An Act relating to workplace relations, and for related purposes
Chapter 1—Introduction
Part 1‑1—Introduction
Division 1—Preliminary
1
Short title [see Note 1]
This Act may be cited as the Fair
Work Act 2009.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 and 2 and anything in this Act not
elsewhere covered by this table
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The day on which this Act receives the Royal Assent.
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7 April 2009
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2. Sections 3 to 40
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A single day to be fixed by Proclamation.
However, if any of the provision(s) do not commence within
the period of 12 months beginning on the day on which this Act receives the
Royal Assent, they commence on the first day after the end of that period.
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26 May 2009
(see F2009L01818)
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3. Sections 41 to 572
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A day or days to be fixed
by Proclamation.
A Proclamation must not
specify a day that occurs before the day on which the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009 receives
the Royal Assent.
However, if any of the
provision(s) do not commence within the period of 12 months beginning on the
day on which the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009 receives the Royal Assent, they commence on the
first day after the end of that period.
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Sections 41–43, 50–54, 58,
169–281A,
300–327, 332, 333, 334–572: 1 July 2009
(see F2009L02563)
Sections 44–49, 55–57A,
59–168,
282–299,
328–331, 333A: 1 January 2010
(see F2009L02563)
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4. Sections 573 to 718
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At the same time as the provision(s) covered by table
item 2.
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26 May 2009
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5. Sections 719 to 800
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A day or days to be fixed by Proclamation.
A Proclamation must not specify a day that occurs before
the day on which the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009 receives the Royal Assent.
However, if any of the provision(s) do not commence within
the period of 12 months beginning on the day on which the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009 receives
the Royal Assent, they commence on the first day after the end of that
period.
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Sections
719–740,
769–800: 1 July 2009
(see F2009L02563)
Sections
741–768: 1 January 2010
(see F2009L02563)
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6. Schedule 1
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At the same time as the provision(s) covered by table
item 2.
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26 May 2009
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Note: This table
relates only to the provisions of this Act as originally passed by both Houses
of the Parliament and assented to. It will not be expanded to deal with
provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional
information that is not part of this Act. Information in this column may be
added to or edited in any published version of this Act.
Division 2—Object of this Act
3
Object of this Act
The object of this Act is to provide a
balanced framework for cooperative and productive workplace relations that
promotes national economic prosperity and social inclusion for all Australians
by:
(a) providing workplace relations laws
that are fair to working Australians, are flexible for businesses, promote
productivity and economic growth for Australia’s future economic prosperity and
take into account Australia’s international labour obligations; and
(b) ensuring a guaranteed safety net
of fair, relevant and enforceable minimum terms and conditions through the
National Employment Standards, modern awards and national minimum wage orders;
and
(c) ensuring that the guaranteed
safety net of fair, relevant and enforceable minimum wages and conditions can
no longer be undermined by the making of statutory individual employment
agreements of any kind given that such agreements can never be part of a fair
workplace relations system; and
(d) assisting employees to balance
their work and family responsibilities by providing for flexible working
arrangements; and
(e) enabling fairness and representation
at work and the prevention of discrimination by recognising the right to
freedom of association and the right to be represented, protecting against
unfair treatment and discrimination, providing accessible and effective
procedures to resolve grievances and disputes and providing effective
compliance mechanisms; and
(f) achieving productivity and
fairness through an emphasis on enterprise‑level collective bargaining
underpinned by simple good faith bargaining obligations and clear rules
governing industrial action; and
(g) acknowledging the special
circumstances of small and medium‑sized businesses.
Division 3—Guide to this Act
4
Guide to this Act
Overview of this Act
(1) This Act is about workplace relations.
It:
(a) provides for terms and conditions
of employment (Chapter 2); and
(b) sets out rights and
responsibilities of employees, employers and organisations in relation to that
employment (Chapter 3); and
(c) provides for compliance with, and
enforcement of, this Act (Chapter 4); and
(d) provides for the administration of
this Act by establishing Fair Work Australia and the Office of the Fair Work
Ombudsman (Chapter 5); and
(e) deals with other matters relating
to the above (Chapter 6).
Overview of the rest of this Chapter
(2) The rest of this Chapter deals with:
(a) definitions that are used in this
Act (Part 1‑2); and
(b) the application of this Act
(Part 1‑3), including how this Act interacts with certain State and
Territory laws and its geographical application.
Definitions
(3) Many of the terms in this Act are
defined. The Dictionary in section 12 contains a list of every term that
is defined in this Act.
5
Terms and conditions of employment (Chapter 2)
(1) Chapter 2 provides for terms and
conditions of employment of national system employees.
(2) Part 2‑1 has the core provisions for
the Chapter. It deals with compliance with, and interaction between, the
sources of the main terms and conditions provided under this Act—the National
Employment Standards, modern awards and enterprise agreements.
Note: Workplace determinations are another source of
main terms and conditions. In most cases, this Act applies to a workplace
determination as if it were an enterprise agreement in operation (see
section 279).
Main terms and conditions
(3) Part 2‑2 contains the National
Employment Standards, which are minimum terms and conditions that apply to all
national system employees.
(4) Part 2‑3 is about modern awards. A
modern award is made for a particular industry or occupation and provides
additional minimum terms and conditions for those national system employees to
whom it applies. A modern award can have terms that are ancillary or
supplementary to the National Employment Standards.
(5) Part 2‑4 is about enterprise
agreements. An enterprise agreement is made at the enterprise level and
provides terms and conditions for those national system employees to whom it
applies. An enterprise agreement can have terms that are ancillary or
supplementary to the National Employment Standards.
(6) Part 2‑5 is about workplace
determinations. A workplace determination provides terms and conditions for
those national system employees to whom it applies. A workplace determination
is made by FWA if certain conditions are met.
(7) Part 2‑8 provides for the transfer
of certain modern awards, enterprise agreements, workplace determinations and
other instruments if there is a transfer of business from one national system
employer to another national system employer.
Other terms and conditions
(8) In addition, other terms and conditions
of employment for national system employees include those:
(a) provided by a national minimum
wage order (see Part 2‑6) or an equal remuneration order (see Part 2‑7);
and
(b) provided by Part 2‑9 (which
deals with the frequency and method of making payments to employees, deductions
from payments and high‑income employees).
6
Rights and responsibilities of employees, employers, organisations etc.
(Chapter 3)
(1) Chapter 3 sets out rights and
responsibilities of national system employees, national system employers,
organisations and others (such as independent contractors and industrial
associations).
(2) Part 3‑1 provides general workplace
protections. It:
(a) protects workplace rights; and
(b) protects freedom of association
and involvement in lawful industrial activities; and
(c) provides other protections,
including protection from discrimination.
(3) Part 3‑2 deals with unfair dismissal
of national system employees, and the granting of remedies when that happens.
(4) Part 3‑3 deals mainly with
industrial action by national system employees and national system employers
and sets out when industrial action is protected industrial action. No action
lies under any law in force in a State or Territory in relation to protected industrial
action except in certain circumstances.
(5) Part 3‑4 is about the rights of
officials of organisations who hold entry permits to enter premises for
purposes related to their representative role under this Act and under State or
Territory OHS laws. In exercising those rights, permit holders must comply with
the requirements set out in the Part.
(6) Part 3‑5 allows a national system
employer to stand down a national system employee without pay in certain
circumstances.
(7) Part 3‑6 deals with other rights and
responsibilities of national system employers in relation to:
(a) termination of employment; and
(b) keeping records and giving
payslips.
7
Compliance and enforcement (Chapter 4)
(1) Chapter 4 provides for compliance
with, and enforcement of, this Act.
(2) Part 4‑1 is about civil remedies.
Certain provisions in this Act impose obligations on certain persons. Civil
remedies may be sought in relation to contraventions of these civil remedy
provisions. Part 4‑1:
(a) deals with applications for orders
for contraventions of civil remedy provisions; and
(b) sets out the orders the courts can
make in relation to a contravention of a civil remedy provision.
(3) Part 4‑2 is about the jurisdiction
and powers of the courts in relation to matters arising under this Act.
8
Administration (Chapter 5)
(1) Chapter 5 provides for the
administration of this Act by establishing Fair Work Australia and the Office
of the Fair Work Ombudsman.
(2) Part 5‑1 is about FWA. It:
(a) establishes and confers functions
on FWA; and
(b) sets out how matters before FWA
are to be conducted (for example, how FWA is to deal with applications made to
it).
(3) Part 5‑2 is about the Office of the
Fair Work Ombudsman. It:
(a) establishes and confers functions
on the Fair Work Ombudsman; and
(b) confers functions and powers on
Fair Work Inspectors.
9
Miscellaneous (Chapter 6)
(1) Chapter 6 is a collection of
miscellaneous matters that relate to the other Chapters.
(2) Part 6‑1 provides rules relating to
applications for remedies under this Act. It prevents certain applications if
other remedies are available and prevents multiple applications or complaints
in relation to the same conduct.
(3) Part 6‑2 is about dealing with
disputes between national system employees and their employers under modern
awards, enterprise agreements and contracts of employment.
(4) Part 6‑3 extends the National
Employment Standards relating to unpaid parental leave and notice of
termination to non‑national system employees.
(5) Part 6‑4 contains provisions to give
effect, or further effect, to certain international agreements relating to
termination of employment.
(6) Part 6‑5 deals with miscellaneous
matters such as delegations and regulations.
Part 1‑2—Definitions
Division 1—Introduction
10
Guide to this Part
This Part is about the terms that are
defined in this Act.
Division 2 has the Dictionary
(see section 12). The Dictionary is a list of every term that is defined
in this Act. A term will either be defined in the Dictionary itself, or in
another provision of this Act. If another provision defines the term, the
Dictionary will have a signpost to that definition.
Division 3 has definitions
relating to the meanings of employee and employer.
Division 4 has some other
definitions that apply across this Act.
11
Meanings of employee and employer
In this Part, employee and
employer have their ordinary meanings.
Division 2—The Dictionary
12 The
Dictionary
In this Act:
4 yearly review of modern awards: see
subsection 156(1).
access period for a proposed enterprise
agreement: see subsection 180(4).
action includes an omission.
adoption‑related leave: see subsection 67(5).
adverse action: see section 342.
affected employees for a variation of an
enterprise agreement: see subsection 207(2).
affected employer:
(a) in relation to an entry under
Subdivision A of Division 2 of Part 3‑4: see subsection 482(2); and
(aa) in relation to an entry under
section 483A other than a designated outworker terms entry: see paragraph
483B(3)(a); and
(ab) in relation to a designated
outworker terms entry under section 483A: see paragraph 483B(3)(b); and
(b) in relation to an entry in
accordance with Division 3 of Part 3‑4: see paragraph 495(2)(a); and
(c) in relation to a State or
Territory OHS right to inspect or otherwise access an employee record: see
paragraph 495(2)(b).
affected member certificate: see subsection
520(1).
agreed terms for a workplace determination:
see section 274.
agreed to in relation to a termination of an
enterprise agreement: see section 221.
annual rate of an employee’s guaranteed
annual earnings: see subsection 330(3).
annual wage review: see subsection 285(1).
anti‑discrimination law: see subsection
351(3).
applicable agreement‑derived long service leave terms:
see subsection 113(5).
applicable award‑derived long service leave terms:
see subsection 113(3).
application or complaint under another law:
see subsection 732(2).
applies:
(a) in relation to a modern award: see
section 47; and
(b) in relation to an enterprise
agreement: see section 52.
applies to employment generally: see
subsection 26(4).
appointment of a bargaining representative
means an appointment of a bargaining representative under paragraph 176(1)(c)
or (d).
appropriate safe job: see subsection 81(4).
approved by FWA, in relation to an enterprise
agreement, means approved by FWA under section 186 or 189.
associated entity has the meaning given by
section 50AAA of the Corporations Act 2001.
Australian‑based employee: see subsections
35(2) and (3).
Australian employer: see subsection 35(1).
Australian ship means a ship that has
Australian nationality under section 29 of the Shipping Registration
Act 1981.
authority documents: see subsection 489(3).
available parental leave period: see
subsection 75(2).
award/agreement free employee means a
national system employee to whom neither a modern award nor an enterprise
agreement applies.
award covered employee for an enterprise
agreement: see subsection 193(4).
award modernisation process means:
(a) the process of making modern awards
under Part 10A of the Workplace Relations Act 1996, as continued by
Part 2 of Schedule 5 of the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009; and
(b) the enterprise instrument
modernisation process provided for by Part 2 of Schedule 6 of the Fair
Work (Transitional Provisions and Consequential Amendments) Act 2009; and
(c) the State reference public sector
transitional award modernisation process provided for by Part 2 of
Schedule 6A of the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009.
bargaining order: see subsection 229(1).
bargaining related workplace determination:
see subsection 269(1).
bargaining representative for a proposed
enterprise agreement: see section 176.
bargaining services: see subsection 353(3).
bargaining services fee: see subsection
353(2).
base rate of pay: see section 16.
birth‑related leave: see subsection 67(4).
child of a person: see subsection 17(1).
civil remedy provision: see subsections
539(1) and (3).
Commissioner means a Commissioner of FWA.
common requirements in relation to industrial
action: see section 413.
Commonwealth authority means:
(a) a body corporate established for a
public purpose by or under a law of the Commonwealth; or
(b) a body corporate:
(i) incorporated under a
law of the Commonwealth or a State or a Territory; and
(ii) in which the
Commonwealth has a controlling interest.
Commonwealth place means a place referred to
in paragraph 52(i) of the Constitution, other than the seat of government.
compassionate leave means compassionate leave
to which a national system employee is entitled under section 104.
compliance powers: see section 703.
compliance purposes: see subsection 706(1).
conduct includes an omission.
conduct of a protected action ballot: see
subsection 458(5).
connected with a Territory: an arrangement
for work to be performed for a person (either directly or indirectly) is connected
with a Territory if one or more of the following apply:
(a) at the time the arrangement is
made, one or more parties to the arrangement is in a Territory in Australia;
(b) the work is to be performed in
such a Territory;
(c) the person carries on an activity
(whether of a commercial, governmental or other nature) in such a Territory,
and the work is reasonably likely to be performed in that Territory;
(d) the person carries on an activity
(whether of a commercial, governmental or other nature) in such a Territory,
and the work is to be performed in connection with that activity.
Note: In this context, Australia
includes the Territory of Christmas Island and the Territory of Cocos (Keeling)
Islands (see paragraph 17(a) of the Acts Interpretation Act 1901).
consent low‑paid workplace determination: see
subsection 260(2).
consistent with the Small Business Fair Dismissal
Code: see subsection 388(2).
constitutional corporation means a
corporation to which paragraph 51(xx) of the Constitution applies.
constitutionally‑covered
entity: see subsection 338(2).
constitutional trade
or commerce means trade or commerce:
(a) between Australia and a place
outside Australia; or
(b) among the States; or
(c) between a State and a Territory;
or
(d) between 2 Territories; or
(e) within a Territory.
continental shelf means the continental shelf
(as defined in the Seas and Submerged Lands Act 1973) of Australia (including its external Territories).
continuous service has a meaning affected by
section 22.
coverage terms:
(a) in relation to a modern award
(other than a modern enterprise award): see section 143; and
(b) in relation to a modern enterprise
award: see section 143A; and
(c) in relation to a State reference
public sector modern award: see section 143B.
covers:
(a) in relation to a modern award: see
section 48; and
(b) in relation to an enterprise
agreement: see section 53; and
(c) in relation to a workplace
determination: see section 277.
day of placement: see subsection 67(6).
de facto partner of a national system
employee:
(a) means a person who, although not
legally married to the employee, lives with the employee in a relationship as a
couple on a genuine domestic basis (whether the employee and the person are of
the same sex or different sexes); and
(b) includes a former de facto
partner of the employee.
Deputy President means a Deputy President of
FWA.
designated outworker term of a modern award,
enterprise agreement, workplace determination or other instrument, means any of
the following terms, so far as the term relates to outworkers in the textile,
clothing or footwear industry:
(a) a term that deals with the
registration of an employer or outworker entity;
(b) a term that deals with the making
and retaining of, or access to, records about work to which outworker terms of
a modern award apply;
(c) a term imposing conditions under
which an arrangement may be entered into by an employer or an outworker entity
for the performance of work, where the work is of a kind that is often
performed by outworkers;
(d) a term relating to the liability
of an employer or outworker entity for work undertaken by an outworker under
such an arrangement, including a term which provides for the outworker to make
a claim against an employer or outworker entity;
(e) a term that requires minimum pay
or other conditions, including the
National Employment Standards, to be applied to an outworker who is not an
employee;
(f) any other terms prescribed by the
regulations.
designated outworker terms entry: see
subsection 483A(5).
Disability Discrimination Commissioner means
the Disability Discrimination Commissioner appointed under the Disability
Discrimination Act 1992.
discriminatory term of an enterprise
agreement: see section 195.
dismissal remedy bargaining order application:
see subsection 726(2).
dismissed: see section 386.
earnings: see subsections 332(1) and (2).
eligible community service activity: see
section 109.
eligible State or Territory court means one
of the following courts:
(a) a District, County or Local Court;
(b) a magistrates court;
(c) the Industrial Relations Court of
South Australia;
(ca) the Industrial Court of New South
Wales;
(d) any other State or Territory court
that is prescribed by the regulations.
employee is defined in the first Division of
each Part (other than Part 1‑1) in which the term appears.
Note 1: The definition in the Part will define employee
either as a national system employee or as having its ordinary meaning.
However, there may be particular provisions in the Part where a different
meaning for the term is specified.
Note 2: If the term has its ordinary meaning, see
further subsections 15(1), 30E(1) and 30P(1).
employee claim action: see section 409 and
paragraph 471(4A)(c).
employee couple: 2 national system employees
are an employee couple if each of the employees is the spouse or
de facto partner of the other.
employee organisation means an organisation
of employees.
employee record, in relation to an employee,
has the meaning given by the Privacy Act 1988.
employee response action: see
section 410 and paragraph 471(4A)(d).
employee with a disability means a national
system employee who is qualified for a disability support pension as set out in
section 94 or 95 of the Social Security Act 1991, or who would be
so qualified but for paragraph 94(1)(e) or 95(1)(c) of that Act.
employer is defined in the first Division of
each Part (other than Part 1‑1) in which the term appears.
Note 1: The definition in the Part will define employer
either as a national system employer or as having its ordinary meaning.
However, there may be particular provisions in the Part where a different
meaning for the term is specified.
Note 2: If the term has its ordinary meaning, see
further subsections 15(2), 30E(2) and 30P(2).
employer organisation means an organisation
of employers.
employer response action: see
section 411.
employing authority: see subsection 795(6).
engages in industrial activity: see
section 347.
enterprise means a business, activity,
project or undertaking.
enterprise agreement means:
(a) a single‑enterprise agreement; or
(b) a multi‑enterprise agreement.
entry notice: see subsection 487(2).
entry permit: see section 512.
equal remuneration for work of equal or comparable
value: see subsection 302(2).
equal remuneration order: see subsection
302(1).
exclusive economic zone means the exclusive
economic zone (as defined in the Seas and Submerged Lands Act 1973) of Australia (including its external Territories).
exemption certificate: see subsection 519(1).
extended notice of termination provisions:
see subsection 759(3).
extended parental leave provisions: see
subsection 744(3).
Fair Work Australia or FWA
means the body established by section 575.
Fair Work Information Statement: see
subsection 124(1).
Fair Work Inspector means:
(a) a person appointed as a Fair Work
Inspector under section 700; or
(b) the Fair Work Ombudsman in his or
her capacity as a Fair Work Inspector under section 701.
fair work instrument means:
(a) a modern award; or
(b) an enterprise agreement; or
(c) a workplace determination; or
(d) an FWA order.
Federal Court means the Federal Court of
Australia.
first employer, in relation to a transfer of
employment: see subsection 22(7).
fixed platform means an artificial island,
installation or structure permanently attached to the sea‑bed for the purpose
of exploration for, or exploitation of, resources or for other economic
purposes.
flexibility term:
(a) in relation to a modern award—see
subsection 144(1); and
(b) in relation to an enterprise
agreement—see subsection 202(1).
flight crew officer means a person who
performs (whether with or without other duties) duties as a pilot, navigator or
flight engineer of aircraft, and includes a person being trained for the
performance of such duties.
franchise has the meaning given by the Corporations
Act 2001.
Full Bench means a Full Bench of FWA
constituted under section 618.
full rate of pay: see section 18.
FWA: see Fair Work Australia.
FWA Member means the President, a Deputy
President, a Commissioner or a Minimum Wage Panel Member.
General Manager means the General Manager of
FWA.
general protections court application: see
subsection 370(2).
general protections FWA application: see
subsection 727(2).
general State industrial law: see subsection
26(3).
genuinely agreed in relation to an enterprise
agreement: see section 188.
genuine redundancy: see section 389.
good faith bargaining requirements: see
section 228.
greenfields agreement: see subsection 172(4).
guaranteed period for a guarantee of annual
earnings: see section 331.
guarantee of annual earnings: see subsection
330(1).
high income employee: see section 329.
high income threshold: see section 333.
ILO means the International Labour
Organization.
immediate family of a national system
employee means:
(a) a spouse, de facto partner,
child, parent, grandparent, grandchild or sibling of the employee; or
(b) a child, parent, grandparent,
grandchild or sibling of a spouse or de facto partner of the employee.
independent advisor for a protected action
ballot means the person (if any) specified in the protected action ballot order
as the independent advisor for the ballot.
independent contractor is not confined to an
individual.
individual flexibility arrangement:
(a) in relation to a modern award—see
subsection 144(1); and
(b) in relation to an enterprise
agreement—see paragraph 202(1)(a).
industrial action: see section 19.
industrial action related workplace determination:
see subsection 266(1).
industrial association means:
(a) an association of employees or
independent contractors, or both, or an association of employers, that is
registered or recognised as such an association (however described) under a
workplace law; or
(b) an association of employees, or
independent contractors, or both (whether formed formally or informally), a
purpose of which is the protection and promotion of their interests in matters
concerning their employment, or their interests as independent contractors (as
the case may be); or
(c) an association of employers a
principal purpose of which is the protection and promotion of their interests
in matters concerning employment and/or independent contractors;
and includes:
(d) a branch of such an association;
and
(e) an organisation; and
(f) a branch of an organisation.
industrial body means:
(a) FWA; or
(b) a court or commission (however
described) performing or exercising, under an industrial law, functions and
powers corresponding to those conferred on FWA by this Act; or
(c) a court or commission (however
described) performing or exercising, under a workplace law, functions and
powers corresponding to those conferred on FWA by the Fair Work (Registered
Organisations) Act 2009.
industrial law means:
(a) this Act; or
(b) the Fair Work (Registered
Organisations) Act 2009; or
(c) a law of the Commonwealth, however
designated, that regulates the relationships between employers and employees; or
(d) a State or Territory industrial
law.
industry‑specific redundancy scheme means
redundancy or termination payment arrangements in a modern award that are
described in the award as an industry‑specific redundancy scheme.
inspector means a Fair Work Inspector.
involved in: see section 550.
irregularity, in relation to the conduct of a
protected action ballot: see subsection 458(6).
junior employee means a national system
employee who is under 21.
jury service pay: see subsection 111(6).
jury service summons: see subsection 111(7).
lawyer means a person who is admitted to the
legal profession by a Supreme Court of a State or Territory.
lock out: see subsection 19(3).
long term casual employee: a national system
employee of a national system employer is a long term casual employee
at a particular time if, at that time:
(a) the employee is a casual employee;
and
(b) the employee has been employed by
the employer on a regular and systematic basis for a sequence of periods of
employment during a period of at least 12 months.
low‑paid authorisation: see subsection
242(1).
low‑paid workplace determination means:
(a) a consent low‑paid workplace
determination; or
(b) a special low‑paid workplace
determination.
made:
(a) in relation to an enterprise
agreement: see section 182; and
(b) in relation to a variation of an
enterprise agreement: see section 209.
magistrates court means:
(a) a court constituted by a police,
stipendiary or special magistrate; or
(b) a court constituted by an
industrial magistrate.
majority support determination: see
subsection 236(1).
maritime employee means a person who is, or
whose occupation is that of, a master as defined in section 6 of the Navigation
Act 1912, a seaman as so defined or a pilot as so defined.
medical certificate means a certificate
signed by a medical practitioner.
medical practitioner means a person
registered, or licensed, as a medical practitioner under a law of a State or
Territory that provides for the registration or licensing of medical
practitioners.
membership action: see subsection 350(3).
minimum employment period: see
section 383.
Minimum Wage Panel means the Minimum Wage
Panel of FWA constituted under section 620.
Minimum Wage Panel Member means a Minimum
Wage Panel Member of FWA.
minimum wages objective: see subsection
284(1).
miscellaneous modern award: see subsection
163(4).
model consultation term: see subsection
205(3).
model flexibility term: see subsection
202(5).
modern award means a modern award made under
Part 2‑3.
modern award minimum wages: see subsection
284(3).
modern award powers: see subsection 134(2).
modern awards objective: see subsection
134(1).
modern enterprise award: see subsection
168A(2).
modern enterprise awards objective: see
subsection 168B(1).
modifications includes additions, omissions
and substitutions.
multi‑enterprise agreement means an
enterprise agreement made as referred to in subsection 172(3).
named employer award: see subsection 312(2).
National Employment Standards: see subsection
61(3).
national minimum wage order means a national
minimum wage order made in an annual wage review.
national system employee: see
section 13.
Note: Sections 30C and 30M extend the meaning
of national system employee in relation to a referring State.
national system employer: see section 14.
Note: Sections 30D and 30N extend the meaning
of national system employer in relation to a referring State.
new employer, in relation to a transfer of
business: see subsection 311(1).
nominal expiry date:
(a) of an enterprise agreement
approved under section 186, means the date specified in the agreement as
its nominal expiry date; or
(b) of an enterprise agreement
approved under section 189 (which deals with agreements that do not pass
the better off overall test): see subsection 189(4); or
(c) of a workplace determination,
means the date specified in the determination as its nominal expiry date.
non‑excluded matters: see subsection 27(2).
non‑member record or document: see subsection
482(2A).
non‑monetary benefits: see subsection 332(3).
non‑national system employee means an
employee who is not a national system employee.
non‑national system employer means an
employer that is not a national system employer.
non‑transferring employee of a new employer,
in relation to a transfer of business: see subsection 314(2).
notification time for a proposed enterprise
agreement: see subsection 173(2).
objectionable term means a term that:
(a) requires, has the effect of
requiring, or purports to require or have the effect of requiring; or
(b) permits, has the effect of
permitting, or purports to permit or have the effect of permitting;
either of the following:
(c) a contravention of Part 3‑1
(which deals with general protections);
(d) the payment of a bargaining
services fee.
occupier, of premises, includes
a person in charge of the premises.
office, in an industrial association, means:
(a) an office of president, vice
president, secretary or assistant secretary of the association; or
(b) the office of a voting member of a
collective body of the association, being a collective body that has power in
relation to any of the following functions:
(i) the management of the
affairs of the association;
(ii) the determination of
policy for the association;
(iii) the making, alteration
or rescission of rules of the association;
(iv) the enforcement of
rules of the association, or the performance of functions in relation to the
enforcement of such rules; or
(c) an office the holder of which is,
under the rules of the association, entitled to participate directly in any of
the functions referred to in subparagraphs (b)(i) and (iv), other than an
office the holder of which participates only in accordance with directions
given by a collective body or another person for the purpose of implementing:
(i) existing policy of the
association; or
(ii) decisions concerning
the association; or
(d) an office the holder of which is,
under the rules of the association, entitled to participate directly in any of
the functions referred to in subparagraphs (b)(ii) and (iii); or
(e) the office of a person holding
(whether as trustee or otherwise) property:
(i) of the association; or
(ii) in which the
association has a beneficial interest.
Office of the Fair Work Ombudsman means the
body established by section 696.
officer, of an industrial association, means:
(a) an official of the association; or
(b) a delegate or other representative
of the association.
official, of an industrial association, means
a person who holds an office in, or is an employee of, the association.
old employer, in relation to a transfer of
business: see subsection 311(1).
ordinary hours of work of an award/agreement
free employee: see section 20.
organisation means an organisation registered
under the Fair Work (Registered Organisations) Act 2009.
outworker means:
(a) an employee who, for the purpose
of the business of his or her employer, performs work at residential premises
or at other premises that would not conventionally be regarded as being
business premises; or
(b) an individual who, for the purpose
of a contract for the provision of services, performs work:
(i) in the textile,
clothing or footwear industry; and
(ii) at residential
premises or at other premises that would not conventionally be regarded as
being business premises.
outworker entity means any of the following
entities, other than in the entity’s capacity as a national system employer:
(a) a constitutional corporation;
(b) the Commonwealth;
(c) a Commonwealth authority;
(d) a body corporate incorporated in a
Territory;
(e) a person so far as:
(i) the person arranges
for work to be performed for the person (either directly or indirectly); and
(ii) the work is of a kind
that is often performed by outworkers; and
(iii) the arrangement is
connected with a Territory.
Note: Sections 30F and 30Q extend the meaning
of outworker entity in relation to a referring State.
outworker terms: see subsection 140(3).
paid agent, in relation to a matter before
FWA, means an agent (other than a bargaining representative) who charges or
receives a fee to represent a person in the matter.
paid annual leave means paid annual leave to
which a national system employee is entitled under section 87.
paid no safe job leave means paid no safe job
leave to which a national system employee is entitled under paragraph 81(3)(b).
paid personal/carer’s leave means paid
personal/carer’s leave to which a national system employee is entitled under
section 96.
partial work ban: see subsection 470(3).
part of a single enterprise: see subsection
168A(6).
passes the better off overall test:
(a) in relation to an enterprise
agreement that is not a greenfields agreement: see subsection 193(1); and
(b) in relation to a greenfields
agreement: see subsection 193(3).
pattern bargaining: see section 412.
peak council means a national or State
council or federation that is effectively representative of a significant
number of organisations (within the ordinary meaning of the term)
representing employers or employees in a range of industries.
pecuniary penalty order means an order under
subsection 546(1).
penalty unit has the meaning given by
section 4AA of the Crimes Act 1914.
period of employment: see section 384.
permissible occasion: see sections 102
and 104.
permit holder means a person who holds an
entry permit.
permit qualification matters: see subsection
513(1).
permitted matters in relation to an
enterprise agreement: see subsection 172(1).
pieceworker: see section 21.
pilot, in relation to an aircraft, includes a
pilot in command, co‑pilot or pilot of any other description.
post‑declaration negotiating period: see
subsection 269(2).
post‑industrial action negotiating period:
see subsection 266(3).
premises includes:
(a) any land, building, structure,
mine, mine working, aircraft ship, vessel, vehicle or place; and
(b) a part of premises (including
premises referred to in paragraph (a)).
pre‑parental leave position: see subsection
83(2).
prescribed State industrial authority means a
State board, court, tribunal, body or official prescribed by the regulations.
President means the President of FWA.
procedural rules means the procedural rules
of FWA made under section 609.
process or proceedings under a workplace law or
workplace instrument: see subsection 341(2).
prospective award covered employee for an
enterprise agreement: see subsection 193(5).
protected action ballot means a ballot
conducted under Division 8 of Part 3‑3.
protected action ballot agent for a protected
action ballot means the person that conducts the protected action ballot.
protected action ballot order: see subsection
437(1).
protected from unfair dismissal: see
section 382.
protected industrial action: see
section 408.
public holiday: see section 115.
public sector employment: see subsections
795(4) and (5).
public sector employment law: see subsection
40(3).
recognised emergency management body: see
subsection 109(3).
registered employee association means:
(a) an employee organisation; or
(b) an association of employees or
independent contractors, or both, that is registered or recognised as such an
association (however described) under a State or Territory industrial law.
reinstatement includes appointment by an
associated entity in the circumstances provided for in an order to which
subsection 391(1A) applies.
related body corporate has the meaning given
by the Corporations Act 2001.
relevant employee organisation, in
relation to a greenfields agreement, means an employee organisation that is
entitled to represent the industrial interests of one or more of the employees
who will be covered by the agreement, in relation to work to be performed under
the agreement.
safety net contractual entitlement means an
entitlement under a contract between an employee and an employer that relates
to any of the subject matters described in:
(a) subsection 61(2) (which deals with
the National Employment Standards); or
(b) subsection 139(1) (which deals
with modern awards).
school age, for a child, means the age at
which the child is required by a law of the State or Territory in which the
child lives to start attending school.
school‑based apprentice means a national
system employee who is an apprentice to whom a school‑based training
arrangement applies.
school‑based trainee means a national system
employee (other than a school‑based apprentice) to whom a school‑based training
arrangement applies.
school‑based training arrangement means a
training arrangement undertaken as part of a course of secondary education.
scope order: see subsection 238(1).
second employer, in relation to a transfer of
employment: see subsection 22(7).
serious breach declaration: see
section 234.
serious misconduct has the meaning prescribed
by the regulations.
service: see section 22.
setting modern award minimum wages: see
subsection 284(4).
Sex Discrimination Commissioner means the Sex
Discrimination Commissioner appointed under the Sex Discrimination Act 1984.
ship includes a barge, lighter, hulk or other
vessel.
single enterprise: see section 168A.
single‑enterprise agreement means an
enterprise agreement made as referred to in subsection 172(2).
single interest employer authorisation: see
subsection 248(1).
small business employer: see section 23.
Small Business Fair Dismissal Code means the
Small Business Fair Dismissal Code declared under subsection 388(1).
special low‑paid workplace determination: see
subsection 260(4).
spouse includes a former spouse.
State industrial instrument means an award,
an agreement (whether individual or collective), or another industrial
instrument or order, that:
(a) is made under, or recognised by, a
law of a State that is a State or Territory industrial law; and
(b) determines terms and conditions of
employment.
state of mind: see subsection 793(3).
State or Territory industrial law: see
subsection 26(2).
State or Territory OHS law: see subsection
494(3).
State or Territory OHS right: see subsection
494(2).
State reference public sector employee: see
subsection 168E(3).
State reference public sector employer: see
subsection 168E(4).
State reference public sector modern award:
see subsection 168E(2).
State reference public sector modern awards objective:
see section 168F.
step‑child: without limiting who is a
step‑child of a person, someone who is a child of the person’s de facto
partner is a step‑child of a person, if he or she would be the
person’s step‑child except that the person is not legally married to the
de facto partner.
TCF award means an instrument prescribed by
the regulations for the purposes of this definition.
TCF outworker means an outworker in the
textile, clothing or footwear industry whose work is covered by a TCF award.
termination of industrial action instrument:
see subsection 266(2).
territorial sea, in relation to Australia, has the meaning given by Division 1 of Part II of the Seas and Submerged
Lands Act 1973.
Territory employer: see subsection 338(4).
test time: see subsection 193(6).
this Act includes the regulations.
trade and commerce employer: see subsection
338(3).
training arrangement means a combination of
work and training that is subject to a training agreement, or a training
contract, that takes effect under a law of a State or Territory relating to the
training of employees.
transferable instrument: see subsection
312(1).
transfer of business: see
subsection 311(1).
transfer of employment: see subsection 22(7).
transfer of employment between associated entities:
see paragraph 22(8)(a).
transfer of employment between non‑associated
entities: see paragraph 22(8)(b).
transferring employee, in relation to a
transfer of business: see subsection 311(2).
transferring work, in relation to a transfer
of business: see paragraph 311(1)(c).
unfair dismissal application: see subsection
729(2).
unfairly dismissed: see section 385.
unlawful term of an enterprise agreement: see
section 194.
unlawful termination court application: see
subsection 778(2).
unlawful termination FWA application: see
subsection 730(2).
unpaid carer’s leave means unpaid carer’s
leave to which a national system employee is entitled under section 102.
unpaid parental leave means unpaid parental
leave to which a national system employee is entitled under section 70.
unpaid pre‑adoption leave means unpaid pre‑adoption
leave to which a national system employee is entitled under section 85.
unpaid special maternity leave means unpaid
special maternity leave to which a national system employee is entitled under
section 80.
varying modern award minimum wages: see
subsection 284(4).
vocational placement means a placement that
is:
(a) undertaken with an employer for
which a person is not entitled to be paid any remuneration; and
(b) undertaken as a requirement of an
education or training course; and
(c) authorised under a law or an
administrative arrangement of the Commonwealth, a State or a Territory.
voluntary emergency management activity: see
subsection 109(2).
waters above the continental shelf means any
part of the area in, on or over the continental shelf.
waterside worker has the meaning given by
clause 1 of Schedule 2 to the Workplace Relations Act 1996 as
in force immediately before the commencement of this section.
working day means a day that is not a
Saturday, a Sunday or a public holiday.
workplace determination means:
(a) a low‑paid workplace
determination; or
(b) an industrial action related
workplace determination; or
(c) a bargaining related workplace
determination.
workplace instrument means an instrument
that:
(a) is made under, or recognised by, a
workplace law; and
(b) concerns the relationships between
employers and employees.
workplace law means:
(a) this Act; or
(b) the Fair Work (Registered
Organisations) Act 2009; or
(c) the Independent Contractors Act
2006; or
(d) any other law of the Commonwealth,
a State or a Territory that regulates the relationships between employers and
employees (including by dealing with occupational health and safety matters).
workplace right: see subsection 341(1).
work value reasons: see subsection 156(4).
Division 3—Definitions relating to the meanings of employee, employer
etc.
13
Meaning of national system employee
A national system employee
is an individual so far as he or she is employed, or usually employed, as
described in the definition of national system employer in
section 14, by a national system employer, except on a vocational
placement.
Note: Sections 30C and 30M extend the meaning
of national system employee in relation to a referring State.
14
Meaning of national system employer
(1) A national system employer
is:
(a) a constitutional corporation, so
far as it employs, or usually employs, an individual; or
(b) the Commonwealth, so far as it
employs, or usually employs, an individual; or
(c) a Commonwealth authority, so far
as it employs, or usually employs, an individual; or
(d) a person so far as the person, in
connection with constitutional trade or commerce, employs, or usually employs,
an individual as:
(i) a flight crew officer;
or
(ii) a maritime employee;
or
(iii) a waterside worker; or
(e) a body corporate incorporated in a
Territory, so far as the body employs, or usually employs, an individual; or
(f) a person who carries on an
activity (whether of a commercial, governmental or other nature) in a Territory
in Australia, so far as the person employs, or usually employs, an individual
in connection with the activity carried on in the Territory.
Note 1: In this context, Australia
includes the Territory of Christmas Island and the Territory of Cocos (Keeling)
Islands (see paragraph 17(a) of the Acts Interpretation Act 1901).
Note 2: Sections 30D and 30N extend the meaning of
national system employer in relation to a referring State.
Particular employers declared not to be national system
employers
(2) Despite subsection (1) and
sections 30D and 30N, a particular employer is not a national system
employer if:
(a) that employer:
(i) is a body established
for a public purpose by or under a law of a State or Territory, by the Governor
of a State, by the Administrator of a Territory or by a Minister of a State or
Territory; or
(ii) is a body established
for a local government purpose by or under a law of a State or Territory; or
(iii) is a wholly‑owned
subsidiary (within the meaning of the Corporations Act 2001) of, or is
wholly controlled by, an employer to which subparagraph (ii) applies; and
(b) that employer is specifically
declared, by or under a law of the State or Territory, not to be a national
system employer for the purposes of this Act; and
(c) an endorsement by the Minister
under paragraph (4)(a) is in force in relation to the employer.
(3) Paragraph (2)(b) does not apply to
an employer that is covered by a declaration by or under such a law only
because it is included in a specified class or kind of employer.
Endorsement of declarations
(4) The Minister may, in writing:
(a) endorse, in relation to an
employer, a declaration referred to in paragraph (2)(b); or
(b) revoke or amend such an
endorsement.
(5) An endorsement, revocation or amendment
under subsection (4) is a legislative instrument, but neither
section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative
Instruments Act 2003 applies to the endorsement, revocation or amendment.
Employers that cannot be declared
(6) Subsection (2) does not apply to an
employer that:
(a) generates, supplies or distributes
electricity; or
(b) supplies or distributes gas; or
(c) provides services for the supply,
distribution or release of water; or
(d) operates a rail service or a port;
unless the employer is a body established for a local
government purpose by or under a law of a State or Territory, or is a wholly‑owned
subsidiary (within the meaning of the Corporations Act 2001) of, or is
wholly controlled by, such a body.
(7) Subsection (2) does not apply to an
employer if the employer is an Australian university (within the meaning of the
Higher Education Support Act 2003) that is established by or under a law
of a State or Territory.
14A
Transitional matters relating to employers etc. becoming, or ceasing to be,
national system employers etc.
(1) The regulations may make provisions of a
transitional, application or saving nature in relation to any of the following:
(a) an employer ceasing to be a
national system employer because subsection 14(2) applies to the employer;
(b) an individual ceasing to be a
national system employee because an employer ceases to be a national system
employer for the reason referred to in paragraph (a);
(c) an employer becoming a national
system employer because subsection 14(2) ceases to apply to the employer;
(d) an individual becoming a national
system employee because an employer becomes a national system employer for the
reason referred to in paragraph (c).
(2) Without limiting subsection (1),
regulations made for the purpose of that subsection may:
(a) modify provisions of this Act or
the Fair Work (Transitional Provisions and Consequential Amendments) Act
2009; or
(b) provide for the application (with
or without modifications) of provisions of this Act, or the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009, to matters
to which they would otherwise not apply.
15
Ordinary meanings of employee and employer
(1) A reference in this Act to an employee
with its ordinary meaning:
(a) includes a reference to a person
who is usually such an employee; and
(b) does not include a person on a
vocational placement.
Note: Subsections 30E(1) and 30P(1) extend the
meaning of employee in relation to a referring State.
(2) A reference in this Act to an employer
with its ordinary meaning includes a reference to a person who is usually such
an employer.
Note: Subsections 30E(2) and 30P(2) extend the
meaning of employer in relation to a referring State.
Division 4—Other definitions
16
Meaning of base rate of pay
General meaning
(1) The base rate of pay of a
national system employee is the rate of pay payable to the employee for his or
her ordinary hours of work, but not including any of the following:
(a) incentive‑based payments and
bonuses;
(b) loadings;
(c) monetary allowances;
(d) overtime or penalty rates;
(e) any other separately identifiable
amounts.
Meaning for pieceworkers in relation to entitlements
under National Employment Standards
(2) Despite subsection (1), if one of
the following paragraphs applies to a national system employee who is a
pieceworker, the employee’s base rate of pay, in relation to
entitlements under the National Employment Standards, is the base rate of pay
referred to in that paragraph:
(a) a modern award applies to the
employee and specifies the employee’s base rate of pay for the purposes of the
National Employment Standards;
(b) an enterprise agreement applies to
the employee and specifies the employee’s base rate of pay for the purposes of
the National Employment Standards;
(c) the employee is an award/agreement
free employee, and the regulations prescribe, or provide for the determination
of, the employee’s base rate of pay for the purposes of the National Employment
Standards.
Meaning for pieceworkers for the purpose of
section 206
(3) The regulations may prescribe, or provide
for the determination of, the base rate of pay, for the purpose of
section 206, of an employee who is a pieceworker. If the regulations do
so, the employee’s base rate of pay, for the purpose of that
section, is as prescribed by, or determined in accordance with, the
regulations.
Note: Section 206 deals with an employee’s base
rate of pay under an enterprise agreement.
17
Meaning of child of a person
(1) A child of a person
includes:
(a) someone who is a child of the
person within the meaning of the Family Law Act 1975; and
(b) an adopted child or step‑child of
the person.
It does not matter whether the child is an adult.
(2) If, under this section, one person is a
child of another person, other family relationships are also to be determined
on the basis that the child is a child of that other person.
Note: For example, for the purpose of leave
entitlements in relation to immediate family under Division 7 of
Part 2‑2 (which deals with personal/carer’s leave and compassionate
leave):
(a) the other person is the parent of the child,
and so is a member of the child’s immediate family; and
(b) the child, and any other children, of the other
person are siblings, and so are members of each other’s immediate family.
18
Meaning of full rate of pay
General meaning
(1) The full rate of pay of a
national system employee is the rate of pay payable to the employee, including
all the following:
(a) incentive‑based payments and
bonuses;
(b) loadings;
(c) monetary allowances;
(d) overtime or penalty rates;
(e) any other separately identifiable
amounts.
Meaning for pieceworkers in relation to entitlements
under National Employment Standards
(2) However, if one of the following
paragraphs applies to a national system employee who is a pieceworker, the
employee’s full rate of pay, in relation to entitlements under
the National Employment Standards, is the full rate of pay referred to in that
paragraph:
(a) a modern award applies to the
employee and specifies the employee’s full rate of pay for the purposes of the
National Employment Standards;
(b) an enterprise agreement applies to
the employee and specifies the employee’s full rate of pay for the purposes of
the National Employment Standards;
(c) the employee is an award/agreement
free employee, and the regulations prescribe, or provide for the determination
of, the employee’s full rate of pay for the purposes of the National Employment
Standards.
19
Meaning of industrial action
(1) Industrial action means
action of any of the following kinds:
(a) the performance of work by an
employee in a manner different from that in which it is customarily performed,
or the adoption of a practice in relation to work by an employee, the result of
which is a restriction or limitation on, or a delay in, the performance of the
work;
(b) a ban, limitation or restriction
on the performance of work by an employee or on the acceptance of or offering
for work by an employee;
(c) a failure or refusal by employees
to attend for work or a failure or refusal to perform any work at all by
employees who attend for work;
(d) the lockout of employees from
their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union v The Age Company Limited, PR946290,
the Full Bench of the Australian Industrial Relations Commission considered the
nature of industrial action and noted that action will not be industrial in
character if it stands completely outside the area of disputation and
bargaining.
(2) However, industrial action
does not include the following:
(a) action by employees that is
authorised or agreed to by the employer of the employees;
(b) action by an employer that is
authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based
on a reasonable concern of the employee about an imminent risk to his or her
health or safety; and
(ii) the employee did not
unreasonably fail to comply with a direction of his or her employer to perform
other available work, whether at the same or another workplace, that was safe
and appropriate for the employee to perform.
(3) An employer locks out
employees from their employment if the employer prevents the employees from
performing work under their contracts of employment without terminating those
contracts.
Note: In this section, employee and employer
have their ordinary meanings (see section 11).
20
Meaning of ordinary hours of work for award/agreement free employees
Agreed ordinary hours of work
(1) The ordinary hours of work
of an award/agreement free employee are the hours agreed by the employee and
his or her national system employer as the employee’s ordinary hours of
work.
If there is no agreement
(2) If there is no agreement about ordinary
hours of work for an award/agreement free employee, the ordinary hours of
work of the employee in a week are:
(a) for a full time employee—38 hours;
or
(b) for an employee who is not a full‑time
employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s usual
weekly hours of work.
If the agreed hours are less than usual weekly hours
(3) If, for an award/agreement free employee
who is not a full‑time employee, there is an agreement under
subsection (1) between the employee and his or her national system
employer, but the agreed ordinary hours of work are less than the employee’s
usual weekly hours of work, the ordinary hours of work of the
employee in a week are the lesser of:
(a) 38 hours; and
(b) the employee’s usual weekly hours
of work.
Regulations may prescribe usual weekly hours
(4) For an award/agreement free employee who
is not a full‑time employee and who does not have usual weekly hours of work,
the regulations may prescribe, or provide for the determination of, hours that
are taken to be the employee’s usual weekly hours of work for the purposes of
subsections (2) and (3).
21
Meaning of pieceworker
(1) A pieceworker is:
(a) a national system employee to whom
a modern award applies and who is defined or described in the award as a
pieceworker; or
(b) a national system employee to whom
an enterprise agreement applies and who is defined or described in the
agreement as a pieceworker; or
(c) an award/agreement free employee
who is in a class of employees prescribed by the regulations as pieceworkers.
Note: Sections 197 and 198 affect whether FWA
may approve an enterprise agreement covering a national system employee that
includes a term that:
(a) defines or describes the employee as a
pieceworker, if the employee is covered by a modern award that is in operation
and does not include such a term; or
(b) does not define or describe the employee as a
pieceworker, if the employee is covered by a modern award that is in operation
and includes such a term.
(2) Without limiting the way in which a class
may be described for the purposes of paragraph (1)(c), the class may be
described by reference to one or more of the following:
(a) a particular industry or part of
an industry;
(b) a particular kind of work;
(c) a particular type of employment.
22
Meanings of service and continuous service
General meaning
(1) A period of service by a
national system employee with his or her national system employer is a period
during which the employee is employed by the employer, but does not include any
period (an excluded period) that does not count as service
because of subsection (2).
(2) The following periods do not count as
service:
(a) any period of unauthorised
absence;
(b) any period of unpaid leave or
unpaid authorised absence, other than:
(i) a period of absence
under Division 8 of Part 2‑2 (which deals with community service
leave); or
(ii) a period of stand down
under Part 3‑5, under an enterprise agreement that applies to the
employee, or under the employee’s contract of employment; or
(iii) a period of leave or
absence of a kind prescribed by the regulations;
(c) any other period of a kind
prescribed by the regulations.
(3) An excluded period does not break a
national system employee’s continuous service with his or her
national system employer, but does not count towards the length of the
employee’s continuous service.
(3A) Regulations made for the purposes of
paragraph (2)(c) may prescribe different kinds of periods for the purposes
of different provisions of this Act (other than provisions to which
subsection (4) applies). If they do so, subsection (3) applies
accordingly.
Meaning for Divisions 4 and 5, and Subdivision A
of Division 11, of Part 2‑2
(4) For the purposes of Divisions 4 and
5, and Subdivision A of Division 11, of Part 2‑2:
(a) a period of service
by a national system employee with his or her national system employer is a
period during which the employee is employed by the employer, but does not
include:
(i) any period of
unauthorised absence; or
(ii) any other period of a
kind prescribed by the regulations; and
(b) a period referred to in
subparagraph (a)(i) or (ii) does not break a national system employee’s continuous
service with his or her national system employer, but does not count
towards the length of the employee’s continuous service; and
(c) subsections (1), (2) and (3)
do not apply.
Note: Divisions 4
and 5, and Subdivision A of Division 11, of Part 2‑2 deal,
respectively, with requests for flexible working arrangements, parental leave
and related entitlements, and notice of termination or payment in lieu of
notice.
(4A) Regulations made for the purposes of
subparagraph (4)(a)(ii) may prescribe different kinds of periods for the
purposes of different provisions to which subsection (4) applies. If they
do so, paragraph (4)(b) applies accordingly.
When service with one employer counts as service with
another employer
(5) If there is a transfer of employment (see
subsection (7)) in relation to a national system employee:
(a) any period of service of the
employee with the first employer counts as service of the employee with the
second employer; and
(b) the period between the termination
of the employment with the first employer and the start of the employment with
the second employer does not break the employee’s continuous service with the
second employer (taking account of the effect of paragraph (a)),
but does not count towards the length of the employee’s continuous service with
the second employer.
Note: This subsection does not apply to a transfer
of employment between non‑associated entities, for the purpose of
Division 6 of Part 2‑2 (which deals with annual leave) or Subdivision
B of Division 11 of Part 2‑2 (which deals with redundancy pay), if
the second employer decides not to recognise the employee’s service with the
first employer for the purpose of that Division or Subdivision (see subsections
91(1) and 122(1)).
(6) If the national system employee has
already had the benefit of an entitlement the amount of which was calculated by
reference to a period of service with the first employer, subsection (5)
does not result in that period of service with the first employer being counted
again when calculating the employee’s entitlements of that kind as an employee
of the second employer.
Note: For example:
(a) the accrued paid annual leave to which the
employee is entitled as an employee of the second employer does not include any
period of paid annual leave that the employee has already taken as an employee
of the first employer; and
(b) if an employee receives notice of termination
or payment in lieu of notice in relation to a period of service with the first
employer, that period of service is not counted again in calculating the amount
of notice of termination, or payment in lieu, to which the employee is entitled
as an employee of the second employer.
Meaning of transfer of employment etc.
(7) There is a transfer of employment
of a national system employee from one national system employer (the first
employer) to another national system employer (the second
employer) if:
(a) the following conditions are
satisfied:
(i) the employee becomes
employed by the second employer not more than 3 months after the termination of
the employee’s employment with the first employer;
(ii) the first employer and
the second employer are associated entities when the employee becomes employed
by the second employer; or
(b) the following conditions are
satisfied:
(i) the employee is a
transferring employee in relation to a transfer of business from the first
employer to the second employer;
(ii) the first employer and
the second employer are not associated entities when the employee becomes
employed by the second employer.
Note: Paragraph (a) applies whether or not
there is a transfer of business from the first employer to the second employer.
(8) A transfer of employment:
(a) is a transfer of employment
between associated entities if paragraph (7)(a) applies; and
(b) is a transfer of employment
between non‑associated entities if paragraph (7)(b) applies.
23 Meaning of small
business employer
(1) A national system employer is a small
business employer at a particular time if the employer employs fewer
than 15 employees at that time.
(2) For the purpose of calculating the number
of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all
employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be
counted unless, at that time, he or she has been employed by the employer on a
regular and systematic basis.
(3) For the purpose of calculating the number
of employees employed by the employer at a particular time, associated entities
are taken to be one entity.
(4) To avoid doubt, in determining whether a
national system employer is a small business employer
at a particular time in relation to the dismissal of an employee, or
termination of an employee’s employment, the employees that are to be counted
include (subject to paragraph (2)(b)):
(a) the employee who is being
dismissed or whose employment is being terminated; and
(b) any other employee of the employer
who is also being dismissed or whose employment is also being terminated.
Part 1‑3—Application of this Act
Division 1—Introduction
24
Guide to this Part
This Part deals with the extent of the
application of this Act.
Division 2 is about how this Act
affects the operation of certain State or Territory laws.
Divisions 2A and 2B are about the
extended application of this Act in States that have referred to the Parliament
of the Commonwealth matters relating to this Act.
Division 3 is about the
geographical application of this Act.
Division 4 deals with other
matters relating to the application of this Act.
25
Meanings of employee and employer
In this Part, employee and
employer have their ordinary meanings.
Division 2—Interaction with State and Territory laws
26 Act
excludes State or Territory industrial laws
(1) This Act is intended to apply to the
exclusion of all State or Territory industrial laws so far as they would
otherwise apply in relation to a national system employee or a national system
employer.
(2) A State or Territory industrial law
is:
(a) a general State industrial law; or
(b) an Act of a State or Territory
that applies to employment generally and has one or more of the following as
its main purpose or one or more of its main purposes:
(i) regulating workplace
relations (including industrial matters, industrial activity, collective
bargaining, industrial disputes and industrial action);
(ii) providing for the
establishment or enforcement of terms and conditions of employment;
(iii) providing for the
making and enforcement of agreements (including individual agreements and
collective agreements), and other industrial instruments or orders, determining
terms and conditions of employment;
(iv) prohibiting conduct
relating to a person’s membership or non‑membership of an industrial
association;
(v) providing for rights
and remedies connected with the termination of employment;
(vi) providing for rights
and remedies connected with conduct that adversely affects an employee in his
or her employment; or
(c) a law of a State or Territory that
applies to employment generally and deals with leave (other than long service
leave or leave for victims of crime); or
(d) a law of a State or Territory
providing for a court or tribunal constituted by a law of the State or
Territory to make an order in relation to equal remuneration for work of equal
or comparable value; or
(e) a law of a State or Territory
providing for the variation or setting aside of rights and obligations arising
under a contract of employment, or another arrangement for employment, that a
court or tribunal finds is unfair; or
(f) a law of a State or Territory
that entitles a representative of a trade union to enter premises; or
(g) an instrument made under a law
described in paragraph (a), (b), (c), (d), (e) or (f), so far as the
instrument is of a legislative character; or
(h) either of the following:
(i) a law that is a law of
a State or Territory;
(ii) an instrument of a
legislative character made under such a law;
that is prescribed by the
regulations.
(3) Each of the following is a general
State industrial law:
(a) the Industrial Relations Act
1996 of New South Wales;
(b) the Industrial Relations Act
1999 of Queensland;
(c) the Industrial Relations Act
1979 of Western Australia;
(d) the Fair Work Act 1994 of South Australia;
(e) the Industrial Relations Act
1984 of Tasmania.
(4) A law or an Act of a State or Territory applies
to employment generally if it applies (subject to constitutional
limitations) to:
(a) all employers and employees in the
State or Territory; or
(b) all employers and employees in the
State or Territory except those identified (by reference to a class or
otherwise) by a law of the State or Territory.
For this purpose, it does not matter whether or not the
law also applies to other persons, or whether or not an exercise of a power
under the law affects all the persons to whom the law applies.
27
State and Territory laws that are not excluded by section 26
(1A) Section 26 does not apply to any of
the following laws:
(a) the Anti‑Discrimination Act
1977 of New South Wales;
(b) the Equal Opportunity Act 1995
of Victoria;
(c) the Anti‑Discrimination Act
1991 of Queensland;
(d) the Equal Opportunity Act 1984
of Western Australia;
(e) the Equal Opportunity Act 1984
of South Australia;
(f) the Anti‑Discrimination Act
1998 of Tasmania;
(g) the Discrimination Act 1991
of the Australian Capital Territory;
(h) the Anti‑Discrimination Act of
the Northern Territory.
(1) Section 26 does not apply to a law
of a State or Territory so far as:
(b) the law is prescribed by the
regulations as a law to which section 26 does not apply; or
(c) the law deals with any non‑excluded
matters; or
(d) the law deals with rights or
remedies incidental to:
(i) any law referred to in
subsection (1A); or
(ii) any matter dealt with
by a law to which paragraph (b) applies; or
(iii) any non‑excluded
matters.
Note: Examples of incidental matters covered by
paragraph (d) are entry to premises for a purpose connected with workers
compensation, occupational health and safety or outworkers.
(2) The non‑excluded matters
are as follows:
(a) superannuation;
(b) workers compensation;
(c) occupational health and safety;
(d) matters relating to outworkers (within
the ordinary meaning of the term);
(e) child labour;
(f) training arrangements, except in
relation to terms and conditions of employment to the extent that those terms
and conditions are provided for by the National Employment Standards or may be
included in a modern award;
(g) long service leave, except in
relation to an employee who is entitled under Division 9 of Part 2‑2
to long service leave;
(h) leave for victims of crime;
(i) attendance for service on a jury,
or for emergency service duties;
Note: See also section 112 for employee
entitlements in relation to engaging in eligible community service activities.
(j) declaration, prescription or
substitution of public holidays, except in relation to the rights and
obligations of an employee or employer in relation to public holidays;
(k) the following matters relating to
provision of essential services or to situations of emergency:
(i) directions to perform
work (including to perform work at a particular time or place, or in a
particular way);
(ii) directions not to
perform work (including not to perform work at a particular time or place, or
in a particular way);
(l) regulation of any of the
following:
(i) employee associations;
(ii) employer associations;
(iii) members of employee
associations or of employer associations;
(m) workplace surveillance;
(n) business trading hours;
(o) claims for enforcement of
contracts of employment, except so far as the law in question provides for a
matter to which paragraph 26(2)(e) applies;
(p) any other matters prescribed by
the regulations.
28 Act
excludes prescribed State and Territory laws
(1) This Act is intended to apply to the
exclusion of a law of a State or Territory that is prescribed by the
regulations.
