings of employee and employer

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


 

Division 2Equal remuneration orders

302  FWA may make an order requiring equal remuneration

Power to make an equal remuneration order

             (1)  FWA may make any order (an equal remuneration order) it considers appropriate to ensure that, for employees to whom the order will apply, there will be equal remuneration for work of equal or comparable value.

Meaning of equal remuneration for work of equal or comparable value

             (2)  Equal remuneration for work of equal or comparable value means equal remuneration for men and women workers for work of equal or comparable value.

Who may apply for an equal remuneration order

             (3)  FWA may make the equal remuneration order only on application by any of the following:

                     (a)  an employee to whom the order will apply;

                     (b)  an employee organisation that is entitled to represent the industrial interests of an employee to whom the order will apply;

                     (c)  the Sex Discrimination Commissioner.

FWA must take into account orders and determinations of the Minimum Wage Panel

             (4)  In deciding whether to make an equal remuneration order, FWA must take into account:

                     (a)  orders and determinations made by the Minimum Wage Panel in annual wage reviews; and

                     (b)  the reasons for those orders and determinations.

Restriction on power to make an equal remuneration order

             (5)  However, FWA may make the equal remuneration order only if it is satisfied that, for the employees to whom the order will apply, there is not equal remuneration for work of equal or comparable value.

303  Equal remuneration order may increase, but must not reduce, rates of remuneration

             (1)  Without limiting subsection 302(1), an equal remuneration order may provide for such increases in rates of remuneration as FWA considers appropriate to ensure that, for employees to whom the order will apply, there will be equal remuneration for work of equal or comparable value.

             (2)  An equal remuneration order must not provide for a reduction in an employee’s rate of remuneration.

304  Equal remuneration order may implement equal remuneration in stages

                   An equal remuneration order may implement equal remuneration for work of equal or comparable value in stages (as provided in the order) if FWA considers that it is not feasible to implement equal remuneration for work of equal or comparable value when the order comes into operation.

305  Contravening an equal remuneration order

                   An employer must not contravene a term of an equal remuneration order.

Note:          This section is a civil remedy provision (see Part 4‑1).

306  Inconsistency with modern awards, enterprise agreements and orders of FWA

                   A term of a modern award, an enterprise agreement or an FWA order has no effect to the extent that it is inconsistent with a term of an equal remuneration order.


 

Part 2‑8Transfer of business

Division 1Introduction

307  Guide to this Part

This Part provides for the transfer of enterprise agreements, certain modern awards and certain other instruments if there is a transfer of business from one national system employer to another national system employer.

Division 2 describes when a transfer of business occurs and defines the following key concepts: old employer, new employer, transferring work, transferring employee and transferable instrument.

Division 2 also sets out the circumstances in which enterprise agreements, certain modern awards and certain other instruments that covered the old employer and the transferring employees (including high income employees) cover the new employer, the transferring employees and certain non‑transferring employees and organisations.

Division 3 provides for FWA to make orders in relation to a transfer of business.

308  Meanings of employee and employer

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

309  Object of this Part

                   The object of this Part is to provide a balance between:

                     (a)  the protection of employees’ terms and conditions of employment under enterprise agreements, certain modern awards and certain other instruments; and

                     (b)  the interests of employers in running their enterprises efficiently;

if there is a transfer of business from one employer to another employer.


 

Division 2Transfer of instruments

310  Application of this Division

                   This Division provides for the transfer of rights and obligations under enterprise agreements, certain modern awards and certain other instruments if there is a transfer of business from an old employer to a new employer.

311  When does a transfer of business occur

Meanings of transfer of business, old employer, new employer and transferring work

             (1)  There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:

                     (a)  the employment of an employee of the old employer has terminated;

                     (b)  within 3 months after the termination, the employee becomes employed by the new employer;

                     (c)  the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;

                     (d)  there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).

Meaning of transferring employee

             (2)  An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.

Transfer of assets from old employer to new employer

             (3)  There is a connection between the old employer and the new employer if, in accordance with an arrangement between:

                     (a)  the old employer or an associated entity of the old employer; and

                     (b)  the new employer or an associated entity of the new employer;

the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):

                     (c)  that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and

                     (d)  that relate to, or are used in connection with, the transferring work.

Old employer outsources work to new employer

             (4)  There is a connection between the old employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer.

New employer ceases to outsource work to old employer

             (5)  There is a connection between the old employer and the new employer if:

                     (a)  the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and

                     (b)  the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer.

New employer is associated entity of old employer

             (6)  There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer.

312  Instruments that may transfer

Meaning of transferable instrument

             (1)  Each of the following is a transferable instrument:

                     (a)  an enterprise agreement that has been approved by FWA;

                     (b)  a workplace determination;

                     (c)  a named employer award.

Meaning of named employer award

             (2)  A named employer award is a modern award that is expressed to cover one or more named employers.

313  Transferring employees and new employer covered by transferable instrument

             (1)  If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer, then:

                     (a)  the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer; and

                     (b)  while the transferable instrument covers the new employer and the transferring employee in relation to the transferring work, no other enterprise agreement or named employer award that covers the new employer at the transfer time covers the transferring employee in relation to that work.

             (2)  To avoid doubt, a transferable instrument that covers the new employer and a transferring employee under paragraph (1)(a) includes any individual flexibility arrangement that had effect as a term of the transferable instrument immediately before the termination of the transferring employee’s employment with the old employer.

             (3)  This section has effect subject to any FWA order under subsection 318(1).

314  New non‑transferring employees of new employer may be covered by transferable instrument

             (1)  If:

                     (a)  a transferable instrument covers the new employer because of paragraph 313(1)(a); and

                     (b)  after the transferable instrument starts to cover the new employer, the new employer employs a non‑transferring employee; and

                     (c)  the non‑transferring employee performs the transferring work; and

                     (d)  at the time the non‑transferring employee is employed, no other enterprise agreement or modern award covers the new employer and the non‑transferring employee in relation to that work;

then the transferable instrument covers the new employer and the non‑transferring employee in relation to that work.

             (2)  A non‑transferring employee of a new employer, in relation to a transfer of business, is an employee of the new employer who is not a transferring employee.

             (3)  This section has effect subject to any FWA order under subsection 319(1).

315  Organisations covered by transferable instrument

Employer organisation covered by named employer award

             (1)  If:

                     (a)  a named employer award covers the new employer because of paragraph 313(1)(a); and

                     (b)  the named employer award covered an employer organisation in relation to the old employer immediately before the termination of a transferring employee’s employment with the old employer;

then the named employer award covers the employer organisation in relation to the new employer.

