Contents
Chapter 1—Introduction 2
Part 1‑1—Introduction 2
Division 1—Preliminary 2
1............ Short title............................................................................................. 2
2............ Commencement................................................................................... 2
Division 2—Object of this Act 5
3............ Object of this Act................................................................................ 5
Division 3—Guide to this Act 6
4............ Guide to this Act................................................................................. 6
5............ Terms and conditions of employment (Chapter 2).............................. 6
6............ Rights and responsibilities of employees, employers, organisations etc. (Chapter 3) 8
7............ Compliance and enforcement (Chapter 4)........................................... 9
8............ Administration (Chapter 5)................................................................. 9
9............ Miscellaneous (Chapter 6).................................................................. 9
Part 1‑2—Definitions 11
Division 1—Introduction 11
10.......... Guide to this Part.............................................................................. 11
11.......... Meanings of employee and employer................................................ 11
Division 2—The Dictionary 12
12.......... The Dictionary.................................................................................. 12
Division 3—Definitions relating to the meanings of employee, employer etc. 35
13.......... Meaning of national system employee.............................................. 35
14.......... Meaning of national system employer.............................................. 35
15.......... Ordinary meanings of employee and employer................................. 36
Division 4—Other definitions 37
16.......... Meaning of base rate of pay............................................................. 37
17.......... Meaning of child of a person............................................................ 38
18.......... Meaning of full rate of pay................................................................ 38
19.......... Meaning of industrial action............................................................. 39
20.......... Meaning of ordinary hours of work for award/agreement free employees 40
21.......... Meaning of pieceworker................................................................... 41
22.......... Meanings of service and continuous service..................................... 42
23.......... Meaning of small business employer................................................ 45
Part 1‑3—Application of this Act 46
Division 1—Introduction 46
24.......... Guide to this Part.............................................................................. 46
25.......... Meanings of employee and employer................................................ 46
Division 2—Interaction with State and Territory laws 47
26.......... Act excludes State or Territory industrial laws.................................. 47
27.......... State and Territory laws that are not excluded by section 26............. 48
28.......... Act excludes prescribed State and Territory laws.............................. 50
29.......... Interaction of modern awards and enterprise agreements with State and Territory laws 51
30.......... Act may exclude State and Territory laws etc. in other cases............ 51
Division 3—Geographical application of this Act 52
31.......... Exclusion of persons etc. insufficiently connected with Australia..... 52
32.......... Regulations may modify application of this Act in certain parts of Australia 52
33.......... Extension of this Act to the exclusive economic zone and the continental shelf 53
34.......... Extension of this Act beyond the exclusive economic zone and the continental shelf 54
35.......... Meanings of Australian employer and Australian‑based employee.. 56
35A....... Regulations excluding application of Act.......................................... 56
36.......... Geographical application of offences................................................ 57
Division 4—Miscellaneous 58
37.......... Act binds Crown............................................................................... 58
38.......... Act not to apply so as to exceed Commonwealth power................... 58
39.......... Acquisition of property..................................................................... 59
40.......... Interaction between fair work instruments and public sector employment laws 59
Chapter 2—Terms and conditions of employment 61
Part 2‑1—Core provisions for this Chapter 61
Division 1—Introduction 61
41.......... Guide to this Part.............................................................................. 61
42.......... Meanings of employee and employer................................................ 62
Division 2—Core provisions for this Chapter 63
Subdivision A—Terms and conditions of employment provided under this Act 63
43.......... Terms and conditions of employment provided under this Act......... 63
Subdivision B—Terms and conditions of employment provided by the National Employment Standards 64
44.......... Contravening the National Employment Standards........................... 64
Subdivision C—Terms and conditions of employment provided by a modern award 64
45.......... Contravening a modern award.......................................................... 64
46.......... The significance of a modern award applying to a person................. 64
47.......... When a modern award applies to an employer, employee, organisation or outworker entity 65
48.......... When a modern award covers an employer, employee, organisation or outworker entity 66
49.......... When a modern award is in operation............................................... 67
Subdivision D—Terms and conditions of employment provided by an enterprise agreement 68
50.......... Contravening an enterprise agreement............................................... 68
51.......... The significance of an enterprise agreement applying to a person..... 68
52.......... When an enterprise agreement applies to an employer, employee or employee organisation 68
53.......... When an enterprise agreement covers an employer, employee or employee organisation 69
54.......... When an enterprise agreement is in operation................................... 70
Division 3—Interaction between the National Employment Standards, modern awards and enterprise agreements 71
Subdivision A—Interaction between the National Employment Standards and a modern award or an enterprise agreement 71
55.......... Interaction between the National Employment Standards and a modern award or enterprise agreement 71
56.......... Terms of a modern award or enterprise agreement contravening section 55 have no effect 73
Subdivision B—Interaction between modern awards and enterprise agreements 74
57.......... Interaction between modern awards and enterprise agreements........ 74
57A....... Designated outworker terms of a modern award continue to apply... 74
Subdivision C—Interaction between one or more enterprise agreements 75
58.......... Only one enterprise agreement can apply to an employee................. 75
Part 2‑2—The National Employment Standards 77
Division 1—Introduction 77
59.......... Guide to this Part.............................................................................. 77
60.......... Meanings of employee and employer................................................ 78
Division 2—The National Employment Standards 79
61.......... The National Employment Standards are minimum standards applying to employment of employees 79
Division 3—Maximum weekly hours 80
62.......... Maximum weekly hours................................................................... 80
63.......... Modern awards and enterprise agreements may provide for averaging of hours of work 81
64.......... Averaging of hours of work for award/agreement free employees... 82
Division 4—Requests for flexible working arrangements 83
65.......... Requests for flexible working arrangements..................................... 83
66.......... State and Territory laws that are not excluded................................... 84
Division 5—Parental leave and related entitlements 85
Subdivision A—General 85
67.......... General rule—employee must have completed at least 12 months of service 85
68.......... General rule for adoption‑related leave—child must be under 16 etc. 87
69.......... Transfer of employment situations in which employee is entitled to continue on leave etc. 87
Subdivision B—Parental leave 88
70.......... Entitlement to unpaid parental leave.................................................. 88
71.......... The period of leave—other than for members of an employee couple who each intend to take leave 88
72.......... The period of leave—members of an employee couple who each intend to take leave 89
73.......... Pregnant employee may be required to take unpaid parental leave within 6 weeks before the birth 91
74.......... Notice and evidence requirements..................................................... 93
75.......... Extending period of unpaid parental leave—extending to use more of available parental leave period 94
76.......... Extending period of unpaid parental leave—extending for up to 12 months beyond available parental leave period.......................................................................................................... 95
77.......... Reducing period of unpaid parental leave.......................................... 97
78.......... Employee who ceases to have responsibility for care of child........... 97
79.......... Interaction with paid leave................................................................. 97
Subdivision C—Other entitlements 98
80.......... Unpaid special maternity leave.......................................................... 98
81.......... Transfer to a safe job......................................................................... 99
82.......... Employee on paid no safe job leave may be asked to provide a further medical certificate 100
83.......... Consultation with employee on unpaid parental leave..................... 101
84.......... Return to work guarantee................................................................ 102
85.......... Unpaid pre‑adoption leave.............................................................. 102
Division 6—Annual leave 104
86.......... Division applies to employees other than casual employees............ 104
87.......... Entitlement to annual leave.............................................................. 104
88.......... Taking paid annual leave................................................................. 105
89.......... Employee not taken to be on paid annual leave at certain times....... 106
90.......... Payment for annual leave................................................................ 106
91.......... Transfer of employment situations that affect entitlement to payment for period of untaken paid annual leave 106
92.......... Paid annual leave must not be cashed out except in accordance with permitted cashing out terms 107
93.......... Modern awards and enterprise agreements may include terms relating to cashing out and taking paid annual leave........................................................................................................ 107
94.......... Cashing out and taking paid annual leave for award/agreement free employees 108
Division 7—Personal/carer’s leave and compassionate leave 110
Subdivision A—Paid personal/carer’s leave 110
95.......... Subdivision applies to employees other than casual employees...... 110
96.......... Entitlement to paid personal/carer’s leave........................................ 110
97.......... Taking paid personal/carer’s leave.................................................. 110
98.......... Employee taken not to be on paid personal/carer’s leave on public holiday 111
99.......... Payment for paid personal/carer’s leave.......................................... 111
100........ Paid personal/carer’s leave must not be cashed out except in accordance with permitted cashing out terms 111
101........ Modern awards and enterprise agreements may include terms relating to cashing out paid personal/carer’s leave 111
Subdivision B—Unpaid carer’s leave 112
102........ Entitlement to unpaid carer’s leave.................................................. 112
103........ Taking unpaid carer’s leave............................................................. 112
Subdivision C—Compassionate leave 113
104........ Entitlement to compassionate leave................................................. 113
105........ Taking compassionate leave............................................................ 113
106........ Payment for compassionate leave (other than for casual employees) 114
Subdivision D—Notice and evidence requirements 114
107........ Notice and evidence requirements................................................... 114
Division 8—Community service leave 116
108........ Entitlement to be absent from employment for engaging in eligible community service activity 116
109........ Meaning of eligible community service activity............................... 116
110........ Notice and evidence requirements................................................... 118
111........ Payment to employees (other than casuals) on jury service............. 118
112........ State and Territory laws that are not excluded................................. 120
Division 9—Long service leave 121
113........ Entitlement to long service leave..................................................... 121
113A..... Enterprise agreements may contain terms discounting service under prior agreements etc. in certain circumstances........................................................................................................ 123
Division 10—Public holidays 125
114........ Entitlement to be absent from employment on public holiday......... 125
115........ Meaning of public holiday.............................................................. 126
116........ Payment for absence on public holiday........................................... 127
Division 11—Notice of termination and redundancy pay 128
Subdivision A—Notice of termination or payment in lieu of notice 128
117........ Requirement for notice of termination or payment in lieu................ 128
118........ Modern awards and enterprise agreements may provide for notice of termination by employees 129
Subdivision B—Redundancy pay 129
119........ Redundancy pay.............................................................................. 129
120........ Variation of redundancy pay for other employment or incapacity to pay 130
121........ Exclusions from obligation to pay redundancy pay......................... 131
122........ Transfer of employment situations that affect the obligation to pay redundancy pay 131
Subdivision C—Limits on scope of this Division 133
123........ Limits on scope of this Division..................................................... 133
Division 12—Fair Work Information Statement 135
124........ Fair Work Ombudsman to prepare and publish Fair Work Information Statement 135
125........ Giving new employees the Fair Work Information Statement......... 135
Division 13—Miscellaneous 137
126........ Modern awards and enterprise agreements may provide for school‑based apprentices and trainees to be paid loadings in lieu.................................................................................................. 137
127........ Regulations about what modern awards and enterprise agreements can do 137
128........ Relationship between National Employment Standards and agreements etc. permitted by this Part for award/agreement free employees................................................................................ 137
129........ Regulations about what can be agreed to etc. in relation to award/agreement free employees 138
