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Fair Work Act 2009

Authoritative Version
  • - C2013C00070
  • In force - Superseded Version
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Act No. 28 of 2009 as amended, taking into account amendments up to Fair Work Amendment (Transfer of Business) Act 2012
An Act relating to workplace relations, and for related purposes
Administered by: Attorney-General's; Education, Employment and Workplace Relations
General Comments: This compilation is affected by retrospective amendments. Please see the Fair Work Amendment Act 2012 (Act No. 174, 2012), Superannuation Legislation Amendment (Service Providers and Other Governance Measures) Act 2013 (Act No. 61, 2013) and Fair Work Amendment Act 2013 (Act No. 73, 2013) for details.
Registered 31 Jan 2013
Start Date 01 Jan 2013
End Date 11 Apr 2013
Table of contents.

Fair Work Act 2009

Act No. 28 of 2009 as amended

This compilation was prepared on 16 January 2013
taking into account amendments up to Act No. 175 of 2012

Volume 2 includes:  Table of Contents
                                 Sections 537–800

Schedules 1–3

Note 1

Table of Acts

Act Notes

Table of Amendments

Notes 2–4

Table A

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

  

  

  


Contents

Chapter 4—Compliance and enforcement                                                             1

Part 4‑1—Civil remedies                                                                                                    1

Division 1—Introduction                                                                                            1

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

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

Division 2—Orders                                                                                                        2

Subdivision A—Applications for orders                                                              2

539........ Applications for orders in relation to contraventions of civil remedy provisions      2

540........ Limitations on who may apply for orders etc.................................... 12

541........ Applications for orders in relation to safety net contractual entitlements  14

542........ Entitlements under contracts.............................................................. 15

543........ Applications for orders in relation to statutory entitlements derived from contracts 15

544........ Time limit on applications................................................................. 15

Subdivision B—Orders                                                                                           16

545........ Orders that can be made by particular courts..................................... 16

546........ Pecuniary penalty orders................................................................... 17

547........ Interest up to judgment...................................................................... 18

Division 3—Small claims procedure                                                                   19

548........ Plaintiffs may choose small claims procedure................................... 19

Division 4—General provisions relating to civil remedies                     21

549........ Contravening a civil remedy provision is not an offence................... 21

550........ Involvement in contravention treated in same way as actual contravention               21

551........ Civil evidence and procedure rules for proceedings relating to civil remedy provisions           21

552........ Civil proceedings after criminal proceedings..................................... 21

553........ Criminal proceedings during civil proceedings................................. 22

554........ Criminal proceedings after civil proceedings..................................... 22

555........ Evidence given in proceedings for pecuniary penalty not admissible in criminal proceedings  22

556........ Civil double jeopardy........................................................................ 23

557........ Course of conduct............................................................................. 23

558........ Regulations dealing with infringement notices.................................. 24

Division 5—Unclaimed money                                                                               25

559........ Unclaimed money............................................................................. 25

Part 4‑2—Jurisdiction and powers of courts                                                      26

Division 1—Introduction                                                                                          26

560........ Guide to this Part.............................................................................. 26

561........ Meanings of employee and employer................................................ 26

Division 2—Jurisdiction and powers of the Federal Court                    27

562........ Conferring jurisdiction on the Federal Court..................................... 27

563........ Exercising jurisdiction in the Fair Work Division of the Federal Court 27

564........ No limitation on Federal Court’s powers.......................................... 28

565........ Appeals from eligible State or Territory courts................................. 28

Division 3—Jurisdiction and powers of the Federal Magistrates Court               29

566........ Conferring jurisdiction on the Federal Magistrates Court................. 29

567........ Exercising jurisdiction in the Fair Work Division of the Federal Magistrates Court                29

568........ No limitation on Federal Magistrates Court’s powers....................... 29

Division 4—Miscellaneous                                                                                       30

569........ Minister’s entitlement to intervene.................................................... 30

569A..... State or Territory Minister’s entitlement to intervene........................ 30

570........ Costs only if proceedings instituted vexatiously etc.......................... 31

571........ No imprisonment for failure to pay pecuniary penalty...................... 31

572........ Regulations dealing with matters relating to court proceedings......... 31

Chapter 5—Administration                                                                                           32

Part 5‑1—The Fair Work Commission                                                                  32

Division 1—Introduction                                                                                          32

573........ Guide to this Part.............................................................................. 32

574........ Meanings of employee and employer................................................ 33

Division 2—Establishment and functions of the Fair Work Commission             34

Subdivision A—Establishment and functions of the Fair Work Commission                34

575........ Establishment of the Fair Work Commission.................................... 34

576........ Functions of the FWC....................................................................... 34

577........ Performance of functions etc. by the FWC....................................... 35

578........ Matters the FWC must take into account in performing functions etc. 36

579........ FWC has privileges and immunities of the Crown............................ 36

580........ Protection of FWC Members............................................................ 36

Subdivision B—Functions and powers of the President                                 36

581........ Functions of the President................................................................. 36

581A..... Dealing with a complaint about an FWC Member............................ 37

581B..... Code of Conduct............................................................................... 38

582........ Directions by the President............................................................... 39

583........ President not subject to direction....................................................... 40

584........ Delegation of functions and powers of the President........................ 40

Subdivision C—Protection of persons involved in handling etc. complaints about FWC Members         40

584B..... Protection of persons involved in handling etc. complaints about FWC Members   40

Division 3—Conduct of matters before the FWC                                       42

Subdivision A—Applications to the FWC                                                          42

585........ Applications in accordance with procedural rules............................. 42

586........ Correcting and amending applications and documents etc................. 42

587........ Dismissing applications.................................................................... 42

588........ Discontinuing applications................................................................ 43

Subdivision B—Conduct of matters before the FWC                                     43

589........ Procedural and interim decisions....................................................... 43

590........ Powers of the FWC to inform itself.................................................. 43

591........ FWC not bound by rules of evidence and procedure........................ 44

592........ Conferences...................................................................................... 44

593........ Hearings............................................................................................ 44

594........ Confidential evidence........................................................................ 45

595........ FWC’s power to deal with disputes.................................................. 46

Subdivision C—Representation by lawyers and paid agents and Minister’s entitlement to make submissions     46

596........ Representation by lawyers and paid agents....................................... 46

597........ Minister’s entitlement to make submissions...................................... 47

597A..... State or Territory Minister’s entitlement to make submissions.......... 48

Subdivision D—Decisions of the FWC                                                                48

598........ Decisions of the FWC....................................................................... 48

599........ FWC not required to decide an application in terms applied for........ 48

600........ Determining matters in the absence of a person................................ 49

601........ Writing and publication requirements for the FWC’s decisions........ 49

602........ Correcting obvious errors etc. in relation to the FWC’s decisions.... 50

603........ Varying and revoking the FWC’s decisions..................................... 50

Subdivision E—Appeals, reviews and referring questions of law               51

604........ Appeal of decisions........................................................................... 51

605........ Minister’s entitlement to apply for review of a decision.................... 51

606........ Staying decisions that are appealed or reviewed................................ 52

607........ Process for appealing or reviewing decisions................................... 53

608........ Referring questions of law to the Federal Court................................ 53

Subdivision F—Miscellaneous                                                                              54

609........ Procedural rules................................................................................ 54

610........ Regulations dealing with any FWC matters...................................... 55

611........ Costs................................................................................................. 55

Division 4—Organisation of the FWC                                                              56

Subdivision A—Functions etc. to be performed by a single FWC Member, a Full Bench or the Minimum Wage Panel                                                                                                         56

612........ FWC’s functions etc. may generally be performed by single FWC Member           56

613........ Appeal of decisions........................................................................... 56

614........ Review of decisions by a Full Bench................................................ 57

615........ The President may direct a Full Bench to perform function etc......... 57

615A..... When the President must direct a Full Bench to perform function etc. 57

615B..... Transfer to a Full Bench from an FWC member............................... 58

615C..... Transfer to the President from an FWC member or a Full Bench..... 58

616........ FWC’s functions etc. that must be performed by a Full Bench......... 59

617........ FWC’s functions etc. that must be performed by the Minimum Wage Panel           59

Subdivision B—Constitution of the FWC by a single FWC Member, a Full Bench or the Minimum Wage Panel                                                                                                         60

618........ Constitution and decision‑making of a Full Bench............................ 60

619........ Seniority of FWC Members.............................................................. 60

620........ Constitution and decision‑making of the Minimum Wage Panel....... 61

621........ Reconstitution of the FWC when single FWC Member becomes unavailable          61

622........ Reconstitution of the FWC when FWC Member of a Full Bench or the Minimum Wage Panel becomes unavailable.......................................................................................................... 62

623........ When new FWC Members begin to deal with matters...................... 62

624........ FWC’s decisions not invalid when improperly constituted............... 63

Subdivision C—Delegation of the FWC’s functions and powers                  63

625........ Delegation by the President of functions and powers of the FWC.... 63

Division 5—FWC Members                                                                                    65

Subdivision A—Appointment of FWC Members                                             65

626........ Appointment of FWC Members....................................................... 65

627........ Qualifications for appointment of FWC Members............................ 65

628........ Basis of appointment of FWC Members........................................... 67

629........ Period of appointment of FWC Members......................................... 67

Subdivision B—Terms and conditions of FWC Members                             68

629A..... Status of the President....................................................................... 68

630........ Appointment of a Judge not to affect tenure etc................................ 68

631........ Dual federal and State appointments of Deputy Presidents or Commissioners        68

632........ Dual federal and Territory appointments of Deputy Presidents or Commissioners  69

633........ Outside work of FWC Members...................................................... 69

634........ Oath or affirmation of office............................................................. 69

635........ Remuneration of the President.......................................................... 70

636........ Application of Judges’ Pensions Act to the President....................... 70

637........ Remuneration of FWC Members other than the President................ 71

638........ Remuneration of Deputy Presidents or Commissioners performing duties on a part‑time basis              72

639........ Leave of absence of FWC Members other than the President........... 73

640........ Disclosure of interests by FWC Members other than the President.. 73

641........ Termination of appointment on grounds of misbehaviour or incapacity 74

641A..... Minister may handle complaints about FWC Members.................... 74

642........ Suspension on grounds of misbehaviour or incapacity..................... 74

643........ Termination of appointment for bankruptcy, etc................................ 75

644........ Termination of appointment for outside work [see Note 4]............... 76

645........ Resignation of FWC Members......................................................... 76

646........ Other terms and conditions of FWC Members................................. 76

647........ Appointment of acting President and Vice President........................ 76

648........ Appointment of acting Deputy Presidents and Commissioners........ 78

Division 6—Cooperation with the States                                                         79

649........ President to cooperate with prescribed State industrial authorities.... 79

650........ Provision of administrative support.................................................. 79

Division 7—Seals and additional powers and functions of the President and the General Manager    80

651........ Seals.................................................................................................. 80

652........ Annual report.................................................................................... 80

653........ Reports about making enterprise agreements, individual flexibility arrangements etc.              81

653A..... Arrangements with the Federal Court and the Federal Magistrates Court                82

654........ President must provide certain information etc. to the Minister and Fair Work Ombudsman   82

655........ Disclosure of information by the FWC............................................. 83

Division 8—General Manager, staff and consultants                               84

Subdivision A—Functions of the General Manager                                        84

656........ Establishment.................................................................................... 84

657........ Functions and powers of the General Manager................................. 84

658........ Directions from the President............................................................ 84

659........ General Manager not otherwise subject to direction.......................... 85

Subdivision B—Appointment and terms and conditions of the General Manager        85

660........ Appointment of the General Manager............................................... 85

661........ Remuneration of the General Manager.............................................. 85

662........ Leave of absence of the General Manager......................................... 85

663........ Outside work of the General Manager.............................................. 86

664........ Disclosure of interests to the President............................................. 86

665........ Resignation of the General Manager................................................. 86

666........ Termination of appointment of the General Manager........................ 86

667........ Other terms and conditions of the General Manager......................... 87

668........ Appointment of acting General Manager.......................................... 87

669........ Minister to consult the President....................................................... 87

Subdivision C—Staff and consultants                                                                 87

670........ Staff.................................................................................................. 87

671........ Delegation by General Manager to staff............................................ 88

672........ Persons assisting the FWC............................................................... 88

673........ Consultants....................................................................................... 88

Division 9—Offences relating to the Fair Work Commission              89

674........ Offences in relation to the FWC........................................................ 89

675........ Contravening an FWC order............................................................. 91

676........ Intimidation etc.................................................................................. 91

677........ Offences in relation to attending before the FWC............................. 92

678........ False or misleading evidence............................................................. 93

Part 5‑2—Office of the Fair Work Ombudsman                                             94

Division 1—Introduction                                                                                          94

679........ Guide to this Part.............................................................................. 94

680........ Meanings of employee and employer................................................ 94

Division 2—Fair Work Ombudsman                                                                  95

Subdivision A—Establishment and functions and powers of the Fair Work Ombudsman         95

681........ Establishment.................................................................................... 95

682........ Functions of the Fair Work Ombudsman.......................................... 95

683........ Delegation by the Fair Work Ombudsman........................................ 96

684........ Directions from the Minister............................................................. 96

685........ Minister may require reports............................................................. 96

686........ Annual report.................................................................................... 97

Subdivision B—Appointment and terms and conditions of the Fair Work Ombudsman            97

687........ Appointment of the Fair Work Ombudsman..................................... 97

688........ Remuneration of the Fair Work Ombudsman................................... 97

689........ Leave of absence of the Fair Work Ombudsman.............................. 98

690........ Outside work of the Fair Work Ombudsman.................................... 98

691........ Disclosure of interests to the Minister............................................... 98

692........ Resignation of the Fair Work Ombudsman....................................... 98

693........ Termination of appointment of the Fair Work Ombudsman.............. 98

694........ Other terms and conditions of the Fair Work Ombudsman............... 99

695........ Appointment of acting Fair Work Ombudsman................................ 99

Division 3—Office of the Fair Work Ombudsman                                   101

Subdivision A—Establishment of the Office of the Fair Work Ombudsman 101

696........ Establishment of the Office of the Fair Work Ombudsman............ 101

Subdivision B—Staff and consultants etc.                                                        101

697........ Staff................................................................................................ 101

698........ Persons assisting the Fair Work Ombudsman................................ 101

699........ Consultants..................................................................................... 102

Subdivision C—Appointment of Fair Work Inspectors                               102

700........ Appointment of Fair Work Inspectors............................................ 102

701........ Fair Work Ombudsman is a Fair Work Inspector........................... 102

702........ Identity cards................................................................................... 102

Subdivision D—Functions and powers of Fair Work Inspectors               103

703........ Conditions and restrictions on functions and powers...................... 103

704........ General directions by the Fair Work Ombudsman.......................... 104

705........ Particular directions by the Fair Work Ombudsman....................... 104

706........ Purpose for which powers of inspectors may be exercised............. 104

707........ When powers of inspectors may be exercised................................. 105

708........ Power of inspectors to enter premises............................................. 105

709........ Powers of inspectors while on premises......................................... 105

710........ Persons assisting inspectors............................................................ 106

711........ Power to ask for person’s name and address.................................. 106

