Federal Register of Legislation - Australian Government

Primary content

Fair Work Act 2009

  • - C2009C00392
  • In force - Superseded Version
  • View Series
Act No. 28 of 2009 as amended, taking into account amendments up to Act No. 70 of 2009
An Act relating to workplace relations, and for related purposes
Administered by: Education, Employment and Workplace Relations; Attorney-General's
General Comments: This compilation is affected by a retrospective amendment, please see Statute Law Revision Act 2012 [Act No. 136 of 2012], for details.
Registered 05 Aug 2009
Start Date 05 Aug 2009
End Date 14 Dec 2009

Fair Work Act 2009

Act No. 28 of 2009 as amended

This compilation was prepared on 5 August 2009
taking into account amendments up to Act No. 70 of 2009

[Note: Sections 44–49, 55–57A, 59–168, 282–299, 328–331, 333A and 741–768 of this Act are not in force, see s. 2(1) and Note 1]

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

  

  

  


Contents

Chapter 1—Introduction                                                                                                     1

Part 1‑1—Introduction                                                                                                          1

Division 1—Preliminary                                                                                              1

1............ Short title [see Note 1]....................................................................... 1

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

Division 2—Object of this Act                                                                                 4

3............ Object of this Act............................................................................... 4

Division 3—Guide to this Act                                                                                  5

4............ Guide to this Act................................................................................ 5

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

6............ Rights and responsibilities of employees, employers, organisations etc. (Chapter 3)            7

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

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

9............ Miscellaneous (Chapter 6)................................................................. 8

Part 1‑2—Definitions                                                                                                          10

Division 1—Introduction                                                                                          10

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

11.......... Meanings of employee and employer................................................ 10

Division 2—The Dictionary                                                                                     11

12.......... The Dictionary................................................................................. 11

Division 3—Definitions relating to the meanings of employee, employer etc.  33

13.......... Meaning of national system employee.............................................. 33

14.......... Meaning of national system employer.............................................. 33

15.......... Ordinary meanings of employee and employer................................. 34

Division 4—Other definitions                                                                                35

16.......... Meaning of base rate of pay............................................................. 35

17.......... Meaning of child of a person............................................................ 36

18.......... Meaning of full rate of pay................................................................ 36

19.......... Meaning of industrial action............................................................. 37

20.......... Meaning of ordinary hours of work for award/agreement free employees              38

21.......... Meaning of pieceworker................................................................... 39

22.......... Meanings of service and continuous service.................................... 40

23.......... Meaning of small business employer................................................ 43

Part 1‑3—Application of this Act                                                                                  44

Division 1—Introduction                                                                                          44

24.......... Guide to this Part............................................................................. 44

25.......... Meanings of employee and employer................................................ 44

Division 2—Interaction with State and Territory laws                              45

26.......... Act excludes State or Territory industrial laws................................ 45

27.......... State and Territory laws that are not excluded by section 26.......... 46

28.......... Act excludes prescribed State and Territory laws............................ 48

29.......... Interaction of modern awards and enterprise agreements with State and Territory laws        48

30.......... Act may exclude State and Territory laws etc. in other cases.......... 49

Division 2A—Application of this Act in a referring State                       50

30A....... Meaning of terms used in this Division............................................ 50

30B....... Meaning of referring State................................................................ 52

30C....... Extended meaning of national system employee................................ 54

30D....... Extended meaning of national system employer................................ 54

30E........ Extended ordinary meanings of employee and employer................... 54

30F........ Extended meaning of outworker entity.............................................. 55

30G....... General protections.......................................................................... 55

30H....... Division only has effect if supported by reference.......................... 56

30J........ Application of the Acts Interpretation Act 1901............................... 56

Division 3—Geographical application of this Act                                        57

31.......... Exclusion of persons etc. insufficiently connected with Australia... 57

32.......... Regulations may modify application of this Act in certain parts of Australia        57

33.......... Extension of this Act to the exclusive economic zone and the continental shelf     58

34.......... Extension of this Act beyond the exclusive economic zone and the continental shelf            59

35.......... Meanings of Australian employer and Australian‑based employee.. 60

35A....... Regulations excluding application of Act......................................... 61

36.......... Geographical application of offences............................................... 61

Division 4—Miscellaneous                                                                                      62

37.......... Act binds Crown.............................................................................. 62

38.......... Act not to apply so as to exceed Commonwealth power................ 62

39.......... Acquisition of property................................................................... 63

40.......... Interaction between fair work instruments and public sector employment laws    63

Chapter 2—Terms and conditions of employment                                             65

Part 2‑1—Core provisions for this Chapter                                                           65

Division 1—Introduction                                                                                          65

41.......... Guide to this Part............................................................................. 65

42.......... Meanings of employee and employer................................................ 66

Division 2—Core provisions for this Chapter                                               67

Subdivision A—Terms and conditions of employment provided under this Act   67

43.......... Terms and conditions of employment provided under this Act...... 67

Subdivision B—Terms and conditions of employment provided by the National Employment Standards       68

44.......... Contravening the National Employment Standards......................... 68

Subdivision C—Terms and conditions of employment provided by a modern award           68

45.......... Contravening a modern award.......................................................... 68

46.......... The significance of a modern award applying to a person............... 68

47.......... When a modern award applies to an employer, employee, organisation or outworker entity                69

48.......... When a modern award covers an employer, employee, organisation or outworker entity [see Note 2] 70

49.......... When a modern award is in operation.............................................. 71

Subdivision D—Terms and conditions of employment provided by an enterprise agreement           72

50.......... Contravening an enterprise agreement.............................................. 72

51.......... The significance of an enterprise agreement applying to a person... 72

52.......... When an enterprise agreement applies to an employer, employee or employee organisation 72

53.......... When an enterprise agreement covers an employer, employee or employee organisation      73

54.......... When an enterprise agreement is in operation.................................. 74

Division 3—Interaction between the National Employment Standards, modern awards and enterprise agreements                                                                                            75

Subdivision A—Interaction between the National Employment Standards and a modern award or an enterprise agreement                                                                                                         75

55.......... Interaction between the National Employment Standards and a modern award or enterprise agreement               75

56.......... Terms of a modern award or enterprise agreement contravening section 55 have no effect    77

Subdivision B—Interaction between modern awards and enterprise agreements              77

57.......... Interaction between modern awards and enterprise agreements....... 77

57A....... Designated outworker terms of a modern award continue to apply 78

Subdivision C—Interaction between one or more enterprise agreements     78

58.......... Only one enterprise agreement can apply to an employee.............. 78

Part 2‑2—The National Employment Standards                                                 80

Division 1—Introduction                                                                                          80

59.......... Guide to this Part............................................................................. 80

60.......... Meanings of employee and employer................................................ 80

Division 2—The National Employment Standards                                      81

61.......... The National Employment Standards are minimum standards applying to employment of employees                81

Division 3—Maximum weekly hours                                                                 82

62.......... Maximum weekly hours................................................................... 82

63.......... Modern awards and enterprise agreements may provide for averaging of hours of work       83

64.......... Averaging of hours of work for award/agreement free employees... 84

Division 4—Requests for flexible working arrangements                      85

65.......... Requests for flexible working arrangements..................................... 85

66.......... State and Territory laws that are not excluded................................. 86

Division 5—Parental leave and related entitlements                                87

Subdivision A—General                                                                                           87

67.......... General rule—employee must have completed at least 12 months of service         87

68.......... General rule for adoption‑related leave—child must be under 16 etc. 89

69.......... Transfer of employment situations in which employee is entitled to continue on leave etc.  89

Subdivision B—Parental leave                                                                                90

70.......... Entitlement to unpaid parental leave................................................ 90

71.......... The period of leave—other than for members of an employee couple who each intend to take leave    90

72.......... The period of leave—members of an employee couple who each intend to take leave           91

73.......... Pregnant employee may be required to take unpaid parental leave within 6 weeks before the birth      93

74.......... Notice and evidence requirements.................................................... 95

75.......... Extending period of unpaid parental leave—extending to use more of available parental leave period   96

76.......... Extending period of unpaid parental leave—extending for up to 12 months beyond available parental leave period.......................................................................................................... 97

77.......... Reducing period of unpaid parental leave......................................... 98

78.......... Employee who ceases to have responsibility for care of child......... 98

79.......... Interaction with paid leave............................................................... 99

Subdivision C—Other entitlements                                                                       99

80.......... Unpaid special maternity leave........................................................ 99

81.......... Transfer to a safe job...................................................................... 100

82.......... Employee on paid no safe job leave may be asked to provide a further medical certificate    102

83.......... Consultation with employee on unpaid parental leave.................. 102

84.......... Return to work guarantee............................................................... 103

85.......... Unpaid pre‑adoption leave............................................................. 103

Division 6—Annual leave                                                                                       105

86.......... Division applies to employees other than casual employees......... 105

87.......... Entitlement to annual leave............................................................. 105

88.......... Taking paid annual leave................................................................. 106

89.......... Employee not taken to be on paid annual leave at certain times.... 106

90.......... Payment for annual leave................................................................ 107

91.......... Transfer of employment situations that affect entitlement to payment for period of untaken paid annual leave  107

92.......... Paid annual leave must not be cashed out except in accordance with permitted cashing out terms        108

93.......... Modern awards and enterprise agreements may include terms relating to cashing out and taking paid annual leave........................................................................................................ 108

94.......... Cashing out and taking paid annual leave for award/agreement free employees      109

Division 7—Personal/carer’s leave and compassionate leave           111

Subdivision A—Paid personal/carer’s leave                                                      111

95.......... Subdivision applies to employees other than casual employees.... 111

96.......... Entitlement to paid personal/carer’s leave...................................... 111

97.......... Taking paid personal/carer’s leave.................................................. 111

98.......... Employee taken not to be on paid personal/carer’s leave on public holiday           112

99.......... Payment for paid personal/carer’s leave......................................... 112

100........ Paid personal/carer’s leave must not be cashed out except in accordance with permitted cashing out terms         112

101........ Modern awards and enterprise agreements may include terms relating to cashing out paid personal/carer’s leave........................................................................................................ 112

Subdivision B—Unpaid carer’s leave                                                                   113

102........ Entitlement to unpaid carer’s leave................................................ 113

103........ Taking unpaid carer’s leave............................................................ 113

Subdivision C—Compassionate leave                                                                  113

104........ Entitlement to compassionate leave............................................... 113

105........ Taking compassionate leave........................................................... 114

106........ Payment for compassionate leave (other than for casual employees) 114

Subdivision D—Notice and evidence requirements                                          115

107........ Notice and evidence requirements.................................................. 115

Division 8—Community service leave                                                            117

108........ Entitlement to be absent from employment for engaging in eligible community service activity            117

109........ Meaning of eligible community service activity.............................. 117

110........ Notice and evidence requirements.................................................. 119

111........ Payment to employees (other than casuals) on jury service.......... 119

112........ State and Territory laws that are not excluded............................... 121

Division 9—Long service leave                                                                          122

113........ Entitlement to long service leave.................................................... 122

113A..... Enterprise agreements may contain terms discounting service under prior agreements etc. in certain circumstances........................................................................................................ 124

Division 10—Public holidays                                                                                126

114........ Entitlement to be absent from employment on public holiday...... 126

115........ Meaning of public holiday.............................................................. 127

116........ Payment for absence on public holiday.......................................... 128

Division 11—Notice of termination and redundancy pay                       129

Subdivision A—Notice of termination or payment in lieu of notice               129

117........ Requirement for notice of termination or payment in lieu............. 129

118........ Modern awards and enterprise agreements may provide for notice of termination by employees         130

Subdivision B—Redundancy pay                                                                          130

119........ Redundancy pay............................................................................. 130

120........ Variation of redundancy pay for other employment or incapacity to pay             131

121........ Exclusions from obligation to pay redundancy pay....................... 132

122........ Transfer of employment situations that affect the obligation to pay redundancy pay           132

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                                                                                 136

126........ Modern awards and enterprise agreements may provide for school‑based apprentices and trainees to be paid loadings in lieu.............................................................................................. 136

127........ Regulations about what modern awards and enterprise agreements can do             136

128........ Relationship between National Employment Standards and agreements etc. permitted by this Part for award/agreement free employees................................................................................ 136

129........ Regulations about what can be agreed to etc. in relation to award/agreement free employees                137

130........ Restriction on taking or accruing leave or absence while receiving workers’ compensation    137

131........ Relationship with other Commonwealth laws............................... 138

Part 2‑3—Modern awards                                                                                              139

Division 1—Introduction                                                                                        139

132........ Guide to this Part........................................................................... 139

133........ Meanings of employee and employer.............................................. 140

Division 2—Overarching provisions                                                                141

134........ The modern awards objective......................................................... 141

135........ Special provisions relating to modern award minimum wages....... 142

Division 3—Terms of modern awards                                                             143

Subdivision A—Preliminary                                                                                 143

136........ What can be included in modern awards......................................... 143

137........ Terms that contravene section 136 have no effect......................... 144

138........ Achieving the modern awards objective......................................... 144

Subdivision B—Terms that may be included in modern awards                     144

139........ Terms that may be included in modern awards—general............... 144

140........ Outworker terms............................................................................ 145

141........ Industry‑specific redundancy schemes.......................................... 146

142........ Incidental and machinery terms...................................................... 147

Subdivision C—Terms that must be included in modern awards                   147

143........ Coverage terms............................................................................... 147

144........ Flexibility terms.............................................................................. 148

145........ Effect of individual flexibility arrangement that does not meet requirements of flexibility term             150

146........ Terms about settling disputes........................................................ 150

147........ Ordinary hours of work.................................................................. 151

148........ Base and full rates of pay for pieceworkers................................... 151

149........ Automatic variation of allowances................................................. 151

Subdivision D—Terms that must not be included in modern awards            151

150........ Objectionable terms........................................................................ 151

151........ Terms about payments and deductions for benefit of employer etc. 152

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

153........ Terms that are discriminatory........................................................ 152

154........ Terms that contain State‑based differences.................................... 153

155........ Terms dealing with long service leave............................................. 154

Division 4—4 yearly reviews of modern awards                                        155

156........ 4 yearly reviews of modern awards to be conducted..................... 155

Division 5—Exercising modern award powers outside 4 yearly reviews and annual wage reviews      157

Subdivision A—Exercise of powers if necessary to achieve modern awards objective       157

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

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

Subdivision B—Other situations                                                                         160

159........ Variation of modern award to update or omit name of employer, organisation or outworker entity      160

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

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

Division 6—General provisions relating to modern award powers 162

162........ General............................................................................................ 162

163........ Special criteria relating to changing coverage of modern awards..... 162

164........ Special criteria for revoking modern awards................................... 163

165........ When variation determinations come into operation, other than determinations setting, varying or revoking modern award minimum wages.................................................................... 163

166........ When variation determinations setting, varying or revoking modern award minimum wages come into operation........................................................................................................ 164

167........ Special rules relating to retrospective variations of awards............ 165

168........ Varied modern award must be published........................................ 166

Part 2‑4—Enterprise agreements                                                                              167

Division 1—Introduction                                                                                        167

169........ Guide to this Part........................................................................... 167

170........ Meanings of employee and employer.............................................. 168

171........ Objects of this Part......................................................................... 168

Division 2—Employers and employees may make enterprise agreements        170

172........ Making an enterprise agreement..................................................... 170

Division 3—Bargaining and representation during bargaining          172

173........ Notice of employee representational rights.................................... 172

174........ Content of notice of employee representational rights.................. 173

176........ Bargaining representatives for proposed enterprise agreements that are not greenfields agreements      174

178........ Appointment of bargaining representatives—other matters.......... 176

178A..... Revocation of appointment of bargaining representatives etc........ 176

Division 4—Approval of enterprise agreements                                       178

Subdivision A—Pre‑approval steps and applications for FWA approval       178

180........ Employees must be given a copy of a proposed enterprise agreement etc.            178

181........ Employers may request employees to approve a proposed enterprise agreement 179

182........ When an enterprise agreement is made........................................... 179

183........ Entitlement of an employee organisation to have an enterprise agreement cover it                180

184........ Multi‑enterprise agreement to be varied if not all employees approve the agreement            181

185........ Bargaining representative must apply for FWA approval of an enterprise agreement           181

Subdivision B—Approval of enterprise agreements by FWA                         182

186........ When FWA must approve an enterprise agreement—general requirements           182

187........ When FWA must approve an enterprise agreement—additional requirements       184

188........ When employees have genuinely agreed to an enterprise agreement 185

189........ FWA may approve an enterprise agreement that does not pass better off overall test—public interest test        186

190........ FWA may approve an enterprise agreement with undertakings.... 187

191........ Effect of undertakings..................................................................... 187

192........ When FWA may refuse to approve an enterprise agreement......... 188

Subdivision C—Better off overall test                                                                 188

193........ Passing the better off overall test................................................... 188

Subdivision D—Unlawful terms                                                                            190

194........ Meaning of unlawful term............................................................... 190

195........ Meaning of discriminatory term..................................................... 191

Subdivision E—Approval requirements relating to particular kinds of employees            192

196........ Shiftworkers................................................................................... 192

197........ Pieceworkers—enterprise agreement includes pieceworker term... 192

198........ Pieceworkers—enterprise agreement does not include a pieceworker term            193

199........ School‑based apprentices and school‑based trainees...................... 193

200........ Outworkers..................................................................................... 194

Subdivision F—Other matters                                                                              194

201........ Approval decision to note certain matters..................................... 194

Division 5—Mandatory terms of enterprise agreements                     196

202........ Enterprise agreements to include a flexibility term etc................... 196

203........ Requirements to be met by a flexibility term................................. 197

204........ Effect of arrangement that does not meet requirements of flexibility term              198

205........ Enterprise agreements to include a consultation term etc............... 199

Division 6—Base rate of pay under enterprise agreements               200

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.......................................................................... 200

Division 7—Variation and termination of enterprise agreements    201

Subdivision A—Variation of enterprise agreements by employers and employees            201

207........ Variation of an enterprise agreement may be made by employers and employees 201

208........ Employers may request employees to approve a proposed variation of an enterprise agreement         202

209........ When a variation of an enterprise agreement is made..................... 202

210........ Application for FWA approval of a variation of an enterprise agreement              202

211........ When FWA must approve a variation of an enterprise agreement. 203

212........ FWA may approve a variation of an enterprise agreement with undertakings        205

213........ Effect of undertakings..................................................................... 206

214........ When FWA may refuse to approve a variation of an enterprise agreement            206

215........ Approval decision to note undertakings......................................... 207

216........ When variation comes into operation............................................. 207

Subdivision B—Variations of enterprise agreements where there is ambiguity, uncertainty or discrimination        207

217........ Variation of an enterprise agreement to remove an ambiguity or uncertainty         207

217A..... FWA may deal with certain disputes about variations.................. 207

218........ Variation of an enterprise agreement on referral by HREOC......... 208

Subdivision C—Termination of enterprise agreements by employers and employees       209

219........ Employers and employees may agree to terminate an enterprise agreement           209

220........ Employers may request employees to approve a proposed termination of an enterprise agreement     209

221........ When termination of an enterprise agreement is agreed to............. 210

222........ Application for FWA approval of a termination of an enterprise agreement          210

223........ When FWA must approve a termination of an enterprise agreement 211

224........ When termination comes into operation......................................... 211

Subdivision D—Termination of enterprise agreements after nominal expiry date            211

225........ Application for termination of an enterprise agreement after its nominal expiry date            211

226........ When FWA must terminate an enterprise agreement..................... 212

227........ When termination comes into operation......................................... 212

Division 8—FWA’s general role in facilitating bargaining                   213

Subdivision A—Bargaining orders                                                                     213

228........ Bargaining representatives must meet the good faith bargaining requirements        213

229........ Applications for bargaining orders................................................. 213

230........ When FWA may make a bargaining order...................................... 215

231........ What a bargaining order must specify............................................ 216

232........ Operation of a bargaining order...................................................... 217

233........ Contravening a bargaining order...................................................... 217

Subdivision B—Serious breach declarations                                                    218

234........ Applications for serious breach declarations.................................. 218

235........ When FWA may make a serious breach declaration....................... 218

Subdivision C—Majority support determinations and scope orders             220

236........ Majority support determinations................................................... 220

237........ When FWA must make a majority support determination............ 220

238........ Scope orders................................................................................... 221

239........ Operation of a scope order............................................................. 223

Subdivision D—FWA may deal with a bargaining dispute on request          223

240........ Application for FWA to deal with a bargaining dispute................ 223

Division 9—Low‑paid bargaining                                                                       225

241........ Objects of this Division.................................................................. 225

242........ Low‑paid authorisations................................................................. 225

243........ When FWA must make a low‑paid authorisation.......................... 226

244........ Variation of low‑paid authorisations—general............................... 228

245........ Variation of low‑paid authorisations—enterprise agreement etc. comes into operation         228

246........ FWA assistance for the low‑paid................................................... 229

Division 10—Single interest employer authorisations                           230

Subdivision A—Declaration that employers may bargain together for a proposed enterprise agreement    230

247........ Ministerial declaration that employers may bargain together for a proposed enterprise agreement       230

Subdivision B—Single interest employer authorisations                               231

248........ Single interest employer authorisations.......................................... 231

249........ When FWA must make a single interest employer authorisation.. 231

250........ What a single interest employer authorisation must specify......... 232

251........ Variation of single interest employer authorisations...................... 233

252........ Variation to extend period single interest employer authorisation is in operation  234

Division 11—Other matters                                                                                  235

253........ Terms of an enterprise agreement that are of no effect.................. 235

254........ Applications by bargaining representatives................................... 235

255........ Part does not empower FWA to make certain orders.................... 236

256........ Prospective employers and employees.......................................... 236

256A..... How employees, employers and employee organisations are to be described        236

257........ Enterprise agreements may incorporate material in force from time to time etc.    237

Part 2‑5—Workplace determinations                                                                      238

Division 1—Introduction                                                                                        238

258........ Guide to this Part........................................................................... 238

259........ Meanings of employee and employer.............................................. 239

Division 2—Low‑paid workplace determinations                                      240

260........ Applications for low‑paid workplace determinations.................... 240

261........ When FWA must make a consent low‑paid workplace determination 241

262........ When FWA must make a special low‑paid workplace determination—general requirements                241

263........ When FWA must make a special low‑paid workplace determination—additional requirements            242

264........ Terms etc. of a low‑paid workplace determination........................ 243

265........ No other terms................................................................................ 244

Division 3—Industrial action related workplace determinations      245

266........ When FWA must make an industrial action related workplace determination        245

267........ Terms etc. of an industrial action related workplace determination 246

268........ No other terms................................................................................ 247

Division 4—Bargaining related workplace determinations                 248

269........ When FWA must make a bargaining related workplace determination 248

270........ Terms etc. of a bargaining related workplace determination........... 249

271........ No other terms................................................................................ 250

Division 5—Core terms, mandatory terms and agreed terms of workplace determinations etc.            251

272........ Core terms of workplace determinations........................................ 251

273........ Mandatory terms of workplace determinations............................. 252

274........ Agreed terms for workplace determinations................................... 253

275........ Factors FWA must take into account in deciding terms of a workplace determination          253

Division 6—Operation, coverage and interaction etc. of workplace determinations     255

276........ When a workplace determination operates etc............................... 255

277........ Employers, employees and employee organisations covered by a workplace determination 255

278........ Interaction of a workplace determination with enterprise agreements etc.              256

279........ Act applies to a workplace determination as if it were an enterprise agreement     257

Division 7—Other matters                                                                                    258

280........ Contravening a workplace determination....................................... 258

281........ Applications by bargaining representatives................................... 258

281A..... How employees, employers and employee organisations are to be described        258

Part 2‑6—Minimum wages                                                                                            260

Division 1—Introduction                                                                                        260

282........ Guide to this Part........................................................................... 260

283........ Meanings of employee and employer.............................................. 261

Division 2—Overarching provisions                                                                262

284........ The minimum wages objective........................................................ 262

Division 3—Annual wage reviews                                                                     264

Subdivision A—Main provisions                                                                          264

285........ Annual wage reviews to be conducted............................................ 264

286........ When annual wage review determinations varying modern awards come into operation        264

287........ When national minimum wage orders come into operation etc...... 265

Subdivision B—Provisions about conduct of annual wage reviews                267

288........ General............................................................................................ 267

289........ Everyone to have a reasonable opportunity to make and comment on submissions              267

290........ President may direct investigations and reports............................. 268

291........ Research must be published........................................................... 268

292........ Varied wage rates must be published by 1 July............................. 269

Division 4—National minimum wage orders                                                270

293........ Contravening a national minimum wage order................................ 270

294........ Content of national minimum wage order—main provisions......... 270

295........ Content of national minimum wage order—other matters............. 271

296........ Variation of national minimum wage order to remove ambiguity or uncertainty or correct error            272

297........ When determinations varying national minimum wage orders come into operation                272

298........ Special rule about retrospective variations of national minimum wage orders        273

299........ When a national minimum wage order is in operation.................... 273

Part 2‑7—Equal remuneration                                                                                     274

Division 1—Introduction                                                                                        274

300........ Guide to this Part........................................................................... 274

301........ Meanings of employee and employer.............................................. 274

Division 2—Equal remuneration orders                                                         275

302........ FWA may make an order requiring equal remuneration................. 275

303........ Equal remuneration order may increase, but must not reduce, rates of remuneration             276

304........ Equal remuneration order may implement equal remuneration in stages 276

305........ Contravening an equal remuneration order..................................... 276

306........ Inconsistency with modern awards, enterprise agreements and orders of FWA     276

Part 2‑8—Transfer of business                                                                                   277

Division 1—Introduction                                                                                        277

307........ Guide to this Part........................................................................... 277

308........ Meanings of employee and employer.............................................. 277

309........ Object of this Part.......................................................................... 277

Division 2—Transfer of instruments                                                                279

310........ Application of this Division........................................................... 279

311........ When does a transfer of business occur.......................................... 279

312........ Instruments that may transfer........................................................ 281

313........ Transferring employees and new employer covered by transferable instrument    281

314........ New non‑transferring employees of new employer may be covered by transferable instrument           282

315........ Organisations covered by transferable instrument......................... 282

316........ Transferring employees who are high income employees.............. 283

Division 3—Powers of FWA                                                                                 285

317........ FWA may make orders in relation to a transfer of business.......... 285

318........ Orders relating to instruments covering new employer and transferring employees               285

319........ Orders relating to instruments covering new employer and non‑transferring employees       286

320........ Variation of transferable instruments............................................. 288

Part 2‑9—Other terms and conditions of employment                                   291

Division 1—Introduction                                                                                        291

321........ Guide to this Part........................................................................... 291

322........ Meanings of employee and employer.............................................. 291

Division 2—Payment of wages                                                                             292

323........ Method and frequency of payment................................................ 292

324........ Permitted deductions...................................................................... 292

325........ Unreasonable requirements to spend amount................................. 293

326........ Certain terms have no effect........................................................... 293

327........ Things given or provided, and amounts required to be spent, in contravention of this Division            294

Division 3—Guarantee of annual earnings                                                    295

328........ Employer obligations in relation to guarantee of annual earnings... 295

329........ High income employee................................................................... 296

330........ Guarantee of annual earnings and annual rate of guarantee............. 296

331........ Guaranteed period.......................................................................... 297

332........ Earnings.......................................................................................... 297

333........ High income threshold.................................................................... 299

333A..... Prospective employees................................................................... 299

Chapter 3—Rights and responsibilities of employees, employers, organisations etc.        300

Part 3‑1—General protections                                                                                     300

Division 1—Introduction                                                                                        300

334........ Guide to this Part........................................................................... 300

335........ Meanings of employee and employer.............................................. 300

336........ Objects of this Part......................................................................... 301

Division 2—Application of this Part                                                                  302

337........ Application of this Part.................................................................. 302

338........ Action to which this Part applies................................................... 302

339........ Additional effect of this Part.......................................................... 303

Division 3—Workplace rights                                                                              304

340........ Protection....................................................................................... 304

341........ Meaning of workplace right........................................................... 304

342........ Meaning of adverse action............................................................. 306

343........ Coercion.......................................................................................... 308

344........ Undue influence or pressure........................................................... 309

345........ Misrepresentations......................................................................... 309

Division 4—Industrial activities                                                                         310

346........ Protection....................................................................................... 310

347........ Meaning of engages in industrial activity....................................... 310

348........ Coercion.......................................................................................... 311

349........ Misrepresentations......................................................................... 311

350........ Inducements—membership action................................................. 311

Division 5—Other protections                                                                            313

351........ Discrimination................................................................................ 313

352........ Temporary absence—illness or injury........................................... 314

353........ Bargaining services fees.................................................................. 314

354........ Coverage by particular instruments................................................ 314

355........ Coercion—allocation of duties etc. to particular person................ 315

356........ Objectionable terms........................................................................ 315

Division 6—Sham arrangements                                                                        316

357........ Misrepresenting employment as independent contracting arrangement  316

358........ Dismissing to engage as independent contractor............................ 316

359........ Misrepresentation to engage as independent contractor................ 316

Division 7—Ancillary rules                                                                                    318

360........ Multiple reasons for action............................................................ 318

361........ Reason for action to be presumed unless proved otherwise.......... 318

362........ Advising, encouraging, inciting or coercing action.......................... 318

363........ Actions of industrial associations................................................... 318

364........ Unincorporated industrial associations.......................................... 320

Division 8—Compliance                                                                                          321