130........ Restriction on taking or accruing leave or absence while receiving workers’ compensation 138
131........ Relationship with other Commonwealth laws................................. 139
Part 2‑3—Modern awards 140
Division 1—Introduction 140
132........ Guide to this Part............................................................................ 140
133........ Meanings of employee and employer.............................................. 141
Division 2—Overarching provisions 142
134........ The modern awards objective.......................................................... 142
135........ Special provisions relating to modern award minimum wages........ 143
Division 3—Terms of modern awards 144
Subdivision A—Preliminary 144
136........ What can be included in modern awards......................................... 144
137........ Terms that contravene section 136 have no effect........................... 145
138........ Achieving the modern awards objective.......................................... 145
Subdivision B—Terms that may be included in modern awards 145
139........ Terms that may be included in modern awards—general................ 145
140........ Outworker terms............................................................................. 146
141........ Industry‑specific redundancy schemes............................................ 147
142........ Incidental and machinery terms....................................................... 148
Subdivision C—Terms that must be included in modern awards 148
143........ Coverage terms............................................................................... 148
144........ Flexibility terms.............................................................................. 150
145........ Effect of individual flexibility arrangement that does not meet requirements of flexibility term 151
146........ Terms about settling disputes.......................................................... 152
147........ Ordinary hours of work.................................................................. 152
148........ Base and full rates of pay for pieceworkers.................................... 152
149........ Automatic variation of allowances.................................................. 153
Subdivision D—Terms that must not be included in modern awards 153
150........ Objectionable terms......................................................................... 153
151........ Terms about payments and deductions for benefit of employer etc. 153
152........ Terms about right of entry............................................................... 153
153........ Terms that are discriminatory.......................................................... 153
154........ Terms that contain State‑based differences...................................... 154
155........ Terms dealing with long service leave............................................. 155
Division 4—4 yearly reviews of modern awards 156
156........ 4 yearly reviews of modern awards to be conducted....................... 156
Division 5—Exercising modern award powers outside 4 yearly reviews and annual wage reviews 158
Subdivision A—Exercise of powers if necessary to achieve modern awards objective 158
157........ FWA may vary etc. modern awards if necessary to achieve modern awards objective 158
158........ Applications to vary, revoke or make modern award...................... 159
Subdivision B—Other situations 161
159........ Variation of modern award to update or omit name of employer, organisation or outworker entity 161
160........ Variation of modern award to remove ambiguity or uncertainty or correct error 162
161........ Variation of modern award on referral by HREOC........................ 162
Division 6—General provisions relating to modern award powers 163
162........ General............................................................................................ 163
163........ Special criteria relating to changing coverage of modern awards.... 163
164........ Special criteria for revoking modern awards................................... 164
165........ When variation determinations come into operation, other than determinations setting, varying or revoking modern award minimum wages.............................................................................. 164
166........ When variation determinations setting, varying or revoking modern award minimum wages come into operation 165
167........ Special rules relating to retrospective variations of awards............. 166
168........ Varied modern award must be published........................................ 167
Part 2‑4—Enterprise agreements 168
Division 1—Introduction 168
169........ Guide to this Part............................................................................ 168
170........ Meanings of employee and employer.............................................. 169
171........ Objects of this Part.......................................................................... 169
Division 2—Employers and employees may make enterprise agreements 171
172........ Making an enterprise agreement...................................................... 171
Division 3—Bargaining and representation during bargaining 174
173........ Notice of employee representational rights...................................... 174
174........ Content of notice of employee representational rights..................... 175
176........ Bargaining representatives for proposed enterprise agreements that are not greenfields agreements 176
178........ Appointment of bargaining representatives—other matters............. 178
178A..... Revocation of appointment of bargaining representatives etc.......... 179
Division 4—Approval of enterprise agreements 180
Subdivision A—Pre‑approval steps and applications for FWA approval 180
180........ Employees must be given a copy of a proposed enterprise agreement etc. 180
181........ Employers may request employees to approve a proposed enterprise agreement 181
182........ When an enterprise agreement is made............................................ 182
183........ Entitlement of an employee organisation to have an enterprise agreement cover it 182
184........ Multi‑enterprise agreement to be varied if not all employees approve the agreement 183
185........ Bargaining representative must apply for FWA approval of an enterprise agreement 184
Subdivision B—Approval of enterprise agreements by FWA 185
186........ When FWA must approve an enterprise agreement—general requirements 185
187........ When FWA must approve an enterprise agreement—additional requirements 187
188........ When employees have genuinely agreed to an enterprise agreement 188
189........ FWA may approve an enterprise agreement that does not pass better off overall test—public interest test 188
190........ FWA may approve an enterprise agreement with undertakings...... 189
191........ Effect of undertakings..................................................................... 190
192........ When FWA may refuse to approve an enterprise agreement........... 191
Subdivision C—Better off overall test 191
193........ Passing the better off overall test..................................................... 191
Subdivision D—Unlawful terms 193
194........ Meaning of unlawful term............................................................... 193
195........ Meaning of discriminatory term..................................................... 194
Subdivision E—Approval requirements relating to particular kinds of employees 195
196........ Shiftworkers................................................................................... 195
197........ Pieceworkers—enterprise agreement includes pieceworker term.... 195
198........ Pieceworkers—enterprise agreement does not include a pieceworker term 196
199........ School‑based apprentices and school‑based trainees....................... 196
200........ Outworkers..................................................................................... 197
Subdivision F—Other matters 197
201........ Approval decision to note certain matters........................................ 197
Division 5—Mandatory terms of enterprise agreements 199
202........ Enterprise agreements to include a flexibility term etc..................... 199
203........ Requirements to be met by a flexibility term................................... 200
204........ Effect of arrangement that does not meet requirements of flexibility term 201
205........ Enterprise agreements to include a consultation term etc................. 202
Division 6—Base rate of pay under enterprise agreements 204
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.......................................................................... 204
Division 7—Variation and termination of enterprise agreements 206
Subdivision A—Variation of enterprise agreements by employers and employees 206
207........ Variation of an enterprise agreement may be made by employers and employees 206
208........ Employers may request employees to approve a proposed variation of an enterprise agreement 207
209........ When a variation of an enterprise agreement is made...................... 207
210........ Application for FWA approval of a variation of an enterprise agreement 208
211........ When FWA must approve a variation of an enterprise agreement... 208
212........ FWA may approve a variation of an enterprise agreement with undertakings 210
213........ Effect of undertakings..................................................................... 211
214........ When FWA may refuse to approve a variation of an enterprise agreement 212
215........ Approval decision to note undertakings.......................................... 212
216........ When variation comes into operation.............................................. 212
Subdivision B—Variations of enterprise agreements where there is ambiguity, uncertainty or discrimination 213
217........ Variation of an enterprise agreement to remove an ambiguity or uncertainty 213
217A..... FWA may deal with certain disputes about variations..................... 213
218........ Variation of an enterprise agreement on referral by HREOC.......... 213
Subdivision C—Termination of enterprise agreements by employers and employees 214
219........ Employers and employees may agree to terminate an enterprise agreement 214
220........ Employers may request employees to approve a proposed termination of an enterprise agreement 215
221........ When termination of an enterprise agreement is agreed to............... 215
222........ Application for FWA approval of a termination of an enterprise agreement 216
223........ When FWA must approve a termination of an enterprise agreement 216
224........ When termination comes into operation.......................................... 217
Subdivision D—Termination of enterprise agreements after nominal expiry date 217
225........ Application for termination of an enterprise agreement after its nominal expiry date 217
226........ When FWA must terminate an enterprise agreement....................... 217
227........ When termination comes into operation.......................................... 218
Division 8—FWA’s general role in facilitating bargaining 219
Subdivision A—Bargaining orders 219
228........ Bargaining representatives must meet the good faith bargaining requirements 219
229........ Applications for bargaining orders.................................................. 219
230........ When FWA may make a bargaining order...................................... 221
231........ What a bargaining order must specify............................................. 222
232........ Operation of a bargaining order...................................................... 223
233........ Contravening a bargaining order..................................................... 224
Subdivision B—Serious breach declarations 224
234........ Applications for serious breach declarations................................... 224
235........ When FWA may make a serious breach declaration....................... 224
Subdivision C—Majority support determinations and scope orders 226
236........ Majority support determinations..................................................... 226
237........ When FWA must make a majority support determination............... 226
238........ Scope orders................................................................................... 227
239........ Operation of a scope order.............................................................. 229
Subdivision D—FWA may deal with a bargaining dispute on request 230
240........ Application for FWA to deal with a bargaining dispute.................. 230
Division 9—Low‑paid bargaining 231
241........ Objects of this Division.................................................................. 231
242........ Low‑paid authorisations.................................................................. 231
243........ When FWA must make a low‑paid authorisation............................ 232
244........ Variation of low‑paid authorisations—general................................ 234
245........ Variation of low‑paid authorisations—enterprise agreement etc. comes into operation 235
246........ FWA assistance for the low‑paid.................................................... 235
Division 10—Single interest employer authorisations 236
Subdivision A—Declaration that employers may bargain together for a proposed enterprise agreement 236
247........ Ministerial declaration that employers may bargain together for a proposed enterprise agreement 236
Subdivision B—Single interest employer authorisations 237
248........ Single interest employer authorisations........................................... 237
249........ When FWA must make a single interest employer authorisation.... 237
250........ What a single interest employer authorisation must specify............ 238
251........ Variation of single interest employer authorisations........................ 239
252........ Variation to extend period single interest employer authorisation is in operation 240
Division 11—Other matters 241
253........ Terms of an enterprise agreement that are of no effect.................... 241
254........ Applications by bargaining representatives..................................... 241
255........ Part does not empower FWA to make certain orders...................... 242
256........ Prospective employers and employees............................................ 242
256A..... How employees, employers and employee organisations are to be described 242
257........ Enterprise agreements may incorporate material in force from time to time etc. 243
Part 2‑5—Workplace determinations 244
Division 1—Introduction 244
258........ Guide to this Part............................................................................ 244
259........ Meanings of employee and employer.............................................. 245
Division 2—Low‑paid workplace determinations 246
260........ Applications for low‑paid workplace determinations...................... 246
261........ When FWA must make a consent low‑paid workplace determination 247
262........ When FWA must make a special low‑paid workplace determination—general requirements 247
263........ When FWA must make a special low‑paid workplace determination—additional requirements 249
264........ Terms etc. of a low‑paid workplace determination.......................... 249
265........ No other terms................................................................................ 250
Division 3—Industrial action related workplace determinations 251
266........ When FWA must make an industrial action related workplace determination 251
267........ Terms etc. of an industrial action related workplace determination.. 252
268........ No other terms................................................................................ 253
Division 4—Bargaining related workplace determinations 254
269........ When FWA must make a bargaining related workplace determination 254
270........ Terms etc. of a bargaining related workplace determination............ 255