Employee organisation covered by named employer award

             (2)  If:

                     (a)  a named employer award covers the new employer and a transferring employee because of paragraph 313(1)(a); and

                     (b)  the named employer award covered an employee organisation in relation to the transferring employee immediately before the termination of the transferring employee’s employment with the old employer;

then the named employer award covers the employee organisation in relation to:

                     (c)  the transferring employee; and

                     (d)  any non‑transferring employee of the new employer who:

                              (i)  is covered by the named employer award because of a provision of this Part or an FWA order; and

                             (ii)  performs the same work as the transferring employee.

Employee organisation covered by enterprise agreement

             (3)  To avoid doubt, if:

                     (a)  an enterprise agreement covers a transferring employee or a non‑transferring employee because of a provision of this Part or an FWA order; and

                     (b)  the enterprise agreement covered an employee organisation immediately before the termination of the transferring employee’s employment with the old employer;

then the enterprise agreement covers the employee organisation.

316  Transferring employees who are high income employees

             (1)  This section applies if:

                     (a)  the old employer had given a guarantee of annual earnings for a guaranteed period to a transferring employee; and

                     (b)  the transferring employee was a high income employee immediately before the termination of the transferring employee’s employment with the old employer; and

                     (c)  some of the guaranteed period occurs after the time (the transfer time) the transferring employee becomes employed by the new employer; and

                     (d)  an enterprise agreement does not apply to the transferring employee in relation to the transferring work at the transfer time.

             (2)  The guarantee of annual earnings has effect after the transfer time (except as provided in this section) as if it had been given to the transferring employee by the new employer.

             (3)  The new employer is not required to comply with the guarantee of annual earnings in relation to any part of the guaranteed period before the transfer time.

             (4)  The new employer is not required to comply with the guarantee of annual earnings to the extent that it requires the new employer to pay an amount of earnings to the transferring employee, in relation to the part of the guaranteed period after the transfer time, at a rate that is more than the annual rate of the guarantee of annual earnings.

             (5)  If:

                     (a)  the transferring employee is entitled to non‑monetary benefits under the guarantee of annual earnings after the transfer time; and

                     (b)  it is not practicable for the new employer to provide those benefits to the transferring employee;

then the guarantee of annual earnings is taken to be varied so that, instead of the entitlement to those benefits, the transferring employee is entitled to an amount of money that is equivalent to the agreed money value of those benefits.

             (6)  This section does not affect the rights and obligations of the old employer that arose before the transfer time in relation to the guarantee of annual earnings.


 

Division 3Powers of FWA

317  FWA may make orders in relation to a transfer of business

                   This Division provides for FWA to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.

318  Orders relating to instruments covering new employer and transferring employees

Orders that FWA may make

             (1)  FWA may make the following orders:

                     (a)  an order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;

                     (b)  an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.

Who may apply for an order

             (2)  FWA may make the order only on application by any of the following:

                     (a)  the new employer or a person who is likely to be the new employer;

                     (b)  a transferring employee, or an employee who is likely to be a transferring employee;

                     (c)  if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

                     (d)  if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

Matters that FWA must take into account

             (3)  In deciding whether to make the order, FWA must take into account the following:

                     (a)  the views of:

                              (i)  the new employer or a person who is likely to be the new employer; and

                             (ii)  the employees who would be affected by the order;

                     (b)  whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

                     (c)  if the order relates to an enterprise agreement—the nominal expiry date of the agreement;

                     (d)  the public interest.

Restriction on when order may come into operation

             (4)  The order must not come into operation in relation to a particular transferring employee before the later of the following:

                     (a)  the time when the transferring employee becomes employed by the new employer;

                     (b)  the day on which the order is made.

319  Orders relating to instruments covering new employer and non‑transferring employees

Orders that FWA may make

             (1)  FWA may make the following orders:

                     (a)  an order that a transferable instrument that would, or would be likely to, cover the new employer and a non‑transferring employee because of subsection 314(1) does not, or will not, cover the non‑transferring employee;

                     (b)  an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer;

                     (c)  an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer.

Note:          Orders may be made under paragraphs (1)(b) and (c) in relation to a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non‑transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover the new employer.

Who may apply for an order

             (2)  FWA may make the order only on application by any of the following:

                     (a)  the new employer or a person who is likely to be the new employer;

                     (b)  a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer;

                     (c)  if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

                     (d)  if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

Matters that FWA must take into account

             (3)  In deciding whether to make the order, FWA must take into account the following:

                     (a)  the views of:

                              (i)  the new employer or a person who is likely to be the new employer; and

                             (ii)  the employees who would be affected by the order;

                     (b)  whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

                     (c)  if the order relates to an enterprise agreement—the nominal expiry date of the agreement;

                     (d)  the public interest.

Restriction on when order may come into operation

             (4)  The order must not come into operation in relation to a particular non‑transferring employee before the later of the following:

                     (a)  the time when the non‑transferring employee starts to perform the transferring work for the new employer;

                     (b)  the day on which the order is made.

320  Variation of transferable instruments

Application of this section

             (1)  This section applies in relation to a transferable instrument that covers, or is likely to cover, the new employer because of a provision of this Part.

Power to vary transferable instrument

             (2)  FWA may vary the transferable instrument:

                     (a)  to remove terms that FWA is satisfied are not, or will not be, capable of meaningful operation because of the transfer of business to the new employer; or

                     (b)  to remove an ambiguity or uncertainty about how a term of the instrument operates if:

                              (i)  the ambiguity or uncertainty has arisen, or will arise, because of the transfer of business to the new employer; and

                             (ii)  FWA is satisfied that the variation will remove the ambiguity or uncertainty.

Who may apply for a variation

             (3)  FWA may make the variation only on application by:

                     (a)  a person who is, or is likely to be, covered by the transferable instrument; or

                     (b)  if the application is to vary a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee who is, or is likely to be, covered by the named employer award.

Matters that FWA must take into account

             (4)  In deciding whether to make the variation, FWA must take into account the following:

                     (a)  the views of:

                              (i)  the new employer or a person who is likely to be the new employer; and

                             (ii)  the employees who would be affected by the transferable instrument as varied;

                     (b)  whether any employees would be disadvantaged by the transferable instrument as varied in relation to their terms and conditions of employment;

                     (c)  if the transferable instrument is an enterprise agreement—the nominal expiry date of the agreement;

                     (d)  the public interest.

Restriction on when variation may come into operation

             (5)  A variation of a transferable instrument under subsection (2) must not come into operation before the later of the following:

                     (a)  the time when the transferable instrument starts to cover the new employer;

                     (b)  the day on which the variation is made.


 

Part 2‑9Other terms and condition of employment

Division 1Introduction

321  Guide to this Part

This Part deals with other terms and conditions of employment.

Division 2 is about the frequency and methods of payment of amounts payable to national system employees in relation to the performance of work, and the circumstances in which a national system employer may make deductions from such amounts.