Subdivision A—Contraventions involving dismissal                                        321

365........ Application for FWA to deal with a dispute................................. 321

366........ Time for application....................................................................... 321

367........ Application fees............................................................................. 321

368........ Conferences.................................................................................... 322

369........ Certificate if dispute not resolved.................................................. 322

370........ Advice on general protections court application............................ 322

371........ General protections court applications.......................................... 322

Subdivision B—Other contraventions                                                                 323

372........ Application for FWA to deal with a dispute................................. 323

373........ Application fees............................................................................. 323

374........ Conferences.................................................................................... 323

375........ Advice on general protections court application............................ 324

Subdivision C—Conference costs                                                                        324

376........ Costs orders against lawyers and paid agents................................ 324

377........ Applications for costs orders......................................................... 325

378........ Contravening costs orders.............................................................. 325

Part 3‑2—Unfair dismissal                                                                                             326

Division 1—Introduction                                                                                        326

379........ Guide to this Part........................................................................... 326

380........ Meanings of employee and employer.............................................. 326

381........ Object of this Part.......................................................................... 326

Division 2—Protection from unfair dismissal                                              328

382........ When a person is protected from unfair dismissal......................... 328

383........ Meaning of minimum employment period...................................... 328

384........ Period of employment.................................................................... 328

Division 3—What is an unfair dismissal                                                          330

385........ What is an unfair dismissal............................................................. 330

386........ Meaning of dismissed..................................................................... 330

387........ Criteria for considering harshness etc............................................. 331

388........ The Small Business Fair Dismissal Code....................................... 331

389........ Meaning of genuine redundancy..................................................... 332

Division 4—Remedies for unfair dismissal                                                   333

390........ When FWA may order remedy for unfair dismissal....................... 333

391........ Remedy—reinstatement etc........................................................... 333

392........ Remedy—compensation................................................................ 335

393........ Monetary orders may be in instalments......................................... 336

Division 5—Procedural matters                                                                          337

394........ Application for unfair dismissal remedy........................................ 337

395........ Application fees............................................................................. 337

396........ Initial matters to be considered before merits................................. 338

397........ Matters involving contested facts.................................................. 338

398........ Conferences.................................................................................... 338

399........ Hearings.......................................................................................... 339

400........ Appeal rights.................................................................................. 339

401........ Costs orders against lawyers and paid agents................................ 339

402........ Applications for costs orders......................................................... 340

403........ Schedule of costs............................................................................ 340

404........ Security for costs............................................................................ 341

405........ Contravening orders under this Part............................................... 341

Part 3‑3—Industrial action                                                                                             342

Division 1—Introduction                                                                                        342

406........ Guide to this Part........................................................................... 342

407........ Meanings of employee and employer.............................................. 343

Division 2—Protected industrial action                                                          344

Subdivision A—What is protected industrial action                                        344

408........ Protected industrial action.............................................................. 344

409........ Employee claim action.................................................................... 344

410........ Employee response action.............................................................. 345

411........ Employer response action.............................................................. 346

412........ Pattern bargaining........................................................................... 346

Subdivision B—Common requirements for industrial action to be protected industrial action       348

413........ Common requirements that apply for industrial action to be protected industrial action       348

414........ Notice requirements for industrial action....................................... 349

Subdivision C—Significance of industrial action being protected industrial action          350

415........ Immunity provision........................................................................ 350

416........ Employer response action—employer may refuse to make payments to employees            351

416A..... Employer response action does not affect continuity of employment 351

Division 3—No industrial action before nominal expiry date of enterprise agreement etc.       352

417........ Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.     352

Division 4—FWA orders stopping etc. industrial action                       354

418........ FWA must order that industrial action by employees or employers stop etc.       354

419........ FWA must order that industrial action by non‑national system employees or non‑national system employers stop etc......................................................................................................... 355

420........ Interim orders etc............................................................................ 355

421........ Contravening an order etc............................................................... 356

Division 5—Injunction against industrial action if pattern bargaining is being engaged in         358

422........ Injunction against industrial action if a bargaining representative is engaging in pattern bargaining        358

Division 6—Suspension or termination of protected industrial action by FWA                359

423........ FWA may suspend or terminate protected industrial action—significant economic harm etc.               359

424........ FWA must suspend or terminate protected industrial action—endangering life etc.              361

425........ FWA must suspend protected industrial action—cooling off........ 362

426........ FWA must suspend protected industrial action—significant harm to a third party               362

427........ FWA must specify the period of suspension................................ 363

428........ Extension of a period of suspension............................................... 364

429........ Employee claim action without a further protected action ballot after a period of suspension etc.       364

430........ Notice of employee claim action engaged in after a period of suspension etc.        365

Division 7—Ministerial declarations                                                                366

431........ Ministerial declaration terminating industrial action...................... 366

432........ Informing people of declaration...................................................... 366

433........ Ministerial directions to remove or reduce threat........................... 366

434........ Contravening a Ministerial direction.............................................. 367

Division 8—Protected action ballots                                                                368

Subdivision A—Introduction                                                                                 368

435........ Guide to this Division.................................................................... 368

436........ Object of this Division................................................................... 368

Subdivision B—Protected action ballot orders                                                  369

437........ Application for a protected action ballot order.............................. 369

438........ Restriction on when application may be made............................... 370

439........ Joint applications........................................................................... 370

440........ Notice of application...................................................................... 370

441........ Application to be determined within 2 days after it is made......... 371

442........ Dealing with multiple applications together................................... 371

443........ When FWA must make a protected action ballot order................. 371

444........ FWA may decide on ballot agent other than the Australian Electoral Commission and independent advisor        372

445........ Notice of protected action ballot order........................................... 373

446........ Protected action ballot order may require 2 or more protected action ballots to be held at the same time             373

447........ Variation of protected action ballot order....................................... 374

448........ Revocation of protected action ballot order................................... 374

Subdivision C—Conduct of protected action ballot                                           374

449........ Protected action ballot to be conducted by Australian Electoral Commission or other specified ballot agent        374

450........ Directions for conduct of protected action ballot........................... 375

451........ Timetable for protected action ballot............................................. 376

452........ Compilation of roll of voters.......................................................... 376

453........ Who is eligible to be included on the roll of voters......................... 377

454........ Variation of roll of voters............................................................... 377

455........ Protected action ballot papers........................................................ 379

456........ Who may vote in protected action ballot....................................... 379

457........ Results of protected action ballot................................................... 379

458........ Report about conduct of protected action ballot............................ 380

Subdivision D—Effect of protected action ballot                                                381

459........ Circumstances in which industrial action is authorised by protected action ballot 381

460........ Immunity for persons who act in good faith on protected action ballot results      382

461........ Validity of protected action ballot etc. not affected by technical breaches             383

Subdivision E—Compliance                                                                                   383

462........ Interferences etc. with protected action ballot............................... 383

463........ Contravening a protected action ballot order etc............................ 385

Subdivision F—Liability for costs of protected action ballot                           386

464........ Costs of protected action ballot conducted by the Australian Electoral Commission            386

465........ Costs of protected action ballot conducted by protected action ballot agent other than the Australian Electoral Commission.................................................................................... 386

466........ Costs of legal challenges................................................................. 387

Subdivision G—Miscellaneous                                                                             387

467........ Information about employees on roll of voters not to be disclosed 387

468........ Records........................................................................................... 388

469........ Regulations..................................................................................... 388

Division 9—Payments relating to periods of industrial action            389

Subdivision A—Protected industrial action                                                       389

470........ Payments not to be made relating to certain periods of industrial action                389

471........ Payments relating to partial work bans.......................................... 390

472........ Orders by FWA relating to certain partial work bans.................... 392

473........ Accepting or seeking payments relating to periods of industrial action  393

Subdivision B—Industrial action that is not protected industrial action      393

474........ Payments not to be made relating to certain periods of industrial action                393

475........ Accepting or seeking payments relating to periods of industrial action  394

Subdivision CMiscellaneous                                                                             395

476........ Other responses to industrial action unaffected............................. 395

Division 10—Other matters                                                                                  396

477........ Applications by bargaining representatives................................... 396

Part 3‑4—Right of entry                                                                                                  397

Division 1—Introduction                                                                                        397

478........ Guide to this Part........................................................................... 397

479........ Meanings of employee and employer.............................................. 397

480........ Object of this Part.......................................................................... 397

Division 2—Entry rights under this Act                                                         399

Subdivision A—Entry to investigate suspected contravention                        399

481........ Entry to investigate suspected contravention................................ 399

482........ Rights that may be exercised while on premises............................ 399

483........ Later access to record or document................................................ 401

483AA.. Application to FWA for access to non‑member records................ 402

Subdivision AA—Entry to investigate suspected contravention relating to TCF outworkers          402

483A..... Entry to investigate suspected contravention relating to TCF outworkers             402

483B..... Rights that may be exercised while on premises............................ 403

483C..... Later access to record or document................................................ 404

483D..... Entry onto other premises to access records and documents......... 405

483E...... Later access to record or document—other premises..................... 406

Subdivision B—Entry to hold discussions                                                          407

484........ Entry to hold discussions............................................................... 407

Subdivision C—Requirements for permit holders                                            407

486........ Permit holder must not contravene this Subdivision...................... 407

487........ Giving entry notice or exemption certificate.................................. 408

488........ Contravening entry permit conditions............................................ 408

489........ Producing authority documents...................................................... 409

490........ When right may be exercised.......................................................... 409

491........ Occupational health and safety requirements................................. 410

492........ Conduct of interviews in particular room etc................................. 410

493........ Residential premises....................................................................... 411

Division 3—State or Territory OHS rights                                                   412

494........ Official must be permit holder to exercise State or Territory OHS right 412

495........ Giving notice of entry..................................................................... 413

496........ Contravening entry permit conditions............................................ 414

497........ Producing entry permit................................................................... 414

498........ When right may be exercised.......................................................... 414

499........ Occupational health and safety requirements................................. 414

Division 4—Prohibitions                                                                                         415

500........ Permit holder must not hinder or obstruct..................................... 415

501........ Person must not refuse or delay entry........................................... 415

502........ Person must not hinder or obstruct permit holder......................... 415

503........ Misrepresentations about things authorised by this Part.............. 415

504........ Unauthorised use or disclosure of information or documents........ 416

Division 5—Powers of FWA                                                                                 418

Subdivision A—Dealing with disputes                                                                418

505........ FWA may deal with a dispute about the operation of this Part.... 418

506........ Contravening order made to deal with dispute............................... 419

Subdivision B—Taking action against permit holder                                      419

507........ FWA may take action against permit holder.................................. 419

Subdivision C—Restricting rights of organisations and officials where misuse of rights              419

508........ FWA may restrict rights if organisation or official has misused rights 419

509........ Contravening order made for misuse of rights................................ 420

Subdivision D—When FWA must revoke or suspend entry permits            421

510........ When FWA must revoke or suspend entry permits...................... 421

Subdivision E—General rules for suspending entry permits                         422

511........ General rules for suspending entry permits................................... 422

Division 6—Entry permits, entry notices and certificates                    423

Subdivision A—Entry permits                                                                              423

512........ FWA may issue entry permits....................................................... 423

513........ Considering application.................................................................. 423

514........ When FWA must not issue permit................................................. 424

515........ Conditions on entry permit............................................................ 424

516........ Expiry of entry permit................................................................... 425

517........ Return of entry permits to FWA................................................... 425

Subdivision B—Entry notices                                                                               426

518........ Entry notice requirements.............................................................. 426

Subdivision C—Exemption certificates                                                               428

519........ Exemption certificates.................................................................... 428

Subdivision D—Affected member certificates                                                   428

520........ Affected member certificates.......................................................... 428

Subdivision E—Miscellaneous                                                                              429

521........ Regulations dealing with instruments under this Part.................... 429

Part 3‑5—Stand down                                                                                                       430

Division 1—Introduction                                                                                        430

522........ Guide to this Part........................................................................... 430

523........ Meanings of employee and employer.............................................. 430

Division 2—Circumstances allowing stand down                                      431

524........ Employer may stand down employees in certain circumstances... 431

525........ Employee not stood down during a period of authorised leave or absence             432

Division 3—Dealing with disputes                                                                     433

526........ FWA may deal with a dispute about the operation of this Part.... 433

527........ Contravening an FWA order dealing with a dispute about the operation of this Part             433

Part 3‑6—Other rights and responsibilities                                                          434

Division 1—Introduction                                                                                        434

528........ Guide to this Part........................................................................... 434

529........ Meanings of employee and employer.............................................. 434

Division 2—Notification and consultation relating to certain dismissals              435

Subdivision A—Requirement to notify Centrelink                                           435

530........ Employer to notify Centrelink of certain proposed dismissals..... 435

Subdivision B—Failure to notify or consult registered employee associations  436

531........ FWA may make orders where failure to notify or consult registered employee associations about dismissals     436

532........ Orders that FWA may make.......................................................... 437

533........ Application for FWA order............................................................ 438

Subdivision C—Limits on scope of this Division                                               438

534........ Limits on scope of this Division.................................................... 438

Division 3—Employer obligations in relation to employee records and pay slips           439

535........ Employer obligations in relation to employee records................... 439

536........ Employer obligations in relation to pay slips................................ 439

Chapter 4—Compliance and enforcement                                                            440

Part 4‑1—Civil remedies                                                                                                 440

Division 1—Introduction                                                                                        440

537........ Guide to this Part........................................................................... 440

538........ Meanings of employee and employer.............................................. 440

Division 2—Orders                                                                                                    441

Subdivision A—Applications for orders                                                             441

539........ Applications for orders in relation to contraventions of civil remedy provisions   441

540........ Limitations on who may apply for orders etc................................ 451

541........ Applications for orders in relation to safety net contractual entitlements              453

542........ Entitlements under contracts.......................................................... 453

543........ Applications for orders in relation to statutory entitlements derived from contracts             454

544........ Time limit on applications.............................................................. 454

Subdivision B—Orders                                                                                          454

545........ Orders that can be made by particular courts................................. 454

546........ Pecuniary penalty orders................................................................ 456

547........ Interest up to judgment.................................................................. 457

Division 3—Small claims procedure                                                                 458

548........ Plaintiffs may choose small claims procedure................................ 458

Division 4—General provisions relating to civil remedies                  460

549........ Contravening a civil remedy provision is not an offence................ 460

550........ Involvement in contravention treated in same way as actual contravention            460

551........ Civil evidence and procedure rules for proceedings relating to civil remedy provisions         460

552........ Civil proceedings after criminal proceedings.................................. 460

553........ Criminal proceedings during civil proceedings................................ 461

554........ Criminal proceedings after civil proceedings.................................. 461

555........ Evidence given in proceedings for pecuniary penalty not admissible in criminal proceedings                461

556........ Civil double jeopardy..................................................................... 462

557........ Course of conduct........................................................................... 462

558........ Regulations dealing with infringement notices................................ 463

Division 5—Unclaimed money                                                                             464

559........ Unclaimed money........................................................................... 464

Part 4‑2—Jurisdiction and powers of courts                                                        465

Division 1—Introduction                                                                                        465

560........ Guide to this Part........................................................................... 465

561........ Meanings of employee and employer.............................................. 465

Division 2—Jurisdiction and powers of the Federal Court                  466

562........ Conferring jurisdiction on the Federal Court.................................. 466

563........ Exercising jurisdiction in the Fair Work Division of the Federal Court 466

564........ No limitation on Federal Court’s powers....................................... 467

565........ Appeals from eligible State or Territory courts............................. 467

Division 3—Jurisdiction and powers of the Federal Magistrates Court               468

566........ Conferring jurisdiction on the Federal Magistrates Court.............. 468

567........ Exercising jurisdiction in the Fair Work Division of the Federal Magistrates Court               468

568........ No limitation on Federal Magistrates Court’s powers................... 468

Division 4—Miscellaneous                                                                                    469

569........ Minister’s entitlement to intervene................................................ 469

570........ Costs only if proceedings instituted vexatiously etc...................... 469

571........ No imprisonment for failure to pay pecuniary penalty................. 470

572........ Regulations dealing with matters relating to court proceedings...... 470

Chapter 5—Administration                                                                                            471

Part 5‑1—Fair Work Australia                                                                                    471

Division 1—Introduction                                                                                        471

573........ Guide to this Part........................................................................... 471

574........ Meanings of employee and employer.............................................. 472

Division 2—Establishment and functions of Fair Work Australia    473

Subdivision A—Establishment and functions of Fair Work Australia         473

575........ Establishment of Fair Work Australia............................................ 473

576........ Functions of FWA.......................................................................... 473

577........ Performance of functions etc. by FWA.......................................... 474

578........ Matters FWA must take into account in performing functions etc. 474

579........ FWA has privileges and immunities of the Crown......................... 475

580........ Protection of FWA Members......................................................... 475

Subdivision B—Functions and powers of the President                                   475

581........ Functions of the President.............................................................. 475

582........ Directions by the President............................................................ 475

583........ President not subject to direction................................................... 476

584........ Delegation of functions and powers of the President..................... 476

Division 3—Conduct of matters before FWA                                              478

Subdivision A—Applications to FWA                                                                  478

585........ Applications in accordance with procedural rules.......................... 478

586........ Correcting and amending applications and documents etc............. 478

587........ Dismissing applications.................................................................. 478

588........ Discontinuing applications............................................................. 479

Subdivision B—Conduct of matters before FWA                                              479

589........ Procedural and interim decisions.................................................... 479

590........ Powers of FWA to inform itself..................................................... 479

591........ FWA not bound by rules of evidence and procedure..................... 480

592........ Conferences.................................................................................... 480

593........ Hearings.......................................................................................... 480

594........ Confidential evidence...................................................................... 481

595........ FWA’s power to deal with disputes.............................................. 481

Subdivision C—Representation by lawyers and paid agents and Minister’s entitlement to make submissions           482

596........ Representation by lawyers and paid agents................................... 482

597........ Minister’s entitlement to make submissions.................................. 483

Subdivision D—Decisions of FWA                                                                      483

598........ Decisions of FWA.......................................................................... 483

599........ FWA not required to decide an application in terms applied for... 484

600........ Determining matters in the absence of a person............................. 484

601........ Writing and publication requirements for FWA’s decisions.......... 484

602........ Correcting obvious errors etc. in relation to FWA’s decisions....... 485

603........ Varying and revoking FWA’s decisions......................................... 486

Subdivision E—Appeals, reviews and referring questions of law                   487

604........ Appeal of decisions........................................................................ 487

605........ Minister’s entitlement to apply for review of a decision............... 487

606........ Staying decisions that are appealed or reviewed............................ 488

607........ Process for appealing or reviewing decisions................................. 488

608........ Referring questions of law to the Federal Court............................. 489

Subdivision F—Miscellaneous                                                                              489

609........ Procedural rules.............................................................................. 489

610........ Regulations dealing with FWA matters.......................................... 490

611........ Costs............................................................................................... 490

Division 4—Organisation of FWA                                                                     492

Subdivision A—Functions etc. to be performed by a single FWA Member, a Full Bench or the Minimum Wage Panel                                                                                                       492

612........ FWA functions etc. may generally be performed by single FWA Member            492

613........ Appeal of decisions to be heard by a Full Bench, the President or a Deputy President         492

614........ Review of decisions by a Full Bench.............................................. 493

615........ FWA functions etc. performed by a Full Bench on direction by the President      493

616........ FWA functions etc. that must be performed by a Full Bench....... 493

617........ FWA functions etc. that must be performed by the Minimum Wage Panel           494

Subdivision B—Constitution of FWA by a single FWA Member, a Full Bench or the Minimum Wage Panel             494

618........ Constitution and decision‑making of a Full Bench......................... 494

619........ Seniority of FWA Members........................................................... 495

620........ Constitution and decision‑making of the Minimum Wage Panel.... 495

621........ Reconstitution of FWA when single FWA Member becomes unavailable              496

622........ Reconstitution of FWA when FWA Member of a Full Bench or the Minimum Wage Panel becomes unavailable........................................................................................................ 496

623........ When new FWA Members begin to deal with matters.................. 497

624........ FWA’s decisions not invalid when improperly constituted.......... 497

Subdivision C—Delegation of FWA’s functions and powers                          497

625........ Delegation by the President of functions and powers of FWA..... 497

Division 5—FWA Members                                                                                 499

Subdivision A—Appointment of FWA Members                                               499

626........ Appointment of FWA Members................................................... 499

627........ Qualifications for appointment of FWA Members........................ 499

628........ Basis of appointment of FWA Members....................................... 501

629........ Period of appointment of FWA Members..................................... 501

Subdivision B—Terms and conditions of FWA Members                               502

629A..... Status of the President.................................................................... 502

630........ Appointment of a Judge not to affect tenure etc............................ 502

631........ Dual federal and State appointments of Deputy Presidents or Commissioners     502

632........ Dual federal and Territory appointments of Deputy Presidents or Commissioners              503

633........ Outside employment of FWA Members....................................... 503

634........ Oath or affirmation of office........................................................... 503

635........ Remuneration of the President....................................................... 504

636........ Application of Judges’ Pensions Act to the President................... 504

637........ Remuneration of FWA Members other than the President............ 505

638........ Remuneration of Deputy Presidents or Commissioners performing duties on a part‑time basis           506

639........ Leave of absence of FWA Members other than the President....... 507

640........ Disclosure of interests by FWA Members other than the President 507

641........ Termination of appointment on grounds of misbehaviour or incapacity                508

642........ Suspension on grounds of misbehaviour or incapacity.................. 508

643........ Termination of appointment for bankruptcy, etc.......................... 509

644........ Termination of appointment for outside employment................... 509

645........ Resignation of FWA Members....................................................... 510

646........ Other terms and conditions of FWA Members.............................. 510

647........ Appointment of acting President................................................... 510

648........ Appointment of acting Deputy Presidents.................................... 511

Division 6—Cooperation with the States                                                       513

649........ President to cooperate with prescribed State industrial authorities 513

650........ Provision of administrative support............................................... 513

Division 7—Seals and additional powers and functions of the President and the General Manager     514

651........ Seals................................................................................................ 514

652........ Annual report................................................................................. 514

653........ Reports about making enterprise agreements, individual flexibility arrangements etc.            515

653A..... Arrangements with the Federal Court and the Federal Magistrates Court              516

654........ President must provide certain information etc. to the Minister and Fair Work Ombudsman               516

655........ Disclosure of information by FWA................................................ 517

Division 8—General Manager, staff and consultants                              518

Subdivision A—Functions of the General Manager                                         518

656........ Establishment................................................................................. 518

657........ Functions and powers of the General Manager.............................. 518

658........ Directions from the President......................................................... 518

659........ General Manager not otherwise subject to direction...................... 519

Subdivision B—Appointment and terms and conditions of the General Manager               519

660........ Appointment of the General Manager........................................... 519

661........ Remuneration of the General Manager........................................... 519

662........ Leave of absence of the General Manager...................................... 519

663........ Outside employment of the General Manager............................... 520

664........ Disclosure of interests to the President.......................................... 520

665........ Resignation of the General Manager............................................... 520

666........ Termination of appointment of the General Manager.................... 520

667........ Other terms and conditions of the General Manager...................... 521

668........ Appointment of acting General Manager....................................... 521

669........ Minister to consult the President................................................... 521

Subdivision C—Staff and consultants                                                                 522

670........ Staff................................................................................................ 522

671........ Delegation by General Manager to staff......................................... 522

672........ Persons assisting FWA................................................................... 522

673........ Consultants..................................................................................... 522

Division 9—Offences relating to Fair Work Australia                            523

674........ Offences in relation to FWA.......................................................... 523

675........ Contravening an FWA order........................................................... 525

676........ Intimidation etc............................................................................... 525

677........ Offences in relation to attending before FWA................................ 526

678........ False or misleading evidence........................................................... 527

Part 5‑2—Office of the Fair Work Ombudsman                                                528

Division 1—Introduction                                                                                        528

679........ Guide to this Part........................................................................... 528

680........ Meanings of employee and employer.............................................. 528

Division 2—Fair Work Ombudsman                                                                529

Subdivision A—Establishment and functions and powers of the Fair Work Ombudsman                529

681........ Establishment................................................................................. 529

682........ Functions of the Fair Work Ombudsman....................................... 529

683........ Delegation by the Fair Work Ombudsman..................................... 530

684........ Directions from the Minister.......................................................... 530

685........ Minister may require reports......................................................... 531

686........ Annual report................................................................................. 531

Subdivision B—Appointment and terms and conditions of the Fair Work Ombudsman   531

687........ Appointment of the Fair Work Ombudsman................................. 531

688........ Remuneration of the Fair Work Ombudsman................................. 532

689........ Leave of absence of the Fair Work Ombudsman............................ 532

690........ Outside employment of the Fair Work Ombudsman..................... 532

691........ Disclosure of interests to the Minister........................................... 532

692........ Resignation of the Fair Work Ombudsman.................................... 532

693........ Termination of appointment of the Fair Work Ombudsman......... 533

694........ Other terms and conditions of the Fair Work Ombudsman........... 533

695........ Appointment of acting Fair Work Ombudsman............................. 533

Division 3—Office of the Fair Work Ombudsman                                    535

Subdivision A—Establishment of the Office of the Fair Work Ombudsman 535

696........ Establishment of the Office of the Fair Work Ombudsman........... 535

Subdivision B—Staff and consultants etc.                                                          535

697........ Staff................................................................................................ 535

698........ Persons assisting the Fair Work Ombudsman................................ 535

699........ Consultants..................................................................................... 536

Subdivision C—Appointment of Fair Work Inspectors                                   536

700........ Appointment of Fair Work Inspectors.......................................... 536

701........ Fair Work Ombudsman is a Fair Work Inspector.......................... 536

702........ Identity cards.................................................................................. 536

Subdivision D—Functions and powers of Fair Work Inspectors                   537

703........ Conditions and restrictions on functions and powers.................... 537

704........ General directions by the Fair Work Ombudsman......................... 538

705........ Particular directions by the Fair Work Ombudsman...................... 538

706........ Purpose for which powers of inspectors may be exercised........... 538

707........ When powers of inspectors may be exercised................................ 539

708........ Power of inspectors to enter premises........................................... 539

709........ Powers of inspectors while on premises........................................ 539

710........ Persons assisting inspectors........................................................... 540

711........ Power to ask for person’s name and address................................. 540

712........ Power to require persons to produce records or documents.......... 541

713........ Self‑incrimination [see Note 4]....................................................... 541

713A..... Certain records and documents are inadmissible............................ 542

714........ Power to keep records or documents............................................. 542

715........ Enforceable undertakings relating to contraventions of civil remedy provisions     543

716........ Compliance notices......................................................................... 544

717........ Review of compliance notices........................................................ 546

Subdivision E—Disclosure of information by the Office of the Fair Work Ombudsman  546

718........ Disclosure of information by the Office of the Fair Work Ombudsman 546

Chapter 6—Miscellaneous                                                                                            548

Part 6‑1—Multiple actions                                                                                             548

Division 1—Introduction                                                                                        548

719........ Guide to this Part........................................................................... 548

720........ Meanings of employee and employer.............................................. 548

Division 2—Certain actions not permitted if alternative action can be taken    549

721........ Equal remuneration applications.................................................... 549

722........ Notification and consultation requirements applications............... 549

723........ Unlawful termination applications................................................. 550

Division 3—Preventing multiple actions                                                        551

Subdivision A—Equal remuneration applications                                             551

724........ Equal remuneration applications.................................................... 551

Subdivision B—Applications and complaints relating to dismissal              552

725........ General rule..................................................................................... 552

726........ Dismissal remedy bargaining order applications............................ 552

727........ General protections FWA applications.......................................... 552

728........ General protections court applications.......................................... 553

729........ Unfair dismissal applications......................................................... 553

730........ Unlawful termination FWA applications....................................... 553

731........ Unlawful termination court applications........................................ 554

732........ Applications and complaints under other laws.............................. 554

733........ Dismissal does not include failure to provide benefits................... 555

Subdivision C—General protections applications that do not relate to dismissal               555

734........ General rule..................................................................................... 555

Part 6‑2—Dealing with disputes                                                                                 556

Division 1—Introduction                                                                                        556

735........ Guide to this Part........................................................................... 556

736........ Meanings of employee and employer.............................................. 556

Division 2—Dealing with disputes                                                                     557

Subdivision A—Model term about dealing with disputes                                 557

737........ Model term about dealing with disputes........................................ 557

Subdivision B—Dealing with disputes                                                                557

738........ Application of this Division........................................................... 557

739........ Disputes dealt with by FWA......................................................... 557

740........ Dispute dealt with by persons other than FWA............................ 558

Part 6‑3—Extension of National Employment Standards entitlements 560

Division 1—Introduction                                                                                        560

741........ Guide to this Part........................................................................... 560

742........ Meanings of employee and employer.............................................. 560

Division 2—Extension of entitlement to unpaid parental leave and related entitlements          561

Subdivision A—Main provisions                                                                          561

743........ Object of this Division................................................................... 561

744........ Extending the entitlement to unpaid parental leave and related entitlements          561

745........ Contravening the extended parental leave provisions..................... 562

746........ References to the National Employment Standards include extended parental leave provisions            563

747........ State and Territory laws that are not excluded............................... 563

Subdivision B—Modifications of the extended parental leave provisions     563

748........ Non‑national system employees are not award/agreement free employees            563

749........ Modification of meaning of base rate of pay for pieceworkers...... 563

750........ Modification of meaning of full rate of pay for pieceworkers........ 564

751........ Modification of meaning of ordinary hours of work—if determined by State industrial instrument      564

752........ Modification of meaning of ordinary hours of work—if not determined by State industrial instrument               564

753........ Modification of meaning of ordinary hours of work—regulations may prescribe usual weekly hours  564

754........ Modification of meaning of pieceworker........................................ 565

755........ Modification of provision about interaction with paid leave......... 565

756........ Modification of provision about relationship between National Employment Standards and agreements             565

757........ Modification of power to make regulations................................... 565

Division 3—Extension of entitlement to notice of termination or payment in lieu of notice      567

Subdivision A—Main provisions                                                                          567

758........ Object of this Division................................................................... 567

759........ Extending entitlement to notice of termination or payment in lieu of notice           567

760........ Contravening the extended notice of termination provisions......... 568

761........ References to the National Employment Standards include extended notice of termination provisions 568

762........ State and Territory laws that are not excluded............................... 569

Subdivision B—Modifications of the extended notice of termination provisions 569

763........ Non‑national system employees are not award/agreement free employees            569

764........ Modification of meaning of full rate of pay for pieceworkers........ 569

765........ Modification of meaning of pieceworker........................................ 569

766........ Modification of provision about notice of termination by employee 570

767........ Modification of provision about relationship between National Employment Standards and agreements             570

768........ Modification of power to make regulations................................... 570

Part 6‑4—Additional provisions relating to termination of employment 571

Division 1—Introduction                                                                                        571

769........ Guide to this Part........................................................................... 571

770........ Meanings of employee and employer.............................................. 571

Division 2—Termination of employment                                                       572

771........ Object of this Division................................................................... 572

772........ Employment not to be terminated on certain grounds................... 572

773........ Application for FWA to deal with a dispute................................. 574

774........ Time for application....................................................................... 574

775........ Application fees............................................................................. 574

776........ Conferences.................................................................................... 575

777........ Certificate if dispute not resolved.................................................. 575

778........ Advice on unlawful termination court application......................... 575

779........ Unlawful termination court applications........................................ 575

780........ Costs orders against lawyers and paid agents................................ 576

781........ Applications for costs orders......................................................... 577

782........ Contravening costs orders.............................................................. 577

783........ Reason for action to be presumed unless proved otherwise.......... 577

Division 3—Notification and consultation requirements relating to certain terminations of employment                                                                                                                    578

Subdivision A—Object of this Division                                                               578

784........ Object of this Division................................................................... 578

Subdivision B—Requirement to notify Centrelink                                           578

785........ Employer to notify Centrelink of certain proposed terminations.. 578

Subdivision C—Failure to notify or consult registered employee associations  579

786........ FWA may make orders where failure to notify or consult registered employee associations about terminations  579

787........ Orders that FWA may make.......................................................... 580

788........ Application to FWA for order....................................................... 581

Subdivision D—Limits on scope of this Division                                               581

789........ Limits on scope of this Division.................................................... 581

Part 6‑5—Miscellaneous                                                                                                583

Division 1—Introduction                                                                                        583

790........ Guide to this Part........................................................................... 583

791........ Meanings of employee and employer.............................................. 583

Division 2—Miscellaneous                                                                                    584

792........ Delegation by Minister................................................................... 584

793........ Liability of bodies corporate.......................................................... 584

794........ Signature on behalf of body corporate............................................ 585

795........ Public sector employer to act through employing authority.......... 585

796........ Regulations—general...................................................................... 587

796A..... Regulations conferring functions.................................................... 587

797........ Regulations dealing with offences................................................... 587

798........ Regulations dealing with civil penalties.......................................... 587

799........ Regulations dealing with infringement notices................................ 587

800........ Regulations dealing with exhibiting fair work instruments............. 588

Notes                                                                                                                                       589


An Act relating to workplace relations, and for related purposes

Chapter 1Introduction

Part 1‑1Introduction

Division 1Preliminary

1  Short title [see Note 1]

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

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent.