271........ No other terms................................................................................ 257
Division 5—Core terms, mandatory terms and agreed terms of workplace determinations etc. 258
272........ Core terms of workplace determinations......................................... 258
273........ Mandatory terms of workplace determinations............................... 259
274........ Agreed terms for workplace determinations.................................... 260
275........ Factors FWA must take into account in deciding terms of a workplace determination 261
Division 6—Operation, coverage and interaction etc. of workplace determinations 262
276........ When a workplace determination operates etc................................. 262
277........ Employers, employees and employee organisations covered by a workplace determination 262
278........ Interaction of a workplace determination with enterprise agreements etc. 263
279........ Act applies to a workplace determination as if it were an enterprise agreement 264
Division 7—Other matters 265
280........ Contravening a workplace determination........................................ 265
281........ Applications by bargaining representatives..................................... 265
281A..... How employees, employers and employee organisations are to be described 265
Part 2‑6—Minimum wages 267
Division 1—Introduction 267
282........ Guide to this Part............................................................................ 267
283........ Meanings of employee and employer.............................................. 268
Division 2—Overarching provisions 269
284........ The minimum wages objective........................................................ 269
Division 3—Annual wage reviews 271
Subdivision A—Main provisions 271
285........ Annual wage reviews to be conducted............................................ 271
286........ When annual wage review determinations varying modern awards come into operation 271
287........ When national minimum wage orders come into operation etc........ 272
Subdivision B—Provisions about conduct of annual wage reviews 274
288........ General............................................................................................ 274
289........ Everyone to have a reasonable opportunity to make and comment on submissions 274
290........ President may direct investigations and reports............................... 275
291........ Research must be published............................................................ 276
292........ Varied wage rates must be published by 1 July.............................. 276
Division 4—National minimum wage orders 277
293........ Contravening a national minimum wage order................................ 277
294........ Content of national minimum wage order—main provisions.......... 277
295........ Content of national minimum wage order—other matters............... 278
296........ Variation of national minimum wage order to remove ambiguity or uncertainty or correct error 279
297........ When determinations varying national minimum wage orders come into operation 279
298........ Special rule about retrospective variations of national minimum wage orders 280
299........ When a national minimum wage order is in operation..................... 280
Part 2‑7—Equal remuneration 281
Division 1—Introduction 281
300........ Guide to this Part............................................................................ 281
301........ Meanings of employee and employer.............................................. 281
Division 2—Equal remuneration orders 282
302........ FWA may make an order requiring equal remuneration.................. 282
303........ Equal remuneration order may increase, but must not reduce, rates of remuneration 283
304........ Equal remuneration order may implement equal remuneration in stages.. 283
305........ Contravening an equal remuneration order...................................... 283
306........ Inconsistency with modern awards, enterprise agreements and orders of FWA 283
Part 2‑8—Transfer of business 285
Division 1—Introduction 285
307........ Guide to this Part............................................................................ 285
308........ Meanings of employee and employer.............................................. 285
309........ Object of this Part........................................................................... 285
Division 2—Transfer of instruments 287
310........ Application of this Division............................................................ 287
311........ When does a transfer of business occur.......................................... 287
312........ Instruments that may transfer.......................................................... 289
313........ Transferring employees and new employer covered by transferable instrument 289
314........ New non‑transferring employees of new employer may be covered by transferable instrument 290
315........ Organisations covered by transferable instrument........................... 290
316........ Transferring employees who are high income employees............... 291
Division 3—Powers of FWA 293
317........ FWA may make orders in relation to a transfer of business............ 293
318........ Orders relating to instruments covering new employer and transferring employees 293
319........ Orders relating to instruments covering new employer and non‑transferring employees 294
320........ Variation of transferable instruments.............................................. 296
Part 2‑9—Other terms and condition of employment 299
Division 1—Introduction 299
321........ Guide to this Part............................................................................ 299
322........ Meanings of employee and employer.............................................. 299
Division 2—Payment of wages 300
323........ Method and frequency of payment.................................................. 300
324........ Permitted deductions....................................................................... 300
325........ Unreasonable requirements to spend amount.................................. 301
326........ Certain terms have no effect............................................................ 302
327........ Things given or provided, and amounts required to be spent, in contravention of this Division 302
Division 3—Guarantee of annual earnings 304
328........ Employer obligations in relation to guarantee of annual earnings.... 304
329........ High income employee.................................................................... 305
330........ Guarantee of annual earnings and annual rate of guarantee............. 305
331........ Guaranteed period........................................................................... 306
332........ Earnings.......................................................................................... 307
333........ High income threshold.................................................................... 308
333A..... Prospective employees.................................................................... 308
Chapter 3—Rights and responsibilities of employees, employers, organisations etc. 310
Part 3‑1—General protections 310
Division 1—Introduction 310
334........ Guide to this Part............................................................................ 310
335........ Meanings of employee and employer.............................................. 310
336........ Objects of this Part.......................................................................... 311
Division 2—Application of this Part 312
337........ Application of this Part................................................................... 312
338........ Action to which this Part applies..................................................... 312
339........ Additional effect of this Part........................................................... 313
Division 3—Workplace rights 315
340........ Protection........................................................................................ 315
341........ Meaning of workplace right............................................................ 315
342........ Meaning of adverse action.............................................................. 317
343........ Coercion.......................................................................................... 320
344........ Undue influence or pressure........................................................... 320
345........ Misrepresentations.......................................................................... 320
Division 4—Industrial activities 322
346........ Protection........................................................................................ 322
347........ Meaning of engages in industrial activity....................................... 322
348........ Coercion.......................................................................................... 323
349........ Misrepresentations.......................................................................... 323
350........ Inducements—membership action.................................................. 324
Division 5—Other protections 325
351........ Discrimination................................................................................. 325
352........ Temporary absence—illness or injury............................................. 326
353........ Bargaining services fees.................................................................. 326
354........ Coverage by particular instruments................................................. 327
355........ Coercion—allocation of duties etc. to particular person.................. 327
356........ Objectionable terms......................................................................... 328
Division 6—Sham arrangements 329
357........ Misrepresenting employment as independent contracting arrangement 329
358........ Dismissing to engage as independent contractor............................. 329
359........ Misrepresentation to engage as independent contractor................... 329
Division 7—Ancillary rules 331
360........ Multiple reasons for action.............................................................. 331
361........ Reason for action to be presumed unless proved otherwise............ 331
362........ Advising, encouraging, inciting or coercing action......................... 331
363........ Actions of industrial associations.................................................... 331
364........ Unincorporated industrial associations............................................ 333
Division 8—Compliance 334
Subdivision A—Contraventions involving dismissal 334
365........ Application for FWA to deal with a dispute.................................... 334
366........ Time for application........................................................................ 334
367........ Application fees.............................................................................. 334
368........ Conferences.................................................................................... 335
369........ Certificate if dispute not resolved.................................................... 335
370........ Advice on general protections court application.............................. 335
371........ General protections court applications............................................. 336
Subdivision B—Other contraventions 336
372........ Application for FWA to deal with a dispute.................................... 336
373........ Application fees.............................................................................. 336
374........ Conferences.................................................................................... 337
375........ Advice on general protections court application.............................. 337
Subdivision C—Conference costs 337
376........ Costs orders against lawyers and paid agents................................. 337
377........ Applications for costs orders.......................................................... 338
378........ Contravening costs orders............................................................... 338
Part 3‑2—Unfair dismissal 339
Division 1—Introduction 339
379........ Guide to this Part............................................................................ 339
380........ Meanings of employee and employer.............................................. 339
381........ Object of this Part........................................................................... 339
Division 2—Protection from unfair dismissal 341
382........ When a person is protected from unfair dismissal........................... 341
383........ Meaning of minimum employment period...................................... 341
384........ Period of employment..................................................................... 341
Division 3—What is an unfair dismissal 343
385........ What is an unfair dismissal............................................................. 343
386........ Meaning of dismissed..................................................................... 343
387........ Criteria for considering harshness etc............................................. 344
388........ The Small Business Fair Dismissal Code....................................... 345
389........ Meaning of genuine redundancy..................................................... 345
Division 4—Remedies for unfair dismissal 346
390........ When FWA may order remedy for unfair dismissal....................... 346
391........ Remedy—reinstatement etc............................................................. 346
392........ Remedy—compensation................................................................. 348
393........ Monetary orders may be in instalments........................................... 349
Division 5—Procedural matters 350
394........ Application for unfair dismissal remedy......................................... 350
395........ Application fees.............................................................................. 350
396........ Initial matters to be considered before merits.................................. 351
397........ Matters involving contested facts.................................................... 351
398........ Conferences.................................................................................... 351
399........ Hearings.......................................................................................... 352
400........ Appeal rights................................................................................... 352
401........ Costs orders against lawyers and paid agents................................. 352
402........ Applications for costs orders.......................................................... 353
403........ Schedule of costs............................................................................ 353
404........ Security for costs............................................................................ 354
405........ Contravening orders under this Part................................................ 354
Part 3‑3—Industrial action 355
Division 1—Introduction 355
406........ Guide to this Part............................................................................ 355
407........ Meanings of employee and employer.............................................. 356
Division 2—Protected industrial action 357
Subdivision A—What is protected industrial action 357
408........ Protected industrial action............................................................... 357
409........ Employee claim action..................................................................... 357
410........ Employee response action............................................................... 359
411........ Employer response action............................................................... 359
412........ Pattern bargaining........................................................................... 360