(2) However, subsection (1) applies only
so far as the law of the State or Territory would otherwise apply in relation
to a national system employee or a national system employer.
(3) To avoid doubt, subsection (1) has
effect even if the law is covered by section 27 (so that section 26
does not apply to the law). This subsection does not limit subsection (1).
29
Interaction of modern awards and enterprise agreements with State and Territory
laws
(1) A modern award or enterprise agreement
prevails over a law of a State or Territory, to the extent of any
inconsistency.
(2) Despite subsection (1), a term of a
modern award or enterprise agreement applies subject to the following:
(a) any law covered by subsection
27(1A);
(b) any law of a State or Territory so
far as it is covered by paragraph 27(1)(b), (c) or (d).
(3) Despite subsection (2), a term of a
modern award or enterprise agreement does not apply subject to a law of a State
or Territory that is prescribed by the regulations as a law to which modern
awards and enterprise agreements are not subject.
30 Act
may exclude State and Territory laws etc. in other cases
This Division is not a complete
statement of the circumstances in which this Act and instruments made under it
are intended to apply to the exclusion of, or prevail over, laws of the States
and Territories or instruments made under those laws.
Division 2A—Application of this Act in States that refer matters before
1 July 2009
30A
Meaning of terms used in this Division
(1) In this Division:
amendment reference of a State means the
reference by the Parliament of the State to the Parliament of the Commonwealth of
the matters covered by subsection 30B(4).
excluded subject matter means any of
the following matters:
(a) a matter dealt with in a law
referred to in subsection 27(1A) of this Act;
(b) superannuation;
(c) workers compensation;
(d) occupational health and safety;
(e) matters relating to outworkers
(within the ordinary meaning of the term);
(f) child labour;
(g) training arrangements;
(h) long service leave;
(i) leave for victims of crime;
(j) attendance for service on a jury,
or for emergency service duties;
(k) declaration, prescription or
substitution of public holidays;
(l) the following matters relating to
provision of essential services or to situations of emergency:
(i) directions to perform
work (including to perform work at a particular time or place, or in a
particular way);
(ii) directions not to
perform work (including not to perform work at a particular time or place, or
in a particular way);
(m) regulation of any of the following:
(i) employee associations;
(ii) employer associations;
(iii) members of employee
associations or of employer associations;
(n) workplace surveillance;
(o) business trading hours;
(p) claims for enforcement of
contracts of employment, except so far as a law of a State provides for the
variation or setting aside of rights and obligations arising under a contract
of employment, or another arrangement for employment, that a court or tribunal
finds is unfair;
(q) rights or remedies incidental to a
matter referred to in a preceding paragraph of this definition;
except to the extent that this Act as originally enacted
deals with the matter (directly or indirectly), or requires or permits
instruments made or given effect under this Act so to deal with the matter.
express amendment means the direct amendment
of the text of this Act (whether by the insertion, omission, repeal,
substitution or relocation of words or matter), but does not include the
enactment by a Commonwealth Act of a provision that has, or will have,
substantive effect otherwise than as part of the text of this Act.
fundamental workplace relations principles: see subsection 30B(9).
initial reference of a State means the
reference by the Parliament of the State to the Parliament of the Commonwealth
of the matters covered by subsection 30B(3).
law enforcement officer means:
(a) a member of a police force or
police service; or
(b) a person appointed to a position
for the purpose of being trained as a member of a police force or police
service; or
(c) a person who has the powers and
duties of a member of a police force or police service;
and, without limiting paragraphs (a), (b) and (c),
includes a police reservist, a police recruit, a police cadet, a junior
constable, a police medical officer, a special constable, an ancillary
constable or a protective services officer.
local government employee, of a State, means:
(a) an employee of a local government
employer of the State; or
(b) any other employee in the State of
a kind specified in the regulations.
local government employer, of a State, means
an employer that is:
(a) a body corporate that is
established for a local government purpose by or under a law of a State; or
(b) a body corporate in which a body
to which paragraph (a) applies has, or 2 or more such bodies together
have, a controlling interest; or
(c) a person who employs individuals
for the purposes of an unincorporated body that is established for a local
government purpose by or under a law of a State; or
(d) any other body corporate that is a
local government body in the State of a kind specified in the regulations; or
(e) any other person who employs
individuals for the purposes of an unincorporated body that is a local
government body in the State of a kind specified in the regulations.
referral law, of a State, means the law of
the State that refers matters, as mentioned in subsection 30B(1), to the
Parliament of the Commonwealth.
referred provisions means the provisions of
this Division to the extent to which they deal with matters that are included
in the legislative powers of the Parliaments of the States.
referred subject matters
means any of the following:
(a) terms and conditions of
employment, including any of the following:
(i) minimum terms and
conditions of employment, (including employment standards and minimum wages);
(ii) terms and conditions
of employment contained in instruments (including instruments such as awards,
determinations and enterprise‑level agreements);
(iii) bargaining in relation
to terms and conditions of employment;
(iv) the effect of a transfer
of business on terms and conditions of employment;
(b) terms and conditions under which
an outworker entity may arrange for work to be performed for the entity
(directly or indirectly), if the work is of a kind that is often performed by
outworkers;
(c) rights and responsibilities of persons,
including employees, employers, independent contractors, outworkers, outworker
entities, associations of employees or associations of employers, being rights
and responsibilities relating to any of the following:
(i) freedom of association
in the context of workplace relations, and related protections;
(ii) protection from
discrimination relating to employment;
(iii) termination of
employment;
(iv) industrial action;
(v) protection from payment
of fees for services related to bargaining;
(vi) sham independent
contractor arrangements;
(vii) standing down employees
without pay;
(viii) union rights of entry
and rights of access to records;
(d) compliance with, and enforcement
of, this Act;
(e) the administration of this Act;
(f) the application of this Act;
(g) matters incidental or ancillary to
the operation of this Act or of instruments made or given effect under this
Act;
but does not include any excluded subject matter.
referring State: see section 30B.
State public sector employee, of a State,
means:
(a) an employee of a State public
sector employer of the State; or
(b) any other employee in the State of
a kind specified in the regulations;
and includes a law enforcement officer to whom subsection
30E(1) applies.
State public sector employer, of a State,
means an employer that is:
(a) the State, the Governor of the
State or a Minister of the State; or
(b) a body corporate that is
established for a public purpose by or under a law of the State, by the Governor
of the State or by a Minister of the State; or
(c) a body corporate in which the
State has a controlling interest; or
(d) a person who employs individuals
for the purposes of an unincorporated body that is established for a public
purpose by or under a law of the State, by the Governor of the State or by a
Minister of the State; or
(e) any other employer in the State of
a kind specified in the regulations;
and includes a holder of an office to whom subsection
30E(2) applies.
transition reference of a State means the
reference by the Parliament of the State to the Parliament of the Commonwealth
of the matters covered by subsection 30B(5).
(2) Words or phrases in the definition of excluded
subject matter in subsection (1), or in the definition of referred
subject matters in subsection (1), that are defined in this Act
(other than in this Division) have, in that definition, the meanings set out in
this Act as in force on 1 July 2009.
30B
Meaning of referring State
Reference of matters by State Parliament to
Commonwealth Parliament
(1) A State is a referring State
if the Parliament of the State has, before 1 July 2009, referred the
matters covered by subsections (3), (4) and (5) in relation to the State
to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii)
of the Constitution:
(a) if and to the extent that the
matters are not otherwise included in the legislative powers of the Parliament
of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii)
of the Constitution); and
(b) if and to the extent that the
matters are included in the legislative powers of the Parliament of the State.
This subsection has effect subject to subsection (6).
(2) A State is a referring State
even if:
(a) the State’s referral law provides
that the reference to the Parliament of the Commonwealth of any or all of the
matters covered by subsections (3), (4) and (5) is to terminate in
particular circumstances; or
(b) the State’s referral law provides
that particular matters, or all matters, relating to State public sector
employees, or State public sector employers, of the State are not included in
any or all of the matters covered by subsections (3), (4) and (5); or
(c) the State’s referral law provides
that particular matters, or all matters, relating to local government
employees, or local government employers, of the State are not included in any
or all of the matters covered by subsections (3), (4) and (5).
Reference covering referred provisions
(3) This subsection covers the matters to
which the referred provisions relate to the extent of making laws with respect
to those matters by amending this Act, as originally enacted, to include the
referred provisions.
Reference covering amendments
(4) This subsection covers the referred
subject matters to the extent of making laws with respect to those matters by
making express amendments of this Act.
Reference covering transitional matters
(5) This subsection covers making laws with
respect to the transition from the regime provided for by:
(a) the Workplace Relations Act
1996; or
(b) a law of a State relating to
workplace relations;
to the regime provided for by this Act.
Effect of termination of reference
(6) Despite anything to the contrary in a
referral law of a State, a State ceases to be a referring State
if any or all of the following occurs:
(a) the State’s initial reference
terminates;
(b) the State’s amendment reference
terminates, and neither of subsections (7) and (8) apply to the
termination;
(c) the State’s transition reference
terminates.
(7) A State does not cease to be a referring
State because of the termination of its amendment reference if:
(a) the termination is effected by the
Governor of that State fixing a day by proclamation as the day on which the
reference terminates; and
(b) the day fixed is no earlier than
the first day after the end of the period of 6 months beginning on the day on
which the proclamation is published; and
(c) that State’s amendment reference,
and the amendment reference of every other referring State (other than a
referring State that has terminated its amendment reference in the
circumstances referred to in subsection (8)), terminate on the same day.
(8) A State does not cease to be a referring
State because of the termination of its amendment reference if:
(a) the termination is effected by the
Governor of that State fixing a day by proclamation as the day on which the
reference terminates; and
(b) the day fixed is no earlier than
the first day after the end of the period of 3 months beginning on the day on
which the proclamation is published; and
(c) the Governor of that State, as
part of the proclamation by which the termination is to be effected, declares
that, in the opinion of the Governor, this Act:
(i) is proposed to be amended
(by an amendment introduced into the Parliament by a Minister); or
(ii) has been amended;
in a manner that is inconsistent
with one or more of the fundamental workplace
relations principles.
(9) The following are the fundamental
workplace relations principles:
(a) that this Act should provide for,
and continue to provide for, the following:
(i) a strong, simple and
enforceable safety net of minimum employment standards;
(ii) genuine rights and
responsibilities to ensure fairness, choice and representation at work,
including the freedom to choose whether or not
to join and be represented by a union or participate in collective activities;
(iii) collective bargaining at the enterprise level with no
provision for individual statutory agreements;
(iv) fair and effective remedies available through an independent umpire;
(v) protection from unfair dismissal;
(b) that
there should be, and continue to be, in connection with the operation of this
Act, the following:
(i) an independent tribunal system;
(ii) an independent authority able to assist employers and
employees within a national workplace relations system.
30C
Extended meaning of national system employee
(1) A national system employee
includes:
(a) any individual in a State that is
a referring State because of this Division so far as he or she is employed, or
usually employed, as described in paragraph 30D(1)(a), except on a vocational
placement; and
(b) a law enforcement officer of the
State to whom subsection 30E(1) applies.
(2) This section does not limit the operation
of section 13 (which defines a national system employee).
Note: Section 30H may limit the extent to which
this section extends the meaning of national system employee.
30D
Extended meaning of national system employer
(1) A national system employer
includes:
(a) any person in a State that is a
referring State because of this Division so far as the person employs, or
usually employs, an individual; and
(b) a holder of an office to whom
subsection 30E(2) applies.
(2) This section does not limit the operation
of section 14 (which defines a national system employer).
Note: Section 30H may limit the extent to which
this section extends the meaning of national system employer.
30E
Extended ordinary meanings of employee and employer
(1) A reference in this Act to an employee
with its ordinary meaning includes a reference to a law enforcement officer of a
State that is a referring State because of this Division if the State’s
referral law so provides for the purposes of that law.
(2) A reference in this Act to an employer
with its ordinary meaning includes a reference to a holder of an office of a
State that is a referring State because of this Division if the State’s
referral law provides, for the purposes of that law, that the holder of the
office is taken to be the employer of a law enforcement officer of the State.
(3) This section does not limit the operation
of section 15 (which deals with references to employee and employer with
their ordinary meanings).
Note: Section 30H may limit the extent to which
this section extends the meanings of employee and employer.
30F
Extended meaning of outworker entity
(1) An outworker entity
includes a person, other than in the person’s capacity as a national system
employer, so far as:
(a) the person arranges for work to be
performed for the person (either directly or indirectly); and
(b) the work is of a kind that is
often performed by outworkers; and
(c) one or more of the following
applies:
(i) at the time the
arrangement is made, one or more parties to the arrangement is in a State that
is a referring State because of this Division;
(ii) the work is to be
performed in a State that is a referring State because of this Division;
(iii) the person referred to
in paragraph (a) carries on an activity (whether of a commercial,
governmental or other nature) in a State that is a referring State because of
this Division, and the work is reasonably likely to be performed in that State;
(iv) the person referred to
in paragraph (a) carries on an activity (whether of a commercial,
governmental or other nature) in a State that is a referring State because of
this Division, and the work is to be performed in connection with that
activity.
(2) This section does not limit the operation
of the definition of outworker entity in section 12.
Note: Section 30H may limit the extent to which
this section extends the meaning of outworker entity.
30G
General protections
(1) Part 3‑1 (which deals with general
protections) applies to action taken in a State that is a referring State
because of this Division.
(2) This section applies despite
section 337 (which limits the application of Part 3‑1), and does not
limit the operation of sections 338 and 339 (which set out the application
of that Part).
Note: Section 30H may limit the extent to which
this section extends the application of Part 3‑1.
30H
Division only has effect if supported by reference
A provision of this Division has effect
in relation to a State that is a referring State because of this Division only
to the extent that the State’s referral law refers to the Parliament of the
Commonwealth the matters mentioned in subsection 30B(1) that result in the
Parliament of the Commonwealth having sufficient legislative power for the
provision so to have effect.
Division 2B—Application of this Act in States that refer matters after
1 July 2009 but on or before 1 January 2010
30K
Meaning of terms used in this Division
(1) In this Division:
amendment reference of a State means the
reference by the Parliament of the State to the Parliament of the Commonwealth
of the matters covered by subsection 30L(4).
excluded subject matter means any of
the following matters:
(a) a matter dealt with in a law
referred to in subsection 27(1A) of this Act;
(b) superannuation;
(c) workers compensation;
(d) occupational health and safety;
(e) matters relating to outworkers
(within the ordinary meaning of the term);
(f) child labour;
(g) training arrangements;
(h) long service leave;
(i) leave for victims of crime;
(j) attendance for service on a jury,
or for emergency service duties;
(k) declaration, prescription or
substitution of public holidays;
(l) the following matters relating to
provision of essential services or to situations of emergency:
(i) directions to perform
work (including to perform work at a particular time or place, or in a
particular way);
(ii) directions not to
perform work (including not to perform work at a particular time or place, or
in a particular way);
(m) regulation of any of the following:
(i) employee associations;
(ii) employer associations;
(iii) members of employee
associations or of employer associations;
(n) workplace surveillance;
(o) business trading hours;
(p) claims for enforcement of
contracts of employment, except so far as a law of a State provides for the
variation or setting aside of rights and obligations arising under a contract
of employment, or another arrangement for employment, that a court or tribunal
finds is unfair;
(q) rights or remedies incidental to a
matter referred to in a preceding paragraph of this definition;
except to the extent that this Act as originally enacted
deals with the matter (directly or indirectly), or requires or permits
instruments made or given effect under this Act so to deal with the matter.
express amendment means the direct amendment
of the text of this Act (whether by the insertion, omission, repeal,
substitution or relocation of words or matter), but does not include the
enactment by a Commonwealth Act of a provision that has, or will have,
substantive effect otherwise than as part of the text of this Act.
fundamental workplace relations principles: see subsection 30L(9).
initial reference of a State means the
reference by the Parliament of the State to the Parliament of the Commonwealth
of the matters covered by subsection 30L(3).
law enforcement officer means:
(a) a member of a police force or
police service; or
(b) a person appointed to a position
for the purpose of being trained as a member of a police force or police service;
or
(c) a person who has the powers and
duties of a member of a police force or police service;
and, without limiting paragraphs (a), (b) and (c),
includes a police reservist, a police recruit, a police cadet, a junior
constable, a police medical officer, a special constable, an ancillary
constable or a protective services officer.
local government employee, of a State, means:
(a) an employee of a local government
employer of the State; or
(b) any other employee in the State of
a kind specified in the regulations.
local government employer, of a State, means
an employer that is:
(a) a body corporate that is
established for a local government purpose by or under a law of a State; or
(b) a body corporate in which a body
to which paragraph (a) applies has, or 2 or more such bodies together
have, a controlling interest; or
(c) a person who employs individuals
for the purposes of an unincorporated body that is established for a local
government purpose by or under a law of a State; or
(d) any other body corporate that is a
local government body in the State of a kind specified in the regulations; or
(e) any other person who employs
individuals for the purposes of an unincorporated body that is a local
government body in the State of a kind specified in the regulations.
referral law, of a State, means the law of
the State that refers matters, as mentioned in subsection 30L(1), to the
Parliament of the Commonwealth.
referred provisions means the provisions of
this Division to the extent to which they deal with matters that are included
in the legislative powers of the Parliaments of the States.
referred subject matters
means any of the following:
(a) terms and conditions of
employment, including any of the following:
(i) minimum terms and
conditions of employment, (including employment standards and minimum wages);
(ii) terms and conditions
of employment contained in instruments (including instruments such as awards,
determinations and enterprise‑level agreements);
(iii) bargaining in relation
to terms and conditions of employment;
(iv) the effect of a
transfer of business on terms and conditions of employment;
(b) terms and conditions under which
an outworker entity may arrange for work to be performed for the entity
(directly or indirectly), if the work is of a kind that is often performed by
outworkers;
(c) rights and responsibilities of
persons, including employees, employers, independent contractors, outworkers,
outworker entities, associations of employees or associations of employers,
being rights and responsibilities relating to any of the following:
(i) freedom of association
in the context of workplace relations, and related protections;
(ii) protection from
discrimination relating to employment;
(iii) termination of
employment;
(iv) industrial action;
(v) protection from payment
of fees for services related to bargaining;
(vi) sham independent
contractor arrangements;
(vii) standing down employees
without pay;
(viii) union rights of entry
and rights of access to records;
(d) compliance with, and enforcement
of, this Act;
(e) the administration of this Act;
(f) the application of this Act;
(g) matters incidental or ancillary to
the operation of this Act or of instruments made or given effect under this
Act;
but does not include any excluded subject matter.
referring State: see section 30L.
State public sector employee, of a State,
means:
(a) an employee of a State public
sector employer of the State; or
(b) any other employee in the State of
a kind specified in the regulations;
and includes a law enforcement officer of the State.
State public sector employer, of a State,
means an employer that is:
(a) the State, the Governor of the
State or a Minister of the State; or
(b) a body corporate that is
established for a public purpose by or under a law of the State, by the
Governor of the State or by a Minister of the State; or
(c) a body corporate in which the
State has a controlling interest; or
(d) a person who employs individuals
for the purposes of an unincorporated body that is established for a public
purpose by or under a law of the State, by the Governor of the State or by a
Minister of the State; or
(e) any other employer in the State of
a kind specified in the regulations;
and includes a holder of an office of the State whom the
State’s referral law provides is to be taken, for the purposes of this Act, to
be an employer of law enforcement officers of the State.
transition reference of a State means the
reference by the Parliament of the State to the Parliament of the Commonwealth
of the matters covered by subsection 30L(5).
(2) Words or phrases in the definition of excluded
subject matter in subsection (1), or in the definition of referred
subject matters in subsection (1), that are defined in this Act
(other than in this Division) have, in that definition, the meanings set out in
this Act as in force on 1 July 2009.
30L
Meaning of referring State
Reference of matters by State Parliament to
Commonwealth Parliament
(1) A State is a referring State
if the Parliament of the State has, after 1 July 2009 but on or before
1 January 2010, referred the matters covered by subsections (3), (4)
and (5) in relation to the State to the Parliament of the Commonwealth for the
purposes of paragraph 51(xxxvii) of the Constitution:
(a) if and to the extent that the
matters are not otherwise included in the legislative powers of the Parliament
of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii)
of the Constitution); and
(b) if and to the extent that the
matters are included in the legislative powers of the Parliament of the State.
This subsection has effect subject to subsection (6).
(2) A State is a referring State
even if:
(a) the State’s referral law provides
that the reference to the Parliament of the Commonwealth of any or all of the
matters covered by subsections (3), (4) and (5) is to terminate in
particular circumstances; or
(b) the State’s referral law provides
that particular matters, or all matters, relating to State public sector
employees, or State public sector employers, of the State are not included in
any or all of the matters covered by subsections (3), (4) and (5); or
(c) the State’s referral law provides
that particular matters, or all matters, relating to local government
employees, or local government employers, of the State are not included in any
or all of the matters covered by subsections (3), (4) and (5).
Reference covering referred provisions
(3) This subsection covers the matters to
which the referred provisions relate to the extent of making laws with respect
to those matters by amending this Act, as originally enacted, and as
subsequently amended by amendments enacted at any time before the State’s
referral law commenced, to include the referred provisions.
Reference covering amendments
(4) This subsection covers the referred
subject matters to the extent of making laws with respect to those matters by
making express amendments of this Act.
Reference covering transitional matters
(5) This subsection covers making laws with
respect to the transition from the regime provided for by:
(a) the Workplace Relations Act
1996 (as it continues to apply because of the Fair Work (Transitional
Provisions and Consequential Amendments) Act 2009); or
(b) a law of a State relating to
workplace relations or industrial relations;
to the regime provided for by this Act.
Effect of termination of reference
(6) Despite anything to the contrary in a
referral law of a State, a State ceases to be a referring State
if any or all of the following occurs:
(a) the State’s initial reference
terminates;
(b) the State’s amendment reference
terminates, and neither of subsections (7) and (8) apply to the
termination;
(c) the State’s transition reference
terminates.
(7) A State does not cease to be a referring
State because of the termination of its amendment reference if:
(a) the termination is effected by the
Governor of that State fixing a day by proclamation as the day on which the
reference terminates; and
(b) the day fixed is no earlier than
the first day after the end of the period of 6 months beginning on the day on
which the proclamation is published; and
(c) that State’s amendment reference,
and the amendment reference of every other referring State (other than a
referring State that has terminated its amendment reference in the
circumstances referred to in subsection (8)), terminate on the same day.
(8) A State does not cease to be a referring
State because of the termination of its amendment reference if:
(a) the termination is effected by the
Governor of that State fixing a day by proclamation as the day on which the
reference terminates; and
(b) the day fixed is no earlier than
the first day after the end of the period of 3 months beginning on the day on
which the proclamation is published; and
(c) the Governor of that State, as
part of the proclamation by which the termination is to be effected, declares
that, in the opinion of the Governor, this Act:
(i) is proposed to be
amended (by an amendment introduced into the Parliament by a Minister); or
(ii) has been amended;
in a manner that is inconsistent
with one or more of the fundamental workplace
relations principles.
(9) The following are the fundamental
workplace relations principles:
(a) that this Act should provide for,
and continue to provide for, the following:
(i) a strong, simple and
enforceable safety net of minimum employment standards;
(ii) genuine rights and
responsibilities to ensure fairness, choice and representation at work,
including the freedom to choose whether or not
to join and be represented by a union or participate in collective activities;
(iii) collective bargaining at the enterprise level with no
provision for individual statutory agreements;
(iv) fair and effective remedies available through an independent umpire;
(v) protection from unfair dismissal;
(b) that
there should be, and continue to be, in connection with the operation of this
Act, the following:
(i) an independent tribunal system;
(ii) an independent authority able to assist employers and
employees within a national workplace relations system.
30M
Extended meaning of national system employee
(1) A national system employee
includes:
(a) any individual in a State that is
a referring State because of this Division so far as he or she is employed, or
usually employed, as described in paragraph 30N(1)(a), except on a vocational
placement; and
(b) a law enforcement officer of the
State to whom subsection 30P(1) applies.
(2) This section does not limit the operation
of section 13 (which defines a national system employee).
Note: Section 30S may limit the extent to which
this section extends the meaning of national system employee.
30N
Extended meaning of national system employer
(1) A national system employer
includes:
(a) any person in a State that is a referring
State because of this Division so far as the person employs, or usually
employs, an individual; and
(b) a holder of an office to whom
subsection 30P(2) applies.
(2) This section does not limit the operation
of section 14 (which defines a national system employer).
Note: Section 30S may limit the extent to which
this section extends the meaning of national system employer.
30P
Extended ordinary meanings of employee and employer
(1) A reference in this Act to an employee
with its ordinary meaning includes a reference to a law enforcement officer of
a referring State if the State’s referral law so provides for the purposes of
that law.
(2) A reference in this Act to an employer
with its ordinary meaning includes a reference to a holder of an office of a
State if the State’s referral law provides, for the purposes of that law, that
the holder of the office is taken to be the employer of a law enforcement
officer of the State.
(3) This section does not limit the operation
of section 15 (which deals with references to employee and employer with
their ordinary meanings).
Note: Section 30S may limit the extent to which
this section extends the meanings of employee and employer.
30Q
Extended meaning of outworker entity
(1) An outworker entity
includes a person, other than in the person’s capacity as a national system
employer, so far as:
(a) the person arranges for work to be
performed for the person (either directly or indirectly); and
(b) the work is of a kind that is
often performed by outworkers; and
(c) one or more of the following
applies:
(i) at the time the
arrangement is made, one or more parties to the arrangement is in a State that
is a referring State because of this Division;
(ii) the work is to be
performed in a State that is a referring State because of this Division;
(iii) the person referred to
in paragraph (a) carries on an activity (whether of a commercial,
governmental or other nature) in a State that is a referring State because of
this Division, and the work is reasonably likely to be performed in that State;
(iv) the person referred to
in paragraph (a) carries on an activity (whether of a commercial,
governmental or other nature) in a State that is a referring State because of
this Division, and the work is to be performed in connection with that
activity.
(2) This section does not limit the operation
of the definition of outworker entity in section 12.
Note: Section 30S may limit the extent to which
this section extends the meaning of outworker entity.
30R
General protections
(1) Part 3‑1 (which deals with general
protections) applies to action taken in a State that is a referring State
because of this Division.
(2) This section applies despite
section 337 (which limits the application of Part 3‑1), and does not
limit the operation of sections 338 and 339 (which set out the application
of that Part).
Note: Section 30S may limit the extent to which
this section extends the application of Part 3‑1.
30S
Division only has effect if supported by reference
A provision of this Division has effect
in relation to a State that is a referring State because of this Division only
to the extent that the State’s referral law refers to the Parliament of the
Commonwealth the matters mentioned in subsection 30L(1) that result in the Parliament
of the Commonwealth having sufficient legislative power for the provision so to
have effect.
Division 3—Geographical application of this Act
31
Exclusion of persons etc. insufficiently connected with Australia
(1) A provision of this Act prescribed by the
regulations does not apply to a person or entity in Australia prescribed by the
regulations as a person to whom, or an entity to which, the provision does not
apply.
Note 1: In this context, Australia
includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea (see section 15B and paragraph 17(a) of the Acts
Interpretation Act 1901).
Note 2: The regulations may prescribe the person or
entity by reference to a class (see subsection 13(3) of the Legislative
Instruments Act 2003).
(2) Before the Governor‑General makes
regulations for the purposes of subsection (1) prescribing either or both
of the following:
(a) a provision of this Act that is
not to apply to a person or entity;
(b) a person to whom, or an entity to
which, a provision of this Act is not to apply;
the Minister must be satisfied that the provision should
not apply to the person or entity in Australia because there is not a
sufficient connection between the person or entity and Australia.
32 Regulations
may modify application of this Act in certain parts of Australia
If the regulations prescribe
modifications of this Act for its application in relation to all or part of any
one or more of the following areas:
(a) all the waters of the sea on the
landward side of the outer limits of the territorial sea of Australia, including:
(i) such waters within the
limits of a State or Territory; and
(ii) the airspace over, and
the seabed and sub‑soil beneath, such waters;
(b) the Territory of Christmas Island;
(c) the Territory of Cocos (Keeling) Islands;
then this Act has effect as so modified in relation to any
such area or part.
Note: This Act would, in the absence of any such
regulations, apply in relation to these areas in the same way as it applies in
relation to the rest of Australia.
33
Extension of this Act to the exclusive economic zone and the continental shelf
Extension to Australian ships etc.
(1) Without limiting subsection (3),
this Act extends to or in relation to:
(a) any Australian ship in the
exclusive economic zone or in the waters above the continental shelf; and
(b) any fixed platform in the
exclusive economic zone or in the waters above the continental shelf; and
(c) any ship, in the exclusive
economic zone or in the waters above the continental shelf, that:
(i) supplies, services or
otherwise operates in connection with a fixed platform in the exclusive
economic zone or in the waters above the continental shelf; and
(ii) operates to and from
an Australian port; and
(d) any ship, in the exclusive
economic zone or in the waters above the continental shelf, that:
(i) is operated or
chartered by an Australian employer; and
(ii) uses Australia as a base.
(2) For the purposes of extending this Act in
accordance with paragraph (1)(d):
(a) any reference in a provision of
this Act to an employer is taken to include a reference to an Australian
employer; and
(b) any reference in a provision of
this Act to an employee is taken to include a reference to an employee of an
Australian employer.
Extensions prescribed by regulations
(3) Without limiting subsection (1), if
the regulations prescribe further extensions of this Act, or specified
provisions of this Act, to or in relation to the exclusive economic zone or to
the waters above the continental shelf, then this Act extends accordingly.
Modifications relating to extended application
(4) Despite subsections (1) and (3), if
the regulations prescribe modifications of this Act, or specified provisions of
this Act, for its operation under subsection (1) or (3) in relation to one
or both of the following:
(a) all or part of the exclusive
economic zone;
(b) all or part of the continental
shelf;
then, so far as this Act would, apart from this
subsection, extend to the zone or part, or to the continental shelf or part, it
has effect as so modified.
(5) For the purposes of subsection (4),
the regulations may prescribe different modifications in relation to different
parts of the exclusive economic zone or continental shelf.
34
Extension of this Act beyond the exclusive economic zone and the continental
shelf
Extension to Australian ships etc.
(1) Without limiting subsection (3),
this Act extends to or in relation to:
(a) any Australian ship outside the
outer limits of the exclusive economic zone and the continental shelf; and
(b) any ship, outside the outer limits
of the exclusive economic zone and the continental shelf, that:
(i) is operated or
chartered by an Australian employer; and
(ii) uses Australia as a base.
(2) For the purposes of extending this Act in
accordance with paragraph (1)(b):
(a) any reference in a provision of
this Act to an employer is taken to include a reference to an Australian
employer; and
(b) any reference in a provision of
this Act to an employee is taken to include a reference to an employee of an
Australian employer.
Extensions prescribed by regulations
(3) Without limiting subsection (1), if
the regulations prescribe further extensions of this Act, or specified
provisions of this Act, in relation to all or part of the area outside the
outer limits of the exclusive economic zone and the continental shelf, then
this Act, or the specified provisions, extend accordingly to:
(a) any Australian employer; and
(b) any Australian‑based employee.
(3A) For the purposes of extending this Act in
accordance with subsection (3):
(a) any reference in a provision of
this Act to an employer is taken to include a reference to:
(i) an Australian
employer; and
(ii) an employer of an
Australian‑based employee; and
(b) any reference in a provision of
this Act to an employee is taken to include a reference to:
(i) an employee of an
Australian employer; and
(ii) an Australian‑based
employee.
Modified application in the area outside the outer
limits of the exclusive economic zone and the continental shelf
(4) Despite subsections (1) and (3), if
the regulations prescribe modifications of this Act, or specified provisions of
this Act, for their operation under subsection (1) or (3) in relation to
all or part of the area outside the outer limits of the exclusive economic zone
and the continental shelf, then this Act, or the specified provisions, have
effect as so modified in relation to the area or part.
(5) For the purposes of subsection (4),
the regulations may prescribe different modifications in relation to different
parts of the area outside the outer limits of the exclusive economic zone and
the continental shelf.
35
Meanings of Australian employer and Australian‑based employee
(1) An Australian employer is
an employer that:
(a) is a trading corporation formed
within the limits of the Commonwealth (within the meaning of paragraph 51(xx)
of the Constitution); or
(b) is a financial corporation formed
within the limits of the Commonwealth (within the meaning of paragraph 51(xx)
of the Constitution); or
(c) is the Commonwealth; or
(d) is a Commonwealth authority; or
(e) is a body corporate incorporated
in a Territory; or
(f) carries on in Australia, in the exclusive economic zone or in the waters above the continental shelf an activity
(whether of a commercial, governmental or other nature), and whose central
management and control is in Australia; or
(g) is prescribed by the regulations.
(2) An Australian‑based employee
is an employee:
(a) whose primary place of work is in Australia; or
(b) who is employed by an Australian
employer (whether the employee is located in Australia or elsewhere); or
(c) who is prescribed by the
regulations.
(3) However, paragraph (2)(b) does not
apply to an employee who is engaged outside Australia and the external
Territories to perform duties outside Australia and the external Territories.
35A
Regulations excluding application of Act
(1) Regulations made for the purposes of
section 32 or subsection 33(4) or 34(4) may exclude the application of the
whole of this Act in relation to all or a part of an area referred to in
section 32 or subsection 33(4) or 34(4) (as the case may be).
(2) If subsection (1) applies, this Act
has effect as if it did not apply in relation to that area or that part of that
area.
36
Geographical application of offences
Division 14 (Standard geographical
jurisdiction) of the Criminal Code does not apply in relation to an
offence against this Act.
Note: The extended geographical application that
this Division gives to this Act will apply to the offences in this Act.
Division 4—Miscellaneous
37 Act
binds Crown
(1) This Act binds the Crown in each of its
capacities.
(2) However, this Act does not make the Crown
liable to be prosecuted for an offence.
38 Act
not to apply so as to exceed Commonwealth power
(1) Unless the contrary intention appears, if
a provision of this Act:
(a) would, apart from this section,
have an application (an invalid application) in relation to:
(i) one or more particular
persons, things, matters, places, circumstances or cases; or
(ii) one or more classes
(however defined or determined) of persons, things, matters, places,
circumstances or cases;
because of which the provision
exceeds the Commonwealth’s legislative power; and
(b) also has at least one application
(a valid application) in relation to:
(i) one or more particular
persons, things, matters, places, circumstances or cases; or
(ii) one or more classes
(however defined or determined) of persons, things, matters, places,
circumstances or cases;
that, if it were the provision’s
only application, would be within the Commonwealth’s legislative power;
it is the Parliament’s intention that the provision is not
to have the invalid application, but is to have every valid application.
(2) Despite subsection (1), the
provision is not to have a particular valid application if:
(a) apart from this section, it is
clear, taking into account the provision’s context and the purpose or object
underlying this Act, that the provision was intended to have that valid
application only if every invalid application, or a particular invalid
application, of the provision had also been within the Commonwealth’s
legislative power; or
(b) the provision’s operation in
relation to that valid application would be different in a substantial respect
from what would have been its operation in relation to that valid application
if every invalid application of the provision had been within the
Commonwealth’s legislative power.
(3) Subsection (2) does not limit the
cases where a contrary intention may be taken to appear for the purposes of
subsection (1).
(4) This section applies to a provision of
this Act, whether enacted before, at or after the commencement of this section.
39
Acquisition of property
This Act, or any instrument made under
this Act, does not apply to the extent that the operation of this Act or the
instrument would result in an acquisition of property (within the meaning of
paragraph 51(xxxi) of the Constitution) from a person otherwise than on just
terms (within the meaning of that paragraph).
40
Interaction between fair work instruments and public sector employment laws
Generally, public sector employment laws prevail
(1) A public sector employment law prevails
over a fair work instrument that deals with public sector employment, to the
extent of any inconsistency.
When fair work instruments or their terms prevail
(2) However, a fair work instrument, or a
term of a fair work instrument, that deals with public sector employment
prevails over a public sector employment law, to the extent of any
inconsistency, if:
(a) the instrument or term is
prescribed by the regulations for the purposes of that particular law; or
(b) the instrument or term (other than
an FWA order or a term of an FWA order) is included in a class of instruments
or terms that are prescribed by the regulations for the purposes of that
particular law.
Meaning of public sector employment law
(3) A public sector employment law is
a law of the Commonwealth (other than this Act) or a Territory, or a term of an
instrument made under such a law, that deals with public sector employment.
Laws that fair work instruments never prevail over
(4) Subsection (2) does not apply to any
provisions of the following that are public sector employment laws:
(a) the Safety, Rehabilitation and
Compensation Act 1988;
(b) the Superannuation Act 1976;
(c) the Superannuation Act 1990;
(d) the Superannuation Act 2005;
(e) the Superannuation
(Productivity Benefit) Act 1988;
(f) an instrument made under a law
referred to in any of the above paragraphs.
Relationship with section 29
(5) This section prevails over
section 29, to the extent of any inconsistency.
40A
Application of the Acts Interpretation Act 1901
(1) The Acts Interpretation Act 1901,
as in force on 25 June 2009, applies to this Act.
(2) Amendments of the Acts Interpretation
Act 1901 made after that day do not apply to this Act.
Chapter 2—Terms and conditions of employment
Part 2‑1—Core provisions for this Chapter
Division 1—Introduction
41
Guide to this Part
This Part has the core provisions for
this Chapter, which deals with terms and conditions of employment of national
system employees. The main terms and conditions come from the National
Employment Standards, modern awards, enterprise agreements and workplace
determinations.
The National Employment Standards
(Part 2‑2) are minimum terms and conditions that apply to all national
system employees.
A modern award (see Part 2‑3), an
enterprise agreement (see Part 2‑4) or a workplace determination (see
Part 2‑5) provides terms and conditions for those national system
employees to whom the award, agreement or determination applies. Only one of
those instruments can apply to an employee at a particular time.
Division 2 has the provisions to
enforce the National Employment Standards, modern awards and enterprise
agreements. It also sets out when a modern award or enterprise agreement
applies to a person and the significance of that for this Act.
Note: In
most cases, this Act applies to a workplace determination as if it were an
enterprise agreement in operation (see section 279). For the rules about
workplace determinations, see Part 2‑5.
Division 3 deals with the
interaction between the National Employment Standards, modern awards and
enterprise agreements.
42
Meanings of employee and employer
In this Part, employee
means a national system employee, and employer means a national
system employer.
Division 2—Core provisions for this Chapter
Subdivision A—Terms and conditions of employment provided under this Act
43
Terms and conditions of employment provided under this Act
Main terms and conditions
(1) The main terms and conditions of
employment of an employee that are provided under this Act are those set out
in:
(a) the National Employment Standards
(see Part 2‑2); and
(b) a modern award (see Part 2‑3),
an enterprise agreement (see Part 2‑4) or a workplace determination (see
Part 2‑5) that applies to the employee.
Note 1: The situations in which a workplace determination,
rather than a modern award or enterprise agreement, provides an employee’s
terms and conditions of employment are limited. In most cases, this Act applies
to a workplace determination as if it were an enterprise agreement in operation
(see section 279). See Part 2‑5 generally for the rules on workplace
determinations.
Note 2: Part 2‑8 provides for the transfer of
certain modern awards, enterprise agreements and workplace determinations if
there is a transfer of business from an employee’s employer to another
employer.
Other terms and conditions
(2) In addition, other terms and conditions
of employment include:
(a) those terms and conditions arising
from:
(i) a national minimum
wage order (see Part 2‑6); or
(ii) an equal remuneration
order (see Part 2‑7); and
(b) those terms and conditions
provided by Part 2‑9.
Note: Part 2‑9 deals with miscellaneous terms
and conditions of employment, such as payment of wages.
Subdivision B—Terms and conditions of employment provided by the National
Employment Standards
44
Contravening the National Employment Standards
(1) An employer must not contravene a
provision of the National Employment Standards.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) However, an order cannot be made under
Division 2 of Part 4‑1 in relation to a contravention (or alleged
contravention) of subsection 65(5) or 76(4).
Note 1: Subsections 65(5) and 76(4) state that an
employer may refuse a request for flexible working arrangements, or an
application to extend unpaid parental leave, only on reasonable business
grounds.
Note 2: Modern awards and enterprise agreements include
terms about settling disputes in relation to the National Employment Standards
(other than disputes as to whether an employer had reasonable business grounds
under subsection 65(5) or 76(4)).
Subdivision C—Terms and conditions of employment provided by a modern
award
45
Contravening a modern award
A person must not contravene a term of a
modern award.
Note 1: This section is a civil remedy provision (see
Part 4‑1).
Note 2: A person does not contravene a term of a modern
award unless the award applies to the person: see subsection 46(1).
46 The
significance of a modern award applying to a person
(1) A modern award does not impose
obligations on a person, and a person does not contravene a term of a modern
award, unless the award applies to the person.
(2) A modern award does not give a person an
entitlement unless the award applies to the person.
Note: Subsection (2) does not affect the
ability of outworker terms in a modern award to be enforced under Part 4‑1
in relation to outworkers who are not employees.
47
When a modern award applies to an employer, employee, organisation or
outworker entity
When a modern award applies to an employee,
employer, organisation or outworker entity
(1) A modern award applies to
an employee, employer, organisation or outworker entity if:
(a) the modern award covers the
employee, employer, organisation or outworker entity; and
(b) the modern award is in operation;
and
(c) no other provision of this Act
provides, or has the effect, that the modern award does not apply to the
employee, employer, organisation or outworker entity.
Note 1: Section 57 provides that a modern award
does not apply to an employee (or to an employer, or an employee organisation,
in relation to the employee) in relation to particular employment at a time
when an enterprise agreement applies to the employee in relation to that
employment.
Note 2: In a modern award, coverage of an outworker entity
must be expressed to relate only to outworker terms: see subsection 143(4).
Modern awards do not apply to high income employees
(2) However, a modern award does not apply to
an employee (or to an employer, or an employee organisation, in relation to the
employee) at a time when the employee is a high income employee.
Modern awards apply to employees in relation to
particular employment
(3) A reference in this Act to a modern award
applying to an employee is a reference to the award applying to the employee in
relation to particular employment.
48
When a modern award covers an employer, employee, organisation or
outworker entity
When a modern award covers an employee,
employer, organisation or outworker entity
(1) A modern award covers an
employee, employer, organisation or outworker entity if the award is expressed
to cover the employee, employer, organisation or outworker entity.
Note: In a modern award, coverage of an outworker
entity must be expressed to relate only to outworker terms: see subsection
143(4).
Effect of other provisions of this Act, FWA orders or
court orders on coverage
(2) A modern award also covers
an employee, employer, organisation or outworker entity if any of the following
provides, or has the effect, that the award covers the employee, employer,
organisation or outworker entity:
(a) a provision of this Act or of the Fair
Work (Registered Organisations) Act 2009;
(b) an FWA order made under a
provision of this Act;
(c) an order of a court.
(3) Despite subsections (1) and (2), a
modern award does not cover an employee, employer, organisation
or outworker entity if any of the following provides, or has the effect, that
the award does not cover the employee, employer or organisation or outworker
entity:
(a) a provision of this Act;
(b) an FWA order made under a
provision of this Act;
(c) an order of a court.
Modern awards that have ceased to operate
(4) Despite subsections (1) and (2), a
modern award that has ceased to operate does not cover an
employee, employer, organisation or outworker entity.
Modern awards cover employees in relation to particular
employment
(5) A reference to a modern award covering an
employee is a reference to the award covering the employee in relation to
particular employment.
49
When a modern award is in operation
When a modern award comes into operation
(1) A modern award comes into operation:
(a) on 1 July in the next
financial year after it is made; or
(b) if it is made on 1 July in a
financial year—on that day.
(2) However, if FWA specifies another day as
the day on which the modern award comes into operation, it comes into operation
on that other day. FWA must not specify another day unless it is satisfied that
it is appropriate to do so.
(3) The specified day must not be earlier
than the day on which the modern award is made.
Note: For when a State reference public sector
modern award comes into operation, see section 168J.
When a determination revoking a modern award comes into
operation
(4) A determination revoking a modern award
comes into operation on the day specified in the determination.
(5) The specified day must not be earlier
than the day on which the determination is made.
Modern awards and revocation determinations take effect
from first full pay period
(6) A modern award, or a determination
revoking a modern award, does not take effect in relation to a particular
employee until the start of the employee’s first full pay period that starts on
or after the day the award or determination comes into operation.
Modern awards operate until revoked
(7) A modern award continues in operation
until it is revoked.
Subdivision D—Terms and conditions of employment provided by an enterprise
agreement
50
Contravening an enterprise agreement
A person must not contravene a term of
an enterprise agreement.
Note 1: This section is a civil remedy provision (see
Part 4‑1).
Note 2: A person does not contravene a term of an
enterprise agreement unless the agreement applies to the person: see subsection
51(1).
51 The
significance of an enterprise agreement applying to a person
(1) An enterprise agreement does not impose
obligations on a person, and a person does not contravene a term of an
enterprise agreement, unless the agreement applies to the person.
(2) An enterprise agreement does not give a
person an entitlement unless the agreement applies to the person.
52
When an enterprise agreement applies to an employer, employee or
employee organisation
When an enterprise agreement applies to an employee,
employer or organisation
(1) An enterprise agreement applies
to an employee, employer or employee organisation if:
(a) the agreement is in operation; and
(b) the agreement covers the employee,
employer or organisation; and
(c) no other provision of this Act
provides, or has the effect, that the agreement does not apply to the employee,
employer or organisation.
Enterprise agreements apply to employees in relation to
particular employment
(2) A reference in this Act to an enterprise
agreement applying to an employee is a reference to the agreement applying to
the employee in relation to particular employment.
53
When an enterprise agreement covers an employer, employee or employee
organisation
Employees and employers
(1) An enterprise agreement covers
an employee or employer if the agreement is expressed to cover (however
described) the employee or the employer.
Employee organisations
(2) An enterprise agreement covers
an employee organisation:
(a) for an enterprise agreement that
is not a greenfields agreement—if FWA has noted in its decision to approve the
agreement that the agreement covers the organisation (see subsection 201(2));
or
(b) for a greenfields agreement—if the
agreement is made by the organisation.
Effect of provisions of this Act, FWA orders and court
orders on coverage
(3) An enterprise agreement also covers
an employee, employer or employee organisation if any of the following
provides, or has the effect, that the agreement covers the employee, employer
or organisation:
(a) a provision of this Act or of the Fair
Work (Registered Organisations) Act 2009;
(b) an FWA order made under a
provision of this Act;
(c) an order of a court.
(4) Despite subsections (1), (2) and
(3), an enterprise agreement does not cover an employee, employer
or employee organisation if any of the following provides, or has the effect,
that the agreement does not cover the employee, employer or organisation:
(a) another provision of this Act;
(b) an FWA order made under another
provision of this Act;
(c) an order of a court.
Enterprise agreements that have ceased to operate
(5) Despite subsections (1), (2) and
(3), an enterprise agreement that has ceased to operate does not cover
an employee, employer or employee organisation.
Enterprise agreements cover employees in relation to
particular employment
(6) A reference in this Act to an enterprise
agreement covering an employee is a reference to the agreement covering the
employee in relation to particular employment.
54
When an enterprise agreement is in operation
(1) An enterprise agreement approved by FWA
operates from:
(a) 7 days after the agreement is
approved; or
(b) if a later day is specified in the
agreement—that later day.
(2) An enterprise agreement ceases to operate
on the earlier of the following days:
(a) the day on which a termination of
the agreement comes into operation under section 224 or 227;
(b) the day on which section 58
first has the effect that there is no employee to whom the agreement applies.
Note: Section 58 deals with when an enterprise
agreement ceases to apply to an employee.
(3) An enterprise agreement that has ceased
to operate can never operate again.
Division 3—Interaction between the National Employment Standards, modern
awards and enterprise agreements
Subdivision A—Interaction between the National Employment Standards and a
modern award or an enterprise agreement
55
Interaction between the National Employment Standards and a modern award or
enterprise agreement
National Employment Standards must not be excluded
(1) A modern award or enterprise agreement must
not exclude the National Employment Standards or any provision of the National
Employment Standards.
Terms expressly permitted by Part 2‑2 or
regulations may be included
(2) A modern award or enterprise agreement
may include any terms that the award or agreement is expressly permitted to
include:
(a) by a provision of Part 2‑2
(which deals with the National Employment Standards); or
(b) by regulations made for the
purposes of section 127.
Note: In determining what is permitted to be
included in a modern award or enterprise agreement by a provision referred to
in paragraph (a), any regulations made for the purpose of section 127
that expressly prohibit certain terms must be taken into account.
(3) The National Employment Standards have
effect subject to terms included in a modern award or enterprise agreement as
referred to in subsection (2).
Note: See also the note to section 63 (which
deals with the effect of averaging arrangements).
Ancillary and supplementary terms may be included
(4) A modern award or enterprise agreement
may also include the following kinds of terms:
(a) terms that are ancillary or
incidental to the operation of an entitlement of an employee under the National
Employment Standards;
(b) terms that supplement the National
Employment Standards;
but only to the extent that the effect of those terms is
not detrimental to an employee in any respect, when compared to the National
Employment Standards.
Note 1: Ancillary or incidental terms permitted by
paragraph (a) include (for example) terms:
(a) under which, instead of taking paid annual
leave at the rate of pay required by section 90, an employee may take
twice as much leave at half that rate of pay; or
(b) that specify when payment under section 90
for paid annual leave must be made.
Note 2: Supplementary terms permitted by
paragraph (b) include (for example) terms:
(a) that increase the amount of paid annual leave
to which an employee is entitled beyond the number of weeks that applies under
section 87; or
(b) that provide for an employee to be paid for
taking a period of paid annual leave or paid/personal carer’s leave at a rate
of pay that is higher than the employee’s base rate of pay (which is the rate
required by sections 90 and 99).
Note 3: Terms that would not be permitted by
paragraph (a) or (b) include (for example) terms requiring an employee to
give more notice of the taking of unpaid parental leave than is required by
section 74.
Enterprise agreements may include terms that have the
same effect as provisions of the National Employment Standards
(5) An enterprise agreement may include terms
that have the same (or substantially the same) effect as provisions of the
National Employment Standards, whether or not ancillary or supplementary terms
are included as referred to in subsection (4).
Effect of terms that give an employee the same
entitlement as under the National Employment Standards
(6) To avoid doubt, if a modern award
includes terms permitted by subsection (4), or an enterprise agreement
includes terms permitted by subsection (4) or (5), then, to the extent
that the terms give an employee an entitlement (the award or agreement
entitlement) that is the same as an entitlement (the NES
entitlement) of the employee under the National Employment Standards:
(a) those terms operate in parallel
with the employee’s NES entitlement, but not so as to give the employee a
double benefit; and
(b) the provisions of the National
Employment Standards relating to the NES entitlement apply, as a minimum
standard, to the award or agreement entitlement.
Note: For example, if the award or agreement
entitlement is to 6 weeks of paid annual leave per year, the provisions of the
National Employment Standards relating to the accrual and taking of paid annual
leave will apply, as a minimum standard, to 4 weeks of that leave.
Terms permitted by subsection (4) or (5) do not
contravene subsection (1)
(7) To the extent that a term of a modern
award or enterprise agreement is permitted by subsection (4) or (5), the
term does not contravene subsection (1).
Note: A term of a modern award has no effect to the
extent that it contravenes this section (see section 56). An enterprise
agreement that includes a term that contravenes this section must not be
approved (see section 186) and a term of an enterprise agreement has no
effect to the extent that it contravenes this section (see section 56).
56
Terms of a modern award or enterprise agreement contravening section 55
have no effect
A term of a modern award or enterprise
agreement has no effect to the extent that it contravenes section 55.
Subdivision B—Interaction between modern awards and enterprise agreements
57
Interaction between modern awards and enterprise agreements
(1) A modern award does not apply to an
employee in relation to particular employment at a time when an enterprise
agreement applies to the employee in relation to that employment.
(2) If a modern award does not apply to an
employee in relation to particular employment because of subsection (1),
the award does not apply to an employer, or an employee organisation, in
relation to the employee.
57A
Designated outworker terms of a modern award continue to apply
(1) This section applies if, at a particular
time:
(a) an enterprise agreement applies to
an employer; and
(b) a modern award covers the employer
(whether the modern award covers the employer in the employer’s capacity as an
employer or an outworker entity); and
(c) the modern award includes one or
more designated outworker terms.
(2) Despite section 57, the designated
outworker terms of the modern award apply at that time to the following:
(a) the employer;
(b) each employee who is both:
(i) a person to whom the
enterprise agreement applies; and
(ii) a person who is
covered by the modern award;
(c) each employee organisation that is
covered by the modern award.
(3) To avoid doubt:
(a) designated outworker terms of a
modern award can apply to an employer under subsection (2) even if none of
the employees of the employer is an outworker; and
(b) to the extent to which designated
outworker terms of a modern award apply to an employer, an employee or an
employee organisation because of subsection (2), the modern award applies
to the employer, employee or organisation.
Subdivision C—Interaction between one or more enterprise agreements
58
Only one enterprise agreement can apply to an employee
Only one enterprise agreement can apply to an employee
(1) Only one enterprise agreement can apply
to an employee at a particular time.
General rule—later agreement does not apply until
earlier agreement passes its nominal expiry date
(2) If:
(a) an enterprise agreement (the earlier
agreement) applies to an employee in relation to particular employment;
and
(b) another enterprise agreement (the later
agreement) that covers the employee in relation to the same employment
comes into operation; and
(c) subsection (3) (which deals
with a single‑enterprise agreement replacing a multi‑enterprise agreement) does
not apply;
then:
(d) if the earlier agreement has not
passed its nominal expiry date:
(i) the later agreement
cannot apply to the employee in relation to that employment until the earlier
agreement passes its nominal expiry date; and
(ii) the earlier agreement
ceases to apply to the employee in relation to that employment when the earlier
agreement passes its nominal expiry date, and can never so apply again; or
(e) if the earlier agreement has
passed its nominal expiry date—the earlier agreement ceases to apply to the
employee when the later agreement comes into operation, and can never so apply
again.
Special rule—single‑enterprise agreement replaces multi‑enterprise
agreement
(3) Despite subsection (2), if:
(a) a multi‑enterprise agreement
applies to an employee in relation to particular employment; and
(b) a single‑enterprise agreement that
covers the employee in relation to the same employment comes into operation;
the multi‑enterprise agreement ceases to apply to the
employee in relation to that employment when the single‑enterprise agreement
comes into operation, and can never so apply again.
Part 2‑2—The National Employment Standards
Division 1—Introduction
59
Guide to this Part
This Part contains the National
Employment Standards.
Division 2 identifies the
National Employment Standards, the detail of which is set out in
Divisions 3 to 12.
Division 13 contains
miscellaneous provisions relating to the National Employment Standards.
The National Employment Standards are
minimum standards that apply to the employment of national system
employees. Part 2‑1 (which deals with the core provisions for this
Chapter) contains the obligation for employers to comply with the National
Employment Standards (see section 44).
The National Employment Standards also
underpin what can be included in modern awards and enterprise agreements.
Part 2‑1 provides that the National Employment Standards cannot be
excluded by modern awards or enterprise agreements, and contains other
provisions about the interaction between the National Employment Standards and
modern awards or enterprise agreements (see sections 55 and 56).
Divisions 2 and 3 of Part 6‑3
extend the operation of the parental leave and notice of termination provisions
of the National Employment Standards to employees who are not national system
employees.
60
Meanings of employee and employer
In this Part, employee
means a national system employee, and employer means a national
system employer.
Division 2—The National Employment Standards
61 The
National Employment Standards are minimum standards applying to employment of
employees
(1) This Part sets minimum standards that
apply to the employment of employees which cannot be displaced, even if an
enterprise agreement includes terms of the kind referred to in subsection
55(5).
Note: Subsection 55(5) allows enterprise agreements
to include terms that have the same (or substantially the same) effect as
provisions of the National Employment Standards.
(2) The minimum standards relate to the
following matters:
(a) maximum weekly hours
(Division 3);
(b) requests for flexible working arrangements
(Division 4);
(c) parental leave and related
entitlements (Division 5);
(d) annual leave (Division 6);
(e) personal/carer’s leave and
compassionate leave (Division 7);
(f) community service leave
(Division 8);
(g) long service leave (Division 9);
(h) public holidays
(Division 10);
(i) notice of termination and
redundancy pay (Division 11);
(j) Fair Work Information Statement
(Division 12).
(3) Divisions 3 to 12 constitute
the National Employment Standards.
Division 3—Maximum weekly hours
62
Maximum weekly hours
Maximum weekly hours of work
(1) An employer must not request or require
an employee to work more than the following number of hours in a week unless
the additional hours are reasonable:
(a) for a full‑time employee—38 hours;
or
(b) for an employee who is not a full‑time
employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s
ordinary hours of work in a week.
Employee may refuse to work unreasonable additional
hours
(2) The employee may refuse to work
additional hours (beyond those referred to in paragraph (1)(a) or (b)) if
they are unreasonable.
Determining whether additional hours are reasonable
(3) In determining whether additional hours
are reasonable or unreasonable for the purposes of subsections (1) and
(2), the following must be taken into account:
(a) any risk to employee health and
safety from working the additional hours;
(b) the employee’s personal
circumstances, including family responsibilities;
(c) the needs of the workplace or
enterprise in which the employee is employed;
(d) whether the employee is entitled
to receive overtime payments, penalty rates or other compensation for, or a
level of remuneration that reflects an expectation of, working additional
hours;
(e) any notice given by the employer
of any request or requirement to work the additional hours;
(f) any notice given by the employee
of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the
industry, or the part of an industry, in which the employee works;
(h) the nature of the employee’s role,
and the employee’s level of responsibility;
(i) whether the additional hours are
in accordance with averaging terms included under section 63 in a modern
award or enterprise agreement that applies to the employee, or with an
averaging arrangement agreed to by the employer and employee under
section 64;
(j) any other relevant matter.
Authorised leave or absence treated as hours worked
(4) For the purposes of subsection (1),
the hours an employee works in a week are taken to include any hours of leave,
or absence, whether paid or unpaid, that the employee takes in the week and
that are authorised:
(a) by the employee’s employer; or
(b) by or under a term or condition of
the employee’s employment; or
(c) by or under a law of the
Commonwealth, a State or a Territory, or an instrument in force under such a
law.
63
Modern awards and enterprise agreements may provide for averaging of hours of
work
(1) A modern award or enterprise agreement
may include terms providing for the averaging of hours of work over a specified
period. The average weekly hours over the period must not exceed:
(a) for a full‑time employee—38 hours;
or
(b) for an employee who is not a full‑time
employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s
ordinary hours of work in a week.
(2) The terms of a modern award or enterprise
agreement may provide for average weekly hours that exceed the hours referred
to in paragraph (1)(a) or (b) if the excess hours are reasonable for the
purposes of subsection 62(1).
Note: Hours in excess of the hours referred to in
paragraph (1)(a) or (b) that are worked in a week in accordance with
averaging terms in a modern award or enterprise agreement (whether the terms
comply with subsection (1) or (2)) will be treated as additional hours for
the purposes of section 62. The averaging terms will be relevant in
determining whether the additional hours are reasonable (see paragraph
62(3)(i)).