7 April 2009

2.  Sections 3 to 40

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

26 May 2009

(see F2009L01818)

3.  Sections 41 to 572

A day or days to be fixed by Proclamation.

A Proclamation must not specify a day that occurs before the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent.

However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent, they commence on the first day after the end of that period.

Sections 41–43, 50–54, 58,
169–281A,
300–327, 332, 333, 334–572: 1 July 2009
(see F2009L02563)

Sections 44–49, 55–57A,
59–168,
282–299,
328–331, 333A: 1 January 2010
(see F2009L02563)

4.  Sections 573 to 718

At the same time as the provision(s) covered by table item 2.

26 May 2009

5.  Sections 719 to 800

A day or days to be fixed by Proclamation.

A Proclamation must not specify a day that occurs before the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent.

However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent, they commence on the first day after the end of that period.

Sections
719–740,
769–800: 1 July 2009
(see F2009L02563)

Sections
741–768: 1 January 2010
(see F2009L02563)

6.  Schedule 1

At the same time as the provision(s) covered by table item 2.

26 May 2009

Note:          This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.


 

Division 2Object of this Act

3  Object of this Act

                   The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

                     (a)  providing workplace relations laws that are fair to working Australians, 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; and

                     (g)  acknowledging the special circumstances of small and medium‑sized businesses.


 

Division 3Guide to this Act

4  Guide to this Act

Overview of this Act

             (1)  This Act is about workplace relations. It:

                     (a)  provides for terms and conditions of employment (Chapter 2); and

                     (b)  sets out rights and responsibilities of employees, employers and organisations in relation to that employment (Chapter 3); and

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

                     (d)  provides for the administration of this Act by establishing Fair Work Australia and the Office of the Fair Work Ombudsman (Chapter 5); and

                     (e)  deals with other matters relating to the above (Chapter 6).

Overview of the rest of this Chapter

             (2)  The rest of this Chapter deals with:

                     (a)  definitions that are used in this Act (Part 1‑2); and

                     (b)  the application of this Act (Part 1‑3), including how this Act interacts with certain State and Territory laws and its geographical application.

Definitions

             (3)  Many of the terms in this Act are defined. The Dictionary in section 12 contains a list of every term that is defined in this Act.

5  Terms and conditions of employment (Chapter 2)

             (1)  Chapter 2 provides for terms and conditions of employment of national system employees.

             (2)  Part 2‑1 has the core provisions for the Chapter. It deals with compliance with, and interaction between, the sources of the main terms and conditions provided under this Act—the National Employment Standards, modern awards and enterprise agreements.

Note:          Workplace determinations are another source of main terms and conditions. In most cases, this Act applies to a workplace determination as if it were an enterprise agreement in operation (see section 279).

Main terms and conditions

             (3)  Part 2‑2 contains the National Employment Standards, which are minimum terms and conditions that apply to all national system employees.

             (4)  Part 2‑3 is about modern awards. A modern award is made for a particular industry or occupation and provides additional minimum terms and conditions for those national system employees to whom it applies. A modern award can have terms that are ancillary or supplementary to the National Employment Standards.

             (5)  Part 2‑4 is about enterprise agreements. An enterprise agreement is made at the enterprise level and provides terms and conditions for those national system employees to whom it applies. An enterprise agreement can have terms that are ancillary or supplementary to the National Employment Standards.

             (6)  Part 2‑5 is about workplace determinations. A workplace determination provides terms and conditions for those national system employees to whom it applies. A workplace determination is made by FWA if certain conditions are met.

             (7)  Part 2‑8 provides for the transfer of certain modern awards, enterprise agreements, workplace determinations and other instruments if there is a transfer of business from one national system employer to another national system employer.

Other terms and conditions

             (8)  In addition, other terms and conditions of employment for national system employees include those:

                     (a)  provided by a national minimum wage order (see Part 2‑6) or an equal remuneration order (see Part 2‑7); and

                     (b)  provided by Part 2‑9 (which deals with the frequency and method of making payments to employees, deductions from payments and high‑income employees).

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

             (1)  Chapter 3 sets out rights and responsibilities of national system employees, national system employers, organisations and others (such as independent contractors and industrial associations).

             (2)  Part 3‑1 provides general workplace protections. It:

                     (a)  protects workplace rights; and

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

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

             (3)  Part 3‑2 deals with unfair dismissal of national system employees, and the granting of remedies when that happens.

             (4)  Part 3‑3 deals mainly with industrial action by national system employees and national system employers and sets out when industrial action is protected industrial action. No action lies under any law in force in a State or Territory in relation to protected industrial action except in certain circumstances.

             (5)  Part 3‑4 is about the rights of officials of organisations who hold entry permits to enter premises for purposes related to their representative role under this Act and under State or Territory OHS laws. In exercising those rights, permit holders must comply with the requirements set out in the Part.

             (6)  Part 3‑5 allows a national system employer to stand down a national system employee without pay in certain circumstances.

             (7)  Part 3‑6 deals with other rights and responsibilities of national system employers in relation to:

                     (a)  termination of employment; and

                     (b)  keeping records and giving payslips.

7  Compliance and enforcement (Chapter 4)

             (1)  Chapter 4 provides for compliance with, and enforcement of, this Act.

             (2)  Part 4‑1 is about civil remedies. Certain provisions in this Act impose obligations on certain persons. Civil remedies may be sought in relation to contraventions of these civil remedy provisions. Part 4‑1:

                     (a)  deals with applications for orders for contraventions of civil remedy provisions; and

                     (b)  sets out the orders the courts can make in relation to a contravention of a civil remedy provision.

             (3)  Part 4‑2 is about the jurisdiction and powers of the courts in relation to matters arising under this Act.

8  Administration (Chapter 5)

             (1)  Chapter 5 provides for the administration of this Act by establishing Fair Work Australia and the Office of the Fair Work Ombudsman.

             (2)  Part 5‑1 is about FWA. It:

                     (a)  establishes and confers functions on FWA; and

                     (b)  sets out how matters before FWA are to be conducted (for example, how FWA is to deal with applications made to it).

             (3)  Part 5‑2 is about the Office of the Fair Work Ombudsman. It:

                     (a)  establishes and confers functions on the Fair Work Ombudsman; and

                     (b)  confers functions and powers on Fair Work Inspectors.

9  Miscellaneous (Chapter 6)

             (1)  Chapter 6 is a collection of miscellaneous matters that relate to the other Chapters.

             (2)  Part 6‑1 provides rules relating to applications for remedies under this Act. It prevents certain applications if other remedies are available and prevents multiple applications or complaints in relation to the same conduct.

             (3)  Part 6‑2 is about dealing with disputes between national system employees and their employers under modern awards, enterprise agreements and contracts of employment.

             (4)  Part 6‑3 extends the National Employment Standards relating to unpaid parental leave and notice of termination to non‑national system employees.

             (5)  Part 6‑4 contains provisions to give effect, or further effect, to certain international agreements relating to termination of employment.

             (6)  Part 6‑5 deals with miscellaneous matters such as delegations and regulations.


 

Part 1‑2Definitions

Division 1Introduction

10  Guide to this Part

This Part is about the terms that are defined in this Act.

Division 2 has the Dictionary (see section 12). The Dictionary is a list of every term that is defined in this Act. A term will either be defined in the Dictionary itself, or in another provision of this Act. If another provision defines the term, the Dictionary will have a signpost to that definition.

Division 3 has definitions relating to the meanings of employee and employer.

Division 4 has some other definitions that apply across this Act.

11  Meanings of employee and employer

                   In this Part, employee and employer have their ordinary meanings.


 

Division 2The Dictionary

12  The Dictionary

                   In this Act:

4 yearly review of modern awards: see subsection 156(1).

access period for a proposed enterprise agreement: see subsection 180(4).

action includes an omission.

adoption‑related leave: see subsection 67(5).

adverse action: see section 342.

affected employees for a variation of an enterprise agreement: see subsection 207(2).

affected employer:

                     (a)  in relation to an entry under Subdivision A of Division 2 of Part 3‑4: see subsection 482(2); and

                    (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 subsections 539(1) and (3).

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).

connected with a Territory: an arrangement for work to be performed for a person (either directly or indirectly) is connected with a Territory if one or more of the following apply:

                     (a)  at the time the arrangement is made, one or more parties to the arrangement is in a Territory in Australia;

                     (b)  the work is to be performed in such a Territory;

                     (c)  the person carries on an activity (whether of a commercial, governmental or other nature) in such a Territory, and the work is reasonably likely to be performed in that Territory;

                     (d)  the person carries on an activity (whether of a commercial, governmental or other nature) in such a Territory, and the work is to be performed in connection with that activity.

Note:          In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see paragraph 17(a) of the Acts Interpretation Act 1901).

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).

Disability Discrimination Commissioner means the Disability Discrimination Commissioner appointed under the Disability Discrimination Act 1992.

discriminatory term of an enterprise agreement: see section 195.

dismissal remedy bargaining order application: see subsection 726(2).

dismissed: see section 386.

earnings: see subsections 332(1) and (2).

eligible community service activity: see section 109.

eligible 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) and subsection 30E(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) and subsection 30E(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 the Fair Work (Registered Organisations) Act 2009.

industrial law means:

                     (a)  this Act; or

                     (b)  the Fair Work (Registered Organisations) Act 2009; 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.

Note:          Section 30C extends the meaning of national system employee in relation to a referring State.

national system employer: see section 14.

Note:          Section 30D extends the meaning of national system employer in relation to a referring State.

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 the Fair Work (Registered Organisations) Act 2009.

outworker means:

                     (a)  an employee who, for the purpose of the business of his or her employer, performs work at residential premises or at other premises that would not conventionally be regarded as being business premises; or

                     (b)  an individual who, for the purpose of a contract for the provision of services, performs work:

                              (i)  in the textile, clothing or footwear industry; and

                             (ii)  at residential premises or at other premises that would not conventionally be regarded as being business premises.

outworker entity means any of the following entities, other than in the entity’s capacity as a national system employer:

                     (a)  a constitutional corporation;

                     (b)  the Commonwealth;

                     (c)  a Commonwealth authority;

                     (d)  a body corporate incorporated in a Territory;

                     (e)  a person so far as:

                              (i)  the person arranges for work to be performed for the person (either directly or indirectly); and

                             (ii)  the work is of a kind that is often performed by outworkers; and

                            (iii)  the arrangement is connected with a Territory.

Note:          Section 30F extends the meaning of outworker entity in relation to a referring State.

outworker terms: see subsection 140(3).

paid agent, in relation to a matter before 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)  the Fair Work (Registered Organisations) Act 2009; or

                     (c)  the Independent Contractors Act 2006; or

                     (d)  any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).

workplace right: see subsection 341(1).

work value reasons: see subsection 156(4).


 

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

13  Meaning of national system employee

                   A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

Note:          Section 30C extends the meaning of national system employee in relation to a referring State.

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 1:       In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see paragraph 17(a) of the Acts Interpretation Act 1901).

Note 2:       Section 30D extends the meaning of national system employer in relation to a referring State.

15  Ordinary meanings of employee and employer

             (1)  A reference in this Act to an employee with its ordinary meaning:

                     (a)  includes a reference to a person who is usually such an employee; and

                     (b)  does not include a person on a vocational placement.

Note:          Subsection 30E(1) extends the meaning of employee in relation to a referring State.

             (2)  A reference in this Act to an employer with its ordinary meaning includes a reference to a person who is usually such an employer.

Note:          Subsection 30E(2) extends the meaning of employer in relation to a referring State.


 

Division 4Other definitions

16  Meaning of base rate of pay

General meaning

             (1)  The base rate of pay of a national system employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not including any of the following:

                     (a)  incentive‑based payments and bonuses;

                     (b)  loadings;

                     (c)  monetary allowances;

                     (d)  overtime or penalty rates;

                     (e)  any other separately identifiable amounts.

Meaning for pieceworkers in relation to entitlements under National Employment Standards

             (2)  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;

                     (c)  any other period of a kind prescribed by the regulations.

             (3)  An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

          (3A)  Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.

Meaning for Divisions 4 and 5, and Subdivision A of Division 11, of Part 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:

                              (i)  any period of unauthorised absence; or

                             (ii)  any other period of a kind prescribed by the regulations; and

                     (b)  a period referred to in subparagraph (a)(i) or (ii) does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service; and

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

Note:          Divisions 4 and 5, and Subdivision A of Division 11, of Part 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.

          (4A)  Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly.

When service with one employer counts as service with another employer

             (5)  If there is a transfer of employment (see subsection (7)) in relation to a national system employee:

                     (a)  any period of service of the employee with the first employer counts as service of the employee with the second employer; and

                     (b)  the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer (taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer.

Note:          This subsection does not apply to a transfer of employment between non‑associated entities, for the purpose of Division 6 of Part 2‑2 (which deals with annual leave) or Subdivision B of Division 11 of Part 2‑2 (which deals with redundancy pay), if the second employer decides not to recognise the employee’s service with the first employer for the purpose of that Division or Subdivision (see subsections 91(1) and 122(1)).

             (6)  If the national system employee has already had the benefit of an entitlement the amount of which was calculated by reference to a period of service with the first employer, subsection (5) does not result in that period of service with the first employer being counted again when calculating the employee’s entitlements of that kind as an employee of the second employer.

Note:          For example:

(a)    the accrued paid annual leave to which the employee is entitled as an employee of the second employer does not include any period of paid annual leave that the employee has already taken as an employee of the first employer; and

(b)    if an employee receives notice of termination or payment in lieu of notice in relation to a period of service with the first employer, that period of service is not counted again in calculating the amount of notice of termination, or payment in lieu, to which the employee is entitled as an employee of the second employer.

Meaning of transfer of employment etc.

             (7)  There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:

                     (a)  the following conditions are satisfied:

                              (i)  the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer;

                             (ii)  the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or

                     (b)  the following conditions are satisfied:

                              (i)  the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;

                             (ii)  the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.

Note:          Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer.

             (8)  A transfer of employment:

                     (a)  is a transfer of employment between associated entities if paragraph (7)(a) applies; and

                     (b)  is a transfer of employment between non‑associated entities if paragraph (7)(b) applies.

23  Meaning of small business employer

             (1)  A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

             (2)  For the purpose of calculating the number of employees employed by the employer at a particular time:

                     (a)  subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

                     (b)  a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

             (3)  For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

             (4)  To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

                     (a)  the employee who is being dismissed or whose employment is being terminated; and

                     (b)  any other employee of the employer who is also being dismissed or whose employment is also being terminated.


 

Part 1‑3Application of this Act

Division 1Introduction

24  Guide to this Part

This Part deals with the extent of the application of this Act.

Division 2 is about how this Act affects the operation of certain State or Territory laws.

Division 2A is about the extended application of this Act in a State that has referred to the Parliament of the Commonwealth matters relating to this Act.

Division 3 is about the geographical application of this Act.

Division 4 deals with other matters relating to the application of this Act.

25  Meanings of employee and employer

                   In this Part, employee and employer have their ordinary meanings.


 

Division 2Interaction with State and Territory laws

26  Act excludes State or Territory industrial laws

             (1)  This Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer.

             (2)  A State or Territory industrial law is:

                     (a)  a general State industrial law; or

                     (b)  an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes:

                              (i)  regulating workplace relations (including industrial matters, industrial activity, collective bargaining, industrial disputes and industrial action);

                             (ii)  providing for the establishment or enforcement of terms and conditions of employment;

                            (iii)  providing for the making and enforcement of agreements (including individual agreements and collective agreements), and other industrial instruments or orders, determining terms and conditions of employment;

                            (iv)  prohibiting conduct relating to a person’s membership or non‑membership of an industrial association;

                             (v)  providing for rights and remedies connected with the termination of employment;

                            (vi)  providing for rights and remedies connected with conduct that adversely affects an employee in his or her employment; or

                     (c)  a law of a State or Territory that applies to employment generally and deals with leave (other than long service leave or leave for victims of crime); or

                     (d)  a law of a State or Territory providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal or comparable value; or

                     (e)  a law of a State or Territory providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair; or

                      (f)  a law of a State or Territory that entitles a representative of a trade union to enter premises; or

                     (g)  an instrument made under a law described in paragraph (a), (b), (c), (d), (e) or (f), so far as the instrument is of a legislative character; or

                     (h)  either of the following:

                              (i)  a law that is a law of a State or Territory;

                             (ii)  an instrument of a legislative character made under such a law;

                            that is prescribed by the regulations.

             (3)  Each of the following is a general State industrial law:

                     (a)  the Industrial Relations Act 1996 of New South Wales;

                     (b)  the Industrial Relations Act 1999 of Queensland;

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

                     (d)  the Fair Work Act 1994 of South Australia;

                     (e)  the Industrial Relations Act 1984 of Tasmania.

             (4)  A law or an Act of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to:

                     (a)  all employers and employees in the State or Territory; or

                     (b)  all employers and employees in the State or Territory except those identified (by reference to a class or otherwise) by a law of the State or Territory.

For this purpose, it does not matter whether or not the law also applies to other persons, or whether or not an exercise of a power under the law affects all the persons to whom the law applies.

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

          (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 law referred to in subsection (1A); 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 2AApplication of this Act in a referring State

30A  Meaning of terms used in this Division

                   In this Division:

amendment includes the insertion, omission, repeal, substitution, addition or relocation of words or matter.

excluded subject matter means:

                     (a)  a matter dealt with in a law referred to in subsection 27(1A) of this Act as originally enacted; or

                     (b)  a non‑excluded matter within the meaning of subsection 27(2) of this Act as so enacted (other than paragraph 27(2)(p) of this Act as so enacted); or

                     (c)  rights or remedies incidental to a matter referred to in paragraph (a) or (b) of this definition;

except to the extent that this Act as so enacted deals with the matter (directly or indirectly), or requires or permits instruments made or given effect under this Act so to deal with the matter.

express amendment means the direct amendment of this Act, but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act.

law enforcement officer is a member of a police force, a police reservist, a police recruit or a protective services officer.

referral law, of a State, means the law of the State that refers matters, as mentioned in subsection 30B(1), to the Parliament of the Commonwealth.

referred provisions means the provisions of this Division to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States.

referred subject matters means any of the following:

                     (a)  terms and conditions of employment, including any of the following:

                              (i)  minimum terms and conditions of employment, (including employment standards and minimum wages);

                             (ii)  terms and conditions of employment contained in instruments (including instruments such as awards, determinations and enterprise‑level agreements);

                            (iii)  bargaining in relation to terms and conditions of employment;

                            (iv)  the effect of a transfer of business on terms and conditions of employment;

                     (b)  terms and conditions under which an outworker entity may arrange for work to be performed for the entity (directly or indirectly), if the work is of a kind that is often performed by outworkers;

                     (c)  rights and responsibilities of employees, employers, independent contractors, outworkers, outworker entities, associations of employees or associations of employers, being rights and responsibilities relating to any of the following:

                              (i)  freedom of association and related protections;

                             (ii)  protection from discrimination relating to employment;

                            (iii)  termination of employment;

                            (iv)  industrial action;

                             (v)  protection from payment of fees for services related to bargaining;

                            (vi)  sham independent contractor arrangements;

                           (vii)  standing down employees without pay;

                           (viii)  rights of entry and rights of access to records;

                     (d)  compliance with, and enforcement of, this Act;

                     (e)  the administration of this Act;

                      (f)  the application of this Act;

                     (g)  matters incidental or ancillary to the operation of this Act or of instruments made or given effect under this Act;

but does not include any excluded subject matter.

referring State: see section 30B.

State public sector employee, of a State, means:

                     (a)  an employee of a State public sector employer of the State; or

                     (b)  any other employee in the State of a kind specified in the regulations;

and includes a law enforcement officer to whom subsection 30E(1) applies.

State public sector employer, of a State, means an employer that is:

                     (a)  the State; or

                     (b)  a body (whether incorporated or unincorporated) established for a public purpose by or under a law of the State, by the Governor of a State or by a Minister of the State; or

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

                     (d)  any other employer in the State of a kind specified in the regulations;

and includes a holder of an office to whom subsection 30E(2) applies.

30B  Meaning of referring State

Reference of matters by State Parliament to Commonwealth Parliament

             (1)  A State is a referring State if the Parliament of the State has referred the matters covered by subsections (3), (4) and (5) in relation to the State to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution:

                     (a)  if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and

                     (b)  if and to the extent that the matters are included in the legislative powers of the Parliament of the State.

This subsection has effect subject to subsection (6).

             (2)  A State is a referring State even if:

                     (a)  the State’s referral law provides that the reference to the Parliament of the Commonwealth of any or all of the matters covered by subsections (3), (4) and (5) is to terminate in particular circumstances; or

                     (b)  the State’s referral law provides that particular matters relating to State public sector employees, or State public sector employers, of the State are not included in any or all of those matters.

Reference covering referred provisions

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

Reference covering amendments

             (4)  This subsection covers the referred subject matters to the extent of making laws with respect to those matters by making express amendments of this Act.

Reference covering transitional matters

             (5)  This subsection covers making laws with respect to the transition from the regime provided for by:

                     (a)  the Workplace Relations Act 1996; or

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

to the regime provided for by this Act.

Effect of termination of reference

             (6)  Despite anything to the contrary in a referral law of a State, a State ceases to be a referring State if any or all of the following occurs:

                     (a)  the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (3) terminates;

                     (b)  the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (4) terminates;

                     (c)  the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (5) terminates.

30C  Extended meaning of national system employee

             (1)  A national system employee includes:

                     (a)  any individual in a referring State so far as he or she is employed, or usually employed, as described in paragraph 30D(1)(a), except on a vocational placement; and

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

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

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

30D  Extended meaning of national system employer

             (1)  A national system employer includes:

                     (a)  any person in a referring State so far as the person employs, or usually employs, an individual; and

                     (b)  a holder of an office to whom subsection 30E(2) applies.

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

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

30E  Extended ordinary meanings of employee and employer

             (1)  A reference in this Act to an employee with its ordinary meaning includes a reference to a law enforcement officer of a referring State if the State’s referral law so provides for the purposes of that law.

             (2)  A reference in this Act to an employer with its ordinary meaning includes a reference to a holder of an office of a State if the State’s referral law provides, for the purposes of that law, that the holder of the office is taken to be the employer of a law enforcement officer of the State.

             (3)  This section does not limit the operation of section 15 (which deals with references to employee and employer with their ordinary meanings).

Note:          Section 30H may limit the extent to which this section extends the meanings of employee and employer.

30F  Extended meaning of outworker entity

             (1)  An outworker entity includes a person, other than in the person’s capacity as a national system employer, so far as:

                     (a)  the person arranges for work to be performed for the person (either directly or indirectly); and

                     (b)  the work is of a kind that is often performed by outworkers; and

                     (c)  one or more of the following applies:

                              (i)  at the time the arrangement is made, one or more parties to the arrangement is in a referring State;

                             (ii)  the work is to be performed in a referring State;

                            (iii)  the person referred to in paragraph (a) carries on an activity (whether of a commercial, governmental or other nature) in a referring State, and the work is reasonably likely to be performed in that State;

                            (iv)  the person referred to in paragraph (a) carries on an activity (whether of a commercial, governmental or other nature) in a referring State, and the work is to be performed in connection with that activity.

             (2)  This section does not limit the operation of the definition of outworker entity in section 12.

Note:          Section 30H may limit the extent to which this section extends the meaning of outworker entity.

30G  General protections

             (1)  Part 3‑1 (which deals with general protections) applies to action taken in a referring State.

             (2)  This section applies despite section 337 (which limits the application of Part 3‑1), and does not limit the operation of sections 338 and 339 (which set out the application of that Part).

Note:          Section 30H may limit the extent to which this section extends the application of Part 3‑1.

30H  Division only has effect if supported by reference

                   A provision of this Division has effect in relation to a referring State only to the extent that the State’s referral law refers to the Parliament of the Commonwealth the matters mentioned in subsection 30B(1) that result in the Parliament of the Commonwealth having sufficient legislative power for the provision so to have effect.

30J  Application of the Acts Interpretation Act 1901

             (1)  The Acts Interpretation Act 1901, as in force on the day on which this Division commences, applies to this Act.

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


 

Division 3Geographical application of this Act

31  Exclusion of persons etc. insufficiently connected with Australia

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

Note 1:       In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea (see section 15B and paragraph 17(a) of the Acts Interpretation Act 1901).

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

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

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

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

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

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

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

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

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

                             (ii)  the airspace over, and the seabed and sub‑soil beneath, such waters;

                     (b)  the Territory of Christmas Island;

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

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

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

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

Extension to Australian ships etc.

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

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

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

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

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

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

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

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

                             (ii)  uses Australia as a base.

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

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

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

Extensions prescribed by regulations

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

Modifications relating to extended application

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

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

                     (b)  all or part of the continental shelf;

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

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

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

Extension to Australian ships etc.

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

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

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

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

                             (ii)  uses Australia as a base.

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

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

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

Extensions prescribed by regulations

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

                     (a)  any Australian employer; 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 4Miscellaneous

37  Act binds Crown

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

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

38  Act not to apply so as to exceed Commonwealth power

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

39  Acquisition of property

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

40  Interaction between fair work instruments and public sector employment laws

Generally, public sector employment laws prevail

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

When fair work instruments or their terms prevail

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

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

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

Meaning of public sector employment law

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

Laws that fair work instruments never prevail over

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

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

                     (b)  the Superannuation Act 1976;

                     (c)  the Superannuation Act 1990;

                     (d)  the Superannuation Act 2005;

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

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

Relationship with section 29

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


 

Chapter 2Terms and conditions of employment

Part 2‑1Core provisions for this Chapter

Division 1Introduction

41  Guide to this Part

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

The National Employment Standards (Part 2‑2) are minimum terms and conditions that apply to all national system employees.