712........ Power to require persons to produce records or documents............ 107

713........ Self‑incrimination............................................................................ 107

713A..... Certain records and documents are inadmissible............................. 108

714........ Power to keep records or documents.............................................. 108

715........ Enforceable undertakings relating to contraventions of civil remedy provisions      109

716........ Compliance notices......................................................................... 110

717........ Review of compliance notices......................................................... 112

Subdivision E—Disclosure of information by the Office of the Fair Work Ombudsman           112

718........ Disclosure of information by the Office of the Fair Work Ombudsman  112

Chapter 6—Miscellaneous                                                                                            114

Part 6‑1—Multiple actions                                                                                            114

Division 1—Introduction                                                                                        114

719........ Guide to this Part............................................................................ 114

720........ Meanings of employee and employer.............................................. 114

Division 2—Certain actions not permitted if alternative action can be taken   115

721........ Equal remuneration applications...................................................... 115

722........ Notification and consultation requirements applications.................. 115

723........ Unlawful termination applications................................................... 116

Division 3—Preventing multiple actions                                                         117

Subdivision A—Equal remuneration applications                                        117

724........ Equal remuneration applications...................................................... 117

Subdivision B—Applications and complaints relating to dismissal          118

725........ General rule..................................................................................... 118

726........ Dismissal remedy bargaining order applications............................. 118

727........ General protections FWC applications............................................ 118

728........ General protections court applications............................................. 119

729........ Unfair dismissal applications.......................................................... 119

730........ Unlawful termination FWC applications......................................... 119

731........ Unlawful termination court applications.......................................... 120

732........ Applications and complaints under other laws................................ 120

733........ Dismissal does not include failure to provide benefits.................... 121

Subdivision C—General protections applications that do not relate to dismissal         121

734........ General rule..................................................................................... 121

Part 6‑2—Dealing with disputes                                                                                122

Division 1—Introduction                                                                                        122

735........ Guide to this Part............................................................................ 122

736........ Meanings of employee and employer.............................................. 122

Division 2—Dealing with disputes                                                                      123

Subdivision A—Model term about dealing with disputes                             123

737........ Model term about dealing with disputes.......................................... 123

Subdivision B—Dealing with disputes                                                               123

738........ Application of this Division............................................................ 123

739........ Disputes dealt with by the FWC..................................................... 123

740........ Dispute dealt with by persons other than the FWC......................... 124

Part 6‑3—Extension of National Employment Standards entitlements 126

Division 1—Introduction                                                                                        126

741........ Guide to this Part............................................................................ 126

742........ Meanings of employee and employer.............................................. 126

Division 2—Extension of entitlement to unpaid parental leave and related entitlements            127

Subdivision A—Main provisions                                                                        127

743........ Object of this Division.................................................................... 127

744........ Extending the entitlement to unpaid parental leave and related entitlements              127

745........ Contravening the extended parental leave provisions...................... 128

746........ References to the National Employment Standards include extended parental leave provisions               129

747........ State and Territory laws that are not excluded................................. 129

Subdivision B—Modifications of the extended parental leave provisions 129

748........ Non‑national system employees are not award/agreement free employees               129

749........ Modification of meaning of base rate of pay for pieceworkers....... 129

750........ Modification of meaning of full rate of pay for pieceworkers......... 130

751........ Modification of meaning of ordinary hours of work—if determined by State industrial instrument        130

752........ Modification of meaning of ordinary hours of work—if not determined by State industrial instrument  130

753........ Modification of meaning of ordinary hours of work—regulations may prescribe usual weekly hours    130

754........ Modification of meaning of pieceworker........................................ 131

755........ Modification of provision about interaction with paid leave............ 131

756........ Modification of provision about relationship between National Employment Standards and agreements                131

757........ Modification of power to make regulations..................................... 131

Division 3—Extension of entitlement to notice of termination or payment in lieu of notice       133

Subdivision A—Main provisions                                                                        133

758........ Object of this Division.................................................................... 133

759........ Extending entitlement to notice of termination or payment in lieu of notice              133

760........ Contravening the extended notice of termination provisions........... 134

761........ References to the National Employment Standards include extended notice of termination provisions    134

762........ State and Territory laws that are not excluded................................. 135

Subdivision B—Modifications of the extended notice of termination provisions          135

763........ Non‑national system employees are not award/agreement free employees               135

764........ Modification of meaning of full rate of pay for pieceworkers......... 135

765........ Modification of meaning of pieceworker........................................ 135

766........ Modification of provision about notice of termination by employee 136

767........ Modification of provision about relationship between National Employment Standards and agreements                136

768........ Modification of power to make regulations..................................... 136

Part 6‑3A—Transfer of business from a State public sector employer 137

Division 1—Introduction                                                                                        137

768AA.. Guide to this Part............................................................................ 137

768AB.. Meanings of employee and employer.............................................. 137

Division 2—Copying terms of State instruments when there is a transfer of business  138

768AC.. What this Division is about............................................................. 138

768AD.. When does a transfer of business occur?........................................ 138

768AE... Meaning of transferring employee, termination time and re‑employment time        139

Division 3—Copied State instruments                                                             140

Subdivision A—Guide to this Division                                                              140

768AF... What this Division is about............................................................. 140

Subdivision B—Copied State instruments                                                        140

768AG.. Contravening a copied State instrument.......................................... 140

768AH.. What is a copied State instrument?.................................................. 141

768AI.... What is a copied State award?......................................................... 141

768AJ... What is a State award?.................................................................... 142

768AK.. What is a copied State employment agreement?.............................. 142

768AL... What is a State employment agreement?.......................................... 143

768AM. When does a copied State instrument apply to a person?................ 144

768AN.. When does a copied State instrument cover a person?.................... 146

768AO.. When is a copied State instrument in operation?............................. 147

Division 4—Interaction between copied State instruments and the NES, modern awards and enterprise agreements                                                                                           149

Subdivision A—Guide to this Division                                                              149

768AP... What this Division is about............................................................. 149

Subdivision B—Interaction with the NES                                                        149

768AQ.. Interaction between the NES and a copied State instrument............ 149

768AR.. Provisions of the NES that allow instruments to contain particular kinds of terms  149

Subdivision C—Interaction with modern awards                                          150

768AS... Modern awards and copied State awards........................................ 150

768AT... Modern awards and copied State employment agreements............. 151

Subdivision D—Interaction with enterprise agreements                              152

768AU.. Enterprise agreements and copied State instruments....................... 152

Division 5—Variation and termination of copied State instruments 154

Subdivision A—Guide to this Division                                                              154

768AV.. What this Division is about............................................................. 154

Subdivision B—Variation of copied State instruments                                154

768AW. Variation in limited circumstances................................................... 154

768AX.. Variation of copied State instruments.............................................. 154

Subdivision C—Termination of copied State instruments                           157

768AY.. Termination in limited circumstances.............................................. 157

Division 6—FWC orders about coverage of copied State instruments and other instruments 158

Subdivision A—Guide to this Division                                                              158

768AZ... What this Division is about............................................................. 158

768AZA Orders in relation to a transfer of business...................................... 158

Subdivision B—Coverage orders                                                                       158

768BA.. FWC orders about coverage for transferring employees................. 158

768BB... FWC orders about coverage for employee organisations................ 160

Division 7—FWC orders about consolidating copied State instruments etc.      161

Subdivision A—Guide to this Division                                                              161

768BC... What this Division is about............................................................. 161

768BCA Orders in relation to a transfer of business...................................... 161

Subdivision B—Consolidation orders in relation to transferring employees 162

768BD.. Consolidation orders in relation to transferring employees [see Note 4]  162

768BE... Consolidation order to deal with application and coverage.............. 163

768BF... Effect of this Act after a consolidation order is made...................... 164

Subdivision C—Consolidation orders in relation to non‑transferring employees        164

768BG.. Consolidation orders in relation to non‑transferring employees...... 164

768BH.. Consolidation order to deal with application and coverage.............. 165

768BI.... Effect of this Act after a consolidation order is made...................... 166

Division 8—Special rules for copied State instruments                          167

Subdivision A—Guide to this Division                                                              167

768BJ.... What this Division is about............................................................. 167

Subdivision B—Terms about disputes                                                              167

768BK... Where no term dealing with disputes.............................................. 167

Subdivision C—Service and entitlements of a transferring employee     168

768BL... Service for the purposes of this Act................................................ 168

768BM.. NES—working out non‑accruing entitlements................................ 169

768BN.. NES—working out accruing entitlements....................................... 170

768BO.. Copied State instrument—service................................................... 171

768BP... Copied State instrument—working out non‑accruing entitlements.. 172

768BQ.. Copied State instrument—working out accruing entitlements......... 172

Subdivision D—Cessation of copied State awards: avoiding reductions in take‑home pay        173

768BR... Cessation not intended to result in reduction in take‑home pay....... 173

768BS... Orders remedying reductions in take‑home pay.............................. 174

768BT... Contravening a take‑home pay order............................................... 175

768BU.. How long a take‑home pay order continues to apply...................... 175

768BV.. Interaction of take‑home pay orders with modern awards and enterprise agreements              175

768BW.. Application of this Act to take‑home pay orders............................. 175

Subdivision E—Modification of this Act                                                          176

768BX.. Modification of this Act for copied State instruments..................... 176

Subdivision F—Modification of the Transitional Act                                  177

768BY.. Modification of the Transitional Act for copied State instruments.. 177

Subdivision G—Modification of the Registered Organisations Act          181

768BZ... Modification of the Registered Organisations Act for copied State instruments       181

Division 9—Regulations                                                                                          182

768CA.. Regulations..................................................................................... 182

Part 6‑4—Additional provisions relating to termination of employment 184

Division 1—Introduction                                                                                        184

769........ Guide to this Part............................................................................ 184

770........ Meanings of employee and employer.............................................. 184

Division 2—Termination of employment                                                       185

771........ Object of this Division.................................................................... 185

772........ Employment not to be terminated on certain grounds...................... 185

773........ Application for the FWC to deal with a dispute.............................. 187

774........ Time for application........................................................................ 187

775........ Application fees.............................................................................. 187

776........ Conferences.................................................................................... 188

777........ Certificate if dispute not resolved.................................................... 188

778........ Advice on unlawful termination court application........................... 188

779........ Unlawful termination court applications.......................................... 188

780........ Costs orders against lawyers and paid agents................................. 189

781........ Applications for costs orders.......................................................... 190

782........ Contravening costs orders............................................................... 190

783........ Reason for action to be presumed unless proved otherwise............ 190

Division 3—Notification and consultation requirements relating to certain terminations of employment                                                                                                                    191

Subdivision A—Object of this Division                                                             191

784........ Object of this Division.................................................................... 191

Subdivision B—Requirement to notify Centrelink                                        191

785........ Employer to notify Centrelink of certain proposed terminations..... 191

Subdivision C—Failure to notify or consult registered employee associations             192

786........ FWC may make orders where failure to notify or consult registered employee associations about terminations      192

787........ Orders that the FWC may make...................................................... 193

788........ Application to the FWC for order................................................... 194

Subdivision D—Limits on scope of this Division                                            194

789........ Limits on scope of this Division..................................................... 194

Part 6‑4A—Special provisions about TCF outworkers                              196

Division 1—Introduction                                                                                        196

789AA.. Guide to this Part............................................................................ 196

789AB.. Meanings of employee and employer.............................................. 196

789AC.. Objects of this Part.......................................................................... 196

Division 2—TCF contract outworkers taken to be employees in certain circumstances             198

789BA.. Provisions covered by this Division............................................... 198

789BB... TCF contract outworkers taken to be employees in certain circumstances                198

789BC... Regulations relating to TCF outworkers who are taken to be employees 200

Division 3—Recovery of unpaid amounts                                                     201

789CA.. When this Division applies............................................................. 201

789CB... Liability of indirectly responsible entity for unpaid amount............ 203

789CC... Demand for payment from an apparent indirectly responsible entity 203

789CD.. Court order for entity to pay amount demanded.............................. 203

789CE... Effect of payment by entity (including entity’s right to recover from responsible person)       205

789CF... Division does not limit other liabilities or rights.............................. 206

Division 4—Code of practice relating to TCF outwork                         207

789DA.. Regulations may provide for a code................................................ 207

789DB.. Matters that may be dealt with in TCF outwork code...................... 207

789DC.. Persons on whom obligations may be imposed by TCF outwork code 207

789DD.. Other general matters relating to content of TCF outwork code...... 209

789DE... Relationship between the TCF outwork code and other instruments 209

Division 5—Miscellaneous                                                                                     211

789EA... Part not intended to exclude or limit State or Territory laws relating to outworkers 211

Part 6‑5—Miscellaneous                                                                                                 212

Division 1—Introduction                                                                                        212

790........ Guide to this Part............................................................................ 212

791........ Meanings of employee and employer.............................................. 212

Division 2—Miscellaneous                                                                                     213

792........ Delegation by Minister.................................................................... 213

793........ Liability of bodies corporate............................................................ 213

794........ Signature on behalf of body corporate............................................ 214

795........ Public sector employer to act through employing authority............. 214

795A..... The Schedules................................................................................. 216

796........ Regulations—general...................................................................... 216

796A..... Regulations conferring functions.................................................... 216

797........ Regulations dealing with offences................................................... 216

798........ Regulations dealing with civil penalties........................................... 216

799........ Regulations dealing with infringement notices................................ 217

800........ Regulations dealing with exhibiting fair work instruments............. 217

Schedule 1—Application, saving and transitional provisions relating to amendments of this Act           218

Part 1—Amendments made by the Fair Work Amendment (Textile, Clothing and Footwear Industry) Act 2012                                                                                                                218

1............ Definitions...................................................................................... 218

2............ Section 789BB of amended Act applies to contracts entered into after commencement            218

3............ Effect on TCF contract outworker’s entitlements............................ 219

4............ Fair work instruments etc. made before commencement................. 219

5............ Application of Division 3 of Part 6‑4A of amended Act................. 220

6............ Application of subsection 203(2A) of amended Act....................... 220

7............ Regulations dealing with various matters........................................ 220

Part 2—Amendments made by the Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Act 2012                                                      222

8............ Definitions...................................................................................... 222

9............ Application of sections 149A and 155A of amended Act............... 222

10.......... FWA to vary certain modern awards.............................................. 222

11.......... FWA to update text of certain modern awards................................ 223

12.......... Application of paragraph 194(h) of amended Act........................... 223

Schedule 2—Amendments made by the Fair Work Amendment (Transfer of Business) Act 2012       224

1............ Definitions...................................................................................... 224

2............ Application of the amendments made by the amending Act............ 224

Schedule 3—Amendments made by the Fair Work Amendment Act 2012           225

Part 1—Preliminary                                                                                                         225

1............ Definitions...................................................................................... 225

Part 2—Default superannuation (Schedule 1)                                                 226

2............ Schedule 1 to the amending Act...................................................... 226

Part 3—Modern awards (Schedule 3)                                                                   227

3............ Part 1 of Schedule 3 to the amending Act....................................... 227

Part 4—Enterprise agreements (Schedule 4)                                                    228

4............ Part 1 of Schedule 4 to the amending Act....................................... 228