Subdivision B—Common requirements for industrial action to be protected industrial action 361
413........ Common requirements that apply for industrial action to be protected industrial action 361
414........ Notice requirements for industrial action......................................... 362
Subdivision C—Significance of industrial action being protected industrial action 364
415........ Immunity provision......................................................................... 364
416........ Employer response action—employer may refuse to make payments to employees 364
Division 3—No industrial action before nominal expiry date of enterprise agreement etc. 365
417........ Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc. 365
Division 4—FWA orders stopping etc. industrial action 367
418........ FWA must order that industrial action by employees or employers stop etc. 367
419........ FWA must order that industrial action by non‑national system employees or non‑national system employers stop etc......................................................................................................... 368
420........ Interim orders etc............................................................................ 369
421........ Contravening an order etc............................................................... 369
Division 5—Injunction against industrial action if pattern bargaining is being engaged in 371
422........ Injunction against industrial action if a bargaining representative is engaging in pattern bargaining 371
Division 6—Suspension or termination of protected industrial action by FWA 372
423........ FWA may suspend or terminate protected industrial action—significant economic harm etc. 372
424........ FWA must suspend or terminate protected industrial action—endangering life etc. 374
425........ FWA must suspend protected industrial action—cooling off.......... 375
426........ FWA must suspend protected industrial action—significant harm to a third party 375
427........ FWA must specify the period of suspension.................................. 376
428........ Extension of a period of suspension............................................... 377
429........ Employee claim action without a further protected action ballot after a period of suspension etc. 377
430........ Notice of employee claim action engaged in after a period of suspension etc. 378
Division 7—Ministerial declarations 380
431........ Ministerial declaration terminating industrial action........................ 380
432........ Informing people of declaration...................................................... 380
433........ Ministerial directions to remove or reduce threat............................. 381
434........ Contravening a Ministerial direction............................................... 381
Division 8—Protected action ballots 382
Subdivision A—Introduction 382
435........ Guide to this Division..................................................................... 382
436........ Object of this Division.................................................................... 382
Subdivision B—Protected action ballot orders 383
437........ Application for a protected action ballot order................................. 383
438........ Restriction on when application may be made................................. 384
439........ Joint applications............................................................................. 384
440........ Notice of application....................................................................... 384
441........ Application to be determined within 2 days after it is made............ 385
442........ Dealing with multiple applications together..................................... 385
443........ When FWA must make a protected action ballot order................... 385
444........ FWA may decide on ballot agent other than the Australian Electoral Commission and independent advisor 386
445........ Notice of protected action ballot order............................................. 387
446........ Protected action ballot order may require 2 or more protected action ballots to be held at the same time 387
447........ Variation of protected action ballot order........................................ 388
448........ Revocation of protected action ballot order..................................... 388
Subdivision C—Conduct of protected action ballot 389
449........ Protected action ballot to be conducted by Australian Electoral Commission or other specified ballot agent 389
450........ Directions for conduct of protected action ballot............................. 389
451........ Timetable for protected action ballot................................................ 390
452........ Compilation of roll of voters........................................................... 391
453........ Who is eligible to be included on the roll of voters......................... 391
454........ Variation of roll of voters................................................................ 392
455........ Protected action ballot papers.......................................................... 393
456........ Who may vote in protected action ballot.......................................... 394
457........ Results of protected action ballot..................................................... 394
458........ Report about conduct of protected action ballot............................... 394
Subdivision D—Effect of protected action ballot 396
459........ Circumstances in which industrial action is authorised by protected action ballot 396
460........ Immunity for persons who act in good faith on protected action ballot results 397
461........ Validity of protected action ballot etc. not affected by technical breaches 397
Subdivision E—Compliance 398
462........ Interferences etc. with protected action ballot.................................. 398
463........ Contravening a protected action ballot order etc.............................. 400
Subdivision F—Liability for costs of protected action ballot 400
464........ Costs of protected action ballot conducted by the Australian Electoral Commission 400
465........ Costs of protected action ballot conducted by protected action ballot agent other than the Australian Electoral Commission.................................................................................... 401
466........ Costs of legal challenges................................................................. 401
Subdivision G—Miscellaneous 402
467........ Information about employees on roll of voters not to be disclosed. 402
468........ Records........................................................................................... 402
469........ Regulations..................................................................................... 403
Division 9—Payments relating to periods of industrial action 404
Subdivision A—Protected industrial action 404
470........ Payments not to be made relating to certain periods of industrial action 404
471........ Payments relating to partial work bans............................................ 405
472........ Orders by FWA relating to certain partial work bans...................... 407
473........ Accepting or seeking payments relating to periods of industrial action 408
Subdivision B—Industrial action that is not protected industrial action 408
474........ Payments not to be made relating to certain periods of industrial action 408
475........ Accepting or seeking payments relating to periods of industrial action 410
Subdivision C—Miscellaneous 410
476........ Other responses to industrial action unaffected............................... 410
Division 10—Other matters 411
477........ Applications by bargaining representatives..................................... 411
Part 3‑4—Right of entry 412
Division 1—Introduction 412
478........ Guide to this Part............................................................................ 412
479........ Meanings of employee and employer.............................................. 412
480........ Object of this Part........................................................................... 413
Division 2—Entry rights under this Act 414
Subdivision A—Entry to investigate suspected contravention 414
481........ Entry to investigate suspected contravention................................... 414
482........ Rights that may be exercised while on premises............................. 414
483........ Later access to record or document................................................. 416
483AA.. Application to FWA for access to non‑member records................. 417
Subdivision AA—Entry to investigate suspected contravention relating to TCF outworkers 418
483A..... Entry to investigate suspected contravention relating to TCF outworkers 418
483B..... Rights that may be exercised while on premises............................. 418
483C..... Later access to record or document................................................. 420
483D..... Entry onto other premises to access records and documents........... 421
483E...... Later access to record or document—other premises...................... 422
Subdivision B—Entry to hold discussions 423
484........ Entry to hold discussions................................................................ 423
Subdivision C—Requirements for permit holders 423
486........ Permit holder must not contravene this Subdivision....................... 423
487........ Giving entry notice or exemption certificate.................................... 423
488........ Contravening entry permit conditions............................................. 424
489........ Producing authority documents....................................................... 424
490........ When right may be exercised.......................................................... 425
491........ Occupational health and safety requirements................................... 425
492........ Conduct of interviews in particular room etc................................... 426
493........ Residential premises........................................................................ 426
Division 3—State or Territory OHS rights 427
494........ Official must be permit holder to exercise State or Territory OHS right.. 427
495........ Giving notice of entry..................................................................... 428
496........ Contravening entry permit conditions............................................. 429
497........ Producing entry permit.................................................................... 429
498........ When right may be exercised.......................................................... 429
499........ Occupational health and safety requirements................................... 429
Division 4—Prohibitions 430
500........ Permit holder must not hinder or obstruct....................................... 430
501........ Person must not refuse or delay entry............................................. 430
502........ Person must not hinder or obstruct permit holder........................... 430
503........ Misrepresentations about things authorised by this Part................. 430
504........ Unauthorised use or disclosure of information or documents......... 431
Division 5—Powers of FWA 433
Subdivision A—Dealing with disputes 433
505........ FWA may deal with a dispute about the operation of this Part........ 433
506........ Contravening order made to deal with dispute................................ 434
Subdivision B—Taking action against permit holder 434
507........ FWA may take action against permit holder.................................... 434
Subdivision C—Restricting rights of organisations and officials where misuse of rights 434
508........ FWA may restrict rights if organisation or official has misused rights 434
509........ Contravening order made for misuse of rights................................ 435
Subdivision D—When FWA must revoke or suspend entry permits 436
510........ When FWA must revoke or suspend entry permits........................ 436
Subdivision E—General rules for suspending entry permits 437
511........ General rules for suspending entry permits..................................... 437
Division 6—Entry permits, entry notices and certificates 438
Subdivision A—Entry permits 438
512........ FWA may issue entry permits......................................................... 438
513........ Considering application................................................................... 438
514........ When FWA must not issue permit.................................................. 439
515........ Conditions on entry permit.............................................................. 439
516........ Expiry of entry permit..................................................................... 440
517........ Return of entry permits to FWA..................................................... 441
Subdivision B—Entry notices 441
518........ Entry notice requirements................................................................ 441
Subdivision C—Exemption certificates 443
519........ Exemption certificates..................................................................... 443
Subdivision D—Affected member certificates 444
520........ Affected member certificates........................................................... 444
Subdivision E—Miscellaneous 444
521........ Regulations dealing with instruments under this Part...................... 444
Part 3‑5—Stand down 445
Division 1—Introduction 445
522........ Guide to this Part............................................................................ 445
523........ Meanings of employee and employer.............................................. 445
Division 2—Circumstances allowing stand down 446
524........ Employer may stand down employees in certain circumstances...... 446
525........ Employee not stood down during a period of authorised leave or absence 447
Division 3—Dealing with disputes 448
526........ FWA may deal with a dispute about the operation of this Part........ 448
527........ Contravening an FWA order dealing with a dispute about the operation of this Part 448
Part 3‑6—Other rights and responsibilities 449
Division 1—Introduction 449
528........ Guide to this Part............................................................................ 449
529........ Meanings of employee and employer.............................................. 449
Division 2—Notification and consultation relating to certain dismissals 450
Subdivision A—Requirement to notify Centrelink 450
530........ Employer to notify Centrelink of certain proposed dismissals........ 450
Subdivision B—Failure to notify or consult registered employee associations 451
531........ FWA may make orders where failure to notify or consult registered employee associations about dismissals 451
532........ Orders that FWA may make........................................................... 452
533........ Application for FWA order............................................................. 453
Subdivision C—Limits on scope of this Division 453
534........ Limits on scope of this Division..................................................... 453
Division 3—Employer obligations in relation to employee records and pay slips 455
535........ Employer obligations in relation to employee records..................... 455
536........ Employer obligations in relation to pay slips................................... 455
Chapter 4—Compliance and enforcement 456
Part 4‑1—Civil remedies 456
Division 1—Introduction 456
537........ Guide to this Part............................................................................ 456
538........ Meanings of employee and employer.............................................. 456
Division 2—Orders 457
Subdivision A—Applications for orders 457
539........ Applications for orders in relation to contraventions of civil remedy provisions 457
540........ Limitations on who may apply for orders etc.................................. 467
541........ Applications for orders in relation to safety net contractual entitlements 469