Division 3 is about the guarantee of annual earnings that may be given to a national system employee whose earnings exceed the high income threshold. Modern awards do not apply to such an employee.

322  Meanings of employee and employer

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


 

Division 2Payment of wages

323  Method and frequency of payment

             (1)  An employer must pay an employee amounts payable to the employee in relation to the performance of work:

                     (a)  in full (except as provided by section 324); and

                     (b)  in money by one, or a combination, of the methods referred to in subsection (2); and

                     (c)  at least monthly.

Note 1:       This subsection is a civil remedy provision (see Part 4‑1).

Note 2:       Amounts referred to in this subsection include the following if they become payable during a relevant period:

(a)           incentive‑based payments and bonuses;

(b)           loadings;

(c)           monetary allowances;

(d)           overtime or penalty rates;

(e)           leave payments.

             (2)  The methods are as follows:

                     (a)  cash;

                     (b)  cheque, money order, postal order or similar order, payable to the employee;

                     (c)  the use of an electronic funds transfer system to credit an account held by the employee;

                     (d)  a method authorised under a modern award or an enterprise agreement.

             (3)  Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

324  Permitted deductions

                   An employer may deduct an amount from an amount payable to an employee in accordance with subsection 323(1) if:

                     (a)  the deduction is authorised in writing by the employee and is principally for the employee’s benefit; or

                     (b)  the deduction is authorised by the employee in accordance with an enterprise agreement; or

                     (c)  the deduction is authorised by or under a modern award or an FWA order; or

                     (d)  the deduction is authorised by or under a law of the Commonwealth, a State or a Territory, or an order of a court.

Note 1:       A deduction in accordance with a salary sacrifice or other arrangement, under which an employee chooses to:

(a)           forgo an amount payable to the employee in relation to the performance of work; but

(b)           receive some other form of benefit or remuneration;

                   will be permitted if it is made in accordance with this section and the other provisions of this Division.

Note 2:       Certain terms of modern awards, enterprise agreements and contracts of employment relating to deductions have no effect (see section 326). A deduction made in accordance with such a term will not be authorised for the purposes of this section.

325  Unreasonable requirements to spend amount

             (1)  An employer must not directly or indirectly require an employee to spend any part of an amount payable to the employee in relation to the performance of work if the requirement is unreasonable in the circumstances.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

             (2)  The regulations may prescribe circumstances in which a requirement referred to in subsection (1) is or is not reasonable.

326  Certain terms have no effect

Unreasonable payments and deductions for benefit of employer

             (1)  A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term:

                     (a)  permits, or has the effect of permitting, an employer to deduct an amount from an amount that is payable to the employee in relation to the performance of work; or

                     (b)  requires, or has the effect of requiring, an employee to make a payment to an employer or another person;

if the deduction or payment is:

                     (c)  directly or indirectly for the benefit of the employer; and

                     (d)  unreasonable in the circumstances.

             (2)  The regulations may prescribe circumstances in which a deduction or payment referred to in subsection (1) is or is not reasonable.

Unreasonable requirements to spend an amount

             (3)  A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term:

                     (a)  permits, or has the effect of permitting, an employer to make a requirement that would contravene subsection 325(1); or

                     (b)  directly or indirectly requires an employee to spend an amount, if the requirement would contravene subsection 325(1) if it had been made by an employer.

327  Things given or provided, and amounts required to be spent, in contravention of this Division

                   In proceedings for recovery of an amount payable to an employee in relation to the performance of work:

                     (a)  anything given or provided by the employer contrary to paragraph 323(1)(b) and subsection 323(3) is taken never to have been given or provided to the employee; and

                     (b)  any amount that the employee has been required to spend contrary to subsection 325(1), or in accordance with a term to which subsection 326(3) applies, is taken never to have been paid to the employee.


 

Division 3Guarantee of annual earnings

328  Employer obligations in relation to guarantee of annual earnings

Employer must comply with guarantee

             (1)  An employer that has given a guarantee of annual earnings to an employee must (subject to any reductions arising from circumstances in which the employer is required or entitled to reduce the employee’s earnings) comply with the guarantee during any period during which the employee:

                     (a)  is a high income employee of the employer; and

                     (b)  is covered by a modern award that is in operation.

Note 1:       Examples of circumstances in which the employer is required or entitled to reduce the employee’s earnings are unpaid leave or absence, and periods of industrial action (see Division 9 of Part 3‑3).

Note 2:       This subsection is a civil remedy provision (see Part 4‑1).

Employer must comply with guarantee for period before termination

             (2)  If:

                     (a)  the employment of a high income employee is terminated before the end of the guaranteed period; and

                     (b)  either or both of the following apply:

                              (i)  the employer terminates the employment;

                             (ii)  the employee becomes a transferring employee in relation to a transfer of business from the employer to a new employer, and the guarantee of annual earnings has effect under subsection 316(2) as if it had been given to the employee by the new employer; and

                     (c)  the employee is covered by a modern award that is in operation at the time of the termination;

the employer must pay earnings to the employee in relation to the part of the guaranteed period before the termination at the annual rate of the guarantee of annual earnings.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

Employer must give notice of consequences

             (3)  Before or at the time of giving a guarantee of annual earnings to an employee covered by a modern award that is in operation, an employer must notify the employee in writing that a modern award will not apply to the employee during any period during which the annual rate of the guarantee of annual earnings exceeds the high income threshold.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

329  High income employee

             (1)  A full‑time employee is a high income employee of an employer at a time if:

                     (a)  the employee has a guarantee of annual earnings for the guaranteed period; and

                     (b)  the time occurs during the period; and

                     (c)  the annual rate of the guarantee of annual earnings exceeds the high income threshold at that time.

             (2)  An employee other than a full‑time employee is a high‑income employee of an employer at a time if:

                     (a)  the employee has a guarantee of annual earnings for the guaranteed period; and

                     (b)  the time occurs during the period; and

                     (c)  the annual rate of the guarantee of annual earnings would have exceeded the high income threshold at that time if the employee were employed on a full‑time basis at the same rate of earnings.

             (3)  To avoid doubt, the employee does not have a guarantee of annual earnings for the guaranteed period if the employer revokes the guarantee of annual earnings with the employee’s agreement.

330  Guarantee of annual earnings and annual rate of guarantee

             (1)  An undertaking given by an employer to an employee is a guarantee of annual earnings if:

                     (a)  the employee is covered by a modern award that is in operation; and

                     (b)  the undertaking is an undertaking in writing to pay the employee an amount of earnings in relation to the performance of work during a period of 12 months or more; and

                     (c)  the employee agrees to accept the undertaking, and agrees with the amount of the earnings; and

                     (d)  the undertaking and the employee’s agreement are given before the start of the period, and within 14 days after:

                              (i)  the day the employee is employed; or

                             (ii)  a day on which the employer and employee agree to vary the terms and conditions of the employee’s employment; and

                     (e)  an enterprise agreement does not apply to the employee’s employment at the start of the period.