5............ Part 2 of Schedule 4 to the amending Act....................................... 228

6............ Part 3 of Schedule 4 to the amending Act....................................... 228

7............ Part 4 of Schedule 4 to the amending Act....................................... 228

8............ Part 5 of Schedule 4 to the amending Act....................................... 229

Part 5—General protections (Schedule 5)                                                           230

9............ Part 1 of Schedule 5 to the amending Act....................................... 230

Part 6—Unfair dismissal (Schedule 6)                                                                   231

10.......... Part 1 of Schedule 6 to the amending Act....................................... 231

11.......... Part 2 of Schedule 6 to the amending Act....................................... 231

12.......... Part 3 of Schedule 6 to the amending Act....................................... 231

13.......... Part 4 of Schedule 6 to the amending Act....................................... 231

Part 7—Industrial action (Schedule 7)                                                                  232

14.......... Part 1 of Schedule 7 to the amending Act....................................... 232

15.......... Part 2 of Schedule 7 to the amending Act....................................... 232

16.......... Part 3 of Schedule 7 to the amending Act....................................... 232

Part 8—The Fair Work Commission (Schedule 8)                                        233

17.......... Part 1 of Schedule 8 to the amending Act....................................... 233

18.......... Part 2 of Schedule 8 to the amending Act....................................... 233

19.......... Part 4 of Schedule 8 to the amending Act....................................... 233

20.......... Part 5 of Schedule 8 to the amending Act....................................... 233

21.......... Part 6 of Schedule 8 to the amending Act....................................... 233

22.......... Part 7 of Schedule 8 to the amending Act....................................... 233

23.......... Part 8 of Schedule 8 to the amending Act....................................... 234

Part 9—Changing the name of Fair Work Australia (Schedule 9)     235

24.......... Transitional provision—President................................................... 235

25.......... Transitional provision—Deputy President...................................... 235

26.......... Transitional provision—Commissioner.......................................... 236

27.......... Transitional provision—Minimum Wage Panel Member................ 237

28.......... Operation of laws—things done by, or in relation to, FWA........... 238

29.......... Transitional provision—General Manager and staff of FWA......... 239

30.......... Operation of section 7 and subsection 25B(1) of the Acts Interpretation Act 1901 not limited                240

Part 10—Other amendments (Schedule 10)                                                       241

31.......... Part 1 of Schedule 10 to the amending Act..................................... 241

Part 11—Regulations                                                                                                       242

32.......... Regulations about application, transitional and saving matters........ 242

Notes                                                                                                                                           243


Chapter 4Compliance and enforcement

Part 4‑1Civil remedies

Division 1Introduction

537  Guide to this Part

This Part is about civil remedies. Certain provisions in this Act impose obligations on certain persons. Civil remedies may be sought in relation to contraventions of these civil remedy provisions.

Subdivision A of Division 2 deals with applications for orders in relation to contraventions of civil remedy provisions and safety net contractual entitlements, and applications for orders to enforce entitlements arising under subsection 542(1).

Subdivision B of Division 2 sets out the orders that can be made by the Federal Court, the Federal Magistrates Court or an eligible State or Territory Court in relation to a contravention of a civil remedy provision.

Division 3 sets out when proceedings relating to a contravention of a civil remedy provision may be dealt with as small claims proceedings.

Division 4 deals with general provisions relating to civil remedies, including rules about evidence and procedure.

Division 5 deals with unclaimed money.

538  Meanings of employee and employer

                   In this Part, employee and employer have their ordinary meanings.

Note:          See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).


 

Division 2Orders

Subdivision AApplications for orders

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

             (1)  A provision referred to in column 1 of an item in the table in subsection (2) is a civil remedy provision.

             (2)  For each civil remedy provision, the persons referred to in column 2 of the item may, subject to sections 540 and 544 and Subdivision B, apply to the courts referred to in column 3 of the item for orders in relation to a contravention or proposed contravention of the provision, including the maximum penalty referred to in column 4 of the item.

Note 1:       Civil remedy provisions within a single Part may be grouped together in a single item of the table.

Note 2:       Applications cannot be made by an inspector in relation to a contravention of a civil remedy provision by a person in certain cases where an undertaking or compliance notice has been given (see subsections 715(4) and 716(4A)).

Note 3:       The regulations may also prescribe persons for the purposes of an item in column 2 of the table (see subsection 540(8)).

 

Standing, jurisdiction and maximum penalties

Item

Column 1
Civil remedy provision

Column 2
Persons

Column 3
Courts

Column 4
Maximum penalty

Part 2‑1—Core provisions

1

44(1)

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

2

45 (other than in relation to a contravention or proposed contravention of an outworker term)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

3

45 (in relation to a contravention or proposed contravention of an outworker term)

(a) an outworker;

(b) an employer;

(c) an outworker entity;

(d) an employee organisation;

(e) an employer organisation;

(f) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

4

50 (other than in relation to a contravention or proposed contravention of a term that would be an outworker term if it were included in a modern award)

(a) an employee;

(b) an employer;

(c) an employee organisation to which the enterprise agreement concerned applies;

(d) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

5

50 (in relation to a contravention or proposed contravention of a term that would be an outworker term if it were included in a modern award)

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

Part 2‑4—Enterprise agreements

6

233

(a) an employee who the proposed enterprise agreement will cover;

(b) a bargaining representative for the proposed enterprise agreement;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

Part 2‑5—Workplace determinations

7

280

(a) an employee;

(b) an employer;

(c) an employee organisation to which the workplace determination concerned applies;

(d) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

Part 2‑6—Minimum wages

8

293

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

Part 2‑7—Equal remuneration

9

305

(a) an employee;

(b) an employee organisation;

(c)  an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c)  an eligible State or Territory court

60 penalty units

Part 2‑9—Other terms and conditions of employment

10

323(1)
323(3)
325(1)
328(1)
328(2)
328(3)

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

Part 3‑1—General protections

11

340(1)
340(2)
343(1)
344
345(1)
346
348
349(1)
350(1)
350(2)
351(1)
352
353(1)
354(1)
355
357(1)
358
359

(a) a person affected by the contravention;

(b) an industrial association;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

60 penalty units

12

378

(a) a person to whom the costs are payable;

(b) an industrial association;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

60 penalty units

Part 3‑2—Unfair dismissal

13

405

(a) a person affected by the contravention;

(b) an employee organisation;

(c) an employer organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

Part 3‑3—Industrial action

14

417(1)

(a) an employee;

(b) an employer;

(c) an employee organisation covered by the enterprise agreement or workplace determination concerned;

(d) a person affected by the industrial action;

(e)  an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

60 penalty units

15

421(1)

(a) a person affected by the contravention;

(b) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

60 penalty units

16

434

an inspector

the Federal Court

60 penalty units

17

458(2)

(a) an employee;

(b) an employer;

(c) an applicant for the protected action ballot order;

(d) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

30 penalty units

18

462(1)
462(3)

(a) an employee;

(b) an employer;

(c) an applicant for the protected action ballot order;

(d) the protected action ballot agent;

(e) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

30 penalty units

19

463(1)
463(2)

(a) an employee;

(b) an employer;

(c) an applicant for the protected action ballot order;

(d) the protected action ballot agent;

(e) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

60 penalty units

20

467(1)

(a) an employee;

(b) an employer;

(c) an applicant for the protected action ballot order;

(d) the protected action ballot agent;

(e) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

30 penalty units

21

470(1)

an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

60 penalty units

22

473(1)
473(2)

(a) an employer;

(b) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

60 penalty units

23

474(1)

an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

60 penalty units

24

475(1)
475(2)

(a) an employer;

(b) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

60 penalty units

Part 3‑4—Right of entry

25

482(3)
483(4)
483B(4)
483C(5)
483D(4)
483E(5)
494(1)
495(1)
496
497
498
499
500
501
502(1)
503(1)
504
506
509

(a) a person affected by the contravention;

(b) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

60 penalty units

26

517(1)

an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

60 penalty units

Part 3‑5—Stand down

27

527

(a) an employee;

(b) an employee organisation;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c)  an eligible State or Territory court

60 penalty units

Part 3‑6—Other rights and responsibilities

28

530(4)

(a) an employee;

(b) a registered employee association;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

30 penalty units

29

535(1)
535(2)
536(1)
536(2)

(a) an employee;

(b) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

30 penalty units

Part 5‑1—The Fair Work Commission

30

611(3)

(a) a person to whom the costs are payable;

(b) an employee organisation;

(c) an employer organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

Part 5‑2—Office of the Fair Work Ombudsman

31

711(3)

an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

30 penalty units

32

712(3)

an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

33

716(5)

an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

30 penalty units

Part 6‑3—Extension of National Employment Standards entitlements

34

745(1)
760

(a) an employee;

(b) a registered employee association;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

Part 6‑3A—Transfer of business from a State public sector employer

34A

768AG

(a) the transferring employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation;

(e) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

34B

768BT

(a) the transferring employee;

(b) an employer;

(c) an employee organisation;

(d) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) an eligible State or Territory court

60 penalty units

Part 6‑4—Additional provisions relating to termination of employment

35

772(1)

(a) a person affected by the contravention;

(b) an industrial association;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

60 penalty units

36

782

(a) a person to whom the costs are payable;

(b) an industrial association;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

60 penalty units

37

785(4)

(a) an employee;

(b) a registered employee association;

(c) an inspector

(a) the Federal Court;

(b) the Federal Magistrates Court

30 penalty units

             (3)  The regulations may provide that a provision set out in the regulations is a civil remedy provision.

             (4)  If the regulations make provision as mentioned in subsection (3):

                     (a)  the regulations must set out:

                              (i)  the persons who would be referred to in column 2; and

                             (ii)  the courts that would be referred to in column 3; and

                            (iii)  the maximum penalty that would be referred to in column 4;

                            of the table in subsection (2) if there were an item for the civil remedy provision in the table; and

                     (b)  this Part has effect as if the matters referred to subparagraphs (a)(i) to (iii) were set out in such an item in the table.

Note:          See section 798 for limits on the penalties that may be set out in the regulations.

540  Limitations on who may apply for orders etc.

Employees, employers, outworkers and outworker entities

             (1)  The following persons may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if the person is affected by the contravention, or will be affected by the proposed contravention:

                     (a)  an employee;

                     (b)  an employer;

                     (c)  an outworker;

                     (d)  an outworker entity.

Employee organisations and registered employee associations

             (2)  An employee organisation or a registered employee association may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision in relation to an employee, only if:

                     (a)  the employee is affected by the contravention, or will be affected by the proposed contravention; and

                     (b)  the organisation or association is entitled to represent the industrial interests of the employee.

             (3)  However, subsection (2) does not apply in relation to:

                     (a)  items 4, 7 and 14 in the table in subsection 539(2); or

                     (b)  a contravention or proposed contravention of:

                              (i)  an outworker term in a modern award; or

                             (ii)  a term in an enterprise agreement that would be an outworker term if it were included in a modern award.

             (4)  An employee organisation may apply for an order under this Division, in relation to a contravention or proposed contravention of:

                     (a)  an outworker term in a modern award; or

                     (b)  a term in an enterprise agreement that would be an outworker term if it were included in a modern award;

only if the employee organisation is entitled to represent the industrial interests of an outworker to whom the term relates.

Employer organisations

             (5)  An employer organisation may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if the organisation has a member who is affected by the contravention, or who will be affected by the proposed contravention.

Industrial associations

             (6)  An industrial association may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if:

                     (a)  the industrial association is affected by the contravention, or will be affected by the proposed contravention; or

                     (b)  if the contravention is in relation to a person:

                              (i)  the person is affected by the contravention, or will be affected by the proposed contravention; and

                             (ii)  the industrial association is entitled to represent the industrial interests of the person.

             (7)  If an item in column 2 of the table in subsection 539(2) refers to an industrial association then, to avoid doubt, an employee organisation, a registered employee association or an employer organisation may apply for an order, in relation to a contravention or proposed contravention of a civil remedy provision, only if the organisation or association is entitled to apply for the order under subsection (6).

Regulations

             (8)  The regulations may prescribe a person for the purposes of an item in column 2 of the table in subsection 539(2). The regulations may provide that the person is prescribed only in relation to circumstances specified in the regulations.

541  Applications for orders in relation to safety net contractual entitlements

             (1)  This section applies if an inspector applies to a court for an order under this Division, in relation to an employer’s contravention or proposed contravention of a provision or term referred to in subsection (3) in relation to an employee.

             (2)  The inspector may also apply to the court, on behalf of the employee, for an order in relation to the employer’s contravention, or proposed contravention, of a safety net contractual entitlement of the employee.

             (3)  The provisions and terms are the following:

                     (a)  a provision of the National Employment Standards;

                     (b)  a term of a modern award;

                     (c)  a term of an enterprise agreement;

                     (d)  a term of a workplace determination;

                     (e)  a term of a national minimum wage order;

                      (f)  a term of an equal remuneration order.

542  Entitlements under contracts

             (1)  For the purposes of this Part, a safety net contractual entitlement of a national system employer or a national system employee, as in force from time to time, also has effect as an entitlement of the employer or employee under this Act.

             (2)  The entitlement has effect under this Act subject to any modifications, by a law of the Commonwealth (including this Act or a fair work instrument), a State or a Territory, of the safety net contractual entitlement.

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

                   A national system employer or a national system employee may apply to the Federal Court or the Federal Magistrates Court to enforce an entitlement of the employer or employee arising under subsection 542(1).

544  Time limit on applications

                   A person may apply for an order under this Division in relation to a contravention of one of the following only if the application is made within 6 years after the day on which the contravention occurred:

                     (a)  a civil remedy provision;

                     (b)  a safety net contractual entitlement;

                     (c)  an entitlement arising under subsection 542(1).

Note 1:       This section does not apply in relation to general protections court applications or unlawful termination court applications (see subsections 371(2) and 779(2)).

Note 2:       For time limits on orders relating to underpayments, see subsection 545(5).

Subdivision BOrders

545  Orders that can be made by particular courts

Federal Court and Federal Magistrates Court

             (1)  The Federal Court or the Federal Magistrates Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

Note 1:       For the court’s power to make pecuniary penalty orders, see section 546.

Note 2:       For limitations on orders in relation to costs, see section 570.

Note 3:       The Federal Court and the Federal Magistrates Court may grant injunctions in relation to industrial action under subsections 417(3) and 421(3).

Note 4:       There are limitations on orders that can be made in relation to contraventions of subsection 65(5), 76(4), 463(1) or 463(2) (which deal with reasonable business grounds and protected action ballot orders) (see subsections 44(2), 463(3) and 745(2)).

             (2)  Without limiting subsection (1), orders the Federal Court or Federal Magistrates Court may make include the following:

                     (a)  an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

                     (b)  an order awarding compensation for loss that a person has suffered because of the contravention;

                     (c)  an order for reinstatement of a person.

Eligible State or Territory courts

             (3)  An eligible State or Territory court may order an employer to pay an amount to, or on behalf of, an employee of the employer if the court is satisfied that:

                     (a)  the employer was required to pay the amount under this Act or a fair work instrument; and

                     (b)  the employer has contravened a civil remedy provision by failing to pay the amount.