542........ Entitlements under contracts............................................................ 469
543........ Applications for orders in relation to statutory entitlements derived from contracts 469
544........ Time limit on applications............................................................... 470
Subdivision B—Orders 470
545........ Orders that can be made by particular courts................................... 470
546........ Pecuniary penalty orders................................................................. 472
547........ Interest up to judgment.................................................................... 473
Division 3—Small claims procedure 474
548........ Plaintiffs may choose small claims procedure................................. 474
Division 4—General provisions relating to civil remedies 476
549........ Contravening a civil remedy provision is not an offence................. 476
550........ Involvement in contravention treated in same way as actual contravention 476
551........ Civil evidence and procedure rules for proceedings relating to civil remedy provisions 476
552........ Civil proceedings after criminal proceedings................................... 476
553........ Criminal proceedings during civil proceedings............................... 477
554........ Criminal proceedings after civil proceedings................................... 477
555........ Evidence given in proceedings for pecuniary penalty not admissible in criminal proceedings 477
556........ Civil double jeopardy...................................................................... 478
557........ Course of conduct........................................................................... 478
558........ Regulations dealing with infringement notices................................ 479
Division 5—Unclaimed money 480
559........ Unclaimed money........................................................................... 480
Part 4‑2—Jurisdiction and powers of courts 481
Division 1—Introduction 481
560........ Guide to this Part............................................................................ 481
561........ Meanings of employee and employer.............................................. 481
Division 2—Jurisdiction and powers of the Federal Court 482
562........ Conferring jurisdiction on the Federal Court................................... 482
563........ Exercising jurisdiction in the Fair Work Division of the Federal Court 482
564........ No limitation on Federal Court’s powers........................................ 483
565........ Appeals from eligible State or Territory courts............................... 483
Division 3—Jurisdiction and powers of the Federal Magistrates Court 484
566........ Conferring jurisdiction on the Federal Magistrates Court............... 484
567........ Exercising jurisdiction in the Fair Work Division of the Federal Magistrates Court 484
568........ No limitation on Federal Magistrates Court’s powers..................... 484
Division 4—Miscellaneous 485
569........ Minister’s entitlement to intervene.................................................. 485
570........ Costs only if proceedings instituted vexatiously etc........................ 485
571........ No imprisonment for failure to pay pecuniary penalty.................... 486
572........ Regulations dealing with matters relating to court proceedings....... 486
Chapter 5—Administration 487
Part 5‑1—Fair Work Australia 487
Division 1—Introduction 487
573........ Guide to this Part............................................................................ 487
574........ Meanings of employee and employer.............................................. 488
574A..... Schedule 1....................................................................................... 488
Division 2—Establishment and functions of Fair Work Australia 489
Subdivision A—Establishment and functions of Fair Work Australia 489
575........ Establishment of Fair Work Australia............................................. 489
576........ Functions of FWA.......................................................................... 489
577........ Performance of functions etc. by FWA........................................... 490
578........ Matters FWA must take into account in performing functions etc.. 491
579........ FWA has privileges and immunities of the Crown......................... 491
580........ Protection of FWA Members.......................................................... 491
Subdivision B—Functions and powers of the President 491
581........ Functions of the President............................................................... 491
582........ Directions by the President............................................................. 492
583........ President not subject to direction..................................................... 493
584........ Delegation of functions and powers of the President...................... 493
Division 3—Conduct of matters before FWA 494
Subdivision A—Applications to FWA 494
585........ Applications in accordance with procedural rules........................... 494
586........ Correcting and amending applications and documents etc............... 494
587........ Dismissing applications.................................................................. 494
588........ Discontinuing applications.............................................................. 495
Subdivision B—Conduct of matters before FWA 495
589........ Procedural and interim decisions..................................................... 495
590........ Powers of FWA to inform itself..................................................... 495
591........ FWA not bound by rules of evidence and procedure...................... 496
592........ Conferences.................................................................................... 496
593........ Hearings.......................................................................................... 496
594........ Confidential evidence...................................................................... 497
595........ FWA’s power to deal with disputes................................................ 498
Subdivision C—Representation by lawyers and paid agents and Minister’s entitlement to make submissions 498
596........ Representation by lawyers and paid agents..................................... 498
597........ Minister’s entitlement to make submissions.................................... 499
Subdivision D—Decisions of FWA 500
598........ Decisions of FWA.......................................................................... 500
599........ FWA not required to decide an application in terms applied for...... 500
600........ Determining matters in the absence of a person.............................. 500
601........ Writing and publication requirements for FWA’s decisions........... 501
602........ Correcting obvious errors etc. in relation to FWA’s decisions........ 502
603........ Varying and revoking FWA’s decisions......................................... 502
Subdivision E—Appeals, reviews and referring questions of law 503
604........ Appeal of decisions......................................................................... 503
605........ Minister’s entitlement to apply for review of a decision.................. 503
606........ Staying decisions that are appealed or reviewed.............................. 504
607........ Process for appealing or reviewing decisions................................. 505
608........ Referring questions of law to the Federal Court.............................. 505
Subdivision F—Miscellaneous 506
609........ Procedural rules.............................................................................. 506
610........ Regulations dealing with FWA matters........................................... 507
611........ Costs............................................................................................... 507
Division 4—Organisation of FWA 508
Subdivision A—Functions etc. to be performed by a single FWA Member, a Full Bench or the Minimum Wage Panel 508
612........ FWA functions etc. may generally be performed by single FWA Member 508
613........ Appeal of decisions to be heard by a Full Bench, the President or a Deputy President 508
614........ Review of decisions by a Full Bench.............................................. 509
615........ FWA functions etc. performed by a Full Bench on direction by the President 509
616........ FWA functions etc. that must be performed by a Full Bench.......... 509
617........ FWA functions etc. that must be performed by the Minimum Wage Panel 510
Subdivision B—Constitution of FWA by a single FWA Member, a Full Bench or the Minimum Wage Panel 510
618........ Constitution and decision‑making of a Full Bench.......................... 510
619........ Seniority of FWA Members........................................................... 511
620........ Constitution and decision‑making of the Minimum Wage Panel..... 511
621........ Reconstitution of FWA when single FWA Member becomes unavailable 512
622........ Reconstitution of FWA when FWA Member of a Full Bench or the Minimum Wage Panel becomes unavailable 512
623........ When new FWA Members begin to deal with matters.................... 513
624........ FWA’s decisions not invalid when improperly constituted............. 513
Subdivision C—Delegation of FWA’s functions and powers 513
625........ Delegation by the President of functions and powers of FWA....... 513
Division 5—FWA Members 515
Subdivision A—Appointment of FWA Members 515
626........ Appointment of FWA Members..................................................... 515
627........ Qualifications for appointment of FWA Members.......................... 515
628........ Basis of appointment of FWA Members........................................ 517
629........ Period of appointment of FWA Members....................................... 517
Subdivision B—Terms and conditions of FWA Members 518
630........ Appointment of a Judge not to affect tenure etc.............................. 518
631........ Dual federal and State appointments of Deputy Presidents or Commissioners 518
632........ Dual federal and Territory appointments of Deputy Presidents or Commissioners 519
633........ Outside employment of FWA Members......................................... 519
634........ Oath or affirmation of office........................................................... 519
635........ Remuneration of the President........................................................ 520
636........ Application of Judges’ Pensions Act to the President..................... 520
637........ Remuneration of FWA Members other than the President.............. 521
638........ Remuneration of Deputy Presidents or Commissioners performing duties on a part‑time basis 522
639........ Leave of absence of FWA Members other than the President......... 523
640........ Disclosure of interests by FWA Members other than the President 523
641........ Termination of appointment on grounds of misbehaviour or incapacity 524
642........ Suspension on grounds of misbehaviour or incapacity................... 524
643........ Termination of appointment for bankruptcy, etc.............................. 525
644........ Termination of appointment for outside employment...................... 526
645........ Resignation of FWA Members....................................................... 526
646........ Other terms and conditions of FWA Members............................... 526
647........ Appointment of acting President..................................................... 526
648........ Appointment of acting Deputy Presidents....................................... 527
Division 6—Cooperation with the States 529
649........ President to cooperate with prescribed State industrial authorities.. 529
650........ Provision of administrative support................................................ 529
Division 7—Seals and additional powers and functions of the President and the General Manager 530
651........ Seals................................................................................................ 530
652........ Annual report.................................................................................. 530
653........ Reports about making enterprise agreements, individual flexibility arrangements etc. 531
653A..... Arrangements with the Federal Court and the Federal Magistrates Court 532
654........ President must provide certain information etc. to the Minister and Fair Work Ombudsman 532
655........ Disclosure of information by FWA................................................ 533
Division 8—General Manager, staff and consultants 534
Subdivision A—Functions of the General Manager 534
656........ Establishment.................................................................................. 534
657........ Functions and powers of the General Manager............................... 534
658........ Directions from the President.......................................................... 534
659........ General Manager not otherwise subject to direction........................ 535
Subdivision B—Appointment and terms and conditions of the General Manager 535
660........ Appointment of the General Manager............................................. 535
661........ Remuneration of the General Manager............................................ 535
662........ Leave of absence of the General Manager....................................... 536
663........ Outside employment of the General Manager................................. 536
664........ Disclosure of interests to the President........................................... 536
665........ Resignation of the General Manager............................................... 536
666........ Termination of appointment of the General Manager...................... 536
667........ Other terms and conditions of the General Manager....................... 537
668........ Appointment of acting General Manager........................................ 537
669........ Minister to consult the President..................................................... 538
Subdivision C—Staff and consultants 538
670........ Staff................................................................................................ 538
671........ Delegation by General Manager to staff.......................................... 538
672........ Persons assisting FWA................................................................... 539
673........ Consultants..................................................................................... 539
Division 9—Offences relating to Fair Work Australia 540
674........ Offences in relation to FWA........................................................... 540
675........ Contravening an FWA order........................................................... 542
676........ Intimidation etc................................................................................ 542
677........ Offences in relation to attending before FWA................................. 543
678........ False or misleading evidence........................................................... 544
Part 5‑2—Office of the Fair Work Ombudsman 545
Division 1—Introduction 545
679........ Guide to this Part............................................................................ 545
680........ Meanings of employee and employer.............................................. 545
Division 2—Fair Work Ombudsman 546
Subdivision A—Establishment and functions and powers of the Fair Work Ombudsman 546
681........ Establishment.................................................................................. 546
682........ Functions of the Fair Work Ombudsman........................................ 546
683........ Delegation by the Fair Work Ombudsman...................................... 547
684........ Directions from the Minister........................................................... 547
685........ Minister may require reports........................................................... 548