             (2)  However, if:

                     (a)  an employee is employed for a period shorter than 12 months; or

                     (b)  an employee will perform duties of a particular kind for a period shorter than 12 months;

the undertaking may be given for that shorter period.

             (3)  The annual rate of the guarantee of annual earnings is the annual rate of the earnings covered by the undertaking.

331  Guaranteed period

                   The guaranteed period for a guarantee of annual earnings is the period that:

                     (a)  starts at the start of the period of the undertaking that is the guarantee of annual earnings; and

                     (b)  ends at the earliest of the following:

                              (i)  the end of that period;

                             (ii)  an enterprise agreement starting to apply to the employment of the employee;

                            (iii)  the employer revoking the guarantee of annual earnings with the employee’s agreement.

332  Earnings

             (1)  An employee’s earnings include:

                     (a)  the employee’s wages; and

                     (b)  amounts applied or dealt with in any way on the employee’s behalf or as the employee directs; and

                     (c)  the agreed money value of non‑monetary benefits; and

                     (d)  amounts or benefits prescribed by the regulations.

             (2)  However, an employee’s earnings do not include the following:

                     (a)  payments the amount of which cannot be determined in advance;

                     (b)  reimbursements;

                     (c)  contributions to a superannuation fund to the extent that they are contributions to which subsection (4) applies;

                     (d)  amounts prescribed by the regulations.

Note:          Some examples of payments covered by paragraph (a) are commissions, incentive‑based payments and bonuses, and overtime (unless the overtime is guaranteed).

             (3)  Non‑monetary benefits are benefits other than an entitlement to a payment of money:

                     (a)  to which the employee is entitled in return for the performance of work; and

                     (b)  for which a reasonable money value has been agreed by the employee and the employer;

but does not include a benefit prescribed by the regulations.

             (4)  This subsection applies to contributions that the employer makes to a superannuation fund to the extent that one or more of the following applies:

                     (a)  the employer would have been liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed;

                     (b)  the employer is required to contribute to the fund for the employee’s benefit in relation to a defined benefit interest (within the meaning of section 292‑175 of the Income Tax Assessment Act 1997) of the employee;

                     (c)  the employer is required to contribute to the fund for the employee’s benefit under a law of the Commonwealth, a State or a Territory.

333  High income threshold

                   The high income threshold is the amount prescribed by, or worked out in the manner prescribed by, the regulations.


 

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

Part 3‑1General protections

Division 1Introduction

334  Guide to this Part

This Part provides general workplace protections.

Division 2 sets out the circumstances in which this Part applies.

Division 3 protects workplace rights, and the exercise of those rights.

Division 4 protects freedom of association and involvement in lawful industrial activities.

Division 5 provides other protections, including protection from discrimination.

Division 6 deals with sham arrangements.

Division 7 sets out rules for the purposes of establishing contraventions of this Part.

Division 8 deals with compliance. In most cases, a general protections dispute that involves dismissal will be dealt with by a court only if the dispute has not been resolved by FWA.

335  Meanings of employee and employer

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

336  Objects of this Part

                   The objects of this Part are as follows:

                     (a)  to protect workplace rights;

                     (b)  to protect freedom of association by ensuring that persons are:

                              (i)  free to become, or not become, members of industrial associations; and

                             (ii)  free to be represented, or not represented, by industrial associations; and

                            (iii)  free to participate, or not participate, in lawful industrial activities;

                     (c)  to provide protection from workplace discrimination;

                     (d)  to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.


 

Division 2Application of this Part

337  Application of this Part

                   This Part applies only to the extent provided by this Division.

338  Action to which this Part applies

             (1)  This Part applies to the following action:

                     (a)  action taken by a constitutionally‑covered entity;

                     (b)  action that affects, is capable of affecting or is taken with intent to affect the activities, functions, relationships or business of a constitutionally‑covered entity;

                     (c)  action that consists of advising, encouraging or inciting, or action taken with intent to coerce, a constitutionally‑covered entity:

                              (i)  to take, or not take, particular action in relation to another person; or

                             (ii)  to threaten to take, or not take, particular action in relation to another person;

                     (d)  action taken in a Territory or a Commonwealth place;

                     (e)  action taken by:

                              (i)  a trade and commerce employer; or

                             (ii)  a Territory employer;

                            that affects, is capable of affecting or is taken with intent to affect an employee of the employer;

                      (f)  action taken by an employee of:

                              (i)  a trade and commerce employer; or

                             (ii)  a Territory employer;

                            that affects, is capable of affecting or is taken with intent to affect the employee’s employer.

             (2)  Each of the following is a constitutionally‑covered entity:

                     (a)  a constitutional corporation;

                     (b)  the Commonwealth;

                     (c)  a Commonwealth authority;

                     (d)  a body corporate incorporated in a Territory;

                     (e)  an organisation.

             (3)  A trade and commerce employer is a national system employer within the meaning of paragraph 14(d).

             (4)  A Territory employer is a national system employer within the meaning of paragraph 14(f).

339  Additional effect of this Part

                   In addition to the effect provided by section 338, this Part also has the effect it would have if any one or more of the following applied:

                     (a)  a reference to an employer in one or more provisions of this Part were a reference to a national system employer;

                     (b)  a reference to an employee in one or more provisions of this Part were a reference to a national system employee;

                     (c)  a reference to an industrial association in one or more provisions of this Part were a reference to an organisation, or another association of employees or employers, a purpose of which is the protection and promotion of the interests of national system employees or national system employers in matters concerning employment;

                     (d)  a reference to an officer of an industrial association in one or more provisions of this Part were a reference to an officer of an organisation;

                     (e)  a reference to a person, another person or a third person in one or more provisions of this Part were a reference to a constitutionally‑covered entity;

                      (f)  a reference to a workplace law in one or more provisions of this Part were a reference to a workplace law of the Commonwealth;

                     (g)  a reference to a workplace instrument in one or more provisions of this Part were a reference to a workplace instrument made under, or recognised by, a law of the Commonwealth;

                     (h)  a reference to an industrial body in one or more provisions of this Part were a reference to an industrial body performing functions or exercising powers under a law of the Commonwealth.


 

Division 3Workplace rights

340  Protection

             (1)  A person must not take adverse action against another person:

                     (a)  because the other person:

                              (i)  has a workplace right; or

                             (ii)  has, or has not, exercised a workplace right; or

                            (iii)  proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

                     (b)  to prevent the exercise of a workplace right by the other person.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

             (2)  A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

341  Meaning of workplace right

Meaning of workplace right

             (1)  A person has a workplace right if the person:

                     (a)  is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

                     (b)  is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

                     (c)  is able to make a complaint or inquiry:

                              (i)  to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

                             (ii)  if the person is an employee—in relation to his or her employment.