64
Averaging of hours of work for award/agreement free employees
(1) An employer and an award/agreement free
employee may agree in writing to an averaging arrangement under which hours of
work over a specified period of not more than 26 weeks are averaged. The
average weekly hours over the specified period must not exceed:
(a) for a full‑time employee—38 hours;
or
(b) for an employee who is not a full‑time
employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s
ordinary hours of work in a week.
(2) The agreed averaging arrangement may
provide for average weekly hours that exceed the hours referred to in
paragraph (1)(a) or (b) if the excess hours are reasonable for the
purposes of subsection 62(1).
Note: Hours in excess of the hours referred to in
paragraph (1)(a) or (b) that are worked in a week in accordance with an
agreed averaging arrangement (whether the arrangement complies with
subsection (1) or (2)) will be treated as additional hours for the
purposes of section 62. The averaging arrangement will be relevant in
determining whether the additional hours are reasonable (see paragraph
62(3)(i)).
Division 4—Requests for flexible working arrangements
65
Requests for flexible working arrangements
Employee may request change in working arrangements
(1) An employee who is a parent, or has
responsibility for the care, of a child may request the employer for a change
in working arrangements to assist the employee to care for the child if the
child:
(a) is under school age; or
(b) is under 18 and has a disability.
Note: Examples of changes in working arrangements
include changes in hours of work, changes in patterns of work and changes in
location of work.
(2) The employee is not entitled to make the
request unless:
(a) for an employee other than a
casual employee—the employee has completed at least 12 months of continuous
service with the employer immediately before making the request; or
(b) for a casual employee—the
employee:
(i) is a long term casual
employee of the employer immediately before making the request; and
(ii) has a reasonable
expectation of continuing employment by the employer on a regular and
systematic basis.
Formal requirements
(3) The request must:
(a) be in writing; and
(b) set out details of the change
sought and of the reasons for the change.
Agreeing to the request
(4) The employer must give the employee a
written response to the request within 21 days, stating whether the employer
grants or refuses the request.
(5) The employer may refuse the request only
on reasonable business grounds.
(6) If the employer refuses the request, the
written response under subsection (4) must include details of the reasons
for the refusal.
66
State and Territory laws that are not excluded
This Act is not intended to apply to the
exclusion of laws of a State or Territory that provide employee entitlements in
relation to flexible working arrangements, to the extent that those
entitlements are more beneficial to employees than the entitlements under this
Division.
Division 5—Parental leave and related entitlements
Subdivision A—General
67 General
rule—employee must have completed at least 12 months of service
Employees other than casual employees
(1) An employee, other than a casual
employee, is not entitled to leave under this Division (other than unpaid pre‑adoption
leave) unless the employee has, or will have, completed at least 12
months of continuous service with the employer immediately before the date that
applies under subsection (3).
Casual employees
(2) A casual employee, is not entitled to
leave (other than unpaid pre‑adoption leave) under this Division unless:
(a) the employee is, or will be, a
long term casual employee of the employer immediately before the date that
applies under subsection (3); and
(b) but for:
(i) the birth or expected
birth of the child; or
(ii) the placement or the
expected placement of the child; or
(iii) if the employee is
taking a period of unpaid parental leave that starts under subsection 71(6) or
paragraph 72(3)(b) or 72(4)(b)—the taking of the leave;
the employee would have a
reasonable expectation of continuing employment by the employer on a regular
and systematic basis.
Date at which employee must have completed 12 months of
service
(3) For the purpose of subsections (1)
and (2), the date that applies is:
(a) unless paragraph (b) or (c)
applies:
(i) if the leave is birth‑related
leave—the date of birth, or the expected date of birth, of the child; or
(ii) if the leave is
adoption‑related leave—the day of placement, or the expected day of placement,
of the child; or
(b) for an employee taking a period of
unpaid parental leave that is to start within 12 months after the birth or
placement of the child under subsection 71(6)—the date on which the employee’s
period of leave is to start; or
(c) for a member of an employee couple
taking a period of unpaid parental leave that is to start under paragraph
72(3)(b) or 72(4)(b) after the period of unpaid parental leave of the other
member of the employee couple—the date on which the employee’s period of leave
is to start.
Meaning of birth‑related leave
(4) Birth‑related leave
means leave of either of the following kinds:
(a) unpaid parental leave taken in
association with the birth of a child (see section 70);
(b) unpaid special maternity leave
(see section 80).
Meaning of adoption‑related leave
(5) Adoption‑related
leave means leave of either of the following kinds:
(a) unpaid parental leave taken in
association with the placement of a child for adoption (see section 70);
(b) unpaid pre‑adoption leave (see
section 85).
Meaning of day of placement
(6) The day of placement, in
relation to the adoption of a child by an employee, means the earlier of the
following days:
(a) the day on which the employee
first takes custody of the child for the adoption;
(b) the day on which the employee
starts any travel that is reasonably necessary to take custody of the child for
the adoption.
68
General rule for adoption‑related leave—child must be under 16 etc.
An employee is not entitled to adoption‑related
leave unless the child that is, or is to be, placed with the employee for
adoption:
(a) is, or will be, under 16 as at the
day of placement, or the expected day of placement, of the child; and
(b) has not, or will not have, lived
continuously with the employee for a period of 6 months or more as at the day
of placement, or the expected day of placement, of the child; and
(c) is not (otherwise than because of
the adoption) a child of the employee or the employee’s spouse or
de facto partner.
69
Transfer of employment situations in which employee is entitled to continue on
leave etc.
(1) If:
(a) there is a transfer of employment
in relation to an employee; and
(b) the employee has already started a
period of leave under this Division when his or her employment with the first
employer ends;
the employee is entitled to continue on that leave for the
rest of that period.
(2) If:
(a) there is a transfer of employment
in relation to an employee; and
(b) the employee has, in relation to
the first employer, already taken a step that is required or permitted by a
provision of this Division in relation to taking a period of leave;
the employee is taken to have taken the step in relation
to the second employer.
Note: Steps covered by this subsection include (for
example) giving the first employer notice under subsection 74(1), confirmation
or advice under subsection 74(4) or evidence under subsection 74(5).
Subdivision B—Parental leave
70
Entitlement to unpaid parental leave
An employee is entitled to 12 months of
unpaid parental leave if:
(a) the leave is associated with:
(i) the birth of a child
of the employee or the employee’s spouse or de facto partner; or
(ii) the placement of a
child with the employee for adoption; and
(b) the employee has or will have a
responsibility for the care of the child.
Note 1: Entitlement is also affected by section 67
(which deals with length of the employee’s service) and, for adoption,
section 68 (which deals with the age etc. of the adopted child).
Note 2: The 12 months is reduced by the amount of any
unpaid special maternity leave the employee has taken (see subsection 80(7)).
71 The
period of leave—other than for members of an employee couple who each intend to
take leave
Application of this section
(1) This section applies to an employee who
intends to take unpaid parental leave if:
(a) the employee is not a member of an
employee couple; or
(b) the employee is a member of an
employee couple, but the other member of the couple does not intend to
take unpaid parental leave.
Leave must be taken in single continuous period
(2) The employee must take the leave in a
single continuous period.
Note: An employee may take a form of paid leave at
the same time as he or she is on unpaid parental leave (see section 79).
When birth‑related leave must start
(3) If the leave is birth‑related leave for a
female employee who is pregnant with, or gives birth to, the child, the period
of leave may start up to 6 weeks before the expected date of birth of the
child, but must not start later than the date of birth of the child.
(4) If the leave is birth‑related leave but
subsection (3) does not apply, the period of leave must start on the date
of birth of the child.
When adoption‑related leave must start
(5) If the leave is adoption‑related leave,
the period of leave must start on the day of placement of the child.
Leave may start later for employees whose spouse or
de facto partner is not an employee
(6) Despite subsections (3) to (5), the
period of leave may start at any time within 12 months after the date of birth
or day of placement of the child if:
(a) the employee has a spouse or
de facto partner who is not an employee; and
(b) the spouse or de facto
partner has a responsibility for the care of the child for the period between
the date of birth or day of placement of the child and the start date of the
leave.
Note: An employee whose leave starts under
subsection (6) is still entitled under section 76 to request an
extension of the period of leave beyond his or her available parental leave
period. However, the period of leave may not be extended beyond 24 months after
the date of birth or day of placement of the child (see subsection 76(7)).
72 The
period of leave—members of an employee couple who each intend to take leave
Application of this section
(1) This section applies to an employee
couple if each of the employees intends to take unpaid parental leave.
Leave must be taken in single continuous period
(2) Each employee must take the leave in a
single continuous period.
Note: An employee may take a form of paid leave at
the same time as he or she is on unpaid parental leave (see section 79).
When birth‑related leave must start
(3) If the leave is birth‑related leave:
(a) one employee’s period of leave
must start first, in accordance with the following rules:
(i) if the member of the
employee couple whose period of leave starts first is a female employee who is
pregnant with, or gives birth to, the child—the period of leave may start up to
6 weeks before the expected date of birth of the child, but must not start
later than the date of birth of the child;
(ii) if
subparagraph (i) does not apply—the period of leave must start on the date
of birth of the child; and
(b) the other employee’s period of
leave must start immediately after the end of the first employee’s period of leave
(or that period as extended under section 75 or 76).
When adoption‑related leave must start
(4) If the leave is adoption‑related leave:
(a) one employee’s period of leave
must start on the day of placement of the child; and
(b) the other employee’s period of
leave must start immediately after the end of the first employee’s period of
leave (or that period as extended under section 75 or 76).
Limited entitlement to take concurrent leave
(5) If one of the employees takes a period
(the first employee’s period of leave) of unpaid parental leave
in accordance with paragraph (3)(a) or (4)(a), the other employee may take
a period of unpaid parental leave (the concurrent leave) during
the first employee’s period of leave, if the concurrent leave complies with the
following requirements:
(a) the concurrent leave must be for a
period of 3 weeks or less;
(b) unless the employer agrees as
referred to in paragraph (c), the concurrent leave must not start before,
and must not end more than 3 weeks after:
(i) if the leave is birth‑related
leave—the date of birth of the child; or
(ii) if the leave is
adoption‑related leave—the day of placement of the child;
(c) if the employer agrees, the
concurrent leave may (subject to paragraph (a)):
(i) start earlier than is
permitted by paragraph (b); or
(ii) end up to 3 weeks
later than is permitted by paragraph (b).
(6) Concurrent leave taken by an employee:
(a) is an exception to the rule that
the employee must take his or her leave in a single continuous period (see subsection (2));
and
(b) is an exception to the rules about
when the employee’s period of unpaid parental leave must start (see
subsection (3) or (4)).
Note: The concurrent leave is unpaid parental leave
and so comes out of the employee’s entitlement to 12 months of unpaid parental
leave under section 70.
73
Pregnant employee may be required to take unpaid parental leave within 6 weeks
before the birth
Employer may ask employee to provide a medical
certificate
(1) If a pregnant employee who is entitled to
unpaid parental leave (whether or not she has complied with section 74)
continues to work during the 6 week period before the expected date of birth of
the child, the employer may ask the employee to give the employer a medical
certificate containing the following statements (as applicable):
(a) a statement of whether the
employee is fit for work;
(b) if the employee is fit for work—a
statement of whether it is inadvisable for the employee to continue in her
present position during a stated period because of:
(i) illness, or risks,
arising out of the employee’s pregnancy; or
(ii) hazards connected with
the position.
Note: Personal information given to an employer
under this subsection may be regulated under the Privacy Act 1988.
Employer may require employee to take unpaid parental
leave
(2) The employer may require the employee to
take a period of unpaid parental leave (the period of leave) as
soon as practicable if:
(a) the employee does not give the
employer the requested certificate within 7 days after the request; or
(b) within 7 days after the request,
the employee gives the employer a medical certificate stating that the employee
is not fit for work; or
(c) the following subparagraphs are
satisfied:
(i) within 7 days after
the request, the employee gives the employer a medical certificate stating that
the employee is fit for work, but that it is inadvisable for the employee to
continue in her present position for a stated period for a reason referred to
in subparagraph (1)(b)(i) or (ii);
(ii) section 81 does
not apply to the employee.
Note: If the medical certificate contains a
statement as referred to in subparagraph (c)(i) and section 81
applies to the employee, the employee is entitled under that section to be
transferred to a safe job, or to paid no safe job leave.
When the period of leave must end
(3) The period of leave must not end later
than the earlier of the following:
(a) the end of the pregnancy;
(b) if the employee has given the
employer notice of the taking of a period of leave connected with the birth of
the child (whether it is unpaid parental leave or some other kind of leave)—the
start date of that leave.
Special rules about the period of leave
(4) The period of leave:
(a) is an exception to the rule that
the employee must take her unpaid parental leave in a single continuous period
(see subsection 71(2) or 72(2)); and
(b) is an exception to the rules about
when the employee’s period of unpaid parental leave must start (see subsections
71(3) and (6), or subsection 72(3)).
Note: The period of leave is unpaid parental leave
and so comes out of the employee’s entitlement to 12 months of unpaid parental
leave under section 70.
(5) The employee is not required to comply
with section 74 in relation to the period of leave.
74 Notice
and evidence requirements
Notice
(1) An employee must give his or her employer
written notice of the taking of unpaid parental leave under section 71 or
72 by the employee.
(2) The notice must be given to the employer:
(a) at least 10 weeks before starting
the leave; or
(b) if that is not practicable—as soon
as practicable (which may be a time after the leave has started).
(3) The notice must specify the intended
start and end dates of the leave.
Confirmation or change of intended start and end dates
(4) At least 4 weeks before the intended
start date specified in the notice given under subsection (1), the
employee must:
(a) confirm the intended start and end
dates of the leave; or
(b) advise the employer of any changes
to the intended start and end dates of the leave;
unless it is not practicable to do so.
Evidence
(5) An employee who has given his or her
employer notice of the taking of unpaid parental leave must, if required by the
employer, give the employer evidence that would satisfy a reasonable person:
(a) if the leave is birth‑related
leave—of the date of birth, or the expected date of birth, of the child; or
(b) if the leave is adoption‑related
leave:
(i) of the day of
placement, or the expected day of placement, of the child; and
(ii) that the child is, or
will be, under 16 as at the day of placement, or the expected day of
placement, of the child.
(6) Without limiting subsection (5), an
employer may require the evidence referred to in paragraph (5)(a) to be a
medical certificate.
Compliance
(7) An employee is not entitled to take
unpaid parental leave under section 71 or 72 unless the employee complies
with this section.
Note: Personal information given to an employer
under this section may be regulated under the Privacy Act 1988.
75
Extending period of unpaid parental leave—extending to use more of available
parental leave period
Application of this section
(1) This section applies if:
(a) an employee has, in accordance
with section 74, given notice of the taking of a period of unpaid parental
leave (the original leave period); and
(b) the original leave period is less
than the employee’s available parental leave period; and
(c) the original leave period has
started.
(2) The employee’s available parental
leave period is 12 months, less any periods of the following kinds:
(a) a period of concurrent leave that
the employee has taken in accordance with subsection 72(5);
(b) a period of unpaid parental leave
that the employee has been required to take under subsection 73(2) or 82(2);
(c) a period by which the employee’s
entitlement to unpaid parental leave is reduced under paragraph 76(6)(c);
(d) a period of special maternity
leave that the employee has taken.
First extension by giving notice to employer
(3) The employee may extend the period of
unpaid parental leave by giving his or her employer written notice of the
extension at least 4 weeks before the end date of the original leave
period. The notice must specify the new end date for the leave.
(4) Only one extension is permitted under
subsection (3).
Further extensions by agreement with employer
(5) If the employer agrees, the employee may
further extend the period of unpaid parental leave one or more times.
No entitlement to extension beyond available parental
leave period
(6) The employee is not entitled under this
section to extend the period of unpaid parental leave beyond the employee’s
available parental leave period.
76
Extending period of unpaid parental leave—extending for up to 12 months beyond
available parental leave period
Employee may request further period of leave
(1) An employee who takes unpaid parental
leave for his or her available parental leave period may request his or her
employer to agree to an extension of unpaid parental leave for the employee for
a further period of up to 12 months immediately following the end of the
available parental leave period.
Making the request
(2) The request must be in writing, and must
be given to the employer at least 4 weeks before the end of the available
parental leave period.
Agreeing to the requested extension
(3) The employer must give the employee a
written response to the request stating whether the employer grants or refuses
the request. The response must be given as soon as practicable, and not later
than 21 days, after the request is made.
(4) The employer may refuse the request only
on reasonable business grounds.
(5) If the employer refuses the request, the
written response under subsection (3) must include details of the
reasons for the refusal.
Special rules for employee couples
(6) The following paragraphs apply in
relation to a member of an employee couple extending a period of unpaid
parental leave in relation to a child under this section:
(a) the request must specify any
amount of unpaid parental leave and unpaid special maternity leave that the
other member of the employee couple has taken, or will have taken, in relation
to the child before the extension starts;
(b) the period of the extension cannot
exceed 12 months, less any period of unpaid parental leave or unpaid special
maternity leave that the other member of the employee couple has taken, or will
have taken, in relation to the child before the extension starts;
(c) the amount of unpaid parental
leave to which the other member of the employee couple is entitled under
section 70 in relation to the child is reduced by the period of the
extension.
No extension beyond 24 months after birth or placement
(7) Despite any other provision of this
Division, the employee is not entitled to extend the period of unpaid
parental leave beyond 24 months after the date of birth or day of placement of
the child.
77
Reducing period of unpaid parental leave
If the employer agrees, an employee
whose period of unpaid parental leave has started may reduce the period of
unpaid parental leave he or she takes.
78
Employee who ceases to have responsibility for care of child
(1) This section applies to an employee who
has taken unpaid parental leave in relation to a child if the employee ceases
to have any responsibility for the care of the child.
(2) The employer may give the employee
written notice requiring the employee to return to work on a specified day.
(3) The specified day:
(a) must be at least 4 weeks after the
notice is given to the employee; and
(b) if the leave is birth‑related
leave taken by a female employee who has given birth—must not be earlier than 6
weeks after the date of birth of the child.
(4) The employee’s entitlement to unpaid
parental leave in relation to the child ends immediately before the specified
day.
79
Interaction with paid leave
(1) This Subdivision (except for
subsections (2) and (3)) does not prevent an employee from taking any
other kind of paid leave while he or she is taking unpaid parental leave. If
the employee does so, the taking of that other paid leave does not break the
continuity of the period of unpaid parental leave.
Note: For example, if the employee has paid annual
leave available, he or she may (with the employer’s agreement) take some or all
of that paid annual leave at the same time as the unpaid parental leave.
(2) An employee is not entitled to take paid
personal/carer’s leave or compassionate leave while he or she is taking unpaid
parental leave.
(3) An employee is not entitled to any
payment under Division 8 (which deals with community service leave) in
relation to activities the employee engages in while taking unpaid parental
leave.
Subdivision C—Other entitlements
80
Unpaid special maternity leave
Entitlement to unpaid special maternity leave
(1) A female employee is entitled to a period
of unpaid special maternity leave if she is not fit for work during that period
because:
(a) she has a pregnancy‑related
illness; or
(b) she has been pregnant, and the
pregnancy ends within 28 weeks of the expected date of birth of the child
otherwise than by the birth of a living child.
Note: Entitlement is also affected by
section 67 (which deals with the length of the employee’s service).
Notice and evidence
(2) An employee must give her employer notice
of the taking of unpaid special maternity leave by the employee.
(3) The notice:
(a) must be given to the employer as
soon as practicable (which may be a time after the leave has started); and
(b) must advise the employer of the
period, or expected period, of the leave.
(4) An employee who has given her employer
notice of the taking of unpaid special maternity leave must, if required by the
employer, give the employer evidence that would satisfy a reasonable person
that the leave is taken for a reason specified in subsection (1).
(5) Without limiting subsection (4), an
employer may require the evidence referred to in that subsection to be a
medical certificate.
(6) An employee is not entitled to take
unpaid special maternity leave unless the employee complies with
subsections (2) to (4).
Taking of special maternity leave reduces entitlement
to unpaid parental leave
(7) A female employee’s entitlement to 12
months of unpaid parental leave associated with the birth of a child (see
section 70) is reduced by the amount of any unpaid special maternity leave
taken by the employee while she was pregnant.
Note: Personal information given to an employer
under this section may be regulated under the Privacy Act 1988.
81
Transfer to a safe job
Application of this section
(1) This section applies to a pregnant
employee if:
(a) she is entitled to unpaid parental
leave; and
(b) she has already complied with the
notice and evidence requirements of section 74 for taking unpaid parental
leave; and
(c) she gives her employer evidence
that would satisfy a reasonable person that she is fit for work, but that it is
inadvisable for her to continue in her present position during a stated period
(the risk period) because of:
(i) illness, or risks,
arising out of her pregnancy; or
(ii) hazards connected with
that position.
Note: Personal information given to an employer
under this subsection may be regulated under the Privacy Act 1988.
(2) Without limiting paragraph (1)(c),
an employer may require the evidence referred to in that paragraph to be a
medical certificate.
Employee entitled to appropriate safe job or paid no
safe job leave during risk period
(3) If this section applies to an employee:
(a) if there is an appropriate safe
job available—the employer must transfer the employee to that job for the risk
period, with no other change to the employee’s terms and conditions of
employment; or
(b) if there is no appropriate safe
job available—the employee is entitled to take paid no safe job leave for the
risk period.
(4) An appropriate safe job is
a safe job that has:
(a) the same ordinary hours of work as
the employee’s present position; or
(b) a different number of ordinary
hours agreed to by the employee.
Payment to employee if transferred to appropriate safe
job
(5) Without limiting paragraph (3)(a),
if the employee is transferred to an appropriate safe job for the risk period,
the employer must pay the employee for the safe job at the employee’s full rate
of pay (for the position she was in before the transfer) for the hours that she
works in the risk period.
Payment to employee if on paid no safe job leave
(6) If the employee takes paid no safe job
leave for the risk period, the employer must pay the employee at the employee’s
base rate of pay for the employee’s ordinary hours of work in the risk
period.
Risk period ends if pregnancy ends
(7) If the employee’s pregnancy ends before
the end of the risk period, the risk period ends when the pregnancy ends.
82
Employee on paid no safe job leave may be asked to provide a further medical
certificate
Employer may ask employee to provide a medical
certificate
(1) If an employee is on paid no safe job
leave during the 6 week period before the expected date of birth of the child,
the employer may ask the employee to give the employer a medical certificate
stating whether the employee is fit for work.
Note: Personal information given to an employer
under this subsection may be regulated under the Privacy Act 1988.
Employer may require employee to take unpaid parental
leave
(2) The employer may require the employee to
take a period of unpaid parental leave (the period of leave) as
soon as practicable if:
(a) the employee does not give the
employer the requested certificate within 7 days after the request; or
(b) within 7 days after the request,
the employee gives the employer a certificate stating that the employee is not
fit for work.
Entitlement to paid no safe job leave ends
(3) When the period of leave starts, the
employee’s entitlement to paid no safe job leave ends.
When the period of leave must end etc.
(4) Subsections 73(3), (4) and (5) apply to
the period of leave.
83
Consultation with employee on unpaid parental leave
(1) If:
(a) an employee is on unpaid parental
leave; and
(b) the employee’s employer makes a decision
that will have a significant effect on the status, pay or location of the
employee’s pre‑parental leave position;
the employer must take all reasonable steps to give the
employee information about, and an opportunity to discuss, the effect of the decision
on that position.
(2) The employee’s pre‑parental leave
position is:
(a) unless paragraph (b) applies,
the position the employee held before starting the unpaid parental leave; or
(b) if, before starting the unpaid
parental leave, the employee:
(i) was transferred to a
safe job because of her pregnancy; or
(ii) reduced her working
hours due to her pregnancy;
the position the employee held
immediately before that transfer or reduction.
84
Return to work guarantee
On ending unpaid parental leave, an
employee is entitled to return to:
(a) the employee’s pre‑parental leave
position; or
(b) if that position no longer
exists—an available position for which the employee is qualified and suited
nearest in status and pay to the pre‑parental leave position.
85
Unpaid pre‑adoption leave
Entitlement to unpaid pre‑adoption leave
(1) An employee is entitled to up to 2 days
of unpaid pre‑adoption leave to attend any interviews or examinations required
in order to obtain approval for the employee’s adoption of a child.
Note: Entitlement is also affected by
section 68 (which deals with the age etc. of the adopted child).
(2) However, an employee is not entitled to
take a period of unpaid pre‑adoption leave if:
(a) the employee could instead take
some other form of leave; and
(b) the employer directs the employee
to take that other form of leave.
(3) An employee who is entitled to a period
of unpaid pre‑adoption leave is entitled to take the leave as:
(a) a single continuous period of up
to 2 days; or
(b) any separate periods to which the
employee and the employer agree.
Notice and evidence
(4) An employee must give his or her employer
notice of the taking of unpaid pre‑adoption leave by the employee.
(5) The notice:
(a) must be given to the employer as
soon as practicable (which may be a time after the leave has started); and
(b) must advise the employer of the
period, or expected period, of the leave.
(6) An employee who has given his or her
employer notice of the taking of unpaid pre‑adoption leave must, if required by
the employer, give the employer evidence that would satisfy a reasonable person
that the leave is taken to attend an interview or examination as referred to in
subsection (1).
(7) An employee is not entitled to take
unpaid pre‑adoption leave unless the employee complies with subsections (4) to (6).
Note: Personal information given to an employer
under this section may be regulated under the Privacy Act 1988.
Division 6—Annual leave
86
Division applies to employees other than casual employees
This Division applies to employees,
other than casual employees.
87
Entitlement to annual leave
Amount of leave
(1) For each year of service with his or her
employer, an employee is entitled to:
(a) 4 weeks of paid annual leave; or
(b) 5 weeks of paid annual leave, if:
(i) a modern award applies
to the employee and defines or describes the employee as a shiftworker for the
purposes of the National Employment Standards; or
(ii) an enterprise
agreement applies to the employee and defines or describes the employee as a
shiftworker for the purposes of the National Employment Standards; or
(iii) the employee qualifies
for the shiftworker annual leave entitlement under subsection (3) (this
relates to award/agreement free employees).
Note: Section 196 affects whether FWA may
approve an enterprise agreement covering an employee, if the employee is
covered by a modern award that is in operation and defines or describes the
employee as a shiftworker for the purposes of the National Employment Standards.
Accrual of leave
(2) An employee’s entitlement to paid annual
leave accrues progressively during a year of service according to the
employee’s ordinary hours of work, and accumulates from year to year.
Note: If an employee’s employment ends during what
would otherwise have been a year of service, the employee accrues paid annual
leave up to when the employment ends.
Award/agreement free employees who qualify for the
shiftworker entitlement
(3) An award/agreement free employee
qualifies for the shiftworker annual leave entitlement if:
(a) the employee:
(i) is employed in an
enterprise in which shifts are continuously rostered 24 hours a day for 7 days
a week; and
(ii) is regularly rostered
to work those shifts; and
(iii) regularly works on
Sundays and public holidays; or
(b) the employee is in a class of
employees prescribed by the regulations as shiftworkers for the purposes of the
National Employment Standards.
(4) However, an employee referred to in
subsection (3) does not qualify for the shiftworker annual leave
entitlement if the employee is in a class of employees prescribed by the
regulations as not being qualified for that entitlement.
(5) Without limiting the way in which a class
may be described for the purposes of paragraph (3)(b) or
subsection (4), the class may be described by reference to one or more of
the following:
(a) a particular industry or part of
an industry;
(b) a particular kind of work;
(c) a particular type of employment.
88
Taking paid annual leave
(1) Paid annual leave may be taken for a
period agreed between an employee and his or her employer.
(2) The employer must not unreasonably refuse
to agree to a request by the employee to take paid annual leave.
89
Employee not taken to be on paid annual leave at certain times
Public holidays
(1) If the period during which an employee
takes paid annual leave includes a day or part‑day that is a public holiday in
the place where the employee is based for work purposes, the employee is taken
not to be on paid annual leave on that public holiday.
Other periods of leave
(2) If the period during which an employee
takes paid annual leave includes a period of any other leave (other than unpaid
parental leave) under this Part, or a period of absence from employment under
Division 8 (which deals with community service leave), the employee is
taken not to be on paid annual leave for the period of that other leave or
absence.
90
Payment for annual leave
(1) If, in accordance with this Division, an
employee takes a period of paid annual leave, the employer must pay the
employee at the employee’s base rate of pay for the employee’s ordinary
hours of work in the period.
(2) If, when the employment of an employee
ends, the employee has a period of untaken paid annual leave, the employer must
pay the employee the amount that would have been payable to the employee had
the employee taken that period of leave.
91
Transfer of employment situations that affect entitlement to payment for period
of untaken paid annual leave
Transfer of employment situation in which employer may
decide not to recognise employee’s service with first employer
(1) Subsection 22(5) does not apply (for the
purpose of this Division) to a transfer of employment between non‑associated
entities in relation to an employee, if the second employer decides not to
recognise the employee’s service with the first employer (for the purpose of
this Division).
Employee is not entitled to payment for untaken annual
leave if service with first employer counts as service with second employer
(2) If subsection 22(5) applies (for the
purpose of this Division) to a transfer of employment in relation to an
employee, the employee is not entitled to be paid an amount under subsection
90(2) for a period of untaken paid annual leave.
Note: Subsection 22(5) provides that, generally, if
there is a transfer of employment, service with the first employer counts as
service with the second employer.
92
Paid annual leave must not be cashed out except in accordance with permitted
cashing out terms
Paid annual leave must not be cashed
out, except in accordance with:
(a) cashing out terms included in a
modern award or enterprise agreement under section 93, or
(b) an agreement between an employer
and an award/agreement free employee under subsection 94(1).
93
Modern awards and enterprise agreements may include terms relating to cashing
out and taking paid annual leave
Terms about cashing out paid annual leave
(1) A modern award or enterprise agreement
may include terms providing for the cashing out of paid annual leave by an
employee.
(2) The terms must require that:
(a) paid annual leave must not be
cashed out if the cashing out would result in the employee’s remaining accrued
entitlement to paid annual leave being less than 4 weeks; and
(b) each cashing out of a particular
amount of paid annual leave must be by a separate agreement in writing between
the employer and the employee; and
(c) the employee must be paid at least
the full amount that would have been payable to the employee had the employee
taken the leave that the employee has forgone.
Terms about requirements to take paid annual leave
(3) A modern award or enterprise agreement
may include terms requiring an employee, or allowing for an employee to be
required, to take paid annual leave in particular circumstances, but only if
the requirement is reasonable.
Terms about taking paid annual leave
(4) A modern award or enterprise agreement
may include terms otherwise dealing with the taking of paid annual leave.
94
Cashing out and taking paid annual leave for award/agreement free employees
Agreements to cash out paid annual leave
(1) An employer and an award/agreement free
employee may agree to the employee cashing out a particular amount of the
employee’s accrued paid annual leave.
(2) The employer and the employee must not
agree to the employee cashing out an amount of paid annual leave if the
agreement would result in the employee’s remaining accrued entitlement to paid
annual leave being less than 4 weeks.
(3) Each agreement to cash out a particular
amount of paid annual leave must be a separate agreement in writing.
(4) The employer must pay the employee at
least the full amount that would have been payable to the employee had the
employee taken the leave that the employee has forgone.
Requirements to take paid annual leave
(5) An employer may require an
award/agreement free employee to take a period of paid annual leave, but only
if the requirement is reasonable.
Note: A requirement to take paid annual leave may be
reasonable if, for example:
(a) the employee has accrued an excessive amount of
paid annual leave; or
(b) the employer’s enterprise is being shut down
for a period (for example, between Christmas and New Year).
Agreements about taking paid annual leave
(6) An employer and an award/agreement free
employee may agree on when and how paid annual leave may be taken by the
employee.
Note: Matters that could be agreed include, for
example, the following:
(a) that paid annual leave may be taken in advance
of accrual;
(b) that paid annual leave must be taken within a
fixed period of time after it is accrued;
(c) the form of application for paid annual leave;
(d) that a specified period of notice must be given
before taking paid annual leave.
Division 7—Personal/carer’s leave and compassionate leave
Subdivision A—Paid personal/carer’s leave
95
Subdivision applies to employees other than casual employees
This Subdivision applies to employees,
other than casual employees.
96
Entitlement to paid personal/carer’s leave
Amount of leave
(1) For each year of service with his or her
employer, an employee is entitled to 10 days of paid personal/carer’s leave.
Accrual of leave
(2) An employee’s entitlement to paid
personal/carer’s leave accrues progressively during a year of service according
to the employee’s ordinary hours of work, and accumulates from year to year.
97
Taking paid personal/carer’s leave
An employee may take paid
personal/carer’s leave if the leave is taken:
(a) because the employee is not fit
for work because of a personal illness, or personal injury, affecting the
employee; or
(b) to provide care or support to a
member of the employee’s immediate family, or a member of the employee’s
household, who requires care or support because of:
(i) a personal illness, or
personal injury, affecting the member; or
(ii) an unexpected
emergency affecting the member.
Note: The notice and evidence requirements of
section 107 must be complied with.
98
Employee taken not to be on paid personal/carer’s leave on public holiday
If the period during which an employee
takes paid personal/carer’s leave includes a day or part‑day that is a public
holiday in the place where the employee is based for work purposes, the
employee is taken not to be on paid personal/carer’s leave on that public
holiday.
99
Payment for paid personal/carer’s leave
If, in accordance with this Subdivision,
an employee takes a period of paid personal/carer’s leave, the employer must
pay the employee at the employee’s base rate of pay for the employee’s
ordinary hours of work in the period.
100
Paid personal/carer’s leave must not be cashed out except in accordance with
permitted cashing out terms
Paid personal/carer’s leave must not be
cashed out, except in accordance with cashing out terms included in a modern
award or enterprise agreement under section 101.
101
Modern awards and enterprise agreements may include terms relating to cashing
out paid personal/carer’s leave
(1) A modern award or enterprise agreement
may include terms providing for the cashing out of paid personal/carer’s leave
by an employee.
(2) The terms must require that:
(a) paid personal/carer’s leave must
not be cashed out if the cashing out would result in the employee’s remaining
accrued entitlement to paid personal/carer’s leave being less than 15 days; and
(b) each cashing out of a particular
amount of paid personal/carer’s leave must be by a separate agreement in
writing between the employer and the employee; and
(c) the employee must be paid at least
the full amount that would have been payable to the employee had the employee
taken the leave that the employee has forgone.
Subdivision B—Unpaid carer’s leave
102
Entitlement to unpaid carer’s leave
An employee is entitled to 2 days of
unpaid carer’s leave for each occasion (a permissible occasion)
when a member of the employee’s immediate family, or a member of the employee’s
household, requires care or support because of:
(a) a personal illness, or personal
injury, affecting the member; or
(b) an unexpected emergency affecting
the member.
103
Taking unpaid carer’s leave
(1) An employee may take unpaid carer’s leave
for a particular permissible occasion if the leave is taken to provide care or
support as referred to in section 102.
(2) An employee may take unpaid carer’s leave
for a particular permissible occasion as:
(a) a single continuous period of up
to 2 days; or
(b) any separate periods to which the
employee and his or her employer agree.
(3) An employee cannot take unpaid carer’s
leave during a particular period if the employee could instead take paid
personal/carer’s leave.
Note: The notice and evidence requirements of
section 107 must be complied with.
Subdivision C—Compassionate leave
104
Entitlement to compassionate leave
An employee is entitled to 2 days of
compassionate leave for each occasion (a permissible occasion)
when a member of the employee’s immediate family, or a member of the employee’s
household:
(a) contracts or develops a personal
illness that poses a serious threat to his or her life; or
(b) sustains a personal injury that
poses a serious threat to his or her life; or
(c) dies.
105
Taking compassionate leave
(1) An employee may take compassionate leave
for a particular permissible occasion if the leave is taken:
(a) to spend time with the member of
the employee’s immediate family or household who has contracted or developed
the personal illness, or sustained the personal injury, referred to in
section 104; or
(b) after the death of the member of
the employee’s immediate family or household referred to in section 104.
(2) An employee may take compassionate leave
for a particular permissible occasion as:
(a) a single continuous 2 day period;
or
(b) 2 separate periods of 1 day each;
or
(c) any separate periods to which the
employee and his or her employer agree.
(3) If the permissible occasion is the
contraction or development of a personal illness, or the sustaining of a
personal injury, the employee may take the compassionate leave for that
occasion at any time while the illness or injury persists.
Note: The notice and evidence requirements of
section 107 must be complied with.
106
Payment for compassionate leave (other than for casual employees)
If, in accordance with this Subdivision,
an employee, other than a casual employee, takes a period of compassionate
leave, the employer must pay the employee at the employee’s base rate of pay
for the employee’s ordinary hours of work in the period.
Note: For casual employees, compassionate leave is
unpaid leave.
Subdivision D—Notice and evidence requirements
107
Notice and evidence requirements
Notice
(1) An employee must give his or her employer
notice of the taking of leave under this Division by the employee.
(2) The notice:
(a) must be given to the employer as
soon as practicable (which may be a time after the leave has started); and
(b) must advise the employer of the
period, or expected period, of the leave.
Evidence
(3) An employee who has given his or her
employer notice of the taking of leave under this Division must, if required by
the employer, give the employer evidence that would satisfy a reasonable person
that:
(a) if it is paid personal/carer’s
leave—the leave is taken for a reason specified in section 97; or
(b) if it is unpaid carer’s leave—the
leave is taken for a permissible occasion in circumstances specified in
subsection 103(1); or
(c) if it is compassionate leave—the
leave is taken for a permissible occasion in circumstances specified in
subsection 105(1).
Compliance
(4) An employee is not entitled to take leave
under this Division unless the employee complies with this section.
Modern awards and enterprise agreements may include
evidence requirements
(5) A modern award or enterprise agreement
may include terms relating to the kind of evidence that an employee must
provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s
leave or compassionate leave.
Note: Personal information given to an employer
under this section may be regulated under the Privacy Act 1988.
Division 8—Community service leave
108
Entitlement to be absent from employment for engaging in eligible community
service activity
An employee who engages in an eligible
community service activity is entitled to be absent from his or her employment
for a period if:
(a) the period consists of one or more
of the following:
(i) time when the employee
engages in the activity;
(ii) reasonable travelling
time associated with the activity;
(iii) reasonable rest time
immediately following the activity; and
(b) unless the activity is jury
service—the employee’s absence is reasonable in all the circumstances.
109
Meaning of eligible community service activity
General
(1) Each of the following is an eligible
community service activity:
(a) jury service (including attendance
for jury selection) that is required by or under a law of the Commonwealth, a
State or a Territory; or
(b) a voluntary emergency management
activity (see subsection (2)); or
(c) an activity prescribed in
regulations made for the purpose of subsection (4).
Voluntary emergency management activities
(2) An employee engages in a voluntary
emergency management activity if, and only if:
(a) the employee engages in an
activity that involves dealing with an emergency or natural disaster; and
(b) the employee engages in the
activity on a voluntary basis (whether or not the employee directly or
indirectly takes or agrees to take an honorarium, gratuity or similar payment
wholly or partly for engaging in the activity); and
(c) the employee is a member of, or
has a member‑like association with, a recognised emergency management body; and
(d) either:
(i) the employee was
requested by or on behalf of the body to engage in the activity; or
(ii) no such request was
made, but it would be reasonable to expect that, if the circumstances had
permitted the making of such a request, it is likely that such a request would
have been made.
(3) A recognised emergency management
body is:
(a) a body, or part of a body, that
has a role or function under a plan that:
(i) is for coping with
emergencies and/or disasters; and
(ii) is prepared by the
Commonwealth, a State or a Territory; or
(b) a fire‑fighting, civil defence or
rescue body, or part of such a body; or
(c) any other body, or part of a body,
a substantial purpose of which involves:
(i) securing the safety of
persons or animals in an emergency or natural disaster; or
(ii) protecting property in
an emergency or natural disaster; or
(iii) otherwise responding
to an emergency or natural disaster; or
(d) a body, or part of a body,
prescribed by the regulations;
but does not include a body that was established, or is
continued in existence, for the purpose, or for purposes that include the
purpose, of entitling one or more employees to be absent from their employment
under this Division.
Regulations may prescribe other activities
(4) The regulations may prescribe an activity
that is of a community service nature as an eligible community service
activity.
110
Notice and evidence requirements
Notice
(1) An employee who wants an absence from his
or her employment to be covered by this Division must give his or her employer
notice of the absence.
(2) The notice:
(a) must be given to the employer as
soon as practicable (which may be a time after the absence has started); and
(b) must advise the employer of the
period, or expected period, of the absence.
Evidence
(3) An employee who has given his or her
employer notice of an absence under subsection (1) must, if required by
the employer, give the employer evidence that would satisfy a reasonable person
that the absence is because the employee has been or will be engaging in an
eligible community service activity.
Compliance
(4) An employee’s absence from his or her
employment is not covered by this Division unless the employee complies with
this section.
Note: Personal information given to an employer
under this section may be regulated under the Privacy Act 1988.
111
Payment to employees (other than casuals) on jury service
Application of this section
(1) This section applies if:
(a) in accordance with this Division,
an employee is absent from his or her employment for a period because of jury
service; and
(b) the employee is not a casual
employee.
Employee to be paid base rate of pay
(2) Subject to subsections (3), (4) and
(5), the employer must pay the employee at the employee’s base rate of pay for
the employee’s ordinary hours of work in the period.
Evidence
(3) The employer may require the employee to
give the employer evidence that would satisfy a reasonable person:
(a) that the employee has taken all
necessary steps to obtain any amount of jury service pay to which the employee
is entitled; and
(b) of the total amount (even if it is
a nil amount) of jury service pay that has been paid, or is payable, to the
employee for the period.
Note: Personal information given to an employer
under this subsection may be regulated under the Privacy Act 1988.
(4) If, in accordance with
subsection (3), the employer requires the employee to give the employer
the evidence referred to in that subsection:
(a) the employee is not entitled to
payment under subsection (2) unless the employee provides the evidence;
and
(b) if the employee provides the
evidence—the amount payable to the employee under subsection (2) is
reduced by the total amount of jury service pay that has been paid, or is
payable, to the employee, as disclosed in the evidence.
Payment only required for first 10 days of absence
(5) If an employee is absent because of jury
service in relation to a particular jury service summons for a period, or a
number of periods, of more than 10 days in total:
(a) the employer is only required to
pay the employee for the first 10 days of absence; and
(b) the evidence provided in response
to a requirement under subsection (3) need only relate to the first 10
days of absence; and
(c) the reference in
subsection (4) to the total amount of jury service pay as disclosed in
evidence is a reference to the total amount so disclosed for the first 10 days
of absence.
Meaning of jury service pay
(6) Jury service pay means
an amount paid in relation to jury service under a law of the Commonwealth, a
State or a Territory, other than an amount that is, or that is in the nature
of, an expense‑related allowance.
Meaning of jury service summons
(7) Jury service summons means
a summons or other instruction (however described) that requires a person to
attend for, or perform, jury service.
112
State and Territory laws that are not excluded
(1) This Act is not intended to apply to the
exclusion of laws of a State or Territory that provide employee entitlements in
relation to engaging in eligible community service activities, to the extent
that those entitlements are more beneficial to employees than the entitlements
under this Division.
Note: For example, this Act would not apply to the
exclusion of a State or Territory law providing for a casual employee to be
paid jury service pay.
(2) If the community service activity is an
activity prescribed in regulations made for the purpose of subsection 109(4),
subsection (1) of this section has effect subject to any provision to the
contrary in the regulations.
Division 9—Long service leave
113
Entitlement to long service leave
Entitlement in accordance with applicable award‑derived
long service leave terms
(1) If there are applicable award‑derived
long service leave terms (see subsection (3)) in relation to an employee,
the employee is entitled to long service leave in accordance with those terms.
Note: This Act does not exclude State and Territory
laws that deal with long service leave, except in relation to employees who are
entitled to long service leave under this Division (see paragraph 27(2)(g)),
and except as provided in subsection 113A(3).
(2) However, subsection (1) does not
apply if:
(a) a workplace agreement, or an AWA,
that came into operation before the commencement of this Part applies to the
employee; or
(b) one of the following kinds of
instrument that came into operation before the commencement of this Part
applies to the employee and expressly deals with long service leave:
(i) an enterprise
agreement;
(ii) a preserved State
agreement;
(iii) a workplace
determination;
(iv) a pre‑reform certified
agreement;
(v) a pre‑reform AWA;
(vi) a section 170MX
award;
(vii) an old IR agreement.
Note: If there ceases to be any agreement or
instrument of a kind referred to in paragraph (a) or (b) that applies to
the employee, the employee will, at that time, become entitled under
subsection (1) to long service leave in accordance with applicable award‑derived
long service leave terms.
(3) Applicable award‑derived long
service leave terms, in relation to an employee, are:
(a) terms of an award, or a State
reference transitional award, that (disregarding the effect of any instrument
of a kind referred to in subsection (2)):
(i) would have applied to
the employee at the test time (see subsection (3A)) if the employee had,
at that time, been in his or her current circumstances of employment; and
(ii) would have entitled
the employee to long service leave; and
(b) any terms of the award, or the
State reference transitional award, that are ancillary or incidental to the
terms referred to in paragraph (a).
(3A) For the purpose of
subparagraph (3)(a)(i), the test time is:
(a) immediately before the commencement
of this Part; or
(b) if the employee is a
Division 2B State reference employee (as defined in Schedule 2 to the
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009)—immediately
before the Division 2B referral commencement (as defined in that
Schedule).
Entitlement in accordance with applicable agreement‑derived
long service leave terms
(4) If there are applicable agreement‑derived
long service leave terms (see subsection (5)) in relation to an employee,
the employee is entitled to long service leave in accordance with those terms.
(5) There are applicable agreement‑derived
long service leave terms, in relation to an employee if:
(a) an order under subsection (6)
is in operation in relation to terms of an instrument; and
(b) those terms of the instrument
would have applied to the employee immediately before the commencement of this
Part if the employee had, at that time, been in his or her current
circumstances of employment; and
(c) there are no applicable award‑derived
long service leave terms in relation to the employee.
(6) If FWA is satisfied that:
(a) any of the following instruments
that was in operation immediately before the commencement of this Part
contained terms entitling employees to long service leave:
(i) an enterprise
agreement;
(ii) a collective
agreement;
(iii) a pre‑reform certified
agreement;
(iv) an old IR agreement;
and
(b) those terms constituted a long
service leave scheme that was applying in more than one State or Territory; and
(c) the scheme, considered on an
overall basis, is no less beneficial to the employees than the long service
leave entitlements that would otherwise apply in relation to the employees
under State and Territory laws;
FWA may, on application by, or on behalf of, a person to
whom the instrument applies, make an order that those terms of the instrument
(and any terms that are ancillary or incidental to those terms) are applicable
agreement‑derived long service leave terms.
References to instruments
(7) References in this section to a kind of
instrument (other than an enterprise agreement) are references to a
transitional instrument of that kind, as continued in existence by
Schedule 3 to the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009.
113A
Enterprise agreements may contain terms discounting service under prior
agreements etc. in certain circumstances
(1) This section applies if:
(a) an instrument (the first
instrument) of one of the following kinds that came into operation
before the commencement of this Part applies to an employee on or after the
commencement of this Part:
(i) an enterprise
agreement;
(ii) a workplace agreement;
(iii) a workplace
determination;
(iv) a preserved State
agreement;
(v) an AWA;
(vi) a pre‑reform certified
agreement;
(vii) a pre‑reform AWA;
(viii) an old IR agreement;
(ix) a section 170MX
award; and
(b) the instrument states that the
employee is not entitled to long service leave; and
(c) the instrument ceases, for
whatever reason, to apply to the employee; and
(d) immediately after the first
instrument ceases to apply, an enterprise agreement (the replacement
agreement) starts to apply to the employee.
(2) The replacement agreement may
include terms to the effect that an employee’s service with the employer during
a specified period (the excluded period) (being some or all of
the period when the first instrument applied to the employee) does not count as
service for the purpose of determining whether the employee is qualified for
long service leave, or the amount of long service leave to which the employee
is entitled, under this Division or under a law of a State or Territory.
(3) If the replacement agreement includes
terms as permitted by subsection (2), the excluded period does not count,
and never again counts, as service for the purpose of determining whether the
employee is qualified for long service leave, or the amount of long service
leave to which the employee is entitled, under this Division or under a law of
a State or Territory, unless a later agreement provides otherwise. This
subsection has effect despite sections 27 and 29.
(4) References in this section to a kind of
instrument (other than an enterprise agreement) are references to a
transitional instrument of that kind, as continued in existence by
Schedule 3 to the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009.
Division 10—Public holidays
114
Entitlement to be absent from employment on public holiday
Employee entitled to be absent on public holiday
(1) An employee is entitled to be absent from
his or her employment on a day or part‑day that is a public holiday in the
place where the employee is based for work purposes.
Reasonable requests to work on public holidays
(2) However, an employer may request an employee
to work on a public holiday if the request is reasonable.
(3) If an employer requests an employee to
work on a public holiday, the employee may refuse the request if:
(a) the request is not reasonable; or
(b) the refusal is reasonable.
(4) In determining whether a request, or a
refusal of a request, to work on a public holiday is reasonable, the
following must be taken into account:
(a) the nature of the employer’s
workplace or enterprise (including its operational requirements), and the
nature of the work performed by the employee;
(b) the employee’s personal
circumstances, including family responsibilities;
(c) whether the employee could
reasonably expect that the employer might request work on the public holiday;
(d) whether the employee is entitled
to receive overtime payments, penalty rates or other compensation for, or a
level of remuneration that reflects an expectation of, work on the public
holiday;
(e) the type of employment of the
employee (for example, whether full‑time, part‑time, casual or shiftwork);
(f) the amount of notice in advance
of the public holiday given by the employer when making the request;
(g) in relation to the refusal of a
request—the amount of notice in advance of the public holiday given by the
employee when refusing the request;
(h) any other relevant matter.
115
Meaning of public holiday
The public holidays
(1) The following are public holidays:
(a) each of these days:
(i) 1 January (New
Year’s Day);
(ii) 26 January
(Australia Day);
(iii) Good Friday;
(iv) Easter Monday;
(v) 25 April (Anzac
Day);
(vi) the Queen’s birthday
holiday (on the day on which it is celebrated in a State or Territory or a
region of a State or Territory);
(vii) 25 December
(Christmas Day);
(viii) 26 December
(Boxing Day);
(b) any other day, or part‑day,
declared or prescribed by or under a law of a State or Territory to be observed
generally within the State or Territory, or a region of the State or Territory,
as a public holiday, other than a day or part‑day, or a kind of day or part‑day,
that is excluded by the regulations from counting as a public holiday.
Substituted public holidays under State or Territory
laws
(2) If, under (or in accordance with a
procedure under) a law of a State or Territory, a day or part‑day is substituted
for a day or part‑day that would otherwise be a public holiday because of
subsection (1), then the substituted day or part‑day is the public
holiday.
Substituted public holidays under modern awards and
enterprise agreements
(3) A modern award or enterprise agreement
may include terms providing for an employer and employee to agree on the
substitution of a day or part‑day for a day or part‑day that would otherwise be
a public holiday because of subsection (1) or (2).
Substituted public holidays for award/agreement free
employees
(4) An employer and an award/agreement free
employee may agree on the substitution of a day or part‑day for a day or part‑day
that would otherwise be a public holiday because of subsection (1) or (2).
Note: This Act does not exclude State and Territory
laws that deal with the declaration, prescription or substitution of public
holidays, but it does exclude State and Territory laws that relate to the
rights and obligations of an employee or employer in relation to public holidays
(see paragraph 27(2)(j)).
116
Payment for absence on public holiday
If, in accordance with this Division, an
employee is absent from his or her employment on a day or part‑day that is a
public holiday, the employer must pay the employee at the employee’s base rate
of pay for the employee’s ordinary hours of work on the day or part‑day.
Note: If the employee does not have ordinary hours
of work on the public holiday, the employee is not entitled to payment under
this section. For example, the employee is not entitled to payment if the
employee is a casual employee who is not rostered on for the public holiday, or
is a part‑time employee whose part‑time hours do not include the day of the
week on which the public holiday occurs.
Division 11—Notice of termination and redundancy pay
Subdivision A—Notice of termination or payment in lieu of notice
117
Requirement for notice of termination or payment in lieu
Notice specifying day of termination
(1) An employer must not terminate an
employee’s employment unless the employer has given the employee written notice
of the day of the termination (which cannot be before the day the notice is
given).
Note 1: Section 123 describes situations in which
this section does not apply.
Note 2: Sections 28A and 29 of the Acts
Interpretation Act 1901 provide how a notice may be given. In particular,
the notice may be given to an employee by:
(a) delivering it personally; or
(b) leaving it at the employee’s last known
address; or
(c) sending it by pre‑paid post to the employee’s
last known address.
Amount of notice or payment in lieu of notice
(2) The employer must not terminate the
employee’s employment unless:
(a) the time between giving the notice
and the day of the termination is at least the period (the minimum period
of notice) worked out under subsection (3); or
(b) the employer has paid to the
employee (or to another person on the employee’s behalf) payment in lieu of
notice of at least the amount the employer would have been liable to pay to the
employee (or to another person on the employee’s behalf) at the full rate of
pay for the hours the employee would have worked had the employment continued
until the end of the minimum period of notice.
(3) Work out the minimum period of notice as
follows:
(a) first, work out the period using
the following table:
|
Period
|
|
|
Employee’s period of
continuous service with the employer at the end of the day the notice is
given
|
Period
|
|
1
|
Not more than 1 year
|
1 week
|
|
2
|
More than 1 year but not more than 3 years
|
2 weeks
|
|
3
|
More than 3 years but not more than 5 years
|
3 weeks
|
|
4
|
More than 5 years
|
4 weeks
|
(b) then increase the period by 1 week
if the employee is over 45 years old and has completed at least 2 years of
continuous service with the employer at the end of the day the notice is given.
118
Modern awards and enterprise agreements may provide for notice of termination
by employees
A modern award or enterprise agreement
may include terms specifying the period of notice an employee must give in
order to terminate his or her employment.
Subdivision B—Redundancy pay
119
Redundancy pay
Entitlement to redundancy pay
(1) An employee is entitled to be paid
redundancy pay by the employer if the employee’s employment is terminated:
(a) at the employer’s initiative
because the employer no longer requires the job done by the employee to be done
by anyone, except where this is due to the ordinary and customary turnover of
labour; or
(b) because of the insolvency or
bankruptcy of the employer.
Note: Sections 121, 122 and 123 describe situations
in which the employee does not have this entitlement.
Amount of redundancy pay
(2) The amount of the redundancy pay equals
the total amount payable to the employee for the redundancy pay period worked
out using the following table at the employee’s base rate of pay for his or her
ordinary hours of work:
|
Redundancy pay period
|
|
|
Employee’s period of
continuous service with the employer on termination
|
Redundancy pay period
|
|
1
|
At least 1 year but less than 2 years
|
4 weeks
|
|
2
|
At least 2 years but less than 3 years
|
6 weeks
|
|
3
|
At least 3 years but less than 4 years
|
7 weeks
|
|
4
|
At least 4 years but less than 5 years
|
8 weeks
|
|
5
|
At least 5 years but less than 6 years
|
10 weeks
|
|
6
|
At least 6 years but less than 7 years
|
11 weeks
|
|
7
|
At least 7 years but less than 8 years
|
13 weeks
|
|
8
|
At least 8 years but less than 9 years
|
14 weeks
|
|
9
|
At least 9 years but less than 10 years
|
16 weeks
|
|
10
|
At least 10 years
|
12 weeks
|
120
Variation of redundancy pay for other employment or incapacity to pay
(1) This section applies if:
(a) an employee is entitled to be paid
an amount of redundancy pay by the employer because of section 119; and
(b) the employer:
(i) obtains other
acceptable employment for the employee; or
(ii) cannot pay the amount.
(2) On application by the employer, FWA may
determine that the amount of redundancy pay is reduced to a specified amount
(which may be nil) that FWA considers appropriate.
(3) The amount of redundancy pay to which the
employee is entitled under section 119 is the reduced amount specified in
the determination.
121
Exclusions from obligation to pay redundancy pay
(1) Section 119 does not apply to the
termination of an employee’s employment if, immediately before the time of the
termination, or at the time when the person was given notice of the termination
as described in subsection 117(1) (whichever happened first):
(a) the employee’s period of
continuous service with the employer is less than 12 months; or
(b) the employer is a small business
employer.
(2) A modern award may include a term
specifying other situations in which section 119 does not apply to the
termination of an employee’s employment.
(3) If a modern award that is in operation
includes such a term (the award term), an enterprise agreement
may:
(a) incorporate the award term by
reference (and as in force from time to time) into the enterprise agreement;
and
(b) provide that the incorporated term
covers some or all of the employees who are also covered by the award term.
122
Transfer of employment situations that affect the obligation to pay redundancy
pay
Transfer of employment situation in which employer may
decide not to recognise employee’s service with first employer
(1) Subsection 22(5) does not apply (for the
purpose of this Subdivision) to a transfer of employment between non‑associated
entities in relation to an employee if the second employer decides not to
recognise the employee’s service with the first employer (for the purpose of
this Subdivision).
Employee is not entitled to redundancy pay if service
with first employer counts as service with second employer
(2) If subsection 22(5) applies (for the
purpose of this Subdivision) to a transfer of employment in relation to an
employee, the employee is not entitled to redundancy pay under section 119
in relation to the termination of his or her employment with the first
employer.
Note: Subsection 22(5) provides that, generally, if
there is a transfer of employment, service with the first employer counts as
service with the second employer.
Employee not entitled to redundancy pay if refuses
employment in certain circumstances
(3) An employee is not entitled to redundancy
pay under section 119 in relation to the termination of his or her
employment with an employer (the first employer) if:
(a) the employee rejects an offer of
employment made by another employer (the second employer) that:
(i) is on terms and
conditions substantially similar to, and, considered on an overall basis, no
less favourable than, the employee’s terms and conditions of employment with the
first employer immediately before the termination; and
(ii) recognises the
employee’s service with the first employer, for the purpose of this
Subdivision; and
(b) had the employee accepted the
offer, there would have been a transfer of employment in relation to the
employee.
(4) If FWA is satisfied that
subsection (3) operates unfairly to the employee, FWA may order the first
employer to pay the employee a specified amount of redundancy pay (not
exceeding the amount that would be payable but for subsection (3)) that
FWA considers appropriate. The first employer must pay the employee that amount
of redundancy pay.
Subdivision C—Limits on scope of this Division
123
Limits on scope of this Division
Employees not covered by this Division
(1) This Division does not apply to any of
the following employees:
(a) an employee employed for a
specified period of time, for a specified task, or for the duration of a
specified season;
(b) an employee whose employment is
terminated because of serious misconduct;
(c) a casual employee;
(d) an employee (other than an
apprentice) to whom a training arrangement applies and whose employment is for
a specified period of time or is, for any reason, limited to the duration of
the training arrangement;
(e) an employee prescribed by the
regulations as an employee to whom this Division does not apply.
(2) Paragraph (1)(a) does not prevent
this Division from applying to an employee if a substantial reason for
employing the employee as described in that paragraph was to avoid the
application of this Division.