A modern award (see Part 2‑3), an enterprise agreement (see Part 2‑4) or a workplace determination (see Part 2‑5) provides terms and conditions for those national system employees to whom the award, agreement or determination applies. Only one of those instruments can apply to an employee at a particular time.

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

                   Note:             In most cases, this Act applies to a workplace determination as if it were an enterprise agreement in operation (see section 279). For the rules about workplace determinations, see Part 2‑5.

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

42  Meanings of employee and employer

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


 

Division 2Core provisions for this Chapter

Subdivision ATerms and conditions of employment provided under this Act

43  Terms and conditions of employment provided under this Act

Main terms and conditions

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

                     (a)  the National Employment Standards (see Part 2‑2); and

                     (b)  a modern award (see Part 2‑3), an enterprise agreement (see Part 2‑4) or a workplace determination (see Part 2‑5) that applies to the employee.

Note 1:       The situations in which a workplace determination, rather than a modern award or enterprise agreement, provides an employee’s terms and conditions of employment are limited. In most cases, this Act applies to a workplace determination as if it were an enterprise agreement in operation (see section 279). See Part 2‑5 generally for the rules on workplace determinations.

Note 2:       Part 2‑8 provides for the transfer of certain modern awards, enterprise agreements and workplace determinations if there is a transfer of business from an employee’s employer to another employer.

Other terms and conditions

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

                     (a)  those terms and conditions arising from:

                              (i)  a national minimum wage order (see Part 2‑6); or

                             (ii)  an equal remuneration order (see Part 2‑7); and

                     (b)  those terms and conditions provided by Part 2‑9.

Note:          Part 2‑9 deals with miscellaneous terms and conditions of employment, such as payment of wages.

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

44  Contravening the National Employment Standards

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

Note:          This subsection is a civil remedy provision (see Part 4‑1).

             (2)  However, an order cannot be made under Division 2 of Part 4‑1 in relation to a contravention (or alleged contravention) of subsection 65(5) or 76(4).

Note 1:       Subsections 65(5) and 76(4) state that an employer may refuse a request for flexible working arrangements, or an application to extend unpaid parental leave, only on reasonable business grounds.

Note 2:       Modern awards and enterprise agreements include terms about settling disputes in relation to the National Employment Standards (other than disputes as to whether an employer had reasonable business grounds under subsection 65(5) or 76(4)).

Subdivision CTerms and conditions of employment provided by a modern award

45  Contravening a modern award

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

Note 1:       This section is a civil remedy provision (see Part 4‑1).

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

46  The significance of a modern award applying to a person

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

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

Note:          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 [see Note 2]

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 or of the Fair Work (Registered Organisations) Act 2009;

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

                     (c)  an order of a court.

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

                     (a)  a provision of this Act;

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

                     (c)  an order of a court.

Modern awards that have ceased to operate

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

Modern awards cover employees in relation to particular employment

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

49  When a modern award is in operation

When a modern award comes into operation

             (1)  A modern award comes into operation:

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

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

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

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

When a determination revoking a modern award comes into operation

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

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

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

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

Modern awards operate until revoked

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

Subdivision DTerms and conditions of employment provided by an enterprise agreement

50  Contravening an enterprise agreement

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

Note 1:       This section is a civil remedy provision (see Part 4‑1).

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

51  The significance of an enterprise agreement applying to a person

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

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

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

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

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

                     (a)  the agreement is in operation; and

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

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

Enterprise agreements apply to employees in relation to particular employment

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

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

Employees and employers

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

Employee organisations

             (2)  An enterprise agreement covers an employee organisation:

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

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

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

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

                     (a)  a provision of this Act or of the Fair Work (Registered Organisations) Act 2009;

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

                     (c)  an order of a court.

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

                     (a)  another provision of this Act;

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

                     (c)  an order of a court.

Enterprise agreements that have ceased to operate

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

Enterprise agreements cover employees in relation to particular employment

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

54  When an enterprise agreement is in operation

             (1)  An enterprise agreement approved by FWA operates from:

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

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

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

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

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

Note:          Section 58 deals with when an enterprise agreement ceases to apply to an employee.

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


 

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

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

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

National Employment Standards must not be excluded

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

Terms expressly permitted by Part 2‑2 or regulations may be included

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

                     (a)  by a provision of Part 2‑2 (which deals with the National Employment Standards); or

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

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

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

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

Ancillary and supplementary terms may be included

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

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

                     (b)  terms that supplement the National Employment Standards;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Subdivision BInteraction between modern awards and enterprise agreements

57  Interaction between modern awards and enterprise agreements

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

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

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

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

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

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

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

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

                     (a)  the employer;

                     (b)  each employee who is both:

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

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

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

             (3)  To avoid doubt:

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

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

Subdivision CInteraction between one or more enterprise agreements

58  Only one enterprise agreement can apply to an employee

Only one enterprise agreement can apply to an employee

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

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

             (2)  If:

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

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

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

then:

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

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

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

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

Special rule—single‑enterprise agreement replaces multi‑enterprise agreement

             (3)  Despite subsection (2), if:

                     (a)  a multi‑enterprise agreement applies to an employee in relation to particular employment; and

                     (b)  a single‑enterprise agreement that covers the employee in relation to the same employment comes into operation;

the multi‑enterprise agreement ceases to apply to the employee in relation to that employment when the single‑enterprise agreement comes into operation, and can never so apply again.


 

Part 2‑2The National Employment Standards

Division 1Introduction

59  Guide to this Part

This Part contains the National Employment Standards.

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

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

The National Employment Standards are minimum standards that apply to the employment of national system employees. Part 2‑1 (which deals with the core provisions for this Chapter) contains the obligation for employers to comply with the National Employment Standards (see section 44).

The National Employment Standards also underpin what can be included in modern awards and enterprise agreements. Part 2‑1 provides that the National Employment Standards cannot be excluded by modern awards or enterprise agreements, and contains other provisions about the interaction between the National Employment Standards and modern awards or enterprise agreements (see sections 55 and 56).

Divisions 2 and 3 of Part 6‑3 extend the operation of the parental leave and notice of termination provisions of the National Employment Standards to employees who are not national system employees.

60  Meanings of employee and employer

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


 

Division 2The National Employment Standards

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

             (1)  This Part sets minimum standards that apply to the employment of employees 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 3Maximum weekly hours

62  Maximum weekly hours

Maximum weekly hours of work

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

                     (a)  for a full‑time employee—38 hours; or

                     (b)  for an employee who is not a full‑time employee—the lesser of:

                              (i)  38 hours; and

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

Employee may refuse to work unreasonable additional hours

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

Determining whether additional hours are reasonable

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

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

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

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

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

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

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

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

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

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

                      (j)  any other relevant matter.

Authorised leave or absence treated as hours worked

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

                     (a)  by the employee’s employer; or

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

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

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

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

                     (a)  for a full‑time employee—38 hours; or

                     (b)  for an employee who is not a full‑time employee—the lesser of:

                              (i)  38 hours; and

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

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

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

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

                     (a)  for a full‑time employee—38 hours; or

                     (b)  for an employee who is not a full‑time employee—the lesser of:

                              (i)  38 hours; and

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

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


 

Division 4Requests for flexible working arrangements

65  Requests for flexible working arrangements

Employee may request change in working arrangements

             (1)  An employee who is a parent, or has 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 5Parental leave and related entitlements

Subdivision AGeneral

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

Employees other than casual employees

             (1)  An employee, other than a casual employee, is not entitled to leave under this Division (other than unpaid pre‑adoption leave) unless the employee has, or will have, completed at least 12 months of continuous service with the employer immediately before the date that applies under subsection (3).

Casual employees

             (2)  A casual employee, is not entitled to leave (other than unpaid pre‑adoption leave) under this Division unless:

                     (a)  the employee is, or will be, a long term casual employee of the employer immediately before the date that applies under subsection (3); and

                     (b)  but for:

                              (i)  the birth or expected birth of the child; or

                             (ii)  the placement or the expected placement of the child; or

                            (iii)  if the employee is taking a period of unpaid parental leave that starts under subsection 71(6) or paragraph 72(3)(b) or 72(4)(b)—the taking of the leave;

                            the employee would have a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

Date at which employee must have completed 12 months of service

             (3)  For the purpose of subsections (1) and (2), the date that applies is:

                     (a)  unless paragraph (b) or (c) applies:

                              (i)  if the leave is birth‑related leave—the date of birth, or the expected date of birth, of the child; or

                             (ii)  if the leave is adoption‑related leave—the day of placement, or the expected day of placement, of the child; or

                     (b)  for an employee taking a period of unpaid parental leave that is to start within 12 months after the birth or placement of the child under subsection 71(6)—the date on which the employee’s period of leave is to start; or

                     (c)  for a member of an employee couple taking a period of unpaid parental leave that is to start under paragraph 72(3)(b) or 72(4)(b) after the period of unpaid parental leave of the other member of the employee couple—the date on which the employee’s period of leave is to start.

Meaning of birth‑related leave

             (4)  Birth‑related leave means leave of either of the following kinds:

                     (a)  unpaid parental leave taken in association with the birth of a child (see section 70);

                     (b)  unpaid special maternity leave (see section 80).

Meaning of adoption‑related leave

             (5)  Adoption‑related leave means leave of either of the following kinds:

                     (a)  unpaid parental leave taken in association with the placement of a child for adoption (see section 70);

                     (b)  unpaid pre‑adoption leave (see section 85).

Meaning of day of placement

             (6)  The day of placement, in relation to the adoption of a child by an employee, means the earlier of the following days:

                     (a)  the day on which the employee first takes custody of the child for the adoption;

                     (b)  the day on which the employee starts any travel that is reasonably necessary to take custody of the child for the adoption.

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

                   An employee is not entitled to adoption‑related leave unless the child that is, or is to be, placed with the employee for adoption:

                     (a)  is, or will be, under 16 as at the day of placement, or the expected day of placement, of the child; and

                     (b)  has not, or will not have, lived continuously with the employee for a period of 6 months or more as at the day of placement, or the expected day of placement, of the child; and

                     (c)  is not (otherwise than because of the adoption) a child of the employee or the employee’s spouse or de facto partner.

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

             (1)  If:

                     (a)  there is a transfer of employment in relation to an employee; and

                     (b)  the employee has already started a period of leave under this Division when his or her employment with the first employer ends;

the employee is entitled to continue on that leave for the rest of that period.

             (2)  If:

                     (a)  there is a transfer of employment in relation to an employee; and

                     (b)  the employee has, in relation to the first employer, already taken a step that is required or permitted by a provision of this Division in relation to taking a period of leave;

the employee is taken to have taken the step in relation to the second employer.

Note:          Steps covered by this subsection include (for example) giving the first employer notice under subsection 74(1), confirmation or advice under subsection 74(4) or evidence under subsection 74(5).

Subdivision BParental leave

70  Entitlement to unpaid parental leave

                   An employee is entitled to 12 months of unpaid parental leave if:

                     (a)  the leave is associated with:

                              (i)  the birth of a child of the employee or the employee’s spouse or de facto partner; or

                             (ii)  the placement of a child with the employee for adoption; and

                     (b)  the employee has or will have a responsibility for the care of the child.

Note 1:       Entitlement is also affected by section 67 (which deals with length of the employee’s service) and, for adoption, section 68 (which deals with the age etc. of the adopted child).

Note 2:       The 12 months is reduced by the amount of any unpaid special maternity leave the employee has taken (see subsection 80(7)).

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

Application of this section

             (1)  This section applies to an employee who intends to take unpaid parental leave if:

                     (a)  the employee is not a member of an employee couple; or

                     (b)  the employee is a member of an employee couple, but the other member of the couple does not intend to take unpaid parental leave.

Leave must be taken in single continuous period

             (2)  The employee must take the leave in a single continuous period.

Note:          An employee may take a form of paid leave at the same time as he or she is on unpaid parental leave (see section 79).

When birth‑related leave must start

             (3)  If the leave is birth‑related leave for a female employee who is pregnant with, or gives birth to, the child, the period of leave may start up to 6 weeks before the expected date of birth of the child, but must not start later than the date of birth of the child.

             (4)  If the leave is birth‑related leave but subsection (3) does not apply, the period of leave must start on the date of birth of the child.

When adoption‑related leave must start

             (5)  If the leave is adoption‑related leave, the period of leave must start on the day of placement of the child.

Leave may start later for employees whose spouse or de facto partner is not an employee

             (6)  Despite subsections (3) to (5), the period of leave may start at any time within 12 months after the date of birth or day of placement of the child if:

                     (a)  the employee has a spouse or de facto partner who is not an employee; and

                     (b)  the spouse or de facto partner has a responsibility for the care of the child for the period between the date of birth or day of placement of the child and the start date of the leave.

Note:          An employee whose leave starts under subsection (6) is still entitled under section 76 to request an extension of the period of leave beyond his or her available parental leave period. However, the period of leave may not be extended beyond 24 months after the date of birth or day of placement of the child (see subsection 76(7)).

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

Application of this section

             (1)  This section applies to an employee couple if each of the employees intends to take unpaid parental leave.

Leave must be taken in single continuous period

             (2)  Each employee must take the leave in a single continuous period.

Note:          An employee may take a form of paid leave at the same time as he or she is on unpaid parental leave (see section 79).

When birth‑related leave must start

             (3)  If the leave is birth‑related leave:

                     (a)  one employee’s period of leave must start first, in accordance with the following rules:

                              (i)  if the member of the employee couple whose period of leave starts first is a female employee who is pregnant with, or gives birth to, the child—the period of leave may start up to 6 weeks before the expected date of birth of the child, but must not start later than the date of birth of the child;

                             (ii)  if subparagraph (i) does not apply—the period of leave must start on the date of birth of the child; and

                     (b)  the other employee’s period of leave must start immediately after the end of the first employee’s period of leave (or that period as extended under section 75 or 76).

When adoption‑related leave must start

             (4)  If the leave is adoption‑related leave:

                     (a)  one employee’s period of leave must start on the day of placement of the child; and

                     (b)  the other employee’s period of leave must start immediately after the end of the first employee’s period of leave (or that period as extended under section 75 or 76).

Limited entitlement to take concurrent leave

             (5)  If one of the employees takes a period (the first employee’s period of leave) of unpaid parental leave in accordance with paragraph (3)(a) or (4)(a), the other employee may take a period of unpaid parental leave (the concurrent leave) during the first employee’s period of leave, if the concurrent leave complies with the following requirements:

                     (a)  the concurrent leave must be for a period of 3 weeks or less;

                     (b)  unless the employer agrees as referred to in paragraph (c), the concurrent leave must not start before, and must not end more than 3 weeks after:

                              (i)  if the leave is birth‑related leave—the date of birth of the child; or

                             (ii)  if the leave is adoption‑related leave—the day of placement of the child;

                     (c)  if the employer agrees, the concurrent leave may (subject to paragraph (a)):

                              (i)  start earlier than is permitted by paragraph (b); or

                             (ii)  end up to 3 weeks later than is permitted by paragraph (b).

             (6)  Concurrent leave taken by an employee:

                     (a)  is an exception to the rule that the employee must take his or her leave in a single continuous period (see subsection (2)); and

                     (b)  is an exception to the rules about when the employee’s period of unpaid parental leave must start (see subsection (3) or (4)).

Note:          The concurrent leave is unpaid parental leave and so comes out of the employee’s entitlement to 12 months of unpaid parental leave under section 70.

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

Employer may ask employee to provide a medical certificate

             (1)  If a pregnant employee who is entitled to unpaid parental leave (whether or not she has complied with section 74) continues to work during the 6 week period before the expected date of birth of the child, the employer may ask the employee to give the employer a medical certificate containing the following statements (as applicable):

                     (a)  a statement of whether the employee is fit for work;

                     (b)  if the employee is fit for work—a statement of whether it is inadvisable for the employee to continue in her present position during a stated period because of:

                              (i)  illness, or risks, arising out of the employee’s pregnancy; or

                             (ii)  hazards connected with the position.

Note:          Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

Employer may require employee to take unpaid parental leave

             (2)  The employer may require the employee to take a period of unpaid parental leave (the period of leave) as soon as practicable if:

                     (a)  the employee does not give the employer the requested certificate within 7 days after the request; or

                     (b)  within 7 days after the request, the employee gives the employer a medical certificate stating that the employee is not fit for work; or

                     (c)  the following subparagraphs are satisfied:

                              (i)  within 7 days after the request, the employee gives the employer a medical certificate stating that the employee is fit for work, but that it is inadvisable for the employee to continue in her present position for a stated period for a reason referred to in subparagraph (1)(b)(i) or (ii);

                             (ii)  section 81 does not apply to the employee.

Note:          If the medical certificate contains a statement as referred to in subparagraph (c)(i) and section 81 applies to the employee, the employee is entitled under that section to be transferred to a safe job, or to paid no safe job leave.

When the period of leave must end

             (3)  The period of leave must not end later than the earlier of the following:

                     (a)  the end of the pregnancy;

                     (b)  if the employee has given the employer notice of the taking of a period of leave connected with the birth of the child (whether it is unpaid parental leave or some other kind of leave)—the start date of that leave.

Special rules about the period of leave

             (4)  The period of leave:

                     (a)  is an exception to the rule that the employee must take her unpaid parental leave in a single continuous period (see subsection 71(2) or 72(2)); and

                     (b)  is an exception to the rules about when the employee’s period of unpaid parental leave must start (see subsections 71(3) and (6), or subsection 72(3)).

Note:          The period of leave is unpaid parental leave and so comes out of the employee’s entitlement to 12 months of unpaid parental leave under section 70.

             (5)  The employee is not required to comply with section 74 in relation to the period of leave.

74  Notice and evidence requirements

Notice

             (1)  An employee must give his or her employer written notice of the taking of unpaid parental leave under section 71 or 72 by the employee.

             (2)  The notice must be given to the employer:

                     (a)  at least 10 weeks before starting the leave; or

                     (b)  if that is not practicable—as soon as practicable (which may be a time after the leave has started).

             (3)  The notice must specify the intended start and end dates of the leave.

Confirmation or change of intended start and end dates

             (4)  At least 4 weeks before the intended start date specified in the notice given under subsection (1), the employee must:

                     (a)  confirm the intended start and end dates of the leave; or

                     (b)  advise the employer of any changes to the intended start and end dates of the leave;

unless it is not practicable to do so.

Evidence

             (5)  An employee who has given his or her employer notice of the taking of unpaid parental leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person:

                     (a)  if the leave is birth‑related leave—of the date of birth, or the expected date of birth, of the child; or

                     (b)  if the leave is adoption‑related leave:

                              (i)  of the day of placement, or the expected day of placement, of the child; and

                             (ii)  that the child is, or will be, under 16 as at the day of placement, or the expected day of placement, of the child.

             (6)  Without limiting subsection (5), an employer may require the evidence referred to in paragraph (5)(a) to be a medical certificate.

Compliance

             (7)  An employee is not entitled to take unpaid parental leave under section 71 or 72 unless the employee complies with this section.

Note:          Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

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

Application of this section

             (1)  This section applies if:

                     (a)  an employee has, in accordance with section 74, given notice of the taking of a period of unpaid parental leave (the original leave period); and

                     (b)  the original leave period is less than the employee’s available parental leave period; and

                     (c)  the original leave period has started.

             (2)  The employee’s available parental leave period is 12 months, less any periods of the following kinds:

                     (a)  a period of concurrent leave that the employee has taken in accordance with subsection 72(5);

                     (b)  a period of unpaid parental leave that the employee has been required to take under subsection 73(2) or 82(2);

                     (c)  a period by which the employee’s entitlement to unpaid parental leave is reduced under paragraph 76(6)(c);

                     (d)  a period of special maternity leave that the employee has taken.

First extension by giving notice to employer

             (3)  The employee may extend the period of unpaid parental leave by giving his or her employer written notice of the extension at least 4 weeks before the end date of the original leave period. The notice must specify the new end date for the leave.

             (4)  Only one extension is permitted under subsection (3).

Further extensions by agreement with employer

             (5)  If the employer agrees, the employee may further extend the period of unpaid parental leave one or more times.

No entitlement to extension beyond available parental leave period

             (6)  The employee is not entitled under this section to extend the period of unpaid parental leave beyond the employee’s available parental leave period.

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

Employee may request further period of leave

             (1)  An employee who takes unpaid parental leave for his or her available parental leave period may request his or her employer to agree to an extension of unpaid parental leave for the employee for a further period of up to 12 months immediately following the end of the available parental leave period.

Making the request

             (2)  The request must be in writing, and must be given to the employer at least 4 weeks before the end of the available parental leave period.

Agreeing to the requested extension

             (3)  The employer must give the employee a written response to the request stating whether the employer grants or refuses the request. The response must be given as soon as practicable, and not later than 21 days, after the request is made.

             (4)  The employer may refuse the request only on reasonable business grounds.

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

Special rules for employee couples

             (6)  The following paragraphs apply in relation to a member of an employee couple extending a period of unpaid parental leave in relation to a child under this section:

                     (a)  the request must specify any amount of unpaid parental leave and unpaid special maternity leave that the other member of the employee couple has taken, or will have taken, in relation to the child before the extension starts;

                     (b)  the period of the extension cannot exceed 12 months, less any period of unpaid parental leave or unpaid special maternity leave that the other member of the employee couple has taken, or will have taken, in relation to the child before the extension starts;

                     (c)  the amount of unpaid parental leave to which the other member of the employee couple is entitled under section 70 in relation to the child is reduced by the period of the extension.

No extension beyond 24 months after birth or placement

             (7)  Despite any other provision of this Division, the employee is not entitled to extend the period of unpaid parental leave beyond 24 months after the date of birth or day of placement of the child.

77  Reducing period of unpaid parental leave

                   If the employer agrees, an employee whose period of unpaid parental leave has started may reduce the period of unpaid parental leave he or she takes.

78  Employee who ceases to have responsibility for care of child

             (1)  This section applies to an employee who has taken unpaid parental leave in relation to a child if the employee ceases to have any responsibility for the care of the child.

             (2)  The employer may give the employee written notice requiring the employee to return to work on a specified day.

             (3)  The specified day:

                     (a)  must be at least 4 weeks after the notice is given to the employee; and

                     (b)  if the leave is birth‑related leave taken by a female employee who has given birth—must not be earlier than 6 weeks after the date of birth of the child.

             (4)  The employee’s entitlement to unpaid parental leave in relation to the child ends immediately before the specified day.

79  Interaction with paid leave

             (1)  This Subdivision (except for subsections (2) and (3)) does not prevent an employee from taking any other kind of paid leave while he or she is taking unpaid parental leave. If the employee does so, the taking of that other paid leave does not break the continuity of the period of unpaid parental leave.

Note:          For example, if the employee has paid annual leave available, he or she may (with the employer’s agreement) take some or all of that paid annual leave at the same time as the unpaid parental leave.

             (2)  An employee is not entitled to take paid personal/carer’s leave or compassionate leave while he or she is taking unpaid parental leave.

             (3)  An employee is not entitled to any payment under Division 8 (which deals with community service leave) in relation to activities the employee engages in while taking unpaid parental leave.

Subdivision COther entitlements

80  Unpaid special maternity leave

Entitlement to unpaid special maternity leave

             (1)  A female employee is entitled to a period of unpaid special maternity leave if she is not fit for work during that period because:

                     (a)  she has a pregnancy‑related illness; or

                     (b)  she has been pregnant, and the pregnancy ends within 28 weeks of the expected date of birth of the child otherwise than by the birth of a living child.

Note:          Entitlement is also affected by section 67 (which deals with the length of the employee’s service).

Notice and evidence

             (2)  An employee must give her employer notice of the taking of unpaid special maternity leave by the employee.

             (3)  The notice:

                     (a)  must be given to the employer as soon as practicable (which may be a time after the leave has started); and

                     (b)  must advise the employer of the period, or expected period, of the leave.

             (4)  An employee who has given her employer notice of the taking of unpaid special maternity leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for a reason specified in subsection (1).

             (5)  Without limiting subsection (4), an employer may require the evidence referred to in that subsection to be a medical certificate.

             (6)  An employee is not entitled to take unpaid special maternity leave unless the employee complies with subsections (2) to (4).

Taking of special maternity leave reduces entitlement to unpaid parental leave

             (7)  A female employee’s entitlement to 12 months of unpaid parental leave associated with the birth of a child (see section 70) is reduced by the amount of any unpaid special maternity leave taken by the employee while she was pregnant.

Note:          Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

81  Transfer to a safe job

Application of this section

             (1)  This section applies to a pregnant employee if:

                     (a)  she is entitled to unpaid parental leave; and

                     (b)  she has already complied with the notice and evidence requirements of section 74 for taking unpaid parental leave; and

                     (c)  she gives her employer evidence that would satisfy a reasonable person that she is fit for work, but that it is inadvisable for her to continue in her present position during a stated period (the risk period) because of:

                              (i)  illness, or risks, arising out of her pregnancy; or

                             (ii)  hazards connected with that position.

Note:          Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

             (2)  Without limiting paragraph (1)(c), an employer may require the evidence referred to in that paragraph to be a medical certificate.

Employee entitled to appropriate safe job or paid no safe job leave during risk period

             (3)  If this section applies to an employee:

                     (a)  if there is an appropriate safe job available—the employer must transfer the employee to that job for the risk period, with no other change to the employee’s terms and conditions of employment; or

                     (b)  if there is no appropriate safe job available—the employee is entitled to take paid no safe job leave for the risk period.

             (4)  An appropriate safe job is a safe job that has:

                     (a)  the same ordinary hours of work as the employee’s present position; or

                     (b)  a different number of ordinary hours agreed to by the employee.

Payment to employee if transferred to appropriate safe job

             (5)  Without limiting paragraph (3)(a), if the employee is transferred to an appropriate safe job for the risk period, the employer must pay the employee for the safe job at the employee’s full rate of pay (for the position she was in before the transfer) for the hours that she works in the risk period.

Payment to employee if on paid no safe job leave

             (6)  If the employee takes paid no safe job leave for the risk period, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the risk period.

Risk period ends if pregnancy ends

             (7)  If the employee’s pregnancy ends before the end of the risk period, the risk period ends when the pregnancy ends.

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

Employer may ask employee to provide a medical certificate

             (1)  If an employee is on paid no safe job leave during the 6 week period before the expected date of birth of the child, the employer may ask the employee to give the employer a medical certificate stating whether the employee is fit for work.

Note:          Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

Employer may require employee to take unpaid parental leave

             (2)  The employer may require the employee to take a period of unpaid parental leave (the period of leave) as soon as practicable if:

                     (a)  the employee does not give the employer the requested certificate within 7 days after the request; or

                     (b)  within 7 days after the request, the employee gives the employer a certificate stating that the employee is not fit for work.

Entitlement to paid no safe job leave ends

             (3)  When the period of leave starts, the employee’s entitlement to paid no safe job leave ends.

When the period of leave must end etc.

             (4)  Subsections 73(3), (4) and (5) apply to the period of leave.

83  Consultation with employee on unpaid parental leave

             (1)  If:

                     (a)  an employee is on unpaid parental leave; and

                     (b)  the employee’s employer makes a decision that will have a significant effect on the status, pay or location of the employee’s pre‑parental leave position;

the employer must take all reasonable steps to give the employee information about, and an opportunity to discuss, the effect of the decision on that position.

             (2)  The employee’s pre‑parental leave position is:

                     (a)  unless paragraph (b) applies, the position the employee held before starting the unpaid parental leave; or

                     (b)  if, before starting the unpaid parental leave, the employee:

                              (i)  was transferred to a safe job because of her pregnancy; or

                             (ii)  reduced her working hours due to her pregnancy;

                            the position the employee held immediately before that transfer or reduction.

84  Return to work guarantee

                   On ending unpaid parental leave, an employee is entitled to return to:

                     (a)  the employee’s pre‑parental leave position; or

                     (b)  if that position no longer exists—an available position for which the employee is qualified and suited nearest in status and pay to the pre‑parental leave position.

85  Unpaid pre‑adoption leave

Entitlement to unpaid pre‑adoption leave

             (1)  An employee is entitled to up to 2 days of unpaid pre‑adoption leave to attend any interviews or examinations required in order to obtain approval for the employee’s adoption of a child.

Note:          Entitlement is also affected by section 68 (which deals with the age etc. of the adopted child).

             (2)  However, an employee is not entitled to take a period of unpaid pre‑adoption leave if:

                     (a)  the employee could instead take some other form of leave; and

                     (b)  the employer directs the employee to take that other form of leave.

             (3)  An employee who is entitled to a period of unpaid pre‑adoption leave is entitled to take the leave as:

                     (a)  a single continuous period of up to 2 days; or

                     (b)  any separate periods to which the employee and the employer agree.

Notice and evidence

             (4)  An employee must give his or her employer notice of the taking of unpaid pre‑adoption leave by the employee.

             (5)  The notice:

                     (a)  must be given to the employer as soon as practicable (which may be a time after the leave has started); and

                     (b)  must advise the employer of the period, or expected period, of the leave.

             (6)  An employee who has given his or her employer notice of the taking of unpaid pre‑adoption leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken to attend an interview or examination as referred to in subsection (1).

             (7)  An employee is not entitled to take unpaid pre‑adoption leave unless the employee complies with subsections (4) to (6).