Note 1:       For the court’s power to make pecuniary penalty orders, see section 546.

Note 2:       For limitations on orders in relation to costs, see section 570.

          (3A)  An eligible State or Territory court may order an outworker entity to pay an amount to, or on behalf of, an outworker if the court is satisfied that:

                     (a)  the outworker entity was required to pay the amount under a modern award; and

                     (b)  the outworker entity has contravened a civil remedy provision by failing to pay the amount.

Note 1:       For the court’s power to make pecuniary penalty orders, see section 546.

Note 2:       For limitations on orders in relation to costs, see section 570.

When orders may be made

             (4)  A court may make an order under this section:

                     (a)  on its own initiative, during proceedings before the court; or

                     (b)  on application.

Time limit for orders in relation to underpayments

             (5)  A court must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced.

546  Pecuniary penalty orders

             (1)  The Federal Court, the Federal Magistrates Court or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

Note:          Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of a modern award, a national minimum wage order or an enterprise agreement only because of the retrospective effect of a determination (see subsections 167(3) and 298(2)).

Determining amount of pecuniary penalty

             (2)  The pecuniary penalty must not be more than:

                     (a)  if the person is an individual—the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or

                     (b)  if the person is a body corporate—5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).

Payment of penalty

             (3)  The court may order that the pecuniary penalty, or a part of the penalty, be paid to:

                     (a)  the Commonwealth; or

                     (b)  a particular organisation; or

                     (c)  a particular person.

Recovery of penalty

             (4)  The pecuniary penalty may be recovered as a debt due to the person to whom the penalty is payable.

No limitation on orders

             (5)  To avoid doubt, a court may make a pecuniary penalty order in addition to one or more orders under section 545.

547  Interest up to judgment

             (1)  This section applies to an order (other than a pecuniary penalty order) under this Division in relation to an amount that a person was required to pay to, or on behalf of, another person under this Act or a fair work instrument.

             (2)  In making the order the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.

             (3)  Without limiting subsection (2), in determining the amount of interest, the court must take into account the period between the day the relevant cause of action arose and the day the order is made.


 

Division 3Small claims procedure

548  Plaintiffs may choose small claims procedure

             (1)  Proceedings are to be dealt with as small claims proceedings under this section if:

                     (a)  a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Magistrates Court; and

                     (b)  the order relates to an amount referred to in subsection (1A); and

                     (c)  the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.

          (1A)  The amounts are as follows:

                     (a)  an amount that an employer was required to pay to, or on behalf of, an employee:

                              (i)  under this Act or a fair work instrument; or

                             (ii)  because of a safety net contractual entitlement; or

                            (iii)  because of an entitlement of the employee arising under subsection 542(1);

                     (b)  an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.

Limits on award

             (2)  In small claims proceedings, the court may not award more than:

                     (a)  $20,000; or

                     (b)  if a higher amount is prescribed by the regulations—that higher amount.

Procedure

             (3)  In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:

                     (a)  in an informal manner; and

                     (b)  without regard to legal forms and technicalities.

             (4)  At any stage of the small claims proceedings, the court may amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment.

Legal representation

             (5)  A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court.

             (6)  If the court grants leave for a party to the proceedings to be represented by a lawyer, the court may, if it considers appropriate, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.

             (7)  For the purposes of this section, a person is taken not to be represented by a lawyer if the lawyer is an employee or officer of the person.

Representation by an industrial association

             (8)  The regulations may provide for a party to small claims proceedings to be represented in the proceedings, in specified circumstances, by an official of an industrial association.

             (9)  However, if small claims proceedings are heard in a court of a State, the regulations may so provide only if the law of the State allows a party to be represented in that court in those circumstances by officials of bodies representing interests related to the matters in dispute.


 

Division 4General provisions relating to civil remedies

549  Contravening a civil remedy provision is not an offence

                   A contravention of a civil remedy provision is not an offence.

550  Involvement in contravention treated in same way as actual contravention

             (1)  A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

             (2)  A person is involved in a contravention of a civil remedy provision if, and only if, the person:

                     (a)  has aided, abetted, counselled or procured the contravention; or

                     (b)  has induced the contravention, whether by threats or promises or otherwise; or

                     (c)  has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

                     (d)  has conspired with others to effect the contravention.

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

                   A court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention, or proposed contravention, of a civil remedy provision.

552  Civil proceedings after criminal proceedings

                   A court must not make a pecuniary penalty order against a person for a contravention of a civil remedy provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.

553  Criminal proceedings during civil proceedings

             (1)  Proceedings for a pecuniary penalty order against a person for a contravention of a civil remedy provision are stayed if:

                     (a)  criminal proceedings are commenced or have already commenced against the person for an offence; and

                     (b)  the offence is constituted by conduct that is substantially the same as the conduct in relation to which the order would be made.

             (2)  The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.

554  Criminal proceedings after civil proceedings

                   Criminal proceedings may be commenced against a person for conduct that is substantially the same as conduct constituting a contravention of a civil remedy provision regardless of whether an order has been made against the person under Division 2.

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

             (1)  Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:

                     (a)  the individual previously gave the information or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of a civil remedy provision (whether or not the order was made); and

                     (b)  the conduct alleged to constitute the offence is substantially the same as the conduct in relation to which the order was sought.

             (2)  However, this does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.

556  Civil double jeopardy

                   If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.

Note:          A court may make other orders, such as an order for compensation, in relation to particular conduct even if the court has made a pecuniary penalty order in relation to that conduct (see subsection 546(5)).

557  Course of conduct

             (1)  For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:

                     (a)  the contraventions are committed by the same person; and

                     (b)  the contraventions arose out of a course of conduct by the person.

             (2)  The civil remedy provisions are the following:

                     (a)  subsection 44(1) (which deals with contraventions of the National Employment Standards);

                     (b)  section 45 (which deals with contraventions of modern awards);

                     (c)  section 50 (which deals with contraventions of enterprise agreements);

                     (d)  section 280 (which deals with contraventions of workplace determinations);

                     (e)  section 293 (which deals with contraventions of national minimum wage orders);

                      (f)  section 305 (which deals with contraventions of equal remuneration orders);

                     (g)  subsection 323(1) (which deals with methods and frequency of payment);

                     (h)  subsection 323(3) (which deals with methods of payment specified in modern awards or enterprise agreements);

                      (i)  subsection 325(1) (which deals with unreasonable requirements to spend amounts);

                      (j)  subsection 417(1) (which deals with industrial action before the nominal expiry date of an enterprise agreement etc.);

                     (k)  subsection 421(1) (which deals with contraventions of orders in relation to industrial action);

                      (l)  section 434 (which deals with contraventions of Ministerial directions in relation to industrial action);

                    (m)  subsection 530(4) (which deals with notifying Centrelink of certain proposed dismissals);

                     (n)  subsections 535(1) and (2) (which deal with employer obligations in relation to employee records);

                     (o)  subsections 536(1) and (2) (which deal with employer obligations in relation to pay slips);

                     (p)  subsection 745(1) (which deals with contraventions of the extended parental leave provisions);

                     (q)  section 760 (which deals with contraventions of the extended notice of termination provisions);

                      (r)  subsection 785(4) (which deals with notifying Centrelink of certain proposed terminations);

                      (s)  any other civil remedy provisions prescribed by the regulations.

             (3)  Subsection (1) does not apply to a contravention of a civil remedy provision that is committed by a person after a court has imposed a pecuniary penalty on the person for an earlier contravention of the provision.

558  Regulations dealing with infringement notices

             (1)  The regulations may provide for a person who is alleged to have contravened a civil remedy provision to pay a penalty to the Commonwealth as an alternative to civil proceedings.

             (2)  The penalty must not exceed one‑tenth of the maximum penalty that a court could have ordered the person to pay under section 546 if the court was satisfied that the person had contravened that provision.


 

Division 5Unclaimed money

559  Unclaimed money

Payment to the Commonwealth

             (1)  An employer may pay an amount to the Commonwealth if:

                     (a)  the employer was required to pay the amount to an employee under this Act or a fair work instrument; and

                     (b)  the employee has left the employment of the employer without having been paid the amount; and

                     (c)  the employer is unable to pay the amount to the employee because the employer does not know the employee’s whereabouts.

Discharge of employer

             (2)  Payment of the amount to the Commonwealth is a sufficient discharge to the employer, as against the employee, for the amount paid.

Payment where money later claimed

             (3)  The Fair Work Ombudsman, on behalf of the Commonwealth, must pay an amount to a person if:

                     (a)  the amount has been paid to the Commonwealth under this section; and

                     (b)  the person has made a claim for the amount in accordance with the form prescribed by the regulations; and

                     (c)  the Fair Work Ombudsman is satisfied that the person is entitled to the amount.

Appropriation of Consolidated Revenue Fund

             (4)  The Consolidated Revenue Fund is appropriated for the purposes of this section.


 

Part 4‑2Jurisdiction and powers of courts

Division 1Introduction

560  Guide to this Part

This Part is about the jurisdiction and powers of the courts in relation to matters arising under this Act.

Divisions 2 and 3 confer jurisdiction on the Federal Court and the Federal Magistrates Court. That jurisdiction is generally required to be exercised in the Fair Work Divisions of those courts.

Division 4 deals with intervention, costs, limitation on imprisonment, and regulations, in relation to proceedings in the Federal Court, the Federal Magistrates Court and, in some cases, a court of a State or Territory.

561  Meanings of employee and employer

                   In this Part, employee and employer have their ordinary meanings.

Note:          See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).


 

Division 2Jurisdiction and powers of the Federal Court

562  Conferring jurisdiction on the Federal Court

                   Jurisdiction is conferred on the Federal Court in relation to any matter (whether civil or criminal) arising under this Act.

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

                   The jurisdiction conferred on the Federal Court under section 562 is to be exercised in the Fair Work Division of the Federal Court if:

                     (a)  an application is made to the Federal Court under this Act; or

                     (b)  a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Act; or

                     (c)  a declaration is sought under section 21 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or

                     (d)  an injunction is sought under section 23 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or

                     (e)  a prosecution is instituted in the Federal Court under this Act; or

                      (f)  an appeal is instituted in the Federal Court from a judgment of the Federal Magistrates Court or a court of a State or Territory in a matter arising under this Act; or

                     (g)  proceedings in relation to a matter arising under this Act are transferred to the Federal Court from the Federal Magistrates Court; or

                     (h)  the Federal Magistrates Court or a court of a State or Territory states a case or reserves a question for the consideration of the Federal Court in a matter arising under this Act; or

                      (i)  the President refers, under section 608 of this Act, a question of law to the Federal Court; or

                      (j)  the High Court remits a matter arising under this Act to the Federal Court.

564  No limitation on Federal Court’s powers

                   To avoid doubt, nothing in this Act limits the Federal Court’s powers under section 21, 22 or 23 of the Federal Court of Australia Act 1976.

565  Appeals from eligible State or Territory courts

Appeals from original decisions of eligible State or Territory courts

             (1)  An appeal lies to the Federal Court from a decision of an eligible State or Territory court exercising jurisdiction under this Act.

          (1A)  No appeal lies from a decision of an eligible State or Territory court exercising jurisdiction under this Act, except:

                     (a)  if the court was exercising summary jurisdiction—an appeal, to that court or another eligible State or Territory court of the same State or Territory, as provided for by a law of that State or Territory; or

                     (b)  in any case—an appeal as provided for by subsection (1).

Appeals from appellate decisions of eligible State or Territory courts

          (1B)  An appeal lies to the Federal Court from a decision of an eligible State or Territory court made on appeal from a decision that:

                     (a)  was a decision of that court or another eligible State or Territory court of the same State or Territory; and

                     (b)  was made in the exercise of jurisdiction under this Act.

          (1C)  No appeal lies from a decision to which subsection (1B) applies, except an appeal as provided for by that subsection.

Leave to appeal not required

             (2)  It is not necessary to obtain the leave of the Federal Court, or the court appealed from, in relation to an appeal under subsection (1) or (1B).


 

Division 3Jurisdiction and powers of the Federal Magistrates Court

566  Conferring jurisdiction on the Federal Magistrates Court

                   Jurisdiction is conferred on the Federal Magistrates Court in relation to any civil matter arising under this Act.

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

                   Jurisdiction conferred on the Federal Magistrates Court under section 566 is to be exercised in the Fair Work Division of the Federal Magistrates Court if:

                     (a)  an application is made to the Federal Magistrates Court under this Act; or

                     (b)  an injunction is sought under section 15 of the Federal Magistrates Act 1999 in relation to a matter arising under this Act; or

                     (c)  a declaration is sought under section 16 of the Federal Magistrates Act 1999 in relation to a matter arising under this Act; or

                     (d)  proceedings in relation to a matter arising under this Act are transferred to the Federal Magistrates Court from the Federal Court; or

                     (e)  the High Court remits a matter arising under this Act to the Federal Magistrates Court.

568  No limitation on Federal Magistrates Court’s powers

                   To avoid doubt, nothing in this Act limits the Federal Magistrates Court’s powers under section 14, 15 or 16 of the Federal Magistrates Act 1999.


 

Division 4Miscellaneous

569  Minister’s entitlement to intervene

             (1)  The Minister may intervene on behalf of the Commonwealth in proceedings before a court (including a court of a State or Territory) in relation to a matter arising under this Act if the Minister believes it is in the public interest to do so.

             (2)  If the Minister intervenes, the Minister is taken to be a party to the proceedings for the purposes of instituting an appeal from a judgment given in the proceedings.

             (3)  Despite section 570, a court may make an order as to costs against the Commonwealth if:

                     (a)  the Minister intervenes under subsection (1); or

                     (b)  the Minister institutes an appeal from a judgment as referred to in subsection (2).

569A  State or Territory Minister’s entitlement to intervene

             (1)  The Minister of a State or Territory who has responsibility for workplace relations matters may intervene on behalf of the State or Territory in proceedings before a court (including a court of a State or Territory) in relation to a matter arising under this Act if he or she believes it is in the public interest of the State or Territory to do so.

             (2)  If the Minister of a State or Territory who has responsibility for workplace relations matters intervenes, he or she is taken to be a party to the proceedings for the purposes of instituting an appeal from a judgment given in the proceedings.

             (3)  Despite section 570, a court may make an order as to costs against a State or Territory if:

                     (a)  the Minister of a State or Territory who has responsibility for workplace relations matters intervenes under subsection (1); or

                     (b)  he or she institutes an appeal from a judgment as referred to in subsection (2).

570  Costs only if proceedings instituted vexatiously etc.

             (1)  A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

Note:          The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.

             (2)  The party may be ordered to pay the costs only if:

                     (a)  the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

                     (b)  the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or

                     (c)  the court is satisfied of both of the following:

                              (i)  the party unreasonably refused to participate in a matter before the FWC;

                             (ii)  the matter arose from the same facts as the proceedings.

571  No imprisonment for failure to pay pecuniary penalty

             (1)  A court (including a court of a State or Territory) may not order a person to serve a sentence of imprisonment if the person fails to pay a pecuniary penalty imposed under this Act.