Meaning of process or proceedings under a workplace law or workplace instrument

             (2)  Each of the following is a process or proceedings under a workplace law or workplace instrument:

                     (a)  a conference conducted or hearing held by FWA;

                     (b)  court proceedings under a workplace law or workplace instrument;

                     (c)  protected industrial action;

                     (d)  a protected action ballot;

                     (e)  making, varying or terminating an enterprise agreement;

                      (f)  appointing, or terminating the appointment of, a bargaining representative;

                     (g)  making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

                     (h)  agreeing to cash out paid annual leave or paid personal/carer’s leave;

                      (i)  making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);

                      (j)  dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

                     (k)  any other process or proceedings under a workplace law or workplace instrument.

Prospective employees taken to have workplace rights

             (3)  A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.

Note:          Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.

Exceptions relating to prospective employees

             (4)  Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.

             (5)  Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2‑8 (which deals with transfer of business).

342  Meaning of adverse action

             (1)  The following table sets out circumstances in which a person takes adverse action against another person.

 

Meaning of adverse action

Item

Column 1

Adverse action is taken by ...

Column 2

if ...

1

an employer against an employee

the employer:

(a)  dismisses the employee; or

(b) injures the employee in his or her employment; or

(c)  alters the position of the employee to the employee’s prejudice; or

(d) discriminates between the employee and other employees of the employer.

2

a prospective employer against a prospective employee

the prospective employer:

(a)  refuses to employ the prospective employee; or

(b) discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.

3

a person (the principal) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor

the principal:

(a)  terminates the contract; or

(b) injures the independent contractor in relation to the terms and conditions of the contract; or

(c)  alters the position of the independent contractor to the independent contractor’s prejudice; or

(d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or

(e)  refuses to supply, or agree to supply, goods or services to the independent contractor.

4

a person (the principal) proposing to enter into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor

the principal:

(a)  refuses to engage the independent contractor; or

(b) discriminates against the independent contractor in the terms or conditions on which the principal offers to engage the independent contractor; or

(c)  refuses to make use of, or agree to make use of, services offered by the independent contractor; or

(d) refuses to supply, or agree to supply, goods or services to the independent contractor.

5

an employee against his or her employer

the employee:

(a)  ceases work in the service of the employer; or

(b) takes industrial action against the employer.

6

an independent contractor against a person who has entered into a contract for services with the independent contractor

the independent contractor:

(a)  ceases work under the contract; or

(b) takes industrial action against the person.

7

an industrial association, or an officer or member of an industrial association, against a person

the industrial association, or the officer or member of the industrial association:

(a)  organises or takes industrial action against the person; or

(b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment or prospective employment; or

(c)  if the person is an independent contractor—takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or

(d) if the person is a member of the association—imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member).

 

             (2)  Adverse action includes:

                     (a)  threatening to take action covered by the table in subsection (1); and

                     (b)  organising such action.

             (3)  Adverse action does not include action that is authorised by or under:

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

                     (b)  a law of a State or Territory prescribed by the regulations.

             (4)  Without limiting subsection (3), adverse action does not include an employer standing down an employee who is:

                     (a)  engaged in protected industrial action; and

                     (b)  employed under a contract of employment that provides for the employer to stand down the employee in the circumstances.

343  Coercion

             (1)  A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

                     (a)  exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

                     (b)  exercise, or propose to exercise, a workplace right in a particular way.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

             (2)  Subsection (1) does not apply to protected industrial action.

344  Undue influence or pressure

                   An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:

                     (a)  make, or not make, an agreement or arrangement under the National Employment Standards; or

                     (b)  make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or

                     (c)  agree to, or terminate, an individual flexibility arrangement; or

                     (d)  accept a guarantee of annual earnings; or

                     (e)  agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.

Note:          This section is a civil remedy provision (see Part 4‑1).

345  Misrepresentations

             (1)  A person must not knowingly or recklessly make a false or misleading representation about:

                     (a)  the workplace rights of another person; or

                     (b)  the exercise, or the effect of the exercise, of a workplace right by another person.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

             (2)  Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.


 

Division 4Industrial activities

346  Protection

                   A person must not take adverse action against another person because the other person:

                     (a)  is or is not, or was or was not, an officer or member of an industrial association; or

                     (b)  engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or

                     (c)  does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).

Note:          This section is a civil remedy provision (see Part 4‑1).

347  Meaning of engages in industrial activity

                   A person engages in industrial activity if the person:

                     (a)  becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or

                     (b)  does, or does not:

                              (i)  become involved in establishing an industrial association; or

                             (ii)  organise or promote a lawful activity for, or on behalf of, an industrial association; or

                            (iii)  encourage, or participate in, a lawful activity organised or promoted by an industrial association; or

                            (iv)  comply with a lawful request made by, or requirement of, an industrial association; or

                             (v)  represent or advance the views, claims or interests of an industrial association; or

                            (vi)  pay a fee (however described) to an industrial association; or

                           (vii)  seek to be represented by an industrial association; or

                     (c)  organises or promotes an unlawful activity for, or on behalf of, an industrial association; or

                     (d)  encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or

                     (e)  complies with an unlawful request made by, or requirement of, an industrial association; or

                      (f)  takes part in industrial action; or

                     (g)  makes a payment:

                              (i)  that, because of Division 9 of Part 3‑3 (which deals with payments relating to periods of industrial action), an employer must not pay; or

                             (ii)  to which an employee is not entitled because of that Division.

348  Coercion

                   A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.

Note:          This section is a civil remedy provision (see Part 4‑1).

349  Misrepresentations

             (1)  A person must not knowingly or recklessly make a false or misleading representation about either of the following:

                     (a)  another person’s obligation to engage in industrial activity;

                     (b)  another person’s obligation to disclose whether he or she, or a third person:

                              (i)  is or is not, or was or was not, an officer or member of an industrial association; or

                             (ii)  is or is not engaging, or has or has not engaged, in industrial activity.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

             (2)  Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

350  Inducements—membership action

             (1)  An employer must not induce an employee to take, or propose to take, membership action.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

             (2)  A person who has entered into a contract for services with an independent contractor must not induce the independent contractor to take, or propose to take, membership action.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

             (3)  A person takes membership action if the person becomes, does not become, remains or ceases to be, an officer or member of an industrial association.


 

Division 5Other protections

351  Discrimination

             (1)  An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

             (2)  However, subsection (1) does not apply to action that is:

                     (a)  authorised by, or under, a State or Territory anti‑discrimination law; or

                     (b)  taken because of the inherent requirements of the particular position concerned; or

                     (c)  if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:

                              (i)  in good faith; and

                             (ii)  to avoid injury to the religious susceptibilities of adherents of that religion or creed.