Note:          Personal information given to an employer under this section may be regulated under the Privacy Act 1988.


 

Division 6Annual leave

86  Division applies to employees other than casual employees

                   This Division applies to employees, other than casual employees.

87  Entitlement to annual leave

Amount of leave

             (1)  For each year of service with his or her employer, an employee is entitled to:

                     (a)  4 weeks of paid annual leave; or

                     (b)  5 weeks of paid annual leave, if:

                              (i)  a modern award applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or

                             (ii)  an enterprise agreement applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or

                            (iii)  the employee qualifies for the shiftworker annual leave entitlement under subsection (3) (this relates to award/agreement free employees).

Note:          Section 196 affects whether FWA may approve an enterprise agreement covering an employee, if the employee is covered by a modern award that is in operation and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

Accrual of leave

             (2)  An employee’s entitlement to paid annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.

Note:          If an employee’s employment ends during what would otherwise have been a year of service, the employee accrues paid annual leave up to when the employment ends.

Award/agreement free employees who qualify for the shiftworker entitlement

             (3)  An award/agreement free employee qualifies for the shiftworker annual leave entitlement if:

                     (a)  the employee:

                              (i)  is employed in an enterprise in which shifts are continuously rostered 24 hours a day for 7 days a week; and

                             (ii)  is regularly rostered to work those shifts; and

                            (iii)  regularly works on Sundays and public holidays; or

                     (b)  the employee is in a class of employees prescribed by the regulations as shiftworkers for the purposes of the National Employment Standards.

             (4)  However, an employee referred to in subsection (3) does not qualify for the shiftworker annual leave entitlement if the employee is in a class of employees prescribed by the regulations as not being qualified for that entitlement.

             (5)  Without limiting the way in which a class may be described for the purposes of paragraph (3)(b) or subsection (4), the class may be described by reference to one or more of the following:

                     (a)  a particular industry or part of an industry;

                     (b)  a particular kind of work;

                     (c)  a particular type of employment.

88  Taking paid annual leave

             (1)  Paid annual leave may be taken for a period agreed between an employee and his or her employer.

             (2)  The employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.

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

Public holidays

             (1)  If the period during which an employee takes paid annual leave includes a day or part‑day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid annual leave on that public holiday.

Other periods of leave

             (2)  If the period during which an employee takes paid annual leave includes a period of any other leave (other than unpaid parental leave) under this Part, or a period of absence from employment under Division 8 (which deals with community service leave), the employee is taken not to be on paid annual leave for the period of that other leave or absence.

90  Payment for annual leave

             (1)  If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

             (2)  If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

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

Transfer of employment situation in which employer may decide not to recognise employee’s service with first employer

             (1)  Subsection 22(5) does not apply (for the purpose of this Division) to a transfer of employment between non‑associated entities in relation to an employee, if the second employer decides not to recognise the employee’s service with the first employer (for the purpose of this Division).

Employee is not entitled to payment for untaken annual leave if service with first employer counts as service with second employer

             (2)  If subsection 22(5) applies (for the purpose of this Division) to a transfer of employment in relation to an employee, the employee is not entitled to be paid an amount under subsection 90(2) for a period of untaken paid annual leave.

Note:          Subsection 22(5) provides that, generally, if there is a transfer of employment, service with the first employer counts as service with the second employer.

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

                   Paid annual leave must not be cashed out, except in accordance with:

                     (a)  cashing out terms included in a modern award or enterprise agreement under section 93, or

                     (b)  an agreement between an employer and an award/agreement free employee under subsection 94(1).

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

Terms about cashing out paid annual leave

             (1)  A modern award or enterprise agreement may include terms providing for the cashing out of paid annual leave by an employee.

             (2)  The terms must require that:

                     (a)  paid annual leave must not be cashed out if the cashing out would result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks; and

                     (b)  each cashing out of a particular amount of paid annual leave must be by a separate agreement in writing between the employer and the employee; and

                     (c)  the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.

Terms about requirements to take paid annual leave

             (3)  A modern award or enterprise agreement may include terms requiring an employee, or allowing for an employee to be required, to take paid annual leave in particular circumstances, but only if the requirement is reasonable.

Terms about taking paid annual leave

             (4)  A modern award or enterprise agreement may include terms otherwise dealing with the taking of paid annual leave.

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

Agreements to cash out paid annual leave

             (1)  An employer and an award/agreement free employee may agree to the employee cashing out a particular amount of the employee’s accrued paid annual leave.

             (2)  The employer and the employee must not agree to the employee cashing out an amount of paid annual leave if the agreement would result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks.

             (3)  Each agreement to cash out a particular amount of paid annual leave must be a separate agreement in writing.

             (4)  The employer must pay the employee at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.

Requirements to take paid annual leave

             (5)  An employer may require an award/agreement free employee to take a period of paid annual leave, but only if the requirement is reasonable.

Note:          A requirement to take paid annual leave may be reasonable if, for example:

(a)    the employee has accrued an excessive amount of paid annual leave; or

(b)    the employer’s enterprise is being shut down for a period (for example, between Christmas and New Year).

Agreements about taking paid annual leave

             (6)  An employer and an award/agreement free employee may agree on when and how paid annual leave may be taken by the employee.

Note:          Matters that could be agreed include, for example, the following:

(a)    that paid annual leave may be taken in advance of accrual;

(b)    that paid annual leave must be taken within a fixed period of time after it is accrued;

(c)    the form of application for paid annual leave;

(d)    that a specified period of notice must be given before taking paid annual leave.


 

Division 7Personal/carer’s leave and compassionate leave

Subdivision APaid personal/carer’s leave

95  Subdivision applies to employees other than casual employees

                   This Subdivision applies to employees, other than casual employees.

96  Entitlement to paid personal/carer’s leave

Amount of leave

             (1)  For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave.

Accrual of leave

             (2)  An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.

97  Taking paid personal/carer’s leave

                   An employee may take paid personal/carer’s leave if the leave is taken:

                     (a)  because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or

                     (b)  to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:

                              (i)  a personal illness, or personal injury, affecting the member; or

                             (ii)  an unexpected emergency affecting the member.

Note:          The notice and evidence requirements of section 107 must be complied with.

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

                   If the period during which an employee takes paid personal/carer’s leave includes a day or part‑day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid personal/carer’s leave on that public holiday.

99  Payment for paid personal/carer’s leave

                   If, in accordance with this Subdivision, an employee takes a period of paid personal/carer’s leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

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

                   Paid personal/carer’s leave must not be cashed out, except in accordance with cashing out terms included in a modern award or enterprise agreement under section 101.

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

             (1)  A modern award or enterprise agreement may include terms providing for the cashing out of paid personal/carer’s leave by an employee.

             (2)  The terms must require that:

                     (a)  paid personal/carer’s leave must not be cashed out if the cashing out would result in the employee’s remaining accrued entitlement to paid personal/carer’s leave being less than 15 days; and

                     (b)  each cashing out of a particular amount of paid personal/carer’s leave must be by a separate agreement in writing between the employer and the employee; and

                     (c)  the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.

Subdivision BUnpaid carer’s leave

102  Entitlement to unpaid carer’s leave

                   An employee is entitled to 2 days of unpaid carer’s leave for each occasion (a permissible occasion) when a member of the employee’s immediate family, or a member of the employee’s household, requires care or support because of:

                     (a)  a personal illness, or personal injury, affecting the member; or

                     (b)  an unexpected emergency affecting the member.

103  Taking unpaid carer’s leave

             (1)  An employee may take unpaid carer’s leave for a particular permissible occasion if the leave is taken to provide care or support as referred to in section 102.

             (2)  An employee may take unpaid carer’s leave for a particular permissible occasion as:

                     (a)  a single continuous period of up to 2 days; or

                     (b)  any separate periods to which the employee and his or her employer agree.

             (3)  An employee cannot take unpaid carer’s leave during a particular period if the employee could instead take paid personal/carer’s leave.

Note:          The notice and evidence requirements of section 107 must be complied with.

Subdivision CCompassionate leave

104  Entitlement to compassionate leave

                   An employee is entitled to 2 days of compassionate leave for each occasion (a permissible occasion) when a member of the employee’s immediate family, or a member of the employee’s household:

                     (a)  contracts or develops a personal illness that poses a serious threat to his or her life; or

                     (b)  sustains a personal injury that poses a serious threat to his or her life; or

                     (c)  dies.

105  Taking compassionate leave

             (1)  An employee may take compassionate leave for a particular permissible occasion if the leave is taken:

                     (a)  to spend time with the member of the employee’s immediate family or household who has contracted or developed the personal illness, or sustained the personal injury, referred to in section 104; or

                     (b)  after the death of the member of the employee’s immediate family or household referred to in section 104.

             (2)  An employee may take compassionate leave for a particular permissible occasion as:

                     (a)  a single continuous 2 day period; or

                     (b)  2 separate periods of 1 day each; or

                     (c)  any separate periods to which the employee and his or her employer agree.

             (3)  If the permissible occasion is the contraction or development of a personal illness, or the sustaining of a personal injury, the employee may take the compassionate leave for that occasion at any time while the illness or injury persists.

Note:          The notice and evidence requirements of section 107 must be complied with.

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

                   If, in accordance with this Subdivision, an employee, other than a casual employee, takes a period of compassionate leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

Note:          For casual employees, compassionate leave is unpaid leave.

Subdivision DNotice and evidence requirements

107  Notice and evidence requirements

Notice

             (1)  An employee must give his or her employer notice of the taking of leave under this Division by the employee.

             (2)  The notice:

                     (a)  must be given to the employer as soon as practicable (which may be a time after the leave has started); and

                     (b)  must advise the employer of the period, or expected period, of the leave.

Evidence

             (3)  An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:

                     (a)  if it is paid personal/carer’s leave—the leave is taken for a reason specified in section 97; or

                     (b)  if it is unpaid carer’s leave—the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or

                     (c)  if it is compassionate leave—the leave is taken for a permissible occasion in circumstances specified in subsection 105(1).

Compliance

             (4)  An employee is not entitled to take leave under this Division unless the employee complies with this section.

Modern awards and enterprise agreements may include evidence requirements

             (5)  A modern award or enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave.

Note:          Personal information given to an employer under this section may be regulated under the Privacy Act 1988.


 

Division 8Community service leave

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

                   An employee who engages in an eligible community service activity is entitled to be absent from his or her employment for a period if:

                     (a)  the period consists of one or more of the following:

                              (i)  time when the employee engages in the activity;

                             (ii)  reasonable travelling time associated with the activity;

                            (iii)  reasonable rest time immediately following the activity; and

                     (b)  unless the activity is jury service—the employee’s absence is reasonable in all the circumstances.

109  Meaning of eligible community service activity

General

             (1)  Each of the following is an eligible community service activity:

                     (a)  jury service (including attendance for jury selection) that is required by or under a law of the Commonwealth, a State or a Territory; or

                     (b)  a voluntary emergency management activity (see subsection (2)); or

                     (c)  an activity prescribed in regulations made for the purpose of subsection (4).

Voluntary emergency management activities

             (2)  An employee engages in a voluntary emergency management activity if, and only if:

                     (a)  the employee engages in an activity that involves dealing with an emergency or natural disaster; and

                     (b)  the employee engages in the activity on a voluntary basis (whether or not the employee directly or indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for engaging in the activity); and

                     (c)  the employee is a member of, or has a member‑like association with, a recognised emergency management body; and

                     (d)  either:

                              (i)  the employee was requested by or on behalf of the body to engage in the activity; or

                             (ii)  no such request was made, but it would be reasonable to expect that, if the circumstances had permitted the making of such a request, it is likely that such a request would have been made.

             (3)  A recognised emergency management body is:

                     (a)  a body, or part of a body, that has a role or function under a plan that:

                              (i)  is for coping with emergencies and/or disasters; and

                             (ii)  is prepared by the Commonwealth, a State or a Territory; or

                     (b)  a fire‑fighting, civil defence or rescue body, or part of such a body; or

                     (c)  any other body, or part of a body, a substantial purpose of which involves:

                              (i)  securing the safety of persons or animals in an emergency or natural disaster; or

                             (ii)  protecting property in an emergency or natural disaster; or

                            (iii)  otherwise responding to an emergency or natural disaster; or

                     (d)  a body, or part of a body, prescribed by the regulations;

but does not include a body that was established, or is continued in existence, for the purpose, or for purposes that include the purpose, of entitling one or more employees to be absent from their employment under this Division.

Regulations may prescribe other activities

             (4)  The regulations may prescribe an activity that is of a community service nature as an eligible community service activity.

110  Notice and evidence requirements

Notice

             (1)  An employee who wants an absence from his or her employment to be covered by this Division must give his or her employer notice of the absence.

             (2)  The notice:

                     (a)  must be given to the employer as soon as practicable (which may be a time after the absence has started); and

                     (b)  must advise the employer of the period, or expected period, of the absence.

Evidence

             (3)  An employee who has given his or her employer notice of an absence under subsection (1) must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the absence is because the employee has been or will be engaging in an eligible community service activity.

Compliance

             (4)  An employee’s absence from his or her employment is not covered by this Division unless the employee complies with this section.

Note:          Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

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

Application of this section

             (1)  This section applies if:

                     (a)  in accordance with this Division, an employee is absent from his or her employment for a period because of jury service; and

                     (b)  the employee is not a casual employee.

Employee to be paid base rate of pay

             (2)  Subject to subsections (3), (4) and (5), the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

Evidence

             (3)  The employer may require the employee to give the employer evidence that would satisfy a reasonable person:

                     (a)  that the employee has taken all necessary steps to obtain any amount of jury service pay to which the employee is entitled; and

                     (b)  of the total amount (even if it is a nil amount) of jury service pay that has been paid, or is payable, to the employee for the period.

Note:          Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

             (4)  If, in accordance with subsection (3), the employer requires the employee to give the employer the evidence referred to in that subsection:

                     (a)  the employee is not entitled to payment under subsection (2) unless the employee provides the evidence; and

                     (b)  if the employee provides the evidence—the amount payable to the employee under subsection (2) is reduced by the total amount of jury service pay that has been paid, or is payable, to the employee, as disclosed in the evidence.

Payment only required for first 10 days of absence

             (5)  If an employee is absent because of jury service in relation to a particular jury service summons for a period, or a number of periods, of more than 10 days in total:

                     (a)  the employer is only required to pay the employee for the first 10 days of absence; and

                     (b)  the evidence provided in response to a requirement under subsection (3) need only relate to the first 10 days of absence; and

                     (c)  the reference in subsection (4) to the total amount of jury service pay as disclosed in evidence is a reference to the total amount so disclosed for the first 10 days of absence.

Meaning of jury service pay

             (6)  Jury service pay means an amount paid in relation to jury service under a law of the Commonwealth, a State or a Territory, other than an amount that is, or that is in the nature of, an expense‑related allowance.

Meaning of jury service summons

             (7)  Jury service summons means a summons or other instruction (however described) that requires a person to attend for, or perform, jury service.

112  State and Territory laws that are not excluded

             (1)  This Act is not intended to apply to the exclusion of laws of a State or Territory that provide employee entitlements in relation to engaging in eligible community service activities, to the extent that those entitlements are more beneficial to employees than the entitlements under this Division.

Note:          For example, this Act would not apply to the exclusion of a State or Territory law providing for a casual employee to be paid jury service pay.

             (2)  If the community service activity is an activity prescribed in regulations made for the purpose of subsection 109(4), subsection (1) of this section has effect subject to any provision to the contrary in the regulations.


 

Division 9Long service leave

113  Entitlement to long service leave

Entitlement in accordance with applicable award‑derived long service leave terms

             (1)  If there are applicable award‑derived long service leave terms (see subsection (3)) in relation to an employee, the employee is entitled to long service leave in accordance with those terms.

Note:          This Act does not exclude State and Territory laws that deal with long service leave, except in relation to employees who are entitled to long service leave under this Division (see paragraph 27(2)(g)), and except as provided in subsection 113A(3).

             (2)  However, subsection (1) does not apply if:

                     (a)  a workplace agreement, or an AWA, that came into operation before the commencement of this Part applies to the employee; or

                     (b)  one of the following kinds of instrument that came into operation before the commencement of this Part applies to the employee and expressly deals with long service leave:

                              (i)  an enterprise agreement;

                             (ii)  a preserved State agreement;

                            (iii)  a workplace determination;

                            (iv)  a pre‑reform certified agreement;

                             (v)  a pre‑reform AWA;

                            (vi)  a section 170MX award;

                           (vii)  an old IR agreement.

Note:          If there ceases to be any agreement or instrument of a kind referred to in paragraph (a) or (b) that applies to the employee, the employee will, at that time, become entitled under subsection (1) to long service leave in accordance with applicable award‑derived long service leave terms.

             (3)  Applicable award‑derived long service leave terms, in relation to an employee, are:

                     (a)  terms of an award that (disregarding the effect of any instrument of a kind referred to in subsection (2)):

                              (i)  would have applied to the employee immediately before the commencement of this Part if the employee had, at that time, been in his or her current circumstances of employment; and

                             (ii)  would have entitled the employee to long service leave; and

                     (b)  any terms of the award that are ancillary or incidental to the terms referred to in paragraph (a).

Entitlement in accordance with applicable agreement‑derived long service leave terms

             (4)  If there are applicable agreement‑derived long service leave terms (see subsection (5)) in relation to an employee, the employee is entitled to long service leave in accordance with those terms.

             (5)  There are applicable agreement‑derived long service leave terms, in relation to an employee if:

                     (a)  an order under subsection (6) is in operation in relation to terms of an instrument; and

                     (b)  those terms of the instrument would have applied to the employee immediately before the commencement of this Part if the employee had, at that time, been in his or her current circumstances of employment; and

                     (c)  there are no applicable award‑derived long service leave terms in relation to the employee.

             (6)  If FWA is satisfied that:

                     (a)  any of the following instruments that was in operation immediately before the commencement of this Part contained terms entitling employees to long service leave:

                              (i)  an enterprise agreement;

                             (ii)  a collective agreement;

                            (iii)  a pre‑reform certified agreement;

                            (iv)  an old IR agreement; and

                     (b)  those terms constituted a long service leave scheme that was applying in more than one State or Territory; and

                     (c)  the scheme, considered on an overall basis, is no less beneficial to the employees than the long service leave entitlements that would otherwise apply in relation to the employees under State and Territory laws;

FWA may, on application by, or on behalf of, a person to whom the instrument applies, make an order that those terms of the instrument (and any terms that are ancillary or incidental to those terms) are applicable agreement‑derived long service leave terms.

References to instruments

             (7)  References in this section to a kind of instrument (other than an enterprise agreement) are references to a transitional instrument of that kind, as continued in existence by Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

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

             (1)  This section applies if:

                     (a)  an instrument (the first instrument) of one of the following kinds that came into operation before the commencement of this Part applies to an employee on or after the commencement of this Part:

                              (i)  an enterprise agreement;

                             (ii)  a workplace agreement;

                            (iii)  a workplace determination;

                            (iv)  a preserved State agreement;

                             (v)  an AWA;

                            (vi)  a pre‑reform certified agreement;

                           (vii)  a pre‑reform AWA;

                           (viii)  an old IR agreement;

                            (ix)  a section 170MX award; and

                     (b)  the instrument states that the employee is not entitled to long service leave; and

                     (c)  the instrument ceases, for whatever reason, to apply to the employee; and

                     (d)  immediately after the first instrument ceases to apply, an enterprise agreement (the replacement agreement) starts to apply to the employee.

             (2)  The replacement agreement may include terms to the effect that an employee’s service with the employer during a specified period (the excluded period) (being some or all of the period when the first instrument applied to the employee) does not count as service for the purpose of determining whether the employee is qualified for long service leave, or the amount of long service leave to which the employee is entitled, under this Division or under a law of a State or Territory.

             (3)  If the replacement agreement includes terms as permitted by subsection (2), the excluded period does not count, and never again counts, as service for the purpose of determining whether the employee is qualified for long service leave, or the amount of long service leave to which the employee is entitled, under this Division or under a law of a State or Territory, unless a later agreement provides otherwise. This subsection has effect despite sections 27 and 29.

             (4)  References in this section to a kind of instrument (other than an enterprise agreement) are references to a transitional instrument of that kind, as continued in existence by Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.


 

Division 10Public holidays

114  Entitlement to be absent from employment on public holiday

Employee entitled to be absent on public holiday

             (1)  An employee is entitled to be absent from his or her employment on a day or part‑day that is a public holiday in the place where the employee is based for work purposes.

Reasonable requests to work on public holidays

             (2)  However, an employer may request an employee to work on a public holiday if the request is reasonable.

             (3)  If an employer requests an employee to work on a public holiday, the employee may refuse the request if:

                     (a)  the request is not reasonable; or

                     (b)  the refusal is reasonable.

             (4)  In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:

                     (a)  the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;

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

                     (c)  whether the employee could reasonably expect that the employer might request work on the public holiday;

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

                     (e)  the type of employment of the employee (for example, whether full‑time, part‑time, casual or shiftwork);

                      (f)  the amount of notice in advance of the public holiday given by the employer when making the request;

                     (g)  in relation to the refusal of a request—the amount of notice in advance of the public holiday given by the employee when refusing the request;

                     (h)  any other relevant matter.

115  Meaning of public holiday

The public holidays

             (1)  The following are public holidays:

                     (a)  each of these days:

                              (i)  1 January (New Year’s Day);

                             (ii)  26 January (Australia Day);

                            (iii)  Good Friday;

                            (iv)  Easter Monday;

                             (v)  25 April (Anzac Day);

                            (vi)  the Queen’s birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory);

                           (vii)  25 December (Christmas Day);

                           (viii)  26 December (Boxing Day);

                     (b)  any other day, or part‑day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday, other than a day or part‑day, or a kind of day or part‑day, that is excluded by the regulations from counting as a public holiday.

Substituted public holidays under State or Territory laws

             (2)  If, under (or in accordance with a procedure under) a law of a State or Territory, a day or part‑day is substituted for a day or part‑day that would otherwise be a public holiday because of subsection (1), then the substituted day or part‑day is the public holiday.

Substituted public holidays under modern awards and enterprise agreements

             (3)  A modern award or enterprise agreement may include terms providing for an employer and employee to agree on the substitution of a day or part‑day for a day or part‑day that would otherwise be a public holiday because of subsection (1) or (2).

Substituted public holidays for award/agreement free employees

             (4)  An employer and an award/agreement free employee may agree on the substitution of a day or part‑day for a day or part‑day that would otherwise be a public holiday because of subsection (1) or (2).

Note:          This Act does not exclude State and Territory laws that deal with the declaration, prescription or substitution of public holidays, but it does exclude State and Territory laws that relate to the rights and obligations of an employee or employer in relation to public holidays (see paragraph 27(2)(j)).

116  Payment for absence on public holiday

                   If, in accordance with this Division, an employee is absent from his or her employment on a day or part‑day that is a public holiday, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part‑day.

Note:          If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part‑time employee whose part‑time hours do not include the day of the week on which the public holiday occurs.


 

Division 11Notice of termination and redundancy pay

Subdivision ANotice of termination or payment in lieu of notice

117  Requirement for notice of termination or payment in lieu

Notice specifying day of termination

             (1)  An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).

Note 1:       Section 123 describes situations in which this section does not apply.

Note 2:       Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:

(a)    delivering it personally; or

(b)    leaving it at the employee’s last known address; or

(c)    sending it by pre‑paid post to the employee’s last known address.

Amount of notice or payment in lieu of notice

             (2)  The employer must not terminate the employee’s employment unless:

                     (a)  the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or

                     (b)  the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.

             (3)  Work out the minimum period of notice as follows:

                     (a)  first, work out the period using the following table:

 

Period

 

Employee’s period of continuous service with the employer at the end of the day the notice is given

Period

1

Not more than 1 year

1 week

2

More than 1 year but not more than 3 years

2 weeks

3

More than 3 years but not more than 5 years

3 weeks

4

More than 5 years

4 weeks

 

                     (b)  then increase the period by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.

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

                   A modern award or enterprise agreement may include terms specifying the period of notice an employee must give in order to terminate his or her employment.

Subdivision BRedundancy pay

119  Redundancy pay

Entitlement to redundancy pay

             (1)  An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

                     (a)  at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

                     (b)  because of the insolvency or bankruptcy of the employer.

Note:          Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.

Amount of redundancy pay

             (2)  The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:

 

Redundancy pay period

 

Employee’s period of continuous service with the employer on termination

Redundancy pay period

1

At least 1 year but less than 2 years

4 weeks

2

At least 2 years but less than 3 years

6 weeks

3

At least 3 years but less than 4 years

7 weeks

4

At least 4 years but less than 5 years

8 weeks

5

At least 5 years but less than 6 years

10 weeks

6

At least 6 years but less than 7 years

11 weeks

7

At least 7 years but less than 8 years

13 weeks

8

At least 8 years but less than 9 years

14 weeks

9

At least 9 years but less than 10 years

16 weeks

10

At least 10 years

12 weeks

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

             (1)  This section applies if:

                     (a)  an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

                     (b)  the employer:

                              (i)  obtains other acceptable employment for the employee; or

                             (ii)  cannot pay the amount.

             (2)  On application by the employer, FWA may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that FWA considers appropriate.

             (3)  The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.

121  Exclusions from obligation to pay redundancy pay

             (1)  Section 119 does not apply to the termination of an employee’s employment if, immediately before the time of the termination, or at the time when the person was given notice of the termination as described in subsection 117(1) (whichever happened first):

                     (a)  the employee’s period of continuous service with the employer is less than 12 months; or

                     (b)  the employer is a small business employer.

             (2)  A modern award may include a term specifying other situations in which section 119 does not apply to the termination of an employee’s employment.

             (3)  If a modern award that is in operation includes such a term (the award term), an enterprise agreement may:

                     (a)  incorporate the award term by reference (and as in force from time to time) into the enterprise agreement; and

                     (b)  provide that the incorporated term covers some or all of the employees who are also covered by the award term.

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

Transfer of employment situation in which employer may decide not to recognise employee’s service with first employer

             (1)  Subsection 22(5) does not apply (for the purpose of this Subdivision) to a transfer of employment between non‑associated entities in relation to an employee if the second employer decides not to recognise the employee’s service with the first employer (for the purpose of this Subdivision).

Employee is not entitled to redundancy pay if service with first employer counts as service with second employer

             (2)  If subsection 22(5) applies (for the purpose of this Subdivision) to a transfer of employment in relation to an employee, the employee is not entitled to redundancy pay under section 119 in relation to the termination of his or her employment with the first employer.

Note:          Subsection 22(5) provides that, generally, if there is a transfer of employment, service with the first employer counts as service with the second employer.

Employee not entitled to redundancy pay if refuses employment in certain circumstances

             (3)  An employee is not entitled to redundancy pay under section 119 in relation to the termination of his or her employment with an employer (the first employer) if:

                     (a)  the employee rejects an offer of employment made by another employer (the second employer) that:

                              (i)  is on terms and conditions substantially similar to, and, considered on an overall basis, no less favourable than, the employee’s terms and conditions of employment with the first employer immediately before the termination; and

                             (ii)  recognises the employee’s service with the first employer, for the purpose of this Subdivision; and

                     (b)  had the employee accepted the offer, there would have been a transfer of employment in relation to the employee.

             (4)  If FWA is satisfied that subsection (3) operates unfairly to the employee, FWA may order the first employer to pay the employee a specified amount of redundancy pay (not exceeding the amount that would be payable but for subsection (3)) that FWA considers appropriate. The first employer must pay the employee that amount of redundancy pay.

Subdivision CLimits on scope of this Division

123  Limits on scope of this Division

Employees not covered by this Division

             (1)  This Division does not apply to any of the following employees:

                     (a)  an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;

                     (b)  an employee whose employment is terminated because of serious misconduct;

                     (c)  a casual employee;

                     (d)  an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement;

                     (e)  an employee prescribed by the regulations as an employee to whom this Division does not apply.

             (2)  Paragraph (1)(a) does not prevent this Division from applying to an employee if a substantial reason for employing the employee as described in that paragraph was to avoid the application of this Division.

Other employees not covered by notice of termination provisions

             (3)  Subdivision A does not apply to:

                     (b)  a daily hire employee working in the building and construction industry (including working in connection with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or structures); or

                     (c)  a daily hire employee working in the meat industry in connection with the slaughter of livestock; or

                     (d)  a weekly hire employee working in connection with the meat industry and whose termination of employment is determined solely by seasonal factors; or

                     (e)  an employee prescribed by the regulations as an employee to whom that Subdivision does not apply.

Other employees not covered by redundancy pay provisions

             (4)  Subdivision B does not apply to:

                     (a)  an employee who is an apprentice; or

                     (b)  an employee to whom an industry‑specific redundancy scheme in a modern award applies; or

                     (c)  an employee to whom a redundancy scheme in an enterprise agreement applies if:

                              (i)  the scheme is an industry‑specific redundancy scheme that is incorporated by reference (and as in force from time to time) into the enterprise agreement from a modern award that is in operation; and

                             (ii)  the employee is covered by the industry‑specific redundancy scheme in the modern award; or

                     (d)  an employee prescribed by the regulations as an employee to whom that Subdivision does not apply.


 

Division 12Fair Work Information Statement

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

             (1)  The Fair Work Ombudsman must prepare a Fair Work Information Statement. The Fair Work Ombudsman must publish the Statement in the Gazette.

