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 3
Subdivision A—Applications for orders 3
539........................ Applications for orders in relation to contraventions of civil remedy provisions 3
540........................ Limitations on who may apply for orders etc.................... 15
541........................ Applications for orders in relation to safety net contractual entitlements 17
542........................ Entitlements under contracts............................................. 17
543........................ Applications for orders in relation to statutory entitlements derived from contracts 18
544........................ Time limit on applications................................................. 18
Subdivision B—Orders 19
545........................ Orders that can be made by particular courts.................... 19
546........................ Pecuniary penalty orders................................................... 20
547........................ Interest up to judgment..................................................... 21
Division 3—Small claims procedure 23
548........................ Plaintiffs may choose small claims procedure................... 23
Division 4—General provisions relating to civil remedies 25
549........................ Contravening a civil remedy provision is not an offence.. 25
550........................ Involvement in contravention treated in same way as actual contravention 25
551........................ Civil evidence and procedure rules for proceedings relating to civil remedy provisions 25
552........................ Civil proceedings after criminal proceedings.................... 25
553........................ Criminal proceedings during civil proceedings................. 26
554........................ Criminal proceedings after civil proceedings.................... 26
555........................ Evidence given in proceedings for pecuniary penalty not admissible in criminal proceedings 26
556........................ Civil double jeopardy........................................................ 27
557........................ Course of conduct............................................................. 27
558........................ Regulations dealing with infringement notices.................. 28
Division 5—Unclaimed money 30
559........................ Unclaimed money............................................................. 30
Part 4‑2—Jurisdiction and powers of courts 32
Division 1—Introduction 32
560........................ Guide to this Part.............................................................. 32
561........................ Meanings of employee and employer................................ 32
Division 2—Jurisdiction and powers of the Federal Court 33
562........................ Conferring jurisdiction on the Federal Court.................... 33
563........................ Exercising jurisdiction in the Fair Work Division of the Federal Court 33
564........................ No limitation on Federal Court’s powers.......................... 34
565........................ Appeals from eligible State or Territory courts................. 34
Division 3—Jurisdiction and powers of the Federal Circuit Court 36
566........................ Conferring jurisdiction on the Federal Circuit Court......... 36
567........................ Exercising jurisdiction in the Fair Work Division of the Federal Circuit Court 36
568........................ No limitation on Federal Circuit Court’s powers.............. 36
Division 4—Miscellaneous 37
569........................ Minister’s entitlement to intervene.................................... 37
569A..................... State or Territory Minister’s entitlement to intervene........ 37
570........................ Costs only if proceedings instituted vexatiously etc.......... 38
571........................ No imprisonment for failure to pay pecuniary penalty...... 38
572........................ Regulations dealing with matters relating to court proceedings 38
Chapter 5—Administration 39
Part 5‑1—The Fair Work Commission 39
Division 1—Introduction 39
573........................ Guide to this Part.............................................................. 39
574........................ Meanings of employee and employer................................ 40
Division 2—Establishment and functions of the Fair Work Commission 41
Subdivision A—Establishment and functions of the Fair Work Commission 41
575........................ Establishment of the Fair Work Commission................... 41
576........................ Functions of the FWC...................................................... 41
577........................ Performance of functions etc. by the FWC....................... 43
578........................ Matters the FWC must take into account in performing functions etc. 43
579........................ FWC has privileges and immunities of the Crown........... 43
580........................ Protection of FWC Members............................................ 43
Subdivision B—Functions and powers of the President 44
581........................ Functions of the President................................................ 44
581A..................... Dealing with a complaint about an FWC Member............ 44
581B...................... Code of Conduct............................................................... 46
582........................ Directions by the President............................................... 46
583........................ President not subject to direction...................................... 47
584........................ Delegation of functions and powers of the President........ 47
Subdivision C—Protection of persons involved in handling etc. complaints about FWC Members 48
584B...................... Protection of persons involved in handling etc. complaints about FWC Members 48
Division 3—Conduct of matters before the FWC 49
Subdivision A—Applications to the FWC 49
585........................ Applications in accordance with procedural rules............. 49
586........................ Correcting and amending applications and documents etc. 49
587........................ Dismissing applications.................................................... 49
588........................ Discontinuing applications................................................ 50
Subdivision B—Conduct of matters before the FWC 50
589........................ Procedural and interim decisions...................................... 50
590........................ Powers of the FWC to inform itself.................................. 50
591........................ FWC not bound by rules of evidence and procedure........ 51
592........................ Conferences...................................................................... 51
593........................ Hearings........................................................................... 52
594........................ Confidential evidence........................................................ 53
595........................ FWC’s power to deal with disputes.................................. 53
Subdivision C—Representation by lawyers and paid agents and Minister’s entitlement to make submissions 54
596........................ Representation by lawyers and paid agents....................... 54
597........................ Minister’s entitlement to make submissions..................... 55
597A..................... State or Territory Minister’s entitlement to make submissions 55
Subdivision D—Decisions of the FWC 56
598........................ Decisions of the FWC...................................................... 56
599........................ FWC not required to decide an application in terms applied for 56