686........ Annual report.................................................................................. 548
Subdivision B—Appointment and terms and conditions of the Fair Work Ombudsman 548
687........ Appointment of the Fair Work Ombudsman................................... 548
688........ Remuneration of the Fair Work Ombudsman................................. 549
689........ Leave of absence of the Fair Work Ombudsman............................ 549
690........ Outside employment of the Fair Work Ombudsman....................... 549
691........ Disclosure of interests to the Minister............................................. 549
692........ Resignation of the Fair Work Ombudsman..................................... 550
693........ Termination of appointment of the Fair Work Ombudsman............ 550
694........ Other terms and conditions of the Fair Work Ombudsman............. 550
695........ Appointment of acting Fair Work Ombudsman.............................. 551
Division 3—Office of the Fair Work Ombudsman 552
Subdivision A—Establishment of the Office of the Fair Work Ombudsman 552
696........ Establishment of the Office of the Fair Work Ombudsman............ 552
Subdivision B—Staff and consultants etc. 552
697........ Staff................................................................................................ 552
698........ Persons assisting the Fair Work Ombudsman................................ 552
699........ Consultants..................................................................................... 553
Subdivision C—Appointment of Fair Work Inspectors 553
700........ Appointment of Fair Work Inspectors............................................ 553
701........ Fair Work Ombudsman is a Fair Work Inspector........................... 553
702........ Identity cards................................................................................... 553
Subdivision D—Functions and powers of Fair Work Inspectors 554
703........ Conditions and restrictions on functions and powers...................... 554
704........ General directions by the Fair Work Ombudsman.......................... 555
705........ Particular directions by the Fair Work Ombudsman....................... 555
706........ Purpose for which powers of inspectors may be exercised............. 555
707........ When powers of inspectors may be exercised................................. 556
708........ Power of inspectors to enter premises............................................. 556
709........ Powers of inspectors while on premises......................................... 557
710........ Persons assisting inspectors............................................................ 557
711........ Power to ask for person’s name and address.................................. 558
712........ Power to require persons to produce records or documents............ 558
713........ Self‑incrimination............................................................................ 559
714........ Power to keep records or documents.............................................. 559
715........ Enforceable undertakings relating to contraventions of civil remedy provisions 560
716........ Compliance notices......................................................................... 561
717........ Review of compliance notices......................................................... 563
Subdivision E—Disclosure of information by the Office of the Fair Work Ombudsman 563
718........ Disclosure of information by the Office of the Fair Work Ombudsman 563
Chapter 6—Miscellaneous 566
Part 6‑1—Multiple actions 566
Division 1—Introduction 566
719........ Guide to this Part............................................................................ 566
720........ Meanings of employee and employer.............................................. 566
Division 2—Certain actions not permitted if alternative action can be taken 567
721........ Equal remuneration applications...................................................... 567
722........ Notification and consultation requirements applications.................. 567
723........ Unlawful termination applications................................................... 568
Division 3—Preventing multiple actions 569
Subdivision A—Equal remuneration applications 569
724........ Equal remuneration applications...................................................... 569
Subdivision B—Applications and complaints relating to dismissal 570
725........ General rule..................................................................................... 570
726........ Dismissal remedy bargaining order applications............................. 570
727........ General protections FWA applications............................................ 570
728........ General protections court applications............................................. 571
729........ Unfair dismissal applications.......................................................... 571
730........ Unlawful termination FWA applications......................................... 572
731........ Unlawful termination court applications.......................................... 572
732........ Applications and complaints under other laws................................ 572
733........ Dismissal does not include failure to provide benefits.................... 573
Subdivision C—General protections applications that do not relate to dismissal 573
734........ General rule..................................................................................... 573
Part 6‑2—Dealing with disputes 575
Division 1—Introduction 575
735........ Guide to this Part............................................................................ 575
736........ Meanings of employee and employer.............................................. 575
Division 2—Dealing with disputes 576
Subdivision A—Model term about dealing with disputes 576
737........ Model term about dealing with disputes.......................................... 576
Subdivision B—Dealing with disputes 576
738........ Application of this Division............................................................ 576
739........ Disputes dealt with by FWA........................................................... 576
740........ Dispute dealt with by persons other than FWA.............................. 577
Part 6‑3—Extension of National Employment Standards entitlements 579
Division 1—Introduction 579
741........ Guide to this Part............................................................................ 579
742........ Meanings of employee and employer.............................................. 579
Division 2—Extension of entitlement to unpaid parental leave and related entitlements 580
Subdivision A—Main provisions 580
743........ Object of this Division.................................................................... 580
744........ Extending the entitlement to unpaid parental leave and related entitlements 580
745........ Contravening the extended parental leave provisions...................... 581
746........ References to the National Employment Standards include extended parental leave provisions 582
747........ State and Territory laws that are not excluded................................. 582
Subdivision B—Modifications of the extended parental leave provisions 582
748........ Non‑national system employees are not award/agreement free employees 582
749........ Modification of meaning of base rate of pay for pieceworkers....... 583
750........ Modification of meaning of full rate of pay for pieceworkers......... 583
751........ Modification of meaning of ordinary hours of work—if determined by State industrial instrument 583
752........ Modification of meaning of ordinary hours of work—if not determined by State industrial instrument 583
753........ Modification of meaning of ordinary hours of work—regulations may prescribe usual weekly hours 584
754........ Modification of meaning of pieceworker........................................ 584
755........ Modification of provision about interaction with paid leave............ 584
756........ Modification of provision about relationship between National Employment Standards and agreements 584
757........ Modification of power to make regulations..................................... 585
Division 3—Extension of entitlement to notice of termination or payment in lieu of notice 586
Subdivision A—Main provisions 586
758........ Object of this Division.................................................................... 586
759........ Extending entitlement to notice of termination or payment in lieu of notice 586
760........ Contravening the extended notice of termination provisions........... 587
761........ References to the National Employment Standards include extended notice of termination provisions 588
762........ State and Territory laws that are not excluded................................. 588
Subdivision B—Modifications of the extended notice of termination provisions 588
763........ Non‑national system employees are not award/agreement free employees 588
764........ Modification of meaning of full rate of pay for pieceworkers......... 588
765........ Modification of meaning of pieceworker........................................ 589
766........ Modification of provision about notice of termination by employee 589
767........ Modification of provision about relationship between National Employment Standards and agreements 589
768........ Modification of power to make regulations..................................... 589
Part 6‑4—Additional provisions relating to termination of employment 590
Division 1—Introduction 590
769........ Guide to this Part............................................................................ 590
770........ Meanings of employee and employer.............................................. 590
Division 2—Termination of employment 591
771........ Object of this Division.................................................................... 591
772........ Employment not to be terminated on certain grounds...................... 591
773........ Application for FWA to deal with a dispute.................................... 593
774........ Time for application........................................................................ 593
775........ Application fees.............................................................................. 594
776........ Conferences.................................................................................... 594
777........ Certificate if dispute not resolved.................................................... 594
778........ Advice on unlawful termination court application........................... 594
779........ Unlawful termination court applications.......................................... 595
780........ Costs orders against lawyers and paid agents................................. 595
781........ Applications for costs orders.......................................................... 596
782........ Contravening costs orders............................................................... 596
783........ Reason for action to be presumed unless proved otherwise............ 596
Division 3—Notification and consultation requirements relating to certain terminations of employment 597
Subdivision A—Object of this Division 597
784........ Object of this Division.................................................................... 597
Subdivision B—Requirement to notify Centrelink 597
785........ Employer to notify Centrelink of certain proposed terminations..... 597
Subdivision C—Failure to notify or consult registered employee associations 598
786........ FWA may make orders where failure to notify or consult registered employee associations about terminations 598
787........ Orders that FWA may make........................................................... 600
788........ Application to FWA for order......................................................... 600
Subdivision D—Limits on scope of this Division 601
789........ Limits on scope of this Division..................................................... 601
Part 6‑5—Miscellaneous 602
Division 1—Introduction 602
790........ Guide to this Part............................................................................ 602
791........ Meanings of employee and employer.............................................. 602
Division 2—Miscellaneous 603
792........ Delegation by Minister.................................................................... 603
793........ Liability of bodies corporate............................................................ 603
794........ Signature on behalf of body corporate............................................ 604
795........ Public sector employer to act through employing authority............. 604
796........ Regulations—general...................................................................... 606
797........ Regulations dealing with offences................................................... 606
798........ Regulations dealing with civil penalties........................................... 606
799........ Regulations dealing with infringement notices................................ 606
800........ Regulations dealing with exhibiting fair work instruments............. 607
Schedule 1—Transitional provisions 608
1............ Definitions...................................................................................... 608
2............ Appointments to Fair Work Australia............................................. 608
3............ Terms and conditions...................................................................... 610
4............ Seniority of FWA Members........................................................... 610
5............ Procedural rules.............................................................................. 611
6............ Transfer of assets and liabilities...................................................... 611
7............ Additional function and power of the General Manager................. 612
Fair Work Act 2009
No. 28, 2009
An Act relating to workplace relations, and for related purposes
[Assented to 7 April 2009]
The Parliament of Australia enacts:
Chapter 1—Introduction
Part 1‑1—Introduction
Division 1—Preliminary
1 Short title
This Act may be cited as the Fair Work Act 2009.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provision(s) | Commencement | Date/Details |
| 1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 7 April 2009 |
| 2. Sections 3 to 40 | A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. | 26 May 2009 (see F2009L01818) |
| 3. Sections 41 to 572 | A day or days to be fixed by Proclamation. A Proclamation must not specify a day that occurs before the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent. However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent, they commence on the first day after the end of that period. | Sections 41–43, 50–54, 58,
169–281A,
300–327, 332, 333, 334–572: 1 July 2009
(see F2009L02563) Sections 44–49, 55–57A,
59–168,
282–299,
328–331, 333A: 1 January 2010
(see F2009L02563) |
| 4. Sections 573 to 718 | At the same time as the provision(s) covered by table item 2. | 26 May 2009 |
| 5. Sections 719 to 800 | A day or days to be fixed by Proclamation. A Proclamation must not specify a day that occurs before the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent. However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent, they commence on the first day after the end of that period. | Sections
719–740,
769–800: 1 July 2009
(see F2009L02563) Sections
741–768: 1 January 2010
(see F2009L02563) |
| 6. Schedule 1 | At the same time as the provision(s) covered by table item 2. | 26 May 2009 |
Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
Division 2—Object of this Act
3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and
(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and
(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise‑level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action.