Note:          If the Fair Work Ombudsman changes the Statement, the Fair Work Ombudsman must publish the new version of the Statement in the Gazette.

             (2)  The Statement must contain information about the following:

                     (a)  the National Employment Standards;

                     (b)  modern awards;

                     (c)  agreement‑making under this Act;

                     (d)  the right to freedom of association;

                     (e)  the role of FWA and the Fair Work Ombudsman;

                      (f)  termination of employment;

                     (g)  individual flexibility arrangements;

                     (h)  right of entry (including the protection of personal information by privacy laws).

             (3)  The Fair Work Information Statement is not a legislative instrument.

             (4)  The regulations may prescribe other matters relating to the content or form of the Statement, or the manner in which employers may give the Statement to employees.

125  Giving new employees the Fair Work Information Statement

             (1)  An employer must give each employee the Fair Work Information Statement before, or as soon as practicable after, the employee starts employment.

             (2)  Subsection (1) does not require the employer to give the employee the Statement more than once in any 12 months.

Note:          This is relevant if the employer employs the employee more than once in the 12 months.


 

Division 13Miscellaneous

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

                   A modern award or enterprise agreement may provide for school‑based apprentices or school‑based trainees to be paid loadings in lieu of any of the following:

                     (a)  paid annual leave;

                     (b)  paid personal/carer’s leave;

                     (c)  paid absence under Division 10 (which deals with public holidays).

Note:       Section 199 affects whether FWA may approve an enterprise agreement covering an employee who is a school‑based apprentice or school‑based trainee, if the employee is covered by a modern award that is in operation and provides for the employee to be paid loadings in lieu of paid annual leave, paid personal/carer’s leave or paid absence under Division 10.

127  Regulations about what modern awards and enterprise agreements can do

                   The regulations may:

                     (a)  permit modern awards or enterprise agreements or both to include terms that would or might otherwise be contrary to this Part or section 55 (which deals with the interaction between the National Employment Standards and a modern award or enterprise agreement); or

                     (b)  prohibit modern awards or enterprise agreements or both from including terms that would or might otherwise be permitted by a provision of this Part or section 55.

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

                   The National Employment Standards have effect subject to:

                     (a)  an agreement between an employer and an award/agreement free employee or a requirement made by an employer of an award/agreement free employee, that is expressly permitted by a provision of this Part; or

                     (b)  an agreement between an employer and an award/agreement free employee that is expressly permitted by regulations made for the purpose of section 129.

Note 1:       In determining what matters are permitted to be agreed or required under paragraph (a), any regulations made for the purpose of section 129 that expressly prohibit certain agreements or requirements must be taken into account.

Note 2:       See also the note to section 64 (which deals with the effect of averaging arrangements).

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

                   The regulations may:

                     (a)  permit employers, and award/agreement free employees, to agree on matters that would or might otherwise be contrary to this Part; or

                     (b)  prohibit employers and award/agreement free employees from agreeing on matters, or prohibit employers from making requirements of such employees, that would or might otherwise be permitted by a provision of this Part.

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

             (1)  An employee is not entitled to take or accrue any leave or absence (whether paid or unpaid) under this Part during a period (a compensation period) when the employee is absent from work because of a personal illness, or a personal injury, for which the employee is receiving compensation payable under a law (a compensation law) of the Commonwealth, a State or a Territory that is about workers’ compensation.

             (2)  Subsection (1) does not prevent an employee from taking or accruing leave during a compensation period if the taking or accruing of the leave is permitted by a compensation law.

             (3)  Subsection (1) does not prevent an employee from taking unpaid parental leave during a compensation period.

131  Relationship with other Commonwealth laws

                   This Part establishes minimum standards and so is intended to supplement, and not to override, entitlements under other laws of the Commonwealth.


 

Part 2‑3Modern awards

Division 1Introduction

132  Guide to this Part

This Part provides for FWA to make, vary and revoke modern awards. Modern awards may set minimum terms and conditions for national system employees in particular industries or occupations. Modern awards can have terms that are ancillary or supplementary to the National Employment Standards (see Part 2‑1).

Division 2 provides for the modern awards objective. This requires FWA to ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account certain social and economic factors. Division 2 also contains special provisions about modern award minimum wages.

Division 3 deals with the terms of modern awards.

Division 4 provides for FWA to conduct 4 yearly reviews of modern awards.

Division 5 provides for FWA to exercise modern award powers outside the system of 4 yearly reviews in certain circumstances.

Division 6 contains some general provisions relating to modern award powers.

The obligation to comply with a modern award is in section 45 (in Part 2‑1).

In relation to minimum wages in modern awards, FWA has powers both under this Part and under Part 2‑6 (which deals with minimum wages). The following is a summary of FWA’s powers under the 2 Parts:

(a)   the initial making of a modern award setting modern award minimum wages can only occur under this Part;

(b)   the main power to vary modern award minimum wages is in annual wage reviews under Part 2‑6;

(c)   modern award minimum wages can also be varied under this Part, but only for work value reasons or in other limited circumstances;

(d)   modern award minimum wages can be set (otherwise than in the initial making of a modern award) or revoked either under this Part or in annual wage reviews under Part 2‑6.

133  Meanings of employee and employer

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


 

Division 2Overarching provisions

134  The modern awards objective

What is the modern awards objective?

             (1)  FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

                     (a)  relative living standards and the needs of the low paid; and

                     (b)  the need to encourage collective bargaining; and

                     (c)  the need to promote social inclusion through increased workforce participation; and

                     (d)  the need to promote flexible modern work practices and the efficient and productive performance of work; and

                     (e)  the principle of equal remuneration for work of equal or comparable value; and

                      (f)  the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

                     (g)  the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

                     (h)  the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

             (2)  The modern awards objective applies to the performance or exercise of FWA’s modern award powers, which are:

                     (a)  FWA’s functions or powers under this Part; and

                     (b)  FWA’s functions or powers under Part 2‑6, so far as they relate to modern award minimum wages.

Note:          FWA must also take into account the objects of this Act and any other applicable provisions. For example, if FWA is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).

135  Special provisions relating to modern award minimum wages

             (1)  Modern award minimum wages cannot be varied under this Part except as follows:

                     (a)  modern award minimum wages can be varied if FWA is satisfied that the variation is justified by work value reasons (see subsections 156(3) and 157(2));

                     (b)  modern award minimum wages can be varied under section 160 (which deals with variation to remove ambiguities or correct errors) or section 161 (which deals with variation on referral by HREOC).

Note 1:       The main power to vary modern award minimum wages is in annual wage reviews under Part 2‑6. Modern award minimum wages can also be set or revoked in annual wage reviews.

Note 2:       For the meanings of modern award minimum wages, and setting and varying such wages, see section 284.

             (2)  In exercising its powers under this Part to set, vary or revoke modern award minimum wages, FWA must take into account the rate of the national minimum wage as currently set in a national minimum wage order.


 

Division 3Terms of modern awards

Subdivision APreliminary

136  What can be included in modern awards

Terms that may or must be included

             (1)  A modern award must only include terms that are permitted or required by:

                     (a)  Subdivision B (which deals with terms that may be included in modern awards); or

                     (b)  Subdivision C (which deals with terms that must be included in modern awards); or

                     (c)  section 55 (which deals with interaction between the National Employment Standards and a modern award or enterprise agreement); or

                     (d)  Part 2‑2 (which deals with the National Employment Standards).

Note 1:       Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards.

Note 2:       Part 2‑2 includes a number of provisions permitting inclusion of terms about particular matters.

Terms that must not be included

             (2)  A modern award must not include terms that contravene:

                     (a)  Subdivision D (which deals with terms that must not be included in modern awards); or

                     (b)  section 55 (which deals with the interaction between the National Employment Standards and a modern award or enterprise agreement).

Note:          The provisions referred to in subsection (2) limit the terms that can be included in modern awards under the provisions referred to in subsection (1).

137  Terms that contravene section 136 have no effect

                   A term of a modern award has no effect to the extent that it contravenes section 136.

138  Achieving the modern awards objective

                   A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.

Subdivision BTerms that may be included in modern awards

139  Terms that may be included in modern awards—general

             (1)  A modern award may include terms about any of the following matters:

                     (a)  minimum wages (including wage rates for junior employees, employees with a disability and employees to whom training arrangements apply), and:

                              (i)  skill‑based classifications and career structures; and

                             (ii)  incentive‑based payments, piece rates and bonuses;

                     (b)  type of employment, such as full‑time employment, casual employment, regular part‑time employment and shift work, and the facilitation of flexible working arrangements, particularly for employees with family responsibilities;

                     (c)  arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours;

                     (d)  overtime rates;

                     (e)  penalty rates, including for any of the following:

                              (i)  employees working unsocial, irregular or unpredictable hours;

                             (ii)  employees working on weekends or public holidays;

                            (iii)  shift workers;

                      (f)  annualised wage arrangements that:

                              (i)  have regard to the patterns of work in an occupation, industry or enterprise; and

                             (ii)  provide an alternative to the separate payment of wages and other monetary entitlements; and

                            (iii)  include appropriate safeguards to ensure that individual employees are not disadvantaged;

                     (g)  allowances, including for any of the following:

                              (i)  expenses incurred in the course of employment;

                             (ii)  responsibilities or skills that are not taken into account in rates of pay;

                            (iii)  disabilities associated with the performance of particular tasks or work in particular conditions or locations;

                     (h)  leave, leave loadings and arrangements for taking leave;

                      (i)  superannuation;

                      (j)  procedures for consultation, representation and dispute settlement.

             (2)  Any allowance included in a modern award must be separately and clearly identified in the award.

140  Outworker terms

             (1)  A modern award may include either or both of the following:

                     (a)  terms relating to the conditions under which an employer may employ employees who are outworkers;

                     (b)  terms relating to the conditions under which an outworker entity may arrange for work to be performed for the entity (either directly or indirectly), if the work is of a kind that is often performed by outworkers.

             (2)  Without limiting subsection (1), terms referred to in that subsection may include terms relating to the pay or conditions of outworkers.

             (3)  The following terms of a modern award are outworker terms:

                     (a)  terms referred to in subsection (1);

                     (b)  terms that are incidental to terms referred to in subsection (1), included in the modern award under subsection 142(1);

                     (c)  machinery terms in relation to terms referred to in subsection (1), included in the modern award under subsection 142(2).

141  Industry‑specific redundancy schemes

When can a modern award include an industry‑specific redundancy scheme?

             (1)  A modern award may include an industry‑specific redundancy scheme if the scheme was included in the award:

                     (a)  in the award modernisation process; or

                     (b)  in accordance with subsection (2).

Note:          An employee to whom an industry‑specific redundancy scheme in a modern award applies is not entitled to the redundancy entitlements in Subdivision B of Division 11 of Part 2‑2.

Coverage of industry‑specific redundancy schemes must not be extended

             (2)  If:

                     (a)  a modern award includes an industry‑specific redundancy scheme; and

                     (b)  FWA is making or varying another modern award under Division 4 or 5 so that it (rather than the modern award referred to in paragraph (a)) will cover some or all of the classes of employees who are covered by the scheme;

FWA may include the scheme in that other modern award. However, FWA must not extend the coverage of the scheme to classes of employees that it did not previously cover.

Varying industry‑specific redundancy schemes

             (3)  FWA may only vary an industry‑specific redundancy scheme in a modern award under Division 4 or 5:

                     (a)  by varying the amount of any redundancy payment in the scheme; or

                     (b)  in accordance with a provision of Subdivision B of Division 5 (which deals with varying modern awards in some limited situations).

             (4)  In varying an industry‑specific redundancy scheme as referred to in subsection (3), FWA:

                     (a)  must not extend the coverage of the scheme to classes of employees that it did not previously cover; and

                     (b)  must retain the industry‑specific character of the scheme.

Omitting industry‑specific redundancy schemes

             (5)  FWA may vary a modern award under Division 4 or 5 by omitting an industry‑specific redundancy scheme from the award.

142  Incidental and machinery terms

Incidental terms

             (1)  A modern award may include terms that are:

                     (a)  incidental to a term that is permitted or required to be in the modern award; and

                     (b)  essential for the purpose of making a particular term operate in a practical way.

Machinery terms

             (2)  A modern award may include machinery terms, including formal matters (such as a title, date or table of contents).

 Subdivision CTerms that must be included in modern awards

143  Coverage terms

Coverage terms must be included

             (1)  A modern award must include terms (coverage terms) setting out the employers, employees, organisations and outworker entities that are covered by the award, in accordance with this section.

Employers and employees

             (2)  A modern award must be expressed to cover:

                     (a)  specified employers; and

                     (b)  specified employees of employers covered by the modern award.

Organisations

             (3)  A modern award may be expressed to cover one or more specified organisations, in relation to all or specified employees or employers that are covered by the award.

Outworker entities

             (4)  A modern award may be expressed to cover, but only in relation to outworker terms included in the award, specified outworker entities.

How coverage is expressed

             (5)  For the purposes of subsections (2) to (4):

                     (a)  employers may be specified by name or by inclusion in a specified class or specified classes; and

                     (b)  employees must be specified by inclusion in a specified class or specified classes; and

                     (c)  organisations must be specified by name; and

                     (d)  outworker entities may be specified by name or by inclusion in a specified class or specified classes.

             (6)  Without limiting the way in which a class may be described for the purposes of subsection (5), the class may be described by reference to a particular industry or part of an industry, or particular kinds of work.

Employees not traditionally covered by awards etc.

             (7)  A modern award must not be expressed to cover classes of employees:

                     (a)  who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or

                     (b)  who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.

Note:          For example, in some industries, managerial employees have traditionally not been covered by awards.

144  Flexibility terms

Flexibility terms must be included

             (1)  A modern award must include a term (a flexibility term) enabling an employee and his or her employer to agree on an arrangement (an individual flexibility arrangement) varying the effect of the award in relation to the employee and the employer, in order to meet the genuine needs of the employee and employer.

Effect of individual flexibility arrangements

             (2)  If an employee and employer agree to an individual flexibility arrangement under a flexibility term in a modern award:

                     (a)  the modern award has effect in relation to the employee and the employer as if it were varied by the flexibility arrangement; and

                     (b)  the arrangement is taken, for the purposes of this Act, to be a term of the modern award.

             (3)  To avoid doubt, the individual flexibility arrangement does not change the effect the modern award has in relation to the employer and any other employee.

Requirements for flexibility terms

             (4)  The flexibility term must:

                     (a)  identify the terms of the modern award the effect of which may be varied by an individual flexibility arrangement; and

                     (b)  require that the employee and the employer genuinely agree to any individual flexibility arrangement; and

                     (c)  require the employer to ensure that any individual flexibility arrangement must result in the employee being better off overall than the employee would have been if no individual flexibility arrangement were agreed to; and

                     (d)  set out how any flexibility arrangement may be terminated by the employee or the employer; and

                     (e)  require the employer to ensure that any individual flexibility arrangement must be in writing and signed:

                              (i)  in all cases—by the employee and the employer; and

                             (ii)  if the employee is under 18—by a parent or guardian of the employee; and

                      (f)  require the employer to ensure that a copy of any individual flexibility arrangement must be given to the employee.

             (5)  Except as required by subparagraph (4)(e)(ii), the flexibility term must not require that any individual flexibility arrangement agreed to by an employer and employee under the term must be approved, or consented to, by another person.

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

Application of this section

             (1)  This section applies if:

                     (a)  an employee and employer agree to an arrangement that purports to be an individual flexibility arrangement under a flexibility term in a modern award; and

                     (b)  the arrangement does not meet a requirement set out in section 144.

Note:          A failure to meet such a requirement may be a contravention of a provision of Part 3‑1 (which deals with general protections).

Arrangement has effect as if it were an individual flexibility arrangement

             (2)  The arrangement has effect as if it were an individual flexibility arrangement.

Employer contravenes flexibility term in specified circumstances

             (3)  If subsection 144(4) requires the employer to ensure that the arrangement meets the requirement, the employer contravenes the flexibility term of the award.

Flexibility arrangement may be terminated by agreement or notice

             (4)  The flexibility term is taken to provide (in addition to any other means of termination of the arrangement that the term provides) that the arrangement can be terminated:

                     (a)  by either the employee, or the employer, giving written notice of not more than 28 days; or

                     (b)  by the employee and the employer at any time if they agree, in writing, to the termination.

146  Terms about settling disputes

                   Without limiting paragraph 139(1)(j), a modern award must include a term that provides a procedure for settling disputes:

                     (a)  about any matters arising under the award; and

                     (b)  in relation to the National Employment Standards.

Note:          FWA or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).

147  Ordinary hours of work

                   A modern award must include terms specifying, or providing for the determination of, the ordinary hours of work for each classification of employee covered by the award and each type of employment permitted by the award.

Note:          An employee’s ordinary hours of work are significant in determining the employee’s entitlements under the National Employment Standards.

148  Base and full rates of pay for pieceworkers

                   If a modern award defines or describes employees covered by the award as pieceworkers, the award must include terms specifying, or providing for the determination of, base and full rates of pay for those employees for the purposes of the National Employment Standards.

Note:          An employee’s base and full rates of pay are significant in determining the employee’s entitlements under the National Employment Standards.

149  Automatic variation of allowances

                   If a modern award includes allowances that FWA considers are of a kind that should be varied when wage rates in the award are varied, the award must include terms providing for the automatic variation of those allowances when wage rates in the award are varied.

Subdivision DTerms that must not be included in modern awards

150  Objectionable terms

                   A modern award must not include an objectionable term.

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

                   A modern award must not include a term that has no effect because of subsection 326(1) (which deals with unreasonable payments and deductions for the benefit of an employer) or subsection 326(3) (which deals with unreasonable requirements to spend an amount).

152  Terms about right of entry

                   A modern award must not include terms that require or authorise an official of an organisation to enter premises:

                     (a)  to hold discussions with, or interview, an employee; or

                     (b)  to inspect any work, process or object.

153  Terms that are discriminatory

Discriminatory terms must not be included

             (1)  A modern award must not include terms that discriminate against an employee because of, or for reasons including, the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Certain terms are not discriminatory

             (2)  A term of a modern award does not discriminate against an employee:

                     (a)  if the reason for the discrimination is the inherent requirements of the particular position held by the employee; or

                     (b)  merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

                              (i)  in good faith; and

                             (ii)  to avoid injury to the religious susceptibilities of adherents of that religion or creed.

             (3)  A term of a modern award does not discriminate against an employee merely because it provides for minimum wages for:

                     (a)  all junior employees, or a class of junior employees; or

                     (b)  all employees with a disability, or a class of employees with a disability; or

                     (c)  all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.

154  Terms that contain State‑based differences

General rule—State‑based difference terms must not be included

             (1)  A modern award must not include terms and conditions of employment (State‑based difference terms) that:

                     (a)  are determined by reference to State or Territory boundaries; or

                     (b)  are expressed to operate in one or more, but not every, State and Territory.

When State‑based difference terms may be included

             (2)  However, a modern award may include State‑based difference terms if the terms were included in the award:

                     (a)  in the award modernisation process; or

                     (b)  in accordance with subsection (3);

but only for up to 5 years starting on the day on which the first modern award that included those terms came into operation.

             (3)  If:

                     (a)  a modern award includes State‑based difference terms as permitted under subsection (2); and

                     (b)  FWA is making or varying another modern award so that it (rather than the modern award referred to in paragraph (a)) will cover some or all of the classes of employees who are covered by those terms;

FWA may include those terms in that other modern award. However, FWA must not extend the coverage of those terms to classes of employees that they did not previously cover.

155  Terms dealing with long service leave

                   A modern award must not include terms dealing with long service leave.


 

Division 44 yearly reviews of modern awards

156  4 yearly reviews of modern awards to be conducted

Timing of 4 yearly reviews

             (1)  FWA must conduct a 4 yearly review of modern awards starting as soon as practicable after each 4th anniversary of the commencement of this Part.

Note 1:       FWA must be constituted by a Full Bench to conduct 4 yearly reviews of modern awards, and to make determinations and modern awards in those reviews (see subsections 616(1), (2) and (3)).

Note 2:       The President may give directions about the conduct of 4 yearly reviews of modern awards (see section 582).

What has to be done in a 4 yearly review?

             (2)  In a 4 yearly review of modern awards, FWA:

                     (a)  must review all modern awards; and

                     (b)  may make:

                              (i)  one or more determinations varying modern awards; and

                             (ii)  one or more modern awards; and

                            (iii)  one or more determinations revoking modern awards.

Note:          Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).

Variation of modern award minimum wages must be justified by work value reasons

             (3)  In a 4 yearly review of modern awards, FWA may make a determination varying modern award minimum wages only if FWA is satisfied that the variation of modern award minimum wages is justified by work value reasons.

             (4)  Work value reasons are reasons justifying the amount that employees should be paid for doing a particular kind of work, being reasons related to any of the following:

                     (a)  the nature of the work;

                     (b)  the level of skill or responsibility involved in doing the work;

                     (c)  the conditions under which the work is done.

Each modern award to be reviewed in its own right

             (5)  A 4 yearly review of modern awards must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at the same time.


 

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

Subdivision AExercise of powers if necessary to achieve modern awards objective

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

             (1)  FWA may:

                     (a)  make a determination varying a modern award, otherwise than to vary modern award minimum wages; or

                     (b)  make a modern award; or

                     (c)  make a determination revoking a modern award;

if FWA is satisfied that making the determination or modern award outside the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective.

Note 1:       FWA must be constituted by a Full Bench to make a modern award (see subsection 616(1)).

Note 2:       Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).

Note 3:       If FWA is setting modern award minimum wages, the minimum wages objective also applies (see section 284).

             (2)  FWA may make a determination varying modern award minimum wages if FWA is satisfied that:

                     (a)  the variation of modern award minimum wages is justified by work value reasons; and

                     (b)  making the determination outside the system of annual wage reviews and the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective.

Note:          As FWA is varying modern award minimum wages, the minimum wages objective also applies (see section 284).

             (3)  FWA may make a determination or modern award under this section:

                     (a)  on its own initiative; or

                     (b)  on application under section 158.

158  Applications to vary, revoke or make modern award

             (1)  The following table sets out who may apply for the making of a determination varying or revoking a modern award, or for the making of a modern award, under section 157:

 

Who may make an application?

Item

Column 1

This kind of application …

Column 2

may be made by …

1

an application to vary, omit or include terms (other than outworker terms or coverage terms) in a modern award

(a) an employer, employee or organisation that is covered by the modern award; or

(b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award.

2

an application to vary, omit or include outworker terms in a modern award

(a) an employer, employee or outworker entity that is or would be covered by the outworker terms; or

(b) an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker terms relate or would relate.

3

an application to vary or include coverage terms in a modern award to increase the range of employers, employees or organisations that are covered by the award

(a) an employer, employee or organisation that would become covered by the modern award; or

(b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that would become covered by the modern award.

4

an application to vary or include coverage terms in a modern award to increase the range of outworker entities that are covered by outworker terms

(a) an outworker entity that would become covered by the outworker terms; or

(b) an organisation that is entitled to represent the industrial interests of one or more outworkers who would become outworkers to whom the outworker terms relate.

5

an application to vary or omit coverage terms in a modern award to reduce the range of employers, employees or organisations that are covered by the award

(a) an employer, employee or organisation that would stop being covered by the modern award; or

(b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that would stop being covered by the modern award.

6

an application to vary or omit coverage terms in a modern award to reduce the range of outworker entities that are covered by outworker terms

(a) an outworker entity that would stop being covered by the outworker terms; or

(b) an organisation that is entitled to represent the industrial interests of one or more outworkers who would stop being outworkers to whom the outworker terms relate.

7

an application for the making of a modern award

(a) an employee or employer that would be covered by the modern award; or

(b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that would be covered by the modern award.

8

an application to revoke a modern award

(a) an employer, employee or organisation that is covered by the modern award; or

(b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award.

             (2)  Subject to the requirements of the table about who can make what kind of application, an applicant may make applications for 2 or more related things at the same time.

Note:          For example, an applicant may apply for the making of a modern award and for the related revocation of an existing modern award.

Subdivision BOther situations

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

             (1)  FWA may make a determination varying a modern award:

                     (a)  to reflect a change in the name of an employer, organisation or outworker entity; or

                     (b)  to omit the name of an organisation, employer or outworker entity from the modern award, if:

                              (i)  the registration of the organisation has been cancelled under the Workplace Relations Act 1996; or

                             (ii)  the employer, organisation or outworker entity has ceased to exist; or

                     (c)  if the modern award is a named employer award and the named employer is the old employer in a transfer of business—to reflect the transfer of business to the new employer.

             (2)  FWA may make a determination under this section:

                     (a)  in any case—on its own initiative; or

                     (b)  if paragraph (1)(a) or (b) applies—on application by the employer, organisation or outworker entity referred to in that paragraph; or

                     (c)  if paragraph (1)(c) applies—on application by:

                              (i)  the old employer or the new employer; or

                             (ii)  a transferring employee who was covered by the modern award as an employee of the old employer; or

                            (iii)  an organisation that is entitled to represent the industrial interests of the old employer, the new employer, or one or more employees referred to in subparagraph (ii).

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

             (1)  FWA may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.

             (2)  FWA may make the determination:

                     (a)  on its own initiative; or

                     (b)  on application by an employer, employee, organisation or outworker entity that is covered by the modern award.

161  Variation of modern award on referral by HREOC

             (1)  FWA must review a modern award if the award is referred to it under section 46PW of the Human Rights and Equal Opportunity Commission Act 1986 (which deals with discriminatory industrial instruments).

             (2)  The Sex Discrimination Commissioner is entitled to make submissions to FWA for consideration in the review.

             (3)  If FWA considers that the modern award reviewed requires a person to do an act that would be unlawful under Part II of the Sex Discrimination Act 1984 (but for the fact that the act would be done in direct compliance with the modern award), FWA must make a determination varying the modern award so that it no longer requires the person to do an act that would be so unlawful.

Note:          Special criteria apply to changing coverage of modern awards (see section 163).


 

Division 6General provisions relating to modern award powers

162  General

                   This Division contains some specific provisions relevant to the exercise of modern award powers. For other provisions relevant to the exercise of modern award powers, see the general provisions about FWA’s processes in Part 5‑1.

Note:          Relevant provisions of Part 5‑1 include the following:

(a)    section 582 (which deals with the President’s power to give directions);

(b)    section 590 (which deals with FWA’s discretion to inform itself as it considers appropriate, including by commissioning research);

(c)    section 596 (which deals with being represented in a matter before FWA);

(d)    section 601 (which deals with writing and publication requirements).

163  Special criteria relating to changing coverage of modern awards

Special rule about reducing coverage

             (1)  FWA must not make a determination varying a modern award so that certain employers or employees stop being covered by the award unless FWA is satisfied that they will instead become covered by another modern award (other than the miscellaneous modern award) that is appropriate for them.

Special rule about making a modern award

             (2)  FWA must not make a modern award covering certain employers or employees unless FWA has considered whether it should, instead, make a determination varying an existing modern award to cover them.

Special rule about covering organisations

             (3)  FWA must not make a modern award, or make a determination varying a modern award, so that an organisation becomes covered by the award, unless the organisation is entitled to represent the industrial interests of one or more employers or employees who are or will be covered by the award.

The miscellaneous modern award

             (4)  The miscellaneous modern award is the modern award that is expressed to cover employees who are not covered by any other modern award.

164  Special criteria for revoking modern awards

                   FWA must not make a determination revoking a modern award unless FWA is satisfied that:

                     (a)  the award is obsolete or no longer capable of operating; or

                     (b)  all the employees covered by the award are covered by a different modern award (other than the miscellaneous modern award) that is appropriate for them, or will be so covered when the revocation comes into operation.

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

Determinations come into operation on specified day

             (1)  A determination under this Part that varies a modern award (other than a determination that sets, varies or revokes modern award minimum wages) comes into operation on the day specified in the determination.

Note 1:       For when a modern award, or a revocation of a modern award, comes into operation, see section 49.

Note:          For when a determination under this Part setting, varying or revoking modern award minimum wages comes into operation, see section 166.

             (2)  The specified day must not be earlier than the day on which the determination is made, unless:

                     (a)  the determination is made under section 160 (which deals with variation to remove ambiguities or correct errors); and

                     (b)  FWA is satisfied that there are exceptional circumstances that justify specifying an earlier day.

Determinations take effect from first full pay period

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

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

Determinations generally come into operation on 1 July

             (1)  A determination under this Part that sets, varies or revokes modern award minimum wages comes into operation:

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

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

Note:          Modern award minimum wages can also be set, varied or revoked by determinations made in annual wage reviews. For when those determinations come into operation, see section 286.

FWA may specify another day of operation if appropriate

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

             (3)  The specified day must not be earlier than the day on which the determination is made, unless:

                     (a)  the determination is made under section 160 (which deals with variation to remove ambiguities or correct errors); and

                     (b)  FWA is satisfied that there are exceptional circumstances that justify specifying an earlier day.

Determinations may take effect in stages

             (4)  FWA may specify in the determination that changes to modern award minimum wages made by the determination take effect in stages if FWA is satisfied that it is appropriate to do so.

Determinations take effect from first full pay period

             (5)  A change to modern award minimum wages made by the determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after:

                     (a)  unless paragraph (b) applies—the day the determination comes into operation; or

                     (b)  if the determination takes effect in stages under subsection (4)—the day the change to modern award minimum wages is specified to take effect.