Note:          Subsection (1) does not apply to action authorised by or under a law of the Commonwealth: see subsection 342(3).

             (3)  Each of the following is a State or Territory anti‑discrimination law:

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

                     (b)  the Equal Opportunity Act 1995 of Victoria;

                     (c)  the Anti‑Discrimination Act 1991 of Queensland;

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

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

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

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

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

352  Temporary absence—illness or injury

                   An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

Note:          This section is a civil remedy provision (see Part 4‑1).

353  Bargaining services fees

             (1)  An industrial association, or an officer or member of an industrial association, must not:

                     (a)  demand; or

                     (b)  purport to demand; or

                     (c)  do anything that would:

                              (i)  have the effect of demanding; or

                             (ii)  purport to have the effect of demanding;

payment of a bargaining services fee.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

             (2)  A bargaining services fee is a fee (however described) payable:

                     (a)  to an industrial association; or

                     (b)  to someone in lieu of an industrial association;

wholly or partly for the provision, or purported provision, of bargaining services, but does not include membership fees.

             (3)  Bargaining services are services provided by, or on behalf of, an industrial association in relation to an enterprise agreement, or a proposed enterprise agreement (including in relation to bargaining for, or the making, approval, operation, variation or termination of, the enterprise agreement, or proposed enterprise agreement).

Exception for fees payable under contract

             (4)  Subsection (1) does not apply if the fee is payable to the industrial association under a contract for the provision of bargaining services.

354  Coverage by particular instruments

             (1)  A person must not discriminate against an employer because:

                     (a)  employees of the employer are covered, or not covered, by:

                              (i)  provisions of the National Employment Standards; or

                             (ii)  a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or

                            (iii)  an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation; or

                     (b)  it is proposed that employees of the employer be covered, or not be covered, by:

                              (i)  a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or

                             (ii)  an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

             (2)  Subsection (1) does not apply to protected industrial action.

355  Coercion—allocation of duties etc. to particular person

                   A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

                     (a)  employ, or not employ, a particular person; or

                     (b)  engage, or not engage, a particular independent contractor; or

                     (c)  allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or

                     (d)  designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities.

Note:          This section is a civil remedy provision (see Part 4‑1).

356  Objectionable terms

                   A term of a workplace instrument, or an agreement or arrangement (whether written or unwritten), has no effect to the extent that it is an objectionable term.


 

Division 6Sham arrangements

357  Misrepresenting employment as independent contracting arrangement

             (1)  A person (the employer) that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed by the employer is a contract for services under which the individual performs, or would perform, work as an independent contractor.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

             (2)  Subsection (1) does not apply if the employer proves that, when the representation was made, the employer:

                     (a)  did not know; and

                     (b)  was not reckless as to whether;

the contract was a contract of employment rather than a contract for services.

358  Dismissing to engage as independent contractor

                   An employer must not dismiss, or threaten to dismiss, an individual who:

                     (a)  is an employee of the employer; and

                     (b)  performs particular work for the employer;

in order to engage the individual as an independent contractor to perform the same, or substantially the same, work under a contract for services.

Note:          This section is a civil remedy provision (see Part 4‑1).

359  Misrepresentation to engage as independent contractor

                   A person (the employer) that employs, or has at any time employed, an individual to perform particular work must not make a statement that the employer knows is false in order to persuade or influence the individual to enter into a contract for services under which the individual will perform, as an independent contractor, the same, or substantially the same, work for the employer.

Note:          This section is a civil remedy provision (see Part 4‑1).


 

Division 7Ancillary rules

360  Multiple reasons for action

                   For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

361  Reason for action to be presumed unless proved otherwise

             (1)  If:

                     (a)  in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

                     (b)  taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

             (2)  Subsection (1) does not apply in relation to orders for an interim injunction.

362  Advising, encouraging, inciting or coercing action

             (1)  If:

                     (a)  for a particular reason (the first person’s reason), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and

                     (b)  the action, if taken by the second person for the first person’s reason, would contravene a provision of this Part;

the first person is taken to have contravened the provision.

             (2)  Subsection (1) does not limit section 550.

363  Actions of industrial associations

             (1)  For the purposes of this Part, each of the following is taken to be action of an industrial association:

                     (a)  action taken by the committee of management of the industrial association;

                     (b)  action taken by an officer or agent of the industrial association acting in that capacity;

                     (c)  action taken by a member, or group of members, of the industrial association if the action is authorised by:

                              (i)  the rules of the industrial association; or

                             (ii)  the committee of management of the industrial association; or

                            (iii)  an officer or agent of the industrial association acting in that capacity;

                     (d)  action taken by a member of the industrial association who performs the function of dealing with an employer on behalf of the member and other members of the industrial association, acting in that capacity;

                     (e)  if the industrial association is an unincorporated industrial association that does not have a committee of management—action taken by a member, or group of members, of the industrial association.

             (2)  Paragraphs (1)(c) and (d) do not apply if:

                     (a)  the committee of management of the industrial association; or

                     (b)  a person authorised by the committee; or

                     (c)  an officer of the industrial association;

has taken all reasonable steps to prevent the action.

             (3)  If, for the purposes of this Part, it is necessary to establish the state of mind of an industrial association in relation to particular action, it is enough to show:

                     (a)  that the action was taken by a person, or a group, referred to in paragraphs (1)(a) to (e); and

                     (b)  that the person, or a person in the group, had that state of mind.

             (4)  Subsections (1) to (3) have effect despite subsections 793(1) and (2) (which deal with liabilities of bodies corporate).

364  Unincorporated industrial associations

Person includes unincorporated industrial association

             (1)  For the purposes of this Part, a reference to a person includes a reference to an unincorporated industrial association.

Liability for contraventions by unincorporated industrial associations

             (2)  A contravention of this Part that would otherwise be committed by an unincorporated industrial association is taken to have been committed by each member, officer or agent of the industrial association who:

                     (a)  took, or took part in, the relevant action; and

                     (b)  did so with the relevant state of mind.


 

Division 8Compliance

Subdivision AContraventions involving dismissal

365  Application for FWA to deal with a dispute

                   If:

                     (a)  a person has been dismissed; and

                     (b)  the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to FWA for FWA to deal with the dispute.

366  Time for application

             (1)  An application under section 365 must be made:

                     (a)  within 60 days after the dismissal took effect; or

                     (b)  within such further period as FWA allows under subsection (2).

             (2)  FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

                     (a)  the reason for the delay; and

                     (b)  any action taken by the person to dispute the dismissal; and

                     (c)  prejudice to the employer (including prejudice caused by the delay); and

                     (d)  the merits of the application; and

                     (e)  fairness as between the person and other persons in a like position.