             (2)  This section applies despite any other law of the Commonwealth, a State or a Territory.

572  Regulations dealing with matters relating to court proceedings

                   The regulations may provide for the fees to be charged in relation to proceedings in a court (including a court of a State or Territory) under this Act.


 

Chapter 5Administration

Part 5‑1The Fair Work Commission

Division 1Introduction

573  Guide to this Part

This Part is about the Fair Work Commission.

Division 2 establishes and confers functions on the FWC. The FWC consists of the President, Vice Presidents, Deputy Presidents, Commissioners and Minimum Wage Panel Members. Division 2 also confers functions on the President.

Division 3 deals with the conduct of matters before the FWC (such as applications, representation by lawyers, the FWC’s decisions and appeals).

Division 4 deals with the organisation of the FWC, who may perform functions of the FWC and delegation of the FWC’s functions and powers. Certain functions must be performed by a Full Bench or the Minimum Wage Panel.

Division 5 deals with the appointment, terms and conditions of FWC Members.

Division 6 deals with cooperation with the States.

Division 7 deals with the FWC’s seal. It also deals with other powers and functions of the President and the General Manager (including in relation to annual reports, reports on making enterprise agreements, arrangements with certain courts, and disclosing information obtained by the FWC).

Division 8 is about the General Manager of the FWC (whose function is to assist the President), staff of the FWC and others assisting the FWC.

Division 9 contains offences in relation to the FWC.

574  Meanings of employee and employer

                   In this Part, employee and employer have their ordinary meanings.

Note:          See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).


 

Division 2Establishment and functions of the Fair Work Commission

Subdivision AEstablishment and functions of the Fair Work Commission

575  Establishment of the Fair Work Commission

             (1)  The body known immediately before the commencement of this subsection as Fair Work Australia is continued in existence as the Fair Work Commission.

Note:          See also subsection 25B(1) of the Acts Interpretation Act 1901.

             (2)  The Fair Work Commission consists of:

                     (a)  the President; and

                    (aa)  2 Vice Presidents; and

                     (b)  such number of Deputy Presidents as, from time to time, hold office under this Act; and

                     (c)  such number of Commissioners as, from time to time, hold office under this Act; and

                     (d)  a minimum of 3, and no more than 6, Minimum Wage Panel Members.

Note:          The Fair Work Commission also has a General Manager and staff (see Division 8).

576  Functions of the FWC

             (1)  The FWC has the functions conferred by this Act in relation to the following subject matters:

                     (a)  the National Employment Standards (Part 2‑2);

                     (b)  modern awards (Part 2‑3);

                     (c)  enterprise agreements (Part 2‑4);

                     (d)  workplace determinations (Part 2‑5);

                     (e)  minimum wages (Part 2‑6);

                      (f)  equal remuneration (Part 2‑7);

                     (g)  transfer of business (Part 2‑8);

                     (h)  general protections (Part 3‑1);

                      (i)  unfair dismissal (Part 3‑2);

                      (j)  industrial action (Part 3‑3);

                     (k)  right of entry (Part 3‑4);

                      (l)  stand down (Part 3‑5);

                    (m)  other rights and responsibilities (Part 3‑6);

                     (n)  the extension of the National Employment Standards entitlements (Part 6‑3);

                     (o)  unlawful termination protections (Part 6‑4).

             (2)  The FWC also has the following functions:

                     (a)  dealing with disputes as referred to in section 595;

                     (b)  providing assistance and advice about its functions and activities;

                     (c)  providing administrative support in accordance with an arrangement under section 650 or 653A;

                    (ca)  mediating any proceedings, part of proceedings or matter arising out of any proceedings that, under section 53A of the Federal Court of Australia Act 1976 or section 34 of the Federal Magistrates Act 1999, have been referred by the Fair Work Division of the Federal Court or Federal Magistrates Court to the FWC for mediation;

                     (d)  any other function conferred on the FWC by a law of the Commonwealth.

Note:          Section 13 of the Registered Organisations Act confers additional functions on the FWC.

577  Performance of functions etc. by the FWC

                   The FWC must perform its functions and exercise its powers in a manner that:

                     (a)  is fair and just; and

                     (b)  is quick, informal and avoids unnecessary technicalities; and

                     (c)  is open and transparent; and

                     (d)  promotes harmonious and cooperative workplace relations.

Note:          The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).

578  Matters the FWC must take into account in performing functions etc.

                   In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

                     (a)  the objects of this Act, and any objects of the part of this Act; and

                     (b)  equity, good conscience and the merits of the matter; and

                     (c)  the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

579  FWC has privileges and immunities of the Crown

                   The FWC has the privileges and immunities of the Crown in right of the Commonwealth.

580  Protection of FWC Members

                   An FWC Member has, in performing his or her functions or exercising his or her powers as an FWC Member, the same protection and immunity as a Justice of the High Court.

Note:          See also section 584B (which deals with protection of persons involved in handling etc. complaints about FWC Members).

Subdivision BFunctions and powers of the President

581  Functions of the President

                   The President is responsible for ensuring that the FWC performs its functions and exercises its powers in a manner that:

                     (a)  is efficient; and

                     (b)  adequately serves the needs of employers and employees throughout Australia.

Note:          The President must perform his or her own functions and exercise his or her own powers in a manner that facilitates cooperation with prescribed State industrial authorities (see section 649).

581A  Dealing with a complaint about an FWC Member

             (1)  Without limiting section 581 (which deals with the functions of the President), the President may:

                     (a)  deal, in accordance with subsection (2) of this section, with a complaint about the performance by another FWC Member of his or her duties; and

                     (b)  take any measures that the President believes are reasonably necessary to maintain public confidence in the FWC, including (but not limited to) temporarily restricting the duties of the FWC Member.

Note 1:       The complaint is a complaint about an FWC Member (see section 12).

Note 2:       The Minister may also handle complaints about FWC Members (see section 641A).

             (2)  The President may deal with a complaint about an FWC Member referred to in paragraph (1)(a) by doing either or both of the following:

                     (a)  deciding whether or not to handle the complaint and then doing one of the following:

                              (i)  dismissing the complaint;

                             (ii)  handling the complaint if the President has a relevant belief in relation to the complaint;

                            (iii)  arranging for any other person to assist the President to handle the complaint if the President has a relevant belief in relation to the complaint;

                     (b)  arranging for any other complaint handlers to decide whether or not to handle the complaint and then to do one of the following:

                              (i)  dismiss the complaint;

                             (ii)  handle the complaint if each of the complaint handlers has a relevant belief in relation to the complaint.

Note 1:       A complaint handler (other than the President) may handle a complaint by referring it to the President. The President may then do either or both of the things referred to in paragraph (2)(a) or (b) in respect of the complaint.

Note 2:       For protections for persons involved in relation to handling a complaint about an FWC Member, see section 584B.

Authorisation of persons or bodies

             (3)  The President may authorise, in writing, a person or a body to do one or more of the following in relation to a complaint about an FWC Member referred to in paragraph (1)(a) (whether in relation to a specific complaint or generally):

                     (a)  assist the President to handle the complaint or complaints;

                     (b)  decide whether or not to handle the complaint or complaints;

                     (c)  dismiss the complaint or complaints;

                     (d)  handle the complaint or complaints.

Referral to Minister

             (4)  The President must refer a complaint about an FWC Member referred to in paragraph (1)(a) to the Minister if, after the complaint has been handled in accordance with subsection (2), the President is satisfied that:

                     (a)  one or more of the circumstances that gave rise to the complaint have been substantiated; and

                     (b)  each House of the Parliament should consider whether to present to the Governor‑General an address praying for the termination of the appointment of the FWC Member.

Note:          The appointment of an FWC Member may be terminated under section 641 if each House of the Parliament presents such an address to the Governor‑General.

             (5)  The Minister must consider whether each House of the Parliament should consider the matter referred to in paragraph (4)(b).

581B  Code of Conduct

             (1)  After consulting the other FWC Members, the President may determine a Code of Conduct for FWC Members.

             (2)  Subsection (1) does not limit section 582 (which deals with directions by the President).

             (3)  The Code of Conduct must be published on the FWC’s website or by any other means that the President considers appropriate.

             (4)  A determination under subsection (1) is not a legislative instrument.

582  Directions by the President

The President may give directions

             (1)  The President may give directions under subsection (2) as to the manner in which the FWC is to perform its functions, exercise its powers or deal with matters.

             (2)  The President may give a direction that is of a general nature, or that relates to a particular matter, to one or more of the following persons:

                     (a)  an FWC Member;

                     (b)  a Full Bench;

                     (c)  the Minimum Wage Panel;

                     (d)  the General Manager.

             (3)  The direction must not relate to a decision by the FWC.

             (4)  Without limiting subsection (2), the direction may be a direction of the following kind:

                     (a)  a direction about the conduct of 4 yearly reviews of modern awards;

                     (b)  a direction about the conduct of annual wage reviews;

                     (c)  a direction that 2 or more matters be dealt with jointly by one or more single FWC Members or one or more Full Benches;

                     (d)  a direction about the transfer between FWC Members (including a transfer between Full Benches) of one or more matters being dealt with by the FWC.

Persons must comply with the President’s directions

             (5)  A person to whom a direction is given must comply with the direction.

Note:          For directions to the General Manager, see section 658.

Direction is not a legislative instrument

             (6)  If a direction is in writing, the direction is not a legislative instrument.

583  President not subject to direction

                   The President is not subject to direction by or on behalf of the Commonwealth.

584  Delegation of functions and powers of the President

             (1)  The President may, in writing, delegate to a Vice President or a Deputy President all or any of the President’s functions or powers, other than under:

                    (aa)  paragraph 581A(1)(b) (which deals with taking measures to maintain public confidence in the FWC); or

                     (a)  section 620 (which deals with the constitution and decision‑making of the Minimum Wage Panel); or

                     (b)  section 625 (which deals with the delegation of functions and powers of the FWC).

             (2)  In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the President.

Note:          See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

Subdivision CProtection of persons involved in handling etc. complaints about FWC Members

584B  Protection of persons involved in handling etc. complaints about FWC Members

             (1)  A person who is exercising powers or performing functions under or for the purposes of paragraph 581A(1)(a), subsections 581A(2) to (5), or section 641A, in relation to a complaint about an FWC Member, or assisting in exercising those powers or performing those functions, has the same protection and immunity as a Justice of the High Court.

             (2)  A witness requested to attend, or appearing, before a complaint handler or any other person, in relation to a complaint about an FWC Member, has the same protection, and is subject to the same liabilities in proceedings, as a witness in a case tried by the High Court.

             (3)  A lawyer assisting, or appearing on behalf of a person before, a complaint handler or any other person, in relation to a complaint about an FWC Member, has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.


 

Division 3Conduct of matters before the FWC

Subdivision AApplications to the FWC

585  Applications in accordance with procedural rules

                   An application to the FWC must be in accordance with the procedural rules (if any) relating to applications of that kind.

Note 1:       Certain provisions might impose additional requirements in relation to particular kinds of applications (see for example subsection 185(2)).

Note 2:       The FWC may, under section 587, dismiss an application that is not made in accordance with the procedural rules.

586  Correcting and amending applications and documents etc.

                   The FWC may:

                     (a)  allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

                     (b)  waive an irregularity in the form or manner in which an application is made to the FWC.

587  Dismissing applications

             (1)  Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

                     (a)  the application is not made in accordance with this Act; or

                     (b)  the application is frivolous or vexatious; or

                     (c)  the application has no reasonable prospects of success.

Note:          For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

             (2)  Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

                     (a)  is frivolous or vexatious; or

                     (b)  has no reasonable prospects of success.

             (3)  The FWC may dismiss an application:

                     (a)  on its own initiative; or

                     (b)  on application.

588  Discontinuing applications

                   A person who has applied to the FWC may discontinue the application:

                     (a)  in accordance with the procedural rules (if any); and

                     (b)  whether or not the matter has been settled.

Subdivision BConduct of matters before the FWC

589  Procedural and interim decisions

             (1)  The FWC may make decisions as to how, when and where a matter is to be dealt with.

             (2)  The FWC may make an interim decision in relation to a matter before it.

             (3)  The FWC may make a decision under this section:

                     (a)  on its own initiative; or

                     (b)  on application.

             (4)  This section does not limit the FWC’s power to make decisions.

590  Powers of the FWC to inform itself

             (1)  The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

             (2)  Without limiting subsection (1), the FWC may inform itself in the following ways:

                     (a)  by requiring a person to attend before the FWC;

                     (b)  by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

                     (c)  by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

                     (d)  by taking evidence under oath or affirmation in accordance with the regulations (if any);

                     (e)  by requiring an FWC Member, a Full Bench or the Minimum Wage Panel to prepare a report;

                      (f)  by conducting inquiries;

                     (g)  by undertaking or commissioning research;

                     (h)  by conducting a conference (see section 592);

                      (i)  by holding a hearing (see section 593).

591  FWC not bound by rules of evidence and procedure

                   The FWC is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not the FWC holds a hearing in relation to the matter).

592  Conferences

             (1)  For the purpose of performing a function or exercising a power of the FWC (other than a function or power under Part 2‑6), the FWC may direct a person to attend a conference at a specified time and place.

Note:          Part 2‑6 deals with minimum wages. For the conduct of annual wage reviews, see Subdivision B of Division 3 of Part 2‑6.

             (2)  An FWC Member (other than a Minimum Wage Panel Member), or a delegate of the FWC, is responsible for conducting the conference.

             (3)  The conference must be conducted in private, unless the person responsible for conducting the conference directs that it be conducted in public.

Note:          This subsection does not apply in relation to conferences conducted in relation to unfair dismissal or general protection matters (see sections 368, 374, 398 and 776).

593  Hearings

             (1)  The FWC is not required to hold a hearing in performing functions or exercising powers, except as provided by this Act.

             (2)  If the FWC holds a hearing in relation to a matter, the hearing must be held in public, except as provided by subsection (3).

Confidential evidence in hearings

             (3)  The FWC may make the following orders in relation to a hearing that the FWC holds if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

                     (a)  orders that all or part of the hearing is to be held in private;

                     (b)  orders about who may be present at the hearing;

                     (c)  orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing;

                     (d)  orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following:

                              (i)  evidence given in the hearing;

                             (ii)  matters contained in documents before the FWC in relation to the hearing.

             (4)  Subsection (3) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).

594  Confidential evidence

             (1)  The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

                     (a)  evidence given to the FWC in relation to the matter;

                     (b)  the names and addresses of persons making submissions to the FWC in relation to the matter;

                     (c)  matters contained in documents lodged with the FWC or received in evidence by the FWC in relation to the matter;

                     (d)  the whole or any part of its decisions or reasons in relation to the matter.

             (2)  Subsection (1) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).

595  FWC’s power to deal with disputes

             (1)  The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

             (2)  The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

                     (a)  by mediation or conciliation;

                     (b)  by making a recommendation or expressing an opinion.

             (3)  The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

Example:    Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

             (4)  In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

Example:    The FWC could direct a person to attend a conference under section 592.

             (5)  To avoid doubt, the FWC must not exercise any of the powers referred to in subsection (2) or (3) in relation to a matter before the FWC except as authorised by this section.