167  Special rules relating to retrospective variations of awards

Application of this section

             (1)  This section applies if a determination varying a modern award has a retrospective effect because it comes into operation under subsection 165(2) or 166(3) on a day before the day on which the determination is made.

No effect on past approval of enterprise agreement or variation

             (2)  If, before the determination was made, an enterprise agreement or a variation of an enterprise agreement was approved by FWA, the validity of the approval is not affected by the retrospective effect of the determination.

No creation of liability to pay pecuniary penalty for past conduct

             (3)  If:

                     (a)  a person engaged in conduct before the determination was made; and

                     (b)  but for the retrospective effect of the determination, the conduct would not have contravened a term of the modern award or an enterprise agreement;

a court must not order the person to pay a pecuniary penalty under Division 2 of Part 4‑1 in relation to the conduct, on the grounds that the conduct contravened a term of the modern award or enterprise agreement.

Note 1:       This subsection does not affect the powers of a court to make other kinds of orders under Division 2 of Part 4‑1.

Note 2:       A determination varying a modern award could result in a contravention of a term of an enterprise agreement because of the effect of subsection 206(2).

168  Varied modern award must be published

             (1)  If FWA makes a determination under this Part or Part 2‑6 (which deals with minimum wages) varying a modern award, FWA must publish the award as varied as soon as practicable.

             (2)  The publication may be on FWA’s website or by any other means that FWA considers appropriate.


 

Part 2‑4Enterprise agreements

Division 1Introduction

169  Guide to this Part

This Part is about enterprise agreements. An enterprise agreement is made at the enterprise level and provides terms and conditions for those national system employees to whom it applies. An enterprise agreement can have terms that are ancillary or supplementary to the National Employment Standards.

Division 2 deals with the making of enterprise agreements about permitted matters. An enterprise agreement (including a greenfields agreement) may be a single‑enterprise agreement or a multi‑enterprise agreement.

Division 3 deals with the right of employees to be represented by a bargaining representative during bargaining for a proposed enterprise agreement. It also sets out the persons who are bargaining representatives for such agreements.

Subdivision A of Division 4 deals with the approval of proposed enterprise agreements by employees and sets out when an enterprise agreement is made.

Subdivision B of Division 4 deals with the approval of enterprise agreements by FWA. The remaining Subdivisions of the Division deal with certain approval requirements, including in relation to genuine agreement by employees and the better off overall test.

Division 5 deals with the mandatory terms of enterprise agreements relating to individual flexibility arrangements and consultation requirements.

Division 6 deals with the base rate of pay under an enterprise agreement.

Division 7 deals with the variation and termination of enterprise agreements.

Division 8 provides for FWA to facilitate bargaining by making bargaining orders, serious breach declarations, majority support determinations and scope orders. It also permits bargaining representatives to apply for FWA to deal with bargaining disputes.

Division 9 provides for the making of low‑paid authorisations in relation to proposed multi‑enterprise agreements. The effect of such an authorisation is that specified employers are subject to certain rules that would not otherwise apply (for example, bargaining orders that would not usually be available for multi‑enterprise agreements will be available). It also permits FWA to assist the bargaining representatives for such agreements.

Division 10 deals with single interest employer authorisations. The effect of such an authorisation is that the employers specified in the authorisation are single interest employers in relation to a proposed enterprise agreement.

Division 11 deals with other matters relating to enterprise agreements.

170  Meanings of employee and employer

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

171  Objects of this Part

                   The objects of this Part are:

                     (a)  to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

                     (b)  to enable FWA to facilitate good faith bargaining and the making of enterprise agreements, including through:

                              (i)  making bargaining orders; and

                             (ii)  dealing with disputes where the bargaining representatives request assistance; and

                            (iii)  ensuring that applications to FWA for approval of enterprise agreements are dealt with without delay.


 

Division 2Employers and employees may make enterprise agreements

172  Making an enterprise agreement

Enterprise agreements may be made about permitted matters

             (1)  An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:

                     (a)  matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;

                     (b)  matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement;

                     (c)  deductions from wages for any purpose authorised by an employee who will be covered by the agreement;

                     (d)  how the agreement will operate.

Note 1:       For when an enterprise agreement covers an employer, employee or employee organisation, see section 53.

Note 2:       An employee organisation that was a bargaining representative for a proposed enterprise agreement will be covered by the agreement if the organisation notifies FWA under section 183 that it wants to be covered.

Single‑enterprise agreements

             (2)  An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single‑enterprise agreement):

                     (a)  with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

                     (b)  with one or more relevant employee organisations if:

                              (i)  the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and

                             (ii)  the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Note:          The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).

Multi‑enterprise agreements

             (3)  Two or more employers that are not all single interest employers may make an enterprise agreement (a multi‑enterprise agreement):

                     (a)  with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

                     (b)  with one or more relevant employee organisations if:

                              (i)  the agreement relates to a genuine new enterprise that the employers are establishing or propose to establish; and

                             (ii)  the employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Note:          The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).

Greenfields agreements

             (4)  A single‑enterprise agreement made as referred to in paragraph (2)(b), or a multi‑enterprise agreement made as referred to in paragraph (3)(b), is a greenfields agreement.

Single interest employers

             (5)  Two or more employers are single interest employers if:

                     (a)  the employers are engaged in a joint venture or common enterprise; or

                     (b)  the employers are related bodies corporate; or

                     (c)  the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.


 

Division 3Bargaining and representation during bargaining

173  Notice of employee representational rights

Employer to notify each employee of representational rights

             (1)  An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

                     (a)  will be covered by the agreement; and

                     (b)  is employed at the notification time for the agreement.

Note:          For the content of the notice, see section 174.

Notification time

             (2)  The notification time for a proposed enterprise agreement is the time when:

                     (a)  the employer agrees to bargain, or initiates bargaining, for the agreement; or

                     (b)  a majority support determination in relation to the agreement comes into operation; or

                     (c)  a scope order in relation to the agreement comes into operation; or

                     (d)  a low‑paid authorisation in relation to the agreement that specifies the employer comes into operation.

Note:          The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).

When notice must be given

             (3)  The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.

Notice need not be given in certain circumstances

             (4)  An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.

How notices are given

             (5)  The regulations may prescribe how notices under subsection (1) may be given.

174  Content of notice of employee representational rights

Application of this section

             (1)  This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee.

Content of notice—employee may appoint a bargaining representative

             (2)  The notice must specify that the employee may appoint a bargaining representative to represent the employee:

                     (a)  in bargaining for the agreement; and

                     (b)  in a matter before FWA that relates to bargaining for the agreement.

Content of notice—default bargaining representative

             (3)  If subsection (4) does not apply, the notice must explain that:

                     (a)  if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and

                     (b)  the employee does not appoint another person as his or her bargaining representative for the agreement;

the organisation will be the bargaining representative of the employee.

Content of notice—bargaining representative if a low‑paid authorisation is in operation

             (4)  If a low‑paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).

Content of notice—copy of instrument of appointment to be given

             (5)  The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).

Regulations may prescribe additional content and form requirements etc.

             (6)  The regulations may prescribe other matters relating to the content or form of the notice, or the manner in which employers may give the notice to employees.

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

Bargaining representatives

             (1)  The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

                     (a)  an employer that will be covered by the agreement is a bargaining representative for the agreement;

                     (b)  an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

                              (i)  the employee is a member of the organisation; and

                             (ii)  in the case where the agreement is a multi‑enterprise agreement in relation to which a low‑paid authorisation is in operation—the organisation applied for the authorisation;

                            unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or

                     (c)  a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

                     (d)  a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.

Bargaining representatives for a proposed multi‑enterprise agreement if a low‑paid authorisation is in operation

             (2)  If:

                     (a)  the proposed enterprise agreement is a multi‑enterprise agreement in relation to which a low‑paid authorisation is in operation; and

                     (b)  an employee organisation applied for the authorisation; and

                     (c)  but for this subsection, the organisation would not be a bargaining representative of an employee who will be covered by the agreement;

the organisation is taken to be a bargaining representative of such an employee unless:

                     (d)  the employee is a member of another employee organisation that also applied for the authorisation; or

                     (e)  the employee has appointed another person under paragraph (1)(c) as his or her bargaining representative for the agreement; or

                      (f)  the employee has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2).

Requirement relating to employee organisations

             (3)  Despite subsections (1) and (2), an employee organisation cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.

Employee may appoint himself or herself

             (4)  To avoid doubt, an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.

Note:          Section 228 sets out the good faith bargaining requirements. Applications may be made for bargaining orders that require bargaining representatives to meet the good faith bargaining requirements (see section 229).

178  Appointment of bargaining representatives—other matters

When appointment of a bargaining representative comes into force

             (1)  An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment.

Copies of instruments of appointment must be given

             (2)  A copy of an instrument of appointment of a bargaining representative for a proposed enterprise agreement must:

                     (a)  for an appointment made by an employee who will be covered by the agreement—be given to the employee’s employer; and

                     (b)  for an appointment made by an employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement—be given, on request, to a bargaining representative of an employee who will be covered by the agreement.

Regulations may prescribe matters relating to qualifications and appointment

             (3)  The regulations may prescribe matters relating to the qualifications or appointment of bargaining representatives.

178A  Revocation of appointment of bargaining representatives etc.

             (1)  The appointment of a bargaining representative for an enterprise agreement may be revoked by written instrument.

             (2)  If a person would, apart from this subsection, be a bargaining representative of an employee for an enterprise agreement because of the operation of paragraph 176(1)(b) or subsection 176(2) (which deal with employee organisations), the employee may, by written instrument, revoke the person’s status as the employee’s bargaining representative for the agreement.

             (3)  A copy of an instrument under subsection (1) or (2):

                     (a)  for an instrument made by an employee who will be covered by the agreement—must be given to the employee’s employer; and

                     (b)  for an instrument made by an employer that will be covered by a proposed enterprise agreement—must be given to the bargaining representative and, on request, to a bargaining representative of an employee who will be covered by the agreement.

             (4)  The regulations may prescribe matters relating to the content or form of the instrument of revocation, or the manner in which the copy of the instrument may be given.


 

Division 4Approval of enterprise agreements

Subdivision APre‑approval steps and applications for FWA approval

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

Pre‑approval requirements

             (1)  Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.

Employees must be given copy of the agreement etc.

             (2)  The employer must take all reasonable steps to ensure that:

                     (a)  during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

                              (i)  the written text of the agreement;

                             (ii)  any other material incorporated by reference in the agreement; or

                     (b)  the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.

             (3)  The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

                     (a)  the time and place at which the vote will occur;

                     (b)  the voting method that will be used.

             (4)  The access period for a proposed enterprise agreement is the 7‑day period ending immediately before the start of the voting process referred to in subsection 181(1).

Terms of the agreement must be explained to employees etc.

             (5)  The employer must take all reasonable steps to ensure that:

                     (a)  the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

                     (b)  the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

             (6)  Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:

                     (a)  employees from culturally and linguistically diverse backgrounds;

                     (b)  young employees;

                     (c)  employees who did not have a bargaining representative for the agreement.

181  Employers may request employees to approve a proposed enterprise agreement

             (1)  An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

             (2)  The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

             (3)  Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

182  When an enterprise agreement is made

Single‑enterprise agreement that is not a greenfields agreement

             (1)  If the employees of the employer, or each employer, that will be covered by a proposed single‑enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.

Multi‑enterprise agreement that is not a greenfields agreement

             (2)  If:

                     (a)  a proposed enterprise agreement is a multi‑enterprise agreement; and

                     (b)  the employees of each of the employers that will be covered by the agreement have been asked to approve the agreement under subsection 181(1); and

                     (c)  those employees have voted on whether or not to approve the agreement; and

                     (d)  a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement;

the agreement is made immediately after the end of the voting process referred to in subsection 181(1).

Greenfields agreement

             (3)  A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement).

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

             (1)  After an enterprise agreement that is not a greenfields agreement is made, an employee organisation that was a bargaining representative for the proposed enterprise agreement concerned may give FWA a written notice stating that the organisation wants the enterprise agreement to cover it.

             (2)  The notice must be given to FWA, and a copy given to each employer covered by the enterprise agreement, before FWA approves the agreement.

Note:          FWA must note in its decision to approve the enterprise agreement that the agreement covers the employee organisation (see subsection 201(2)).

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

Application of this section

             (1)  This section applies if:

                     (a)  a multi‑enterprise agreement is made; and

                     (b)  the agreement was not approved by the employees of all of the employers that made a request under subsection 181(1) in relation to the agreement.

Variation of agreement

             (2)  Before a bargaining representative applies under section 185 for approval of the agreement, the bargaining representative must vary the agreement so that the agreement is expressed to cover only the following:

                     (a)  each employer whose employees approved the agreement;

                     (b)  the employees of each of those employers.

             (3)  The bargaining representative who varies the agreement as referred to in subsection (2) must give written notice of the variation to all the other bargaining representatives for the agreement.

             (4)  The notice must specify the employers and employees that the agreement as varied covers.

             (5)  Subsection (3) does not require the bargaining representative to give a notice to a person if the bargaining representative does not know, or could not reasonably be expected to know, that the person is a bargaining representative for the agreement.

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

Application for approval

             (1)  If an enterprise agreement is made, a bargaining representative for the agreement must apply to FWA for approval of the agreement.

          (1A)  Despite subsection (1), if the agreement is a greenfields agreement, the application must be made by:

                     (a)  an employer covered by the agreement; or

                     (b)  a relevant employee organisation that is covered by the agreement.

Material to accompany the application

             (2)  The application must be accompanied by:

                     (a)  a signed copy of the agreement; and

                     (b)  any declarations that are required by the procedural rules to accompany the application.

When the application must be made

             (3)  If the agreement is not a greenfields agreement, the application must be made:

                     (a)  within 14 days after the agreement is made; or

                     (b)  if in all the circumstances FWA considers it fair to extend that period—within such further period as FWA allows.

             (4)  If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.

Signature requirements

             (5)  The regulations may prescribe requirements relating to the signing of enterprise agreements.

Subdivision BApproval of enterprise agreements by FWA

186  When FWA must approve an enterprise agreement—general requirements

Basic rule

             (1)  If an application for the approval of an enterprise agreement is made under section 185, FWA must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note:          FWA may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.

             (2)  FWA must be satisfied that:

                     (a)  if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and

                     (b)  if the agreement is a multi‑enterprise agreement:

                              (i)  the agreement has been genuinely agreed to by each employer covered by the agreement; and

                             (ii)  no person coerced, or threatened to coerce, any of the employers to make the agreement; and

                     (c)  the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

                     (d)  the agreement passes the better off overall test.

Note 1:       For when an enterprise agreement has been genuinely agreed to by employees, see section 188.

Note 2:       FWA may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).

Note 3:       The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).

Requirement that the group of employees covered by the agreement is fairly chosen

             (3)  FWA must be satisfied that the group of employees covered by the agreement was fairly chosen.

          (3A)  If the agreement does not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Requirement that there be no unlawful terms

             (4)  FWA must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).

Requirement that there be no designated outworker terms

          (4A)  FWA must be satisfied that the agreement does not include any designated outworker terms.

Requirement for a nominal expiry date etc.

             (5)  FWA must be satisfied that:

                     (a)  the agreement specifies a date as its nominal expiry date; and

                     (b)  the date will not be more than 4 years after the day on which FWA approves the agreement.

Requirement for a term about settling disputes

             (6)  FWA must be satisfied that the agreement includes a term:

                     (a)  that provides a procedure that requires or allows FWA, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

                              (i)  about any matters arising under the agreement; and

                             (ii)  in relation to the National Employment Standards; and

                     (b)  that allows for the representation of employees covered by the agreement for the purposes of that procedure.

Note 1:       FWA or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).

Note 2:       However, this does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4).

187  When FWA must approve an enterprise agreement—additional requirements

Additional requirements

             (1)  This section sets out additional requirements that must be met before FWA approves an enterprise agreement under section 186.

Requirement that approval not be inconsistent with good faith bargaining etc.

             (2)  FWA must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.

Requirement relating to notice of variation of agreement

             (3)  If a bargaining representative is required to vary the agreement as referred to in subsection 184(2), FWA must be satisfied that the bargaining representative has complied with that subsection and subsection 184(3) (which deals with giving notice of the variation).

Requirements relating to particular kinds of employees

             (4)  FWA must be satisfied as referred to in any provisions of Subdivision E of this Division that apply in relation to the agreement.

Note:          Subdivision E of this Division deals with approval requirements relating to particular kinds of employees.

Requirements relating to greenfields agreements

             (5)  If the agreement is a greenfields agreement, FWA must be satisfied that:

                     (a)  the relevant employee organisations that will be covered by the agreement are (taken as a group) entitled to represent the industrial interests of a majority of the employees who will be covered by the agreement, in relation to work to be performed under the agreement; and

                     (b)  it is in the public interest to approve the agreement.

188  When employees have genuinely agreed to an enterprise agreement

                   An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:

                     (a)  the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

                              (i)  subsections 180(2), (3) and (5) (which deal with pre‑approval steps);

                             (ii)  subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

                     (b)  the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

                     (c)  there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

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

Application of this section

             (1)  This section applies if:

                     (a)  FWA is not required to approve an enterprise agreement under section 186; and

                     (b)  the only reason for this is that FWA is not satisfied that the agreement passes the better off overall test.

Approval of agreement if not contrary to the public interest

             (2)  FWA may approve the agreement under this section if FWA is satisfied that, because of exceptional circumstances, the approval of the agreement would not be contrary to the public interest.

Note:          FWA may approve an enterprise agreement under this section with undertakings (see section 190).

             (3)  An example of a case in which FWA may be satisfied of the matter referred to in subsection (2) is where the agreement is part of a reasonable strategy to deal with a short‑term crisis in, and to assist in the revival of, the enterprise of an employer covered by the agreement.

Nominal expiry date

             (4)  The nominal expiry date of an enterprise agreement approved by FWA under this section is the earlier of the following:

                     (a)  the date specified in the agreement as the nominal expiry date of the agreement;

                     (b)  2 years after the day on which FWA approved the agreement.

190  FWA may approve an enterprise agreement with undertakings

Application of this section

             (1)  This section applies if:

                     (a)  an application for the approval of an enterprise agreement has been made under section 185; and

                     (b)  FWA has a concern that the agreement does not meet the requirements set out in sections 186 and 187.

Approval of agreement with undertakings

             (2)  FWA may approve the agreement under section 186 if FWA is satisfied that an undertaking accepted by FWA under subsection (3) of this section meets the concern.

Undertakings

             (3)  FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:

                     (a)  cause financial detriment to any employee covered by the agreement; or

                     (b)  result in substantial changes to the agreement.

FWA must seek views of bargaining representatives

             (4)  FWA must not accept an undertaking under subsection (3) unless FWA has sought the views of each person who FWA knows is a bargaining representative for the agreement.

Signature requirements

             (5)  The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.

191  Effect of undertakings

             (1)  If:

                     (a)  FWA approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement; and

                     (b)  the agreement covers a single employer;

the undertaking is taken to be a term of the agreement, as the agreement applies to the employer.

             (2)  If:

                     (a)  FWA approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement; and

                     (b)  the agreement covers 2 or more employers;

the undertaking is taken to be a term of the agreement, as the agreement applies to each employer that gave the undertaking.

192  When FWA may refuse to approve an enterprise agreement

             (1)  If an application for the approval of an enterprise agreement is made under section 185, FWA may refuse to approve the agreement if FWA considers that compliance with the terms of the agreement may result in:

                     (a)  a person committing an offence against a law of the Commonwealth; or

                     (b)  a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth.

             (2)  Subsection (1) has effect despite sections 186 and 189 (which deal with the approval of enterprise agreements).

             (3)  If FWA refuses to approve an enterprise agreement under this section, FWA may refer the agreement to any person or body FWA considers appropriate.

Subdivision CBetter off overall test

193  Passing the better off overall test

When a non‑greenfields agreement passes the better off overall test

             (1)  An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if FWA is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

FWA must disregard individual flexibility arrangement

             (2)  If, under the flexibility term in the relevant modern award, an individual flexibility arrangement has been agreed to by an award covered employee and his or her employer, FWA must disregard the individual flexibility arrangement for the purposes of determining whether the agreement passes the better off overall test.

When a greenfields agreement passes the better off overall test

             (3)  A greenfields agreement passes the better off overall test under this section if FWA is satisfied, as at the test time, that each prospective award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

Award covered employee

             (4)  An award covered employee for an enterprise agreement is an employee who:

                     (a)  is covered by the agreement; and

                     (b)  at the test time, is covered by a modern award (the relevant modern award) that:

                              (i)  is in operation; and

                             (ii)  covers the employee in relation to the work that he or she is to perform under the agreement; and

                            (iii)  covers his or her employer.

Prospective award covered employee

             (5)  A prospective award covered employee for an enterprise agreement is a person who, if he or she were an employee at the test time of an employer covered by the agreement:

                     (a)  would be covered by the agreement; and

                     (b)  would be covered by a modern award (the relevant modern award) that:

                              (i)  is in operation; and

                             (ii)  would cover the person in relation to the work that he or she would perform under the agreement; and

                            (iii)  covers the employer.

Test time

             (6)  The test time is the time the application for approval of the agreement by FWA was made under section 185.

FWA may assume employee better off overall in certain circumstances

             (7)  For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, FWA is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.

Subdivision DUnlawful terms

194  Meaning of unlawful term

                   A term of an enterprise agreement is an unlawful term if it is:

                     (a)  a discriminatory term; or

                     (b)  an objectionable term; or

                     (c)  if a particular employee would be protected from unfair dismissal under Part 3‑2 after completing a period of employment of at least the minimum employment period—a term that confers an entitlement or remedy in relation to a termination of the employee’s employment that is unfair (however described) before the employee has completed that period; or

                     (d)  a term that excludes the application to, or in relation to, a person of a provision of Part 3‑2 (which deals with unfair dismissal), or modifies the application of such a provision in a way that is detrimental to, or in relation to, a person; or

                     (e)  a term that is inconsistent with a provision of Part 3‑3 (which deals with industrial action); or

                      (f)  a term that provides for an entitlement:

                              (i)  to enter premises for a purpose referred to in section 481 (which deals with investigation of suspected contraventions); or

                             (ii)  to enter premises to hold discussions of a kind referred to in section 484;

                            other than in accordance with Part 3‑4 (which deals with right of entry); or

                     (g)  a term that provides for the exercise of a State or Territory OHS right other than in accordance with Part 3‑4 (which deals with right of entry).

195  Meaning of discriminatory term

Discriminatory term

             (1)  A term of an enterprise agreement is a discriminatory term to the extent that it discriminates against an employee covered by the agreement because of, or for reasons including, the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Certain terms are not discriminatory terms

             (2)  A term of an enterprise agreement does not discriminate against an employee:

                     (a)  if the reason for the discrimination is the inherent requirements of the particular position concerned; or

                     (b)  merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

                              (i)  in good faith; and

                             (ii)  to avoid injury to the religious susceptibilities of adherents of that religion or creed.

             (3)  A term of an enterprise agreement does not discriminate against an employee merely because it provides for wages for:

                     (a)  all junior employees, or a class of junior employees; or

                     (b)  all employees with a disability, or a class of employees with a disability; or

                     (c)  all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.

Subdivision EApproval requirements relating to particular kinds of employees

196  Shiftworkers

Application of this section

             (1)  This section applies if:

                     (a)  an employee is covered by an enterprise agreement; and

                     (b)  a modern award that is in operation and covers the employee defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

Shiftworkers and the National Employment Standards

             (2)  FWA must be satisfied that the agreement defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

Note:          Section 87 provides an employee with an entitlement to 5 weeks of paid annual leave if an enterprise agreement that applies to the employee defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

197  Pieceworkers—enterprise agreement includes pieceworker term

Application of this section

             (1)  This section applies if:

                     (a)  an enterprise agreement that covers an employee includes a term that defines or describes the employee as a pieceworker; and

                     (b)  a modern award that is in operation and covers the employee does not include such a term.

No detriment test

             (2)  FWA must be satisfied that the effect of including such a term in the agreement is not detrimental to the employee in relation to the entitlements of the employee under the National Employment Standards.

198  Pieceworkers—enterprise agreement does not include a pieceworker term

Application of this section

             (1)  This section applies if:

                     (a)  an enterprise agreement that covers an employee does not include a term that defines or describes the employee as a pieceworker; and

                     (b)  a modern award that is in operation and covers the employee includes such a term.

No detriment test

             (2)  FWA must be satisfied that the effect of not including such a term in the agreement is not detrimental to the employee in relation to the entitlements of the employee under the National Employment Standards.

199  School‑based apprentices and school‑based trainees

Application of this section

             (1)  This section applies if:

                     (a)  an employee who is a school‑based apprentice or a school‑based trainee is covered by an enterprise agreement; and

                     (b)  the agreement provides for the employee to be paid loadings (the agreement loadings) in lieu of any of the following:

                              (i)  paid annual leave;

                             (ii)  paid personal/carer’s leave;

                            (iii)  paid absence under Division 10 of Part 2‑2 (which deals with public holidays); and

                     (c)  a modern award that is in operation and covers the employee provides for the employee to be paid loadings (the award loadings) in lieu of leave or absence of that kind.

No detriment test

             (2)  FWA must be satisfied that the amount or rate (as the case may be) of the agreement loadings is not detrimental to the employee when compared to the amount or rate of the award loadings.

200  Outworkers

Application of this section

             (1)  This section applies if:

                     (a)  an employee who is an outworker is covered by an enterprise agreement; and

                     (b)  a modern award that is in operation and covers the employee includes outworker terms.

Agreement must include outworker terms etc.

             (2)  FWA must be satisfied that:

                     (a)  the agreement includes terms of that kind; and

                     (b)  those terms of the agreement are not detrimental to the employee in any respect when compared to the outworker terms of the modern award.

Subdivision FOther matters

201  Approval decision to note certain matters

Approval decision to note model terms included in an enterprise agreement

             (1)  If:

                     (a)  FWA approves an enterprise agreement; and

                     (b)  either or both of the following apply:

                              (i)  the model flexibility term is taken, under subsection 202(4), to be a term of the agreement;

                             (ii)  the model consultation term is taken, under subsection 205(2), to be a term of the agreement;

FWA must note in its decision to approve the agreement that those terms are so included in the agreement.

Approval decision to note that an enterprise agreement covers an employee organisation

             (2)  If:

                     (a)  an employee organisation has given a notice under subsection 183(1) that the organisation wants the enterprise agreement to cover it; and

                     (b)  FWA approves the agreement;

FWA must note in its decision to approve the agreement that the agreement covers the organisation.

Approval decision to note undertakings

             (3)  If FWA approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement, FWA must note in its decision to approve the agreement that the undertaking is taken to be a term of the agreement.


 

Division 5Mandatory terms of enterprise agreements

202  Enterprise agreements to include a flexibility term etc.

Flexibility term must be included in an enterprise agreement

             (1)  An enterprise agreement must include a term (a flexibility term) that:

                     (a)  enables an employee and his or her employer to agree to an arrangement (an individual flexibility arrangement) varying the effect of the agreement in relation to the employee and the employer, in order to meet the genuine needs of the employee and employer; and

                     (b)  complies with section 203.

Effect of an individual flexibility arrangement

             (2)  If an employee and employer agree to an individual flexibility arrangement under a flexibility term in an enterprise agreement:

                     (a)  the agreement has effect in relation to the employee and the employer as if it were varied by the arrangement; and

                     (b)  the arrangement is taken to be a term of the agreement.

             (3)  To avoid doubt, the individual flexibility arrangement:

                     (a)  does not change the effect the agreement has in relation to the employer and any other employee; and

                     (b)  does not have any effect other than as a term of the agreement.

Model flexibility term

             (4)  If an enterprise agreement does not include a flexibility term, the model flexibility term is taken to be a term of the agreement.

             (5)  The regulations must prescribe the model flexibility term for enterprise agreements.

203  Requirements to be met by a flexibility term

Flexibility term must meet requirements

             (1)  A flexibility term in an enterprise agreement must meet the requirements set out in this section.

Requirements relating to content

             (2)  The flexibility term must:

                     (a)  set out the terms of the enterprise agreement the effect of which may be varied by an individual flexibility arrangement agreed to under the flexibility term; and

                     (b)  require the employer to ensure that any individual flexibility arrangement agreed to under the flexibility term:

                              (i)  must be about matters that would be permitted matters if the arrangement were an enterprise agreement; and

                             (ii)  must not include a term that would be an unlawful term if the arrangement were an enterprise agreement.

Requirement for genuine agreement

             (3)  The flexibility term must require that any individual flexibility arrangement is genuinely agreed to by the employer and the employee.

Requirement that the employee be better off overall

             (4)  The flexibility term must require the employer to ensure that any individual flexibility arrangement agreed to under the term must result in the employee being better off overall than the employee would have been if no individual flexibility arrangement were agreed to.

Requirement relating to approval or consent of another person

             (5)  Except as required by subparagraph (7)(a)(ii), the employer must ensure that the flexibility term does not require that any individual flexibility arrangement agreed to by an employer and employee under the term be approved, or consented to, by another person.

Requirement relating to termination of individual flexibility arrangements

             (6)  The flexibility term must require the employer to ensure that any individual flexibility arrangement agreed to under the term must be able to be terminated:

                     (a)  by either the employee, or the employer, giving written notice of not more than 28 days; or

                     (b)  by the employee and the employer at any time if they agree, in writing, to the termination.