600........................ Determining matters in the absence of a person................ 57
601........................ Writing and publication requirements for the FWC’s decisions 57
602........................ Correcting obvious errors etc. in relation to the FWC’s decisions 58
603........................ Varying and revoking the FWC’s decisions..................... 58
Subdivision E—Appeals, reviews and referring questions of law 59
604........................ Appeal of decisions.......................................................... 59
605........................ Minister’s entitlement to apply for review of a decision... 60
606........................ Staying decisions that are appealed or reviewed............... 60
607........................ Process for appealing or reviewing decisions................... 61
608........................ Referring questions of law to the Federal Court............... 62
Subdivision F—Miscellaneous 62
609........................ Procedural rules................................................................ 62
610........................ Regulations dealing with any FWC matters...................... 63
611........................ Costs................................................................................. 63
Division 4—Organisation of the FWC 65
Subdivision A—Functions etc. to be performed by a single FWC Member, a Full Bench or an Expert Panel 65
612........................ FWC’s functions etc. may generally be performed by single FWC Member 65
613........................ Appeal of decisions.......................................................... 65
614........................ Review of decisions by a Full Bench................................ 66
615........................ The President may direct a Full Bench to perform function etc. 66
615A..................... When the President must direct a Full Bench to perform function etc. 66
615B...................... Transfer to a Full Bench from an FWC Member.............. 67
615C...................... Transfer to the President from an FWC Member or a Full Bench 67
616........................ FWC’s functions etc. that must be performed by a Full Bench 68
617........................ FWC’s functions etc. that must be performed by an Expert Panel 69
Subdivision B—Constitution of the FWC by a single FWC Member, a Full Bench or an Expert Panel 70
618........................ Constitution and decision‑making of a Full Bench........... 70
619........................ Seniority of FWC Members............................................. 71
620........................ Constitution and decision‑making of an Expert Panel....... 71
621........................ Reconstitution of the FWC when single FWC Member becomes unavailable 73
622........................ Reconstitution of the FWC when FWC Member of a Full Bench or an Expert Panel becomes unavailable.......................................................................................... 73
623........................ When new FWC Members begin to deal with matters...... 74
624........................ FWC’s decisions not invalid when improperly constituted 74
Subdivision C—Delegation of the FWC’s functions and powers 74
625........................ Delegation by the President of functions and powers of the FWC 74
Division 5—FWC Members 76
Subdivision A—Appointment of FWC Members 76
626........................ Appointment of FWC Members....................................... 76
627........................ Qualifications for appointment of FWC Members............ 76
628........................ Basis of appointment of FWC Members.......................... 78
629........................ Period of appointment of FWC Members......................... 78
Subdivision B—Terms and conditions of FWC Members 79
629A..................... Status of the President...................................................... 79
630........................ Appointment of a Judge not to affect tenure etc................ 80
631........................ Dual federal and State appointments of Deputy Presidents or Commissioners 80
632........................ Dual federal and Territory appointments of Deputy Presidents or Commissioners 81
633........................ Outside work of FWC Members...................................... 81
634........................ Oath or affirmation of office............................................. 81
635........................ Remuneration of the President.......................................... 82
636........................ Application of Judges’ Pensions Act to the President...... 82
637........................ Remuneration of FWC Members other than the President 83
638........................ Remuneration of Deputy Presidents or Commissioners performing duties on a part‑time basis 84
639........................ Leave of absence of FWC Members other than the President 85
640........................ Disclosure of interests by FWC Members other than the President 85
641........................ Termination of appointment on grounds of misbehaviour or incapacity 86
641A..................... Minister may handle complaints about FWC Members.... 86
642........................ Suspension on grounds of misbehaviour or incapacity..... 87
643........................ Termination of appointment for bankruptcy, etc............... 88
644........................ Termination of appointment for outside work................... 88
645........................ Resignation of FWC Members......................................... 89
646........................ Other terms and conditions of FWC Members................. 89
647........................ Appointment of acting President and Vice President........ 89
648........................ Appointment of acting Deputy Presidents and Commissioners 90
Division 6—Cooperation with the States 92
649........................ President to cooperate with prescribed State industrial authorities 92
650........................ Provision of administrative support.................................. 92
Division 7—Seals and additional powers and functions of the President and the General Manager 93
651........................ Seals................................................................................. 93
652........................ Annual report.................................................................... 94
653........................ Reports about making enterprise agreements, individual flexibility arrangements etc. 94
653A..................... Arrangements with the Federal Court and the Federal Circuit Court 96
654........................ President must provide certain information etc. to the Minister and Fair Work Ombudsman 96
655........................ Disclosure of information by the FWC............................. 96
Division 8—General Manager, staff and consultants 98
Subdivision A—Functions of the General Manager 98
656........................ Establishment.................................................................... 98
657........................ Functions and powers of the General Manager................ 98
658........................ Directions from the President........................................... 98
659........................ General Manager not otherwise subject to direction......... 99
Subdivision B—Appointment and terms and conditions of the General Manager 99
660........................ Appointment of the General Manager............................... 99
661........................ Remuneration of the General Manager............................. 99
662........................ Leave of absence of the General Manager...................... 100
663........................ Outside work of the General Manager............................ 100
664........................ Disclosure of interests to the President........................... 100