Other employees not covered by notice of termination
provisions
(3) Subdivision A does not apply to:
(b) a daily hire employee working in
the building and construction industry (including working in connection with
the erection, repair, renovation, maintenance, ornamentation or demolition of
buildings or structures); or
(c) a daily hire employee working in
the meat industry in connection with the slaughter of livestock; or
(d) a weekly hire employee working in
connection with the meat industry and whose termination of employment is
determined solely by seasonal factors; or
(e) an employee prescribed by the
regulations as an employee to whom that Subdivision does not apply.
Other employees not covered by redundancy pay provisions
(4) Subdivision B does not apply to:
(a) an employee who is an apprentice;
or
(b) an employee to whom an industry‑specific
redundancy scheme in a modern award applies; or
(c) an employee to whom a redundancy
scheme in an enterprise agreement applies if:
(i) the scheme is an
industry‑specific redundancy scheme that is incorporated by reference (and as
in force from time to time) into the enterprise agreement from a modern award
that is in operation; and
(ii) the employee is
covered by the industry‑specific redundancy scheme in the modern award; or
(d) an employee prescribed by the
regulations as an employee to whom that Subdivision does not apply.
Division 12—Fair Work Information Statement
124
Fair Work Ombudsman to prepare and publish Fair Work Information Statement
(1) The Fair Work Ombudsman must prepare a Fair
Work Information Statement. The Fair Work Ombudsman must publish the
Statement in the Gazette.
Note: If the Fair Work Ombudsman changes the
Statement, the Fair Work Ombudsman must publish the new version of the
Statement in the Gazette.
(2) The Statement must contain information
about the following:
(a) the National Employment Standards;
(b) modern awards;
(c) agreement‑making under this Act;
(d) the right to freedom of association;
(e) the role of FWA and the Fair Work
Ombudsman;
(f) termination of employment;
(g) individual flexibility
arrangements;
(h) right of entry (including the
protection of personal information by privacy laws).
(3) The Fair Work Information Statement is
not a legislative instrument.
(4) The regulations may prescribe other
matters relating to the content or form of the Statement, or the manner in
which employers may give the Statement to employees.
125
Giving new employees the Fair Work Information Statement
(1) An employer must give each employee the
Fair Work Information Statement before, or as soon as practicable after, the
employee starts employment.
(2) Subsection (1) does not require the
employer to give the employee the Statement more than once in any 12 months.
Note: This is relevant if the employer employs the
employee more than once in the 12 months.
Division 13—Miscellaneous
126
Modern awards and enterprise agreements may provide for school‑based
apprentices and trainees to be paid loadings in lieu
A modern award or enterprise agreement
may provide for school‑based apprentices or school‑based trainees to be paid
loadings in lieu of any of the following:
(a) paid annual leave;
(b) paid personal/carer’s leave;
(c) paid absence under
Division 10 (which deals with public holidays).
Note: Section 199 affects whether FWA may
approve an enterprise agreement covering an employee who is a school‑based
apprentice or school‑based trainee, if the employee is covered by a modern
award that is in operation and provides for the employee to be paid loadings in
lieu of paid annual leave, paid personal/carer’s leave or paid absence under
Division 10.
127
Regulations about what modern awards and enterprise agreements can do
The regulations may:
(a) permit modern awards or enterprise
agreements or both to include terms that would or might otherwise be contrary
to this Part or section 55 (which deals with the interaction between the
National Employment Standards and a modern award or enterprise agreement); or
(b) prohibit modern awards or
enterprise agreements or both from including terms that would or might
otherwise be permitted by a provision of this Part or section 55.
128
Relationship between National Employment Standards and agreements etc.
permitted by this Part for award/agreement free employees
The National Employment Standards have
effect subject to:
(a) an agreement between an employer
and an award/agreement free employee or a requirement made by an employer of an
award/agreement free employee, that is expressly permitted by a provision of
this Part; or
(b) an agreement between an employer
and an award/agreement free employee that is expressly permitted by regulations
made for the purpose of section 129.
Note 1: In determining what matters are permitted to be
agreed or required under paragraph (a), any regulations made for the
purpose of section 129 that expressly prohibit certain agreements or
requirements must be taken into account.
Note 2: See also the note to section 64 (which deals
with the effect of averaging arrangements).
129
Regulations about what can be agreed to etc. in relation to award/agreement
free employees
The regulations may:
(a) permit employers, and
award/agreement free employees, to agree on matters that would or might
otherwise be contrary to this Part; or
(b) prohibit employers and
award/agreement free employees from agreeing on matters, or prohibit employers
from making requirements of such employees, that would or might otherwise be
permitted by a provision of this Part.
130
Restriction on taking or accruing leave or absence while receiving workers’
compensation
(1) An employee is not entitled to take or
accrue any leave or absence (whether paid or unpaid) under this Part during a
period (a compensation period) when the employee is absent from
work because of a personal illness, or a personal injury, for which the
employee is receiving compensation payable under a law (a compensation
law) of the Commonwealth, a State or a Territory that is about workers’
compensation.
(2) Subsection (1) does not prevent an
employee from taking or accruing leave during a compensation period if the
taking or accruing of the leave is permitted by a compensation law.
(3) Subsection (1) does not prevent an
employee from taking unpaid parental leave during a compensation period.
131
Relationship with other Commonwealth laws
This Part establishes minimum standards
and so is intended to supplement, and not to override, entitlements under other
laws of the Commonwealth.
Part 2‑3—Modern awards
Division 1—Introduction
132
Guide to this Part
This Part provides for FWA to make,
vary and revoke modern awards. Modern awards may set minimum terms and
conditions for national system employees in particular industries or
occupations. Modern awards can have terms that are ancillary or supplementary
to the National Employment Standards (see Part 2‑1).
Division 2 provides for the
modern awards objective. This requires FWA to ensure that modern awards,
together with the National Employment Standards, provide a fair and relevant
minimum safety net of terms and conditions, taking into account certain social
and economic factors. Division 2 also contains special provisions about
modern award minimum wages.
Division 3 deals with the terms
of modern awards.
Division 4 provides for FWA to
conduct 4 yearly reviews of modern awards.
Division 5 provides for FWA to
exercise modern award powers outside the system of 4 yearly reviews in certain
circumstances.
Division 6 contains some general
provisions relating to modern award powers.
Division 7 contains additional
provisions relating to modern enterprise awards.
Division 8 contains additional
provisions relating to State reference public sector modern awards.
The obligation to comply with a modern
award is in section 45 (in Part 2‑1).
In relation to
minimum wages in modern awards, FWA has powers both under this Part and under
Part 2‑6 (which deals with minimum wages). The following is a summary of
FWA’s powers under the 2 Parts:
(a) the initial making of a
modern award setting modern award minimum wages can only occur under this Part;
(b) the main power to vary
modern award minimum wages is in annual wage reviews under Part 2‑6;
(c) modern award minimum wages
can also be varied under this Part, but only for work value reasons or in other
limited circumstances;
(d) modern award minimum wages
can be set (otherwise than in the initial making of a modern award) or revoked
either under this Part or in annual wage reviews under Part 2‑6.
133
Meanings of employee and employer
In this Part, employee
means a national system employee, and employer means a national
system employer.
Division 2—Overarching provisions
134
The modern awards objective
What is the modern awards objective?
(1) FWA must ensure that modern awards,
together with the National Employment Standards, provide a fair and relevant
minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the
needs of the low paid; and
(b) the need to encourage collective bargaining;
and
(c) the need to promote social
inclusion through increased workforce participation; and
(d) the need to promote flexible
modern work practices and the efficient and productive performance of work; and
(e) the principle of equal remuneration
for work of equal or comparable value; and
(f) the likely impact of any exercise
of modern award powers on business, including on productivity, employment costs
and the regulatory burden; and
(g) the need to ensure a simple, easy
to understand, stable and sustainable modern award system for Australia that
avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise
of modern award powers on employment growth, inflation and the sustainability,
performance and competitiveness of the national economy.
This is the modern awards objective.
When does the modern awards objective apply?
(2) The modern awards objective applies to
the performance or exercise of FWA’s modern award powers, which
are:
(a) FWA’s functions or powers under
this Part; and
(b) FWA’s functions or powers under
Part 2‑6, so far as they relate to modern award minimum wages.
Note: FWA must also take into account the objects of
this Act and any other applicable provisions. For example, if FWA is setting,
varying or revoking modern award minimum wages, the minimum wages objective
also applies (see section 284).
135
Special provisions relating to modern award minimum wages
(1) Modern award minimum wages cannot be
varied under this Part except as follows:
(a) modern award minimum wages can be
varied if FWA is satisfied that the variation is justified by work value
reasons (see subsections 156(3) and 157(2));
(b) modern award minimum wages can be
varied under section 160 (which deals with variation to remove ambiguities
or correct errors) or section 161 (which deals with variation on referral
by the Australian Human Rights Commission).
Note 1: The main power to vary modern award minimum
wages is in annual wage reviews under Part 2‑6. Modern award minimum wages
can also be set or revoked in annual wage reviews.
Note 2: For the meanings of modern award minimum
wages, and setting and varying such wages,
see section 284.
(2) In exercising its powers under this Part
to set, vary or revoke modern award minimum wages, FWA must take into account
the rate of the national minimum wage as currently set in a national minimum
wage order.
Division 3—Terms of modern awards
Subdivision A—Preliminary
136
What can be included in modern awards
Terms that may or must be included
(1) A modern award must only include terms
that are permitted or required by:
(a) Subdivision B (which deals with
terms that may be included in modern awards); or
(b) Subdivision C (which deals with
terms that must be included in modern awards); or
(c) section 55 (which deals with
interaction between the National Employment Standards and a modern award or
enterprise agreement); or
(d) Part 2‑2 (which deals with
the National Employment Standards).
Note 1: Subsection 55(4) permits inclusion of terms
that are ancillary or incidental to, or that supplement, the National
Employment Standards.
Note 2: Part 2‑2 includes a number of provisions
permitting inclusion of terms about particular matters.
Terms that must not be included
(2) A modern award must not include terms
that contravene:
(a) Subdivision D (which deals with
terms that must not be included in modern awards); or
(b) section 55 (which deals with
the interaction between the National Employment Standards and a modern award or
enterprise agreement).
Note: The provisions referred to in
subsection (2) limit the terms that can be included in modern awards under
the provisions referred to in subsection (1).
137
Terms that contravene section 136 have no effect
A term of a modern award has no effect
to the extent that it contravenes section 136.
138
Achieving the modern awards objective
A modern award may include terms that it
is permitted to include, and must include terms that it is required to include,
only to the extent necessary to achieve the modern awards objective and (to the
extent applicable) the minimum wages objective.
Subdivision B—Terms that may be included in modern awards
139
Terms that may be included in modern awards—general
(1) A modern award may include terms about
any of the following matters:
(a) minimum wages (including wage
rates for junior employees, employees with a disability and employees to whom
training arrangements apply), and:
(i) skill‑based
classifications and career structures; and
(ii) incentive‑based
payments, piece rates and bonuses;
(b) type of employment, such as full‑time
employment, casual employment, regular part‑time employment and shift work, and
the facilitation of flexible working arrangements, particularly for employees
with family responsibilities;
(c) arrangements for when work is
performed, including hours of work, rostering, notice periods, rest breaks and
variations to working hours;
(d) overtime rates;
(e) penalty rates, including for any
of the following:
(i) employees working
unsocial, irregular or unpredictable hours;
(ii) employees working on
weekends or public holidays;
(iii) shift workers;
(f) annualised wage arrangements
that:
(i) have regard to the
patterns of work in an occupation, industry or enterprise; and
(ii) provide an alternative
to the separate payment of wages and other monetary entitlements; and
(iii) include appropriate
safeguards to ensure that individual employees are not disadvantaged;
(g) allowances, including for any of
the following:
(i) expenses incurred in
the course of employment;
(ii) responsibilities or
skills that are not taken into account in rates of pay;
(iii) disabilities
associated with the performance of particular tasks or work in particular
conditions or locations;
(h) leave, leave loadings and arrangements
for taking leave;
(i) superannuation;
(j) procedures for consultation,
representation and dispute settlement.
(2) Any allowance included in a modern award
must be separately and clearly identified in the award.
140
Outworker terms
(1) A modern award may include either or both
of the following:
(a) terms relating to the conditions
under which an employer may employ employees who are outworkers;
(b) terms relating to the conditions
under which an outworker entity may arrange for work to be performed for the
entity (either directly or indirectly), if the work is of a kind that is often
performed by outworkers.
Note: A person who is an employer may also be an
outworker entity (see the definition of outworker entity in
section 12).
(2) Without limiting subsection (1),
terms referred to in that subsection may include terms relating to the pay or
conditions of outworkers.
(3) The following terms of a modern award are
outworker terms:
(a) terms referred to in
subsection (1);
(b) terms that are incidental to terms
referred to in subsection (1), included in the modern award under
subsection 142(1);
(c) machinery terms in relation to
terms referred to in subsection (1), included in the modern award under
subsection 142(2).
141
Industry‑specific redundancy schemes
When can a modern award include an industry‑specific
redundancy scheme?
(1) A modern award may include an industry‑specific
redundancy scheme if the scheme was included in the award:
(a) in the award modernisation
process; or
(b) in accordance with
subsection (2).
Note: An employee to whom an industry‑specific
redundancy scheme in a modern award applies is not entitled to the redundancy
entitlements in Subdivision B of Division 11 of Part 2‑2.
Coverage of industry‑specific redundancy schemes must
not be extended
(2) If:
(a) a modern award includes an
industry‑specific redundancy scheme; and
(b) FWA is making or varying another
modern award under Division 4 or 5 so that it (rather than the modern
award referred to in paragraph (a)) will cover some or all of the classes
of employees who are covered by the scheme;
FWA may include the scheme in that other modern award.
However, FWA must not extend the coverage of the scheme to classes of employees
that it did not previously cover.
Varying industry‑specific redundancy schemes
(3) FWA may only vary an industry‑specific
redundancy scheme in a modern award under Division 4 or 5:
(a) by varying the amount of any
redundancy payment in the scheme; or
(b) in accordance with a provision of
Subdivision B of Division 5 (which deals with varying modern awards in
some limited situations).
(4) In varying an industry‑specific
redundancy scheme as referred to in subsection (3), FWA:
(a) must not extend the coverage of
the scheme to classes of employees that it did not previously cover; and
(b) must retain the industry‑specific
character of the scheme.
Omitting industry‑specific redundancy schemes
(5) FWA may vary a modern award under
Division 4 or 5 by omitting an industry‑specific redundancy scheme from the
award.
142
Incidental and machinery terms
Incidental terms
(1) A modern award may include terms that
are:
(a) incidental to a term that is
permitted or required to be in the modern award; and
(b) essential for the purpose of
making a particular term operate in a practical way.
Machinery terms
(2) A modern award may include machinery
terms, including formal matters (such as a title, date or table of contents).
Subdivision C—Terms that must be included in modern awards
143
Coverage terms of modern awards other than modern enterprise awards and State
reference public sector modern awards
Coverage terms must be included
(1) A modern award must include terms (coverage
terms) setting out the employers, employees, organisations and
outworker entities that are covered by the award, in accordance with this
section.
Employers and employees
(2) A modern award must be expressed to
cover:
(a) specified employers; and
(b) specified employees of employers
covered by the modern award.
Organisations
(3) A modern award may be expressed to cover
one or more specified organisations, in relation to all or specified employees
or employers that are covered by the award.
Outworker entities
(4) A modern award may be expressed to cover,
but only in relation to outworker terms included in the award, specified
outworker entities.
How coverage is expressed
(5) For the purposes of subsections (2)
to (4):
(a) employers may be specified by name
or by inclusion in a specified class or specified classes; and
(b) employees must be specified by
inclusion in a specified class or specified classes; and
(c) organisations must be specified by
name; and
(d) outworker entities may be
specified by name or by inclusion in a specified class or specified classes.
(6) Without limiting the way in which a class
may be described for the purposes of subsection (5), the class may be
described by reference to a particular industry or part of an industry, or
particular kinds of work.
Employees not traditionally covered by awards etc.
(7) A modern award must not be expressed to
cover classes of employees:
(a) who, because of the nature or
seniority of their role, have traditionally not been covered by awards (whether
made under laws of the Commonwealth or the States); or
(b) who perform work that is not of a
similar nature to work that has traditionally been regulated by such awards.
Note: For example, in some industries, managerial
employees have traditionally not been covered by awards.
Modern enterprise awards
(8) A modern award (other than a modern
enterprise award) must be expressed not to cover employees who are covered by a
modern enterprise award, or an enterprise instrument (within the meaning of the
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009),
or employers in relation to those employees.
(9) This section does not apply to modern
enterprise awards.
State reference public sector modern awards
(10) A modern award (other than a State
reference public sector modern award) must be expressed not to cover employees
who are covered by a State reference public sector modern award, or a State
reference public sector transitional award (within the meaning of the Fair
Work (Transitional Provisions and Consequential Amendments) Act 2009), or
employers in relation to those employees.
(11) This section does not apply to State
reference public sector modern awards.
143A
Coverage terms of modern enterprise awards
Coverage terms must be included
(1) A modern enterprise award must include
terms (coverage terms) setting out, in accordance with this
section:
(a) the enterprise or enterprises to
which the modern enterprise award relates; and
(b) the employers, employees and
organisations that are covered by the modern enterprise award.
Enterprises
(2) A modern enterprise award must be
expressed to relate:
(a) to a single enterprise (or a part
of a single enterprise) only; or
(b) to one or more enterprises, but
only if the employers all carry on similar business activities under the same
franchise and are:
(i) franchisees of the
same franchisor; or
(ii) related bodies
corporate of the same franchisor; or
(iii) any combination of the
above.
Employers and employees
(3) A modern enterprise award must be
expressed to cover:
(a) a specified employer that carries
on, or specified employers that carry on, the enterprise or enterprises
referred to in subsection (2); and
(b) specified employees of employers
covered by the modern enterprise award.
Organisations
(4) A modern enterprise award may be
expressed to cover one or more specified organisations, in relation to:
(a) all or specified employees covered
by the award; or
(b) the employer, or all or specified
employers, covered by the award.
Outworker entities
(5) A modern enterprise award must not be
expressed to cover outworker entities.
How coverage etc. is expressed
(6) For the purposes of subsection (2),
an enterprise must be specified:
(a) if paragraph (2)(a) applies
to the enterprise—by name; or
(b) if paragraph (2)(b) applies
to the enterprise—by name, or by the name of the franchise.
(7) For the purposes of subsections (3)
and (4):
(a) an employer or employers
may be specified by name or by inclusion in a specified class or specified
classes; and
(b) employees must be specified by
inclusion in a specified class or specified classes; and
(c) organisations must be specified by
name.
Employees not traditionally covered by awards etc.
(8) A modern enterprise award must not be
expressed to cover classes of employees:
(a) who, because of the nature or
seniority of their role, have traditionally not been covered by awards (whether
made under laws of the Commonwealth or the States); or
(b) who perform work that is not of a
similar nature to work that has traditionally been regulated by such awards.
Note: For example, in some industries, managerial
employees have traditionally not been covered by awards.
143B
Coverage terms of State reference public sector modern awards
Coverage terms must be included
(1) A State reference public sector modern
award must include terms (coverage terms) setting out, in
accordance with this section, the employers, employees and organisations that
are covered by the modern award.
Employers and employees
(2) The coverage terms must be such that:
(a) the only employers that are
expressed to be covered by the modern award are one or more specified State
reference public sector employers; and
(b) the only employees who are
expressed to be covered by the modern award are specified State reference
public sector employees of those employers.
Organisations
(3) A State reference public sector modern
award may be expressed to cover one or more specified organisations, in
relation to:
(a) all or specified employees covered
by the modern award; or
(b) the employer, or all or specified
employers, covered by the modern award.
Outworker entities
(4) A State reference public sector modern
award must not be expressed to cover outworker entities.
How coverage etc. is expressed
(5) For the purposes of this section:
(a) an employer or employers
may be specified by name or by inclusion in a specified class or specified
classes; and
(b) employees must be specified by
inclusion in a specified class or specified classes; and
(c) organisations must be specified by
name.
144
Flexibility terms
Flexibility terms must be included
(1) A modern award must include a term (a flexibility
term) enabling an employee and his or her employer to agree on an
arrangement (an individual flexibility arrangement)
varying the effect of the award in relation to the employee and the employer,
in order to meet the genuine needs of the employee and employer.
Effect of individual flexibility arrangements
(2) If an employee and employer agree to an
individual flexibility arrangement under a flexibility term in a modern award:
(a) the modern award has effect in
relation to the employee and the employer as if it were varied by the
flexibility arrangement; and
(b) the arrangement is taken, for the
purposes of this Act, to be a term of the modern award.
(3) To avoid doubt, the individual
flexibility arrangement does not change the effect the modern award has in
relation to the employer and any other employee.
Requirements for flexibility terms
(4) The flexibility term must:
(a) identify the terms of the modern
award the effect of which may be varied by an individual flexibility
arrangement; and
(b) require that the employee and the
employer genuinely agree to any individual flexibility arrangement; and
(c) require the employer to ensure
that any individual flexibility arrangement must result in the employee being
better off overall than the employee would have been if no individual
flexibility arrangement were agreed to; and
(d) set out how any flexibility
arrangement may be terminated by the employee or the employer; and
(e) require the employer to ensure
that any individual flexibility arrangement must be in writing and signed:
(i) in all cases—by the
employee and the employer; and
(ii) if the employee is
under 18—by a parent or guardian of the employee; and
(f) require the employer to ensure
that a copy of any individual flexibility arrangement must be given to the
employee.
(5) Except as required by
subparagraph (4)(e)(ii), the flexibility term must not require that any
individual flexibility arrangement agreed to by an employer and employee under
the term must be approved, or consented to, by another person.
145
Effect of individual flexibility arrangement that does not meet requirements of
flexibility term
Application of this section
(1) This section applies if:
(a) an employee and employer agree to
an arrangement that purports to be an individual flexibility arrangement under
a flexibility term in a modern award; and
(b) the arrangement does not meet a
requirement set out in section 144.
Note: A failure to meet such a requirement may be a
contravention of a provision of Part 3‑1 (which deals with general
protections).
Arrangement has effect as if it were an individual
flexibility arrangement
(2) The arrangement has effect as if it were
an individual flexibility arrangement.
Employer contravenes flexibility term in specified
circumstances
(3) If subsection 144(4) requires the
employer to ensure that the arrangement meets the requirement, the employer
contravenes the flexibility term of the award.
Flexibility arrangement may be terminated by agreement
or notice
(4) The flexibility term is taken to provide
(in addition to any other means of termination of the arrangement that the term
provides) that the arrangement can be terminated:
(a) by either the employee, or the employer,
giving written notice of not more than 28 days; or
(b) by the employee and the employer
at any time if they agree, in writing, to the termination.
146
Terms about settling disputes
Without limiting paragraph 139(1)(j), a
modern award must include a term that provides a procedure for settling
disputes:
(a) about any matters arising under
the award; and
(b) in relation to the National
Employment Standards.
Note: FWA or a person must not settle a dispute
about whether an employer had reasonable business grounds under subsection
65(5) or 76(4) (see subsections 739(2) and 740(2)).
147
Ordinary hours of work
A modern award must include terms
specifying, or providing for the determination of, the ordinary hours of work
for each classification of employee covered by the award and each type of
employment permitted by the award.
Note: An employee’s ordinary hours of work are
significant in determining the employee’s entitlements under the National
Employment Standards.
148
Base and full rates of pay for pieceworkers
If a modern award defines or describes
employees covered by the award as pieceworkers, the award must include terms
specifying, or providing for the determination of, base and full rates of pay
for those employees for the purposes of the National Employment Standards.
Note: An employee’s base and full rates of pay are
significant in determining the employee’s entitlements under the National
Employment Standards.
149
Automatic variation of allowances
If a modern award includes allowances that
FWA considers are of a kind that should be varied when wage rates in the
award are varied, the award must include terms providing for the automatic
variation of those allowances when wage rates in the award are varied.
Subdivision D—Terms that must not be included in modern awards
150
Objectionable terms
A modern award must not include an
objectionable term.
151
Terms about payments and deductions for benefit of employer etc.
A modern award must not include a term
that has no effect because of subsection 326(1) (which deals with unreasonable
payments and deductions for the benefit of an employer) or subsection 326(3)
(which deals with unreasonable requirements to spend an amount).
152
Terms about right of entry
A modern award must not include terms
that require or authorise an official of an organisation to enter premises:
(a) to hold discussions with, or
interview, an employee; or
(b) to inspect any work, process or
object.
153
Terms that are discriminatory
Discriminatory terms must not be included
(1) A modern award must not include terms
that discriminate against an employee because of, or for reasons including, the
employee’s race, colour, sex, sexual preference, age, physical or mental
disability, marital status, family or carer’s responsibilities, pregnancy,
religion, political opinion, national extraction or social origin.
Certain terms are not discriminatory
(2) A term of a modern award does not
discriminate against an employee:
(a) if the reason for the
discrimination is the inherent requirements of the particular position held by
the employee; or
(b) merely because it discriminates,
in relation to employment of the employee as a member of the staff of an
institution that is conducted in accordance with the doctrines, tenets, beliefs
or teachings of a particular religion or creed:
(i) in good faith; and
(ii) to avoid injury to the
religious susceptibilities of adherents of that religion or creed.
(3) A term of a modern award does not
discriminate against an employee merely because it provides for minimum wages
for:
(a) all junior employees, or a class
of junior employees; or
(b) all employees with a disability,
or a class of employees with a disability; or
(c) all employees to whom training
arrangements apply, or a class of employees to whom training arrangements
apply.
154
Terms that contain State‑based differences
General rule—State‑based difference terms must not be
included
(1) A modern award must not include terms and
conditions of employment (State‑based difference terms) that:
(a) are determined by reference to
State or Territory boundaries; or
(b) are expressed to operate in one or
more, but not every, State and Territory.
When State‑based difference terms may be included
(2) However, a modern award may include State‑based
difference terms if the terms were included in the award:
(a) in the award modernisation
process; or
(b) in accordance with
subsection (3);
but only for up to 5 years starting on the day on which
the first modern award that included those terms came into operation.
(3) If:
(a) a modern award includes State‑based
difference terms as permitted under subsection (2); and
(b) FWA is making or varying another
modern award so that it (rather than the modern award referred to in
paragraph (a)) will cover some or all of the classes of employees who are
covered by those terms;
FWA may include those terms in that other modern award.
However, FWA must not extend the coverage of those terms to classes of
employees that they did not previously cover.
155
Terms dealing with long service leave
A modern award must not include terms
dealing with long service leave.
Division 4—4 yearly reviews of modern awards
156 4
yearly reviews of modern awards to be conducted
Timing of 4 yearly reviews
(1) FWA must conduct a 4 yearly review
of modern awards starting as soon as practicable after each 4th
anniversary of the commencement of this Part.
Note 1: FWA must be constituted by a Full Bench to
conduct 4 yearly reviews of modern awards, and to make determinations and modern
awards in those reviews (see subsections 616(1), (2) and (3)).
Note 2: The President may give directions about the
conduct of 4 yearly reviews of modern awards (see section 582).
What has to be done in a 4 yearly review?
(2) In a 4 yearly review of modern awards,
FWA:
(a) must review all modern awards; and
(b) may make:
(i) one or more
determinations varying modern awards; and
(ii) one or more modern
awards; and
(iii) one or more
determinations revoking modern awards.
Note: Special criteria apply to changing coverage of
modern awards or revoking modern awards (see sections 163 and 164).
Variation of modern award minimum wages must be
justified by work value reasons
(3) In a 4 yearly review of modern awards,
FWA may make a determination varying modern award minimum wages only if FWA is
satisfied that the variation of modern award minimum wages is justified by work
value reasons.
(4) Work value reasons are
reasons justifying the amount that employees should be paid for doing a
particular kind of work, being reasons related to any of the following:
(a) the nature of the work;
(b) the level of skill or
responsibility involved in doing the work;
(c) the conditions under which the
work is done.
Each modern award to be reviewed in its own right
(5) A 4 yearly review of modern awards must
be such that each modern award is reviewed in its own right. However, this does
not prevent FWA from reviewing 2 or more modern awards at the same time.
Division 5—Exercising modern award powers outside 4 yearly reviews and
annual wage reviews
Subdivision A—Exercise of powers if necessary to achieve modern awards
objective
157
FWA may vary etc. modern awards if necessary to achieve modern awards objective
(1) FWA may:
(a) make a determination varying a
modern award, otherwise than to vary modern award minimum wages; or
(b) make a modern award; or
(c) make a determination revoking a
modern award;
if FWA is satisfied that making the determination or
modern award outside the system of 4 yearly reviews of modern awards is
necessary to achieve the modern awards objective.
Note 1: FWA must be constituted by a Full Bench to make
a modern award (see subsection 616(1)).
Note 2: Special criteria apply to changing coverage of
modern awards or revoking modern awards (see sections 163 and 164).
Note 3: If FWA is setting modern award minimum wages,
the minimum wages objective also applies (see section 284).
(2) FWA may make a determination varying
modern award minimum wages if FWA is satisfied that:
(a) the variation of modern award
minimum wages is justified by work value reasons; and
(b) making the determination outside
the system of annual wage reviews and the system of 4 yearly reviews of modern
awards is necessary to achieve the modern awards objective.
Note: As FWA is varying modern award minimum wages,
the minimum wages objective also applies (see section 284).
(3) FWA may make a determination or modern
award under this section:
(a) on its own initiative; or
(b) on application under
section 158.
158
Applications to vary, revoke or make modern award
(1) The following table sets out who may
apply for the making of a determination varying or revoking a modern award, or
for the making of a modern award, under section 157:
|
Who may make an
application?
|
|
Item
|
Column 1
This kind of
application …
|
Column 2
may be made by …
|
|
1
|
an application to vary, omit or include terms (other than
outworker terms or coverage terms) in a modern award
|
(a) an employer, employee or organisation that is covered by
the modern award; or
(b) an organisation that is entitled to represent the
industrial interests of one or more employers or employees that are covered
by the modern award.
|
|
2
|
an application to vary, omit or include outworker terms in
a modern award
|
(a) an employer, employee or outworker entity that is or
would be covered by the outworker terms; or
(b) an organisation that is entitled to represent the
industrial interests of one or more outworkers to whom the outworker terms
relate or would relate.
|
|
3
|
an application to vary or include coverage terms in a
modern award to increase the range of employers, employees or organisations
that are covered by the award
|
(a) an employer, employee or organisation that would become
covered by the modern award; or
(b) an organisation that is entitled to represent the
industrial interests of one or more employers or employees that would become
covered by the modern award.
|
|
4
|
an application to vary or
include coverage terms in a modern award to increase the range of outworker
entities that are covered by outworker terms
|
(a) an outworker entity that
would become covered by the outworker terms; or
(b) an organisation that is
entitled to represent the industrial interests of one or more outworkers who
would become outworkers to whom the outworker terms relate.
|
|
5
|
an application to vary or omit coverage terms in a modern
award to reduce the range of employers, employees or organisations that are
covered by the award
|
(a) an employer, employee or organisation that would stop
being covered by the modern award; or
(b) an organisation that is entitled to represent the
industrial interests of one or more employers or employees that would stop
being covered by the modern award.
|
|
6
|
an application to vary or omit coverage terms in a modern
award to reduce the range of outworker entities that are covered by outworker
terms
|
(a) an outworker entity that would stop being covered by the
outworker terms; or
(b) an organisation that is entitled to represent the
industrial interests of one or more outworkers who would stop being outworkers
to whom the outworker terms relate.
|
|
7
|
an application for the making of a modern award
|
(a) an employee or employer that would be covered by the
modern award; or
(b) an organisation that is entitled to represent the
industrial interests of one or more employers or employees that would be
covered by the modern award.
|
|
8
|
an application to revoke a
modern award
|
(a) an employer, employee or
organisation that is covered by the modern award; or
(b) an organisation that is
entitled to represent the industrial interests of one or more employers or
employees that are covered by the modern award.
|
(2) Subject to the requirements of the table
about who can make what kind of application, an applicant may make applications
for 2 or more related things at the same time.
Note: For example, an applicant may apply for the
making of a modern award and for the related revocation of an existing modern
award.
Subdivision B—Other situations
159
Variation of modern award to update or omit name of employer, organisation or outworker
entity
(1) FWA may make a determination varying a
modern award:
(a) to reflect a change in the name of
an employer, organisation or outworker entity; or
(b) to omit the name of an
organisation, employer or outworker entity from the modern award, if:
(i) the registration of
the organisation has been cancelled under the Workplace Relations Act 1996;
or
(ii) the employer,
organisation or outworker entity has ceased to exist; or
(c) if the modern award is a named
employer award and the named employer is the old employer in a transfer of
business—to reflect the transfer of business to the new employer.
(2) FWA may make a determination under this
section:
(a) in any case—on its own initiative;
or
(b) if paragraph (1)(a) or (b)
applies—on application by the employer, organisation or outworker entity
referred to in that paragraph; or
(c) if paragraph (1)(c)
applies—on application by:
(i) the old employer or
the new employer; or
(ii) a transferring
employee who was covered by the modern award as an employee of the old
employer; or
(iii) an organisation that
is entitled to represent the industrial interests of the old employer, the new
employer, or one or more employees referred to in subparagraph (ii).
160
Variation of modern award to remove ambiguity or uncertainty or correct error
(1) FWA may make a determination varying a
modern award to remove an ambiguity or uncertainty or to correct an error.
(2) FWA may make the determination:
(a) on its own initiative; or
(b) on application by an employer,
employee, organisation or outworker entity that is covered by the modern award.
161
Variation of modern award on referral by Australian Human Rights Commission
(1) FWA must review a modern award if the
award is referred to it under section 46PW of the Australian Human
Rights Commission Act 1986 (which deals with discriminatory industrial
instruments).
(2) The following are entitled to make
submissions to FWA for consideration in the review:
(a) if the referral relates to action
that would be unlawful under Part 4 of the Age Discrimination Act 2004—the
Australian Human Rights Commission;
(b) if the referral relates to action
that would be unlawful under Part 2 of the Disability Discrimination
Act 1992—the Disability Discrimination Commissioner;
(c) if the referral relates to action
that would be unlawful under Part II of the Sex Discrimination Act 1984—the
Sex Discrimination Commissioner.
(3) If FWA considers that the modern award
reviewed requires a person to do an act that would be unlawful under any of the
Acts referred to in subsection (2) (but for the fact that the act would be
done in direct compliance with the modern award), FWA must make a determination
varying the modern award so that it no longer requires the person to do an act
that would be so unlawful.
Note: Special criteria apply to changing coverage of
modern awards (see section 163).
Division 6—General provisions relating to modern award powers
162
General
This Division contains some specific
provisions relevant to the exercise of modern award powers. For other
provisions relevant to the exercise of modern award powers, see the general
provisions about FWA’s processes in Part 5‑1.
Note: Relevant provisions of Part 5‑1 include
the following:
(a) section 582 (which deals with the President’s
power to give directions);
(b) section 590 (which deals with FWA’s
discretion to inform itself as it considers appropriate, including by
commissioning research);
(c) section 596 (which deals with being
represented in a matter before FWA);
(d) section 601 (which deals with writing and
publication requirements).
163
Special criteria relating to changing coverage of modern awards
Special rule about reducing coverage
(1) FWA must not make a determination varying
a modern award so that certain employers or employees stop being covered by the
award unless FWA is satisfied that they will instead become covered by another
modern award (other than the miscellaneous modern award) that is appropriate
for them.
Special rule about making a modern award
(2) FWA must not make a modern award covering
certain employers or employees unless FWA has considered whether it should,
instead, make a determination varying an existing modern award to cover them.
Special rule about covering organisations
(3) FWA must not make a modern award, or make
a determination varying a modern award, so that an organisation becomes covered
by the award, unless the organisation is entitled to represent the industrial
interests of one or more employers or employees who are or will be covered by
the award.
The miscellaneous modern award
(4) The miscellaneous modern award is
the modern award that is expressed to cover employees who are not covered by
any other modern award.
164
Special criteria for revoking modern awards
FWA must not make a determination
revoking a modern award unless FWA is satisfied that:
(a) the award is obsolete or no longer
capable of operating; or
(b) all the employees covered by the
award are covered by a different modern award (other than the miscellaneous
modern award) that is appropriate for them, or will be so covered when the
revocation comes into operation.
165
When variation determinations come into operation, other than determinations
setting, varying or revoking modern award minimum wages
Determinations come into operation on specified day
(1) A determination under this Part that
varies a modern award (other than a determination that sets, varies or revokes
modern award minimum wages) comes into operation on the day specified in the
determination.
Note 1: For when a modern award, or a revocation of a
modern award, comes into operation, see section 49.
Note: For when a determination under this Part
setting, varying or revoking modern award minimum wages comes into operation,
see section 166.
(2) The specified day must not be earlier
than the day on which the determination is made, unless:
(a) the determination is made under
section 160 (which deals with variation to remove ambiguities or correct
errors); and
(b) FWA is satisfied that there are
exceptional circumstances that justify specifying an earlier day.
Determinations take effect from first full pay period
(3) The determination does not take effect in
relation to a particular employee until the start of the employee’s first full
pay period that starts on or after the day the determination comes into
operation.
166
When variation determinations setting, varying or revoking modern award minimum
wages come into operation
Determinations generally come into operation on
1 July
(1) A determination under this Part that
sets, varies or revokes modern award minimum wages comes into operation:
(a) on 1 July in the next
financial year after it is made; or
(b) if it is made on 1 July in a
financial year—on that day.
Note: Modern award minimum wages can also be set,
varied or revoked by determinations made in annual wage reviews. For when those
determinations come into operation, see section 286.
FWA may specify another day of operation if appropriate
(2) However, if FWA specifies another day in
the determination as the day on which it comes into operation, the
determination comes into operation on that other day. FWA must not specify
another day unless it is satisfied that it is appropriate to do so.
(3) The specified day must not be earlier
than the day on which the determination is made, unless:
(a) the determination is made under
section 160 (which deals with variation to remove ambiguities or correct
errors); and
(b) FWA is satisfied that there are
exceptional circumstances that justify specifying an earlier day.
Determinations may take effect in stages
(4) FWA may specify in the determination that
changes to modern award minimum wages made by the determination take effect in
stages if FWA is satisfied that it is appropriate to do so.
Determinations take effect from first full pay period
(5) A change to modern award minimum wages
made by the determination does not take effect in relation to a particular
employee until the start of the employee’s first full pay period that starts on
or after:
(a) unless paragraph (b)
applies—the day the determination comes into operation; or
(b) if the determination takes effect
in stages under subsection (4)—the day the change to modern award minimum
wages is specified to take effect.
167
Special rules relating to retrospective variations of awards
Application of this section
(1) This section applies if a determination
varying a modern award has a retrospective effect because it comes into
operation under subsection 165(2) or 166(3) on a day before the day on which the
determination is made.
No effect on past approval of enterprise agreement or
variation
(2) If, before the determination was made, an
enterprise agreement or a variation of an enterprise agreement was approved by
FWA, the validity of the approval is not affected by the retrospective effect
of the determination.
No creation of liability to pay pecuniary penalty for
past conduct
(3) If:
(a) a person engaged in conduct before
the determination was made; and
(b) but for the retrospective effect
of the determination, the conduct would not have contravened a term of the
modern award or an enterprise agreement;
a court must not order the person to pay a pecuniary
penalty under Division 2 of Part 4‑1 in relation to the conduct, on
the grounds that the conduct contravened a term of the modern award or
enterprise agreement.
Note 1: This subsection does not affect the powers of a
court to make other kinds of orders under Division 2 of Part 4‑1.
Note 2: A determination varying a modern award could
result in a contravention of a term of an enterprise agreement because of the
effect of subsection 206(2).
168
Varied modern award must be published
(1) If FWA makes a determination under this
Part or Part 2‑6 (which deals with minimum wages) varying a modern
award, FWA must publish the award as varied as soon as practicable.
(2) The publication may be on FWA’s website
or by any other means that FWA considers appropriate.
Division 7—Additional provisions relating to modern enterprise awards
168A
Modern enterprise awards
(1) This Division contains additional
provisions that relate to modern enterprise awards. The provisions in this
Division have effect despite anything else in this Part.
(2) A modern enterprise award
is a modern award that is expressed to relate to:
(a) a single enterprise (or a part of
a single enterprise) only; or
(b) one or more enterprises, if the
employers all carry on similar business activities under the same franchise and
are:
(i) franchisees of the
same franchisor; or
(ii) related bodies corporate
of the same franchisor; or
(iii) any combination of the
above.
(3) A single enterprise is:
(a) a business, project or undertaking
that is carried on by an employer; or
(b) the activities carried on by:
(i) the Commonwealth, a
State or a Territory; or
(ii) a body, association,
office or other entity established for a public purpose by or under a law of
the Commonwealth, a State or a Territory; or
(iii) any other body in
which the Commonwealth, a State or a Territory has a controlling interest.
(4) For the purposes of subsection (3),
if 2 or more employers carry on a business, project or undertaking as a joint
venture or common enterprise, the employers are taken to be one employer.
(5) For the purposes of subsection (3),
if 2 or more related bodies corporate each carry on a single enterprise:
(a) the bodies corporate are taken to
be one employer; and
(b) the single enterprises are taken
to be one single enterprise.
Note: However, a modern enterprise award could just
relate to a part of that single enterprise.
(6) A part of a single enterprise
includes, for example:
(a) a geographically distinct part of
the single enterprise; or
(b) a distinct operational or
organisational unit within the single enterprise.
168B
The modern enterprise awards objective
What is the modern enterprise awards objective?
(1) FWA must recognise that modern enterprise
awards may provide terms and conditions tailored to reflect employment
arrangements that have been developed in relation to the relevant enterprises.
This is the modern enterprise awards objective.
When does the modern enterprise awards objective apply?
(2) The modern enterprise awards objective
applies to the performance of FWA’s functions or powers under this Act, so far
as they relate to modern enterprise awards.
References to the modern awards objective
(3) A reference to the modern awards
objective in this Act, other than section 134, is taken to include a
reference to the modern enterprise awards objective.
168C
Rules about making and revoking modern enterprise awards
Making modern enterprise awards
(1) FWA must not, under this Part:
(a) make a modern enterprise award; or
(b) make a determination varying a
modern award so that it becomes a modern enterprise award.
Note: Modern enterprise awards can be made only in
accordance with the enterprise instrument modernisation process provided for by
Part 2 of Schedule 6 of the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009.
Revoking modern enterprise awards
(2) FWA may make a determination revoking a
modern enterprise award only on application under section 158.
(3) FWA must not make a determination
revoking a modern enterprise award unless FWA is satisfied that:
(a) the award is obsolete or no longer
capable of operating; or
(b) all the employees covered by the
award will, when the revocation comes into operation, be covered by a different
modern award (other than the miscellaneous modern award or a modern enterprise
award) that is appropriate for them.
(4) In deciding whether to make a
determination revoking a modern enterprise award FWA must take into account the
following:
(a) the circumstances that led to the
making of the modern enterprise award;
(b) the content of the modern award
referred to in paragraph (3)(b);
(c) the terms and conditions of
employment applying in the industry in which the persons covered by the modern
enterprise award operate, and the extent to which those terms and conditions
are reflected in the modern enterprise award;
(d) the extent to which the modern
enterprise award provides enterprise‑specific terms and conditions of
employment;
(e) the likely impact on the persons
covered by the modern enterprise award, and the persons covered by the modern
award referred to in paragraph (3)(b), of a decision to revoke, or not
revoke, the modern enterprise award, including any impact on the ongoing
viability or competitiveness of any enterprise carried on by those persons;
(f) the views of the persons covered
by the modern enterprise award;
(g) any other matter prescribed by the
regulations.
168D
Rules about changing coverage of modern enterprise awards
(1) FWA must not make a determination varying
a modern enterprise award so as to extend the coverage of the modern enterprise
award so that it ceases to be a modern enterprise award.
(2) In deciding whether to make a
determination varying the coverage of a modern enterprise award in some other
way, FWA must take into account the following:
(a) the circumstances that led to the
making of the modern enterprise award;
(b) whether there is a modern award
(other than the miscellaneous modern award or a modern enterprise award) that
would, but for the modern enterprise award, cover the persons covered, or
proposed to be covered, by the modern enterprise award;
(c) the content of the modern award
referred to in paragraph (b);
(d) the terms and conditions of
employment applying in the industry in which the persons covered, or proposed
to be covered, by the modern award operate, and the extent to which those terms
and conditions are reflected in the modern enterprise award;
(e) the extent to which the modern
enterprise award provides enterprise‑specific terms and conditions of
employment;
(f) the likely impact on the persons
covered, or proposed to be covered, by the modern enterprise award, and the
persons covered by the modern award referred to in paragraph (b), of a
decision to make, or not make, the variation, including any impact on the
ongoing viability or competitiveness of any enterprise carried on by those
persons;
(g) the views of the persons covered,
or proposed to be covered, by the modern enterprise award;
(h) any other matter prescribed by the
regulations.
Division 8—Additional provisions relating to State reference public
sector modern awards
168E
State reference public sector modern awards
(1) This Division contains additional
provisions that relate to State reference public sector modern awards. The
provisions in this Division have effect despite anything else in this Part.
(2) A State reference public sector
modern award is a modern award in relation to which the following
conditions are satisfied:
(a) the only employers that are
expressed to be covered by the modern award are one or more specified State
reference public sector employers;
(b) the only employees who are
expressed to be covered by the modern award are specified State reference
public sector employees of those employers.
(3) A State reference public sector
employee is an employee:
(a) who is a national system employee
only because of section 30C or 30M; and
(b) who is a State public sector
employee as defined in section 30A or 30K.
(4) A State reference public sector
employer is an employer:
(a) that is a national system employer
only because of section 30D or 30N; and
(b) that is a State public sector
employer as defined in section 30A or 30K.
168F
The State reference public sector modern awards objective
The State reference public sector modern awards
objective
(1) FWA must recognise:
(a) the need to facilitate
arrangements for State reference public sector employers and State reference
public sector employees that are appropriately adapted to the effective
administration of a State; and
(b) that State reference public sector
modern awards may provide terms and conditions tailored to reflect employment
arrangements that have been developed in relation to State reference public
sector employers and State reference public sector employees.
This is the State reference public sector modern
awards objective.
When does the State reference public sector modern
awards objective apply?
(2) The State reference public sector modern
awards objective applies to the performance of FWA’s functions or powers under
this Act, so far as they relate to State reference public sector modern awards.
References to the modern awards objective
(3) A reference to the modern awards
objective in this Act, other than section 134, is taken to include a
reference to the State reference public sector modern awards objective.
168G
Making State reference public sector modern awards on application
(1) FWA may make a State reference public
sector modern award (the proposed award) only on application
under section 158 by:
(a) a State reference public sector
employer; or
(b) an organisation that is entitled
to represent the industrial interests of a State reference public sector
employer or of a State reference public sector employee.
(2) The application must specify the
employers, employees and organisations (the proposed parties)
proposed to be covered by the proposed award.
(3) FWA must consider the application, and
must make a State reference public sector modern award covering the proposed
parties if FWA is satisfied that:
(a) the employers and organisations
that are proposed parties have agreed to the making of the application; and
(b) either:
(i) none of the
employers and employees that are proposed parties are already covered by a
State reference public sector modern award; or
(ii) if there are employers
and employees that are proposed parties and that are already covered by a State
reference public sector modern award (the current award)—it is
appropriate (in accordance with section 168L) to vary the coverage of the
current award so that the employers or employees cease to be covered by the
current award.
(4) FWA must not make a State reference
public sector modern award otherwise than in accordance with this Division or
in accordance with Part 2 of Schedule 6A to the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009.
168H
State reference public sector modern awards may contain State‑based differences
Section 154 (which deals with terms
that contain State‑based differences) does not apply in relation to State
reference public sector modern awards.
168J When State reference public sector modern awards
come into operation
Section 49 does not apply for the
purpose of determining when a State reference public sector modern award comes
into operation. Instead, the modern award comes into operation on the day on which
it is expressed to commence, being a day that is not earlier than the day on
which the modern award is made.
168K
Rules about revoking State reference public sector modern awards
(1) FWA may make a determination revoking a
State reference public sector modern award only on application under
section 158 by:
(a) a State reference public sector
employer; or
(b) an organisation that is entitled
to represent the industrial interests of a State reference public sector
employer or of a State reference public sector employee.
(2) FWA must not make a determination
revoking a State reference public sector modern award unless FWA is satisfied
that:
(a) the modern award is obsolete or no
longer capable of operating; or
(b) all the employees covered by the
modern award will, when the revocation comes into operation, be covered by a
different modern award (other than the miscellaneous modern award) that is
appropriate for them.
(3) In deciding whether to revoke a State
reference public sector modern award, FWA must take into account the following:
(a) the circumstances that led to the
making of the modern award;
(b) the terms and conditions of
employment applying in the industry or occupation in which the persons covered
by the modern award operate, and the extent to which those terms and conditions
are reflected in the modern award;
(c) the extent to which the modern
award facilitates arrangements, and provides terms and conditions of
employment, referred to in paragraphs 168F(1)(a) and (b);
(d) the likely impact on the persons
covered by the modern award of a decision to revoke, or not to revoke, the
modern award;
(e) the views of the persons covered
by the modern award;
(f) any other matter prescribed by
the regulations.
168L
Rules about varying coverage of State reference public sector modern awards
(1) FWA may make a determination varying the
coverage of a State reference public sector modern award only on application
under section 158 by:
(a) a State reference public sector
employer; or
(b) an organisation that is entitled
to represent the industrial interests of a State reference public sector
employer or of a State reference public sector employee.
(2) FWA must not make a determination varying
the coverage of a State reference public sector modern award so that it ceases
to be a State reference public sector modern award.
(3) In deciding whether to make a
determination varying the coverage of a State reference public sector modern
award in some other way, FWA must take into account the following:
(a) the circumstances that led to the
making of the modern award;
(b) the terms and conditions of
employment applying in the industry or occupation in which the persons covered,
or proposed to be covered, by the modern award operate, and the extent to which
those terms and conditions are reflected in the modern award;
(c) the likely impact on the persons
covered, or proposed to be covered, by the modern award of a decision to make,
or not make, the variation;
(d) if the variation would result in
the modern award covering one or more additional classes of employers or
employees—whether it is appropriate for that modern award to cover those
classes of employers or employees, as well as the classes of employers and
employees that it already covers;
(e) the views of the persons covered,
or proposed to be covered, by the modern award;
(f) any other matter prescribed by
the regulations.
Part 2‑4—Enterprise agreements
Division 1—Introduction
169
Guide to this Part
This Part is about enterprise
agreements. An enterprise agreement is made at the enterprise level and
provides terms and conditions for those national system employees to whom it
applies. An enterprise agreement can have terms that are ancillary or
supplementary to the National Employment Standards.
Division 2 deals with the making
of enterprise agreements about permitted matters. An enterprise agreement
(including a greenfields agreement) may be a single‑enterprise agreement or a
multi‑enterprise agreement.
Division 3 deals with the right
of employees to be represented by a bargaining representative during bargaining
for a proposed enterprise agreement. It also sets out the persons who are
bargaining representatives for such agreements.
Subdivision A of Division 4 deals
with the approval of proposed enterprise agreements by employees and sets out
when an enterprise agreement is made.
Subdivision B of Division 4 deals
with the approval of enterprise agreements by FWA. The remaining Subdivisions
of the Division deal with certain approval requirements, including in relation
to genuine agreement by employees and the better off overall test.
Division 5 deals with the
mandatory terms of enterprise agreements relating to individual flexibility
arrangements and consultation requirements.
Division 6 deals with the base
rate of pay under an enterprise agreement.
Division 7 deals with the
variation and termination of enterprise agreements.
Division 8 provides for FWA to
facilitate bargaining by making bargaining orders, serious breach declarations,
majority support determinations and scope orders. It also permits bargaining
representatives to apply for FWA to deal with bargaining disputes.
Division 9 provides for the
making of low‑paid authorisations in relation to proposed multi‑enterprise
agreements. The effect of such an authorisation is that specified employers are
subject to certain rules that would not otherwise apply (for example,
bargaining orders that would not usually be available for multi‑enterprise
agreements will be available). It also permits FWA to assist the bargaining
representatives for such agreements.
Division 10 deals with single
interest employer authorisations. The effect of such an authorisation is that
the employers specified in the authorisation are single interest employers in
relation to a proposed enterprise agreement.
Division 11 deals with other
matters relating to enterprise agreements.
170
Meanings of employee and employer
In this Part, employee
means a national system employee, and employer means a national
system employer.
171
Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and
fair framework that enables collective bargaining in good faith, particularly
at the enterprise level, for enterprise agreements that deliver productivity
benefits; and
(b) to enable FWA to facilitate good
faith bargaining and the making of enterprise agreements, including through:
(i) making bargaining
orders; and
(ii) dealing with disputes
where the bargaining representatives request assistance; and
(iii) ensuring that
applications to FWA for approval of enterprise agreements are dealt with
without delay.
Division 2—Employers and employees may make enterprise agreements
172
Making an enterprise agreement
Enterprise agreements may be made about permitted matters
(1) An agreement (an enterprise
agreement) that is about one or more of the following matters (the permitted
matters) may be made in accordance with this Part:
(a) matters pertaining to the
relationship between an employer that will be covered by the agreement and that
employer’s employees who will be covered by the agreement;
(b) matters pertaining to the
relationship between the employer or employers, and the employee organisation
or employee organisations, that will be covered by the agreement;
(c) deductions from wages for any
purpose authorised by an employee who will be covered by the agreement;
(d) how the agreement will operate.
Note 1: For when an enterprise agreement covers an
employer, employee or employee organisation, see section 53.
Note 2: An employee organisation that was a bargaining
representative for a proposed enterprise agreement will be covered by the
agreement if the organisation notifies FWA under section 183 that it wants
to be covered.
Single‑enterprise agreements
(2) An employer, or 2 or more employers that
are single interest employers, may make an enterprise agreement (a single‑enterprise
agreement):
(a) with the employees who are
employed at the time the agreement is made and who will be covered by the
agreement; or
(b) with one or more relevant employee
organisations if:
(i) the agreement relates
to a genuine new enterprise that the employer or employers are establishing or
propose to establish; and
(ii) the employer or
employers have not employed any of the persons who will be necessary for the
normal conduct of that enterprise and will be covered by the agreement.
Note: The expression genuine new enterprise includes
a genuine new business, activity, project or undertaking (see the definition of
enterprise in section 12).
Multi‑enterprise agreements
(3) Two or more employers that are not all
single interest employers may make an enterprise agreement (a multi‑enterprise
agreement):
(a) with the employees who are
employed at the time the agreement is made and who will be covered by the
agreement; or
(b) with one or more relevant employee
organisations if:
(i) the agreement relates
to a genuine new enterprise that the employers are establishing or propose to
establish; and
(ii) the employers have not
employed any of the persons who will be necessary for the normal conduct of
that enterprise and will be covered by the agreement.
Note: The expression genuine new enterprise includes
a genuine new business, activity, project or undertaking (see the definition of
enterprise in section 12).
Greenfields agreements
(4) A single‑enterprise agreement made as
referred to in paragraph (2)(b), or a multi‑enterprise agreement made as
referred to in paragraph (3)(b), is a greenfields agreement.
Single interest employers
(5) Two or more employers are single
interest employers if:
(a) the employers are engaged in a
joint venture or common enterprise; or
(b) the employers are related bodies
corporate; or
(c) the employers are specified in a
single interest employer authorisation that is in operation in relation to the
proposed enterprise agreement concerned.
Division 3—Bargaining and representation during bargaining
173
Notice of employee representational rights
Employer to notify each employee of representational
rights
(1) An employer that will be covered by a
proposed enterprise agreement that is not a greenfields agreement must take all
reasonable steps to give notice of the right to be represented by a bargaining
representative to each employee who:
(a) will be covered by the agreement;
and
(b) is employed at the notification
time for the agreement.
Note: For the content of the notice, see
section 174.
Notification time
(2) The notification time for a
proposed enterprise agreement is the time when:
(a) the employer agrees to bargain, or
initiates bargaining, for the agreement; or
(b) a majority support determination
in relation to the agreement comes into operation; or
(c) a scope order in relation to the
agreement comes into operation; or
(d) a low‑paid authorisation in
relation to the agreement that specifies the employer comes into operation.
Note: The employer cannot request employees to
approve the agreement under section 181 until 21 days after the last
notice is given (see subsection 181(2)).
When notice must be given
(3) The employer must give the notice as soon
as practicable, and not later than 14 days, after the notification time for the
agreement.
Notice need not be given in certain circumstances
(4) An employer is not required to give a
notice to an employee under subsection (1) in relation to a proposed
enterprise agreement if the employer has already given the employee a notice
under that subsection within a reasonable period before the notification time
for the agreement.
How notices are given
(5) The regulations may prescribe how notices
under subsection (1) may be given.
174
Content of notice of employee representational rights
Application of this section
(1) This section applies if an employer that
will be covered by a proposed enterprise agreement is required to give a notice
under subsection 173(1) to an employee.
Content of notice—employee may appoint a bargaining
representative
(2) The notice must specify that the employee
may appoint a bargaining representative to represent the employee:
(a) in bargaining for the agreement;
and
(b) in a matter before FWA that
relates to bargaining for the agreement.
Content of notice—default bargaining representative
(3) If subsection (4) does not apply,
the notice must explain that:
(a) if the employee is a member of an
employee organisation that is entitled to represent the industrial interests of
the employee in relation to work that will be performed under the agreement;
and
(b) the employee does not appoint
another person as his or her bargaining representative for the agreement;
the organisation will be the bargaining representative of
the employee.
Content of notice—bargaining representative if a low‑paid
authorisation is in operation
(4) If a low‑paid authorisation in relation
to the agreement that specifies the employer is in operation, the notice must
explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal
with bargaining representatives for such agreements).
Content of notice—copy of instrument of appointment to
be given
(5) The notice must explain the effect of
paragraph 178(2)(a) (which deals with giving a copy of an instrument of
appointment of a bargaining representative to an employee’s employer).
Regulations may prescribe additional content and form
requirements etc.
(6) The regulations may prescribe other
matters relating to the content or form of the notice, or the manner in which
employers may give the notice to employees.
176
Bargaining representatives for proposed enterprise agreements that are not
greenfields agreements
Bargaining representatives
(1) The following paragraphs set out the
persons who are bargaining representatives for a proposed
enterprise agreement that is not a greenfields agreement:
(a) an employer that will be covered
by the agreement is a bargaining representative for the agreement;
(b) an employee organisation is a
bargaining representative of an employee who will be covered by the agreement
if:
(i) the employee is a
member of the organisation; and
(ii) in the case where the
agreement is a multi‑enterprise agreement in relation to which a low‑paid
authorisation is in operation—the organisation applied for the authorisation;
unless the employee has
appointed another person under paragraph (c) as his or her bargaining
representative for the agreement, or has revoked the status of the organisation
as his or her bargaining representative for the agreement under subsection
178A(2); or
(c) a person is a bargaining
representative of an employee who will be covered by the agreement if the
employee appoints, in writing, the person as his or her bargaining
representative for the agreement;
(d) a person is a bargaining
representative of an employer that will be covered by the agreement if the
employer appoints, in writing, the person as his or her bargaining
representative for the agreement.