Subdivision CRepresentation by lawyers and paid agents and Minister’s entitlement to make submissions

596  Representation by lawyers and paid agents

             (1)  Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

             (2)  The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

                     (a)  it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

                     (b)  it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

                     (c)  it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Note:          Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a)    where a person is from a non‑English speaking background or has difficulty reading or writing;

(b)    where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

             (3)  The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2‑3 or 2‑6 (which deal with modern awards and minimum wages).

             (4)  For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

                     (a)  is an employee or officer of the person; or

                     (b)  is an employee or officer of:

                              (i)  an organisation; or

                             (ii)  an association of employers that is not registered under the Registered Organisations Act; or

                            (iii)  a peak council; or

                            (iv)  a bargaining representative;

                            that is representing the person; or

                     (c)  is a bargaining representative.

597  Minister’s entitlement to make submissions

             (1)  The Minister is entitled to make a submission for consideration in relation to a matter before the FWC if:

                     (a)  the matter is before a Full Bench and it is in the public interest for the Minister to make a submission; or

                     (b)  the matter involves public sector employment.

             (2)  Subsection (1) applies whether or not the FWC holds a hearing in relation to the matter.

597A  State or Territory Minister’s entitlement to make submissions

             (1)  The Minister of a State or Territory who has responsibility for workplace relations matters is entitled to make a submission for consideration in relation to a matter before the FWC if:

                     (a)  the matter is before a Full Bench; and

                     (b)  it is in the public interest of the State or Territory for the Minister of the State or Territory to make a submission.

             (2)  Subsection (1) applies whether or not the FWC holds a hearing in relation to the matter.

Subdivision DDecisions of the FWC

598  Decisions of the FWC

             (1)  A reference in this Part to a decision of the FWC includes any decision of the FWC however described. However, to avoid doubt, a reference to a decision of the FWC does not include an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC’s power to deal with disputes).

Note:          Examples of decisions that the FWC makes include making modern awards, approving or refusing to approve enterprise agreements, decisions as to how, when and where a matter is to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals.

             (2)  If the FWC makes a decision that makes or varies an instrument, a reference in this Part to a decision of the FWC includes the FWC’s decision to make or vary the instrument in the particular terms decided.

             (3)  A decision of the FWC that is described as an order must be made by order.

Note:          An example of a decision that is described as an order is a bargaining order.

             (4)  A decision of the FWC that is not described as an order may be made by order.

599  FWC not required to decide an application in terms applied for

                   Except as provided by this Act, the FWC is not required to make a decision in relation to an application in the terms applied for.

600  Determining matters in the absence of a person

                   The FWC may determine a matter before it in the absence of a person who has been required to attend before it.

601  Writing and publication requirements for the FWC’s decisions

             (1)  The following decisions of the FWC must be in writing:

                     (a)  a decision of the FWC made under a Part of this Act other than this Part;

                     (b)  an interim decision that relates to a decision to be made under a Part of this Act other than this Part;

                     (c)  a decision in relation to an appeal or review.

Note:          For appeals and reviews, see sections 604 and 605.

             (2)  The FWC may give written reasons for any decision that it makes.

             (3)  A decision, and reasons, that are in writing must be expressed in plain English and be easy to understand in structure and content.

             (4)  The FWC must publish the following, on its website or by any other means that the FWC considers appropriate:

                     (a)  a decision that is required to be in writing and any written reasons that the FWC gives in relation to such a decision;

                     (b)  an enterprise agreement that has been approved by the FWC under Part 2‑4.

The FWC must do so as soon as practicable after making the decision or approving the agreement.

             (5)  Subsection (4) does not apply to any of the following decisions or reasons in relation to such decisions:

                     (a)  a decision to issue, or refuse to issue, a certificate under section 369;

                     (c)  a decision to issue an entry permit under section 512;

                     (d)  a decision to impose conditions on an entry permit under section 515;

                     (e)  a decision to issue, or refuse to issue, an exemption certificate under section 519;

                      (f)  a decision to issue, or refuse to issue, an affected member certificate under section 520;

                     (g)  a decision or reasons in relation to which an order is in operation under paragraph 594(1)(d).

             (6)  Subsections (1) and (4) do not limit the FWC’s power to put decisions in writing or publish decisions.

602  Correcting obvious errors etc. in relation to the FWC’s decisions

             (1)  The FWC may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the FWC (other than an error, defect or irregularity in a modern award or national minimum wage order).

Note 1:       If the FWC makes a decision to make an instrument, the FWC may correct etc. the instrument under this section (see subsection 598(2)).

Note 2:       The FWC corrects modern awards and national minimum wage orders under sections 160 and 296.

             (2)  The FWC may correct or amend the error, defect or irregularity:

                     (a)  on its own initiative; or

                     (b)  on application.

603  Varying and revoking the FWC’s decisions

             (1)  The FWC may vary or revoke a decision of The FWC that is made under this Act (other than a decision referred to in subsection (3)).

Note:          If The FWC makes a decision to make an instrument, The FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).

             (2)  The FWC may vary or revoke a decision under this section:

                     (a)  on its own initiative; or

                     (b)  on application by:

                              (i)  a person who is affected by the decision; or

                             (ii)  if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision.

             (3)  The FWC must not vary or revoke any of the following decisions of the FWC under this section:

                     (a)  a decision under Part 2‑3 (which deals with modern awards);

                     (b)  a decision under section 235 or Division 4, 7, 9 or 10 of Part 2‑4 (which deal with enterprise agreements);

                     (c)  a decision under Part 2‑5 (which deals with workplace determinations);

                     (d)  a decision under Part 2‑6 (which deals with minimum wages);

                     (e)  a decision under Division 3 of Part 2‑8 (which deals with transfer of business);

                      (f)  a decision under Division 8 of Part 3‑3 (which deals with protected action ballots);

                     (g)  a decision under section 472 (which deals with partial work bans);

                     (h)  a decision that is prescribed by the regulations.

Note:          The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).

Subdivision EAppeals, reviews and referring questions of law

604  Appeal of decisions

             (1)  A person who is aggrieved by a decision:

                     (a)  made by the FWC (other than a decision of a Full Bench or the Minimum Wage Panel); or

                     (b)  made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;

may appeal the decision, with the permission of the FWC.

             (2)  Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note:          Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

             (3)  A person may appeal the decision by applying to the FWC.

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

             (1)  The Minister may apply to the FWC for a review to be conducted by the FWC of a decision made by the FWC (other than a decision of a Full Bench or the Minimum Wage Panel) if the Minister believes that the decision is contrary to the public interest.

             (2)  Without limiting when the FWC may conduct a review, the FWC must conduct a review of the decision if the FWC is satisfied that it is in the public interest to conduct the review.

Note:          The FWC must be constituted by a Full Bench to decide whether to conduct a review, and to conduct the review (see section 614).

             (3)  In conducting a review:

                     (a)  the FWC must take such steps as it considers appropriate to ensure that each person with an interest in the review is made aware of the review; and

                     (b)  the Minister is entitled to make submissions for consideration in the review.

             (4)  Nothing in this section affects any right of appeal or any power of the FWC under section 604 or 607. A review of a decision and an appeal of the decision may be dealt with together if the FWC considers it appropriate.

606  Staying decisions that are appealed or reviewed

             (1)  If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.

             (2)  If a Full Bench is hearing the appeal or conducting the review, an order under subsection (1) in relation to the appeal or review may be made by:

                     (a)  the Full Bench; or

                     (b)  the President; or

                     (c)  a Vice President; or

                     (d)  a Deputy President.

             (3)  This section does not apply in relation to a decision to make a protected action ballot order.

607  Process for appealing or reviewing decisions

             (1)  An appeal from, or a review of, a decision of the FWC or the General Manager may be heard or conducted without holding a hearing only if:

                     (a)  it appears to the FWC that the appeal or review can be adequately determined without persons making oral submissions for consideration in the appeal or review; and

                     (b)  the persons who would otherwise, or who will, make submissions (whether oral or written) for consideration in the appeal or review consent to the appeal or review being heard or conducted without a hearing.

             (2)  The FWC may:

                     (a)  admit further evidence; and

                     (b)  take into account any other information or evidence.

             (3)  The FWC may do any of the following in relation to the appeal or review:

                     (a)  confirm, quash or vary the decision;

                     (b)  make a further decision in relation to the matter that is the subject of the appeal or review;

                     (c)  refer the matter that is the subject of the appeal or review to an FWC Member (other than a Minimum Wage Panel Member) and:

                              (i)  require the FWC Member to deal with the subject matter of the decision; or

                             (ii)  require the FWC Member to act in accordance with the directions of the FWC.

608  Referring questions of law to the Federal Court

             (1)  The President may refer a question of law arising in a matter before the FWC for the opinion of the Federal Court.

             (2)  A question of law referred under subsection (1) must be determined by the Full Court of the Federal Court.

             (3)  The FWC may make a decision in relation to the matter even if the Federal Court is determining the question of law, except if the question is whether the FWC may exercise powers in relation to the matter.

             (4)  Once the Federal Court has determined the question, the FWC may only make a decision in relation to the matter that is not inconsistent with the opinion of the Federal Court (if the FWC has not already done so).

             (5)  However, if the FWC has made a decision in relation to the matter that is inconsistent with the opinion of the Federal Court, the FWC must vary the decision in such a way as to make it consistent with the opinion of the Federal Court.

Subdivision FMiscellaneous

609  Procedural rules

             (1)  After consulting the other FWC Members, the President may, by legislative instrument, make procedural rules in relation to:

                     (a)  the practice and procedure to be followed by the FWC; or

                     (b)  the conduct of business in relation to matters allowed or required to be dealt with by the FWC.

             (2)  Without limiting subsection (1), the procedural rules may provide for the following:

                     (a)  the requirements for making an application to the FWC;

                     (b)  the circumstances in which a lawyer or paid agent may make an application or submission to the FWC on behalf of a person who is entitled to make the application or submission;

                     (c)  the form and manner in which, and the time within which, submissions may or must be made to the FWC;

                     (d)  the procedural requirements for making decisions of the FWC;

                     (e)  the form and manner in which the FWC gives directions and notifies persons of things;

                      (f)  who is notified by the FWC of things;

                     (g)  the manner in which conferences are to be conducted in relation to applications made under Part 3‑1, 3‑2 or Part 6‑4 (which deal with general protections, unfair dismissal and unlawful termination).

             (3)  To avoid doubt, subsection (1) includes the power to make procedural rules in relation to any functions conferred on the FWC by any other law of the Commonwealth.

610  Regulations dealing with any FWC matters

                   The regulations may provide for any matter that the procedural rules may provide for.

Note:          Regulations made under this section prevail over procedural rules (see subsection 796(2)).

611  Costs

             (1)  A person must bear the person’s own costs in relation to a matter before the FWC.

             (2)  However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

                     (a)  the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

                     (b)  the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note:          The FWC can also order costs under sections 376, 400A, 401 and 780.

             (3)  A person to whom an order for costs applies must not contravene a term of the order.

Note:          This subsection is a civil remedy provision (see Part 4‑1).


 

Division 4Organisation of the FWC

Subdivision AFunctions etc. to be performed by a single FWC Member, a Full Bench or the Minimum Wage Panel

612  FWC’s functions etc. may generally be performed by single FWC Member

             (1)  A function or power of the FWC may be performed or exercised by a single FWC Member (other than a Minimum Wage Panel Member), as directed by the President, except as provided by this Subdivision.

Note:          The President gives directions under section 582.

             (2)  Action taken under subsection 508(1) (which deals with misuse of rights under Part 3‑4) must be taken by a Vice President or a Deputy President, except as provided by section 615.

             (3)  This section does not limit the power of the President to delegate a function or power of the FWC under section 625.

613  Appeal of decisions

             (1)  A Full Bench must (except as provided by subsection (2)):

                     (a)  decide under section 604 whether to grant permission to appeal a decision; and

                     (b)  if the Full Bench decides to grant the permission—hear the appeal in accordance with section 607.

Note:          For the constitution of a Full Bench, see section 618.

             (2)  The President, a Vice President or a Deputy President directed by the President, may:

                     (a)  decide under section 604 whether to grant permission to appeal:

                              (i)  a decision of a delegate under subsection 625(2); or

                             (ii)  a decision of the General Manager (including a delegate of the General Manager) under the Registered Organisations Act; and

                     (b)  if the President, the Vice President or the Deputy President (as the case may be) grants the permission—hear the appeal in accordance with section 607.

Note:          The President gives directions under section 582.

614  Review of decisions by a Full Bench

                   A Full Bench must:

                     (a)  decide under section 605 whether to conduct a review of a decision; and

                     (b)  if the Full Bench decides to conduct the review—conduct the review in accordance with section 607.

Note:          For the constitution of a Full Bench, see section 618.

615  The President may direct a Full Bench to perform function etc.

             (1)  A function or power of the FWC may be performed or exercised by a Full Bench if the President so directs.

Note:          The President gives directions under section 582.

             (2)  The President may direct that the function or power be exercised by a Full Bench generally, or in relation to a particular matter or class of matters.

             (3)  To avoid doubt, a reference in this section to a Full Bench includes a reference to more than one Full Bench.

Note:          For the constitution of a Full Bench, see section 618.

615A  When the President must direct a Full Bench to perform function etc.

             (1)  The President must direct a Full Bench to perform a function or exercise a power in relation to a matter if:

                     (a)  an application is made under subsection (2); and

                     (b)  the President is satisfied that it is in the public interest to do so.

Note:          The President gives directions under section 582.

             (2)  The following persons may apply to the FWC to have a Full Bench perform a function or exercise a power in relation to a matter:

                     (a)  a person who has made, or will make, submissions for consideration in the matter;

                     (b)  the Minister.

615B  Transfer to a Full Bench from an FWC member

             (1)  This section applies if:

                     (a)  the President gives a direction referred to in section 615 or 615A that a function be performed or a power be exercised by a Full Bench; and

                     (b)  before the President gave the direction, the President had given a direction (the earlier direction) to an FWC member to perform the function or exercise the power.

             (2)  The President is taken to have revoked the earlier direction.

             (3)  The Full Bench must, when performing the function or exercising the power, take into account:

                     (a)  everything that occurred before the FWC; and

                     (b)  everything that the FWC did;

in relation to the matter before the Full Bench began to perform the function or exercise the power.

615C  Transfer to the President from an FWC member or a Full Bench

             (1)  This section applies if:

                     (a)  the President decides to perform a function or exercise a power; and

                     (b)  before the President made that decision, the President had given a direction (the earlier direction) that the function be performed or the power be exercised by a Full Bench or an FWC member.

             (2)  The President is taken to have revoked the earlier direction.

             (3)  The President must, when performing the function or exercising the power, take into account:

                     (a)  everything that occurred before the FWC; and

                     (b)  everything that the FWC did;

in relation to the matter before the President began to perform the function or exercise the power.

616  FWC’s functions etc. that must be performed by a Full Bench

Modern awards

             (1)  A modern award must be made under Part 2‑3 by a Full Bench.

             (2)  A 4 yearly review of modern awards must be conducted under Part 2‑3 by a Full Bench.