665........................ Resignation of the General Manager............................... 100
666........................ Termination of appointment of the General Manager...... 100
667........................ Other terms and conditions of the General Manager....... 101
668........................ Appointment of acting General Manager........................ 101
669........................ Minister to consult the President..................................... 102
Subdivision C—Staff and consultants 102
670........................ Staff................................................................................ 102
671........................ Delegation by General Manager to staff......................... 102
672........................ Persons assisting the FWC............................................. 103
673........................ Consultants..................................................................... 103
Subdivision D—Application of the finance law 103
673A..................... Application of the finance law........................................ 103
Division 9—Offences relating to the Fair Work Commission 105
674........................ Offences in relation to the FWC..................................... 105
675........................ Contravening an FWC order........................................... 107
676........................ Intimidation etc............................................................... 108
677........................ Offences in relation to attending before the FWC........... 108
678........................ False or misleading evidence.......................................... 109
Part 5‑2—Office of the Fair Work Ombudsman 111
Division 1—Introduction 111
679........................ Guide to this Part............................................................ 111
680........................ Meanings of employee and employer.............................. 111
Division 2—Fair Work Ombudsman 112
Subdivision A—Establishment and functions and powers of the Fair Work Ombudsman 112
681........................ Establishment.................................................................. 112
682........................ Functions of the Fair Work Ombudsman....................... 112
683........................ Delegation by the Fair Work Ombudsman..................... 113
684........................ Directions from the Minister........................................... 113
685........................ Minister may require reports........................................... 114
686........................ Annual report.................................................................. 114
Subdivision B—Appointment and terms and conditions of the Fair Work Ombudsman 114
687........................ Appointment of the Fair Work Ombudsman.................. 114
688........................ Remuneration of the Fair Work Ombudsman................. 115
689........................ Leave of absence of the Fair Work Ombudsman............ 115
690........................ Outside work of the Fair Work Ombudsman................. 115
692........................ Resignation of the Fair Work Ombudsman.................... 115
693........................ Termination of appointment of the Fair Work Ombudsman 116
694........................ Other terms and conditions of the Fair Work Ombudsman 116
695........................ Appointment of acting Fair Work Ombudsman.............. 117
Division 3—Office of the Fair Work Ombudsman 118
Subdivision A—Establishment of the Office of the Fair Work Ombudsman 118
696........................ Establishment of the Office of the Fair Work Ombudsman 118
Subdivision B—Staff and consultants etc. 118
697........................ Staff................................................................................ 118
698........................ Persons assisting the Fair Work Ombudsman................ 118
699........................ Consultants..................................................................... 119
Subdivision C—Appointment of Fair Work Inspectors 119
700........................ Appointment of Fair Work Inspectors............................ 119
701........................ Fair Work Ombudsman is a Fair Work Inspector........... 119
702........................ Identity cards.................................................................. 120
Subdivision D—Functions and powers of Fair Work Inspectors 121
703........................ Conditions and restrictions on functions and powers..... 121
704........................ General directions by the Fair Work Ombudsman.......... 121
705........................ Particular directions by the Fair Work Ombudsman....... 121
706........................ Purpose for which powers of inspectors may be exercised 121
707........................ When powers of inspectors may be exercised................ 122
708........................ Power of inspectors to enter premises............................ 122
709........................ Powers of inspectors while on premises......................... 123
710........................ Persons assisting inspectors........................................... 124
711........................ Power to ask for person’s name and address.................. 124
712........................ Power to require persons to produce records or documents 125
713........................ Self‑incrimination........................................................... 125
713A..................... Certain records and documents are inadmissible............. 126
714........................ Power to keep records or documents.............................. 126
715........................ Enforceable undertakings relating to contraventions of civil remedy provisions 126
716........................ Compliance notices......................................................... 128
717........................ Review of compliance notices......................................... 130
Subdivision E—Disclosure of information by the Office of the Fair Work Ombudsman 130
718........................ Disclosure of information by the Office of the Fair Work Ombudsman 130
Chapter 6—Miscellaneous 133
Part 6‑1—Multiple actions 133
Division 1—Introduction 133
719........................ Guide to this Part............................................................ 133
720........................ Meanings of employee and employer.............................. 133
Division 2—Certain actions not permitted if alternative action can be taken 134
721........................ Equal remuneration applications..................................... 134
722........................ Notification and consultation requirements applications. 134
723........................ Unlawful termination applications.................................. 135
Division 3—Preventing multiple actions 136
Subdivision A—Equal remuneration applications 136
724........................ Equal remuneration applications..................................... 136
Subdivision B—Applications and complaints relating to dismissal 137
725........................ General rule.................................................................... 137
726........................ Dismissal remedy bargaining order applications............. 137
727........................ General protections FWC applications............................ 137
728........................ General protections court applications............................ 138
729........................ Unfair dismissal applications.......................................... 139
730........................ Unlawful termination FWC applications......................... 139
731........................ Unlawful termination court applications......................... 140