Division 3—Guide to this Act
4 Guide to this Act
Overview of this Act
(1) This Act is about workplace relations. It:
(a) provides for terms and conditions of employment (Chapter 2); and
(b) sets out rights and responsibilities of employees, employers and organisations in relation to that employment (Chapter 3); and
(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 1‑2—Definitions
Division 1—Introduction
10 Guide to this Part
This Part is about the terms that are defined in this Act.
Division 2 has the Dictionary (see section 12). The Dictionary is a list of every term that is defined in this Act. A term will either be defined in the Dictionary itself, or in another provision of this Act. If another provision defines the term, the Dictionary will have a signpost to that definition.
Division 3 has definitions relating to the meanings of employee and employer.
Division 4 has some other definitions that apply across this Act.
11 Meanings of employee and employer
In this Part, employee and employer have their ordinary meanings.
Division 2—The 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
(aa) in relation to an entry under section 483A other than a designated outworker terms entry: see paragraph 483B(3)(a); and
(ab) in relation to a designated outworker terms entry under section 483A: see paragraph 483B(3)(b); and
(b) in relation to an entry in accordance with Division 3 of Part 3‑4: see paragraph 495(2)(a); and
(c) in relation to a State or Territory OHS right to inspect or otherwise access an employee record: see paragraph 495(2)(b).
affected member certificate: see subsection 520(1).
agreed terms for a workplace determination: see section 274.
agreed to in relation to a termination of an enterprise agreement: see section 221.
annual rate of an employee’s guaranteed annual earnings: see subsection 330(3).
annual wage review: see subsection 285(1).
anti‑discrimination law: see subsection 351(3).
applicable agreement‑derived long service leave terms: see subsection 113(5).
applicable award‑derived long service leave terms: see subsection 113(3).
application or complaint under another law: see subsection 732(2).
applies:
(a) in relation to a modern award: see section 47; and
(b) in relation to an enterprise agreement: see section 52.
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).
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 section 176.
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).
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.
designated outworker term of a modern award, enterprise agreement, workplace determination or other instrument, means any of the following terms, so far as the term relates to outworkers in the textile, clothing or footwear industry:
(a) a term that deals with the registration of an employer or outworker entity;
(b) a term that deals with the making and retaining of, or access to, records about work to which outworker terms of a modern award apply;
(c) a term imposing conditions under which an arrangement may be entered into by an employer or an outworker entity for the performance of work, where the work is of a kind that is often performed by outworkers;
(d) a term relating to the liability of an employer or outworker entity for work undertaken by an outworker under such an arrangement, including a term which provides for the outworker to make a claim against an employer or outworker entity;
(e) a term that requires minimum pay or other conditions, including the National Employment Standards, to be applied to an outworker who is not an employee;
(f) any other terms prescribed by the regulations.
designated outworker terms entry: see subsection 483A(5).
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 and paragraph 471(4A)(c).
employee couple: 2 national system employees are an employee couple if each of the employees is the spouse or de facto partner of the other.
employee organisation means an organisation of employees.
employee record, in relation to an employee, has the meaning given by the Privacy Act 1988.
employee response action: see section 410 and paragraph 471(4A)(d).
employee with a disability means a national system employee who is qualified for a disability support pension as set out in section 94 or 95 of the Social Security Act 1991, or who would be so qualified but for paragraph 94(1)(e) or 95(1)(c) of that Act.
employer is defined in the first Division of each Part (other than Part 1‑1) in which the term appears.
Note 1: The definition in the Part will define employer either as a national system employer or as having its ordinary meaning. However, there may be particular provisions in the Part where a different meaning for the term is specified.
Note 2: If the term has its ordinary meaning, see further 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 or termination payment arrangements in a modern award that are described in the award as an industry‑specific redundancy scheme.
inspector means a Fair Work Inspector.
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.
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‑member record or document: see subsection 482(2A).
non‑monetary benefits: see subsection 332(3).
non‑national system employee means an employee who is not a national system employee.
non‑national system employer means an employer that is not a national system employer.
non‑transferring employee 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, so far as:
(i) the person arranges for work to be performed for the person (either directly or indirectly); and
(ii) the work is of a kind that is often performed by outworkers; and
(iii) the work is, or is reasonably likely, to be performed in the Territory or 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.
reinstatement includes appointment by an associated entity in the circumstances provided for in an order to which subsection 391(1A) applies.
related body corporate has the meaning given by the Corporations Act 2001.
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 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.
TCF award means an instrument prescribed by the regulations for the purposes of this definition.
TCF outworker means an outworker in the textile, clothing or footwear industry whose work is covered by a TCF award.
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 3—Definitions relating to the meanings of employee, employer etc.
13 Meaning of national system employee
A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.
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 4—Other definitions
16 Meaning of base rate of pay
General meaning
(1) The base rate of pay of a national system employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not including any of the following:
(a) incentive‑based payments and bonuses;
(b) loadings;
(c) monetary allowances;
(d) overtime or penalty rates;
(e) any other separately identifiable amounts.
Meaning for pieceworkers in relation to entitlements under National Employment Standards
(2) Despite subsection (1), if one of the following paragraphs applies to a national system employee who is a pieceworker, the employee’s base rate of pay, in relation to entitlements under the National Employment Standards, is the base rate of pay referred to in that paragraph:
(a) a modern award applies to the employee and specifies the employee’s base rate of pay for the purposes of the National Employment Standards;
(b) an enterprise agreement applies to the employee and specifies the employee’s base rate of pay for the purposes of the National Employment Standards;
(c) the employee is an award/agreement free employee, and the regulations prescribe, or provide for the determination of, the employee’s base rate of pay for the purposes of the National Employment Standards.
Meaning for pieceworkers for the purpose of section 206
(3) The regulations may prescribe, or provide for the determination of, the base rate of pay, for the purpose of section 206, of an employee who is a pieceworker. If the regulations do so, the employee’s base rate of pay, for the purpose of that section, is as prescribed by, or determined in accordance with, the regulations.
Note: Section 206 deals with an employee’s base rate of pay under an enterprise agreement.
17 Meaning of child of a person
(1) A child of a person includes:
(a) someone who is a child of the person within the meaning of the Family Law Act 1975; and
(b) an adopted child or 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.
Note: In this section, employee and employer have their ordinary meanings (see section 11).
20 Meaning of ordinary hours of work for award/agreement free employees
Agreed ordinary hours of work
(1) The ordinary hours of work of an award/agreement free employee are the hours agreed by the employee and his or her national system employer as the employee’s ordinary hours of work.
If there is no agreement
(2) If there is no agreement about ordinary hours of work for an award/agreement free employee, the ordinary hours of work of the employee in a week are:
(a) for a full time employee—38 hours; or
(b) for an employee who is not a full‑time employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s usual weekly hours of work.
If the agreed hours are less than usual weekly hours
(3) If, for an award/agreement free employee who is not a full‑time employee, there is an agreement under subsection (1) between the employee and his or her national system employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work, the ordinary hours of work of the employee in a week are the lesser of:
(a) 38 hours; and
(b) the employee’s usual weekly hours of work.
Regulations may prescribe usual weekly hours
(4) For an award/agreement free employee who is not a full‑time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of subsections (2) and (3).
21 Meaning of pieceworker
(1) A pieceworker is:
(a) a national system employee to whom a modern award applies and who is defined or described in the award as a pieceworker; or
(b) a national system employee to whom an enterprise agreement applies and who is defined or described in the agreement as a pieceworker; or
(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 1‑3—Application of this Act
Division 1—Introduction
24 Guide to this Part
This Part deals with the extent of the application of this Act.
Division 2 is about how this Act affects the operation of certain State or Territory laws.
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 2—Interaction with State and Territory laws
26 Act excludes State or Territory industrial laws
(1) This Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer.