             (3)  A determination that varies or revokes a modern award made in a 4 yearly review of modern awards must be made by a Full Bench.

Note:          A determination that varies or revokes a modern award may be made by a single FWC Member if it is not made in a 4 yearly review of modern awards or in an annual wage review.

Workplace determinations

             (4)  A workplace determination must be made under Part 2‑5 by a Full Bench.

Full Benches

             (5)  To avoid doubt, a reference in this section to a Full Bench includes a reference to more than one Full Bench.

Note:          For the constitution of a Full Bench, see section 618.

617  FWC’s functions etc. that must be performed by the Minimum Wage Panel

             (1)  An annual wage review must be conducted under Part 2‑6 by the Minimum Wage Panel.

Note:          For the constitution of the Minimum Wage Panel, see section 620.

             (2)  A national minimum wage order, or a determination, made in an annual wage review must be made by the Minimum Wage Panel.

             (3)  A determination that varies a national minimum wage order must be made under Part 2‑6 by the Minimum Wage Panel.

Subdivision BConstitution of the FWC by a single FWC Member, a Full Bench or the Minimum Wage Panel

618  Constitution and decision‑making of a Full Bench

Constitution of a Full Bench

             (1)  A Full Bench constituted under this section consists of at least 3 FWC Members, including at least one FWC Member who is the President, a Vice President or a Deputy President.

Note:          A Minimum Wage Panel Member might form part of a Full Bench.

             (2)  The President may determine which FWC Members form part of a Full Bench.

Making decisions

             (3)  A decision of a majority of the FWC Members on the Full Bench prevails.

             (4)  However, if there is no majority, the decision of the FWC Member who has seniority under section 619 prevails.

619  Seniority of FWC Members

             (1)  While the FWC is constituted by a Full Bench, the FWC Members on the Full Bench have seniority according to the following order:

                     (a)  the President;

                    (aa)  the Vice Presidents, according to the days on which their appointments as Vice Presidents took effect;

                   (ab)  if 2 appointments as Vice Presidents took effect on the same day—the Vice Presidents, according to the precedence assigned to them in their instruments of appointment;

                     (b)  the Deputy Presidents, according to the days on which their appointments as Deputy Presidents took effect;

                     (c)  if 2 or more appointments as Deputy Presidents took effect on the same day—the Deputy Presidents, according to the precedence assigned to them in their instruments of appointment.

             (2)  The FWC Member on a Full Bench who has seniority under this section is responsible for managing the Full Bench in performing functions and exercising powers of the FWC.

Note:          The FWC Member who has seniority also has a deciding vote if there is no majority (see subsection 618(4)).

620  Constitution and decision‑making of the Minimum Wage Panel

Constitution of the Minimum Wage Panel

             (1)  The Minimum Wage Panel constituted under this section consists of 7 FWC Members (except as provided by section 622), and must include:

                     (a)  the President; and

                     (b)  at least 3 Minimum Wage Panel Members.

             (2)  The President may determine which FWC Members form part of the Minimum Wage Panel.

             (3)  The President is responsible for managing the Minimum Wage Panel in performing the functions and exercising the powers referred to in section 617.

Making decisions

             (4)  A decision of the majority of the FWC Members of the Minimum Wage Panel prevails.

             (5)  However, if there is no majority, the decision of the President prevails.

621  Reconstitution of the FWC when single FWC Member becomes unavailable

             (1)  This section applies if:

                     (a)  an FWC Member is dealing with a matter (other than by forming part of a Full Bench or the Minimum Wage Panel in relation to a matter); and

                     (b)  the FWC Member becomes unavailable to continue dealing with the matter before the matter is completely dealt with.

             (2)  The President must direct another FWC Member to constitute the FWC for the purposes of dealing with the matter.

Note:          The new FWC Member must take into account everything that happened before the FWC Member began to deal with the matter (see section 623).

622  Reconstitution of the FWC when FWC Member of a Full Bench or the Minimum Wage Panel becomes unavailable

             (1)  This section applies if:

                     (a)  an FWC Member (the unavailable member) forms part of a Full Bench or the Minimum Wage Panel in relation to a matter; and

                     (b)  the FWC Member becomes unavailable to continue dealing with the matter before the matter is completely dealt with.

             (2)  The Full Bench or the Minimum Wage Panel may continue to deal with the matter without the unavailable member if the Full Bench or the Minimum Wage Panel consists of the following:

                     (a)  for the Minimum Wage Panel—the President and at least 2 Minimum Wage Panel Members;

                     (b)  for a Full Bench—at least 3 FWC Members, including at least one FWC Member who is the President, a Vice President or a Deputy President.

             (3)  Otherwise, the President must direct another FWC member to form part of the Full Bench or the Minimum Wage Panel. After the President does so, the Full Bench or the Minimum Wage Panel may continue to deal with the matter without the unavailable member.

Note:          The new FWC Member must take into account everything that happened before the FWC Member began to deal with the matter (see section 623).

623  When new FWC Members begin to deal with matters

                   If an FWC Member begins to deal with a matter under section 621 or 622, the FWC Member must take into account everything that occurred before the FWC, and everything that the FWC did, in relation to the matter before the FWC Member began to deal with the matter.

624  FWC’s decisions not invalid when improperly constituted

                   A decision of the FWC is not invalid merely because it was made by a Full Bench, or the Minimum Wage Panel, constituted otherwise than as provided by this Division.

Note:          If the FWC makes a decision to make an instrument while constituted otherwise than as provided by this Division, the instrument is not invalid (see subsection 598(2)).

Subdivision CDelegation of the FWC’s functions and powers

625  Delegation by the President of functions and powers of the FWC

             (1)  The President may, in writing, delegate all or any of the following powers of the FWC to the General Manager or a member of the staff of the FWC:

                     (a)  correcting or amending applications and documents, or waiving irregularities, under section 586;

                     (b)  informing itself as it considers appropriate under section 590 (other than the FWC’s power to hold a hearing);

                     (c)  conducting a conference in accordance with section 592;

                     (d)  correcting or amending obvious errors, defects or irregularities under section 602.

             (2)  The President may, in writing, delegate all or any of the following functions or powers of the FWC to a person referred to in subsection (3):

                     (a)  publishing varied modern awards under section 168;

                     (b)  publishing submissions under section 289;

                     (c)  publishing research under section 291;

                     (d)  publishing varied wage rates under section 292;

                   (da)  publishing the results of a protected action ballot under section 457;

                      (f)  imposing conditions on entry permits, revoking or suspending entry permits, or banning the issue of any further entry permits, under section 507 or 510;

                     (g)  the functions and powers of the FWC under Division 6 of Part 3‑4 (which deals with entry permits, entry notices and certificates);

                     (h)  publishing enterprise agreements under paragraph 601(4)(b);

                      (i)  any function or power prescribed by the regulations.

             (3)  The people to whom a delegation may be given under subsection (2) are any of the following:

                     (a)  the General Manager;

                     (b)  a member of the staff of the FWC who is an SES employee or acting SES employee;

                     (c)  a member of the staff of the FWC who is in a class of employees prescribed by the regulations.

             (4)  In performing functions or exercising powers under a delegation under subsection (1) or (2), the delegate must comply with any directions of the President.

Note:          See also sections 34AA and 34AB of the Acts Interpretation Act 1901.


 

Division 5FWC Members

Subdivision AAppointment of FWC Members

626  Appointment of FWC Members

             (1)  An FWC Member is to be appointed by the Governor‑General by written instrument.

             (2)  The instrument of appointment must specify whether the FWC Member is the President, a Vice President, a Deputy President, a Commissioner or a Minimum Wage Panel Member.

             (3)  The instrument of appointment must assign a precedence to the FWC Member if:

                     (a)  the FWC Member and one other FWC Member are appointed as Vice Presidents on the same day; or

                     (b)  the FWC Member and one or more other FWC Members are appointed as Deputy Presidents on the same day.

Note:          Precedence is relevant to the seniority of Vice Presidents and Deputy Presidents (see paragraphs 619(1)(ab) and (c)).

             (4)  The same person must not hold, at the same time, an appointment as both:

                     (a)  a Minimum Wage Panel Member; and

                     (b)  the President, a Vice President, a Deputy President or a Commissioner.

627  Qualifications for appointment of FWC Members

President and Vice Presidents

             (1)  Before the Governor‑General appoints a person as the President or a Vice President, the Minister must be satisfied that the person:

                     (a)  is or has been a Judge of a court created by the Parliament; or

                     (b)  is qualified for appointment because the person has knowledge of, or experience in, one or more of the following fields:

                              (i)  workplace relations;

                             (ii)  law;

                            (iii)  business, industry or commerce.

Deputy Presidents

             (2)  Before the Governor‑General appoints a person as a Deputy President, the Minister must be satisfied that the person:

                     (a)  either:

                              (i)  is or has been a Judge of a court created by the Parliament; or

                             (ii)  has been a Judge of a court of a State or Territory; or

                     (b)  has a high level of experience in the field of workplace relations, including a high level of experience that has been acquired:

                              (i)  through legal practice; or

                             (ii)  in the service of a peak council or another association representing the interests of employers or employees; or

                            (iii)  in the service of government or an authority of government; or

                            (iv)  in academia.

Commissioners

             (3)  Before the Governor‑General appoints a person as a Commissioner, the Minister must be satisfied that the person is qualified for appointment because the person has knowledge of, or experience in, one or more of the following fields:

                     (a)  workplace relations;

                     (b)  law;

                     (c)  business, industry or commerce.

Minimum Wage Panel Members

             (4)  Before the Governor‑General appoints a person as a Minimum Wage Panel Member, the Minister must be satisfied that the person is qualified for appointment because the person has knowledge of, or experience in, one or more of the following fields:

                     (a)  workplace relations;

                     (b)  economics;

                     (c)  social policy;

                     (d)  business, industry or commerce.

628  Basis of appointment of FWC Members

President, Vice Presidents, Deputy Presidents and Commissioners

             (1)  The President, a Vice President, a Deputy President or a Commissioner holds office on a full‑time basis.

             (2)  A Deputy President or a Commissioner may perform his or her duties on a part‑time basis, with the President’s approval.

Minimum Wage Panel Members

             (3)  A Minimum Wage Panel Member holds office on a part‑time basis.

629  Period of appointment of FWC Members

President, Vice Presidents, Deputy Presidents and Commissioners

             (1)  The President, a Vice President, a Deputy President or a Commissioner holds office until the earliest of the following:

                     (a)  he or she attains the age of 65 years;

                     (b)  he or she resigns or the appointment is terminated under this Part.

Members of a prescribed State industrial authority

             (2)  Despite subsection (1), a person who is a member of a prescribed State industrial authority may be appointed as a Deputy President or Commissioner for a period specified in the instrument of appointment.

Note:          A member of a prescribed State industrial authority may hold office as a Deputy President or Commissioner (see section 631).

             (3)  If a person is so appointed, the person holds office as Deputy President or Commissioner until the earliest of the following:

                     (a)  the specified period ends;

                     (b)  the person ceases to be a member of the prescribed State industrial authority;

                     (c)  the person resigns or the appointment is terminated under this Part.

Minimum Wage Panel Members

             (4)  A Minimum Wage Panel Member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

Note:          A Minimum Wage Panel Member is eligible for reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).

Subdivision BTerms and conditions of FWC Members

629A  Status of the President

                   The President has the same status as a Judge of the Federal Court.

630  Appointment of a Judge not to affect tenure etc.

             (1)  The appointment of a Judge of a court created by the Parliament as an FWC Member, or service by such a Judge as an FWC Member, does not affect:

                     (a)  the Judge’s tenure of office as a Judge; or

                     (b)  the Judge’s rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of his or her office as a Judge.

             (2)  For all purposes, the Judge’s service as the FWC Member is taken to be service as a Judge.

631  Dual federal and State appointments of Deputy Presidents or Commissioners

             (1)  Nothing in this Act prevents a Deputy President or Commissioner from being appointed to, and holding at the same time, an office as a member of a prescribed State industrial authority, with the President’s approval.

             (2)  Nothing in this Act prevents a member of a prescribed State industrial authority from being appointed to, and holding at the same time, an office as a Deputy President or Commissioner.

Note 1:       A member of a prescribed State industrial authority may hold office as a Deputy President or Commissioner only if he or she is qualified for appointment (see section 627).

Note 2:       For the period of appointment, and remuneration and allowances, of a Deputy President or Commissioner who is a member of a prescribed State industrial authority, see sections 629 and 637.

             (3)  Subsections (1) and (2) have effect subject to any law of the relevant State.

632  Dual federal and Territory appointments of Deputy Presidents or Commissioners

                   Nothing in this Act prevents a Deputy President or Commissioner from being appointed to, and holding at the same time, one of the following offices, with the President’s approval:

                     (a)  an office as a member of a Commonwealth or Territory tribunal prescribed by the regulations (other than a court);

                     (b)  an office under a Commonwealth or Territory law that provides for the office to be held by an FWC Member.

633  Outside work of FWC Members

Vice Presidents, Deputy Presidents and Commissioners

             (1)  A Vice President, Deputy President or Commissioner (whether performing duties on a full‑time or part‑time basis) must not engage in paid work outside the duties of his or her office without the President’s approval.

             (2)  However, the President’s approval is not required if the paid work is an office or appointment in the Defence Force.

Minimum Wage Panel Members

             (3)  A Minimum Wage Panel Member must not engage in any paid employment that, in the President’s opinion, conflicts or may conflict with the proper performance of his or her duties.

634  Oath or affirmation of office

                   Before beginning to discharge the duties of his or her office, an FWC Member must take an oath or affirmation in accordance with the regulations.

635  Remuneration of the President

Remuneration if the President is not a Judge

             (1)  The President (other than a President who is a Judge of a court created by the Parliament) is to be paid:

                     (a)  salary at an annual rate equal to the annual rate of salary payable to the Chief Justice of the Federal Court; and

                     (b)  such travelling allowances as are determined from time to time by the Remuneration Tribunal; and

                     (c)  such other allowances as are prescribed by the regulations.

Remuneration if the President is a Judge

             (2)  A President who is a Judge of a court created by the Parliament must be paid an additional allowance, in accordance with subsection (3), if the salary payable to the person as a Judge is less than the salary that would be payable to the person as President under subsection (1).

             (3)  The amount of the allowance is the difference between the Judge’s salary and the salary that is payable to the President under subsection (1).

Additional amount

             (4)  The President or a former President must be paid an amount in accordance with subsection 7(5E) of the Remuneration Tribunal Act 1973 if the President, or former President, would be entitled to that amount had the President or former President held the office of Chief Justice of the Federal Court instead of the office of President.

636  Application of Judges’ Pensions Act to the President

             (1)  The Judges’ Pensions Act 1968 does not apply to the President if:

                     (a)  immediately before being appointed as the President, he or she was one of the following (a public sector superannuation scheme member):

                              (i)  an eligible employee for the purposes of the Superannuation Act 1976;

                             (ii)  a member of the superannuation scheme established by deed under the Superannuation Act 1990;

                            (iii)  an ordinary employer‑sponsored member of PSSAP (within the meaning of the Superannuation Act 2005); and

                     (b)  he or she does not make an election under subsection (2).