732........................ Applications and complaints under other laws................ 140
733........................ Dismissal does not include failure to provide benefits.... 141
Subdivision C—General protections applications that do not relate to dismissal 141
734........................ General rule.................................................................... 141
Part 6‑2—Dealing with disputes 143
Division 1—Introduction 143
735........................ Guide to this Part............................................................ 143
736........................ Meanings of employee and employer.............................. 143
Division 2—Dealing with disputes 144
Subdivision A—Model term about dealing with disputes 144
737........................ Model term about dealing with disputes......................... 144
Subdivision B—Dealing with disputes 144
738........................ Application of this Division............................................ 144
739........................ Disputes dealt with by the FWC..................................... 144
740........................ Dispute dealt with by persons other than the FWC......... 145
Part 6‑3—Extension of National Employment Standards entitlements 147
Division 1—Introduction 147
741........................ Guide to this Part............................................................ 147
742........................ Meanings of employee and employer.............................. 147
Division 2—Extension of entitlement to unpaid parental leave and related entitlements 148
Subdivision A—Main provisions 148
743........................ Object of this Division.................................................... 148
744........................ Extending the entitlement to unpaid parental leave and related entitlements 148
745........................ Contravening the extended parental leave provisions...... 150
746........................ References to the National Employment Standards include extended parental leave provisions 150
747........................ State and Territory laws that are not excluded................. 150
Subdivision B—Modifications of the extended parental leave provisions 151
748........................ Non‑national system employees are not award/agreement free employees 151
749........................ Modification of meaning of base rate of pay for pieceworkers 151
750........................ Modification of meaning of full rate of pay for pieceworkers 151
751........................ Modification of meaning of ordinary hours of work—if determined by State industrial instrument 151
752........................ Modification of meaning of ordinary hours of work—if not determined by State industrial instrument 152
753........................ Modification of meaning of ordinary hours of work—regulations may prescribe usual weekly hours 152
754........................ Modification of meaning of pieceworker........................ 152
755........................ Modification of provision about interaction with paid leave 153
756........................ Modification of provision about relationship between National Employment Standards and agreements........................................................................................ 153
757........................ Modification of power to make regulations.................... 153
Division 3—Extension of entitlement to notice of termination or payment in lieu of notice 154
Subdivision A—Main provisions 154
758........................ Object of this Division.................................................... 154
759........................ Extending entitlement to notice of termination or payment in lieu of notice 154
760........................ Contravening the extended notice of termination provisions 155
761........................ References to the National Employment Standards include extended notice of termination provisions 156
762........................ State and Territory laws that are not excluded................. 156
Subdivision B—Modifications of the extended notice of termination provisions 156
763........................ Non‑national system employees are not award/agreement free employees 156
764........................ Modification of meaning of full rate of pay for pieceworkers 156
765........................ Modification of meaning of pieceworker........................ 157
766........................ Modification of provision about notice of termination by employee 157
767........................ Modification of provision about relationship between National Employment Standards and agreements........................................................................................ 157
768........................ Modification of power to make regulations.................... 157
Part 6‑3A—Transfer of business from a State public sector employer 159
Division 1—Introduction 159
768AA.................. Guide to this Part............................................................ 159
768AB................... Meanings of employee and employer.............................. 159
Division 2—Copying terms of State instruments when there is a transfer of business 160
768AC................... What this Division is about............................................. 160
768AD.................. When does a transfer of business occur?........................ 160
768AE................... Meaning of transferring employee, termination time and re‑employment time 161
Division 3—Copied State instruments 162
Subdivision A—Guide to this Division 162
768AF................... What this Division is about............................................. 162
Subdivision B—Copied State instruments 162
768AG.................. Contravening a copied State instrument.......................... 162
768AH.................. What is a copied State instrument?.................................. 163
768AI.................... What is a copied State award?......................................... 163
768AJ.................... What is a State award?.................................................... 164
768AK................... What is a copied State employment agreement?.............. 164
768AL................... What is a State employment agreement?......................... 166
768AM.................. When does a copied State instrument apply to a person? 167
768AN.................. When does a copied State instrument cover a person?.... 168
768AO.................. When is a copied State instrument in operation?............. 170
Division 4—Interaction between copied State instruments and the NES, modern awards and enterprise agreements 172
Subdivision A—Guide to this Division 172
768AP................... What this Division is about............................................. 172
Subdivision B—Interaction with the NES 172
768AQ.................. Interaction between the NES and a copied State instrument 172
768AR................... Provisions of the NES that allow instruments to contain particular kinds of terms 172
Subdivision C—Interaction with modern awards 174
768AS................... Modern awards and copied State awards........................ 174
768AT................... Modern awards and copied State employment agreements 174
Subdivision D—Interaction with enterprise agreements 176
768AU.................. Enterprise agreements and copied State instruments....... 176
Division 5—Variation and termination of copied State instruments 177
Subdivision A—Guide to this Division 177
768AV.................. What this Division is about............................................. 177
Subdivision B—Variation of copied State instruments 177
768AW.................. Variation in limited circumstances.................................. 177
768AX.................. Variation of copied State instruments............................. 177