Bargaining representatives for a proposed multi‑enterprise
agreement if a low‑paid authorisation is in operation
(2) If:
(a) the proposed enterprise agreement
is a multi‑enterprise agreement in relation to which a low‑paid authorisation
is in operation; and
(b) an employee organisation applied
for the authorisation; and
(c) but for this subsection, the
organisation would not be a bargaining representative of an employee who will
be covered by the agreement;
the organisation is taken to be a bargaining
representative of such an employee unless:
(d) the employee is a member of
another employee organisation that also applied for the authorisation; or
(e) the employee has appointed another
person under paragraph (1)(c) as his or her bargaining representative for
the agreement; or
(f) the employee has revoked the
status of the organisation as his or her bargaining representative for the
agreement under subsection 178A(2).
Requirement relating to employee organisations
(3) Despite subsections (1) and (2), an
employee organisation cannot be a bargaining representative of an employee
unless the organisation is entitled to represent the industrial interests of
the employee in relation to work that will be performed under the agreement.
Employee may appoint himself or herself
(4) To avoid doubt, an employee who will be
covered by the agreement may appoint, under paragraph (1)(c), himself or
herself as his or her bargaining representative for the agreement.
Note: Section 228 sets out the good faith
bargaining requirements. Applications may be made for bargaining orders that
require bargaining representatives to meet the good faith bargaining
requirements (see section 229).
178
Appointment of bargaining representatives—other matters
When appointment of a bargaining representative comes
into force
(1) An appointment of a bargaining
representative comes into force on the day specified in the instrument of
appointment.
Copies of instruments of appointment must be given
(2) A copy of an instrument of appointment of
a bargaining representative for a proposed enterprise agreement must:
(a) for an appointment made by an
employee who will be covered by the agreement—be given to the employee’s
employer; and
(b) for an appointment made by an
employer that will be covered by a proposed enterprise agreement that is not a
greenfields agreement—be given, on request, to a bargaining representative of
an employee who will be covered by the agreement.
Regulations may prescribe matters relating to
qualifications and appointment
(3) The regulations may prescribe matters
relating to the qualifications or appointment of bargaining representatives.
178A
Revocation of appointment of bargaining representatives etc.
(1) The appointment of a bargaining
representative for an enterprise agreement may be revoked by written
instrument.
(2) If a person would, apart from this
subsection, be a bargaining representative of an employee for an enterprise
agreement because of the operation of paragraph 176(1)(b) or subsection 176(2)
(which deal with employee organisations), the employee may, by written
instrument, revoke the person’s status as the employee’s bargaining
representative for the agreement.
(3) A copy of an instrument under
subsection (1) or (2):
(a) for an instrument made by an
employee who will be covered by the agreement—must be given to the employee’s
employer; and
(b) for an instrument made by an
employer that will be covered by a proposed enterprise agreement—must be given
to the bargaining representative and, on request, to a bargaining
representative of an employee who will be covered by the agreement.
(4) The regulations may prescribe matters
relating to the content or form of the instrument of revocation, or the manner
in which the copy of the instrument may be given.
Division 4—Approval of enterprise agreements
Subdivision A—Pre‑approval steps and applications for FWA approval
180
Employees must be given a copy of a proposed enterprise agreement etc.
Pre‑approval requirements
(1) Before an employer requests under
subsection 181(1) that employees approve a proposed enterprise agreement by
voting for the agreement, the employer must comply with the requirements set
out in this section.
Employees must be given copy of the agreement etc.
(2) The employer must take all reasonable
steps to ensure that:
(a) during the access period for the
agreement, the employees (the relevant employees) employed at the
time who will be covered by the agreement are given a copy of the following
materials:
(i) the written text of
the agreement;
(ii) any other material
incorporated by reference in the agreement; or
(b) the relevant employees have
access, throughout the access period for the agreement, to a copy of those
materials.
(3) The employer must take all reasonable
steps to notify the relevant employees of the following by the start of the
access period for the agreement:
(a) the time and place at which the
vote will occur;
(b) the voting method that will be
used.
(4) The access period for a proposed
enterprise agreement is the 7‑day period ending immediately before the start of
the voting process referred to in subsection 181(1).
Terms of the agreement must be explained to employees
etc.
(5) The employer must take all reasonable
steps to ensure that:
(a) the terms of the agreement, and
the effect of those terms, are explained to the relevant employees; and
(b) the explanation is provided in an
appropriate manner taking into account the particular circumstances and needs
of the relevant employees.
(6) Without limiting paragraph (5)(b),
the following are examples of the kinds of employees whose circumstances and
needs are to be taken into account for the purposes of complying with that
paragraph:
(a) employees from culturally and
linguistically diverse backgrounds;
(b) young employees;
(c) employees who did not have a
bargaining representative for the agreement.
181
Employers may request employees to approve a proposed enterprise agreement
(1) An employer that will be covered by a
proposed enterprise agreement may request the employees employed at the time
who will be covered by the agreement to approve the agreement by voting for it.
(2) The request must not be made until at
least 21 days after the day on which the last notice under subsection 173(1)
(which deals with giving notice of employee representational rights) in
relation to the agreement is given.
(3) Without limiting subsection (1), the
employer may request that the employees vote by ballot or by an electronic
method.
182
When an enterprise agreement is made
Single‑enterprise agreement that is not a greenfields
agreement
(1) If the employees of the employer, or each
employer, that will be covered by a proposed single‑enterprise agreement that
is not a greenfields agreement have been asked to approve the agreement under
subsection 181(1), the agreement is made when a majority of those
employees who cast a valid vote approve the agreement.
Multi‑enterprise agreement that is not a greenfields
agreement
(2) If:
(a) a proposed enterprise agreement is
a multi‑enterprise agreement; and
(b) the employees of each of the
employers that will be covered by the agreement have been asked to approve the
agreement under subsection 181(1); and
(c) those employees have voted on
whether or not to approve the agreement; and
(d) a majority of the employees of at
least one of those employers who cast a valid vote have approved the agreement;
the agreement is made immediately after the
end of the voting process referred to in subsection 181(1).
Greenfields agreement
(3) A greenfields agreement is made
when it has been signed by each employer and each relevant employee
organisation that the agreement is expressed to cover (which need not be all of
the relevant employee organisations for the agreement).
183
Entitlement of an employee organisation to have an enterprise agreement cover
it
(1) After an enterprise agreement that is not
a greenfields agreement is made, an employee organisation that was a bargaining
representative for the proposed enterprise agreement concerned may give FWA a
written notice stating that the organisation wants the enterprise agreement to
cover it.
(2) The notice must be given to FWA, and a
copy given to each employer covered by the enterprise agreement, before FWA
approves the agreement.
Note: FWA must note in its decision to approve the
enterprise agreement that the agreement covers the employee organisation (see
subsection 201(2)).
184
Multi‑enterprise agreement to be varied if not all employees approve the
agreement
Application of this section
(1) This section applies if:
(a) a multi‑enterprise agreement is
made; and
(b) the agreement was not approved by
the employees of all of the employers that made a request under subsection
181(1) in relation to the agreement.
Variation of agreement
(2) Before a bargaining representative
applies under section 185 for approval of the agreement, the bargaining
representative must vary the agreement so that the agreement is expressed to
cover only the following:
(a) each employer whose employees
approved the agreement;
(b) the employees of each of those
employers.
(3) The bargaining representative who varies
the agreement as referred to in subsection (2) must give written notice of
the variation to all the other bargaining representatives for the agreement.
(4) The notice must specify the employers and
employees that the agreement as varied covers.
(5) Subsection (3) does not require the
bargaining representative to give a notice to a person if the bargaining
representative does not know, or could not reasonably be expected to know, that
the person is a bargaining representative for the agreement.
185
Bargaining representative must apply for FWA approval of an enterprise
agreement
Application for approval
(1) If an enterprise agreement is made, a
bargaining representative for the agreement must apply to FWA for approval of
the agreement.
(1A) Despite subsection (1), if the
agreement is a greenfields agreement, the application must be made by:
(a) an employer covered by the agreement;
or
(b) a relevant employee organisation
that is covered by the agreement.
Material to accompany the application
(2) The application must be accompanied by:
(a) a signed copy of the agreement;
and
(b) any declarations that are required
by the procedural rules to accompany the application.
When the application must be made
(3) If the agreement is not a greenfields
agreement, the application must be made:
(a) within 14 days after the agreement
is made; or
(b) if in all the circumstances FWA
considers it fair to extend that period—within such further period as FWA
allows.
(4) If the agreement is a greenfields
agreement, the application must be made within 14 days after the agreement is
made.
Signature requirements
(5) The regulations may prescribe requirements
relating to the signing of enterprise agreements.
Subdivision B—Approval of enterprise agreements by FWA
186
When FWA must approve an enterprise agreement—general requirements
Basic rule
(1) If an application for the approval of an
enterprise agreement is made under section 185, FWA must approve the
agreement under this section if the requirements set out in this section and
section 187 are met.
Note: FWA may approve an enterprise agreement under
this section with undertakings (see section 190).
Requirements relating to the safety net etc.
(2) FWA must be satisfied that:
(a) if the agreement is not a
greenfields agreement—the agreement has been genuinely agreed to by the
employees covered by the agreement; and
(b) if the agreement is a multi‑enterprise
agreement:
(i) the agreement has been
genuinely agreed to by each employer covered by the agreement; and
(ii) no person coerced, or
threatened to coerce, any of the employers to make the agreement; and
(c) the terms of the agreement do not contravene
section 55 (which deals with the interaction between the National
Employment Standards and enterprise agreements etc.); and
(d) the agreement passes the better
off overall test.
Note 1: For when an enterprise agreement has been
genuinely agreed to by employees, see section 188.
Note 2: FWA may approve an enterprise agreement that
does not pass the better off overall test if approval would not be contrary to
the public interest (see section 189).
Note 3: The terms of an enterprise agreement may supplement
the National Employment Standards (see paragraph 55(4)(b)).
Requirement that the group of employees covered by the
agreement is fairly chosen
(3) FWA must be satisfied that the group of
employees covered by the agreement was fairly chosen.
(3A) If the agreement does not cover all of the
employees of the employer or employers covered by the agreement, FWA must, in
deciding whether the group of employees covered was fairly chosen, take into
account whether the group is geographically, operationally or organisationally
distinct.
Requirement that there be no unlawful terms
(4) FWA must be satisfied that the agreement
does not include any unlawful terms (see Subdivision D of this Division).
Requirement that there be no designated outworker terms
(4A) FWA must be satisfied that the agreement
does not include any designated outworker terms.
Requirement for a nominal expiry date etc.
(5) FWA must be satisfied that:
(a) the agreement specifies a date as
its nominal expiry date; and
(b) the date will not be more than 4
years after the day on which FWA approves the agreement.
Requirement for a term about settling disputes
(6) FWA must be satisfied that the agreement
includes a term:
(a) that provides a procedure that
requires or allows FWA, or another person who is independent of the employers,
employees or employee organisations covered by the agreement, to settle
disputes:
(i) about any matters
arising under the agreement; and
(ii) in relation to the
National Employment Standards; and
(b) that allows for the representation
of employees covered by the agreement for the purposes of that procedure.
Note 1: FWA or a person must not settle a dispute about
whether an employer had reasonable business grounds under subsection 65(5) or
76(4) (see subsections 739(2) and 740(2)).
Note 2: However, this does not prevent FWA from dealing
with a dispute relating to a term of an enterprise agreement that has the same
(or substantially the same) effect as subsection 65(5) or 76(4).
187
When FWA must approve an enterprise agreement—additional requirements
Additional requirements
(1) This section sets out additional
requirements that must be met before FWA approves an enterprise agreement under
section 186.
Requirement that approval not be inconsistent with good
faith bargaining etc.
(2) FWA must be satisfied that approving the
agreement would not be inconsistent with or undermine good faith bargaining by
one or more bargaining representatives for a proposed enterprise agreement, or
an enterprise agreement, in relation to which a scope order is in operation.
Requirement relating to notice of variation of
agreement
(3) If a bargaining representative is
required to vary the agreement as referred to in subsection 184(2), FWA must be
satisfied that the bargaining representative has complied with that subsection
and subsection 184(3) (which deals with giving notice of the variation).
Requirements relating to particular kinds of employees
(4) FWA must be satisfied as referred to in
any provisions of Subdivision E of this Division that apply in relation to the
agreement.
Note: Subdivision E of this Division deals with
approval requirements relating to particular kinds of employees.
Requirements relating to greenfields agreements
(5) If the agreement is a greenfields
agreement, FWA must be satisfied that:
(a) the relevant employee
organisations that will be covered by the agreement are (taken as a group)
entitled to represent the industrial interests of a majority of the employees
who will be covered by the agreement, in relation to work to be performed under
the agreement; and
(b) it is in the public interest to
approve the agreement.
188
When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely
agreed to by the employees covered by the agreement if FWA is satisfied
that:
(a) the employer, or each of the
employers, covered by the agreement complied with the following provisions in
relation to the agreement:
(i) subsections 180(2),
(3) and (5) (which deal with pre‑approval steps);
(ii) subsection 181(2)
(which requires that employees not be requested to approve an enterprise
agreement until 21 days after the last notice of employee representational
rights is given); and
(b) the agreement was made in
accordance with whichever of subsection 182(1) or (2) applies (those
subsections deal with the making of different kinds of enterprise agreements by
employee vote); and
(c) there are no other reasonable
grounds for believing that the agreement has not been genuinely agreed to by
the employees.
189
FWA may approve an enterprise agreement that does not pass better off overall
test—public interest test
Application of this section
(1) This section applies if:
(a) FWA is not required to approve an
enterprise agreement under section 186; and
(b) the only reason for this is that
FWA is not satisfied that the agreement passes the better off overall test.
Approval of agreement if not contrary to the public
interest
(2) FWA may approve the agreement under this
section if FWA is satisfied that, because of exceptional circumstances, the
approval of the agreement would not be contrary to the public interest.
Note: FWA may approve an enterprise agreement under
this section with undertakings (see section 190).
(3) An example of a case in which FWA may be
satisfied of the matter referred to in subsection (2) is where the
agreement is part of a reasonable strategy to deal with a short‑term crisis in,
and to assist in the revival of, the enterprise of an employer covered by the
agreement.
Nominal expiry date
(4) The nominal expiry date of
an enterprise agreement approved by FWA under this section is the earlier of
the following:
(a) the date specified in the
agreement as the nominal expiry date of the agreement;
(b) 2 years after the day on which FWA
approved the agreement.
190
FWA may approve an enterprise agreement with undertakings
Application of this section
(1) This section applies if:
(a) an application for the approval of
an enterprise agreement has been made under section 185; and
(b) FWA has a concern that the
agreement does not meet the requirements set out in sections 186 and 187.
Approval of agreement with undertakings
(2) FWA may approve the agreement under
section 186 if FWA is satisfied that an undertaking accepted by FWA under
subsection (3) of this section meets the concern.
Undertakings
(3) FWA may only accept a written undertaking
from one or more employers covered by the agreement if FWA is satisfied that
the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any
employee covered by the agreement; or
(b) result in substantial changes to
the agreement.
FWA must seek views of bargaining representatives
(4) FWA must not accept an undertaking under
subsection (3) unless FWA has sought the views of each person who FWA
knows is a bargaining representative for the agreement.
Signature requirements
(5) The undertaking must meet any
requirements relating to the signing of undertakings that are prescribed by the
regulations.
191
Effect of undertakings
(1) If:
(a) FWA approves an enterprise
agreement after accepting an undertaking under subsection 190(3) in relation to
the agreement; and
(b) the agreement covers a single
employer;
the undertaking is taken to be a term of the agreement, as
the agreement applies to the employer.
(2) If:
(a) FWA approves an enterprise
agreement after accepting an undertaking under subsection 190(3) in relation to
the agreement; and
(b) the agreement covers 2 or more
employers;
the undertaking is taken to be a term of the agreement, as
the agreement applies to each employer that gave the undertaking.
192
When FWA may refuse to approve an enterprise agreement
(1) If an application for the approval of an
enterprise agreement is made under section 185, FWA may refuse to approve
the agreement if FWA considers that compliance with the terms of the agreement
may result in:
(a) a person committing an offence
against a law of the Commonwealth; or
(b) a person being liable to pay a
pecuniary penalty in relation to a contravention of a law of the Commonwealth.
(2) Subsection (1) has effect despite
sections 186 and 189 (which deal with the approval of enterprise
agreements).
(3) If FWA refuses to approve an enterprise
agreement under this section, FWA may refer the agreement to any person or body
FWA considers appropriate.
Subdivision C—Better off overall test
193
Passing the better off overall test
When a non‑greenfields agreement passes the better off
overall test
(1) An enterprise agreement that is not a
greenfields agreement passes the better off overall test
under this section if FWA is satisfied, as at the test time, that each award
covered employee, and each prospective award covered employee, for the
agreement would be better off overall if the agreement applied to the employee
than if the relevant modern award applied to the employee.
FWA must disregard individual flexibility arrangement
(2) If, under the flexibility term in the
relevant modern award, an individual flexibility arrangement has been agreed to
by an award covered employee and his or her employer, FWA must disregard the
individual flexibility arrangement for the purposes of determining whether the
agreement passes the better off overall test.
When a greenfields agreement passes the better off overall
test
(3) A greenfields agreement passes the
better off overall test under this section if FWA is satisfied,
as at the test time, that each prospective award covered employee for the
agreement would be better off overall if the agreement applied to the employee
than if the relevant modern award applied to the employee.
Award covered employee
(4) An award covered employee
for an enterprise agreement is an employee who:
(a) is covered by the agreement; and
(b) at the test time, is covered by a
modern award (the relevant modern award) that:
(i) is in operation; and
(ii) covers the employee in
relation to the work that he or she is to perform under the agreement; and
(iii) covers his or her
employer.
Prospective award covered employee
(5) A prospective award covered
employee for an enterprise agreement is a person who, if he or she were
an employee at the test time of an employer covered by the agreement:
(a) would be covered by the agreement;
and
(b) would be covered by a modern award
(the relevant modern award) that:
(i) is in operation; and
(ii) would cover the person
in relation to the work that he or she would perform under the agreement; and
(iii) covers the employer.
Test time
(6) The test time is the time
the application for approval of the agreement by FWA was made under
section 185.
FWA may assume employee better off overall in certain
circumstances
(7) For the purposes of determining whether
an enterprise agreement passes the better off overall test, if a class of
employees to which a particular employee belongs would be better off if the
agreement applied to that class than if the relevant modern award applied to
that class, FWA is entitled to assume, in the absence of evidence to the
contrary, that the employee would be better off overall if the agreement
applied to the employee.
Subdivision D—Unlawful terms
194
Meaning of unlawful term
A term of an enterprise agreement is an unlawful
term if it is:
(a) a discriminatory term; or
(b) an objectionable term; or
(c) if a particular employee would be
protected from unfair dismissal under Part 3‑2 after completing a period
of employment of at least the minimum employment period—a term that confers an
entitlement or remedy in relation to a termination of the employee’s employment
that is unfair (however described) before the employee has completed that
period; or
(d) a term that excludes the
application to, or in relation to, a person of a provision of Part 3‑2
(which deals with unfair dismissal), or modifies the application of such a provision
in a way that is detrimental to, or in relation to, a person; or
(e) a term that is inconsistent with a
provision of Part 3‑3 (which deals with industrial action); or
(f) a term that provides for an
entitlement:
(i) to enter premises for
a purpose referred to in section 481 (which deals with investigation of
suspected contraventions); or
(ii) to enter premises to
hold discussions of a kind referred to in section 484;
other than in accordance with
Part 3‑4 (which deals with right of entry); or
(g) a term that provides for the
exercise of a State or Territory OHS right other than in accordance with
Part 3‑4 (which deals with right of entry).
195
Meaning of discriminatory term
Discriminatory term
(1) A term of an enterprise agreement is a discriminatory
term to the extent that it discriminates against an employee covered by
the agreement because of, or for reasons including, the employee’s race,
colour, sex, sexual preference, age, physical or mental disability, marital
status, family or carer’s responsibilities, pregnancy, religion, political
opinion, national extraction or social origin.
Certain terms are not discriminatory terms
(2) A term of an enterprise agreement does
not discriminate against an employee:
(a) if the reason for the discrimination
is the inherent requirements of the particular position concerned; or
(b) merely because it discriminates,
in relation to employment of the employee as a member of the staff of an
institution that is conducted in accordance with the doctrines, tenets, beliefs
or teachings of a particular religion or creed:
(i) in good faith; and
(ii) to avoid injury to the
religious susceptibilities of adherents of that religion or creed.
(3) A term of an enterprise agreement does
not discriminate against an employee merely because it provides for wages for:
(a) all junior employees, or a class
of junior employees; or
(b) all employees with a disability,
or a class of employees with a disability; or
(c) all employees to whom training
arrangements apply, or a class of employees to whom training arrangements
apply.
Subdivision E—Approval requirements relating to particular kinds of
employees
196
Shiftworkers
Application of this section
(1) This section applies if:
(a) an employee is covered by an
enterprise agreement; and
(b) a modern award that is in
operation and covers the employee defines or describes the employee as a
shiftworker for the purposes of the National Employment Standards.
Shiftworkers and the National Employment Standards
(2) FWA must be satisfied that the agreement
defines or describes the employee as a shiftworker for the purposes of the
National Employment Standards.
Note: Section 87 provides an employee with an
entitlement to 5 weeks of paid annual leave if an enterprise agreement that applies
to the employee defines or describes the employee as a shiftworker for the
purposes of the National Employment Standards.
197
Pieceworkers—enterprise agreement includes pieceworker term
Application of this section
(1) This section applies if:
(a) an enterprise agreement that
covers an employee includes a term that defines or describes the employee as a
pieceworker; and
(b) a modern award that is in
operation and covers the employee does not include such a term.
No detriment test
(2) FWA must be satisfied that the effect of
including such a term in the agreement is not detrimental to the employee in
relation to the entitlements of the employee under the National Employment
Standards.
198
Pieceworkers—enterprise agreement does not include a pieceworker term
Application of this section
(1) This section applies if:
(a) an enterprise agreement that
covers an employee does not include a term that defines or describes the
employee as a pieceworker; and
(b) a modern award that is in
operation and covers the employee includes such a term.
No detriment test
(2) FWA must be satisfied that the effect of
not including such a term in the agreement is not detrimental to the employee
in relation to the entitlements of the employee under the National Employment
Standards.
199
School‑based apprentices and school‑based trainees
Application of this section
(1) This section applies if:
(a) an employee who is a school‑based
apprentice or a school‑based trainee is covered by an enterprise agreement; and
(b) the agreement provides for the
employee to be paid loadings (the agreement loadings) in lieu of
any of the following:
(i) paid annual leave;
(ii) paid personal/carer’s
leave;
(iii) paid absence under
Division 10 of Part 2‑2 (which deals with public holidays); and
(c) a modern award that is in
operation and covers the employee provides for the employee to be paid loadings
(the award loadings) in lieu of leave or absence of that kind.
No detriment test
(2) FWA must be satisfied that the amount or
rate (as the case may be) of the agreement loadings is not detrimental to the
employee when compared to the amount or rate of the award loadings.
200
Outworkers
Application of this section
(1) This section applies if:
(a) an employee who is an outworker is
covered by an enterprise agreement; and
(b) a modern award that is in
operation and covers the employee includes outworker terms.
Agreement must include outworker terms etc.
(2) FWA must be satisfied that:
(a) the agreement includes terms of
that kind; and
(b) those terms of the agreement are
not detrimental to the employee in any respect when compared to the outworker
terms of the modern award.
Subdivision F—Other matters
201
Approval decision to note certain matters
Approval decision to note model terms included in an
enterprise agreement
(1) If:
(a) FWA approves an enterprise
agreement; and
(b) either or both of the following
apply:
(i) the model flexibility
term is taken, under subsection 202(4), to be a term of the agreement;
(ii) the model consultation
term is taken, under subsection 205(2), to be a term of the agreement;
FWA must note in its decision to approve the agreement
that those terms are so included in the agreement.
Approval decision to note that an enterprise agreement
covers an employee organisation
(2) If:
(a) an employee organisation has given
a notice under subsection 183(1) that the organisation wants the enterprise
agreement to cover it; and
(b) FWA approves the agreement;
FWA must note in its decision to approve the agreement
that the agreement covers the organisation.
Approval decision to note undertakings
(3) If FWA approves an enterprise agreement
after accepting an undertaking under subsection 190(3) in relation to the
agreement, FWA must note in its decision to approve the agreement that the
undertaking is taken to be a term of the agreement.
Division 5—Mandatory terms of enterprise agreements
202
Enterprise agreements to include a flexibility term etc.
Flexibility term must be included in an enterprise
agreement
(1) An enterprise agreement must include a
term (a flexibility term) that:
(a) enables an employee and his or her
employer to agree to an arrangement (an individual flexibility
arrangement) varying the effect of the agreement in relation to the
employee and the employer, in order to meet the genuine needs of the employee
and employer; and
(b) complies with section 203.
Effect of an individual flexibility arrangement
(2) If an employee and employer agree to an
individual flexibility arrangement under a flexibility term in an enterprise
agreement:
(a) the agreement has effect in
relation to the employee and the employer as if it were varied by the
arrangement; and
(b) the arrangement is taken to be a
term of the agreement.
(3) To avoid doubt, the individual flexibility
arrangement:
(a) does not change the effect the
agreement has in relation to the employer and any other employee; and
(b) does not have any effect other
than as a term of the agreement.
Model flexibility term
(4) If an enterprise agreement does not
include a flexibility term, the model flexibility term is taken to be a term of
the agreement.
(5) The regulations must prescribe the model
flexibility term for enterprise agreements.
203
Requirements to be met by a flexibility term
Flexibility term must meet requirements
(1) A flexibility term in an enterprise
agreement must meet the requirements set out in this section.
Requirements relating to content
(2) The flexibility term must:
(a) set out the terms of the
enterprise agreement the effect of which may be varied by an individual
flexibility arrangement agreed to under the flexibility term; and
(b) require the employer to ensure
that any individual flexibility arrangement agreed to under the flexibility
term:
(i) must be about matters
that would be permitted matters if the arrangement were an enterprise
agreement; and
(ii) must not include a
term that would be an unlawful term if the arrangement were an enterprise
agreement.
Requirement for genuine agreement
(3) The flexibility term must require that
any individual flexibility arrangement is genuinely agreed to by the employer
and the employee.
Requirement that the employee be better off overall
(4) The flexibility term must require the
employer to ensure that any individual flexibility arrangement agreed to under
the term must result in the employee being better off overall than the employee
would have been if no individual flexibility arrangement were agreed to.
Requirement relating to approval or consent of another
person
(5) Except as required by
subparagraph (7)(a)(ii), the employer must ensure that the flexibility
term does not require that any individual flexibility arrangement agreed to by
an employer and employee under the term be approved, or consented to, by
another person.
Requirement relating to termination of individual
flexibility arrangements
(6) The flexibility term must require the
employer to ensure that any individual flexibility arrangement agreed to under
the term must be able to be terminated:
(a) by either the employee, or the
employer, giving written notice of not more than 28 days; or
(b) by the employee and the employer
at any time if they agree, in writing, to the termination.
Other requirements
(7) The flexibility term must require the
employer to ensure that:
(a) any individual flexibility
arrangement agreed to under the term must be in writing and signed:
(i) in all cases—by the
employee and the employer; and
(ii) if the employee is
under 18—by a parent or guardian of the employee; and
(b) a copy of any individual
flexibility arrangement agreed to under the term must be given to the employee
within 14 days after it is agreed to.
204
Effect of arrangement that does not meet requirements of flexibility term
Application of this section
(1) This section applies if:
(a) an employee and employer agree to
an arrangement that purports to be an individual flexibility arrangement under
a flexibility term in an enterprise agreement; and
(b) the arrangement does not meet a
requirement set out in section 203.
Note: A failure to meet such a requirement may be a
contravention of a provision of Part 3‑1 (which deals with general
protections).
Arrangement has effect as if it were an individual
flexibility arrangement
(2) The arrangement has effect as if it were
an individual flexibility arrangement.
Employer contravenes flexibility term in specified
circumstances
(3) If section 203 requires the employer
to ensure that the arrangement meets the requirement, the employer contravenes
the flexibility term of the agreement.
Requirement relating to termination of arrangement
(4) If the arrangement does not provide that
the arrangement is able to be terminated:
(a) by either the employee, or the
employer, giving written notice of not more than 28 days; or
(b) by the employee and the employer
at any time if they agree, in writing, to the termination;
the arrangement is taken to provide that the arrangement
is able to be so terminated.
205
Enterprise agreements to include a consultation term etc.
Consultation term must be included in an enterprise
agreement
(1) An enterprise agreement must include a
term (a consultation term) that:
(a) requires the employer or employers
to which the agreement applies to consult the employees to whom the agreement
applies about major workplace changes that are likely to have a significant
effect on the employees; and
(b) allows for the representation of
those employees for the purposes of that consultation.
Model consultation term
(2) If an enterprise agreement does not
include a consultation term, the model consultation term is taken to be a term
of the agreement.
(3) The regulations must prescribe the model
consultation term for enterprise agreements.
Division 6—Base rate of pay under enterprise agreements
206
Base rate of pay under an enterprise agreement must not be less than the modern
award rate or the national minimum wage order rate etc.
If an employee is covered by a modern award that is in
operation
(1) If:
(a) an enterprise agreement applies to
an employee; and
(b) a modern award that is in
operation covers the employee;
the base rate of pay payable to the employee under the
agreement (the agreement rate) must not be less than the base
rate of pay that would be payable to the employee under the modern award (the award
rate) if the modern award applied to the employee.
(2) If the agreement rate is less than the
award rate, the agreement has effect in relation to the employee as if the
agreement rate were equal to the award rate.
If an employer is required to pay an employee the
national minimum wage etc.
(3) If:
(a) an enterprise agreement applies to
an employee; and
(b) the employee is not covered by a
modern award that is in operation; and
(c) a national minimum wage order
would, but for the agreement applying to the employee, require the employee’s
employer to pay the employee a base rate of pay (the employee’s order
rate) that at least equals the national minimum wage, or a special
national minimum wage, set by the order;
the base rate of pay payable to the employee under the enterprise
agreement (the agreement rate) must not be less than the
employee’s order rate.
(4) If the agreement rate is less than the
employee’s order rate, the agreement has effect in relation to the employee as
if the agreement rate were equal to the employee’s order rate.
Division 7—Variation and termination of enterprise agreements
Subdivision A—Variation of enterprise agreements by employers and
employees
207
Variation of an enterprise agreement may be made by employers and employees
Variation by employers and employees
(1) The following may jointly make a
variation of an enterprise agreement:
(a) if the agreement covers a single
employer—the employer and:
(i) the employees employed
at the time who are covered by the agreement; and
(ii) the employees employed
at the time who will be covered by the agreement if the variation is approved
by FWA;
(b) if the agreement covers 2 or more
employers—all of those employers and:
(i) the employees employed
at the time who are covered by the agreement; and
(ii) the employees employed
at the time who will be covered by the agreement if the variation is approved
by FWA.
Note: For when a variation of an enterprise
agreement is made, see section 209.
(2) The employees referred to in
paragraphs (1)(a) and (b) are the affected employees for the
variation.
Variation has no effect unless approved by FWA
(3) A variation of an enterprise agreement
has no effect unless it is approved by FWA under section 211.
Limitation—greenfields agreement
(4) Subsection (1) applies to a
greenfields agreement only if one or more of the persons who will be necessary
for the normal conduct of the enterprise concerned and are covered by the
agreement have been employed.
208
Employers may request employees to approve a proposed variation of an
enterprise agreement
(1) An employer covered by an enterprise
agreement may request the affected employees for a proposed variation of the
agreement to approve the proposed variation by voting for it.
(2) Without limiting subsection (1), the
employer may request that the affected employees vote by ballot or by an
electronic method.
209
When a variation of an enterprise agreement is made
Single‑enterprise agreement
(1) If the affected employees of an employer,
or each employer, covered by a single‑enterprise agreement have been asked to
approve a proposed variation under subsection 208(1), the variation is made
when a majority of the affected employees who cast a valid vote approve the
variation.
Multi‑enterprise agreement
(2) If the affected employees of each
employer covered by a multi‑enterprise agreement have been asked to approve a
proposed variation under subsection 208(1), the variation is made
when a majority of the affected employees of each individual employer who cast
a valid vote have approved the variation.
210
Application for FWA approval of a variation of an enterprise agreement
Application for approval
(1) If a variation of an enterprise agreement
has been made, a person covered by the agreement must apply to FWA for approval
of the variation.
Material to accompany the application
(2) The application must be accompanied by:
(a) a signed copy of the variation;
and
(b) a copy of the agreement as
proposed to be varied; and
(c) any declarations that are required
by the procedural rules to accompany the application.
When the application must be made
(3) The application must be made:
(a) within 14 days after the variation
is made; or
(b) if in all the circumstances FWA
considers it fair to extend that period—within such further period as FWA
allows.
Signature requirements
(4) The regulations may prescribe
requirements relating to the signing of variations of enterprise agreements.
211
When FWA must approve a variation of an enterprise agreement
Approval of variation by FWA
(1) If an application for the approval of a
variation of an enterprise agreement is made under section 210, FWA must
approve the variation if:
(a) FWA is satisfied that had an
application been made under section 185 for the approval of the agreement
as proposed to be varied, FWA would have been required to approve the agreement
under section 186; and
(b) FWA is satisfied that the
agreement as proposed to be varied would not specify a date as its nominal
expiry date which is more than 4 years after the day on which FWA approved the
agreement;
unless FWA is satisfied that there are serious public
interest grounds for not approving the variation.
Note: FWA may approve a variation under this section
with undertakings (see section 212).
Modification of approval requirements
(2) For the purposes of FWA deciding whether
it is satisfied of the matter referred to in paragraph (1)(a), FWA must:
(a) take into account
subsections (3) and (4) and any regulations made for the purposes of
subsection (6); and
(b) comply with subsection (5);
and
(c) disregard sections 190 and
191 (which deal with the approval of enterprise agreements with undertakings).
(3) The following provisions:
(a) section 180 (which deals with
pre‑approval steps);
(b) subsection 186(2) (which deals with
FWA approval of enterprise agreements);
(c) section 188 (which deals with
genuine agreement);
have effect as if:
(d) references in sections 180
and 188 to the proposed enterprise agreement, or the enterprise agreement, were
references to the proposed variation, or the variation, of the enterprise
agreement (as the case may be); and
(e) references in those provisions to
the employees employed at the time who will be covered by the proposed
enterprise agreement, or the employees covered by the enterprise agreement,
were references to the affected employees for the variation; and
(f) references in section 180 to
subsection 181(1) were references to subsection 208(1); and
(g) the words “if the agreement is not
a greenfields
agreement—” in paragraph 186(2)(a) were omitted; and
(h) paragraph 186(2)(b) were omitted;
and
(ha) references in paragraphs 186(2)(c)
and (d) to the agreement were references to the enterprise agreement as
proposed to be varied; and
(hb) subparagraph 188(a)(ii) were
omitted; and
(j) the words “182(1) or (2)” in
paragraph 188(b) were omitted and the words “209(1) or (2)” were substituted.
(4) Section 193 (which deals with
passing the better off overall test) has effect as if:
(a) the words “that is not a
greenfields agreement” in subsection (1) were omitted; and
(b) subsection (3) were omitted;
and
(c) the words “the agreement” in
subsection (6) were omitted and the words “the variation of the enterprise
agreement” were substituted; and
(d) the reference in
subsection (6) to section 185 were a reference to section 210.
(5) For the purposes of determining whether
an enterprise agreement as proposed to be varied passes the better off overall
test, FWA must disregard any individual flexibility arrangement that has been
agreed to by an award covered employee and his or her employer under the
flexibility term in the agreement.
Regulations may prescribe additional modifications
(6) The regulations may provide that, for the
purposes of FWA deciding whether it is satisfied of the matter referred to in
paragraph (1)(a), specified provisions of this Part have effect with such
modifications as are prescribed by the regulations.
212
FWA may approve a variation of an enterprise agreement with undertakings
Application of this section
(1) This section applies if:
(a) an application for the approval of
a variation of an enterprise agreement has been made under section 210;
and
(b) FWA has a concern that the
variation does not meet the requirements set out in section 211.
Approval of agreement with undertakings
(2) FWA may approve the variation under
section 211 if FWA is satisfied that an undertaking accepted by FWA under
subsection (3) of this section meets the concern.
Undertakings
(3) FWA may only accept a written undertaking
from one or more employers covered by the agreement if FWA is satisfied that
the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any
affected employee for the variation; or
(b) result in substantial changes to
the variation.
Signature requirements
(4) An undertaking must meet any requirements
relating to the signing of undertakings that are prescribed by the regulations.
213
Effect of undertakings
(1) If:
(a) FWA approves a variation of an
enterprise agreement after accepting an undertaking under subsection 212(3) in
relation to the variation; and
(b) the agreement covers a single
employer;
the undertaking is taken to be a term of the agreement, as
the agreement applies to the employer.
(2) If:
(a) FWA approves a variation of an
enterprise agreement after accepting an undertaking under subsection 212(3) in
relation to the variation; and
(b) the agreement covers 2 or more
employers;
the undertaking is taken to be a term of the agreement, as
the agreement applies to each employer that gave the undertaking.
214
When FWA may refuse to approve a variation of an enterprise agreement
(1) If an application for the approval of a
variation of an enterprise agreement is made under section 210, FWA may
refuse to approve the variation if FWA considers that compliance with the terms
of the agreement as proposed to be varied may result in:
(a) a person committing an offence
against a law of the Commonwealth; or
(b) a person being liable to pay a
pecuniary penalty in relation to a contravention of a law of the Commonwealth.
(2) Subsection (1) has effect despite
section 211 (which deals with the approval of variations of enterprise
agreements).
(3) If FWA refuses to approve a variation of
an enterprise agreement under this section, FWA may refer the agreement as
proposed to be varied to any person or body FWA considers appropriate.
215
Approval decision to note undertakings
If FWA approves a variation of an
enterprise agreement after accepting an undertaking under subsection 212(3) in
relation to the variation, FWA must note in its decision to approve the
variation that the undertaking is taken to be a term of the agreement.
216
When variation comes into operation
If a variation of an enterprise
agreement is approved under section 211, the variation operates from the
day specified in the decision to approve the variation.
Subdivision B—Variations of enterprise agreements where there is
ambiguity, uncertainty or discrimination
217
Variation of an enterprise agreement to remove an ambiguity or uncertainty
(1) FWA may vary an enterprise agreement to
remove an ambiguity or uncertainty on application by any of the following:
(a) one or more of the employers
covered by the agreement;
(b) an employee covered by the
agreement;
(c) an employee organisation covered
by the agreement.
(2) If FWA varies the enterprise agreement,
the variation operates from the day specified in the decision to vary the
agreement.
217A
FWA may deal with certain disputes about variations
(1) This section applies if a variation of an
enterprise agreement is proposed.
(2) An employer or employee organisation
covered by the enterprise agreement or an affected employee for the variation
may apply to FWA for FWA to deal with a dispute about the proposed variation if
the employer and the affected employees are unable to resolve the dispute.
(3) FWA must not arbitrate (however
described) the dispute.
218
Variation of an enterprise agreement on referral by Australian Human Rights
Commission
Review of an enterprise agreement
(1) FWA must review an enterprise agreement
if the agreement is referred to it under section 46PW of the Australian
Human Rights Commission Act 1986 (which deals with discriminatory
industrial instruments).
(2) The following are entitled to make
submissions to FWA for consideration in the review:
(a) if the referral relates to action
that would be unlawful under Part 4 of the Age Discrimination Act 2004—the
Australian Human Rights Commission;
(b) if the referral relates to action
that would be unlawful under Part 2 of the Disability Discrimination
Act 1992—the Disability Discrimination Commissioner;
(c) if the referral relates to action
that would be unlawful under Part II of the Sex Discrimination Act 1984—the
Sex Discrimination Commissioner.
Variation of an enterprise agreement
(3) If FWA considers that the agreement
reviewed requires a person to do an act that would be unlawful under any of the
Acts referred to in subsection (2) (but for the fact that the act would be
done in direct compliance with the agreement), FWA must vary the agreement so
that it no longer requires the person to do an act that would be so unlawful.
(4) If the agreement is varied under
subsection (3), the variation operates from the day specified in the
decision to vary the agreement.
Subdivision C—Termination of enterprise agreements by employers and
employees
219
Employers and employees may agree to terminate an enterprise agreement
Termination by employers and employees
(1) The following may jointly agree to
terminate an enterprise agreement:
(a) if the agreement covers a single
employer—the employer and the employees covered by the agreement; or
(b) if the agreement covers 2 or more
employers—all of the employers and the employees covered by the agreement.
Note: For when a termination of an enterprise
agreement is agreed to, see section 221.
Termination has no effect unless approved by FWA
(2) A termination of an enterprise agreement
has no effect unless it is approved by FWA under section 223.
Limitation—greenfields agreement
(3) Subsection (1) applies to a
greenfields agreement only if one or more of the persons who will be necessary
for the normal conduct of the enterprise concerned and are covered by the
agreement have been employed.
220
Employers may request employees to approve a proposed termination of an
enterprise agreement
(1) An employer covered by an enterprise
agreement may request the employees covered by the agreement to approve a
proposed termination of the agreement by voting for it.
(2) Before making the request, the employer
must:
(a) take all reasonable steps to
notify the employees of the following:
(i) the time and place at
which the vote will occur;
(ii) the voting method that
will be used; and
(b) give the employees a reasonable
opportunity to decide whether they want to approve the proposed termination.
(3) Without limiting subsection (1), the
employer may request that the employees vote by ballot or by an electronic
method.
221
When termination of an enterprise agreement is agreed to
Single‑enterprise agreement
(1) If the employees of an employer, or each
employer, covered by a single‑enterprise agreement have been asked to approve a
proposed termination of the agreement under subsection 220(1), the termination
is agreed to when a majority of the employees who cast a valid
vote approve the termination.
Multi‑enterprise agreement
(2) If the employees of each employer covered
by a multi‑enterprise agreement have been asked to approve a proposed
termination of the agreement under subsection 220(1), the termination is agreed
to when a majority of the employees of each individual employer who
cast a valid vote have approved the termination.
222
Application for FWA approval of a termination of an enterprise agreement
Application for approval
(1) If a termination of an enterprise
agreement has been agreed to, a person covered by the agreement must apply to
FWA for approval of the termination.
Material to accompany the application
(2) The application must be accompanied by
any declarations that are required by the procedural rules to accompany the
application.
When the application must be made
(3) The application must be made:
(a) within 14 days after the
termination is agreed to; or
(b) if in all the circumstances FWA
considers it fair to extend that period—within such further period as FWA
allows.
223
When FWA must approve a termination of an enterprise agreement
If an application for the approval of a
termination of an enterprise agreement is made under section 222, FWA must
approve the termination if:
(a) FWA is satisfied that each
employer covered by the agreement complied with subsection 220(2) (which deals
with giving employees a reasonable opportunity to decide etc.) in relation to
the agreement; and
(b) FWA is satisfied that the
termination was agreed to in accordance with whichever of subsection 221(1) or
(2) applies (those subsections deal with agreement to the termination of
different kinds of enterprise agreements by employee vote); and
(c) FWA is satisfied that there are no
other reasonable grounds for believing that the employees have not agreed to
the termination; and
(d) FWA considers that it is
appropriate to approve the termination taking into account the views of the
employee organisation or employee organisations (if any) covered by the
agreement.
224
When termination comes into operation
If a termination of an enterprise
agreement is approved under section 223, the termination operates from the
day specified in the decision to approve the termination.
Subdivision D—Termination of enterprise agreements after nominal expiry
date
225
Application for termination of an enterprise agreement after its nominal expiry
date
If an enterprise agreement has passed
its nominal expiry date, any of the following may apply to FWA for the
termination of the agreement:
(a) one or more of the employers
covered by the agreement;
(b) an employee covered by the
agreement;
(c) an employee organisation covered
by the agreement.
226
When FWA must terminate an enterprise agreement
If an application for the termination of
an enterprise agreement is made under section 225, FWA must terminate the
agreement if:
(a) FWA is satisfied that it is not
contrary to the public interest to do so; and
(b) FWA considers that it is
appropriate to terminate the agreement taking into account all the
circumstances including:
(i) the views of the
employees, each employer, and each employee organisation (if any), covered by
the agreement; and
(ii) the circumstances of
those employees, employers and organisations including the likely effect that
the termination will have on each of them.
227
When termination comes into operation
If an enterprise agreement is terminated
under section 226, the termination operates from the day specified in the
decision to terminate the agreement.
Division 8—FWA’s general role in facilitating bargaining
Subdivision A—Bargaining orders
228
Bargaining representatives must meet the good faith bargaining requirements
(1) The following are the good faith
bargaining requirements that a bargaining representative for a proposed
enterprise agreement must meet:
(a) attending, and participating in,
meetings at reasonable times;
(b) disclosing relevant information
(other than confidential or commercially sensitive information) in a timely
manner;
(c) responding to proposals made by
other bargaining representatives for the agreement in a timely manner;
(d) giving genuine consideration to
the proposals of other bargaining representatives for the agreement, and giving
reasons for the bargaining representative’s responses to those proposals;
(e) refraining from capricious or
unfair conduct that undermines freedom of association or collective bargaining;
(f) recognising and bargaining with
the other bargaining representatives for the agreement.
(2) The good faith bargaining requirements do
not require:
(a) a bargaining representative to
make concessions during bargaining for the agreement; or
(b) a bargaining representative to
reach agreement on the terms that are to be included in the agreement.
229
Applications for bargaining orders
Persons who may apply for a bargaining order
(1) A bargaining representative for a
proposed enterprise agreement may apply to FWA for an order (a bargaining
order) under section 230 in relation to the agreement.
Multi‑enterprise agreements
(2) An application for a bargaining order
must not be made in relation to a proposed multi‑enterprise agreement unless a
low‑paid authorisation is in operation in relation to the agreement.
Timing of applications
(3) The application may only be made at
whichever of the following times applies:
(a) if one or more enterprise
agreements apply to an employee, or employees, who will be covered by the
proposed enterprise agreement:
(i) not more than 90 days
before the nominal expiry date of the enterprise agreement, or the latest
nominal expiry date of those enterprise agreements (as the case may be); or
(ii) after an employer that
will be covered by the proposed enterprise agreement has requested under
subsection 181(1) that employees approve the agreement, but before the
agreement is so approved;
(b) otherwise—at any time.
Note: An employer cannot request employees to
approve the agreement under subsection 181(1) until 21 days after the last
notice of employee representational rights is given.
Prerequisites for making an application
(4) The bargaining representative may only
apply for the bargaining order if the bargaining representative:
(a) has concerns that:
(i) one or more of the
bargaining representatives for the agreement have not met, or are not meeting,
the good faith bargaining requirements; or
(ii) the bargaining process
is not proceeding efficiently or fairly because there are multiple bargaining
representatives for the agreement; and
(b) has given a written notice setting
out those concerns to the relevant bargaining representatives; and
(c) has given the relevant bargaining
representatives a reasonable time within which to respond to those concerns;
and
(d) considers that the relevant
bargaining representatives have not responded appropriately to those concerns.
Non‑compliance with notice requirements may be
permitted
(5) FWA may consider the application even if
it does not comply with paragraph (4)(b) or (c) if FWA is satisfied that
it is appropriate in all the circumstances to do so.
230
When FWA may make a bargaining order
Bargaining orders
(1) FWA may make a bargaining order under
this section in relation to a proposed enterprise agreement if:
(a) an application for the order has
been made; and
(b) the requirements of this section
are met in relation to the agreement; and
(c) FWA is satisfied that it is
reasonable in all the circumstances to make the order.
Agreement to bargain or certain instruments in
operation
(2) FWA must be satisfied in all cases that
one of the following applies:
(a) the employer or employers have
agreed to bargain, or have initiated bargaining, for the agreement;
(b) a majority support determination
in relation to the agreement is in operation;
(c) a scope order in relation to the
agreement is in operation;
(d) all of the employers are specified
in a low‑paid authorisation that is in operation in relation to the agreement.
Good faith bargaining requirements not met
(3) FWA must in all cases be satisfied:
(a) that:
(i) one or more of the
relevant bargaining representatives for the agreement have not met, or are not
meeting, the good faith bargaining requirements; or
(ii) the bargaining process
is not proceeding efficiently or fairly because there are multiple bargaining
representatives for the agreement; and
(b) that the applicant has complied
with the requirements of subsection 229(4) (which deals with notifying relevant
bargaining representatives of concerns), unless subsection 229(5) permitted the
applicant to make the application without complying with those requirements.
Bargaining order must be in accordance with
section 231
(4) The bargaining order must be in
accordance with section 231 (which deals with what a bargaining order must
specify).
231
What a bargaining order must specify
(1) A bargaining order in relation to a
proposed enterprise agreement must specify all or any of the following:
(a) the actions to be taken by, and
requirements imposed upon, the bargaining representatives for the agreement,
for the purpose of ensuring that they meet the good faith bargaining
requirements;
(b) requirements imposed upon those
bargaining representatives not to take action that would constitute capricious
or unfair conduct that undermines freedom of association or collective
bargaining;
(c) the actions to be taken by those
bargaining representatives to deal with the effects of such capricious or
unfair conduct;
(d) such matters, actions or
requirements as FWA considers appropriate, taking into account subparagraph
230(3)(a)(ii) (which deals with multiple bargaining representatives), for the
purpose of promoting the efficient or fair conduct of bargaining for the
agreement.
(2) The kinds of bargaining orders that FWA
may make in relation to a proposed enterprise agreement include the following:
(a) an order excluding a bargaining
representative for the agreement from bargaining;
(b) an order requiring some or all of
the bargaining representatives of the employees who will be covered by the
agreement to meet and appoint one of the bargaining representatives to
represent the bargaining representatives in bargaining;
(c) an order that an employer not
terminate the employment of an employee, if the termination would constitute,
or relate to, a failure by a bargaining representative to meet the good faith
bargaining requirement referred to in paragraph 228(1)(e) (which deals with
capricious or unfair conduct that undermines freedom of association or
collective bargaining);
(d) an order to reinstate an employee
whose employment has been terminated if the termination constitutes, or relates
to, a failure by a bargaining representative to meet the good faith bargaining
requirement referred to in paragraph 228(1)(e) (which deals with capricious or
unfair conduct that undermines freedom of association or collective
bargaining).
(3) The regulations may:
(a) specify the factors FWA may or
must take into account in deciding whether or not to make a bargaining order
for reinstatement of an employee; and
(b) provide for FWA to take action and
make orders in connection with, and to deal with matters relating to, a
bargaining order of that kind.
232
Operation of a bargaining order
A bargaining order in relation to a
proposed enterprise agreement:
(a) comes into operation on the day on
which it is made; and
(b) ceases to be in operation at the
earliest of the following:
(i) if the order is
revoked—the time specified in the instrument of revocation;
(ii) when the agreement is
approved by FWA;
(iii) when a workplace determination
that covers the employees that would have been covered by the agreement comes
into operation;
(iv) when the bargaining
representatives for the agreement agree that bargaining has ceased.
233
Contravening a bargaining order
A person to whom a bargaining order
applies must not contravene a term of the order.
Note: This section is a civil remedy provision (see
Part 4‑1).
Subdivision B—Serious breach declarations
234
Applications for serious breach declarations
A bargaining representative for a
proposed enterprise agreement may apply to FWA for a declaration (a serious
breach declaration) under section 235 in relation to the
agreement.
Note: The consequence of a serious breach
declaration being made in relation to the agreement is that FWA may, in certain
circumstances, make a bargaining related workplace determination under
section 269 in relation to the agreement.
235
When FWA may make a serious breach declaration
Serious breach declaration
(1) FWA may make a serious breach declaration
in relation to a proposed enterprise agreement if:
(a) an application for the declaration
has been made; and
(b) FWA is satisfied of the matters
set out in subsection (2).
Matters of which FWA must be satisfied before making a
serious breach declaration
(2) FWA must be satisfied that:
(a) one or more bargaining
representatives for the agreement has contravened one or more bargaining orders
in relation to the agreement; and
(b) the contravention or
contraventions:
(i) are serious and
sustained; and
(ii) have significantly
undermined bargaining for the agreement; and
(c) the other bargaining
representatives for the agreement (the designated bargaining
representatives) have exhausted all other reasonable alternatives to
reach agreement on the terms that should be included in the agreement; and
(d) agreement on the terms that should
be included in the agreement will not be reached in the foreseeable future; and
(e) it is reasonable in all the
circumstances to make the declaration, taking into account the views of all the
bargaining representatives for the agreement.
Factors FWA must take into account in deciding whether
reasonable alternatives exhausted
(3) In deciding whether or not the designated
bargaining representatives have exhausted all other reasonable alternatives to
reach agreement on the terms that should be included in the agreement, FWA may
take into account any matter FWA considers relevant, including the following:
(a) whether FWA has provided
assistance under section 240 in relation to the agreement;
(b) whether a designated bargaining
representative has applied to a court for an order under Part 4‑1 in
relation to the contravention or contraventions referred to in
paragraph (2)(a) of this section; and
(c) any findings or orders made by the
court in relation to such an application.
What declaration must specify
(4) The declaration must specify:
(a) the proposed enterprise agreement
to which the declaration relates; and
(b) any other matter prescribed by the
procedural rules.
Operation of declaration
(5) The declaration:
(a) comes into operation on the day on
which it is made; and
(b) ceases to be in operation when
each employer specified in the declaration is covered by an enterprise
agreement or a workplace determination.
Subdivision C—Majority support determinations and scope orders
236
Majority support determinations
(1) A bargaining representative of an
employee who will be covered by a proposed single‑enterprise agreement may
apply to FWA for a determination (a majority support determination)
that a majority of the employees who will be covered by the agreement want to
bargain with the employer, or employers, that will be covered by the agreement.
(2) The application must specify:
(a) the employer, or employers, that
will be covered by the agreement; and
(b) the employees who will be covered
by the agreement.
237
When FWA must make a majority support determination
Majority support determination
(1) FWA must make a majority support
determination in relation to a proposed single‑enterprise agreement if:
(a) an application for the
determination has been made; and
(b) FWA is satisfied of the matters
set out in subsection (2) in relation to the agreement.
Matters of which FWA must be satisfied before making a
majority support determination
(2) FWA must be satisfied that:
(a) a majority of the employees:
(i) who are employed by
the employer or employers at a time determined by FWA; and
(ii) who will be covered by
the agreement;
want to bargain; and
(b) the employer, or employers, that
will be covered by the agreement have not yet agreed to bargain, or initiated
bargaining, for the agreement; and
(c) that the group of employees who
will be covered by the agreement was fairly chosen; and
(d) it is reasonable in all the
circumstances to make the determination.
(3) For the purposes of
paragraph (2)(a), FWA may work out whether a majority of employees want to
bargain using any method FWA considers appropriate.
(3A) If the agreement will not cover all of the
employees of the employer or employers covered by the agreement, FWA must, in
deciding for the purposes of paragraph (2)(c) whether the group of
employees who will be covered was fairly chosen, take into account whether the
group is geographically, operationally or organisationally distinct.
Operation of determination
(4) The determination comes into operation on
the day on which it is made.
238
Scope orders
Bargaining representatives may apply for scope orders
(1) A bargaining representative for a
proposed single‑enterprise agreement may apply to FWA for an order (a scope
order) under this section if:
(a) the bargaining representative has
concerns that bargaining for the agreement is not proceeding efficiently or
fairly; and
(b) the reason for this is that the
bargaining representative considers that the agreement will not cover
appropriate employees, or will cover employees that it is not appropriate for
the agreement to cover.
No scope order if a single interest employer
authorisation is in operation
(2) Despite subsection (1), the
bargaining representative must not apply for the scope order if a single
interest employer authorisation is in operation in relation to the agreement.
Bargaining representative must have given notice of
concerns
(3) The bargaining representative may only
apply for the scope order if the bargaining representative:
(a) has given a written notice setting
out the concerns referred to in subsection (1) to the relevant bargaining
representatives for the agreement; and
(b) has given the relevant bargaining
representatives a reasonable time within which to respond to those concerns;
and
(c) considers that the relevant
bargaining representatives have not responded appropriately.
When FWA may make scope order
(4) FWA may make the scope order if FWA is satisfied:
(a) that the bargaining representative
who made the application has met, or is meeting, the good faith bargaining
requirements; and
(b) that making the order will promote
the fair and efficient conduct of bargaining; and
(c) that the group of employees who
will be covered by the agreement proposed to be specified in the scope order
was fairly chosen; and
(d) it is reasonable in all the
circumstances to make the order.
Matters which FWA must take into account
(4A) If the agreement proposed to be specified
in the scope order will not cover all of the employees of the employer or
employers covered by the agreement, FWA must, in deciding for the purposes of
paragraph (4)(c) whether the group of employees who will be covered was
fairly chosen, take into account whether the group is geographically,
operationally or organisationally distinct.
Scope order must specify employer and employees to be
covered
(5) The scope order must specify, in relation
to a proposed single‑enterprise agreement:
(a) the employer, or employers, that
will be covered by the agreement; and
(b) the employees who will be covered
by the agreement.
Scope order must be in accordance with this section
etc.
(6) The scope order:
(a) must be in accordance with this
section; and
(b) may relate to more than one
proposed single‑enterprise agreement.
Orders etc. that FWA may make
(7) If FWA makes the scope order, FWA may
also:
(a) amend any existing bargaining
orders; and
(b) make or vary such other orders
(such as protected action ballot orders), determinations or other instruments
made by FWA, or take such other actions, as FWA considers appropriate.
239
Operation of a scope order
A scope order in relation to a proposed
single‑enterprise agreement:
(a) comes into operation on the day on
which it is made; and
(b) ceases to be in operation at the
earliest of the following:
(i) if the order is
revoked—the time specified in the instrument of revocation;
(ii) when the agreement is
approved by FWA;
(iii) when a workplace
determination that covers the employees that would have been covered by the
agreement comes into operation;
(iv) when the bargaining
representatives for the agreement agree that bargaining has ceased.
Subdivision D—FWA may deal with a bargaining dispute on request
240
Application for FWA to deal with a bargaining dispute
Bargaining representative may apply for FWA to deal
with a dispute
(1) A bargaining representative for a
proposed enterprise agreement may apply to FWA for FWA to deal with a dispute
about the agreement if the bargaining representatives for the agreement are
unable to resolve the dispute.
(2) If the proposed enterprise agreement is:
(a) a single‑enterprise agreement; or
(b) a multi‑enterprise agreement in
relation to which a low‑paid authorisation is in operation;
the application may be made by one bargaining
representative, whether or not the other bargaining representatives for the
agreement have agreed to the making of the application.
(3) If subsection (2) does not apply, a
bargaining representative may only make the application if all of the
bargaining representatives for the agreement have agreed to the making of the
application.
(4) If the bargaining representatives have
agreed that FWA may arbitrate (however described) the dispute, FWA may do so.