(2) A State or Territory industrial law is:
(a) a general State industrial law; or
(b) an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes:
(i) regulating workplace relations (including industrial matters, industrial activity, collective bargaining, industrial disputes and industrial action);
(ii) providing for the establishment or enforcement of terms and conditions of employment;
(iii) providing for the making and enforcement of agreements (including individual agreements and collective agreements), and other industrial instruments or orders, determining terms and conditions of employment;
(iv) prohibiting conduct relating to a person’s membership or non‑membership of an industrial association;
(v) providing for rights and remedies connected with the termination of employment;
(vi) providing for rights and remedies connected with conduct that adversely affects an employee in his or her employment; or
(c) a law of a State or Territory that applies to employment generally and deals with leave (other than long service leave or leave for victims of crime); or
(d) a law of a State or Territory providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal or comparable value; or
(e) a law of a State or Territory providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair; or
(f) a law of a State or Territory that entitles a representative of a trade union to enter premises; or
(g) an instrument made under a law described in paragraph (a), (b), (c), (d), (e) or (f), so far as the instrument is of a legislative character; or
(h) either of the following:
(i) a law that is a law of a State or Territory;
(ii) an instrument of a legislative character made under such a law;
that is prescribed by the regulations.
(3) Each of the following is a general State industrial law:
(a) the Industrial Relations Act 1996 of New South Wales;
(b) the Industrial Relations Act 1999 of Queensland;
(c) the Industrial Relations Act 1979 of Western Australia;
(d) the Fair Work Act 1994 of South Australia;
(e) the Industrial Relations Act 1984 of Tasmania.
(4) A law or an Act of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to:
(a) all employers and employees in the State or Territory; or
(b) all employers and employees in the State or Territory except those identified (by reference to a class or otherwise) by a law of the State or Territory.
For this purpose, it does not matter whether or not the law also applies to other persons, or whether or not an exercise of a power under the law affects all the persons to whom the law applies.
27 State and Territory laws that are not excluded by section 26
(1A) Section 26 does not apply to any of the following laws:
(a) the 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.
(1) Section 26 does not apply to a law of a State or Territory so far as:
(b) the law is prescribed by the regulations as a law to which section 26 does not apply; or
(c) the law deals with any 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 (within the ordinary meaning of the term);
(e) child labour;
(f) training arrangements, except in relation to terms and conditions of employment to the extent that those terms and conditions are provided for by the National Employment Standards or may be included in a modern award;
(g) long service leave, except in relation to an employee who is entitled under Division 9 of Part 2‑2 to long service leave;
(h) leave for victims of crime;
(i) attendance for service on a jury, or for emergency service duties;
Note: See also section 112 for employee entitlements in relation to engaging in eligible community service activities.
(j) declaration, prescription or substitution of public holidays, except in relation to the rights and obligations of an employee or employer in relation to public holidays;
(k) the following matters relating to provision of essential services or to situations of emergency:
(i) directions to perform work (including to perform work at a particular time or place, or in a particular way);
(ii) directions not to perform work (including not to perform work at a particular time or place, or in a particular way);
(l) regulation of any of the following:
(i) employee associations;
(ii) employer associations;
(iii) members of employee associations or of employer associations;
(m) workplace surveillance;
(n) business trading hours;
(o) claims for enforcement of contracts of employment, except so far as the law in question provides for a matter to which paragraph 26(2)(e) applies;
(p) any other matters prescribed by the regulations.
28 Act excludes prescribed State and Territory laws
(1) This Act is intended to apply to the exclusion of a law of a State or Territory that is prescribed by the regulations.
(2) However, subsection (1) applies only so far as the law of the State or Territory would otherwise apply in relation to a national system employee or a national system employer.
(3) To avoid doubt, subsection (1) has effect even if the law is covered by section 27 (so that section 26 does not apply to the law). This subsection does not limit subsection (1).
29 Interaction of modern awards and enterprise agreements with State and Territory laws
(1) A modern award or enterprise agreement prevails over a law of a State or Territory, to the extent of any inconsistency.
(2) Despite subsection (1), a term of a modern award or enterprise agreement applies subject to the following:
(a) any law covered by subsection 27(1A);
(b) any law of a State or Territory so far as it is covered by paragraph 27(1)(b), (c) or (d).
(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 3—Geographical 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; and
(b) any Australian‑based employee.
(3A) For the purposes of extending this Act in accordance with subsection (3):
(a) any reference in a provision of this Act to an employer is taken to include a reference to:
(i) an Australian employer; and
(ii) an employer of an Australian‑based employee; and
(b) any reference in a provision of this Act to an employee is taken to include a reference to:
(i) an employee of an Australian employer; and
(ii) an 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.
35A Regulations excluding application of Act
(1) Regulations made for the purposes of section 32 or subsection 33(4) or 34(4) may exclude the application of the whole of this Act in relation to all or a part of an area referred to in section 32 or subsection 33(4) or 34(4) (as the case may be).
(2) If subsection (1) applies, this Act has effect as if it did not apply in relation to that area or that part of that area.
36 Geographical application of offences
Division 14 (Standard geographical jurisdiction) of the Criminal Code does not apply in relation to an offence against this Act.
Note: The extended geographical application that this Division gives to this Act will apply to the offences in this Act.
Division 4—Miscellaneous
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 2—Terms and conditions of employment
Part 2‑1—Core provisions for this Chapter
Division 1—Introduction
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 2—Core provisions for this Chapter
Subdivision A—Terms and conditions of employment provided under this Act
43 Terms and conditions of employment provided under this Act
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 B—Terms 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 C—Terms 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: Subsection (2) does not affect the ability of outworker terms in a modern award to be enforced under Part 4‑1 in relation to outworkers who are not employees.
47 When a modern award applies to an employer, employee, organisation or outworker entity
When a modern award applies to an employee, employer, organisation or outworker entity
(1) A modern award applies to an employee, employer, organisation or outworker entity if:
(a) the modern award covers the employee, employer, organisation or outworker entity; and
(b) the modern award is in operation; and
(c) no other provision of this Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity.
Note 1: Section 57 provides that a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.
Note 2: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).
Modern awards do not apply to high income employees
(2) However, a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee.
Modern awards apply to employees in relation to particular employment
(3) A reference in this Act to a modern award applying to an employee is a reference to the award applying to the employee in relation to particular employment.
48 When a modern award covers an employer, employee, organisation or outworker entity
When a modern award covers an employee, employer, organisation or outworker entity
(1) A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity.
Note: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).
Effect of other provisions of this Act, 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 D—Terms 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 3—Interaction between the National Employment Standards, modern awards and enterprise agreements
Subdivision A—Interaction between the National Employment Standards and a modern award or an enterprise agreement
55 Interaction between the National Employment Standards and a modern award or enterprise agreement
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 to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.
Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:
(a) under which, instead of taking paid annual leave at the rate of pay required by section 90, an employee may take twice as much leave at half that rate of pay; or
(b) that specify when payment under section 90 for paid annual leave must be made.
Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms:
(a) that increase the amount of paid annual leave to which an employee is entitled beyond the number of weeks that applies under section 87; or
(b) that provide for an employee to be paid for taking a period of paid annual leave or paid/personal carer’s leave at a rate of pay that is higher than the employee’s base rate of pay (which is the rate required by sections 90 and 99).
Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms requiring an employee to give more notice of the taking of unpaid parental leave than is required by section 74.
Enterprise agreements may include terms that have the same effect as provisions of the National Employment Standards
(5) An enterprise agreement may include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards, whether or not ancillary or supplementary terms are included as referred to in subsection (4).
Effect of terms that give an employee the same entitlement as under the National Employment Standards
(6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that the terms give an employee an entitlement (the award or agreement entitlement) that is the same as an entitlement (the NES entitlement) of the employee under the National Employment Standards:
(a) those terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit; and
(b) the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement.
Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year, the provisions of the National Employment Standards relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.
Terms permitted by subsection (4) or (5) do not contravene subsection (1)
(7) To the extent that a term of a modern award or enterprise agreement is permitted by subsection (4) or (5), the term does not contravene subsection (1).
Note: A term of a modern award has no effect to the extent that it contravenes this section (see section 56). An enterprise agreement that includes a term that contravenes this section must not be approved (see section 186) and a term of an enterprise agreement has no effect to the extent that it contravenes this section (see section 56).
56 Terms of a modern award or enterprise agreement contravening section 55 have no effect
A term of a modern award or enterprise agreement has no effect to the extent that it contravenes section 55.
Subdivision B—Interaction between modern awards and enterprise agreements
57 Interaction between modern awards and enterprise agreements
(1) A modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.
(2) If a modern award does not apply to an employee in relation to particular employment because of subsection (1), the award does not apply to an employer, or an employee organisation, in relation to the employee.
57A Designated outworker terms of a modern award continue to apply
(1) This section applies if, at a particular time:
(a) an enterprise agreement applies to an employer; and
(b) a modern award covers the employer (whether the modern award covers the employer in the employer’s capacity as an employer or an outworker entity); and
(c) the modern award includes one or more designated outworker terms.
(2) Despite section 57, the designated outworker terms of the modern award apply at that time to the following:
(a) the employer;
(b) each employee who is both:
(i) a person to whom the enterprise agreement applies; and
(ii) a person who is covered by the modern award;
(c) each employee organisation that is covered by the modern award.
(3) To avoid doubt:
(a) designated outworker terms of a modern award can apply to an employer under subsection (2) even if none of the employees of the employer is an outworker; and
(b) to the extent to which designated outworker terms of a modern award apply to an employer, an employee or an employee organisation because of subsection (2), the modern award applies to the employer, employee or organisation.
Subdivision C—Interaction 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 2‑2—The National Employment Standards
Division 1—Introduction
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 2—The National Employment Standards
61 The National Employment Standards are minimum standards applying to employment of employees
(1) This Part sets minimum standards that apply to the employment of employees which cannot be displaced, even if an enterprise agreement includes terms of the kind referred to in subsection 55(5).
Note: Subsection 55(5) allows enterprise agreements to include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards.
(2) The minimum standards relate to the following matters:
(a) maximum weekly hours (Division 3);
(b) requests for flexible working arrangements (Division 4);
(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 3—Maximum 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 4—Requests 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 responsibility for the care, of a child may request the employer for a change in working arrangements to assist the employee to care for the child if the child:
(a) is under school age; or
(b) is under 18 and has a disability.
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 5—Parental leave and related entitlements
Subdivision A—General
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 B—Parental 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.