Subdivision C—Termination of copied State instruments 180
768AY.................. Termination in limited circumstances.............................. 180
Division 6—FWC orders about coverage of copied State instruments and other instruments 181
Subdivision A—Guide to this Division 181
768AZ................... What this Division is about............................................. 181
768AZA................ Orders in relation to a transfer of business..................... 181
Subdivision B—Coverage orders 182
768BA................... FWC orders about coverage for transferring employees. 182
768BB................... FWC orders about coverage for employee organisations 183
Division 7—FWC orders about consolidating copied State instruments etc. 185
Subdivision A—Guide to this Division 185
768BC................... What this Division is about............................................. 185
768BCA................ Orders in relation to a transfer of business..................... 186
Subdivision B—Consolidation orders in relation to transferring employees 186
768BD................... Consolidation orders in relation to transferring employees 186
768BE................... Consolidation order to deal with application and coverage 187
768BF................... Effect of this Act after a consolidation order is made...... 188
Subdivision C—Consolidation orders in relation to non‑transferring employees 188
768BG................... Consolidation orders in relation to non‑transferring employees 188
768BH................... Consolidation order to deal with application and coverage 190
768BI.................... Effect of this Act after a consolidation order is made...... 191
Division 8—Special rules for copied State instruments 192
Subdivision A—Guide to this Division 192
768BJ.................... What this Division is about............................................. 192
Subdivision B—Terms about disputes 193
768BK................... Where no term dealing with disputes.............................. 193
Subdivision C—Service and entitlements of a transferring employee 193
768BL................... Service for the purposes of this Act................................ 193
768BM.................. NES—working out non‑accruing entitlements............... 194
768BN................... NES—working out accruing entitlements....................... 195
768BO................... Copied State instrument—service................................... 196
768BP................... Copied State instrument—working out non‑accruing entitlements 197
768BQ................... Copied State instrument—working out accruing entitlements 198
Subdivision D—Cessation of copied State awards: avoiding reductions in take‑home pay 199
768BR................... Cessation not intended to result in reduction in take‑home pay 199
768BS................... Orders remedying reductions in take‑home pay.............. 200
768BT................... Contravening a take‑home pay order.............................. 201
768BU................... How long a take‑home pay order continues to apply...... 201
768BV................... Interaction of take‑home pay orders with modern awards and enterprise agreements 201
768BW.................. Application of this Act to take‑home pay orders............. 201
Subdivision E—Modification of this Act 202
768BX................... Modification of this Act for copied State instruments..... 202
Subdivision F—Modification of the Transitional Act 203
768BY................... Modification of the Transitional Act for copied State instruments 203
Subdivision G—Modification of the Registered Organisations Act 207
768BZ................... Modification of the Registered Organisations Act for copied State instruments 207
Division 9—Regulations 209
768CA................... Regulations..................................................................... 209
Part 6‑4—Additional provisions relating to termination of employment 211
Division 1—Introduction 211
769........................ Guide to this Part............................................................ 211
770........................ Meanings of employee and employer.............................. 211
Division 2—Termination of employment 212
771........................ Object of this Division.................................................... 212
772........................ Employment not to be terminated on certain grounds..... 212
773........................ Application for the FWC to deal with a dispute.............. 214
774........................ Time for application........................................................ 214
775........................ Application fees.............................................................. 215
776........................ Dealing with a dispute (other than by arbitration)........... 215
777........................ Dealing with a dispute by arbitration.............................. 216
778........................ Taking a dispute to court................................................. 217
779........................ Appeal rights.................................................................. 217
779A..................... Costs orders against parties............................................ 218
780........................ Costs orders against lawyers and paid agents................. 218
781........................ Applications for costs orders.......................................... 219
781A..................... Schedule of costs............................................................ 219
782........................ Contravening costs orders.............................................. 220
783........................ Reason for action to be presumed unless proved otherwise 220
Division 3—Notification and consultation requirements relating to certain terminations of employment 221
Subdivision A—Object of this Division 221
784........................ Object of this Division.................................................... 221
Subdivision B—Requirement to notify Centrelink 221
785........................ Employer to notify Centrelink of certain proposed terminations 221
Subdivision C—Failure to notify or consult registered employee associations 222
786........................ FWC may make orders where failure to notify or consult registered employee associations about terminations........................................................................................ 222
787........................ Orders that the FWC may make...................................... 224
788........................ Application to the FWC for order................................... 224
Subdivision D—Limits on scope of this Division 225
789........................ Limits on scope of this Division..................................... 225
Part 6‑4A—Special provisions about TCF outworkers 226
Division 1—Introduction 226
789AA.................. Guide to this Part............................................................ 226
789AB................... Meanings of employee and employer.............................. 226
789AC................... Objects of this Part......................................................... 226
Division 2—TCF contract outworkers taken to be employees in certain circumstances 228
789BA................... Provisions covered by this Division............................... 228
789BB................... TCF contract outworkers taken to be employees in certain circumstances 229
789BC................... Regulations relating to TCF outworkers who are taken to be employees 230
Division 3—Recovery of unpaid amounts 231
789CA................... When this Division applies............................................. 231
789CB................... Liability of indirectly responsible entity for unpaid amount 233