Division 9—Low‑paid bargaining
241
Objects of this Division
The objects of this Division are:
(a) to assist and encourage low‑paid
employees and their employers, who have not historically had the benefits of
collective bargaining, to make an enterprise agreement that meets their needs;
and
(b) to assist low‑paid employees and
their employers to identify improvements to productivity and service delivery
through bargaining for an enterprise agreement that covers 2 or more employers,
while taking into account the specific needs of individual enterprises; and
(c) to address constraints on the
ability of low‑paid employees and their employers to bargain at the enterprise
level, including constraints relating to a lack of skills, resources, bargaining
strength or previous bargaining experience; and
(d) to enable FWA to provide
assistance to low‑paid employees and their employers to facilitate bargaining
for enterprise agreements.
Note: A low‑paid workplace determination may be made
in specified circumstances under Division 2 of Part 2‑5 if the
bargaining representatives for a proposed enterprise agreement in relation to
which a low‑paid authorisation is in operation are unable to reach agreement.
242
Low‑paid authorisations
(1) The following persons may apply to FWA
for an authorisation (a low‑paid authorisation) under
section 243 in relation to a proposed multi‑enterprise agreement:
(a) a bargaining representative for
the agreement;
(b) an employee organisation that is
entitled to represent the industrial interests of an employee in relation to
work to be performed under the agreement.
Note: The effect of a low‑paid authorisation is that
the employers specified in it are subject to certain rules in relation to the
agreement that would not otherwise apply (such as in relation to the
availability of bargaining orders, see subsection 229(2)).
(2) The application must specify:
(a) the employers that will be covered
by the agreement; and
(b) the employees who will be covered
by the agreement.
(3) An application under this section must
not be made in relation to a proposed greenfields agreement.
243
When FWA must make a low‑paid authorisation
Low‑paid authorisation
(1) FWA must make a low‑paid authorisation in
relation to a proposed multi‑enterprise agreement if:
(a) an application for the
authorisation has been made; and
(b) FWA is satisfied that it is in the
public interest to make the authorisation, taking into account the matters
specified in subsections (2) and (3).
FWA must take into account historical and current
matters relating to collective bargaining
(2) In deciding whether or not to make the
authorisation, FWA must take into account the following:
(a) whether granting the authorisation
would assist low‑paid employees who have not had access to collective
bargaining or who face substantial difficulty bargaining at the enterprise
level;
(b) the history of bargaining in the
industry in which the employees who will be covered by the agreement work;
(c) the relative bargaining strength of
the employers and employees who will be covered by the agreement;
(d) the current terms and conditions
of employment of the employees who will be covered by the agreement, as
compared to relevant industry and community standards;
(e) the degree of commonality in the
nature of the enterprises to which the agreement relates, and the terms and
conditions of employment in those enterprises.
FWA must take into account matters relating to the
likely success of collective bargaining
(3) In deciding whether or not to make the
authorisation, FWA must also take into account the following:
(a) whether granting the authorisation
would assist in identifying improvements to productivity and service delivery
at the enterprises to which the agreement relates;
(b) the extent to which the likely
number of bargaining representatives for the agreement would be consistent with
a manageable collective bargaining process;
(c) the views of the employers and
employees who will be covered by the agreement;
(d) the extent to which the terms and
conditions of employment of the employees who will be covered by the agreement
is controlled, directed or influenced by a person other than the employer, or
employers, that will be covered by the agreement;
(e) the extent to which the applicant
for the authorisation is prepared to consider and respond reasonably to claims,
or responses to claims, that may be made by a particular employer named in the
application, if that employer later proposes to bargain for an agreement that:
(i) would cover that
employer; and
(ii) would not cover the
other employers specified in the application.
What authorisation must specify etc.
(4) The authorisation must specify:
(a) the employers that will be covered
by the agreement (which may be some or all of the employers specified in the
application); and
(b) the employees who will be covered
by the agreement (which may be some or all of the employees specified in the
application); and
(c) any other matter prescribed by the
procedural rules.
Operation of authorisation
(5) The authorisation comes into operation on
the day on which it is made.
244
Variation of low‑paid authorisations—general
Variation to remove employer
(1) An employer specified in a low‑paid
authorisation may apply to FWA for a variation of the authorisation to remove
the employer’s name from the authorisation.
(2) If an application is made under
subsection (1), FWA must vary the authorisation to remove the employer’s
name if FWA is satisfied that, because of a change in the employer’s
circumstances, it is no longer appropriate for the employer to be specified in
the authorisation.
Variation to add employer
(3) The following may apply to FWA for a
variation of a low‑paid authorisation to add the name of an employer that is
not specified in the authorisation:
(a) the employer;
(b) a bargaining representative of an
employee who will be covered by the proposed multi‑enterprise agreement to
which the authorisation relates;
(c) an employee organisation that is
entitled to represent the industrial interests of an employee in relation to
work to be performed under that agreement.
(4) If an application is made under
subsection (3), FWA must vary the authorisation to add the employer’s name
if FWA is satisfied that it is in the public interest to do so, taking into
account the matters specified in subsections 243(2) and (3).
245
Variation of low‑paid authorisations—enterprise agreement etc. comes into
operation
FWA is taken to have varied a low‑paid
authorisation to remove an employer’s name when an enterprise agreement, or a
workplace determination, that covers the employer comes into operation.
246
FWA assistance for the low‑paid
Application of this section
(1) This section applies if a low‑paid
authorisation is in operation in relation to a proposed multi‑enterprise
agreement.
FWA assistance
(2) FWA may, on its own initiative, provide
to the bargaining representatives for the agreement such assistance:
(a) that FWA considers appropriate to
facilitate bargaining for the agreement; and
(b) that FWA could provide if it were
dealing with a dispute.
Note: This section does not empower FWA to
arbitrate, because subsection 595(3) provides that FWA may arbitrate only if
expressly authorised to do so.
FWA may direct a person to attend a conference
(3) Without limiting subsection (2), FWA
may provide assistance by directing a person who is not an employer specified
in the authorisation to attend a conference at a specified time and place if
FWA is satisfied that the person exercises such a degree of control over the
terms and conditions of the employees who will be covered by the agreement that
the participation of the person in bargaining is necessary for the agreement to
be made.
(4) Subsection (3) does not limit FWA’s
powers under Subdivision B of Division 3 of Part 5‑1.
Division 10—Single interest employer authorisations
Subdivision A—Declaration that employers may bargain together for a
proposed enterprise agreement
247
Ministerial declaration that employers may bargain together for a proposed
enterprise agreement
Application for declaration
(1) Two or more employers that will be
covered by a proposed enterprise agreement may apply to the Minister for a
declaration under subsection (3).
Note: Employers named in a declaration may apply for
a single interest employer authorisation (see Subdivision B of this Division).
(2) The application must specify the
employers (the relevant employers) that will be covered by the
agreement.
Declaration by the Minister
(3) If an application is made under
subsection (1), the Minister may declare, in writing, that the relevant
employers may bargain together for the agreement.
(4) In deciding whether or not to make the
declaration, the Minister must take into account the following matters:
(a) the history of bargaining of each
of the relevant employers, including whether they have previously bargained
together;
(b) the interests that the relevant
employers have in common, and the extent to which those interests are relevant
to whether they should be permitted to bargain together;
(c) whether the relevant employers are
governed by a common regulatory regime;
(d) whether it would be more
appropriate for each of the relevant employers to make a separate enterprise
agreement with its employees;
(e) the extent to which the relevant
employers operate collaboratively rather than competitively;
(f) whether the relevant employers
are substantially funded, directly or indirectly, by the Commonwealth, a State
or a Territory;
(g) any other matter the Minister
considers relevant.
(5) If the Minister decides to make the
declaration, the relevant employers must be specified in the declaration.
(6) A declaration under subsection (3)
is not a legislative instrument.
Subdivision B—Single interest employer authorisations
248
Single interest employer authorisations
(1) Two or more employers may apply to FWA
for an authorisation (a single interest employer authorisation)
under section 249 in relation to a proposed enterprise agreement.
Note: The effect of a single interest employer
authorisation is that the employers are single interest employers in relation
to the agreement (see paragraph 172(5)(c)).
(2) The application must specify the
following:
(a) the employers that will be covered
by the agreement;
(b) the employees who will be covered
by the agreement;
(c) the person (if any) nominated by
the employers to make applications under this Act if the authorisation is made.
249
When FWA must make a single interest employer authorisation
Single interest employer authorisation
(1) FWA must make a single interest employer
authorisation in relation to a proposed enterprise agreement if:
(a) an application for the
authorisation has been made; and
(b) FWA is satisfied that:
(i) the employers that
will be covered by the agreement have agreed to bargain together; and
(ii) no person coerced, or
threatened to coerce, any of the employers to agree to bargain together; and
(c) the requirements of either
subsection (2) (which deals with franchisees) or (3) (which deals with employers
that may bargain together for a proposed enterprise agreement) are met.
Franchisees
(2) The requirements of this subsection are
met if FWA is satisfied that the employers carry on similar business activities
under the same franchise and are:
(a) franchisees of the same
franchisor; or
(b) related bodies corporate of the
same franchisor; or
(c) any combination of the above.
Employers that may bargain together for the agreement
(3) The requirements of this subsection are
met if FWA is satisfied that all of the employers are specified in a
declaration made under section 247 in relation to the agreement.
Operation of authorisation
(4) The authorisation:
(a) comes into operation on the day on
which it is made; and
(b) ceases to be in operation at the
earlier of the following:
(i) the day on which the
enterprise agreement to which the authorisation relates is made;
(ii) 12 months after the
day on which the authorisation is made or, if the period is extended under
section 252, at the end of that period.
250
What a single interest employer authorisation must specify
What authorisation must specify
(1) A single interest employer authorisation
in relation to a proposed enterprise agreement must specify the following:
(a) the employers that will be covered
by the agreement;
(b) the employees who will be covered
by the agreement;
(c) the person (if any) nominated by
the employers to make applications under this Act if the authorisation is made;
(d) any other matter prescribed by the
procedural rules.
Authorisation may relate to only some of employers or
employees
(2) If FWA is satisfied of the matters
specified in subsection 249(2) or (3) (which deal with franchisees and
employers that may bargain together for a proposed enterprise agreement) in
relation to only some of the employers that will be covered by the agreement,
FWA may make a single interest employer authorisation specifying those
employers and their employees only.
251
Variation of single interest employer authorisations
Variation to remove employer
(1) An employer specified in a single
interest employer authorisation in relation to a proposed enterprise agreement
may apply to FWA for a variation of the authorisation to remove the employer’s
name from the authorisation.
(2) If an application is made under
subsection (1), FWA must vary the authorisation to remove the employer’s
name if FWA is satisfied that, because of a change in the employer’s
circumstances, it is no longer appropriate for the employer to be specified in
the authorisation.
Variation to add employer
(3) An employer that is not specified in a
single interest employer authorisation may apply to FWA for a variation of the
authorisation to add the employer’s name to the authorisation.
(4) If an application is made under subsection (3),
FWA must vary the authorisation to add the employer’s name if FWA is satisfied
that:
(a) each employer specified in the
authorisation has agreed to the employer’s name being added; and
(b) no person coerced, or threatened
to coerce, the employer to make the application; and
(c) the requirements of subsection
249(2) or (3) (which deal with franchisees and employers that may bargain
together for a proposed enterprise agreement) are met.
252
Variation to extend period single interest employer authorisation is in
operation
(1) A bargaining representative for a
proposed enterprise agreement to which a single interest employer authorisation
relates may apply to FWA to vary the authorisation to extend the period for
which the authorisation is in operation.
(2) FWA may vary the authorisation to extend
the period if FWA is satisfied that:
(a) there are reasonable prospects
that the agreement will be made if the authorisation is in operation for a
longer period; and
(b) it is appropriate in all the circumstances
to extend the period.
Division 11—Other matters
253
Terms of an enterprise agreement that are of no effect
(1) A term of an enterprise agreement has no
effect to the extent that:
(a) it is not a term about a permitted
matter; or
(b) it is an unlawful term; or
(c) it is a designated outworker term.
Note 1: A term of an enterprise agreement has no effect
to the extent that it contravenes section 55 (see section 56).
Note 2: A term of an enterprise agreement permitting or
requiring deductions or payments to be made has no effect if it benefits the
employer and is unreasonable in the circumstances (see section 326).
(2) However, if an enterprise agreement
includes a term that has no effect because of subsection (1), or
section 56 or 326, the inclusion of the term does not prevent the
agreement from being an enterprise agreement.
254
Applications by bargaining representatives
Application of this section
(1) This section applies if a provision of
this Part permits an application to be made by a bargaining representative of
an employer that will be covered by a proposed enterprise agreement.
Persons who may make applications
(2) If the agreement will cover more than one
employer, the application may be made by:
(a) in the case of a proposed enterprise
agreement in relation to which a single interest employer authorisation is in
operation—the person (if any) specified in the authorisation as the person who
may make applications under this Act; or
(b) in any case—a bargaining
representative of an employer that will be covered by the agreement, on behalf
of one or more other such bargaining representatives, if those other bargaining
representatives have agreed to the application being made on their behalf.
255
Part does not empower FWA to make certain orders
(1) This Part does not empower FWA to make an
order that requires, or has the effect of requiring:
(a) particular content to be included
or not included in a proposed enterprise agreement; or
(b) an employer to request under
subsection 181(1) that employees approve a proposed enterprise agreement; or
(c) an employee to approve, or not
approve, a proposed enterprise agreement.
(2) Despite paragraph (1)(a), FWA may
make an order that particular content be included or not included in a proposed
enterprise agreement if the order is made in the course of arbitration
undertaken when dealing with a dispute under section 240.
Note: FWA may only arbitrate a dispute under
section 240 if arbitration has been agreed to by the bargaining
representatives for the agreement (see subsection 240(4)).
256
Prospective employers and employees
A reference to an employer, or an
employee, in relation to a greenfields agreement, includes a reference to a
person who may become an employer or employee.
256A
How employees, employers and employee organisations are to be described
(1) This section applies if a provision of
this Part requires or permits an instrument of any kind to specify the
employers, employees or employee organisations covered, or who will be covered,
by an enterprise agreement or other instrument.
(2) The employees may be specified by class
or by name.
(3) The employers and employee organisations
must be specified by name.
(4) Without limiting the way in which a class
may be described for the purposes of subsection (2), the class may be
described by reference to one or more of the following:
(a) a particular industry or part of
an industry;
(b) a particular kind of work;
(c) a particular type of employment;
(d) a particular classification, job
level or grade.
257
Enterprise agreements may incorporate material in force from time to time etc.
Despite section 46AA of the Acts Interpretation Act
1901, an enterprise agreement may incorporate material contained in an
instrument or other writing:
(a) as in force at a particular time;
or
(b) as in force from time to time.
Part 2‑5—Workplace determinations
Division 1—Introduction
258
Guide to this Part
This Part is about workplace
determinations, which provide terms and conditions for those national system
employees to whom they apply.
Division 2 deals with low‑paid
workplace determinations. Bargaining representatives for a proposed multi‑enterprise
agreement may apply to FWA for such a determination if they are unable to reach
agreement on the terms that should be included in the agreement.
Division 3 deals with industrial
action related workplace determinations. FWA must make such a determination if:
(a) a termination of industrial
action instrument is made in relation to a proposed enterprise agreement; and
(b) after the end of the post‑industrial
action negotiating period, the bargaining representatives for the agreement
have not settled the matters that were at issue during bargaining for the
agreement.
Division 4 deals with bargaining
related workplace determinations. FWA must make such a determination if:
(a) a serious breach declaration
is made in relation to a proposed enterprise agreement; and
(b) after the end of the post‑declaration
negotiating period, the bargaining representatives for the agreement have not
settled the matters that were at issue during bargaining for the agreement.
Division 5
sets out the core terms, mandatory terms and agreed terms of workplace
determinations. It also sets out the factors that FWA must take into account in
deciding the terms of a workplace determination.
Division 6 deals with the
operation, coverage and interaction etc. of workplace determinations. It also
provides that, subject to certain exceptions, this Act applies to a workplace
determination that is in operation as if it were an enterprise agreement that
is in operation.
Division 7 deals with
contraventions of workplace determinations and other matters relating to
applications by bargaining representatives.
259
Meanings of employee and employer
In this Part, employee
means a national system employee, and employer means a national
system employer.
Division 2—Low‑paid workplace determinations
260
Applications for low‑paid workplace determinations
Application of this section
(1) This section applies if:
(a) a low‑paid authorisation is in
operation in relation to a proposed multi‑enterprise agreement; and
(b) one or more of the bargaining
representatives for the agreement are unable to reach agreement on the terms
that should be included in the agreement.
Consent low‑paid workplace determination
(2) The following bargaining representatives
for the agreement may jointly apply to FWA for a determination (a consent
low‑paid workplace determination) under section 261:
(a) one or more bargaining representatives
of one or more of the employers that would have been covered by the agreement;
(b) the bargaining representative or
representatives of the employees of those employers.
(3) An application for a consent low‑paid
workplace determination must specify the following:
(a) the bargaining representatives
making the application;
(b) the terms that those bargaining
representatives have, at the time of the application, agreed should be included
in the agreement;
(c) the matters at issue at the time of
the application;
(d) the employers that have consented
to being covered by the determination;
(e) those employers’ employees who
will be covered by the determination;
(f) each employee organisation (if
any) that is a bargaining representative of those employees.
Special low‑paid workplace determination
(4) A bargaining representative for the
agreement may apply to FWA for a determination (a special low‑paid
workplace determination) under section 262.
(5) An application for a special low‑paid
workplace determination must specify the following:
(a) the terms that the bargaining
representatives concerned have, at the time of the application, agreed should
be included in the agreement;
(b) the matters at issue at the time
of the application;
(c) the employers that will be covered
by the determination;
(d) the employees who will be covered
by the determination;
(e) each employee organisation (if
any) that is a bargaining representative of those employees.
261
When FWA must make a consent low‑paid workplace determination
FWA must make a consent low‑paid
workplace determination if:
(a) an application for the
determination has been made; and
(b) FWA is satisfied that the
bargaining representatives who made the application have made all reasonable
efforts to agree on the terms that should be included in the agreement; and
(c) there is no reasonable prospect of
agreement being reached.
Note: FWA must be constituted by a Full Bench to
make a consent low‑paid workplace determination (see subsection 616(4)).
262
When FWA must make a special low‑paid workplace determination—general
requirements
Special low‑paid workplace determination
(1) FWA must make a special low‑paid
workplace determination under this section if:
(a) an application for the determination
has been made; and
(b) the requirements set out in this
section and section 263 are met.
Note: FWA must be constituted by a Full Bench to
make a special low‑paid workplace determination (see subsection 616(4)).
Genuinely unable to reach agreement etc.
(2) FWA must be satisfied that:
(a) the bargaining representatives for
the proposed multi‑enterprise agreement concerned are genuinely unable to reach
agreement on the terms that should be included in the agreement; and
(b) there is no reasonable prospect of
agreement being reached.
Minimum safety net
(3) FWA must be satisfied that, at the time
of the application, the terms and conditions of the employees who will be
covered by the determination were substantially equivalent to the minimum
safety net of terms and conditions provided by modern awards together with the
National Employment Standards.
Promotion of future bargaining for an enterprise
agreement etc.
(4) FWA must be satisfied that the making of
the determination will promote:
(a) bargaining in the future for an
enterprise agreement or agreements that will cover the employers and employees
who will be covered by the workplace determination; and
(b) productivity and efficiency in the
enterprise or enterprises concerned.
Public interest
(5) FWA must be satisfied that it is in the
public interest to make the determination.
263
When FWA must make a special low‑paid workplace determination—additional
requirements
Additional requirements
(1) This section sets out additional
requirements that must be met before FWA makes a special low‑paid determination
(the relevant determination) under section 262.
No employer is specified in an application for a
consent low‑paid workplace determination
(2) FWA must be satisfied that no employer
that will be covered by the relevant determination is specified in an
application for a consent low‑paid workplace determination that was made by
bargaining representatives for the proposed multi‑enterprise agreement
concerned before or after the application for the relevant determination was
made.
No employer is, or has previously been, covered by an
enterprise agreement or workplace determination
(3) FWA must be satisfied that no employer
that will be covered by the relevant determination is, or has previously been,
covered by an enterprise agreement, or another workplace determination, in
relation to the work to be performed by the employees who will be covered by
the relevant determination.
264
Terms etc. of a low‑paid workplace determination
Basic rule
(1) A low‑paid workplace determination must
comply with subsection (4) and include:
(a) the terms set out in
subsections (2) and (3); and
(b) the core terms set out in
section 272; and
(c) the mandatory terms set out in
section 273.
Note: For the factors that FWA must take into
account in deciding the terms of the determination, see section 275.
Agreed terms
(2) The determination must include the agreed
terms (see subsection 274(1)) for the determination.
Terms dealing with the matters at issue
(3) The determination must include the terms
that FWA considers deal with the matters at issue specified in the application
for the determination.
Coverage
(4) The determination must be expressed to
cover the employers, employees and employee organisations (if any) that were specified
in the application for the determination.
265 No
other terms
A low‑paid workplace determination must
not include any terms other than those required by subsection 264(1).
Division 3—Industrial action related workplace determinations
266
When FWA must make an industrial action related workplace determination
Industrial action related workplace determination
(1) If:
(a) a termination of industrial action
instrument has been made in relation to a proposed enterprise agreement; and
(b) the post‑industrial action
negotiating period ends; and
(c) the bargaining representatives for
the agreement have not settled all of the matters that were at issue during
bargaining for the agreement;
FWA must make a determination (an industrial action
related workplace determination) as quickly as possible after the end
of that period.
Note: FWA must be constituted by a Full Bench to
make an industrial action related workplace determination (see subsection
616(4)).
Termination of industrial action instrument
(2) A termination of industrial action
instrument in relation to a proposed enterprise agreement is:
(a) an order under section 423 or
424 terminating protected industrial action for the agreement; or
(b) a declaration under
section 431 terminating protected industrial action for the agreement.
Post‑industrial action negotiating period
(3) The post‑industrial action
negotiating period is the period that:
(a) starts on the day on which the
termination of industrial action instrument is made; and
(b) ends:
(i) 21 days after that
day; or
(ii) if FWA extends that
period under subsection (4)—42 days after that day.
(4) FWA must extend the period referred to in
subparagraph (3)(b)(i) if:
(a) all of the bargaining
representatives for the agreement jointly apply to FWA for the extension within
21 days after the termination of industrial action instrument was made; and
(b) those bargaining representatives
have not settled all of the matters that were at issue during bargaining for
the agreement.
267
Terms etc. of an industrial action related workplace determination
Basic rule
(1) An industrial action related workplace
determination must comply with subsection (4) and include:
(a) the terms set out in
subsections (2) and (3); and
(b) the core terms set out in
section 272; and
(c) the mandatory terms set out in
section 273.
Note: For the factors that FWA must take into
account in deciding the terms of the determination, see section 275.
Agreed terms
(2) The determination must include the agreed
terms (see subsection 274(2)) for the determination.
Terms dealing with the matters at issue
(3) The determination must include the terms
that FWA considers deal with the matters that were still at issue at the end of
the post‑industrial action negotiating period.
Coverage
(4) The determination must be expressed to
cover:
(a) each employer that would have been
covered by the proposed enterprise agreement concerned; and
(b) the employees who would have been
covered by that agreement; and
(c) each employee organisation (if
any) that was a bargaining representative of those employees.
268 No
other terms
An industrial action related workplace
determination must not include any terms other than those required by
subsection 267(1).
Division 4—Bargaining related workplace determinations
269
When FWA must make a bargaining related workplace determination
Bargaining related workplace determination
(1) If:
(a) a serious breach declaration has
been made in relation to a proposed enterprise agreement; and
(b) the post‑declaration negotiating
period ends; and
(c) the bargaining representatives for
the agreement have not settled all of the matters that were at issue during
bargaining for the agreement;
FWA must make a determination (a bargaining related
workplace determination) as quickly as possible after the end of that
period.
Note 1: A serious breach declaration may be made in
relation to a proposed single‑enterprise agreement or a proposed multi‑enterprise
agreement in relation to which a low‑paid authorisation is in operation (see
sections 229 and 235).
Note 2: FWA must be constituted by a Full Bench to make
a bargaining related workplace determination (see subsection 616(4)).
Post‑declaration negotiating period
(2) The post‑declaration negotiating
period is the period that:
(a) starts on the day on which the
serious breach declaration is made; and
(b) ends:
(i) 21 days after that
day; or
(ii) if FWA extends that
period under subsection (3)—42 days after that day.
(3) FWA must extend the period referred to in
subparagraph (2)(b)(i) if:
(a) all of the bargaining
representatives for the agreement jointly apply to FWA for the extension within
21 days after the serious breach declaration was made; and
(b) those bargaining representatives
have not settled all of the matters that were at issue during bargaining for
the agreement.
270
Terms etc. of a bargaining related workplace determination
Basic rule
(1) A bargaining related workplace
determination must comply with whichever of subsection (4), (5) or (6)
applies and include:
(a) the terms set out in this section;
and
(b) the core terms set out in
section 272; and
(c) the mandatory terms set out in
section 273.
Note: For the factors that FWA must take into
account in deciding the terms of the determination, see section 275.
Agreed terms
(2) The determination must include the agreed
terms (see subsection 274(3)) for the determination.
Terms dealing with the matters at issue
(3) The determination must include the terms
that FWA considers deal with the matters that were still at issue at the end of
the post‑declaration negotiating period.
Coverage—single‑enterprise agreement
(4) If the serious breach declaration
referred to in paragraph 269(1)(a) was made in relation to a proposed single‑enterprise
agreement, the determination must be expressed to cover:
(a) each employer that would have been
covered by the agreement; and
(b) the employees who would have been
covered by that agreement; and
(c) each employee organisation (if
any) that was a bargaining representative of those employees.
Coverage—multi‑enterprise agreement
(5) If:
(a) the serious breach declaration
referred to in paragraph 269(1)(a) was made in relation to a proposed multi‑enterprise
agreement in relation to which a low‑paid authorisation is in operation; and
(b) the bargaining representatives for
the agreement that contravened a bargaining order as referred to in subsection
235(2) were bargaining representatives of one or more employers that would have
been covered by the agreement;
the determination must be expressed to cover:
(c) each of those employers; and
(d) their employees who would have
been covered by the agreement; and
(e) each employee organisation (if
any) that was a bargaining representative of those employees.
(6) If:
(a) the serious breach declaration
referred to in paragraph 269(1)(a) was made in relation to a proposed multi‑enterprise
agreement in relation to which a low‑paid authorisation is in operation; and
(b) the bargaining representatives for
the agreement that contravened a bargaining order as referred to in subsection
235(2) were bargaining representatives of one or more employees who would have
been covered by the agreement;
the determination must be expressed to cover:
(c) the employers of those employees
if they are employers that would have been covered by the agreement; and
(d) all of their employees who would
have been covered by the agreement; and
(e) each employee organisation (if
any) that was a bargaining representative of those employees.
271 No
other terms
A bargaining related workplace
determination must not include any terms other than those required by
subsection 270(1).
Division 5—Core terms, mandatory terms and agreed terms of workplace
determinations etc.
272
Core terms of workplace determinations
Core terms
(1) This section sets out the core terms that
a workplace determination must include.
Nominal expiry date
(2) The determination must include a term
specifying a date as the determination’s nominal expiry date, which must not be
more than 4 years after the date on which the determination comes into
operation.
Permitted matters etc.
(3) The determination must not include:
(a) any terms that would not be about
permitted matters if the determination were an enterprise agreement; or
(b) a term that would be an unlawful
term if the determination were an enterprise agreement; or
(c) any designated outworker terms.
Better off overall test
(4) The determination must include terms such
that the determination would, if the determination were an enterprise
agreement, pass the better off overall test under section 193.
Safety net requirements
(5) The determination must not include a term
that would, if the determination were an enterprise agreement, mean that FWA
could not approve the agreement:
(a) because the term would contravene
section 55 (which deals with the interaction between the National
Employment Standards and enterprise agreements etc.); or
(b) because of the operation of
Subdivision E of Division 4 of Part 2‑4 (which deals with approval
requirements relating to particular kinds of employees).
273
Mandatory terms of workplace determinations
Mandatory terms
(1) This section sets out the mandatory terms
that a workplace determination must include.
Term about settling disputes
(2) The determination must include a term
that provides a procedure for settling disputes:
(a) about any matters arising under
the determination; and
(b) in relation to the National
Employment Standards.
(3) Subsection (2) does not apply to the
determination if FWA is satisfied that an agreed term for the determination
would, if the determination were an enterprise agreement, satisfy paragraphs
186(6)(a) and (b) (which deal with terms in enterprise agreements about
settling disputes).
Flexibility term
(4) The determination must include the model
flexibility term unless FWA is satisfied that an agreed term for the
determination would, if the determination were an enterprise agreement, satisfy
paragraph 202(1)(a) and section 203 (which deal with flexibility terms in
enterprise agreements).
Consultation term
(5) The determination must include the model
consultation term unless FWA is satisfied that an agreed term for the
determination would, if the determination were an enterprise agreement, satisfy
subsection 205(1) (which deals with terms about consultation in enterprise
agreements).
274
Agreed terms for workplace determinations
Agreed term for a low‑paid workplace determination
(1) An agreed term for a low‑paid
workplace determination is a term that the application for the determination
specifies as a term that the bargaining representatives concerned had, at the
time of the application, agreed should be included in the proposed multi‑enterprise
agreement concerned.
Note: The determination must include an agreed term
(see subsection 264(2)).
Agreed term for an industrial action related workplace
determination
(2) An agreed term for an
industrial action related workplace determination is a term that the bargaining
representatives for the proposed enterprise agreement concerned had, at the end
of the post‑industrial action negotiating period, agreed should be included in
the agreement.
Note: The determination must include an agreed term
(see subsection 267(2)).
Agreed term for a bargaining related workplace
determination
(3) An agreed term for a
bargaining related workplace determination is a term that the bargaining
representatives for the proposed enterprise agreement concerned had, at the end
of the post‑declaration negotiating period, agreed should be included in the
agreement.
Note: The determination must include an agreed term
(see subsection 270(2)).
275
Factors FWA must take into account in deciding terms of a workplace
determination
The factors that FWA must take into
account in deciding which terms to include in a workplace determination include
the following:
(a) the merits of the case;
(b) for a low‑paid workplace
determination—the interests of the employers and employees who will be covered
by the determination, including ensuring that the employers are able to remain
competitive;
(c) for a workplace determination
other than a low‑paid workplace determination—the interests of the employers
and employees who will be covered by the determination;
(d) the public interest;
(e) how productivity might be improved
in the enterprise or enterprises concerned;
(f) the extent to which the conduct
of the bargaining representatives for the proposed enterprise agreement
concerned was reasonable during bargaining for the agreement;
(g) the extent to which the bargaining
representatives for the proposed enterprise agreement concerned have complied
with the good faith bargaining requirements;
(h) incentives to continue to bargain
at a later time.
Division 6—Operation, coverage and interaction etc. of workplace determinations
276
When a workplace determination operates etc.
(1) A workplace determination operates from
the day on which it is made.
(2) A workplace determination ceases to
operate on the earlier of the following days:
(a) the day on which a termination of
the determination comes into operation under section 224 or 227 as applied
to the determination by section 279 (which deals with the application of
this Act to workplace determinations);
(b) the day on which section 278
first has the effect that there is no employee to whom the agreement applies.
Note: Section 278 deals with when a workplace
determination ceases to apply to an employee.
(3) A workplace determination that has ceased
to operate can never operate again.
277
Employers, employees and employee organisations covered by a workplace
determination
Employers, employees and employee organisations
(1) A workplace determination covers
an employer, employee or employee organisation if the determination is
expressed to cover the employer, employee or organisation.
Effect of provisions of this Act, FWA orders and court
orders on coverage
(2) A workplace determination also covers
an employer, employee or employee organisation if any of the following
provides, or has the effect, that the determination covers the employer,
employee or organisation:
(a) a provision of this Act;
(b) an FWA order made under a
provision of this Act;
(c) an order of a court.
(3) Despite subsections (1) and (2), a
workplace determination does not cover an employer, employee or
employee organisation if any of the following provides, or has the effect, that
the determination does not cover the employer, employee or organisation:
(a) another provision of this Act;
(b) an FWA order made under another
provision of this Act;
(c) an order of a court.
Workplace determinations that have ceased to operate
(4) Despite subsections (1) and (2), a
workplace determination that has ceased to operate does not cover
an employer, employee or employee organisation.
Workplace determinations cover employees in relation to
particular employment
(5) A reference in this Act to a workplace
determination covering an employee is a reference to the determination covering
the employee in relation to particular employment.
278
Interaction of a workplace determination with enterprise agreements etc.
Interaction with an enterprise agreement
(1) If:
(a) a workplace determination applies
to an employee in relation to particular employment; and
(b) an enterprise agreement that
covers the employee in relation to the same employment comes into operation;
the determination ceases to apply to the employee in
relation to that employment, and can never so apply again.
Interaction with another workplace determination
(2) If:
(a) a workplace determination (the earlier
determination) applies to an employee in relation to particular
employment; and
(b) another workplace determination
(the later determination) that covers the employee in relation to
the same employment comes into operation;
the earlier determination ceases to apply to the employee
in relation to that employment when the later determination comes into
operation, and can never so apply again.
279
Act applies to a workplace determination as if it were an enterprise agreement
(1) This Act applies to a workplace
determination that is in operation as if it were an enterprise agreement that
is in operation.
(2) However, the following provisions do not
apply to the determination:
(a) section 50 (which deals with
contraventions of enterprise agreements);
(b) section 53 (which deals with
the coverage of enterprise agreements);
(c) section 54 (which deals with
the operation of enterprise agreements);
(d) section 58 (which deals with
the interaction between one or more enterprise agreements);
(e) section 183 (which deals with
the entitlement of employee organisations to be covered by enterprise
agreements);
(f) the provisions of Subdivisions A
and B of Division 7 of Part 2‑4 (which deal with the variation of
enterprise agreements) other than section 218 (which deals with variation
of an enterprise agreement on referral by the Australian Human Rights
Commission).
(3) In addition, Subdivision C of
Division 7 of Part 2‑4 (which deals with the termination of
enterprise agreements by employers and employees) only applies to a workplace
determination after the determination has passed its nominal expiry date.
Division 7—Other matters
280
Contravening a workplace determination
A person must not contravene a term of a
workplace determination.
Note 1: This section is a civil remedy provision (see
Part 4‑1).
Note 2: A person does not contravene a term of a
workplace determination unless the determination applies to the person: see
subsections 51(1) and 279(1).
281
Applications by bargaining representatives
Application of this section
(1) This section applies if a provision of
this Part permits an application to be made by a bargaining representative of
an employer that would have been covered by a proposed enterprise agreement.
Persons who may make applications
(2) If the agreement would have covered more
than one employer, the application may be made by:
(a) in the case of a proposed
enterprise agreement in relation to which a single interest employer
authorisation is in operation—the person (if any) specified in the
authorisation as the person who may make applications under this Act; or
(b) in any case—a bargaining
representative of an employer that would have been covered by the agreement, on
behalf of one or more other such bargaining representatives, if those other
bargaining representatives have agreed to the application being made on their
behalf.
281A
How employees, employers and employee organisations are to be described
(1) This section applies if a provision of
this Part requires or permits an instrument of any kind to specify the
employers, employees or employee organisations covered, or who will be covered,
by a workplace determination or other instrument.
(2) The employees may be specified by class
or by name.
(3) The employers and employee organisations
must be specified by name.
(4) Without limiting the way in which a class
may be described for the purposes of subsection (2), the class may be
described by reference to one or more of the following:
(a) a particular industry or part of
an industry;
(b) a particular kind of work;
(c) a particular type of employment;
(d) a particular classification, job
level or grade.
Part 2‑6—Minimum wages
Division 1—Introduction
282
Guide to this Part
This Part provides for FWA
(constituted by the Minimum Wage Panel) to set and vary minimum wages for
national system employees. For employees covered by modern awards, minimum
wages are specified in the modern award. For award/agreement free employees,
minimum wages are specified in the national minimum wage order.
Division 2 provides for the
minimum wages objective. This requires FWA to establish and maintain a safety
net of fair minimum wages, taking into account certain social and economic
factors.
Division 3 provides for FWA
(constituted by the Minimum Wage Panel) to conduct annual wage reviews. In an
annual wage review, FWA may set or vary minimum wages in modern awards, and
must make a national minimum wage order. Minimum wages in modern awards can
also be set, or varied (in limited circumstances), under Part 2‑3 (which
deals with modern awards).
Division 4 provides for national
minimum wage orders and requires employers to comply with them. The orders set
the national minimum wage, as well as special national minimum wages for junior
employees, employees to whom training arrangements apply and employees with a
disability. The orders also set the casual loading for award/agreement free
employees.
National minimum wages and special
national minimum wages apply to award/agreement free employees. However, they
are also relevant to other employees as follows:
(a) in
setting or varying modern award minimum wages, FWA must take the national
minimum wage into account (see subsection 135(2) (in Part 2‑3) and
subsection 285(3) (in this Part));
(b) for an employee who is not
covered by a modern award and to whom an enterprise agreement applies, the
employee’s base rate of pay under the agreement must not be less than the
relevant national minimum wage or special national minimum wage (see subsection
206(3) (in Part 2‑4)).
For an employee who is
covered by a modern award and to whom an enterprise agreement applies, the
employee’s base rate of pay under the agreement must not be less than the base
rate of pay that would have been payable to the employee if the award applied
(see subsection 206(1) (in Part 2‑4)).
283
Meanings of employee and employer
In this Part, employee
means a national system employee, and employer means a national
system employer.
Division 2—Overarching provisions
284
The minimum wages objective
What is the minimum wages objective?
(1) FWA must establish and maintain a safety
net of fair minimum wages, taking into account:
(a) the performance and
competitiveness of the national economy, including productivity, business
competitiveness and viability, inflation and employment growth; and
(b) promoting social inclusion through
increased workforce participation; and
(c) relative living standards and the
needs of the low paid; and
(d) the principle of equal
remuneration for work of equal or comparable value; and
(e) providing a comprehensive range of
fair minimum wages to junior employees, employees to whom training arrangements
apply and employees with a disability.
This is the minimum wages objective.
When does the minimum wages objective apply?
(2) The minimum wages objective applies to
the performance or exercise of:
(a) FWA’s functions or powers under
this Part; and
(b) FWA’s functions or powers under
Part 2‑3, so far as they relate to setting, varying or revoking modern
award minimum wages.
Note: FWA must also take into account the objects of
this Act and any other applicable provisions. For example, if FWA is setting,
varying or revoking modern award minimum wages, the modern awards objective
also applies (see section 134).
Meaning of modern award minimum wages
(3) Modern award minimum wages are
the rates of minimum wages in modern awards, including:
(a) wage rates for junior employees,
employees to whom training arrangements apply and employees with a disability;
and
(b) casual loadings; and
(c) piece rates.
Meaning of setting and varying modern
award minimum wages
(4) Setting modern award
minimum wages is the initial setting of one or more new modern award minimum
wages in a modern award, either in the award as originally made or by a later
variation of the award. Varying modern award minimum wages is
varying the current rate of one or more modern award minimum wages.
Division 3—Annual wage reviews
Subdivision A—Main provisions
285
Annual wage reviews to be conducted
(1) FWA must conduct and complete an annual
wage review in each financial year.
Note 1: FWA must be constituted by the Minimum Wage
Panel to conduct annual wage reviews, and to make determinations and orders in
those reviews (see section 617).
Note 2: The President may give directions about the
conduct of annual wage reviews (see section 582).
(2) In an annual wage review, FWA:
(a) must review:
(i) modern award minimum
wages; and
(ii) the national minimum
wage order; and
(b) may make one or more determinations
varying modern awards to set, vary or revoke modern award minimum wages;
and
(c) must make a national minimum wage
order.
Note: For provisions about national minimum wage
orders, see Division 4.
(3) In exercising its power in an annual wage
review to make determinations referred to in paragraph (2)(b), FWA must
take into account the rate of the national minimum wage that it proposes to set
in the review.
286
When annual wage review determinations varying modern awards come into
operation
Determinations generally come into operation on
1 July
(1) A determination (a variation
determination) varying one or more modern awards to set, vary or revoke
modern award minimum wages that is made in an annual wage review comes into
operation on 1 July in the next financial year.
Later operation of determinations in exceptional
circumstances
(2) If FWA is satisfied that there are
exceptional circumstances justifying why a variation determination should not
come into operation until a later day, FWA may specify that later day as the
day on which it comes into operation. However, the determination must be
limited just to the particular situation to which the exceptional circumstances
relate.
Note: This may mean that FWA needs to make more than
one determination, if different circumstances apply to different employees.
(3) If a later day is so specified, the
variation determination comes into operation on that later day.
Effect of determinations cannot be deferred
(4) FWA cannot provide for the effect of a
variation determination on modern award minimum wages to be deferred to a day
that is later than the day on which the determination comes into operation.
Determinations take effect from first full pay period
(5) A variation determination does not take
effect in relation to a particular employee until the start of the employee’s
first full pay period that starts on or after the day the determination comes
into operation.
287
When national minimum wage orders come into operation etc.
Orders come into operation on 1 July
(1) A national minimum wage order that is
made in an annual wage review comes into operation on 1 July in the next
financial year (the year of operation).
Setting of different wages or loadings only permitted
in exceptional circumstances
(2) The national minimum wage or the casual
loading for award/agreement free employees set by the order must be the same
for all employees, unless:
(a) FWA is satisfied that there are
exceptional circumstances justifying setting different wages or loadings; and
(b) the setting of different wages or
loadings is limited just to the extent necessary because of the particular
situation to which the exceptional circumstances relate.
(3) A special national minimum wage set by
the order for a specified class of employees must be the same for all employees
in that class, unless:
(a) FWA is satisfied that there are
exceptional circumstances justifying setting different wages; and
(b) the setting of different wages is
limited just to the extent necessary because of the particular situation to
which the exceptional circumstances relate.
Adjustments taking effect during year of operation only
permitted in exceptional circumstances
(4) The order may provide that an adjustment
of the national minimum wage, the casual loading for award/agreement free
employees, or a special national minimum wage, set by the order takes effect
(whether for some or all employees to whom that wage or loading applies) on a
specified day in the year of operation that is later than 1 July, but only
if:
(a) FWA is satisfied that there are
exceptional circumstances justifying the adjustment taking effect on that day;
and
(b) the adjustment is limited just to
the particular situation to which the exceptional circumstances relate.
When orders take effect
(5) The order takes effect in relation to a
particular employee from the start of the employee’s first full pay period that
starts on or after 1 July in the year of operation. However, an adjustment
referred to in subsection (4) takes effect in relation to a particular
employee from the start of the employee’s first full pay period that starts on
or after the day specified as referred to in that subsection.
Subdivision B—Provisions about conduct of annual wage reviews
288
General
This Subdivision contains some specific
provisions relevant to the conduct of annual wage reviews. For other provisions
relevant to the conduct of annual wage reviews, see the general provisions
about FWA’s processes in Part 5‑1.
Note: Relevant provisions of Part 5‑1 include
the following:
(a) section 582 (which deals with the
President’s power to give directions);
(b) section 590 (which deals with FWA’s
discretion to inform itself as it considers appropriate, including by
commissioning research);
(c) section 596 (which deals with being
represented in a matter before FWA);
(d) section 601 (which deals with writing and
publication requirements).
289
Everyone to have a reasonable opportunity to make and comment on submissions
(1) FWA must, in relation to each annual wage
review, ensure that all persons and bodies have a reasonable opportunity to
make written submissions to FWA for consideration in the review.
(2) FWA must publish all submissions made to
FWA for consideration in the review.
(3) However, if a submission made by a person
or body includes information that is claimed by the person or body to be
confidential or commercially sensitive, and FWA is satisfied that the
information is confidential or commercially sensitive, FWA:
(a) may decide not to publish the
information; and
(b) may instead publish:
(i) a summary of the
information which contains sufficient detail to allow a reasonable
understanding of the substance of the information (without disclosing anything
that is confidential or commercially sensitive); or
(ii) if FWA considers that
it is not practicable to prepare a summary that would comply with
subparagraph (i)—a statement that confidential or commercially sensitive
information in the submission has not been published.
(4) A reference in this Act (other than in
this section) to a submission under this section includes a reference to a
summary or statement referred to in paragraph (3)(b).
(5) FWA must ensure that all persons and
bodies have a reasonable opportunity to make comments to FWA, for consideration
in the review, on the material published under subsections (2) and (3).
(6) The publishing of material under
subsections (2) and (3) may be on FWA’s website or by any other means that
FWA considers appropriate.
290
President may direct investigations and reports
(1) The President may give a direction under
section 582 requiring that a matter be investigated, and that a report
about the matter be prepared, for consideration in an annual wage review.
(2) The direction:
(a) may be given to:
(i) the Minimum Wage
Panel; or
(ii) a Minimum Wage Panel
Member; or
(iii) a Full Bench that
includes one or more Minimum Wage Panel Members; and
(b) must (unless the direction is
given to the Minimum Wage Panel) require the report be given to the Minimum
Wage Panel.
291
Research must be published
(1) If FWA undertakes or commissions research
for the purposes of an annual wage review, FWA must publish the research so
that submissions can be made addressing issues covered by the research.
(2) The publication may be on FWA’s website
or by any other means that FWA considers appropriate.
292
Varied wage rates must be published
(1) If FWA makes one or more determinations
varying modern award minimum wages in an annual wage review, FWA must publish
the rates of those wages as so varied:
(a) for wages in a modern award (other
than a modern enterprise award or a State reference public sector modern award)—before
1 July in the next financial year; and
(b) for wages in a modern enterprise
award or a State reference public sector modern award—as soon as practicable.
Note: FWA must also publish the modern award as
varied (see section 168).
(2) The publication may be on FWA’s website
or by any other means that FWA considers appropriate.
Division 4—National minimum wage orders
293
Contravening a national minimum wage order
An employer must not contravene a term
of a national minimum wage order.
Note: This section is a civil remedy provision (see
Part 4‑1).
294
Content of national minimum wage order—main provisions
Setting minimum wages and the casual loading
(1) A national minimum wage order:
(a) must set the national minimum
wage; and
(b) must set special national minimum
wages for all award/agreement free employees in the following classes:
(i) junior employees;
(ii) employees to whom
training arrangements apply;
(iii) employees with a
disability; and
(c) must set the casual loading for
award/agreement free employees.
Note: A national minimum wage order must be made in
each annual wage review (see section 285).
Requiring employers to pay minimum wages and the casual
loading
(2) The order:
(a) must require employers to pay
employees to whom the national minimum wage applies a base rate of pay that at
least equals the national minimum wage; and
(b) must require employers to pay to
employees to whom a special national minimum wage applies a base rate of pay
that at least equals that special national minimum wage; and
(c) must require employers to pay, to
award/agreement free employees who are casual employees, a casual loading that
at least equals the casual loading for award/agreement free employees (as
applied to the employees’ base rates of pay).
What employees does the national minimum wage apply to?
(3) The national minimum wage applies to all
award/agreement free employees who are not:
(a) junior employees; or
(b) employees to whom training
arrangements apply; or
(c) employees with a disability.
What employees does a special national minimum wage
apply to?
(4) A special national minimum wage applies
to the employees to whom it is expressed in the order to apply. Those employees
must be:
(a) all junior employees who are
award/agreement free employees, or a specified class of those employees; or
(b) all employees to whom training
arrangements apply and who are award/agreement free employees, or a specified
class of those employees; or
(c) all employees with a disability
who are award/agreement free employees, or a specified class of those
employees.
295
Content of national minimum wage order—other matters
Expressing minimum wages and the casual loading
(1) In a national minimum wage order:
(a) the national minimum wage, and the
special national minimum wages, set by the order must be expressed in a way
that produces a monetary amount per hour; and
(b) the casual loading for
award/agreement free employees must be expressed as a percentage.
Note: The means by which the national minimum wage
or a special national minimum wage may be expressed include:
(a) a monetary amount per hour; or
(b) a monetary amount for a specified number of
hours; or
(c) a method for calculating a monetary amount per
hour.
Terms about how the order applies
(2) The order may also include terms about
how the order, or any of the requirements in it, applies.
296
Variation of national minimum wage order to remove ambiguity or uncertainty or
correct error
Permitted variations
(1) FWA may make a determination varying a
national minimum wage order to remove an ambiguity or uncertainty or to correct
an error.
Note: FWA must be constituted by the Minimum Wage
Panel to vary a national minimum wage order (see section 617).
(2) If FWA varies a national minimum wage
order, FWA must, as soon as practicable, publish the order as varied on its
website or by any other means that FWA considers appropriate.
No other variation or revocation permitted
(3) A national minimum wage order:
(a) cannot be varied except as
referred to in subsection (1); and
(b) cannot be revoked.
297
When determinations varying national minimum wage orders come into operation
Determinations come into operation on specified day
(1) A determination varying a national
minimum wage order under section 296 comes into operation on the day
specified in the determination.
Note: For when a national minimum wage order comes
into operation, see section 287.
(2) The specified day must not be earlier
than the day on which the determination is made, unless FWA is satisfied that
there are exceptional circumstances that justify specifying an earlier day.
Determinations take effect from first full pay period
(3) The determination does not take effect in
relation to a particular employee until the start of the employee’s first full
pay period that starts on or after the day the determination comes into
operation.
298
Special rule about retrospective variations of national minimum wage orders
Application of this section
(1) This section applies if a determination
varying a national minimum wage order has a retrospective effect because it
comes into operation under subsection 297(2) on a day before the day on which
the determination is made.
No creation of liability to pay pecuniary penalty for
past conduct
(2) If:
(a) a person engaged in conduct before
the determination was made; and
(b) but for the retrospective effect
of the determination, the conduct would not have contravened a term of the
national minimum wage order or an enterprise agreement;
a court must not order the person to pay a pecuniary
penalty under Division 2 of Part 4‑1 in relation to the conduct, on
the grounds that the conduct contravened a term of the national minimum wage
order or enterprise agreement.
Note 1: This subsection does not affect the powers of a
court to make other kinds of orders under Division 2 of Part 4‑1.
Note 2: A determination varying a national minimum wage
order could result in a contravention of a term of an enterprise agreement
because of the effect of subsection 206(4).
299
When a national minimum wage order is in operation
A national minimum wage order continues
in operation until the next national minimum wage order comes into operation.
Note: For when a national minimum wage order comes
into operation, see section 287.
Part 2‑7—Equal remuneration
Division 1—Introduction
300
Guide to this Part
This Part allows FWA to make orders to
ensure that there will be equal remuneration for men and women workers for work
of equal or comparable value.
301
Meanings of employee and employer
In this Part, employee
means a national system employee, and employer means a national
system employer.
Division 2—Equal remuneration orders
302
FWA may make an order requiring equal remuneration
Power to make an equal remuneration order
(1) FWA may make any order (an equal
remuneration order) it considers appropriate to ensure that, for
employees to whom the order will apply, there will be equal remuneration for
work of equal or comparable value.
Meaning of equal remuneration for work of equal or
comparable value
(2) Equal remuneration for work of
equal or comparable value means equal remuneration for men and women
workers for work of equal or comparable value.
Who may apply for an equal remuneration order
(3) FWA may make the equal remuneration order
only on application by any of the following:
(a) an employee to whom the order will
apply;
(b) an employee organisation that is
entitled to represent the industrial interests of an employee to whom
the order will apply;
(c) the Sex Discrimination
Commissioner.
FWA must take into account orders and determinations of
the Minimum Wage Panel
(4) In deciding whether to make an equal
remuneration order, FWA must take into account:
(a) orders and determinations made by
the Minimum Wage Panel in annual wage reviews; and
(b) the reasons for those orders and
determinations.
Restriction on power to make an equal remuneration
order
(5) However, FWA may make the equal
remuneration order only if it is satisfied that, for the employees to whom the
order will apply, there is not equal remuneration for work of equal or
comparable value.
303
Equal remuneration order may increase, but must not reduce, rates of
remuneration
(1) Without limiting subsection 302(1), an
equal remuneration order may provide for such increases in rates of
remuneration as FWA considers appropriate to ensure that, for employees to whom
the order will apply, there will be equal remuneration for work of equal or
comparable value.
(2) An equal remuneration order must not
provide for a reduction in an employee’s rate of remuneration.
304
Equal remuneration order may implement equal remuneration in stages
An equal remuneration order may
implement equal remuneration for work of equal or comparable value in stages
(as provided in the order) if FWA considers that it is not feasible to
implement equal remuneration for work of equal or comparable value when the order
comes into operation.
305
Contravening an equal remuneration order
An employer must not contravene a term
of an equal remuneration order.
Note: This section is a civil remedy provision (see
Part 4‑1).
306
Inconsistency with modern awards, enterprise agreements and orders of FWA
A term of a modern award, an enterprise
agreement or an FWA order has no effect in relation to an employee to the
extent that it is less beneficial to the employee than a term of an equal
remuneration order that applies to the employee.
Part 2‑8—Transfer of business
Division 1—Introduction
307
Guide to this Part
This Part provides for the transfer of
enterprise agreements, certain modern awards and certain other instruments if
there is a transfer of business from one national system employer to another
national system employer.
Division 2 describes when a
transfer of business occurs and defines the following key concepts: old
employer, new employer, transferring work, transferring
employee and transferable instrument.
Division 2 also sets out the
circumstances in which enterprise agreements, certain modern awards and certain
other instruments that covered the old employer and the transferring employees
(including high income employees) cover the new employer, the transferring
employees and certain non‑transferring employees and organisations.
Division 3 provides for FWA to
make orders in relation to a transfer of business.
308
Meanings of employee and employer
In this Part, employee
means a national system employee, and employer means a national
system employer.
309
Object of this Part
The object of this Part is to provide a
balance between:
(a) the protection of employees’ terms
and conditions of employment under enterprise agreements, certain modern awards
and certain other instruments; and
(b) the interests of employers in
running their enterprises efficiently;
if there is a transfer of business from one employer to
another employer.
Division 2—Transfer of instruments
310
Application of this Division
This Division provides for the transfer
of rights and obligations under enterprise agreements, certain modern awards
and certain other instruments if there is a transfer of business from an old
employer to a new employer.
311
When does a transfer of business occur
Meanings of transfer of business, old
employer, new employer and transferring work
(1) There is a transfer of business
from an employer (the old employer) to another employer (the new
employer) if the following requirements are satisfied:
(a) the employment of an employee of
the old employer has terminated;
(b) within 3 months after the
termination, the employee becomes employed by the new employer;
(c) the work (the transferring
work) the employee performs for the new employer is the same, or
substantially the same, as the work the employee performed for the old
employer;
(d) there is a connection between the
old employer and the new employer as described in any of subsections (3)
to (6).
Meaning of transferring employee
(2) An employee in relation to whom the
requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring
employee in relation to the transfer of business.
Transfer of assets from old employer to new employer
(3) There is a connection between the old
employer and the new employer if, in accordance with an arrangement between:
(a) the old employer or an associated
entity of the old employer; and
(b) the new employer or an associated
entity of the new employer;
the new employer, or the associated entity of the new
employer, owns or has the beneficial use of some or all of the assets (whether
tangible or intangible):
(c) that the old employer, or the
associated entity of the old employer, owned or had the beneficial use of; and
(d) that relate to, or are used in
connection with, the transferring work.
Old employer outsources work to new employer
(4) There is a connection between the old
employer and the new employer if the transferring work is performed by one or
more transferring employees, as employees of the new employer, because the old
employer, or an associated entity of the old employer, has outsourced the
transferring work to the new employer or an associated entity of the new
employer.
New employer ceases to outsource work to old employer
(5) There is a connection between the old
employer and the new employer if:
(a) the transferring work had been
performed by one or more transferring employees, as employees of the old
employer, because the new employer, or an associated entity of the new
employer, had outsourced the transferring work to the old employer or an
associated entity of the old employer; and
(b) the transferring work is performed
by those transferring employees, as employees of the new employer, because the
new employer, or the associated entity of the new employer, has ceased to
outsource the work to the old employer or the associated entity of the old
employer.
New employer is associated entity of old employer
(6) There is a connection between the old
employer and the new employer if the new employer is an associated entity of
the old employer when the transferring employee becomes employed by the new
employer.
312
Instruments that may transfer
Meaning of transferable instrument
(1) Each of the following is a transferable
instrument:
(a) an enterprise agreement that has
been approved by FWA;
(b) a workplace determination;
(c) a named employer award.
Meaning of named employer award
(2) Each of the following is a named
employer award:
(a) a modern award (including a modern
enterprise award) that is expressed to cover one or more named employers;
(b) a modern enterprise award that is
expressed to cover one or more specified classes of employers (other than a
modern enterprise award that is expressed to relate to one or more enterprises
as described in paragraph 168A(2)(b)).
Note: Paragraph 168A(2)(b) deals with employers that
carry on similar business activities under the same franchise.
313
Transferring employees and new employer covered by transferable instrument
(1) If a transferable instrument covered the
old employer and a transferring employee immediately before the termination of
the transferring employee’s employment with the old employer, then:
(a) the transferable instrument covers
the new employer and the transferring employee in relation to the transferring
work after the time (the transfer time) the transferring employee
becomes employed by the new employer; and
(b) while the transferable instrument
covers the new employer and the transferring employee in relation to the
transferring work, no other enterprise agreement or named employer award that
covers the new employer at the transfer time covers the transferring employee
in relation to that work.
(2) To avoid doubt, a transferable instrument
that covers the new employer and a transferring employee under
paragraph (1)(a) includes any individual flexibility arrangement that had
effect as a term of the transferable instrument immediately before the
termination of the transferring employee’s employment with the old employer.
(3) This section has effect subject to any
FWA order under subsection 318(1).
314
New non‑transferring employees of new employer may be covered by transferable
instrument
(1) If:
(a) a transferable instrument covers
the new employer because of paragraph 313(1)(a); and
(b) after the transferable instrument
starts to cover the new employer, the new employer employs a non‑transferring
employee; and
(c) the non‑transferring employee
performs the transferring work; and
(d) at the time the non‑transferring
employee is employed, no other enterprise agreement or modern award covers the
new employer and the non‑transferring employee in relation to that work;
then the transferable instrument covers the new employer
and the non‑transferring employee in relation to that work.
(2) A non‑transferring employee
of a new employer, in relation to a transfer of business, is an employee of the
new employer who is not a transferring employee.
(3) This section has effect subject to any
FWA order under subsection 319(1).
315
Organisations covered by transferable instrument
Employer organisation covered by named employer award
(1) If:
(a) a named employer award covers the
new employer because of paragraph 313(1)(a); and
(b) the named employer award covered
an employer organisation in relation to the old employer immediately before the
termination of a transferring employee’s employment with the old employer;
then the named employer award covers the employer
organisation in relation to the new employer.
Employee organisation covered by named employer award
(2) If:
(a) a named employer award covers the
new employer and a transferring employee because of paragraph 313(1)(a); and
(b) the named employer award covered
an employee organisation in relation to the transferring employee immediately
before the termination of the transferring employee’s employment with the old
employer;
then the named employer award covers the employee
organisation in relation to:
(c) the transferring employee; and
(d) any non‑transferring employee of
the new employer who:
(i) is covered by the
named employer award because of a provision of this Part or an FWA order; and
(ii) performs the same work
as the transferring employee.