Other requirements

             (7)  The flexibility term must require the employer to ensure that:

                     (a)  any individual flexibility arrangement agreed to under the term must be in writing and signed:

                              (i)  in all cases—by the employee and the employer; and

                             (ii)  if the employee is under 18—by a parent or guardian of the employee; and

                     (b)  a copy of any individual flexibility arrangement agreed to under the term must be given to the employee within 14 days after it is agreed to.

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

Application of this section

             (1)  This section applies if:

                     (a)  an employee and employer agree to an arrangement that purports to be an individual flexibility arrangement under a flexibility term in an enterprise agreement; and

                     (b)  the arrangement does not meet a requirement set out in section 203.

Note:          A failure to meet such a requirement may be a contravention of a provision of Part 3‑1 (which deals with general protections).

Arrangement has effect as if it were an individual flexibility arrangement

             (2)  The arrangement has effect as if it were an individual flexibility arrangement.

Employer contravenes flexibility term in specified circumstances

             (3)  If section 203 requires the employer to ensure that the arrangement meets the requirement, the employer contravenes the flexibility term of the agreement.

Requirement relating to termination of arrangement

             (4)  If the arrangement does not provide that the arrangement is able to be terminated:

                     (a)  by either the employee, or the employer, giving written notice of not more than 28 days; or

                     (b)  by the employee and the employer at any time if they agree, in writing, to the termination;

the arrangement is taken to provide that the arrangement is able to be so terminated.

205  Enterprise agreements to include a consultation term etc.

Consultation term must be included in an enterprise agreement

             (1)  An enterprise agreement must include a term (a consultation term) that:

                     (a)  requires the employer or employers to which the agreement applies to consult the employees to whom the agreement applies about major workplace changes that are likely to have a significant effect on the employees; and

                     (b)  allows for the representation of those employees for the purposes of that consultation.

Model consultation term

             (2)  If an enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement.

             (3)  The regulations must prescribe the model consultation term for enterprise agreements.


 

Division 6Base rate of pay under enterprise agreements

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

If an employee is covered by a modern award that is in operation

             (1)  If:

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

                     (b)  a modern award that is in operation covers the employee;

the base rate of pay payable to the employee under the agreement (the agreement rate) must not be less than the base rate of pay that would be payable to the employee under the modern award (the award rate) if the modern award applied to the employee.

             (2)  If the agreement rate is less than the award rate, the agreement has effect in relation to the employee as if the agreement rate were equal to the award rate.

If an employer is required to pay an employee the national minimum wage etc.

             (3)  If:

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

                     (b)  the employee is not covered by a modern award that is in operation; and

                     (c)  a national minimum wage order would, but for the agreement applying to the employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;

the base rate of pay payable to the employee under the enterprise agreement (the agreement rate) must not be less than the employee’s order rate.

             (4)  If the agreement rate is less than the employee’s order rate, the agreement has effect in relation to the employee as if the agreement rate were equal to the employee’s order rate.


 

Division 7Variation and termination of enterprise agreements

Subdivision AVariation of enterprise agreements by employers and employees

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

Variation by employers and employees

             (1)  The following may jointly make a variation of an enterprise agreement:

                     (a)  if the agreement covers a single employer—the employer and:

                              (i)  the employees employed at the time who are covered by the agreement; and

                             (ii)  the employees employed at the time who will be covered by the agreement if the variation is approved by FWA;

                     (b)  if the agreement covers 2 or more employers—all of those employers and:

                              (i)  the employees employed at the time who are covered by the agreement; and

                             (ii)  the employees employed at the time who will be covered by the agreement if the variation is approved by FWA.

Note:          For when a variation of an enterprise agreement is made, see section 209.

             (2)  The employees referred to in paragraphs (1)(a) and (b) are the affected employees for the variation.

Variation has no effect unless approved by FWA

             (3)  A variation of an enterprise agreement has no effect unless it is approved by FWA under section 211.

Limitation—greenfields agreement

             (4)  Subsection (1) applies to a greenfields agreement only if one or more of the persons who will be necessary for the normal conduct of the enterprise concerned and are covered by the agreement have been employed.

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

             (1)  An employer covered by an enterprise agreement may request the affected employees for a proposed variation of the agreement to approve the proposed variation by voting for it.

             (2)  Without limiting subsection (1), the employer may request that the affected employees vote by ballot or by an electronic method.

209  When a variation of an enterprise agreement is made

Single‑enterprise agreement

             (1)  If the affected employees of an employer, or each employer, covered by a single‑enterprise agreement have been asked to approve a proposed variation under subsection 208(1), the variation is made when a majority of the affected employees who cast a valid vote approve the variation.

Multi‑enterprise agreement

             (2)  If the affected employees of each employer covered by a multi‑enterprise agreement have been asked to approve a proposed variation under subsection 208(1), the variation is made when a majority of the affected employees of each individual employer who cast a valid vote have approved the variation.

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

Application for approval

             (1)  If a variation of an enterprise agreement has been made, a person covered by the agreement must apply to FWA for approval of the variation.

Material to accompany the application

             (2)  The application must be accompanied by:

                     (a)  a signed copy of the variation; and

                     (b)  a copy of the agreement as proposed to be varied; and

                     (c)  any declarations that are required by the procedural rules to accompany the application.

When the application must be made

             (3)  The application must be made:

                     (a)  within 14 days after the variation is made; or

                     (b)  if in all the circumstances FWA considers it fair to extend that period—within such further period as FWA allows.

Signature requirements

             (4)  The regulations may prescribe requirements relating to the signing of variations of enterprise agreements.

211  When FWA must approve a variation of an enterprise agreement

Approval of variation by FWA

             (1)  If an application for the approval of a variation of an enterprise agreement is made under section 210, FWA must approve the variation if:

                     (a)  FWA is satisfied that had an application been made under section 185 for the approval of the agreement as proposed to be varied, FWA would have been required to approve the agreement under section 186; and

                     (b)  FWA is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which FWA approved the agreement;

unless FWA is satisfied that there are serious public interest grounds for not approving the variation.

Note:          FWA may approve a variation under this section with undertakings (see section 212).

Modification of approval requirements

             (2)  For the purposes of FWA deciding whether it is satisfied of the matter referred to in paragraph (1)(a), FWA must:

                     (a)  take into account subsections (3) and (4) and any regulations made for the purposes of subsection (6); and

                     (b)  comply with subsection (5); and

                     (c)  disregard sections 190 and 191 (which deal with the approval of enterprise agreements with undertakings).

             (3)  The following provisions:

                     (a)  section 180 (which deals with pre‑approval steps);

                     (b)  subsection 186(2) (which deals with FWA approval of enterprise agreements);

                     (c)  section 188 (which deals with genuine agreement);

have effect as if:

                     (d)  references in sections 180 and 188 to the proposed enterprise agreement, or the enterprise agreement, were references to the proposed variation, or the variation, of the enterprise agreement (as the case may be); and

                     (e)  references in those provisions to the employees employed at the time who will be covered by the proposed enterprise agreement, or the employees covered by the enterprise agreement, were references to the affected employees for the variation; and

                      (f)  references in section 180 to subsection 181(1) were references to subsection 208(1); and

                     (g)  the words “if the agreement is not a greenfields
agreement—” in paragraph 186(2)(a) were omitted; and

                     (h)  paragraph 186(2)(b) were omitted; and

                    (ha)  references in paragraphs 186(2)(c) and (d) to the agreement were references to the enterprise agreement as proposed to be varied; and

                    (hb)  subparagraph 188(a)(ii) were omitted; and

                      (j)  the words “182(1) or (2)” in paragraph 188(b) were omitted and the words “209(1) or (2)” were substituted.

             (4)  Section 193 (which deals with passing the better off overall test) has effect as if:

                     (a)  the words “that is not a greenfields agreement” in subsection (1) were omitted; and

                     (b)  subsection (3) were omitted; and

                     (c)  the words “the agreement” in subsection (6) were omitted and the words “the variation of the enterprise agreement” were substituted; and

                     (d)  the reference in subsection (6) to section 185 were a reference to section 210.

             (5)  For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, FWA must disregard any individual flexibility arrangement that has been agreed to by an award covered employee and his or her employer under the flexibility term in the agreement.

Regulations may prescribe additional modifications

             (6)  The regulations may provide that, for the purposes of FWA deciding whether it is satisfied of the matter referred to in paragraph (1)(a), specified provisions of this Part have effect with such modifications as are prescribed by the regulations.

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

Application of this section

             (1)  This section applies if:

                     (a)  an application for the approval of a variation of an enterprise agreement has been made under section 210; and

                     (b)  FWA has a concern that the variation does not meet the requirements set out in section 211.

Approval of agreement with undertakings

             (2)  FWA may approve the variation under section 211 if FWA is satisfied that an undertaking accepted by FWA under subsection (3) of this section meets the concern.

Undertakings

             (3)  FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:

                     (a)  cause financial detriment to any affected employee for the variation; or

                     (b)  result in substantial changes to the variation.

Signature requirements

             (4)  An undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.

213  Effect of undertakings

             (1)  If:

                     (a)  FWA approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation; and

                     (b)  the agreement covers a single employer;

the undertaking is taken to be a term of the agreement, as the agreement applies to the employer.

             (2)  If:

                     (a)  FWA approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation; and

                     (b)  the agreement covers 2 or more employers;

the undertaking is taken to be a term of the agreement, as the agreement applies to each employer that gave the undertaking.

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

             (1)  If an application for the approval of a variation of an enterprise agreement is made under section 210, FWA may refuse to approve the variation if FWA considers that compliance with the terms of the agreement as proposed to be varied may result in:

                     (a)  a person committing an offence against a law of the Commonwealth; or

                     (b)  a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth.

             (2)  Subsection (1) has effect despite section 211 (which deals with the approval of variations of enterprise agreements).

             (3)  If FWA refuses to approve a variation of an enterprise agreement under this section, FWA may refer the agreement as proposed to be varied to any person or body FWA considers appropriate.

215  Approval decision to note undertakings

                   If FWA approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation, FWA must note in its decision to approve the variation that the undertaking is taken to be a term of the agreement.

216  When variation comes into operation

                   If a variation of an enterprise agreement is approved under section 211, the variation operates from the day specified in the decision to approve the variation.

Subdivision BVariations of enterprise agreements where there is ambiguity, uncertainty or discrimination

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

             (1)  FWA may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

                     (a)  one or more of the employers covered by the agreement;

                     (b)  an employee covered by the agreement;

                     (c)  an employee organisation covered by the agreement.

             (2)  If FWA varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.

217A  FWA may deal with certain disputes about variations

             (1)  This section applies if a variation of an enterprise agreement is proposed.

             (2)  An employer or employee organisation covered by the enterprise agreement or an affected employee for the variation may apply to FWA for FWA to deal with a dispute about the proposed variation if the employer and the affected employees are unable to resolve the dispute.

             (3)  FWA must not arbitrate (however described) the dispute.

218  Variation of an enterprise agreement on referral by HREOC

Review of an enterprise agreement

             (1)  FWA must review an enterprise agreement if the agreement is referred to it under section 46PW of the Human Rights and Equal Opportunity Commission Act 1986 (which deals with discriminatory industrial instruments).

             (2)  The following are entitled to make submissions to FWA for consideration in the review:

                     (a)  if the referral relates to action that would be unlawful under Part 4 of the Age Discrimination Act 2004—the Australian Human Rights Commission;

                     (b)  if the referral relates to action that would be unlawful under Part 2 of the Disability Discrimination Act 1992—the Disability Discrimination Commissioner;

                     (c)  if the referral relates to action that would be unlawful under Part II of the Sex Discrimination Act 1984—the Sex Discrimination Commissioner.

Variation of an enterprise agreement

             (3)  If FWA considers that the agreement reviewed requires a person to do an act that would be unlawful under any of the Acts referred to in subsection (2) (but for the fact that the act would be done in direct compliance with the agreement), FWA must vary the agreement so that it no longer requires the person to do an act that would be so unlawful.

             (4)  If the agreement is varied under subsection (3), the variation operates from the day specified in the decision to vary the agreement.

Subdivision CTermination of enterprise agreements by employers and employees

219  Employers and employees may agree to terminate an enterprise agreement

Termination by employers and employees

             (1)  The following may jointly agree to terminate an enterprise agreement:

                     (a)  if the agreement covers a single employer—the employer and the employees covered by the agreement; or

                     (b)  if the agreement covers 2 or more employers—all of the employers and the employees covered by the agreement.

Note:          For when a termination of an enterprise agreement is agreed to, see section 221.

Termination has no effect unless approved by FWA

             (2)  A termination of an enterprise agreement has no effect unless it is approved by FWA under section 223.

Limitation—greenfields agreement

             (3)  Subsection (1) applies to a greenfields agreement only if one or more of the persons who will be necessary for the normal conduct of the enterprise concerned and are covered by the agreement have been employed.

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

             (1)  An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

             (2)  Before making the request, the employer must:

                     (a)  take all reasonable steps to notify the employees of the following:

                              (i)  the time and place at which the vote will occur;

                             (ii)  the voting method that will be used; and

                     (b)  give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

             (3)  Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

221  When termination of an enterprise agreement is agreed to

Single‑enterprise agreement

             (1)  If the employees of an employer, or each employer, covered by a single‑enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

Multi‑enterprise agreement

             (2)  If the employees of each employer covered by a multi‑enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees of each individual employer who cast a valid vote have approved the termination.

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

Application for approval

             (1)  If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to FWA for approval of the termination.

Material to accompany the application

             (2)  The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

             (3)  The application must be made:

                     (a)  within 14 days after the termination is agreed to; or

                     (b)  if in all the circumstances FWA considers it fair to extend that period—within such further period as FWA allows.

223  When FWA must approve a termination of an enterprise agreement

                   If an application for the approval of a termination of an enterprise agreement is made under section 222, FWA must approve the termination if:

                     (a)  FWA is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

                     (b)  FWA is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

                     (c)  FWA is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

                     (d)  FWA considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

224  When termination comes into operation

                   If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.

Subdivision DTermination of enterprise agreements after nominal expiry date

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

                   If an enterprise agreement has passed its nominal expiry date, any of the following may apply to FWA for the termination of the agreement:

                     (a)  one or more of the employers covered by the agreement;

                     (b)  an employee covered by the agreement;

                     (c)  an employee organisation covered by the agreement.

226  When FWA must terminate an enterprise agreement

                   If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

                     (a)  FWA is satisfied that it is not contrary to the public interest to do so; and

                     (b)  FWA considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

                              (i)  the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

                             (ii)  the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227  When termination comes into operation

                   If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.


 

Division 8FWA’s general role in facilitating bargaining

Subdivision ABargaining orders

228  Bargaining representatives must meet the good faith bargaining requirements

             (1)  The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

                     (a)  attending, and participating in, meetings at reasonable times;

                     (b)  disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

                     (c)  responding to proposals made by other bargaining representatives for the agreement in a timely manner;

                     (d)  giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;

                     (e)  refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

                      (f)  recognising and bargaining with the other bargaining representatives for the agreement.

             (2)  The good faith bargaining requirements do not require:

                     (a)  a bargaining representative to make concessions during bargaining for the agreement; or

                     (b)  a bargaining representative to reach agreement on the terms that are to be included in the agreement.

229  Applications for bargaining orders

Persons who may apply for a bargaining order

             (1)  A bargaining representative for a proposed enterprise agreement may apply to FWA for an order (a bargaining order) under section 230 in relation to the agreement.

Multi‑enterprise agreements

             (2)  An application for a bargaining order must not be made in relation to a proposed multi‑enterprise agreement unless a low‑paid authorisation is in operation in relation to the agreement.

Timing of applications

             (3)  The application may only be made at whichever of the following times applies:

                     (a)  if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:

                              (i)  not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or

                             (ii)  after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;

                     (b)  otherwise—at any time.

Note:          An employer cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice of employee representational rights is given.

Prerequisites for making an application

             (4)  The bargaining representative may only apply for the bargaining order if the bargaining representative:

                     (a)  has concerns that:

                              (i)  one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

                             (ii)  the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

                     (b)  has given a written notice setting out those concerns to the relevant bargaining representatives; and

                     (c)  has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

                     (d)  considers that the relevant bargaining representatives have not responded appropriately to those concerns.

Non‑compliance with notice requirements may be permitted

             (5)  FWA may consider the application even if it does not comply with paragraph (4)(b) or (c) if FWA is satisfied that it is appropriate in all the circumstances to do so.

230  When FWA may make a bargaining order

Bargaining orders

             (1)  FWA may make a bargaining order under this section in relation to a proposed enterprise agreement if:

                     (a)  an application for the order has been made; and

                     (b)  the requirements of this section are met in relation to the agreement; and

                     (c)  FWA is satisfied that it is reasonable in all the circumstances to make the order.

Agreement to bargain or certain instruments in operation

             (2)  FWA must be satisfied in all cases that one of the following applies:

                     (a)  the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;

                     (b)  a majority support determination in relation to the agreement is in operation;

                     (c)  a scope order in relation to the agreement is in operation;

                     (d)  all of the employers are specified in a low‑paid authorisation that is in operation in relation to the agreement.

Good faith bargaining requirements not met

             (3)  FWA must in all cases be satisfied:

                     (a)  that:

                              (i)  one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

                             (ii)  the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

                     (b)  that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.

Bargaining order must be in accordance with section 231

             (4)  The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).

231  What a bargaining order must specify

             (1)  A bargaining order in relation to a proposed enterprise agreement must specify all or any of the following:

                     (a)  the actions to be taken by, and requirements imposed upon, the bargaining representatives for the agreement, for the purpose of ensuring that they meet the good faith bargaining requirements;

                     (b)  requirements imposed upon those bargaining representatives not to take action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining;

                     (c)  the actions to be taken by those bargaining representatives to deal with the effects of such capricious or unfair conduct;

                     (d)  such matters, actions or requirements as FWA considers appropriate, taking into account subparagraph 230(3)(a)(ii) (which deals with multiple bargaining representatives), for the purpose of promoting the efficient or fair conduct of bargaining for the agreement.

             (2)  The kinds of bargaining orders that FWA may make in relation to a proposed enterprise agreement include the following:

                     (a)  an order excluding a bargaining representative for the agreement from bargaining;

                     (b)  an order requiring some or all of the bargaining representatives of the employees who will be covered by the agreement to meet and appoint one of the bargaining representatives to represent the bargaining representatives in bargaining;

                     (c)  an order that an employer not terminate the employment of an employee, if the termination would constitute, or relate to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining);

                     (d)  an order to reinstate an employee whose employment has been terminated if the termination constitutes, or relates to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining).

             (3)  The regulations may:

                     (a)  specify the factors FWA may or must take into account in deciding whether or not to make a bargaining order for reinstatement of an employee; and

                     (b)  provide for FWA to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind.

232  Operation of a bargaining order

                   A bargaining order in relation to a proposed enterprise agreement:

                     (a)  comes into operation on the day on which it is made; and

                     (b)  ceases to be in operation at the earliest of the following:

                              (i)  if the order is revoked—the time specified in the instrument of revocation;

                             (ii)  when the agreement is approved by FWA;

                            (iii)  when a workplace determination that covers the employees that would have been covered by the agreement comes into operation;

                            (iv)  when the bargaining representatives for the agreement agree that bargaining has ceased.

233  Contravening a bargaining order

                   A person to whom a bargaining order applies must not contravene a term of the order.

Note:          This section is a civil remedy provision (see Part 4‑1).

Subdivision BSerious breach declarations

234  Applications for serious breach declarations

                   A bargaining representative for a proposed enterprise agreement may apply to FWA for a declaration (a serious breach declaration) under section 235 in relation to the agreement.

Note:          The consequence of a serious breach declaration being made in relation to the agreement is that FWA may, in certain circumstances, make a bargaining related workplace determination under section 269 in relation to the agreement.

235  When FWA may make a serious breach declaration

Serious breach declaration

             (1)  FWA may make a serious breach declaration in relation to a proposed enterprise agreement if:

                     (a)  an application for the declaration has been made; and

                     (b)  FWA is satisfied of the matters set out in subsection (2).

Matters of which FWA must be satisfied before making a serious breach declaration

             (2)  FWA must be satisfied that:

                     (a)  one or more bargaining representatives for the agreement has contravened one or more bargaining orders in relation to the agreement; and

                     (b)  the contravention or contraventions:

                              (i)  are serious and sustained; and

                             (ii)  have significantly undermined bargaining for the agreement; and

                     (c)  the other bargaining representatives for the agreement (the designated bargaining representatives) have exhausted all other reasonable alternatives to reach agreement on the terms that should be included in the agreement; and

                     (d)  agreement on the terms that should be included in the agreement will not be reached in the foreseeable future; and

                     (e)  it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement.

Factors FWA must take into account in deciding whether reasonable alternatives exhausted

             (3)  In deciding whether or not the designated bargaining representatives have exhausted all other reasonable alternatives to reach agreement on the terms that should be included in the agreement, FWA may take into account any matter FWA considers relevant, including the following:

                     (a)  whether FWA has provided assistance under section 240 in relation to the agreement;

                     (b)  whether a designated bargaining representative has applied to a court for an order under Part 4‑1 in relation to the contravention or contraventions referred to in paragraph (2)(a) of this section; and

                     (c)  any findings or orders made by the court in relation to such an application.

What declaration must specify

             (4)  The declaration must specify:

                     (a)  the proposed enterprise agreement to which the declaration relates; and

                     (b)  any other matter prescribed by the procedural rules.

Operation of declaration

             (5)  The declaration:

                     (a)  comes into operation on the day on which it is made; and

                     (b)  ceases to be in operation when each employer specified in the declaration is covered by an enterprise agreement or a workplace determination.

Subdivision CMajority support determinations and scope orders

236  Majority support determinations

             (1)  A bargaining representative of an employee who will be covered by a proposed single‑enterprise agreement may apply to FWA for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

             (2)  The application must specify:

                     (a)  the employer, or employers, that will be covered by the agreement; and

                     (b)  the employees who will be covered by the agreement.

237  When FWA must make a majority support determination

Majority support determination

             (1)  FWA must make a majority support determination in relation to a proposed single‑enterprise agreement if:

                     (a)  an application for the determination has been made; and

                     (b)  FWA is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which FWA must be satisfied before making a majority support determination

             (2)  FWA must be satisfied that:

                     (a)  a majority of the employees:

                              (i)  who are employed by the employer or employers at a time determined by FWA; and

                             (ii)  who will be covered by the agreement;

                            want to bargain; and

                     (b)  the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

                     (c)  that the group of employees who will be covered by the agreement was fairly chosen; and

                     (d)  it is reasonable in all the circumstances to make the determination.

             (3)  For the purposes of paragraph (2)(a), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.

          (3A)  If the agreement will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Operation of determination

             (4)  The determination comes into operation on the day on which it is made.

238  Scope orders

Bargaining representatives may apply for scope orders

             (1)  A bargaining representative for a proposed single‑enterprise agreement may apply to FWA for an order (a scope order) under this section if:

                     (a)  the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and

                     (b)  the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.

No scope order if a single interest employer authorisation is in operation

             (2)  Despite subsection (1), the bargaining representative must not apply for the scope order if a single interest employer authorisation is in operation in relation to the agreement.

Bargaining representative must have given notice of concerns

             (3)  The bargaining representative may only apply for the scope order if the bargaining representative:

                     (a)  has given a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and

                     (b)  has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

                     (c)  considers that the relevant bargaining representatives have not responded appropriately.

When FWA may make scope order

             (4)  FWA may make the scope order if FWA is satisfied:

                     (a)  that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and

                     (b)  that making the order will promote the fair and efficient conduct of bargaining; and

                     (c)  that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and

                     (d)  it is reasonable in all the circumstances to make the order.

Matters which FWA must take into account

          (4A)  If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Scope order must specify employer and employees to be covered

             (5)  The scope order must specify, in relation to a proposed single‑enterprise agreement:

                     (a)  the employer, or employers, that will be covered by the agreement; and

                     (b)  the employees who will be covered by the agreement.

Scope order must be in accordance with this section etc.

             (6)  The scope order:

                     (a)  must be in accordance with this section; and

                     (b)  may relate to more than one proposed single‑enterprise agreement.

Orders etc. that FWA may make

             (7)  If FWA makes the scope order, FWA may also:

                     (a)  amend any existing bargaining orders; and

                     (b)  make or vary such other orders (such as protected action ballot orders), determinations or other instruments made by FWA, or take such other actions, as FWA considers appropriate.

239  Operation of a scope order

                   A scope order in relation to a proposed single‑enterprise agreement:

                     (a)  comes into operation on the day on which it is made; and

                     (b)  ceases to be in operation at the earliest of the following:

                              (i)  if the order is revoked—the time specified in the instrument of revocation;

                             (ii)  when the agreement is approved by FWA;

                            (iii)  when a workplace determination that covers the employees that would have been covered by the agreement comes into operation;

                            (iv)  when the bargaining representatives for the agreement agree that bargaining has ceased.

Subdivision DFWA may deal with a bargaining dispute on request

240  Application for FWA to deal with a bargaining dispute

Bargaining representative may apply for FWA to deal with a dispute

             (1)  A bargaining representative for a proposed enterprise agreement may apply to FWA for FWA to deal with a dispute about the agreement if the bargaining representatives for the agreement are unable to resolve the dispute.

             (2)  If the proposed enterprise agreement is:

                     (a)  a single‑enterprise agreement; or

                     (b)  a multi‑enterprise agreement in relation to which a low‑paid authorisation is in operation;

the application may be made by one bargaining representative, whether or not the other bargaining representatives for the agreement have agreed to the making of the application.

             (3)  If subsection (2) does not apply, a bargaining representative may only make the application if all of the bargaining representatives for the agreement have agreed to the making of the application.

             (4)  If the bargaining representatives have agreed that FWA may arbitrate (however described) the dispute, FWA may do so.


 

Division 9Low‑paid bargaining

241  Objects of this Division

                   The objects of this Division are:

                     (a)  to assist and encourage low‑paid employees and their employers, who have not historically had the benefits of collective bargaining, to make an enterprise agreement that meets their needs; and

                     (b)  to assist low‑paid employees and their employers to identify improvements to productivity and service delivery through bargaining for an enterprise agreement that covers 2 or more employers, while taking into account the specific needs of individual enterprises; and

                     (c)  to address constraints on the ability of low‑paid employees and their employers to bargain at the enterprise level, including constraints relating to a lack of skills, resources, bargaining strength or previous bargaining experience; and

                     (d)  to enable FWA to provide assistance to low‑paid employees and their employers to facilitate bargaining for enterprise agreements.

Note:          A low‑paid workplace determination may be made in specified circumstances under Division 2 of Part 2‑5 if the bargaining representatives for a proposed enterprise agreement in relation to which a low‑paid authorisation is in operation are unable to reach agreement.

242  Low‑paid authorisations

             (1)  The following persons may apply to FWA for an authorisation (a low‑paid authorisation) under section 243 in relation to a proposed multi‑enterprise agreement:

                     (a)  a bargaining representative for the agreement;

                     (b)  an employee organisation that is entitled to represent the industrial interests of an employee in relation to work to be performed under the agreement.

Note:          The effect of a low‑paid authorisation is that the employers specified in it are subject to certain rules in relation to the agreement that would not otherwise apply (such as in relation to the availability of bargaining orders, see subsection 229(2)).

             (2)  The application must specify:

                     (a)  the employers that will be covered by the agreement; and

                     (b)  the employees who will be covered by the agreement.

             (3)  An application under this section must not be made in relation to a proposed greenfields agreement.

243  When FWA must make a low‑paid authorisation

Low‑paid authorisation

             (1)  FWA must make a low‑paid authorisation in relation to a proposed multi‑enterprise agreement if:

                     (a)  an application for the authorisation has been made; and

                     (b)  FWA is satisfied that it is in the public interest to make the authorisation, taking into account the matters specified in subsections (2) and (3).

FWA must take into account historical and current matters relating to collective bargaining

             (2)  In deciding whether or not to make the authorisation, FWA must take into account the following:

                     (a)  whether granting the authorisation would assist low‑paid employees who have not had access to collective bargaining or who face substantial difficulty bargaining at the enterprise level;

                     (b)  the history of bargaining in the industry in which the employees who will be covered by the agreement work;

                     (c)  the relative bargaining strength of the employers and employees who will be covered by the agreement;

                     (d)  the current terms and conditions of employment of the employees who will be covered by the agreement, as compared to relevant industry and community standards;

                     (e)  the degree of commonality in the nature of the enterprises to which the agreement relates, and the terms and conditions of employment in those enterprises.

FWA must take into account matters relating to the likely success of collective bargaining

             (3)  In deciding whether or not to make the authorisation, FWA must also take into account the following:

                     (a)  whether granting the authorisation would assist in identifying improvements to productivity and service delivery at the enterprises to which the agreement relates;

                     (b)  the extent to which the likely number of bargaining representatives for the agreement would be consistent with a manageable collective bargaining process;

                     (c)  the views of the employers and employees who will be covered by the agreement;

                     (d)  the extent to which the terms and conditions of employment of the employees who will be covered by the agreement is controlled, directed or influenced by a person other than the employer, or employers, that will be covered by the agreement;

                     (e)  the extent to which the applicant for the authorisation is prepared to consider and respond reasonably to claims, or responses to claims, that may be made by a particular employer named in the application, if that employer later proposes to barga