789CC................... Demand for payment from an apparent indirectly responsible entity 233
789CD................... Court order for entity to pay amount demanded.............. 234
789CE................... Effect of payment by entity (including entity’s right to recover from responsible person) 235
789CF................... Division does not limit other liabilities or rights............. 236
Division 4—Code of practice relating to TCF outwork 237
789DA.................. Regulations may provide for a code................................ 237
789DB................... Matters that may be dealt with in TCF outwork code..... 237
789DC................... Persons on whom obligations may be imposed by TCF outwork code 238
789DD.................. Other general matters relating to content of TCF outwork code 239
789DE................... Relationship between the TCF outwork code and other instruments 240
Division 5—Miscellaneous 242
789EA................... Part not intended to exclude or limit State or Territory laws relating to outworkers 242
Part 6‑4B—Workers bullied at work 243
Division 1—Introduction 243
789FA................... Guide to this Part............................................................ 243
789FB................... Meanings of employee and employer.............................. 243
Division 2—Stopping workers being bullied at work 244
789FC................... Application for an FWC order to stop bullying.............. 244
789FD................... When is a worker bullied at work?................................. 244
789FE.................... FWC to deal with applications promptly......................... 245
789FF.................... FWC may make orders to stop bullying......................... 246
789FG................... Contravening an order to stop bullying........................... 246
789FH................... Actions under work health and safety laws permitted..... 246
789FI..................... This Part is not to prejudice Australia’s defence, national security etc. 247
789FJ.................... Declarations by the Chief of the Defence Force.............. 247
789FK................... Declarations by the Director‑General of Security........... 248
789FL.................... Declarations by the Director‑General of ASIS............... 248
Part 6‑5—Miscellaneous 249
Division 1—Introduction 249
790........................ Guide to this Part............................................................ 249
791........................ Meanings of employee and employer.............................. 249
Division 2—Miscellaneous 250
792........................ Delegation by Minister................................................... 250
793........................ Liability of bodies corporate........................................... 250
794........................ Signature on behalf of body corporate............................ 251
795........................ Public sector employer to act through employing authority 251
795A..................... The Schedules................................................................. 253
796........................ Regulations—general...................................................... 253
796A..................... Regulations conferring functions.................................... 253
797........................ Regulations dealing with offences.................................. 253
798........................ Regulations dealing with civil penalties.......................... 254
799........................ Regulations dealing with infringement notices................ 254
800........................ Regulations dealing with exhibiting fair work instruments 254
Schedule 1—Application, saving and transitional provisions relating to amendments of this Act 255
Part 1—Amendments made by the Fair Work Amendment (Textile, Clothing and Footwear Industry) Act 2012 255
1............................ Definitions...................................................................... 255
2............................ Section 789BB of amended Act applies to contracts entered into after commencement 255
3............................ Effect on TCF contract outworker’s entitlements............ 256
4............................ Fair work instruments etc. made before commencement. 256
5............................ Application of Division 3 of Part 6‑4A of amended Act 257
6............................ Application of subsection 203(2A) of amended Act....... 257
7............................ Regulations dealing with various matters........................ 257
Part 2—Amendments made by the Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Act 2012 259
8............................ Definitions...................................................................... 259
9............................ Application of sections 149A and 155A of amended Act 259
10.......................... FWC to vary certain modern awards.............................. 259
11.......................... FWC to update text of certain modern awards................ 260
12.......................... Application of paragraph 194(h) of amended Act........... 260
Schedule 2—Amendments made by the Fair Work Amendment (Transfer of Business) Act 2012 261
1............................ Definitions...................................................................... 261
2............................ Application of the amendments made by the amending Act 261
Schedule 3—Amendments made by the Fair Work Amendment Act 2012 262
Part 1—Preliminary 262
1............................ Definitions...................................................................... 262
Part 2—Default superannuation (Schedule 1) 263
2............................ Schedule 1 to the amending Act...................................... 263
2A......................... Transitional provision—when first variations of default fund term take effect 263
2B.......................... Transitional provision—modern awards made on or after 1 January 2014 264
Part 3—Modern awards (Schedule 3) 265
3............................ Part 1 of Schedule 3 to the amending Act....................... 265
Part 4—Enterprise agreements (Schedule 4) 266
4............................ Part 1 of Schedule 4 to the amending Act....................... 266
5............................ Part 2 of Schedule 4 to the amending Act....................... 266
6............................ Part 3 of Schedule 4 to the amending Act....................... 266
7............................ Part 4 of Schedule 4 to the amending Act....................... 267
8............................ Part 5 of Schedule 4 to the amending Act....................... 267
Part 5—General protections (Schedule 5) 268
9............................ Part 1 of Schedule 5 to the amending Act....................... 268
Part 6—Unfair dismissal (Schedule 6) 269
10.......................... Part 1 of Schedule 6 to the amending Act....................... 269
11.......................... Part 2 of Schedule 6 to the amending Act....................... 269
12.......................... Part 3 of Schedule 6 to the amending Act....................... 269
13.......................... Part 4 of Schedule 6 to the amending Act....................... 269
Part 7—Industrial action (Schedule 7) 270
14.......................... Part 1 of Schedule 7 to the amending Act....................... 270
15.......................... Part 2 of Schedule 7 to the amending Act....................... 270
16.......................... Part 3 of Schedule 7 to the amending Act....................... 270
Part 8—The Fair Work Commission (Schedule 8) 271
17.......................... Part 1 of Schedule 8 to the amending Act....................... 271
18.......................... Part 2 of Schedule 8 to the amending Act....................... 271