Employee organisation covered by enterprise agreement
(3) To avoid doubt, if:
(a) an enterprise agreement covers a
transferring employee or a non‑transferring employee because of a provision of
this Part or an FWA order; and
(b) the enterprise agreement covered
an employee organisation immediately before the termination of the transferring
employee’s employment with the old employer;
then the enterprise agreement covers the employee
organisation.
316
Transferring employees who are high income employees
(1) This section applies if:
(a) the old employer had given a
guarantee of annual earnings for a guaranteed period to a transferring
employee; and
(b) the transferring employee was a
high income employee immediately before the termination of the transferring
employee’s employment with the old employer; and
(c) some of the guaranteed period
occurs after the time (the transfer time) the transferring
employee becomes employed by the new employer; and
(d) an enterprise agreement does not
apply to the transferring employee in relation to the transferring work at the
transfer time.
(2) The guarantee of annual earnings has
effect after the transfer time (except as provided in this section) as if it
had been given to the transferring employee by the new employer.
(3) The new employer is not required to
comply with the guarantee of annual earnings in relation to any part of the
guaranteed period before the transfer time.
(4) The new employer is not required to
comply with the guarantee of annual earnings to the extent that it requires the
new employer to pay an amount of earnings to the transferring employee, in
relation to the part of the guaranteed period after the transfer time, at a
rate that is more than the annual rate of the guarantee of annual earnings.
(5) If:
(a) the transferring employee is
entitled to non‑monetary benefits under the guarantee of annual earnings after
the transfer time; and
(b) it is not practicable for the new
employer to provide those benefits to the transferring employee;
then the guarantee of annual earnings is taken to be
varied so that, instead of the entitlement to those benefits, the transferring
employee is entitled to an amount of money that is equivalent to the agreed
money value of those benefits.
(6) This section does not affect the rights
and obligations of the old employer that arose before the transfer time in
relation to the guarantee of annual earnings.
Division 3—Powers of FWA
317
FWA may make orders in relation to a transfer of business
This Division provides for FWA to make
certain orders if there is, or is likely to be, a transfer of business from an
old employer to a new employer.
318
Orders relating to instruments covering new employer and transferring employees
Orders that FWA may make
(1) FWA may make the following orders:
(a) an order that a transferable
instrument that would, or would be likely to, cover the new employer and a
transferring employee because of paragraph 313(1)(a) does not, or will not,
cover the new employer and the transferring employee;
(b) an order that an enterprise
agreement or a named employer award that covers the new employer covers, or
will cover, the transferring employee.
Who may apply for an order
(2) FWA may make the order only on
application by any of the following:
(a) the new employer or a person who
is likely to be the new employer;
(b) a transferring employee, or an
employee who is likely to be a transferring employee;
(c) if the application relates to an
enterprise agreement—an employee organisation that is, or is likely to be,
covered by the agreement;
(d) if the application relates to a named
employer award—an employee organisation that is entitled to represent the
industrial interests of an employee referred to in paragraph (b).
Matters that FWA must take into account
(3) In deciding whether to make the order,
FWA must take into account the following:
(a) the views of:
(i) the new employer or a
person who is likely to be the new employer; and
(ii) the employees who
would be affected by the order;
(b) whether any employees would be
disadvantaged by the order in relation to their terms and conditions of
employment;
(c) if the order relates to an
enterprise agreement—the nominal expiry date of the agreement;
(d) whether the transferable
instrument would have a negative impact on the productivity of the new
employer’s workplace;
(e) whether the new employer would
incur significant economic disadvantage as a result of the transferable
instrument covering the new employer;
(f) the degree of business synergy
between the transferable instrument and any workplace instrument that already
covers the new employer;
(g) the public interest.
Restriction on when order may come into operation
(4) The order must not come into operation in
relation to a particular transferring employee before the later of the
following:
(a) the time when the transferring
employee becomes employed by the new employer;
(b) the day on which the order is
made.
319
Orders relating to instruments covering new employer and non‑transferring
employees
Orders that FWA may make
(1) FWA may make the following orders:
(a) an order that a transferable
instrument that would, or would be likely to, cover the new employer and a non‑transferring
employee because of subsection 314(1) does not, or will not, cover the non‑transferring
employee;
(b) an order that a transferable
instrument that covers, or is likely to cover, the new employer, because of a
provision of this Part, covers, or will cover, a non‑transferring employee who
performs, or is likely to perform, the transferring work for the new employer;
(c) an order that an enterprise
agreement or a modern award that covers the new employer does not, or will not,
cover a non‑transferring employee who performs, or is likely to perform, the
transferring work for the new employer.
Note: Orders may be made under
paragraphs (1)(b) and (c) in relation to a non‑transferring employee who
performs, or is likely to perform, the transferring work for the new employer,
whether or not the non‑transferring employee became employed by the new
employer before or after the transferable instrument referred to in
paragraph (1)(b) started to cover the new employer.
Who may apply for an order
(2) FWA may make the order only on
application by any of the following:
(a) the new employer or a person who
is likely to be the new employer;
(b) a non‑transferring employee who
performs, or is likely to perform, the transferring work for the new employer;
(c) if the application relates to an
enterprise agreement—an employee organisation that is, or is likely to be,
covered by the agreement;
(d) if the application relates to a
named employer award—an employee organisation that is entitled to represent the
industrial interests of an employee referred to in paragraph (b).
Matters that FWA must take into account
(3) In deciding whether to make the order,
FWA must take into account the following:
(a) the views of:
(i) the new employer or a
person who is likely to be the new employer; and
(ii) the employees who
would be affected by the order;
(b) whether any employees would be
disadvantaged by the order in relation to their terms and conditions of
employment;
(c) if the order relates to an
enterprise agreement—the nominal expiry date of the agreement;
(d) whether the transferable
instrument would have a negative impact on the productivity of the new
employer’s workplace;
(e) whether the new employer would
incur significant economic disadvantage as a result of the transferable
instrument covering the new employer;
(f) the degree of business synergy
between the transferable instrument and any workplace instrument that already
covers the new employer;
(g) the public interest.
Restriction on when order may come into operation
(4) The order must not come into operation in
relation to a particular non‑transferring employee before the later of the
following:
(a) the time when the non‑transferring
employee starts to perform the transferring work for the new employer;
(b) the day on which the order is
made.
320
Variation of transferable instruments
Application of this section
(1) This section applies in relation to a
transferable instrument that covers, or is likely to cover, the new employer
because of a provision of this Part.
Power to vary transferable instrument
(2) FWA may vary the transferable instrument:
(a) to remove terms that FWA is
satisfied are not, or will not be, capable of meaningful operation because of
the transfer of business to the new employer; or
(b) to remove an ambiguity or
uncertainty about how a term of the instrument operates if:
(i) the ambiguity or
uncertainty has arisen, or will arise, because of the transfer of business to
the new employer; and
(ii) FWA is satisfied that
the variation will remove the ambiguity or uncertainty; or
(c) to enable the transferable
instrument to operate in a way that is better aligned to the working arrangements
of the new employer’s enterprise.
Who may apply for a variation
(3) FWA may make the variation only on
application by:
(a) a person who is, or is likely to
be, covered by the transferable instrument; or
(b) if the application is to vary a
named employer award—an employee organisation that is entitled to represent the
industrial interests of an employee who is, or is likely to be, covered by the
named employer award.
Matters that FWA must take into account
(4) In deciding whether to make the variation,
FWA must take into account the following:
(a) the views of:
(i) the new employer or a
person who is likely to be the new employer; and
(ii) the employees who
would be affected by the transferable instrument as varied;
(b) whether any employees would be
disadvantaged by the transferable instrument as varied in relation to their
terms and conditions of employment;
(c) if the transferable instrument is
an enterprise agreement—the nominal expiry date of the agreement;
(d) whether the transferable instrument,
without the variation, would have a negative impact on the productivity of the
new employer’s workplace;
(e) whether the new employer would
incur significant economic disadvantage as a result of the transferable
instrument, without the variation;
(f) the degree of business synergy
between the transferable instrument, without the variation, and any workplace
instrument that already covers the new employer;
(g) the public interest.
Restriction on when variation may come into operation
(5) A variation of a transferable instrument
under subsection (2) must not come into operation before the later of the
following:
(a) the time when the transferable
instrument starts to cover the new employer;
(b) the day on which the variation is
made.
Part 2‑9—Other terms and conditions of employment
Division 1—Introduction
321
Guide to this Part
This Part deals with other terms and
conditions of employment.
Division 2 is about the frequency
and methods of payment of amounts payable to national system employees in
relation to the performance of work, and the circumstances in which a national
system employer may make deductions from such amounts.
Division 3 is about the guarantee
of annual earnings that may be given to a national system employee whose
earnings exceed the high income threshold. Modern awards do not apply to such
an employee.
322
Meanings of employee and employer
In this Part, employee
means a national system employee, and employer means a national
system employer.
Division 2—Payment of wages
323
Method and frequency of payment
(1) An employer must pay an employee amounts
payable to the employee in relation to the performance of work:
(a) in full (except as provided by
section 324); and
(b) in money by one, or a combination,
of the methods referred to in subsection (2); and
(c) at least monthly.
Note 1: This subsection is a civil remedy provision
(see Part 4‑1).
Note 2: Amounts referred to in this subsection include
the following if they become payable during a relevant period:
(a) incentive‑based payments and bonuses;
(b) loadings;
(c) monetary allowances;
(d) overtime or penalty rates;
(e) leave payments.
(2) The methods are as follows:
(a) cash;
(b) cheque, money order, postal order
or similar order, payable to the employee;
(c) the use of an electronic funds
transfer system to credit an account held by the employee;
(d) a method authorised under a modern
award or an enterprise agreement.
(3) Despite paragraph (1)(b), if a
modern award or an enterprise agreement specifies a particular method by which
the money must be paid, then the employer must pay the money by that method.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
324
Permitted deductions
(1) An employer may deduct an amount from an
amount payable to an employee in accordance with subsection 323(1) if:
(a) the deduction is authorised in
writing by the employee and is principally for the employee’s benefit; or
(b) the deduction is authorised by the
employee in accordance with an enterprise agreement; or
(c) the deduction is authorised by or
under a modern award or an FWA order; or
(d) the deduction is authorised by or
under a law of the Commonwealth, a State or a Territory, or an order of a
court.
Note 1: A deduction in accordance with a salary
sacrifice or other arrangement, under which an employee chooses to:
(a) forgo an amount payable to the employee in
relation to the performance of work; but
(b) receive some other form of benefit or
remuneration;
will be permitted if it is made in
accordance with this section and the other provisions of this Division.
Note 2: Certain terms of modern awards, enterprise
agreements and contracts of employment relating to deductions have no effect
(see section 326). A deduction made in accordance with such a term will not
be authorised for the purposes of this section.
(2) An authorisation for the purposes of
paragraph (1)(a):
(a) must specify the amount of the
deduction; and
(b) may be withdrawn in writing by the
employee at any time.
(3) Any variation in the amount of the
deduction must be authorised in writing by the employee.
325
Unreasonable requirements to spend amount
(1) An employer must not directly or
indirectly require an employee to spend any part of an amount payable to the
employee in relation to the performance of work if the requirement is
unreasonable in the circumstances.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) The regulations may prescribe
circumstances in which a requirement referred to in subsection (1) is or
is not reasonable.
326
Certain terms have no effect
Unreasonable payments and deductions for benefit of
employer
(1) A term of a modern award, an enterprise
agreement or a contract of employment has no effect to the extent that the
term:
(a) permits, or has the effect of
permitting, an employer to deduct an amount from an amount that is payable to an
employee in relation to the performance of work; or
(b) requires, or has the effect of
requiring, an employee to make a payment to an employer or another person;
if either of the following apply:
(c) the deduction or payment is:
(i) directly or indirectly
for the benefit of the employer, or a party related to the employer; and
(ii) unreasonable in the
circumstances;
(d) if the employee is under 18—the
deduction or payment is not agreed to in writing by a parent or guardian of the
employee.
(2) The regulations may prescribe
circumstances in which a deduction or payment referred to in
subsection (1) is or is not reasonable.
Unreasonable requirements to spend an amount
(3) A term of a modern award, an enterprise
agreement or a contract of employment has no effect to the extent that the
term:
(a) permits, or has the effect of
permitting, an employer to make a requirement that would contravene subsection
325(1); or
(b) directly or indirectly requires an
employee to spend an amount, if the requirement would contravene subsection
325(1) if it had been made by an employer.
327
Things given or provided, and amounts required to be spent, in contravention of
this Division
In
proceedings for recovery of an amount payable to an employee in relation
to the performance of work:
(a) anything
given or provided by the employer contrary to paragraph 323(1)(b) and
subsection 323(3) is taken never to have been given or provided to the
employee; and
(b) any
amount that the employee has been required to spend contrary to subsection
325(1), or in accordance with a term to which subsection 326(3) applies, is taken never to have been paid to the
employee.
Division 3—Guarantee of annual earnings
328
Employer obligations in relation to guarantee of annual earnings
Employer must comply with guarantee
(1) An employer that has given a guarantee of
annual earnings to an employee must (subject to any reductions arising from
circumstances in which the employer is required or entitled to reduce the
employee’s earnings) comply with the guarantee during any period during which
the employee:
(a) is a high income employee of the
employer; and
(b) is covered by a modern award that
is in operation.
Note 1: Examples of circumstances in which the employer
is required or entitled to reduce the employee’s earnings are unpaid leave or
absence, and periods of industrial action (see Division 9 of Part 3‑3).
Note 2: This subsection is a civil remedy provision
(see Part 4‑1).
Employer must comply with guarantee for period before
termination
(2) If:
(a) the employment of a high income
employee is terminated before the end of the guaranteed period; and
(b) either or both of the following
apply:
(i) the employer
terminates the employment;
(ii) the employee becomes a
transferring employee in relation to a transfer of business from the employer
to a new employer, and the guarantee of annual earnings has effect under
subsection 316(2) as if it had been given to the employee by the new employer;
and
(c) the employee is covered by a
modern award that is in operation at the time of the termination;
the employer must pay earnings to the employee in relation
to the part of the guaranteed period before the termination at the annual rate
of the guarantee of annual earnings.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
Employer must give notice of consequences
(3) Before or at the time of giving a
guarantee of annual earnings to an employee covered by a modern award that is
in operation, an employer must notify the employee in writing that a modern
award will not apply to the employee during any period during which the annual
rate of the guarantee of annual earnings exceeds the high income threshold.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
329
High income employee
(1) A full‑time employee is a high
income employee of an employer at a time if:
(a) the employee has a guarantee of
annual earnings for the guaranteed period; and
(b) the time occurs during the period;
and
(c) the annual rate of the guarantee
of annual earnings exceeds the high income threshold at that time.
(2) An employee other than a full‑time
employee is a high‑income employee of an employer at a time if:
(a) the employee has a guarantee of
annual earnings for the guaranteed period; and
(b) the time occurs during the period;
and
(c) the annual rate of the guarantee
of annual earnings would have exceeded the high income threshold at that time
if the employee were employed on a full‑time basis at the same rate of
earnings.
(3) To avoid doubt, the employee does not
have a guarantee of annual earnings for the guaranteed period if the employer
revokes the guarantee of annual earnings with the employee’s agreement.
330
Guarantee of annual earnings and annual rate of guarantee
(1) An undertaking given by an employer to an
employee is a guarantee of annual earnings if:
(a) the employee is covered by a
modern award that is in operation; and
(b) the undertaking is an undertaking
in writing to pay the employee an amount of earnings in relation to the
performance of work during a period of 12 months or more; and
(c) the employee agrees to accept the
undertaking, and agrees with the amount of the earnings; and
(d) the undertaking and the employee’s
agreement are given before the start of the period, and within 14 days after:
(i) the day the employee
is employed; or
(ii) a day on which the
employer and employee agree to vary the terms and conditions of the employee’s
employment; and
(e) an enterprise agreement does not
apply to the employee’s employment at the start of the period.
(2) However, if:
(a) an employee is employed for a
period shorter than 12 months; or
(b) an employee will perform duties of
a particular kind for a period shorter than 12 months;
the undertaking may be given for that shorter period.
(3) The annual rate of the
guarantee of annual earnings is the annual rate of the earnings covered by the
undertaking.
331
Guaranteed period
The guaranteed period for
a guarantee of annual earnings is the period that:
(a) starts at the start of the period
of the undertaking that is the guarantee of annual earnings; and
(b) ends at the earliest of the
following:
(i) the end of that
period;
(ii) an enterprise
agreement starting to apply to the employment of the employee;
(iii) the employer revoking
the guarantee of annual earnings with the employee’s agreement.
332
Earnings
(1) An employee’s earnings
include:
(a) the employee’s wages; and
(b) amounts applied or dealt with in
any way on the employee’s behalf or as the employee directs; and
(c) the agreed money value of non‑monetary
benefits; and
(d) amounts or benefits prescribed by
the regulations.
(2) However, an employee’s earnings
do not include the following:
(a) payments the amount of which
cannot be determined in advance;
(b) reimbursements;
(c) contributions to a superannuation
fund to the extent that they are contributions to which subsection (4)
applies;
(d) amounts prescribed by the
regulations.
Note: Some examples of payments covered by
paragraph (a) are commissions, incentive‑based payments and bonuses, and
overtime (unless the overtime is guaranteed).
(3) Non‑monetary benefits are
benefits other than an entitlement to a payment of money:
(a) to which the employee is entitled
in return for the performance of work; and
(b) for which a reasonable money value
has been agreed by the employee and the employer;
but does not include a benefit prescribed by the
regulations.
(4) This subsection applies to contributions
that the employer makes to a superannuation fund to the extent that one or more
of the following applies:
(a) the employer would have been
liable to pay superannuation guarantee charge under the Superannuation
Guarantee Charge Act 1992 in relation to the person if the amounts had not
been so contributed;
(b) the employer is required to
contribute to the fund for the employee’s benefit in relation to a defined
benefit interest (within the meaning of section 292‑175 of the Income
Tax Assessment Act 1997) of the employee;
(c) the employer is required to
contribute to the fund for the employee’s benefit under a law of the
Commonwealth, a State or a Territory.
333
High income threshold
(1) Subject to this section, the high
income threshold is the amount prescribed by, or worked out in the
manner prescribed by, the regulations.
(2) A regulation made for the purposes of
subsection (1) has no effect to the extent that it would have the effect
of reducing the amount of the high income threshold.
(3) If:
(a) in prescribing a manner in which
the high income threshold is worked out, regulations made for the purposes of
subsection (1) specify a particular matter or state of affairs; and
(b) as a result of a change in the
matter or state of affairs, the amount of the high income threshold worked out
in that manner would, but for this subsection, be less than it was on the last
occasion on which this subsection did not apply;
the high income threshold is the amount that
it would be if the change had not occurred.
333A
Prospective employees
If:
(a) an employer, or a person who may
become an employer, gives to another person an undertaking that would have been
a guarantee of annual earnings if the other person had been the employer’s or
person’s employee; and
(b) the other person subsequently
becomes the employer’s or person’s employee; and
(c) the undertaking relates to the
work that the other person performs for the employer or person;
this Division applies in relation to the undertaking,
after the other person becomes the employer’s or person’s employee, as if the
other person had been the employer’s or person’s employee at the time the
undertaking was given.
Chapter 3—Rights and responsibilities of employees, employers, organisations
etc.
Part 3‑1—General protections
Division 1—Introduction
334
Guide to this Part
This Part provides general workplace
protections.
Division 2 sets out the
circumstances in which this Part applies.
Division 3 protects workplace
rights, and the exercise of those rights.
Division 4 protects freedom of
association and involvement in lawful industrial activities.
Division 5 provides other
protections, including protection from discrimination.
Division 6 deals with sham
arrangements.
Division 7 sets out rules for the
purposes of establishing contraventions of this Part.
Division 8 deals with compliance.
In most cases, a general protections dispute that involves dismissal will be
dealt with by a court only if the dispute has not been resolved by FWA.
335
Meanings of employee and employer
In this Part, employee and
employer have their ordinary meanings.
336
Objects of this Part
The objects of this Part are as follows:
(a) to protect workplace rights;
(b) to protect freedom of association
by ensuring that persons are:
(i) free to become, or not
become, members of industrial associations; and
(ii) free to be
represented, or not represented, by industrial associations; and
(iii) free to participate,
or not participate, in lawful industrial activities;
(c) to provide protection from
workplace discrimination;
(d) to provide effective relief for
persons who have been discriminated against, victimised or otherwise adversely
affected as a result of contraventions of this Part.
Division 2—Application of this Part
337
Application of this Part
This Part applies only to the extent
provided by this Division.
Note: Sections 30G and 30R extend the operation
of this Part in a referring State.
338
Action to which this Part applies
(1) This Part applies to the following
action:
(a) action taken by a constitutionally‑covered
entity;
(b) action that affects, is capable of
affecting or is taken with intent to affect the activities, functions,
relationships or business of a constitutionally‑covered entity;
(c) action that consists of advising,
encouraging or inciting, or action taken with intent to coerce, a
constitutionally‑covered entity:
(i) to take, or not take,
particular action in relation to another person; or
(ii) to threaten to take,
or not take, particular action in relation to another person;
(d) action taken in a Territory or a
Commonwealth place;
(e) action taken by:
(i) a trade and commerce
employer; or
(ii) a Territory employer;
that affects, is capable of
affecting or is taken with intent to affect an employee of the employer;
(f) action taken by an employee of:
(i) a trade and commerce
employer; or
(ii) a Territory employer;
that affects, is capable of
affecting or is taken with intent to affect the employee’s employer.
(2) Each of the following is a constitutionally‑covered
entity:
(a) a constitutional corporation;
(b) the Commonwealth;
(c) a Commonwealth authority;
(d) a body corporate incorporated in a
Territory;
(e) an organisation.
(3) A trade and commerce employer
is a national system employer within the meaning of paragraph 14(d).
(4) A Territory employer is a
national system employer within the meaning of paragraph 14(f).
339
Additional effect of this Part
In addition to the effect provided by
section 338, this Part also has the effect it would have if any one or
more of the following applied:
(a) a reference to an employer in one
or more provisions of this Part were a reference to a national system employer;
(b) a reference to an employee in one
or more provisions of this Part were a reference to a national system employee;
(c) a reference to an industrial
association in one or more provisions of this Part were a reference to an
organisation, or another association of employees or employers, a purpose of
which is the protection and promotion of the interests of national system
employees or national system employers in matters concerning employment;
(d) a reference to an officer of an
industrial association in one or more provisions of this Part were a reference
to an officer of an organisation;
(e) a reference to a person, another
person or a third person in one or more provisions of this Part were a
reference to a constitutionally‑covered entity;
(f) a reference to a workplace law in
one or more provisions of this Part were a reference to a workplace law of the
Commonwealth;
(g) a reference to a workplace
instrument in one or more provisions of this Part were a reference to a
workplace instrument made under, or recognised by, a law of the Commonwealth;
(h) a reference to an industrial body
in one or more provisions of this Part were a reference to an industrial body
performing functions or exercising powers under a law of the Commonwealth.
Division 3—Workplace rights
340
Protection
(1) A person must not take adverse action
against another person:
(a) because the other person:
(i) has a workplace right;
or
(ii) has, or has not,
exercised a workplace right; or
(iii) proposes or proposes
not to, or has at any time proposed or proposed not to, exercise a workplace
right; or
(b) to prevent the exercise of a
workplace right by the other person.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) A person must not take adverse action
against another person (the second person) because a third person
has exercised, or proposes or has at any time proposed to exercise, a workplace
right for the second person’s benefit, or for the benefit of a class of persons
to which the second person belongs.
Note: This subsection is a civil remedy provision (see
Part 4‑1).
341
Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right
if the person:
(a) is entitled to the benefit of, or
has a role or responsibility under, a workplace law, workplace instrument or
order made by an industrial body; or
(b) is able to initiate, or
participate in, a process or proceedings under a workplace law or workplace
instrument; or
(c) is able to make a complaint or
inquiry:
(i) to a person or body
having the capacity under a workplace law to seek compliance with that law or a
workplace instrument; or
(ii) if the person is an
employee—in relation to his or her employment.
Meaning of process or proceedings under a workplace
law or workplace instrument
(2) Each of the following is a process
or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing
held by FWA;
(b) court proceedings under a
workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an
enterprise agreement;
(f) appointing, or terminating the
appointment of, a bargaining representative;
(g) making or terminating an
individual flexibility arrangement under a modern award or enterprise
agreement;
(h) agreeing to cash out paid annual
leave or paid personal/carer’s leave;
(i) making a request under
Division 4 of Part 2‑2 (which deals with requests for flexible
working arrangements);
(j) dispute settlement for which
provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings
under a workplace law or workplace instrument.
Prospective employees taken to have workplace rights
(3) A prospective employee is taken to have
the workplace rights he or she would have if he or she were employed in the
prospective employment by the prospective employer.
Note: Among other things, the effect of this
subsection would be to prevent a prospective employer making an offer of
employment conditional on entering an individual flexibility arrangement.
Exceptions relating to prospective employees
(4) Despite subsection (3), a
prospective employer does not contravene subsection 340(1) if the prospective
employer makes an offer of employment conditional on the prospective employee
accepting a guarantee of annual earnings.
(5) Despite paragraph (1)(a), a
prospective employer does not contravene subsection 340(1) if the prospective
employer refuses to employ a prospective employee because the prospective
employee would be entitled to the benefit of Part 2‑8 (which deals with
transfer of business).
342
Meaning of adverse action
(1) The following table sets out
circumstances in which a person takes adverse action against
another person.
|
Meaning of adverse
action
|
|
Item
|
Column 1
Adverse action
is taken by ...
|
Column 2
if ...
|
|
1
|
an employer against an employee
|
the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s
prejudice; or
(d) discriminates between the employee and other employees of
the employer.
|
|
2
|
a prospective employer against a prospective employee
|
the prospective employer:
(a) refuses to employ the prospective employee; or
(b) discriminates against the prospective employee in the terms
or conditions on which the prospective employer offers to employ the
prospective employee.
|
|
3
|
a person (the principal)
who has entered into a contract for services with an independent contractor
against the independent contractor, or a person employed or engaged by the
independent contractor
|
the principal:
(a) terminates the contract;
or
(b) injures the independent
contractor in relation to the terms and conditions of the contract; or
(c) alters the position of
the independent contractor to the independent contractor’s prejudice; or
(d) refuses to make use of, or
agree to make use of, services offered by the independent contractor; or
(e) refuses to supply, or
agree to supply, goods or services to the independent contractor.
|
|
4
|
a person (the principal) proposing to enter
into a contract for services with an independent contractor against the
independent contractor, or a person employed or engaged by the independent
contractor
|
the principal:
(a) refuses to engage the independent contractor; or
(b) discriminates against the independent contractor in the
terms or conditions on which the principal offers to engage the independent
contractor; or
(c) refuses to make use of, or agree to make use of,
services offered by the independent contractor; or
(d) refuses to supply, or agree to supply, goods or services
to the independent contractor.
|
|
5
|
an employee against his or her employer
|
the employee:
(a) ceases work in the service of the employer; or
(b) takes industrial action against the employer.
|
|
6
|
an independent contractor against a person who has entered
into a contract for services with the independent contractor
|
the independent contractor:
(a) ceases work under the contract; or
(b) takes industrial action against the person.
|
|
7
|
an industrial association, or an officer or member of an
industrial association, against a person
|
the industrial association, or the officer or member of
the industrial association:
(a) organises or takes industrial action against the person;
or
(b) takes action that has the effect, directly or indirectly,
of prejudicing the person in the person’s employment or prospective
employment; or
(c) if the person is an independent contractor—takes action
that has the effect, directly or indirectly, of prejudicing the independent
contractor in relation to a contract for services; or
(d) if the person is a member of the association—imposes a
penalty, forfeiture or disability of any kind on the member (other than in
relation to money legally owed to the association by the member).
|
(2) Adverse action includes:
(a) threatening to take action covered
by the table in subsection (1); and
(b) organising such action.
(3) Adverse action does not
include action that is authorised by or under:
(a) this Act or any other law of the
Commonwealth; or
(b) a law of a State or Territory
prescribed by the regulations.
(4) Without limiting subsection (3), adverse
action does not include an employer standing down an employee who is:
(a) engaged in protected industrial
action; and
(b) employed under a contract of
employment that provides for the employer to stand down the employee in the
circumstances.
343
Coercion
(1) A person must not organise or take, or
threaten to organise or take, any action against another person with intent to
coerce the other person, or a third person, to:
(a) exercise or not exercise, or
propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise,
a workplace right in a particular way.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) Subsection (1) does not apply to
protected industrial action.
344
Undue influence or pressure
An employer must not exert undue
influence or undue pressure on an employee in relation to a decision by the
employee to:
(a) make, or not make, an agreement or
arrangement under the National Employment Standards; or
(b) make, or not make, an agreement or
arrangement under a term of a modern award or enterprise agreement that is
permitted to be included in the award or agreement under subsection 55(2); or
(c) agree to, or terminate, an
individual flexibility arrangement; or
(d) accept a guarantee of annual
earnings; or
(e) agree, or not agree, to a
deduction from amounts payable to the employee in relation to the performance
of work.
Note: This section is a civil remedy provision (see
Part 4‑1).
345
Misrepresentations
(1) A person must not knowingly or recklessly
make a false or misleading representation about:
(a) the workplace rights of another
person; or
(b) the exercise, or the effect of the
exercise, of a workplace right by another person.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) Subsection (1) does not apply if the
person to whom the representation is made would not be expected to rely on it.
Division 4—Industrial activities
346
Protection
A person must not take adverse action
against another person because the other person:
(a) is or is not, or was or was not,
an officer or member of an industrial association; or
(b) engages, or has at any time
engaged or proposed to engage, in industrial activity within the meaning of
paragraph 347(a) or (b); or
(c) does not engage, or has at any
time not engaged or proposed to not engage, in industrial activity within the
meaning of paragraphs 347(c) to (g).
Note: This section is a civil remedy provision (see
Part 4‑1).
347
Meaning of engages in industrial activity
A person engages in industrial
activity if the person:
(a) becomes or does not become, or
remains or ceases to be, an officer or member of an industrial association; or
(b) does, or does not:
(i) become involved in
establishing an industrial association; or
(ii) organise or promote a
lawful activity for, or on behalf of, an industrial association; or
(iii) encourage, or
participate in, a lawful activity organised or promoted by an industrial
association; or
(iv) comply with a lawful
request made by, or requirement of, an industrial association; or
(v) represent or advance
the views, claims or interests of an industrial association; or
(vi) pay a fee (however
described) to an industrial association, or to someone in lieu of an industrial
association; or
(vii) seek to be represented
by an industrial association; or
(c) organises or promotes an unlawful
activity for, or on behalf of, an industrial association; or
(d) encourages, or participates in, an
unlawful activity organised or promoted by an industrial association; or
(e) complies with an unlawful request
made by, or requirement of, an industrial association; or
(f) takes part in industrial action;
or
(g) makes a payment:
(i) that, because of
Division 9 of Part 3‑3 (which deals with payments relating to periods
of industrial action), an employer must not pay; or
(ii) to which an employee
is not entitled because of that Division.
348
Coercion
A person must not organise or take, or
threaten to organise or take, any action against another person with intent to
coerce the other person, or a third person, to engage in industrial activity.
Note: This section is a civil remedy provision (see
Part 4‑1).
349
Misrepresentations
(1) A person must not knowingly or recklessly
make a false or misleading representation about either of the following:
(a) another person’s obligation to
engage in industrial activity;
(b) another person’s obligation to
disclose whether he or she, or a third person:
(i) is or is not, or was
or was not, an officer or member of an industrial association; or
(ii) is or is not engaging,
or has or has not engaged, in industrial activity.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) Subsection (1) does not apply if the
person to whom the representation is made would not be expected to rely on it.
350
Inducements—membership action
(1) An employer must not induce an employee
to take, or propose to take, membership action.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) A person who has entered into a contract
for services with an independent contractor must not induce the independent
contractor to take, or propose to take, membership action.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(3) A person takes membership action
if the person becomes, does not become, remains or ceases to be, an officer or
member of an industrial association.
Division 5—Other protections
351
Discrimination
(1) An employer must not take adverse action
against a person who is an employee, or prospective employee, of the employer
because of the person’s race, colour, sex, sexual preference, age, physical or
mental disability, marital status, family or carer’s responsibilities,
pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) However, subsection (1) does not
apply to action that is:
(a) not unlawful under any anti‑discrimination
law in force in the place where the action is taken; or
(b) taken because of the inherent
requirements of the particular position concerned; or
(c) if the action is taken against a
staff member of an institution conducted in accordance with the doctrines,
tenets, beliefs or teachings of a particular religion or creed—taken:
(i) in good faith; and
(ii) to avoid injury to the
religious susceptibilities of adherents of that religion or creed.
(3) Each of the following is an anti‑discrimination
law:
(aa) the Age Discrimination Act 2004;
(ab) the Disability Discrimination
Act 1992;
(ac) the Racial Discrimination Act
1975;
(ad) the Sex Discrimination Act 1984;
(a) the Anti‑Discrimination Act
1977 of New South Wales;
(b) the Equal Opportunity Act 1995
of Victoria;
(c) the Anti‑Discrimination Act
1991 of Queensland;
(d) the Equal Opportunity Act 1984
of Western Australia;
(e) the Equal Opportunity Act 1984
of South Australia;
(f) the Anti‑Discrimination Act
1998 of Tasmania;
(g) the Discrimination Act 1991
of the Australian Capital Territory;
(h) the Anti‑Discrimination Act of
the Northern Territory.
352
Temporary absence—illness or injury
An employer must not dismiss an employee
because the employee is temporarily absent from work because of illness or
injury of a kind prescribed by the regulations.
Note: This section is a civil remedy provision (see
Part 4‑1).
353
Bargaining services fees
(1) An industrial association, or an officer
or member of an industrial association, must not:
(a) demand; or
(b) purport to demand; or
(c) do anything that would:
(i) have the effect of
demanding; or
(ii) purport to have the
effect of demanding;
payment of a bargaining services fee.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) A bargaining services
fee is a fee (however described) payable:
(a) to an industrial association; or
(b) to someone in lieu of an
industrial association;
wholly or partly for the provision, or purported
provision, of bargaining services, but does not include membership fees.
(3) Bargaining services are
services provided by, or on behalf of, an industrial association in relation to
an enterprise agreement, or a proposed enterprise agreement (including in
relation to bargaining for, or the making, approval, operation, variation or
termination of, the enterprise agreement, or proposed enterprise agreement).
Exception for fees payable under contract
(4) Subsection (1) does not apply if the
fee is payable to the industrial association under a contract for the provision
of bargaining services.
354
Coverage by particular instruments
(1) A person must not discriminate against an
employer because:
(a) employees of the employer are
covered, or not covered, by:
(i) provisions of the
National Employment Standards; or
(ii) a particular type of
workplace instrument (including a particular kind of workplace instrument
within a type of workplace instrument); or
(iii) an enterprise
agreement that does, or does not, cover an employee organisation, or a
particular employee organisation; or
(b) it is proposed that employees of
the employer be covered, or not be covered, by:
(i) a particular type of
workplace instrument (including a particular kind of workplace instrument
within a type of workplace instrument); or
(ii) an enterprise
agreement that does, or does not, cover an employee organisation, or a
particular employee organisation.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) Subsection (1) does not apply to
protected industrial action.
355
Coercion—allocation of duties etc. to particular person
A person must not organise or take, or
threaten to organise or take, any action against another person with intent to
coerce the other person, or a third person, to:
(a) employ, or not employ, a
particular person; or
(b) engage, or not engage, a
particular independent contractor; or
(c) allocate, or not allocate,
particular duties or responsibilities to a particular employee or independent
contractor; or
(d) designate a particular employee or
independent contractor as having, or not having, particular duties or
responsibilities.
Note: This section is a civil remedy provision (see
Part 4‑1).
356
Objectionable terms
A term of a workplace instrument, or an
agreement or arrangement (whether written or unwritten), has no effect to the
extent that it is an objectionable term.
Division 6—Sham arrangements
357
Misrepresenting employment as independent contracting arrangement
(1) A person (the employer)
that employs, or proposes to employ, an individual must not represent to the
individual that the contract of employment under which the individual is, or
would be, employed by the employer is a contract for services under which the
individual performs, or would perform, work as an independent contractor.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) Subsection (1) does not apply if the
employer proves that, when the representation was made, the employer:
(a) did not know; and
(b) was not reckless as to whether;
the contract was a contract of employment rather than a
contract for services.
358
Dismissing to engage as independent contractor
An employer must not dismiss, or
threaten to dismiss, an individual who:
(a) is an employee of the employer;
and
(b) performs particular work for the
employer;
in order to engage the individual as an independent
contractor to perform the same, or substantially the same, work under a
contract for services.
Note: This section is a civil remedy provision (see
Part 4‑1).
359
Misrepresentation to engage as independent contractor
A person (the employer)
that employs, or has at any time employed, an individual to perform particular
work must not make a statement that the employer knows is false in order to persuade
or influence the individual to enter into a contract for services under which
the individual will perform, as an independent contractor, the same, or
substantially the same, work for the employer.
Note: This section is a civil remedy provision (see
Part 4‑1).
Division 7—Ancillary rules
360
Multiple reasons for action
For the purposes of this Part, a person
takes action for a particular reason if the reasons for the action include that
reason.
361
Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a
contravention of this Part, it is alleged that a person took, or is taking,
action for a particular reason or with a particular intent; and
(b) taking that action for that reason
or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the
application, that the action was, or is being, taken for that reason or with
that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in
relation to orders for an interim injunction.
362
Advising, encouraging, inciting or coercing action
(1) If:
(a) for a particular reason (the first
person’s reason), a person advises, encourages or incites, or takes any
action with intent to coerce, a second person to take action; and
(b) the action, if taken by the second
person for the first person’s reason, would contravene a provision of this
Part;
the first person is taken to have contravened the
provision.
(2) Subsection (1) does not limit
section 550.
363
Actions of industrial associations
(1) For the purposes of this Part, each of
the following is taken to be action of an industrial association:
(a) action taken by the committee of
management of the industrial association;
(b) action taken by an officer or
agent of the industrial association acting in that capacity;
(c) action taken by a member, or group
of members, of the industrial association if the action is authorised by:
(i) the rules of the
industrial association; or
(ii) the committee of
management of the industrial association; or
(iii) an officer or agent of
the industrial association acting in that capacity;
(d) action taken by a member of the
industrial association who performs the function of dealing with an employer on
behalf of the member and other members of the industrial association, acting in
that capacity;
(e) if the industrial association is
an unincorporated industrial association that does not have a committee of
management—action taken by a member, or group of members, of the industrial
association.
(2) Paragraphs (1)(c) and (d) do not
apply if:
(a) the committee of management of the
industrial association; or
(b) a person authorised by the
committee; or
(c) an officer of the industrial
association;
has taken all reasonable steps to prevent the action.
(3) If, for the purposes of this Part, it is
necessary to establish the state of mind of an industrial association in
relation to particular action, it is enough to show:
(a) that the action was taken by a
person, or a group, referred to in paragraphs (1)(a) to (e); and
(b) that the person, or a person in
the group, had that state of mind.
(4) Subsections (1) to (3) have effect
despite subsections 793(1) and (2) (which deal with liabilities of bodies corporate).
364
Unincorporated industrial associations
Person includes unincorporated industrial association
(1) For the purposes of this Part, a
reference to a person includes a reference to an unincorporated industrial
association.
Liability for contraventions by unincorporated
industrial associations
(2) A contravention of this Part that would
otherwise be committed by an unincorporated industrial association is taken to
have been committed by each member, officer or agent of the industrial
association who:
(a) took, or took part in, the
relevant action; and
(b) did so with the relevant state of
mind.
Division 8—Compliance
Subdivision A—Contraventions involving dismissal
365
Application for FWA to deal with a dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial
association that is entitled to represent the industrial interests of the
person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to
FWA for FWA to deal with the dispute.
366
Time for application
(1) An application under section 365
must be made:
(a) within 60 days after the dismissal
took effect; or
(b) within such further period as FWA
allows under subsection (2).
(2) FWA may allow a further period if FWA is
satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to
dispute the dismissal; and
(c) prejudice to the employer
(including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and
other persons in a like position.
367
Application fees
(1) The application must be accompanied by
any fee prescribed by the regulations.
(2) The regulations may prescribe:
(a) a fee for making an application to
FWA under section 365; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or
part of the fee may be waived or refunded.
368
Conferences
(1) If an application is made under
section 365, FWA must conduct a conference to deal with the dispute.
Note 1: For conferences, see section 592.
Note 2: FWA may deal with a dispute by mediation or
conciliation, or by making a recommendation or expressing an opinion (see
subsection 595(2)). One of the recommendations that FWA might make is that an
application be made under Part 3‑2 (which deals with unfair dismissal) in
relation to the dispute.
(2) Despite subsection 592(3), FWA must
conduct the conference in private.
369
Certificate if dispute not resolved
If FWA is satisfied that all reasonable
attempts to resolve the dispute have been, or are likely to be, unsuccessful,
FWA must issue a certificate to that effect.
370
Advice on general protections court application
(1) If FWA considers, taking into account all
the materials before it, that a general protections court application in
relation to the dispute would not have a reasonable prospect of success, it
must advise the parties accordingly.
(2) A general protections court application
is an application to a court under Division 2 of Part 4‑1 for orders
in relation to a contravention of this Part.
371
General protections court applications
FWA conference to be held before application
(1) A person who is entitled to apply under
section 365 to FWA for FWA to deal with a dispute must not make a general
protections court application in relation to the dispute unless:
(a) FWA has issued a certificate under
section 369 in relation to the dispute; or
(b) the general protections court
application includes an application for an interim injunction.
Time for application
(2) Despite section 544, a general
protections court application that requires a certificate under
section 369 must be made within 14 days after the certificate is issued,
or within such period as a court allows on an application made during or after
those 14 days.
Note: In Brodie‑Hanns v MTV Publishing Ltd
(1995) 67 IR 298, the Industrial Relations Court of Australia set down
principles relating to the exercise of its discretion under a similarly worded
provision of the Industrial Relations Act 1988.
Subdivision B—Other contraventions
372
Application for FWA to deal with a dispute
If:
(a) a person alleges a contravention
of this Part; and
(b) the person is not entitled to
apply to FWA under section 365 for FWA to deal with the dispute;
the person may apply to FWA under this section for FWA to
deal with the dispute.
373
Application fees
(1) The application must be accompanied by
any fee prescribed by the regulations.
(2) The regulations may prescribe:
(a) a fee for making an application to
FWA under section 372; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or
part of the fee may be waived or refunded.
374
Conferences
(1) If:
(a) an application is made under
section 372; and
(b) the parties to the dispute agree
to participate;
FWA must conduct a conference to deal with the dispute.
Note 1: For conferences, see section 592.
Note 2: FWA may deal with a dispute by mediation or
conciliation, or by making a recommendation or expressing an opinion (see
subsection 595(2)).
(2) Despite subsection 592(3), FWA must
conduct the conference in private.
375
Advice on general protections court application
If FWA considers, taking into account
all the materials before it, that a general protections court application in
relation to the dispute would not have a reasonable prospect of success, it
must advise the parties accordingly.
Subdivision C—Conference costs
376
Costs orders against lawyers and paid agents
(1) If FWA has granted permission in
accordance with section 596 for a person to be represented by a lawyer or
paid agent in relation to an application under section 365 or 372, FWA may
make an order for costs against the lawyer or paid agent if FWA is satisfied:
(a) that:
(i) the lawyer or paid
agent caused costs to be incurred by another party to the dispute because the
lawyer or paid agent encouraged the person to make the application; and
(ii) it should have been
reasonably apparent that the application would have no reasonable prospect of
success; or
(b) that the lawyer or paid agent
caused costs to be incurred by another party to the dispute because of an
unreasonable act or omission of the lawyer or paid agent in connection with the
conduct or continuation of the dispute.
(2) FWA may make an order under this section
only if the other party has applied for it under section 377.
(3) This section does not limit FWA’s power
to order costs under section 611.
377
Applications for costs orders
An application for an order for costs in
relation to an application under section 365 or 372 must be made within 14
days after FWA finishes dealing with the dispute.
378
Contravening costs orders
A person to whom an order for costs made
under section 376 applies must not contravene a term of the order.
Note: This section is a civil remedy provision (see
Part 4‑1).
Part 3‑2—Unfair dismissal
Division 1—Introduction
379
Guide to this Part
This Part is about the unfair
dismissal of national system employees, and the granting of remedies for unfair
dismissal.
Division 2 sets out when a person
is protected from unfair dismissal.
Division 3 sets out the elements
that make up an unfair dismissal.
Division 4 sets out the remedies
FWA can grant for unfair dismissal.
Division 5 is about the
procedural aspects of getting remedies for unfair dismissal.
380
Meanings of employee and employer
In this Part, employee
means a national system employee, and employer means a national
system employer.
381
Object of this Part
(1) The object of this Part is:
(a) to establish a framework for
dealing with unfair dismissal that balances:
(i) the needs of business
(including small business); and
(ii) the needs of
employees; and
(b) to establish procedures for dealing
with unfair dismissal that:
(i) are quick, flexible
and informal; and
(ii) address the needs of
employers and employees; and
(c) to provide remedies if a dismissal
is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to
in paragraphs (1)(b) and (c), and the manner of deciding on and working
out such remedies, are intended to ensure that a “fair go all round” is
accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by
Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971]
AR (NSW) 95.
Division 2—Protection from unfair dismissal
382
When a person is protected from unfair dismissal
A person is protected from unfair
dismissal at a time if, at that time:
(a) the person is an employee who has
completed a period of employment with his or her employer of at least the
minimum employment period; and
(b) one or more of the following
apply:
(i) a modern award covers
the person;
(ii) an enterprise
agreement applies to the person in relation to the employment;
(iii) the sum of the
person’s annual rate of earnings, and such other amounts (if any) worked out in
relation to the person in accordance with the regulations, is less than the
high income threshold.
383
Meaning of minimum employment period
The minimum employment period
is:
(a) if the employer is not a small
business employer—6 months ending at the earlier of the following times:
(i) the time when the
person is given notice of the dismissal;
(ii) immediately before the
dismissal; or
(b) if the employer is a small
business employer—one year ending at that time.
384
Period of employment
(1) An employee’s period of employment
with an employer at a particular time is the period of continuous service the
employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual
employee does not count towards the employee’s period of employment unless:
(i) the employment as a
casual employee was on a regular and systematic basis; and
(ii) during the period of
service as a casual employee, the employee had a reasonable expectation of
continuing employment by the employer on a regular and systematic basis; and
(b) if:
(i) the employee is a
transferring employee in relation to a transfer of business from an old
employer to a new employer; and
(ii) the old employer and
the new employer are not associated entities when the employee becomes employed
by the new employer; and
(iii) the new employer
informed the employee in writing before the new employment started that a
period of service with the old employer would not be recognised;
the period of service with the
old employer does not count towards the employee’s period of employment with the
new employer.
Division 3—What is an unfair dismissal
385
What is an unfair dismissal
A person has been unfairly
dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or
unreasonable; and
(c) the dismissal was not consistent
with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of
genuine redundancy.
Note: For the definition of consistent with
the Small Business Fair Dismissal Code: see section 388.
386
Meaning of dismissed
(1) A person has been dismissed
if:
(a) the person’s employment with his
or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his
or her employment, but was forced to do so because of conduct, or a course of
conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed
if:
(a) the person was employed under a
contract of employment for a specified period of time, for a specified task, or
for the duration of a specified season, and the employment has terminated at
the end of the period, on completion of the task, or at the end of the season;
or
(b) the person was an employee:
(i) to whom a training
arrangement applied; and
(ii) whose employment was
for a specified period of time or was, for any reason, limited to the duration
of the training arrangement;
and the employment has
terminated at the end of the training arrangement; or
(c) the person was demoted in
employment but:
(i) the demotion does not
involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains
employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a
person employed under a contract of a kind referred to in paragraph (2)(a)
if a substantial purpose of the employment of the person under a contract of
that kind is, or was at the time of the person’s employment, to avoid the
employer’s obligations under this Part.
387
Criteria for considering harshness etc.
In considering whether it is satisfied
that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason
for the dismissal related to the person’s capacity or conduct (including its
effect on the safety and welfare of other employees); and
(b) whether the person was notified of
that reason; and
(c) whether the person was given an
opportunity to respond to any reason related to the capacity or conduct of the
person; and
(d) any unreasonable refusal by the
employer to allow the person to have a support person present to assist at any
discussions relating to dismissal; and
(e) if the dismissal related to
unsatisfactory performance by the person—whether the person had been warned
about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of
the employer’s enterprise would be likely to impact on the procedures followed
in effecting the dismissal; and
(g) the degree to which the absence of
dedicated human resource management specialists or expertise in the enterprise
would be likely to impact on the procedures followed in effecting the
dismissal; and
(h) any other matters that FWA
considers relevant.
388
The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument,
declare a Small Business Fair Dismissal Code.
(2) A person’s dismissal was consistent
with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the
dismissal or at the time the person was given notice of the dismissal (whichever
happened first), the person’s employer was a small business employer; and
(b) the employer complied with the
Small Business Fair Dismissal Code in relation to the dismissal.
389
Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine
redundancy if:
(a) the person’s employer no longer
required the person’s job to be performed by anyone because of changes in the
operational requirements of the employer’s enterprise; and
(b) the employer has complied with any
obligation in a modern award or enterprise agreement that applied to the
employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine
redundancy if it would have been reasonable in all the circumstances
for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated
entity of the employer.
Division 4—Remedies for unfair dismissal
390
When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may
order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person
was protected from unfair dismissal (see Division 2) at the time of being
dismissed; and
(b) the person has been unfairly
dismissed (see Division 3).
(2) FWA may make the order only if the person
has made an application under section 394.
(3) FWA must not order the payment of
compensation to the person unless:
(a) FWA is satisfied that
reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment
of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters
such as applications for remedies.
391
Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must
be an order that the person’s employer at the time of the dismissal reinstate
the person by:
(a) reappointing the person to the
position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another
position on terms and conditions no less favourable than those on which the
person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person
was employed immediately before the dismissal is no longer a position with the
person’s employer at the time of the dismissal; and
(b) that position, or an equivalent
position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the
associated entity to:
(c) appoint the person to the position
in which the person was employed immediately before the dismissal; or
(d) appoint the person to another
position on terms and conditions no less favourable than those on which the
person was employed immediately before the dismissal.
Order to maintain continuity
(2) If FWA makes an order under
subsection (1) and considers it appropriate to do so, FWA may also make
any order that FWA considers appropriate to maintain the following:
(a) the continuity of the person’s
employment;
(b) the period of the person’s
continuous service with the employer, or (if subsection (1A) applies) the
associated entity.
Order to restore lost pay
(3) If FWA makes an order under
subsection (1) and considers it appropriate to do so, FWA may also make
any order that FWA considers appropriate to cause the employer to pay to the
person an amount for the remuneration lost, or likely to have been lost, by the
person because of the dismissal.
(4) In determining an amount for the purposes
of an order under subsection (3), FWA must take into account:
(a) the amount of any remuneration
earned by the person from employment or other work during the period between
the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration
reasonably likely to be so earned by the person during the period between the
making of the order for reinstatement and the actual reinstatement.
392
Remedy—compensation
Compensation
(1) An order for the payment of compensation
to a person must be an order that the person’s employer at the time of the
dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes
of an order under subsection (1), FWA must take into account all the
circumstances of the case including:
(a) the effect of the order on the
viability of the employer’s enterprise; and
(b) the length of the person’s service
with the employer; and
(c) the remuneration that the person
would have received, or would have been likely to receive, if the person had
not been dismissed; and
(d) the efforts of the person (if any)
to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration
earned by the person from employment or other work during the period between
the dismissal and the making of the order for compensation; and
(f) the amount of any income
reasonably likely to be so earned by the person during the period between the
making of the order for compensation and the actual compensation; and
(g) any other matter that FWA
considers relevant.
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a
person contributed to the employer’s decision to dismiss the person, FWA must
reduce the amount it would otherwise order under subsection (1) by an
appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by FWA to be paid to a
person under subsection (1) must not include a component by way of
compensation for shock, distress or humiliation, or other analogous hurt,
caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by FWA to be paid to a
person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under
subsection (6); and
(b) half the amount of the high income
threshold immediately before the dismissal.
(6) The amount is the total of the following
amounts:
(a) the total amount of remuneration:
(i) received by the
person; or
(ii) to which the person
was entitled;
(whichever is higher) for any
period of employment with the employer during the 26 weeks immediately before
the dismissal; and
(b) if the employee was on leave
without pay or without full pay while so employed during any part of that period—the
amount of remuneration taken to have been received by the employee for the
period of leave in accordance with the regulations.
393
Monetary orders may be in instalments
To avoid doubt, an order by FWA under
subsection 391(3) or 392(1) may permit the employer concerned to pay the amount
required in instalments specified in the order.
Division 5—Procedural matters
394
Application for unfair dismissal remedy
(1) A person who has been dismissed may apply
to FWA for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when FWA may order a
remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6‑1 may prevent an application being
made under this Part in relation to a dismissal if an application or complaint
has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 14 days after the dismissal
took effect; or
(b) within such further period as FWA
allows under subsection (3).
(3) FWA may allow a further period for the
application to be made by a person under subsection (1) if FWA is
satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became
aware of the dismissal after it had taken effect; and
(c) any action taken by the person to
dispute the dismissal; and
(d) prejudice to the employer
(including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person
and other persons in a similar position.
395
Application fees
(1) An application to FWA under this Division
must be accompanied by any fee prescribed by the regulations.
(2) The regulations may prescribe:
(a) a fee for making an application to
FWA under this Division; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or
part of the fee may be waived or refunded.
396
Initial matters to be considered before merits
FWA must decide the following matters
relating to an application for an order under Division 4 before
considering the merits of the application:
(a) whether the application was made
within the period required in subsection 394(2);
(b) whether the person was protected
from unfair dismissal;
(c) whether the dismissal was
consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case
of genuine redundancy.
397
Matters involving contested facts
FWA must conduct a conference or hold a
hearing in relation to a matter arising under this Part if, and to the extent
that, the matter involves facts the existence of which is in dispute.
398
Conferences
(1) This section applies in relation to a
matter arising under this Part if FWA conducts a conference in relation to the
matter.
(2) Despite subsection 592(3), FWA must
conduct the conference in private.
(3) FWA must take into account any difference
in the circumstances of the parties to the matter in:
(a) considering the application; and
(b) informing itself in relation to
the application.
(4) FWA must take into account the wishes of
the parties to the matter as to the way in which FWA:
(a) considers the application; and
(b) informs itself in relation to the
application.
399
Hearings
(1) FWA must not hold a hearing in relation
to a matter arising under this Part unless FWA considers it appropriate to do
so, taking into account:
(a) the views of the parties to the
matter; and
(b) whether a hearing would be the
most effective and efficient way to resolve the matter.
(2) If FWA holds a hearing in relation to a
matter arising under this Part, it may decide not to hold the hearing in
relation to parts of the matter.
(3) FWA may decide at any time (including
before, during or after conducting a conference in relation to a matter) to hold
a hearing in relation to the matter.
400
Appeal rights
(1) Despite subsection 604(2), FWA must not
grant permission to appeal from a decision made by FWA under this Part unless
FWA considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from
a decision made by FWA in relation to a matter arising under this Part can
only, to the extent that it is an appeal on a question of fact, be made on the
ground that the decision involved a significant error of fact.
401
Costs orders against lawyers and paid agents
(1) If FWA has granted permission in
accordance with section 596 for a person to be represented by a lawyer or
paid agent in a matter arising under this Part before FWA, FWA may make an
order for costs against the lawyer or paid agent if FWA is satisfied:
(a) that:
(i) the lawyer or paid
agent caused costs to be incurred by the other party to the matter because the
lawyer or paid agent encouraged the person to start or continue the matter; and
(ii) it should have been
reasonably apparent that the person had no reasonable prospect of success in
the matter; or
(b) that the lawyer or paid agent
caused costs to be incurred by the other party to the matter because of an
unreasonable act or omission of the lawyer or paid agent in connection with the
conduct or continuation of the matter.
(2) FWA may make an order under this section
only if the other party to the matter has applied for it in accordance with
section 402.
(3) This section does not limit FWA’s power
to order costs under section 611.
402
Applications for costs orders
An application for an order for costs
under section 611 in relation to a matter arising under this Part, or for
costs under section 401, must be made within 14 days after:
(a) FWA determines the matter; or
(b) the matter is discontinued.
403
Schedule of costs
(1) A schedule of costs may be prescribed in
relation to items of expenditure likely to be incurred in relation to matters
that can be covered by an order:
(a) under section 611 in relation
to a matter arising under this Part; or
(b) under section 401;
including expenses arising from the representation of a
party by a person or organisation other than on a legal professional basis.
(2) If a schedule of costs is prescribed for
the purposes of subsection (1), then, in awarding costs under
section 611 in relation to a matter arising under this Part, or awarding
costs under section 401, FWA:
(a) is not limited to the items of
expenditure appearing in the schedule; but
(b) if an item does appear in the
schedule—must not award costs in relation to that item at a rate or of an
amount that exceeds the rate or amount appearing in the schedule.
404
Security for costs
The procedural rules may provide for the
furnishing of security for the payment of costs in relation to matters arising
under this Part.
405 Contravening orders
under this Part
A person to whom an order under this
Part applies must not contravene a term of the order.
Note: This section is a civil remedy provision (see
Part 4‑1).
Part 3‑3—Industrial action
Division 1—Introduction
406
Guide to this Part
This Part deals mainly with industrial
action by national system employees and national system employers.
Division 2 sets out when
industrial action for a proposed enterprise agreement is protected industrial
action. No action lies under any law in force in a State or Territory in
relation to protected industrial action except in certain circumstances.
Division 3 provides that
industrial action must not be organised or engaged in by certain persons before
the nominal expiry date of an enterprise agreement or workplace determination
has passed.
Division 4 provides for FWA to
make orders, in certain circumstances, that industrial action stop, not occur
or not be organised for a specified period.
Division 5 deals with injunctions
against industrial action if a bargaining representative of an employee who
will be covered by a proposed enterprise agreement is engaging in pattern
bargaining.
Division 6 provides for FWA to
make orders suspending or terminating protected industrial action for a
proposed enterprise agreement in certain circumstances. If FWA makes such an
order, the action will no longer be protected industrial action.
Division 7 provides for the
Minister to make a declaration terminating protected industrial action for a
proposed enterprise agreement in certain circumstances. If the Minister makes
such an order, the action will no longer be protected industrial action.
Division 8
establishes the process that will allow employees to choose, by means of a fair
and democratic secret ballot, whether to authorise protected industrial action
for a proposed enterprise agreement.
Division 9 sets out restrictions
about payments to employees relating to periods of industrial action.
Division 10 deals with the making
of applications under this Part.
407
Meanings of employee and employer
In this Part, employee
means a national system employee, and employer means a national
system employer.
Division 2—Protected industrial action
Subdivision A—What is protected industrial action
408
Protected industrial action
Industrial action is protected
industrial action for a proposed enterprise agreement if it is one of
the following:
(a) employee claim action for the
agreement (see section 409);
(b) employee response action for the
agreement (see section 410);
(c) employer response action for the
agreement (see section 411).