367  Application fees

             (1)  The application must be accompanied by any fee prescribed by the regulations.

             (2)  The regulations may prescribe:

                     (a)  a fee for making an application to FWA under section 365; and

                     (b)  a method for indexing the fee; and

                     (c)  the circumstances in which all or part of the fee may be waived or refunded.

368  Conferences

             (1)  If an application is made under section 365, FWA must conduct a conference to deal with the dispute.

Note 1:       For conferences, see section 592.

Note 2:       FWA may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that FWA might make is that an application be made under Part 3‑2 (which deals with unfair dismissal) in relation to the dispute.

             (2)  Despite subsection 592(3), FWA must conduct the conference in private.

369  Certificate if dispute not resolved

                   If FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, FWA must issue a certificate to that effect.

370  Advice on general protections court application

             (1)  If FWA considers, taking into account all the materials before it, that a general protections court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly.

             (2)  A general protections court application is an application to a court under Division 2 of Part 4‑1 for orders in relation to a contravention of this Part.

371  General protections court applications

FWA conference to be held before application

             (1)  A person who is entitled to apply under section 365 to FWA for FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless:

                     (a)  FWA has issued a certificate under section 369 in relation to the dispute; or

                     (b)  the general protections court application includes an application for an interim injunction.

Time for application

             (2)  Despite section 544, a general protections court application that requires a certificate under section 369 must be made within 14 days after the certificate is issued.

Subdivision BOther contraventions

372  Application for FWA to deal with a dispute

                   If:

                     (a)  a person alleges a contravention of this Part; and

                     (b)  the person is not entitled to apply to FWA under section 365 for FWA to deal with the dispute;

the person may apply to FWA under this section for FWA to deal with the dispute.

373  Application fees

             (1)  The application must be accompanied by any fee prescribed by the regulations.

             (2)  The regulations may prescribe:

                     (a)  a fee for making an application to FWA under section 372; and

                     (b)  a method for indexing the fee; and

                     (c)  the circumstances in which all or part of the fee may be waived or refunded.

374  Conferences

             (1)  If:

                     (a)  an application is made under section 372; and

                     (b)  the parties to the dispute agree to participate;

FWA must conduct a conference to deal with the dispute.

Note 1:       For conferences, see section 592.

Note 2:       FWA may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

             (2)  Despite subsection 592(3), FWA must conduct the conference in private.

375  Advice on general protections court application

                   If FWA considers, taking into account all the materials before it, that a general protections court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly.

Subdivision CConference costs

376  Costs orders against lawyers and paid agents

             (1)  If FWA has granted permission in accordance with section 596 for a person to be represented by a lawyer or paid agent in relation to an application under section 365 or 372, FWA may make an order for costs against the lawyer or paid agent if FWA is satisfied:

                     (a)  that:

                              (i)  the lawyer or paid agent caused costs to be incurred by another party to the dispute because the lawyer or paid agent encouraged the person to make the application; and

                             (ii)  it should have been reasonably apparent that the application would have no reasonable prospect of success; or

                     (b)  that the lawyer or paid agent caused costs to be incurred by another party to the dispute because of an unreasonable act or omission of the lawyer or paid agent in connection with the conduct or continuation of the dispute.

             (2)  FWA may make an order under this section only if the other party has applied for it under section 377.

             (3)  This section does not limit FWA’s power to order costs under section 611.

377  Applications for costs orders

                   An application for an order for costs in relation to an application under section 365 or 372 must be made within 14 days after FWA finishes dealing with the dispute.

378  Contravening costs orders

                   A person to whom an order for costs made under section 376 applies must not contravene a term of the order.

Note:          This section is a civil remedy provision (see Part 4‑1).


 

Part 3‑2Unfair dismissal

Division 1Introduction

379  Guide to this Part

This Part is about the unfair dismissal of national system employees, and the granting of remedies for unfair dismissal.

Division 2 sets out when a person is protected from unfair dismissal.

Division 3 sets out the elements that make up an unfair dismissal.

Division 4 sets out the remedies FWA can grant for unfair dismissal.

Division 5 is about the procedural aspects of getting remedies for unfair dismissal.

380  Meanings of employee and employer

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

381  Object of this Part

             (1)  The object of this Part is:

                     (a)  to establish a framework for dealing with unfair dismissal that balances:

                              (i)  the needs of business (including small business); and

                             (ii)  the needs of employees; and

                     (b)  to establish procedures for dealing with unfair dismissal that:

                              (i)  are quick, flexible and informal; and

                             (ii)  address the needs of employers and employees; and

                     (c)  to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

             (2)  The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note:          The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.


 

Division 2Protection from unfair dismissal

382  When a person is protected from unfair dismissal

                   A person is protected from unfair dismissal at a time if, at that time:

                     (a)  the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

                     (b)  one or more of the following apply:

                              (i)  a modern award covers the person;

                             (ii)  an enterprise agreement applies to the person in relation to the employment;

                            (iii)  the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

383  Meaning of minimum employment period

                   The minimum employment period is:

                     (a)  if the employer is not a small business employer—6 months ending at the earlier of the following times:

                              (i)  the time when the person is given notice of the dismissal;

                             (ii)  immediately before the dismissal; or

                     (b)  if the employer is a small business employer—one year ending at that time.

384  Period of employment

             (1)  An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

             (2)  However:

                     (a)  a period of service as a casual employee does not count towards the employee’s period of employment unless:

                              (i)  the employment as a casual employee was on a regular and systematic basis; and

                             (ii)  during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

                     (b)  if:

                              (i)  the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

                             (ii)  the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

                            (iii)  the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

                            the period of service with the old employer does not count towards the employee’s period of employment with the new employer.


 

Division 3What is an unfair dismissal

385  What is an unfair dismissal

                   A person has been unfairly dismissed if FWA is satisfied that:

                     (a)  the person has been dismissed; and

                     (b)  the dismissal was harsh, unjust or unreasonable; and

                     (c)  the dismissal was not consistent with the Small Business Fair Dismissal Code; and

                     (d)  the dismissal was not a case of genuine redundancy.

Note:          For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

386  Meaning of dismissed

             (1)  A person has been dismissed if:

                     (a)  the person’s employment with his or her employer has been terminated on the employer’s initiative; or

                     (b)  the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

             (2)  However, a person has not been dismissed if:

                     (a)  the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

                     (b)  the person was an employee:

                              (i)  to whom a training arrangement applied; and

                             (ii)  whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

                            and the employment has terminated at the end of the training arrangement; or

                     (c)  the person was demoted in employment but:

                              (i)  the demotion does not involve a significant reduction in his or her remuneration or duties; and

                             (ii)  he or she remains employed with the employer that effected the demotion.