19.......................... Part 4 of Schedule 8 to the amending Act....................... 271
20.......................... Part 5 of Schedule 8 to the amending Act....................... 271
21.......................... Part 6 of Schedule 8 to the amending Act....................... 271
22.......................... Part 7 of Schedule 8 to the amending Act....................... 272
23.......................... Part 8 of Schedule 8 to the amending Act....................... 272
Part 9—Changing the name of Fair Work Australia (Schedule 9) 273
24.......................... Transitional provision—President.................................. 273
25.......................... Transitional provision—Deputy President...................... 274
26.......................... Transitional provision—Commissioner.......................... 275
27.......................... Transitional provision—Minimum Wage Panel Member 276
28.......................... Operation of laws—things done by, or in relation to, FWA 277
29.......................... Transitional provision—General Manager and staff of FWA 277
30.......................... Operation of section 7 and subsection 25B(1) of the Acts Interpretation Act 1901 not limited 278
Part 10—Other amendments (Schedule 10) 279
31.......................... Part 1 of Schedule 10 to the amending Act..................... 279
Part 11—Regulations 280
32.......................... Regulations about application, transitional and saving matters 280
Schedule 4—Amendments made by the Fair Work Amendment Act 2013 281
Part 1—Preliminary 281
1............................ Definition........................................................................ 281
Part 2—Family‑friendly measures (Schedule 1) 282
2............................ Part 1 of Schedule 1 to the amending Act....................... 282
3............................ Part 2 of Schedule 1 to the amending Act....................... 282
4............................ Part 3 of Schedule 1 to the amending Act....................... 282
5............................ Part 4 of Schedule 1 to the amending Act....................... 282
6............................ Part 5 of Schedule 1 to the amending Act....................... 283
Part 3—Modern awards objective (Schedule 2) 284
7............................ Schedule 2 to the amending Act...................................... 284
Part 4—Anti‑bullying measure (Schedule 3) 285
8............................ Schedule 3 to the amending Act...................................... 285
Part 4A—Conferences (Schedule 3A) 286
8A......................... Schedule 3A to the amending Act................................... 286
Part 5—Right of entry (Schedule 4) 287
9............................ Schedule 4 to the amending Act...................................... 287
Part 6—Consent arbitration for general protections and unlawful termination (Schedule 4A) 288
10.......................... Schedule 4A to the amending Act................................... 288
Part 7—The FWC (Schedule 5) 289
11.......................... Item 4 of Schedule 5 to the amending Act...................... 289
Schedule 5—Amendments made by the Fair Work Amendment Act 2015 290
1............................ Definition........................................................................ 290
2............................ Part 1 of Schedule 1 to the amending Act....................... 290
9............................ Part 5 of Schedule 1 to the amending Act....................... 290
11.......................... Part 7 of Schedule 1 to the amending Act....................... 290
14.......................... Part 10 of Schedule 1 to the amending Act..................... 290
Endnotes 291
Endnote 1—About the endnotes 291
Endnote 2—Abbreviation key 293
Endnote 3—Legislation history 294
Endnote 4—Amendment history 304
Chapter 4—Compliance and enforcement
Part 4‑1—Civil remedies
Division 1—Introduction
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 Circuit 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 2—Orders
Subdivision A—Applications 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 Circuit 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 Circuit 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 Circuit 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 Circuit 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 Circuit 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 Circuit 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 Circuit 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 Circuit 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 Circuit 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 Circuit 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
369(3) | (a) a person affected by the contravention; (b) an industrial association; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit 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 Circuit 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 Circuit 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 Circuit Court | 60 penalty units |
| 15 | 421(1) | (a) a person affected by the contravention; (b) an inspector | (a) the Federal Court; (b) the Federal Circuit 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 Circuit 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 Circuit 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 Circuit 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 Circuit Court | 30 penalty units |
| 21 | 470(1) | an inspector | (a) the Federal Court; (b) the Federal Circuit Court | 60 penalty units |
| 22 | 473(1)
473(2) | (a) an employer; (b) an inspector | (a) the Federal Court; (b) the Federal Circuit Court | 60 penalty units |
| 23 | 474(1) | an inspector | (a) the Federal Court; (b) the Federal Circuit Court | 60 penalty units |
| 24 | 475(1)
475(2) | (a) an employer; (b) an inspector | (a) the Federal Court; (b) the Federal Circuit 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
521C(3)
521D(3) | (a) a person affected by the contravention; (b) an inspector | (a) the Federal Court; (b) the Federal Circuit Court | 60 penalty units |
| 26 | 517(1) | an inspector | (a) the Federal Court; (b) the Federal Circuit 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 Circuit 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 Circuit 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 Circuit 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 Circuit 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 Circuit Court; (c) an eligible State or Territory court | 30 penalty units |
| 32 | 712(3) | an inspector | (a) the Federal Court; (b) the Federal Circuit Court; (c) an eligible State or Territory court | 60 penalty units |
| 33 | 716(5) | an inspector | (a) the Federal Court; (b) the Federal Circuit 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 Circuit 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 Circuit 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 Circuit Court; (c) an eligible State or Territory court | 60 penalty units |
| Part 6‑4—Additional provisions relating to termination of employment |
| 35 | 772(1)
777(3) | (a) a person affected by the contravention; (b) an industrial association; (c) an inspector | (a) the Federal Court; (b) the Federal Circuit 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 Circuit 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 Circuit Court | 30 penalty units |
| Part 6‑4B—Workers bullied at work |
| 38 | 789FG | (a) a person affected by the contravention; (b) an industrial association; (c) an inspector | (a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court | 60 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 Circuit 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 subparagraphs 370(a)(ii) and 778(a)(ii)).