             (2)  The President may elect to cease to be a public sector superannuation scheme member.

             (3)  The election must be made:

                     (a)  within 3 months of the President’s appointment; and

                     (b)  by written notice to the Minister.

             (4)  If the President makes the election:

                     (a)  he or she is taken to have ceased to be a public sector superannuation scheme member immediately before being appointed as the President; and

                     (b)  the Judges’ Pensions Act 1968 applies to him or her, and is taken to have so applied, immediately after he or she was appointed as the President.

637  Remuneration of FWC Members other than the President

Remuneration if an FWC Member is not a Judge

             (1)  An FWC Member (other than an FWC Member who is a Judge of a court created by the Parliament) is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the FWC Member is to be paid the remuneration that is prescribed by the regulations.

             (2)  An FWC Member is to be paid the allowances that are prescribed by the regulations.

             (3)  Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973 and to section 638 (which deals with remuneration of part‑time Deputy Presidents and Commissioners).

             (4)  Despite subsections (1) to (3), if a person who is a member of a prescribed State industrial authority is appointed as a Deputy President or Commissioner, the person is not to be paid any remuneration or allowances in relation to the office of Deputy President or Commissioner other than any travel allowance prescribed under subsection (2).

Remuneration if an FWC Member is a Judge

             (5)  An FWC Member who is a Judge (other than the Chief Justice of the Federal Court) of a court created by the Parliament is to be paid an additional allowance, in accordance with subsection (6), if the salary payable to the person as a Judge is less than the salary that would be payable to the person as an FWC Member under subsection (1).

             (6)  The amount of the allowance is the difference between the Judge’s salary and the salary that is payable to the FWC Member under subsection (1).

Section does not apply to the President

             (7)  This section does not apply to the President.

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

             (1)  If the President approves a Deputy President or Commissioner (the part‑time member) performing his or her duties on a part‑time basis, the President and the part‑time member are to enter into a written agreement specifying the proportion (the agreed proportion) of full‑time duties to be worked by the part‑time member.

             (2)  The agreed proportion may be varied by a written agreement between the President and the part‑time member.

             (3)  The part‑time member’s annual rate of salary at a particular time is equal to the agreed proportion at that time of the annual rate of salary that would be payable to the part‑time member if he or she were performing his or her duties on a full‑time basis.

             (4)  The allowances that are to be paid to the part‑time member under section 637 are not affected by this section.

639  Leave of absence of FWC Members other than the President

             (1)  An FWC Member has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The President may grant an FWC Member leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise as the President determines.

             (3)  In making a determination in accordance with this section, the Remuneration Tribunal and the President must take into account:

                     (a)  any past employment of the FWC Member in the service of a State or an authority of a State; or

                     (b)  any past service of the FWC Member as a member of an authority of a State.

             (4)  This section does not apply to the President.

640  Disclosure of interests by FWC Members other than the President

             (1)  This section applies if:

                     (a)  an FWC Member (other than the President) is dealing, or will deal, with a matter; and

                     (b)  the FWC Member has or acquires any interest (the potential conflict), pecuniary or otherwise, that conflicts or could conflict with the proper performance of the FWC Member’s functions in relation to the matter.

             (2)  The FWC member must disclose the potential conflict to:

                     (a)  a person who has made, or will make, a submission for consideration in the matter; and

                     (b)  a person who the FWC member considers is likely to make a submission for consideration in the matter; and

                     (c)  the President.

             (4)  The President must give a direction to the FWC Member not to deal, or to no longer deal, with the matter if:

                     (a)  the President becomes aware that an FWC Member has a potential conflict in relation to a matter (whether or not because of a disclosure under subsection (2)); and

                     (b)  the President considers that the FWC Member should not deal, or should no longer deal, with the matter.

641  Termination of appointment on grounds of misbehaviour or incapacity

                   The Governor‑General may terminate the appointment of an FWC Member if an address praying for the termination, on one of the following grounds, is presented to the Governor‑General by each House of the Parliament in the same session:

                     (a)  proved misbehaviour;

                     (b)  the FWC Member is unable to perform the duties of his or her office because of physical or mental incapacity.

641A  Minister may handle complaints about FWC Members

                   The Minister may handle a complaint about the performance by an FWC Member of his or her duties:

                     (a)  for the purpose of considering whether each House of the Parliament should consider whether to present to the Governor‑General an address praying for the termination of the appointment of the FWC Member; and

                     (b)  for the purpose of considering whether to advise the Governor‑General to suspend the FWC Member.

Note 1:       The appointment of an FWC Member may be terminated under section 641 if each House of the Parliament presents such an address to the Governor‑General.

Note 2:       The FWC Member may be suspended under section 642.

Note 3:       The complaint is a complaint about an FWC Member (see section 12).

Note 4:       For protections for persons involved in relation to handling a complaint about an FWC Member, see section 584B.

642  Suspension on grounds of misbehaviour or incapacity

Governor‑General may suspend an FWC Member

             (1)  The Governor‑General may suspend an FWC Member (other than the President) from office:

                     (a)  for misbehaviour; or

                     (b)  if the FWC Member is unable to perform the duties of his or her office because of physical or mental incapacity.

Statement of grounds

             (2)  The Minister must cause to be tabled in each House of Parliament, within 7 sitting days of that House after the suspension, a statement identifying the FWC Member and setting out the ground of the suspension.

Resolution by a House of Parliament

             (3)  A House of the Parliament may, within 15 sitting days of that House after the day on which the statement has been tabled in it, declare by resolution that the appointment of the FWC Member should be terminated.

Suspension terminates

             (4)  If a House does not pass a resolution in that way, the suspension terminates.

Appointment to be terminated

             (5)  If each House of the Parliament passes a resolution in that way, the Governor‑General must terminate the appointment of the FWC Member.

Suspension not to affect entitlements

             (6)  The suspension of an FWC Member under this section does not affect any entitlement of the FWC Member to be paid remuneration, and allowances, in accordance with this Act.

643  Termination of appointment for bankruptcy, etc.

                   The Governor‑General must terminate the appointment of an FWC Member (other than the President) if:

                     (a)  the FWC Member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors, or makes an assignment of his or her remuneration for the benefit of his or her creditors; or

                     (b)  the FWC Member is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months.

644  Termination of appointment for outside work [see Note 4]

Deputy Presidents and Commissioners

             (1)  The Governor‑General must terminate the appointment of a Deputy President or Commissioner if the Deputy President or Commissioner engages, except with the President’s approval, in paid work outside the duties of his or her office (see subsection 633(1)).

Minimum Wage Panel Members

             (2)  The Governor‑General must terminate the appointment of a Minimum Wage Panel Member if the Minimum Wage Panel Member engages in paid employment that, in the President’s opinion, conflicts or may conflict with the proper performance of his or her duties (see subsection 633(3)).

645  Resignation of FWC Members

             (1)  An FWC Member may resign his or her appointment by giving the Governor‑General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.

646  Other terms and conditions of FWC Members

                   An FWC Member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor‑General.

647  Appointment of acting President and Vice President

Appointment by Governor‑General

             (1)  The Governor‑General may, by written instrument, appoint a Vice President to act as the President:

                     (a)  during a vacancy in the office of the President (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the President is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.

Note:          See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.

          (1A)  The Governor‑General may, by written instrument, appoint a Deputy President to act as a Vice President:

                             (a)  during a vacancy in the office of a Vice President (whether or not an appointment has previously been made to the office); or

                             (b)  during any period, or during all periods, when a Vice President is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.

Note:          See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.

No invalidity

             (2)  Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in connection with the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion for the person to act had not arisen or had ceased.

Not disqualified

             (3)  A person is not disqualified from being appointed under subsection (1) or (1A) merely because the person is over 65.

648  Appointment of acting Deputy Presidents and Commissioners

Appointment by Governor‑General

             (1)  The Governor‑General may, by written instrument, appoint a person who is qualified for appointment as a Deputy President to act as a Deputy President for a specified period (including a period that exceeds 12 months).

Note:          See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.

          (1A)  The Governor‑General may, by written instrument, appoint a person who is qualified for appointment as a Commissioner to act as a Commissioner for a specified period (including a period that exceeds 12 months).

Note:          See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.

             (2)  Before the Governor‑General appoints a person under subsection (1) or (1A), the Minister must be satisfied that the appointment is necessary to enable the FWC to perform its functions effectively.

No invalidity

             (3)  Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in connection with the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion for the person to act had not arisen or had ceased.

Not disqualified

             (4)  A person is not disqualified from being appointed under subsection (1) or (1A) merely because the person is over 65.


 

Division 6Cooperation with the States

649  President to cooperate with prescribed State industrial authorities

             (1)  The President must perform his or her functions, and exercise his or her powers, in a manner that facilitates and encourages cooperation between the FWC and prescribed State industrial authorities.

             (2)  Without limiting subsection (1), the President may invite the heads of prescribed State industrial authorities, or the principal registrars of prescribed State industrial authorities, to meet with the President to exchange information and discuss matters of mutual interest in relation to workplace relations.

650  Provision of administrative support

                   The President may make a written arrangement with a prescribed State industrial authority for:

                     (a)  the FWC to provide administrative support to the authority; or

                     (b)  the authority to provide administrative support to the FWC.


 

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

651  Seals

Seal of the FWC

             (1)  The FWC must have a seal on which are inscribed the words “The Seal of the Fair Work Commission”.

Duplicate seals

             (2)  There are to be such duplicates of the seal of the FWC as the President directs.

Note:          The President gives directions under section 582.

             (3)  A document to which a duplicate seal of the FWC is affixed is taken to have the seal of the FWC affixed to it.

Custody and use of the seal of the FWC and duplicate seals

             (4)  The seal of the FWC, and the duplicates of that seal, are to be kept in such custody as the President directs and must not be used except as authorised by the President.

Note:          The President gives directions under section 582.

Judicial notice of the seal of the FWC

             (5)  All courts, judges and persons acting judicially must:

                     (a)  take judicial notice of the imprint of the seal of the FWC appearing on a document; and

                     (b)  presume that the document was duly sealed.

652  Annual report

             (1)  The President must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on the operations of the FWC during that year.

Note:          See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.

             (2)  To avoid doubt, subsection (1) does not require or authorise the disclosure of information for the purposes of the Privacy Act 1988.

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

Review and research

             (1)  The General Manager must:

                     (a)  review the developments, in Australia, in making enterprise agreements; and

                     (b)  conduct research into the extent to which individual flexibility arrangements under modern awards and enterprise agreements are being agreed to, and the content of those arrangements; and

                     (c)  conduct research into the operation of the provisions of the National Employment Standards relating to:

                              (i)  requests for flexible working arrangements under subsection 65(1); and

                             (ii)  requests for extensions of unpaid parental leave under subsection 76(1); and

                     (d)  conduct research into:

                              (i)  the circumstances in which employees make such requests; and

                             (ii)  the outcome of such requests; and

                            (iii)  the circumstances in which such requests are refused.

          (1A)  The review and research must be conducted in relation to each of the following periods:

                     (a)  the 3 year period that starts when this section commences;

                     (b)  each later 3 year period.

             (2)  Without limiting subsection (1), the General Manager must, in conducting the review and research, consider the effect that the matters referred to in paragraphs (1)(a) to (d) have had, during the period, on the employment (including wages and conditions of employment) of the following persons:

                     (a)  women;

                     (b)  part‑time employees;

                     (c)  persons from a non‑English speaking background;

                     (d)  mature age persons;

                     (e)  young persons;

                      (f)  any other persons prescribed by the regulations.

Report

             (3)  The General Manager must give the Minister a written report of the review and research as soon as practicable, and in any event within 6 months, after the end of the period to which it relates.

             (4)  The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

             (5)  Subsections 34C(4) to (7) of the Acts Interpretation Act 1901 apply to the report as if it were a periodic report as defined in subsection 34C(1) of that Act.

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

                   The General Manager may make a written arrangement with the Federal Court or the Federal Magistrates Court for the FWC to provide administrative support to the Fair Work Division of the Court.

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

             (1)  The President must provide to the Minister and the Fair Work Ombudsman information and copies of documents prescribed by the regulations by the time, and in the form, prescribed.

             (2)  The regulations may prescribe:

                     (a)  information that is publicly available, or derived from information that is publicly available, relating to:

                              (i)  a decision of the FWC; or

                             (ii)  a notice, notification or application given or made to the FWC; and

                     (b)  a decision of the FWC that is publicly available.

655  Disclosure of information by the FWC

Information to which this section applies

             (1)  This section applies to the following information:

                     (a)  information acquired by the FWC, or a member of the staff of the FWC, in the course of performing functions or exercising powers as the FWC;

                     (b)  information acquired by a person in the course of assisting the FWC under section 672, or in the course of performing functions, or exercising powers, as a consultant under section 673.

Disclosure that is necessary or appropriate, or likely to assist administration or enforcement

             (2)  The President may disclose, or authorise the disclosure of, the information if the President reasonably believes:

                     (a)  that it is necessary or appropriate to do so in the course of performing functions, or exercising powers, of the FWC; or

                     (b)  that the disclosure is likely to assist in the administration or enforcement of a law of the Commonwealth, a State or a Territory.


 

Division 8General Manager, staff and consultants

Subdivision AFunctions of the General Manager

656  Establishment

                   There is to be a General Manager of the Fair Work Commission.

657  Functions and powers of the General Manager

             (1)  The General Manager is to assist the President in ensuring that the FWC performs its functions and exercises its powers.

          (1A)  The General Manager also has the following functions:

                     (a)  any function conferred on him or her by a fair work instrument;

                     (b)  any function conferred on him or her by a law of the Commonwealth.

Note:          Sections 653 and 653A confer additional functions and powers on the General Manager.

             (2)  The General Manager has power to do all things necessary or convenient to be done for the purpose of performing his or her functions.

658  Directions from the President

                   Despite the President’s power of direction under section 582, the General Manager is not required to comply with a direction by the President to the extent that:

                     (a)  compliance with the direction would be inconsistent with the General Manager’s performance of functions or exercise of powers under the Financial Management and Accountability Act 1997 in relation to the FWC; or

                     (b)  the direction relates to the General Manager’s performance of functions or exercise of powers under the Public Service Act 1999 in relation to the FWC; or

                     (c)  the direction relates to the conduct by the General Manager of the review and research, and the preparation of the report, under section 653.

659  General Manager not otherwise subject to direction

                   Except as provided by this or any other Act, the General Manager is not subject to direction by or on behalf of the Commonwealth.

Subdivision BAppointment and terms and conditions of the General Manager

660  Appointment of the General Manager

             (1)  The General Manager is to be appointed by the Governor‑General by written instrument on the nomination of the President.

             (2)  The General Manager holds office on a full‑time basis.

             (3)  The General Manager holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

Note:          The General Manager is eligible for reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).

661  Remuneration of the General Manager

             (1)  The General Manager is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the General Manager is to be paid the remuneration that is prescribed by the regulations.

             (2)  The General Manager is to be paid the allowances that are prescribed by the regulations.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

662  Leave of absence of the General Manager

             (1)  The General Manager has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Minister may grant the General Manager leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

663