             (3)  Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

387  Criteria for considering harshness etc.

                   In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

                     (a)  whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

                     (b)  whether the person was notified of that reason; and

                     (c)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

                     (d)  any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

                     (e)  if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

                      (f)  the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

                     (g)  the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

                     (h)  any other matters that FWA considers relevant.

388  The Small Business Fair Dismissal Code

             (1)  The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

             (2)  A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

                     (a)  immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

                     (b)  the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

389  Meaning of genuine redundancy

             (1)  A person’s dismissal was a case of genuine redundancy if:

                     (a)  the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

                     (b)  the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

             (2)  A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

                     (a)  the employer’s enterprise; or

                     (b)  the enterprise of an associated entity of the employer.


 

Division 4Remedies for unfair dismissal

390  When FWA may order remedy for unfair dismissal

             (1)  Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

                     (a)  FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

                     (b)  the person has been unfairly dismissed (see Division 3).

             (2)  FWA may make the order only if the person has made an application under section 394.

             (3)  FWA must not order the payment of compensation to the person unless:

                     (a)  FWA is satisfied that reinstatement of the person is inappropriate; and

                     (b)  FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note:          Division 5 deals with procedural matters such as applications for remedies.

391  Remedy—reinstatement etc.

Reinstatement

             (1)  An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

                     (a)  reappointing the person to the position in which the person was employed immediately before the dismissal; or

                     (b)  appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

             (2)  If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:

                     (a)  the continuity of the person’s employment;

                     (b)  the period of the person’s continuous service with the employer.

Order to restore lost pay

             (3)  If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

             (4)  In determining an amount for the purposes of an order under subsection (3), FWA must take into account:

                     (a)  the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

                     (b)  the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

392  Remedy—compensation

Compensation

             (1)  An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

             (2)  In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:

                     (a)  the effect of the order on the viability of the employer’s enterprise; and

                     (b)  the length of the person’s service with the employer; and

                     (c)  the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

                     (d)  the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

                     (e)  the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

                      (f)  the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

                     (g)  any other matter that FWA considers relevant.

Misconduct reduces amount

             (3)  If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

             (4)  The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

             (5)  The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:

                     (a)  the amount worked out under subsection (6); and

                     (b)  half the amount of the high income threshold immediately before the dismissal.

             (6)  The amount is the total of the following amounts:

                     (a)  the total amount of remuneration:

                              (i)  received by the person; or

                             (ii)  to which the person was entitled;

                            (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

                     (b)  if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

393  Monetary orders may be in instalments

                   To avoid doubt, an order by FWA under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.


 

Division 5Procedural matters

394  Application for unfair dismissal remedy

             (1)  A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

Note 1:       Division 4 sets out when FWA may order a remedy for unfair dismissal.

Note 2:       For application fees, see section 395.

Note 3:       Part 6‑1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

             (2)  The application must be made:

                     (a)  within 7 days after the dismissal took effect; or

                     (b)  within such further period as FWA allows under subsection (3).

             (3)  FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

                     (a)  the reason for the delay; and

                     (b)  whether the person first became aware of the dismissal after it had taken effect; and

                     (c)  any action taken by the person to dispute the dismissal; and

                     (d)  prejudice to the employer (including prejudice caused by the delay); and

                     (e)  the merits of the application; and

                      (f)  fairness as between the person and other persons in a similar position.

395  Application fees

             (1)  An application to FWA under this Division must be accompanied by any fee prescribed by the regulations.

             (2)  The regulations may prescribe:

                     (a)  a fee for making an application to FWA under this Division; and

                     (b)  a method for indexing the fee; and

                     (c)  the circumstances in which all or part of the fee may be waived or refunded.

396  Initial matters to be considered before merits

                   FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

                     (a)  whether the application was made within the period required in subsection 394(2);

                     (b)  whether the person was protected from unfair dismissal;

                     (c)  whether the dismissal was consistent with the Small Business Fair Dismissal Code;

                     (d)  whether the dismissal was a case of genuine redundancy.

397  Matters involving contested facts

                   FWA must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.

398  Conferences

             (1)  This section applies in relation to a matter arising under this Part if FWA conducts a conference in relation to the matter.

             (2)  Despite subsection 592(3), FWA must conduct the conference in private.

             (3)  FWA must take into account any difference in the circumstances of the parties to the matter in:

                     (a)  considering the application; and

                     (b)  informing itself in relation to the application.

             (4)  FWA must take into account the wishes of the parties to the matter as to the way in which FWA:

                     (a)  considers the application; and

                     (b)  informs itself in relation to the application.

399  Hearings

             (1)  FWA must not hold a hearing in relation to a matter arising under this Part unless FWA considers it appropriate to do so, taking into account:

                     (a)  the views of the parties to the matter; and

                     (b)  whether a hearing would be the most effective and efficient way to resolve the matter.

             (2)  If FWA holds a hearing in relation to a matter arising under this Part, it may decide not to hold the hearing in relation to parts of the matter.

             (3)  FWA may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to the matter.

400  Appeal rights

             (1)  Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.

             (2)  Despite subsection 604(1), an appeal from a decision made by FWA in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

401  Costs orders against lawyers and paid agents

             (1)  If FWA has granted permission in accordance with section 596 for a person to be represented by a lawyer or paid agent in a matter arising under this Part before FWA, FWA may make an order for costs against the lawyer or paid agent if FWA is satisfied:

                     (a)  that:

                              (i)  the lawyer or paid agent caused costs to be incurred by the other party to the matter because the lawyer or paid agent encouraged the person to start or continue the matter; and

                             (ii)  it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or

                     (b)  that the lawyer or paid agent caused costs to be incurred by the other party to the matter because of an unreasonable act or omission of the lawyer or paid agent in connection with the conduct or continuation of the matter.

             (2)  FWA may make an order under this section only if the other party to the matter has applied for it in accordance with section 402.

             (3)  This section does not limit FWA’s power to order costs under section 611.

402  Applications for costs orders

                   An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 401, must be made within 14 days after:

                     (a)  FWA determines the matter; or

                     (b)  the matter is discontinued.

403  Schedule of costs

             (1)  A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in relation to matters that can be covered by an order:

                     (a)  under section 611 in relation to a matter arising under this Part; or

                     (b)  under section 401;

including expenses arising from the representation of a party by a person or organisation other than on a legal professional basis.

             (2)  If a schedule of costs is prescribed for the purposes of subsection (1), then, in awarding costs under section 611 in relation to a matter arising under this Part, or awarding costs under section 401, FWA:

                     (a)  is not limited to the items of expenditure appearing in the schedule; but

                     (b)  if an item does appear in the schedule—must not award costs in relation to that item at a rate or of an amount that exceeds the rate or amount appearing in the schedule.

404