Note 2: For time limits on orders relating to underpayments, see subsection 545(5).
Subdivision B—Orders
545 Orders that can be made by particular courts
Federal Court and Federal Circuit Court
(1) The Federal Court or the Federal Circuit 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 Circuit 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 Circuit 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 Circuit 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 3—Small 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 Circuit 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 4—General 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 5—Unclaimed 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.
Interest
(3A) If:
(a) an amount is paid to a person under subsection (3) at a particular time; and
(b) the amount is at least $100; and
(c) the amount is attributable to an amount that was paid to the Commonwealth under subsection (1) more than 6 months before that time;
the Fair Work Ombudsman, on behalf of the Commonwealth, must also pay to the person the amount of interest (if any) worked out in accordance with an instrument under subsection (3B).
(3B) The Minister may make an instrument for the purposes of subsection (3A).
(3C) An instrument under subsection (3B) may involve different rates of interest for different periods over which the interest accrues. For this purpose, rate includes a nil rate.
(3D) An instrument made under subsection (3B) is a legislative instrument.
Appropriation of Consolidated Revenue Fund
(4) The Consolidated Revenue Fund is appropriated for the purposes of subsection (3).
Part 4‑2—Jurisdiction and powers of courts
Division 1—Introduction
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 Circuit 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 Circuit 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 2—Jurisdiction 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 Circuit 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 Circuit Court; or
(h) the Federal Circuit 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 3—Jurisdiction and powers of the Federal Circuit Court
566 Conferring jurisdiction on the Federal Circuit Court
Jurisdiction is conferred on the Federal Circuit Court in relation to any civil matter arising under this Act.
567 Exercising jurisdiction in the Fair Work Division of the Federal Circuit Court
Jurisdiction conferred on the Federal Circuit Court under section 566 is to be exercised in the Fair Work Division of the Federal Circuit Court if:
(a) an application is made to the Federal Circuit Court under this Act; or
(b) an injunction is sought under section 15 of the Federal Circuit Court of Australia Act 1999 in relation to a matter arising under this Act; or
(c) a declaration is sought under section 16 of the Federal Circuit Court of Australia 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 Circuit Court from the Federal Court; or
(e) the High Court remits a matter arising under this Act to the Federal Circuit Court.
568 No limitation on Federal Circuit Court’s powers
To avoid doubt, nothing in this Act limits the Federal Circuit Court’s powers under section 14, 15 or 16 of the Federal Circuit Court of Australia Act 1999.
Division 4—Miscellaneous
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 5—Administration
Part 5‑1—The Fair Work Commission
Division 1—Introduction
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 Expert 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 an Expert 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 2—Establishment and functions of the Fair Work Commission
Subdivision A—Establishment 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) 6 Expert 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);
(na) transfer of business from a State public sector employer (Part 6‑3A);
(o) unlawful termination protections (Part 6‑4);
(p) special provisions about TCF outworkers (Part 6‑4A);
(q) workers bullied at work (Part 6‑4B).
(2) The FWC also has the following functions:
(aa) promoting cooperative and productive workplace relations and preventing disputes;
(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 Circuit Court of Australia Act 1999, have been referred by the Fair Work Division of the Federal Court or Federal Circuit 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 orientation, 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 B—Functions 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) an Expert 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 under Division 4 of Part 2‑3;
(aa) a direction about the conduct of 4 yearly reviews of default fund terms of modern awards under Division 4A of Part 2‑3;
(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 an Expert 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 C—Protection 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 3—Conduct of matters before the FWC
Subdivision A—Applications 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 B—Conduct 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 an Expert 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 an Expert 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).
(4) At a conference, the FWC may:
(a) mediate or conciliate; or
(b) make a recommendation or express an opinion.
(5) Subsection (4) does not limit what the FWC may do at a conference.
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 the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.
Subdivision C—Representation 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 D—Decisions 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 paragraph 368(3)(a);
(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