409
Employee claim action
Employee claim action
(1) Employee claim action for a
proposed enterprise agreement is industrial action that:
(a) is organised or engaged in
for the purpose of supporting or advancing claims in relation to the agreement
that are only about, or are reasonably believed to only be about, permitted
matters; and
(b) is organised or engaged in,
against an employer that will be covered by the agreement, by:
(i) a bargaining
representative of an employee who will be covered by the agreement; or
(ii) an employee who is
included in a group or groups of employees specified in a protected action ballot
order for the industrial action; and
(c) meets the common requirements set
out in Subdivision B; and
(d) meets the additional requirements
set out in this section.
Protected action ballot is necessary
(2) The industrial action must be authorised
by a protected action ballot (see Division 8 of this Part).
Unlawful terms
(3) The industrial action must not be in
support of, or to advance, claims to include unlawful terms in the agreement.
Industrial action must not be part of pattern
bargaining
(4) A bargaining representative
of an employee who will be covered by the agreement must not be engaging in
pattern bargaining in relation to the agreement.
Industrial action must not relate to a demarcation
dispute etc.
(5) The industrial action must not, if it is
being organised or engaged in by a bargaining representative, relate to a
significant extent to a demarcation dispute or contravene an FWA order that
relates to a significant extent to a demarcation dispute.
Notice requirements after suspension order must be met
(6) If section 429 (which deals with
employee claim action without a further protected action ballot after a period
of suspension) applies in relation to the industrial action, the notice
requirements of section 430 must be met.
Officer of an employee organisation
(7) If an employee organisation is a
bargaining representative of an employee who will be covered by the agreement,
the reference to a bargaining representative of the employee in
subparagraph (1)(b)(i) of this section includes a reference to an officer
of the organisation.
410
Employee response action
Employee response action
(1) Employee response action for
a proposed enterprise agreement means industrial action that:
(a) is organised or engaged in
as a response to industrial action by an employer; and
(b) is organised or engaged in,
against an employer that will be covered by the agreement, by:
(i) a bargaining
representative of an employee who will be covered by the agreement; or
(ii) an employee who will
be covered by the agreement; and
(c) meets the common requirements set
out in Subdivision B; and
(d) meets the additional requirements
set out in this section.
Industrial action must not relate to a demarcation
dispute etc.
(2) The industrial action must not, if
it is being organised or engaged in by a bargaining representative, relate to a
significant extent to a demarcation dispute or contravene an FWA order that
relates to a significant extent to a demarcation dispute.
Officer of an employee organisation
(3) If an employee organisation is a
bargaining representative of an employee who will be covered by the agreement,
the reference to a bargaining representative of the employee in
subparagraph (1)(b)(i) includes a reference to an officer of the
organisation.
411
Employer response action
Employer response action
for a proposed enterprise agreement means industrial action that:
(a) is organised or engaged in as a
response to industrial action by:
(i) a bargaining
representative of an employee who will be covered by the agreement; or
(ii) an employee who will
be covered by the agreement; and
(b) is organised or engaged in by an
employer that will be covered by the agreement against one or more employees
that will be covered by the agreement; and
(c) meets the common requirements set
out in Subdivision B.
412
Pattern bargaining
Pattern bargaining
(1) A course of conduct by a person is
pattern bargaining if:
(a) the person is a bargaining
representative for 2 or more proposed enterprise agreements; and
(b) the course of conduct involves
seeking common terms to be included in 2 or more of the agreements; and
(c) the course of conduct relates to 2
or more employers.
Exception—genuinely trying to reach an agreement
(2) The course of conduct, to the extent that
it relates to a particular employer, is not pattern bargaining if the
bargaining representative is genuinely trying to reach an agreement with that
employer.
(3) For the purposes of subsection (2),
the factors relevant to working out whether a bargaining representative is
genuinely trying to reach an agreement with a particular employer, include the
following:
(a) whether the bargaining
representative is demonstrating a preparedness to bargain for the agreement
taking into account the individual circumstances of that employer, including in
relation to the nominal expiry date of the agreement;
(b) whether the bargaining
representative is bargaining in a manner consistent with the terms of the
agreement being determined as far as possible by agreement between that
employer and its employees;
(c) whether the bargaining
representative is meeting the good faith bargaining requirements.
(4) If a person seeks to rely on
subsection (2), the person has the burden of proving that the subsection
applies.
Genuinely trying to reach an agreement
(5) This section does not affect, and is not
affected by, the meaning of the expression “genuinely trying to reach an
agreement”, or any variant of the expression, as used elsewhere in this Act.
Subdivision B—Common requirements for industrial action to be protected
industrial action
413
Common requirements that apply for industrial action to be protected industrial
action
Common requirements
(1) This section sets out the common
requirements for industrial action to be protected industrial action
for a proposed enterprise agreement.
Type of proposed enterprise agreement
(2) The industrial action must not relate to
a proposed enterprise agreement that is a greenfields agreement or multi‑enterprise
agreement.
Genuinely trying to reach an agreement
(3) The following persons must be genuinely
trying to reach an agreement:
(a) if the person organising or
engaging in the industrial action is a bargaining representative for the
agreement—the bargaining representative;
(b) if the person organising or
engaging in the industrial action is an employee who will be covered by the
agreement—the bargaining representative of the employee.
Notice requirements
(4) The notice requirements set
out in section 414 must have been met in relation to the industrial
action.
Compliance with orders
(5) The following persons must not have
contravened any orders that apply to them and that relate to, or relate to
industrial action relating to, the agreement or a matter that arose during
bargaining for the agreement:
(a) if the person organising or
engaging in the industrial action is a bargaining representative for the
agreement—the bargaining representative;
(b) if the person organising or
engaging in the industrial action is an employee who will be covered by the
agreement—the employee and the bargaining representative of the employee.
No industrial action before an enterprise agreement
etc. passes its nominal expiry date
(6) The person organising or engaging in the
industrial action must not contravene section 417 (which deals with
industrial action before the nominal expiry date of an enterprise agreement
etc.) by organising or engaging in the industrial action.
No suspension or termination order is in operation etc.
(7) None of the following must
be in operation:
(a) an order under Division 6 of
this Part suspending or terminating industrial action in relation to the
agreement;
(b) a Ministerial declaration under
subsection 431(1) terminating industrial action in relation to the agreement;
(c) a serious breach declaration in
relation to the agreement.
414
Notice requirements for industrial action
Notice requirements—employee claim action
(1) Before a person engages in employee claim
action for a proposed enterprise agreement, a bargaining representative of an
employee who will be covered by the agreement must give written notice of the
action to the employer of the employee.
(2) The period of notice must be at least:
(a) 3 working days; or
(b) if a protected action ballot order
for the employee claim action specifies a longer period of notice for the
purposes of this paragraph—that period of notice.
Notice of employee claim action not to be given until
ballot results declared
(3) A notice under subsection (1) must
not be given until after the results of the protected action ballot for the
employee claim action have been declared.
Notice requirements—employee response action
(4) Before a person engages in employee
response action for a proposed enterprise agreement, a bargaining
representative of an employee who will be covered by the agreement must give
written notice of the action to the employer of the employee.
Notice requirements—employer response action
(5) Before an employer engages in employer
response action for a proposed enterprise agreement, the employer must:
(a) give written notice of the action
to each bargaining representative of an employee who will be covered by the
agreement; and
(b) take all reasonable steps to
notify the employees who will be covered by the agreement of the action.
Notice requirements—content
(6) A notice given under this section must
specify the nature of the action and the day on which it will start.
Subdivision C—Significance of industrial action being protected industrial
action
415
Immunity provision
(1) No action lies under any law (whether
written or unwritten) in force in a State or Territory in relation to any
industrial action that is protected industrial action unless the industrial
action has involved or is likely to involve:
(a) personal injury; or
(b) wilful or reckless destruction of,
or damage to, property; or
(c) the unlawful taking, keeping or
use of property.
(2) However, subsection (1) does not
prevent an action for defamation being brought in relation to anything that
occurred in the course of industrial action.
416
Employer response action—employer may refuse to make payments to employees
If an employer engages in employer
response action against employees, the employer may refuse to make payments to
the employees in relation to the period of the action.
Note: If an employee engages in protected industrial
action against his or her employer, the employer must not make a payment to an
employee in relation to certain periods of action (see Subdivision A of
Division 9 of this Part).
416A Employer
response action does not affect continuity of employment
Employer response action for a proposed
enterprise agreement does not affect the continuity of employment of the
employees who will be covered by the agreement, for such purposes as are prescribed
by the regulations.
Division 3—No industrial action before nominal expiry date of enterprise
agreement etc.
417
Industrial action must not be organised or engaged in before nominal expiry
date of enterprise agreement etc.
No industrial action
(1) A person referred to in
subsection (2) must not organise or engage in industrial action from the
day on which:
(a) an enterprise agreement is
approved by FWA until its nominal expiry date has passed; or
(b) a workplace determination comes
into operation until its nominal expiry date has passed;
whether or not the industrial action relates to a matter
dealt with in the agreement or determination.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) The persons are:
(a) an employer, employee, or employee
organisation, who is covered by the agreement or determination; or
(b) an officer of an employee
organisation that is covered by the agreement or determination, acting in that
capacity.
Injunctions and other orders
(3) If a person contravenes
subsection (1), the Federal Court or Federal Magistrates Court may do
either or both of the following:
(a) grant an injunction under this
subsection;
(b) make any other order under
subsection 545(1);
that the court considers necessary to stop, or remedy the
effects of, the contravention.
(4) The court may grant an injunction under
subsection (3) only on application by a person referred to in column 2 of
item 14 of the table in subsection 539(2).
(5) Despite subsection 545(4), the court may
make any other order under subsection 545(1) only on application by a person
referred to in column 2 of item 14 of the table in subsection 539(2).
Note: Section 539 deals with applications for
orders in relation to contraventions of civil remedy provisions.
Division 4—FWA orders stopping etc. industrial action
418
FWA must order that industrial action by employees or employers stop etc.
(1) If it appears to FWA that industrial
action by one or more employees or employers that is not, or would not be, protected
industrial action:
(a) is happening; or
(b) is threatened, impending or
probable; or
(c) is being organised;
FWA must make an order that the industrial action stop,
not occur or not be organised (as the case may be) for a period (the stop
period) specified in the order.
Note: For interim orders, see section 420.
(2) FWA may make the order:
(a) on its own initiative; or
(b) on application by either of the
following:
(i) a person who is
affected (whether directly or indirectly), or who is likely to be affected
(whether directly or indirectly), by the industrial action;
(ii) an organisation of
which a person referred to in subparagraph (i) is a member.
(3) In making the order, FWA does not have to
specify the particular industrial action.
(4) If FWA is required to make an order under
subsection (1) in relation to industrial action and a protected action
ballot authorised the industrial action:
(a) some or all of which has not been
taken before the beginning of the stop period specified in the order; or
(b) which has not ended before the
beginning of that stop period; or
(c) beyond that stop period;
FWA may state in the order whether or not the industrial
action may be engaged in after the end of that stop period without another
protected action ballot.
419
FWA must order that industrial action by non‑national system employees or non‑national
system employers stop etc.
Stop orders etc.
(1) If it appears to FWA that industrial
action by one or more non‑national system employees or non‑national system
employers:
(a) is:
(i) happening; or
(ii) threatened, impending
or probable; or
(iii) being organised; and
(b) will, or would, be likely to have
the effect of causing substantial loss or damage to the business of a
constitutional corporation;
FWA must make an order that the industrial action stop,
not occur or not be organised (as the case may be) for a period specified in
the order.
Note: For interim orders, see section 420.
(2) FWA may make the order:
(a) on its own initiative; or
(b) on application by either of the
following:
(i) a person who is
affected (whether directly or indirectly), or who is likely to be affected
(whether directly or indirectly), by the industrial action;
(ii) an organisation of
which a person referred to in subparagraph (i) is a member.
(3) In making the order, FWA does not have to
specify the particular industrial action.
420
Interim orders etc.
Application must be determined within 2 days
(1) As far as practicable, FWA must determine
an application for an order under section 418 or 419 within 2 days after
the application is made.
Interim orders
(2) If FWA is unable to determine the
application within that period, FWA must, within that period, make an interim
order that the industrial action to which the application relates stop, not
occur or not be organised (as the case may be).
(3) However, FWA must not make the interim
order if FWA is satisfied that it would be contrary to the public interest to
do so.
(4) In making the interim order, FWA does not
have to specify the particular industrial action.
(5) An interim order continues in operation
until the application is determined.
421
Contravening an order etc.
Contravening orders
(1) A person to whom an order under
section 418, 419 or 420 applies must not contravene a term of the order.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) However, a person is not required to
comply with an order if:
(a) the order is an order under
section 418, or an order under section 420 that relates to an application
for an order under section 418; and
(b) the industrial action to which the
order relates is, or would be, protected industrial action.
Injunctions
(3) The Federal Court or Federal Magistrates
Court may grant an injunction, under this subsection, on such terms as the
court considers appropriate if:
(a) a person referred to in column 2
of item 15 of the table in subsection 539(2) has applied for the
injunction; and
(b) the court is satisfied that
another person to whom the order applies has contravened, or proposes to
contravene, a term of the order.
Note: Section 539 deals with applications for
orders in relation to contraventions of civil remedy provisions.
No other orders
(4) Section 545 (which deals with orders
that a court can make if a person has contravened etc. a civil remedy
provision) does not apply to a contravention of a term of the order.
Division 5—Injunction against industrial action if pattern bargaining is
being engaged in
422
Injunction against industrial action if a bargaining representative is engaging
in pattern bargaining
(1) The Federal Court or Federal Magistrates
Court may grant an injunction on such terms as the court considers appropriate
if:
(a) a person has applied for the
injunction; and
(b) the requirement set out in
subsection (2) is met.
(2) The court is satisfied that:
(a) employee claim action for a
proposed enterprise agreement is being engaged in, or is threatened, impending
or probable; and
(b) a bargaining representative of an
employee who will be covered by the agreement is engaging in pattern bargaining
in relation to the agreement.
Division 6—Suspension or termination of protected industrial action by
FWA
423
FWA may suspend or terminate protected industrial action—significant economic
harm etc.
Suspension or termination of protected industrial
action
(1) FWA
may make an order suspending or terminating protected industrial action for a
proposed enterprise agreement that is being engaged in if the requirements set
out in this section are met.
Requirement—significant economic harm
(2) If the protected industrial action is
employee claim action, FWA must be satisfied that the action is causing, or is
threatening to cause, significant economic harm to:
(a) the employer, or any of the
employers, that will be covered by the agreement; and
(b) any of the employees who will be
covered by the agreement.
(3) If the protected industrial action is:
(a) employee response action; or
(b) employer response action;
FWA must be satisfied that the action is causing, or is
threatening to cause, significant economic harm to any of the employees who
will be covered by the agreement.
(4) For the purposes of subsections (2)
and (3), the factors relevant to working out whether protected industrial
action is causing, or is threatening to cause, significant economic harm to a
person referred to in those subsections, include the following:
(a) the source, nature and degree of
harm suffered or likely to be suffered;
(b) the likelihood that the harm will
continue to be caused or will be caused;
(c) the capacity of the person to bear
the harm;
(d) the views of the person and the
bargaining representatives for the agreement;
(e) whether the bargaining
representatives for the agreement have met the good faith bargaining
requirements and have not contravened any bargaining orders in relation to the
agreement;
(f) if FWA is considering terminating
the protected industrial action:
(i) whether the bargaining
representatives for the agreement are genuinely unable to reach agreement on
the terms that should be included in the agreement; and
(ii) whether there is no
reasonable prospect of agreement being reached;
(g) the objective of promoting and
facilitating bargaining for the agreement.
Requirement—harm is imminent
(5) If the protected industrial action is
threatening to cause significant economic harm as referred to in
subsection (2) or (3), FWA must be satisfied that the harm is imminent.
Requirement—protracted action etc.
(6) FWA must be satisfied that:
(a) the protected industrial action
has been engaged in for a protracted period of time; and
(b) the dispute will not be resolved
in the reasonably foreseeable future.
Order may be made on own initiative or on application
(7) FWA may make the order:
(a) on its own initiative; or
(b) on application by any of the
following:
(i) a bargaining
representative for the agreement;
(ii) the Minister;
(iia) if the industrial
action is being engaged in in a State that is a referring State as defined in
section 30B or 30L—the Minister of the State who has responsibility for
workplace relations matters in the State;
(iib) if the industrial
action is being engaged in in a Territory—the Minister of the Territory who has
responsibility for workplace relations matters in the Territory;
(iii) a person prescribed by
the regulations.
424
FWA must suspend or terminate protected industrial action—endangering life etc.
Suspension or termination of protected industrial
action
(1) FWA must make an order suspending or
terminating protected industrial action for a proposed enterprise agreement
that:
(a) is being engaged in; or
(b) is threatened, impending or
probable;
if FWA is satisfied that the protected industrial action
has threatened, is threatening, or would threaten:
(c) to endanger the life, the personal
safety or health, or the welfare, of the population or of part of it; or
(d) to cause significant damage to the
Australian economy or an important part of it.
(2) FWA may make the order:
(a) on its own initiative; or
(b) on application by any of the
following:
(i) a bargaining
representative for the agreement;
(ii) the Minister;
(iia) if the industrial
action is being engaged in, or is threatened, impending or probable, in a State
that is a referring State as defined in section 30B or 30L—the Minister of
the State who has responsibility for workplace relations matters in the State;
(iib) if the industrial
action is being engaged in, or is threatened, impending or probable, in a
Territory—the Minister of the Territory who has responsibility for workplace
relations matters in the Territory;
(iii) a person prescribed by
the regulations.
Application must be determined within 5 days
(3) If an application for an order under this
section is made, FWA must, as far as practicable, determine the application
within 5 days after it is made.
Interim orders
(4) If FWA is unable to determine the
application within that period, FWA must, within that period, make an interim
order suspending the protected industrial action to which the application
relates until the application is determined.
(5) An interim order continues in operation
until the application is determined.
425
FWA must suspend protected industrial action—cooling off
(1) FWA must make an order suspending
protected industrial action for a proposed enterprise agreement that is being
engaged in if FWA is satisfied that the suspension is appropriate taking into
account the following matters:
(a) whether the suspension would be
beneficial to the bargaining representatives for the agreement because it would
assist in resolving the matters at issue;
(b) the duration of the protected
industrial action;
(c) whether the suspension would be
contrary to the public interest or inconsistent with the objects of this Act;
(d) any other matters that FWA
considers relevant.
(2) FWA may make the order only on
application by:
(a) a bargaining representative for
the agreement; or
(b) a person prescribed by the
regulations.
426
FWA must suspend protected industrial action—significant harm to a third party
Suspension of protected industrial action
(1) FWA must make an order suspending
protected industrial action for a proposed enterprise agreement that is being
engaged in if the requirements set out in this section are met.
Requirement—adverse effect on employers or employees
(2) FWA must be satisfied that the protected
industrial action is adversely affecting:
(a) the employer, or any of the
employers, that will be covered by the agreement; or
(b) any of the employees who will be
covered by the agreement.
Requirement—significant harm to a third party
(3) FWA must be satisfied that the protected
industrial action is threatening to cause significant harm to any person other
than:
(a) a bargaining representative for
the agreement; or
(b) an employee who will be covered by
the agreement.
(4) For the purposes of subsection (3),
FWA may take into account any matters it considers relevant including the
extent to which the protected industrial action threatens to:
(a) damage the ongoing viability of an
enterprise carried on by the person; or
(b) disrupt the supply of goods or
services to an enterprise carried on by the person; or
(c) reduce the person’s capacity to
fulfil a contractual obligation; or
(d) cause other economic loss to the
person.
Requirement—suspension is appropriate
(5) FWA must be satisfied that the suspension
is appropriate taking into account the following:
(a) whether the suspension would be
contrary to the public interest or inconsistent with the objects of this Act;
(b) any other matters that FWA
considers relevant.
Order may only be made on application by certain
persons
(6) FWA may make the order only on
application by:
(a) an organisation, person or body
directly affected by the protected industrial action other than:
(i) a bargaining
representative for the agreement; or
(ii) an employee who will
be covered by the agreement; or
(b) the Minister; or
(ba) if the industrial action is being
engaged in in a State that is a referring State as defined in section 30B
or 30L—the Minister of the State who has responsibility for workplace relations
matters in the State; or
(bb) if the industrial action is being
engaged in in a Territory—the Minister of the Territory who has responsibility
for workplace relations matters in the Territory; or
(c) a person prescribed by the
regulations.
427
FWA must specify the period of suspension
Application of this section
(1) This section applies if FWA is required
or permitted by this Division to make an order suspending protected industrial
action.
Suspension period
(2) FWA must specify, in the order, the
period for which the protected industrial action is suspended.
Notice period
(3) FWA may specify, in the order, a longer
period of notice of up to 7 working days for the purposes of paragraph
430(2)(b) if FWA is satisfied that there are exceptional circumstances
justifying that longer period of notice.
428
Extension of a period of suspension
(1) FWA may make an order extending the
period of suspension specified in an order (the suspension order)
suspending protected industrial action for a proposed enterprise agreement if:
(a) the person who applied, or a
person who could have applied, for the suspension order, applies for the
extension; and
(b) FWA has not previously made an
order under this section in relation to the suspension order; and
(c) FWA is satisfied that the
extension is appropriate taking into account any matters FWA considers relevant
including the matters specified in the provision under which the suspension
order was made.
(2) If FWA is permitted to make an order
under this section:
(a) FWA must specify, in the order,
the period of extension; and
(b) FWA may specify, in the order, a
longer period of notice of up to 7 working days for the purposes of paragraph
430(2)(b) if FWA is satisfied that there are exceptional circumstances
justifying that longer period of notice.
429
Employee claim action without a further protected action ballot after a period
of suspension etc.
Application of this section
(1) This section applies in relation to
employee claim action for a proposed enterprise agreement if:
(a) an order suspending the employee
claim action has been made; and
(b) a protected action ballot
authorised the employee claim action:
(i) some or all of which
had not been taken before the beginning of the period (the suspension
period) of suspension specified in the order; or
(ii) which had not ended
before the beginning of the suspension period; or
(iii) beyond the suspension
period; and
(c) the suspension period (including
any extension under section 428) ends, or the order is revoked before the
end of that period.
Further protected action ballot not required to engage
in employee claim action
(2) A person may engage in the employee claim
action without another protected action ballot.
(3) For the purposes of working out when the
employee claim action may be engaged in, the suspension period (including any
dates authorised by the protected action ballot as dates on which employee
claim action is to be engaged in) must be disregarded.
(4) Nothing in this section authorises
employee claim action that is different in type or duration from the employee
claim action that was authorised by the protected action ballot.
430
Notice of employee claim action engaged in after a period of suspension etc.
(1) Before a person engages in employee claim
action for a proposed enterprise agreement as permitted by subsection 429(2), a
bargaining representative of an employee who will be covered by the agreement
must give written notice of the action to the employer of the employee.
(2) The period of notice must be at least:
(a) 3 working days; or
(b) if, under subsection 427(3) or
paragraph 428(2)(b), FWA specified, for the purposes of this paragraph, a
longer period of notice in an order relating to the employee claim action—that
period of notice.
(3) The notice must state the nature of the
employee claim action and the day on which it will start.
Division 7—Ministerial declarations
431
Ministerial declaration terminating industrial action
(1) The Minister may make a declaration, in
writing, terminating protected industrial action for a proposed enterprise
agreement if the Minister is satisfied that:
(a) the industrial action is being
engaged in, or is threatened, impending or probable; and
(b) the industrial action is
threatening, or would threaten:
(i) to endanger the life,
the personal safety or health, or the welfare, of the population or a part of
it; or
(ii) to cause significant
damage to the Australian economy or an important part of it.
(2) The declaration comes into operation on
the day that it is made.
(3) A declaration under subsection (1)
is not a legislative instrument.
432
Informing people of declaration
(1) This section applies if the Minister
makes a declaration under subsection 431(1).
(2) The declaration must be published in the Gazette.
(3) The Minister must inform FWA of the
making of the declaration.
(4) The Minister must, as soon as
practicable, take all reasonable steps to ensure that the bargaining
representatives for the proposed enterprise agreement concerned are made aware:
(a) of the making of the declaration;
and
(b) of the effect of Part 2‑5
(which deals with workplace determinations).
433
Ministerial directions to remove or reduce threat
(1) If a declaration under subsection 431(1)
is in operation in relation to a proposed enterprise agreement, the Minister
may give directions, in writing, requiring the following persons to take, or
refrain from taking, specified actions:
(a) specified bargaining
representatives for the agreement;
(b) specified employees who will be
covered by the agreement.
(2) The Minister may only give directions
that the Minister is satisfied are reasonably directed to removing or reducing
the threat referred to in paragraph 431(1)(b).
(3) A direction under subsection (1) is
not a legislative instrument.
434
Contravening a Ministerial direction
A person to whom a direction under
subsection 433(1) applies must not contravene the direction.
Note: This section is a civil remedy provision (see
Part 4‑1).
Division 8—Protected action ballots
Subdivision A—Introduction
435
Guide to this Division
This Division establishes the process
that will allow employees to choose, by means of a fair and democratic secret
ballot, whether to authorise protected industrial action for a proposed
enterprise agreement.
Subdivision B provides for FWA to make
a protected action ballot order, on application by a bargaining representative
of an employee who will be covered by a proposed enterprise agreement,
requiring a protected action ballot to be conducted.
Subdivision C deals with the conduct
of a protected action ballot.
Subdivision D deals with the effect of
a protected action ballot.
Subdivision E deals with compliance
matters in relation to a protected action ballot.
Subdivision F deals with the liability
for the costs of a protected action ballot.
Subdivision G deals with records and
other miscellaneous matters.
436
Object of this Division
The object of this Division is to establish
a fair, simple and democratic process to allow a bargaining representative to
determine whether employees wish to engage in particular protected industrial
action for a proposed enterprise agreement.
Note: Under Division 2, industrial action by employees
for a proposed enterprise agreement (other than employee response action) is
not protected industrial action unless it has been authorised in advance by a
protected action ballot.
Subdivision B—Protected action ballot orders
437
Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an
employee who will be covered by a proposed enterprise agreement, or 2 or more
such bargaining representatives (acting jointly), may apply to FWA for an order
(a protected action ballot order) requiring a protected action
ballot to be conducted to determine whether employees wish to engage in
particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the
proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi‑enterprise agreement.
Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees
who are to be balloted; and
(b) the question or questions to be
put to the employees who are to be balloted, including the nature of the
proposed industrial action.
(4) If the applicant wishes a person other
than the Australian Electoral Commission to be the protected action ballot
agent for the protected action ballot, the application must specify the name of
the person.
Note: The protected action ballot agent will be the
Australian Electoral Commission unless FWA specifies another person in the
protected action ballot order as the protected action ballot agent (see
subsection 443(4)).
(5) A group of employees specified under
paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed
enterprise agreement; and
(b) are represented by a bargaining
representative who is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by
any documents and other information prescribed by the regulations.
438
Restriction on when application may be made
(1) If one or more enterprise agreements cover
the employees who will be covered by the proposed enterprise agreement, an
application for a protected action ballot order must not be made earlier than
30 days before the nominal expiry date of the enterprise agreement, or the
latest nominal expiry date of those enterprise agreements (as the case may be).
(2) To avoid doubt, making an application for
a protected action ballot order does not constitute organising industrial
action.
439
Joint applications
Without limiting section 609, the
procedural rules may provide for the following:
(a) how a provision of this Act that
applies in relation to an applicant for a protected action ballot order is to
apply in relation to joint applicants for such an order;
(b) the joinder, with the consent of
each existing applicant, of one or more bargaining representatives to an
application for a protected action ballot order;
(c) the withdrawal of one or more
applicants from a joint application for a protected action ballot order.
440
Notice of application
Within 24 hours after making an
application for a protected action ballot order, the applicant must give a copy
of the application to the employer of the employees who are to be balloted,
and:
(a) if the application specifies a
person that the applicant wishes to be the protected action ballot agent—that
person; or
(b) otherwise—the Australian Electoral
Commission.
441
Application to be determined within 2 days after it is made
(1) FWA must, as far as practicable, determine
an application for a protected action ballot order within 2 working days after
the application is made.
(2) However, FWA must not determine the
application unless it is satisfied that each applicant has complied with
section 440.
442
Dealing with multiple applications together
FWA may deal with 2 or more applications
for a protected action ballot order at the same time if:
(a) the applications relate to
industrial action by:
(i) employees of the same
employer; or
(ii) employees at the same
workplace; and
(b) FWA is satisfied that dealing with
the applications at the same time will not unreasonably delay the determination
of any of the applications.
443
When FWA must make a protected action ballot order
(1) FWA must make a protected action ballot
order in relation to a proposed enterprise agreement if:
(a) an application has been made under
section 437; and
(b) FWA is satisfied that each
applicant has been, and is, genuinely trying to reach an agreement with the
employer of the employees who are to be balloted.
(2) FWA must not make a protected action
ballot order in relation to a proposed enterprise agreement except in the
circumstances referred to in subsection (1).
(3) A protected action ballot order must
specify the following:
(a) the name of each applicant for the
order;
(b) the group or groups of employees
who are to be balloted;
(c) the date by which voting in the
protected action ballot closes;
(d) the question or questions to be
put to the employees who are to be balloted, including the nature of the
proposed industrial action.
(4) If FWA decides that a person other than
the Australian Electoral Commission is to be the protected action ballot agent
for the protected action ballot, the protected action ballot order must also
specify:
(a) the person that FWA decides, under
subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that FWA
decides, under subsection 444(3), is to be the independent advisor for the
ballot.
(5) If FWA is satisfied, in relation to the
proposed industrial action that is the subject of the protected action ballot,
that there are exceptional circumstances justifying the period of written
notice referred to in paragraph 414(2)(a) being longer than 3 working days, the
protected action ballot order may specify a longer period of up to 7 working
days.
Note: Under subsection 414(1), before a person
engages in employee claim action for a proposed enterprise agreement, a
bargaining representative of an employee who will be covered by the agreement
must give written notice of the action to the employer of the employee.
444
FWA may decide on ballot agent other than the Australian Electoral Commission
and independent advisor
Alternative ballot agent
(1) FWA may decide that a person other than
the Australian Electoral Commission is to be the protected action ballot agent
for a protected action ballot only if:
(a) the person is specified in the
application for the protected action ballot order as the person the applicant
wishes to be the protected action ballot agent; and
(b) FWA is satisfied that:
(i) the person is a fit
and proper person to conduct the ballot; and
(ii) any other requirements
prescribed by the regulations are met.
(2) The regulations may prescribe:
(a) conditions that a person must meet
in order to satisfy FWA that the person is a fit and proper person to conduct a
protected action ballot; and
(b) factors that FWA must take into
account in determining whether a person is a fit and proper person to conduct a
protected action ballot.
Independent advisor
(3) FWA may decide that a person (the other
person) is to be the independent advisor for a protected action ballot
if:
(a) FWA has decided that a person
other than the Australian Electoral Commission is to be the protected action
ballot agent for the ballot; and
(b) FWA considers it appropriate that
there be an independent advisor for the ballot; and
(c) FWA is satisfied that:
(i) the other person is
sufficiently independent of each applicant for the protected action ballot
order; and
(ii) any other requirements
prescribed by the regulations are met.
445
Notice of protected action ballot order
As soon as practicable after making a
protected action ballot order, FWA must give a copy of the order to:
(a) each applicant for the order; and
(b) the employer of the employees who
are to be balloted; and
(c) the protected action ballot agent
for the protected action ballot.
446
Protected action ballot order may require 2 or more protected action ballots to
be held at the same time
(1) This section applies if:
(a) FWA has made a protected action
ballot order; and
(b) FWA proposes to make another
protected action ballot order or orders; and
(c) the orders would require a
protected action ballot to be held in relation to industrial action by
employees of the same employer or employees at the same workplace.
(2) FWA may make, or vary, the protected
action ballot orders so as to require the protected action ballots to be held
at the same time if FWA is satisfied:
(a) that the level of disruption of
the employer’s enterprise, or at the workplace, could be reduced if the ballots
were held at the same time; and
(b) that requiring the ballots to be
held at the same time will not unreasonably delay either ballot.
447 Variation
of protected action ballot order
(1) An applicant for a protected action
ballot order may apply to FWA to vary the order.
(2) The protected action ballot agent for a
protected action ballot may apply to FWA to vary the protected action ballot order
to change the date by which voting in the ballot closes.
(3) An application may be made under
subsection (1) or (2):
(a) at any time before the date by
which voting in the protected action ballot closes; or
(b) if the ballot has not been held
before that date and FWA consents—after that time.
(4) If an application is made under
subsection (1) or (2), FWA may vary the protected action ballot order.
448
Revocation of protected action ballot order
(1) An applicant for a protected action
ballot order may apply to FWA, at any time before voting in the protected
action ballot closes, to revoke the order.
(2) If an application to revoke a protected
action ballot order is made, FWA must revoke the order.
Subdivision C—Conduct of protected action ballot
449
Protected action ballot to be conducted by Australian Electoral Commission or
other specified ballot agent
(1) A protected action ballot must be
conducted by:
(a) if a person is specified in the
protected action ballot order as the protected action ballot agent for the
ballot—that person; or
(b) otherwise—the Australian Electoral
Commission.
(2) The protected action ballot agent must
conduct the protected action ballot in accordance with the following:
(a) the protected action ballot order;
(b) the timetable for the ballot;
(c) this Subdivision;
(d) any directions given by FWA;
(e) any procedures prescribed by the
regulations.
450
Directions for conduct of protected action ballot
(1) This section applies if the protected
action ballot agent is not the Australian Electoral Commission.
(2) FWA must give the protected action ballot
agent written directions in relation to the following matters relating to the
protected action ballot:
(a) the development of a timetable;
(b) the voting method, or methods, to
be used;
(c) the compilation of the roll of
voters;
(d) the addition of names to, or
removal of names from, the roll of voters;
(e) any other matter in relation to
the conduct of the ballot that FWA considers appropriate.
Note: A protected action ballot agent must not
contravene a term of a direction given by FWA in relation to a protected action
ballot (see subsection 463(2)).
(3) A direction given under
subsection (2) may require the protected action ballot agent to comply
with a provision of this Subdivision (other than subsection 454(5)) in relation
to a particular matter.
Note: Subsection 454(5) provides for the Australian
Electoral Commission to vary the roll of voters on its own initiative.
(4) To enable the roll of voters to be compiled,
FWA may direct, in writing, either or both of the following:
(a) the employer of the employees who
are to be balloted;
(b) the applicant for the protected
action ballot order;
to give to FWA or the protected action ballot agent:
(c) the names of the employees
included in the group or groups of employees specified in the protected action
ballot order; and
(d) any other information that it is
reasonable for FWA or the protected action ballot agent to require to assist in
compiling the roll of voters.
451
Timetable for protected action ballot
(1) This section applies if:
(a) the protected action ballot agent
is the Australian Electoral Commission; or
(b) FWA has directed the protected
action ballot agent to comply with this section.
Note: If this section does not apply, the protected
action ballot agent must comply with directions given by FWA in relation to the
matters dealt with by this section (see section 450).
(2) As soon as practicable after receiving a
copy of the protected action ballot order, the protected action ballot agent
must, in consultation with each applicant for the order and the employer of the
employees who are to be balloted:
(a) develop a timetable for the
conduct of the protected action ballot; and
(b) determine the voting method, or
methods, to be used for the ballot.
452
Compilation of roll of voters
(1) This section applies if:
(a) the protected action ballot agent
is the Australian Electoral Commission; or
(b) FWA has directed the protected
action ballot agent to comply with this section.
Note: If this section does not apply, the protected
action ballot agent must comply with directions given by FWA in relation to the
matters dealt with by this section (see section 450).
(2) As soon as practicable after receiving a
copy of the protected action ballot order, the protected action ballot agent
must compile the roll of voters for the protected action ballot.
(3) For the purpose of compiling the roll of
voters, the protected action ballot agent may direct, in writing, the employer
of the employees who are to be balloted, or the applicant for the order (or
both), to give to the ballot agent:
(a) the names of the employees
included in the group or groups of employees specified in the protected action
ballot order; and
(b) any other information that it is
reasonable for the protected action ballot agent to require to assist in
compiling the roll of voters.
453
Who is eligible to be included on the roll of voters
An employee is eligible to be included
on the roll of voters for the protected action ballot only if:
(a) the employee will be covered by
the proposed enterprise agreement to which the ballot relates; and
(b) on the day the protected action
ballot order was made, the employee:
(i) was represented by a
bargaining representative who was an applicant for the order; and
(ii) was included in a
group of employees specified in the order.
454
Variation of roll of voters
Variation by protected action ballot agent on request
(1) Subsections (2) to (4) apply if:
(a) the protected action ballot agent
is the Australian Electoral Commission; or
(b) FWA has directed the protected
action ballot agent to comply with those subsections.
Note: If subsections (2) to (4) do not apply,
the protected action ballot agent must comply with directions given by FWA in
relation to the matters dealt with by those subsections (see
section 450).
Adding names to the roll of voters
(2) The protected action ballot agent must
include an employee’s name on the roll of voters for the protected action
ballot if:
(a) the protected action ballot agent
is requested to do so by:
(i) an applicant for the
protected action ballot order; or
(ii) the employee; or
(iii) the employee’s
employer; and
(b) the protected action ballot agent
is satisfied that the employee is eligible to be included on the roll of
voters; and
(c) the request is made before the end
of the working day before the day on which voting in the ballot starts.
Removing names from the roll of voters
(3) The protected action ballot agent must
remove an employee’s name from the roll of voters for the protected action
ballot if:
(a) the protected action ballot agent
is requested to do so by:
(i) an applicant for the
protected action ballot order; or
(ii) the employee; or
(iii) the employee’s
employer; and
(b) the protected action ballot agent
is satisfied that the employee is not eligible to be included on the roll of
voters; and
(c) the request is made before the end
of the working day before the day on which voting in the ballot starts.
(4) The protected action ballot agent must
remove a person’s name from the roll of voters for the protected action ballot
if:
(a) the person (the former
employee) is no longer employed by the employer (the former
employer) of the employees who are to be balloted; and
(b) the protected action ballot agent
is requested to do so by:
(i) an applicant for the
protected action ballot order; or
(ii) the former employee;
or
(iii) the former employer;
and
(c) the request is made before the end
of the working day before the day on which voting in the ballot starts.
Variation by Australian Electoral Commission on its own
initiative
(5) If the protected action ballot agent is
the Australian Electoral Commission, the Commission may, on its own initiative
and before the end of the working day before the day on which voting in the
ballot starts:
(a) include an employee’s name on the
roll of voters for the protected action ballot if the Commission is satisfied
that the employee is eligible to be included on the roll of voters; or
(b) remove an employee’s name from the
roll of voters for the protected action ballot if the Commission is satisfied
that the employee is not eligible to be included on the roll of voters; or
(c) remove a person’s name from the
roll of voters for the protected action ballot if the person is no longer
employed by the employer of the employees who are to be balloted.
455
Protected action ballot papers
The ballot paper for the protected
action ballot must:
(a) if a form is prescribed by the
regulations—be in that form; and
(b) include any information prescribed
by the regulations.
456
Who may vote in protected action ballot
An employee may vote in the protected
action ballot only if the employee’s name is on the roll of voters for the
ballot.
457
Results of protected action ballot
(1) As soon as practicable after voting in
the protected action ballot closes, the protected action ballot agent must, in
writing:
(a) make a declaration of the results
of the ballot; and
(b) inform the following persons of
the results:
(i) each applicant for the
protected action ballot order;
(ii) the employer of the
employees who were balloted;
(iii) FWA.
(2) FWA must publish the results of the
protected action ballot, on its website or by any other means that FWA
considers appropriate, as soon as practicable after it is informed of them.
458
Report about conduct of protected action ballot
Protected action ballot conducted by the Australian
Electoral Commission
(1) If:
(a) the protected action ballot agent
is the Australian Electoral Commission; and
(b) the Commission:
(i) receives any
complaints about the conduct of the protected action ballot; or
(ii) becomes aware of any
irregularities in relation to the conduct of the ballot;
the Commission must prepare a written report about the
conduct of the ballot and give it to FWA.
Protected action ballot conducted by person other than
the Australian Electoral Commission
(2) If:
(a) the protected action ballot agent
is not the Australian Electoral Commission; and
(b) the protected action ballot agent
or the independent advisor (if any) for the protected action ballot:
(i) receives any
complaints about the conduct of the ballot; or
(ii) becomes aware of any
irregularities in relation to the conduct of the ballot;
the protected action ballot agent or the independent
advisor (as the case may be) must prepare a report about the conduct of the
ballot and give it to FWA.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(3) If:
(a) the protected action ballot agent
is not the Australian Electoral Commission; and
(b) FWA:
(i) receives any
complaints about the conduct of the protected action ballot; or
(ii) becomes aware of any
irregularities in relation to the conduct of the ballot;
FWA must, in writing, direct the protected action ballot
agent or the independent advisor (if any) for the ballot (or both) to prepare a
report about the conduct of the ballot and give it to FWA.
(4) A report under subsection (2) or (3)
must be prepared in accordance with the regulations.
Meaning of conduct of a protected action ballot
(5) Conduct of a protected
action ballot includes, but is not limited to, the compilation of the roll of
voters for the ballot.
Meaning of irregularity in relation to the conduct
of a protected action ballot
(6) An irregularity,
in relation to the conduct of a protected action ballot, includes, but is not
limited to, an act or omission by means of which the full and free recording of
votes by all employees entitled to vote in the ballot, and by no other persons
is, or is attempted to be, prevented or hindered.
Subdivision D—Effect of protected action ballot
459
Circumstances in which industrial action is authorised by protected action
ballot
(1) Industrial action by employees is
authorised by a protected action ballot if:
(a) the action was the subject of the
ballot; and
(b) at least 50% of the employees on
the roll of voters for the ballot voted in the ballot; and
(c) more than 50% of the valid votes
were votes approving the action; and
(d) the action commences:
(i) during the 30‑day
period starting on the date of the declaration of the results of the ballot; or
(ii) if FWA has extended
that period under subsection (3)—during the extended period.
Note: Under Division 2, industrial action by
employees for a proposed enterprise agreement (other than employee response
action) is not protected industrial action unless it has been authorised in
advance by a protected action ballot.
(2) If:
(a) the nature of the proposed industrial
action specified in the question or questions put to the employees in the
protected action ballot included periods of industrial action of a particular
duration; and
(b) the question or questions did not
specify that consecutive periods of that industrial action may be organised or
engaged in;
then only the first period in a series of consecutive
periods of that industrial action is the subject of the ballot for the purposes
of paragraph (1)(a).
(3) FWA may extend the 30‑day period referred
to in subparagraph (1)(d)(i) by up to 30 days if:
(a) an applicant for the protected
action ballot order applies to FWA for the period to be extended; and
(b) the period has not previously been
extended.
460
Immunity for persons who act in good faith on protected action ballot results
(1) This section applies if:
(a) the results of a protected action
ballot, as declared by the protected action ballot agent for the ballot,
purported to authorise particular industrial action; and
(b) an organisation or a person,
acting in good faith on the declared ballot results, organised or engaged in
that industrial action; and
(c) either:
(i) it later becomes clear
that that industrial action was not authorised by the ballot; or
(ii) the decision to make
the protected action ballot order is quashed or varied on appeal, or on review
by FWA, after the industrial action is organised or engaged in.
(2) No action lies against the organisation
or person under any law (whether written or unwritten) in force in a State or a
Territory in relation to the industrial action unless the action involved:
(a) personal injury; or
(b) intentional or reckless
destruction of, or damage to, property; or
(c) the unlawful taking, keeping or
use of property.
(3) This section does not prevent an action
for defamation being brought in relation to anything that occurred in the
course of the industrial action.
461
Validity of protected action ballot etc. not affected by technical breaches
A technical breach of a provision of
this Division does not affect the validity of any of the following:
(a) a protected action ballot order;
(b) an order, direction or decision of
FWA in relation to a protected action ballot order or a protected action
ballot;
(c) a direction or decision of the
protected action ballot agent in relation to a protected action ballot order or
a protected action ballot;
(d) a protected action ballot;
(e) the conduct of a protected action
ballot;
(f) the declaration of the results of
a protected action ballot.
Subdivision E—Compliance
462
Interferences etc. with protected action ballot
General
(1) A person (the first person)
must not do any of the following in relation to a protected action ballot:
(a) hinder or obstruct the holding of
the ballot;
(b) use any form of intimidation to
prevent a person entitled to vote in the ballot from voting, or to influence
the vote of such a person;
(c) threaten, offer or suggest, or
use, cause or inflict, any violence, injury, punishment, damage, loss or
disadvantage because of, or to induce:
(i) any vote or omission
to vote; or
(ii) any support of, or
opposition to, voting in a particular manner;
(d) offer an advantage (whether
financial or otherwise) to a person entitled to vote in the ballot because of
or to induce:
(i) any vote or omission
to vote; or
(ii) any support of, or
opposition to, voting in a particular manner;
(e) counsel or advise a person
entitled to vote to refrain from voting;
(f) impersonate another person to
obtain a ballot paper to which the first person is not entitled, or impersonate
another person for the purpose of voting;
(g) do an act that results in a ballot
paper or envelope being destroyed, defaced, altered, taken or otherwise
interfered with;
(h) fraudulently put a ballot paper or
other paper:
(i) into a ballot box or
other ballot receptacle; or
(ii) into the post;
(i) fraudulently deliver a ballot
paper or other paper to a person receiving ballot papers for the purposes of
the ballot;
(j) record a vote that the first
person is not entitled to record;
(k) record more than one vote;
(l) forge a ballot paper or envelope,
or utter a ballot paper or envelope that the first person knows to be forged;
(m) provide a ballot paper without
authority;
(n) obtain or have possession of a
ballot paper to which the first person is not entitled;
(o) request, require or induce another
person:
(i) to show a ballot paper
to the first person; or
(ii) to permit the first
person to see a ballot paper in such a manner that the first person can see the
vote;
while the ballot paper is being
marked or after it has been marked;
(p) do an act that results in a ballot
box or other ballot receptacle being destroyed, taken, opened or otherwise
interfered with.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
Meaning of utter
(2) A person is taken to utter
a forged document if the person:
(a) uses or deals with it; or
(b) attempts to use or deal with it;
or
(c) attempts to induce another person
to use, deal with, act upon, or accept it.
Obligations of person performing functions or
exercising powers for the purposes of a protected action ballot
(3) A person (the first person)
who is performing functions or exercising powers for the purposes of a
protected action ballot must not show to another person, or permit another
person to have access to, a ballot paper used in the ballot, except in the
course of performing those functions or exercising those powers.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
463
Contravening a protected action ballot order etc.
(1) A person must not contravene:
(a) a term of a protected action
ballot order; or
(b) a term of an order made by FWA in
relation to a protected action ballot order or a protected action ballot.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) A person must not contravene a direction
given by FWA, or a protected action ballot agent, in relation to a protected
action ballot order or a protected action ballot.
Note: This subsection is a civil remedy provision (see
Part 4‑1).
(3) However, an order cannot be made under
Division 2 of Part 4‑1 in relation to a contravention (or alleged
contravention) of subsection (1) or (2) by the Australian Electoral
Commission.
Subdivision F—Liability for costs of protected action ballot
464
Costs of protected action ballot conducted by the Australian Electoral
Commission
(1) This section applies if the protected
action ballot agent for a protected action ballot is the Australian Electoral
Commission.
(2) The Commonwealth is liable for the costs
incurred by the Australian Electoral Commission in relation to the protected
action ballot, whether or not the ballot is completed.
(3) However, except as provided by
regulations made for the purposes of subsection 466(1), the Commonwealth is not
liable for any costs incurred by the Australian Electoral Commission in
relation to legal challenges to matters connected with the protected action
ballot.
465
Costs of protected action ballot conducted by protected action ballot agent
other than the Australian Electoral Commission
(1) This section applies if the protected
action ballot agent for a protected action ballot is not the Australian
Electoral Commission.
(2) The applicant for the protected action
ballot order is liable for the costs of conducting the protected action ballot,
whether or not the ballot is completed.
(3) If the application for the protected
action ballot order was made by joint applicants, each applicant is jointly and
severally liable for the costs of conducting the protected action ballot,
whether or not the ballot is completed.
(4) The costs of conducting a protected
action ballot are:
(a) if the protected action ballot
agent is an applicant for the protected action ballot order—the costs incurred
by the applicant in relation to the ballot; or
(b) otherwise—the amount the protected
action ballot agent charges to the applicant or applicants in relation to the
ballot.
(5) However, the costs of conducting a
protected action ballot do not include any costs incurred by the
protected action ballot agent in relation to legal challenges to matters
connected with the ballot.
466
Costs of legal challenges
(1) The regulations may provide for who is
liable for costs incurred in relation to legal challenges to matters connected
with a protected action ballot.
(2) Regulations made for the purposes of
subsection (1) may also provide for a person who is liable for costs
referred to in that subsection to be indemnified by another person for some or
all of those costs.
Subdivision G—Miscellaneous
467
Information about employees on roll of voters not to be disclosed
(1) A person who:
(a) is the protected action ballot
agent for a protected action ballot (other than the Australian Electoral
Commission); or
(b) is the independent advisor for a
protected action ballot; or
(c) acquires information from, or on
behalf of, a person referred to in paragraph (a) or (b) in the course of
performing functions or exercising powers for the purposes of the ballot;
must not disclose to any other person information about an
employee who is on the roll of voters for the ballot if the information will
identify whether or not the employee is a member of an employee organisation.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) Subsection (1) does not apply if:
(a) the disclosure is made in the
course of performing functions or exercising powers for the purposes of the
protected action ballot; or
(b) the disclosure is required or
authorised by or under a law; or
(c) the employee has consented, in
writing, to the disclosure.
Note 1: Personal information given to FWA, the
Australian Electoral Commission or another protected action ballot agent under
this Division may be regulated under the Privacy Act 1988.
Note 2: The President of FWA may, in certain
circumstances, disclose, or authorise the disclosure of, information acquired
by FWA or a member of the staff of FWA, in the course of performing functions
or exercising powers as FWA (see section 655).
468
Records
(1) The protected action ballot agent for a
protected action ballot must keep the following ballot material:
(a) the roll of voters for the ballot;
(b) the ballot papers, envelopes and
other documents and records relating to the ballot;
(c) any other material prescribed by
the regulations.
(2) The ballot material must be kept for one
year after the day on which the protected action ballot closed.
(3) The protected action ballot agent must
comply with any requirements prescribed by the regulations relating to how the ballot
material is to be kept.
469
Regulations
The regulations may provide for the
following matters:
(a) the requirements that must be
satisfied for a person (other than the Australian Electoral Commission) to be:
(i) the protected action
ballot agent for a protected action ballot; or
(ii) the independent
advisor for a protected action ballot;
(b) the procedures to be followed in
relation to the conduct of a protected action ballot;
(c) the form and content of the ballot
paper for a protected action ballot;
(d) the qualifications, appointment,
powers and duties of scrutineers for a protected action ballot;
(e) the preparation of reports under
subsection 458(2) or (3);
(f) the records that the protected
action ballot agent must keep in relation to a protected action ballot and how
those records are to be kept.
Division 9—Payments relating to periods of industrial action
Subdivision A—Protected industrial action
470
Payments not to be made relating to certain periods of industrial action
(1) If an employee engaged, or engages, in
protected industrial action against an employer on a day, the employer must not
make a payment to an employee in relation to the total duration of the
industrial action on that day.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) However, this section does not apply to a
partial work ban.
Note: For payments relating to periods of partial
work bans, see section 471.
(3) A partial work ban is
industrial action that is not:
(a) a failure or refusal by an
employee to attend for work; or
(b) a failure or refusal by an
employee who attends for work to perform any work at all; or
(c) an overtime ban.
(4) If the industrial action is, or includes,
an overtime ban, this section does not apply, in relation to a period of
overtime to which the ban applies, unless:
(a) the employer requested or required
the employee to work the period of overtime; and
(b) the employee refused to work the
period of overtime; and
(c) the refusal was a contravention of
the employee’s obligations under a modern award, enterprise agreement or
contract of employment.
(5) If:
(a) the industrial action is, or
includes, an overtime ban; and
(b) this section applies in relation
to a period of overtime to which the ban applies;
then for the purposes of this section, the total duration
of the industrial action is, or includes, the period of overtime to which the
ban applies.
471
Payments relating to partial work bans
Employer gives notice of reduction in payments
(1) If:
(a) an employee engaged, or engages,
in protected industrial action against an employer on a day; and
(b) the industrial action is a partial
work ban; and
(c) the employer gives to the employee
a written notice stating that, because of the ban, the employee’s payments will
be reduced by a proportion specified in the notice;
then the employee’s payments are reduced in accordance
with subsection (2) in relation to the period (the industrial action
period) referred to in subsection (5).
(2) The employee’s payments in relation to
the industrial action period are reduced:
(a) by the proportion specified in the
notice; or
(b) if FWA has ordered a different
proportion under section 472—by the proportion specified in the order;
and the modern award, enterprise agreement or contract of
employment that applies to the employee’s employment has effect accordingly.
(3) The regulations may prescribe how the
proportion referred to in paragraph (2)(a) is to be worked out.
Employer gives notice of non‑payment
(4) If:
(a) an employee engaged, or engages,
in protected industrial action against an employer on a day; and
(b) the industrial action is a partial
work ban; and
(c) the employer gives to the employee
a written notice stating that, because of the ban:
(i) the employee will not
be entitled to any payments; and
(ii) the employer refuses
to accept the performance of any work by the employee until the employee is
prepared to perform all of his or her normal duties;
then the employee is not entitled to any payments in relation
to the period (the industrial action period) referred to in
subsection (5).
(4A) If:
(a) an employer has given an employee
a notice under paragraph (4)(c); and
(b) the employee fails or refuses to
attend for work, or fails or refuses to perform any work at all if he or she
attends for work, during the industrial action period;
then:
(c) the failure or refusal is employee
claim action, even if it does not satisfy subsections 409(2) and
413(4), if the related industrial action referred to in paragraph (4)(a)
is employee claim action; or
(d) the failure or refusal is employee
response action, even if it does not satisfy subsection 413(4), if the
related industrial action referred to in paragraph (4)(a) is employee
response action.
The industrial action period
(5) The industrial action period
is the period:
(a) starting at the later of:
(i) the start of the first
day on which the employee implemented the partial work ban; or
(ii) the start of the next
day, after the day on which the notice was given, on which the employee
performs work; and
(b) ending at the end of the day on
which the ban ceases.
Form and content of notice
(6) The regulations may prescribe
requirements relating to one or both of the following:
(a) the form of a notice given under paragraph (1)(c)
or (4)(c);
(b) the content of such a notice.
Manner of giving notice
(7) Without limiting paragraph (1)(c) or
(4)(c), the employer is taken to have given a notice in accordance with that
paragraph to the employee if the employer:
(a) has taken all reasonable steps to
ensure that the employee, and the employee’s bargaining representative (if
any), receives the notice; and
(b) has complied with any
requirements, relating to the giving of the notice, prescribed by the
regulations.
Employer does not give notice
(8) If:
(a) an employee engaged, or engages,
in protected industrial action against an employer on a day; and
(b) the industrial action is a partial
work ban; and
(c) the employer does not give the
employee a notice in accordance with paragraph (1)(c) or (4)(c);
then the employee’s payments for the day are not to be
reduced because of the ban.
472
Orders by FWA relating to certain partial work bans
(1) FWA may make an order varying the
proportion by which an employee’s payments are reduced.
(2) FWA may make the order only if a person
has applied for it under subsection (4).
(3) In considering making such an order, FWA
must take into account:
(a) whether the proportion specified
in the notice given under paragraph 471(1)(c) was reasonable having regard to
the nature and extent of the partial work ban to which the notice relates; and
(b) fairness between the parties
taking into consideration all the circumstances of the case.
(4) An employee, or the employee’s bargaining
representative, may apply to FWA for an order under subsection (2) if a
notice has been given under paragraph 471(1)(c) stating that the employee’s
payments will be reduced.
473
Accepting or seeking payments relating to periods of industrial action
(1) An employee must not:
(a) accept a payment from an employer
if the employer would contravene section 470 by making the payment; or
(b) ask the employer to make such a
payment.
Note 1: This subsection is a civil remedy provision
(see Part 4‑1).
Note 2: Acts of coercion, or misrepresentations,
relating to such payments may also contravene section 348 or 349.
(2) An employee organisation, or an officer
or member of an employee organisation, must not ask an employer to make a
payment to an employee if the employer would contravene section 470 by
making the payment.
Note 1: This subsection is a civil remedy provision
(see Part 4‑1).
Note 2: Acts of coercion, or misrepresentations,
relating to such payments may also contravene section 348 or 349.
Subdivision B—Industrial action that is not protected industrial action
474
Payments not to be made relating to certain periods of industrial action
(1) If an employee engaged, or engages, in
industrial action that is not protected industrial action against an employer
on a day, the employer must not make a payment to an employee in relation to:
(a) if the total duration of the
industrial action on that day is at least 4 hours—the total duration of the
industrial action on that day; or
(b) otherwise—4 hours of that day.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) However, if the industrial action is, or
includes, an overtime ban, this section does not apply, in relation to a period
of overtime to which the ban applies, unless:
(a) the employer requested or required
the employee to work the period of overtime; and
(b) the employee refused to work the
period of overtime; and
(c) the refusal was a contravention of
the employee’s obligations under a modern award, enterprise agreement or
contract of employment.
Note: An employee is able to refuse to work
additional hours if they are unreasonable (see subsection 62(2)). There may be
other circumstances in which an employee can lawfully refuse to work additional
hours.
(2A) If:
(a) the industrial action is, or
includes, an overtime ban; and
(b) this section applies in relation
to a period of overtime to which the ban applies;
then, for the purposes of this section:
(c) the total duration of the
industrial action is, or includes, the period of overtime to which the ban
applies; and
(d) if paragraph (1)(b)
applies—the period of 4 hours mentioned in that paragraph includes the period
of overtime to which the ban applies.
(3) If:
(a) the industrial action is during a
shift (or other period of work); and
(b) the shift (or other period of
work) occurs partly on one day and partly on the next day;
then, for the purposes of this section, the shift is taken
to be a day and the remaining parts of the days are taken not to be part of
that day.
Example: An employee, who is working a shift from 10 pm on
Tuesday until 7 am on Wednesday, engages in industrial action that is not
protected industrial action from 11 pm on Tuesday until 1 am on Wednesday. That
industrial action would prevent the employer making a payment to the employee
in relation to 4 hours of the shift, but would not prevent the employer from
making a payment in relation to the remaining 5 hours of the shift.
(4) For the purposes of subsection (3),
overtime is taken not to be a separate shift.
475 Accepting
or seeking payments relating to periods of industrial action
(1) An employee must not:
(a) accept a payment from an employer
if the employer would contravene section 474 by making the payment; or
(b) ask the employer to make such a
payment.
Note 1: This subsection is a civil remedy provision
(see Part 4‑1).
Note 2: Acts of coercion, or misrepresentations,
relating to such payments may also contravene section 348 or 349.
(2) An employee organisation, or an officer
or member of an employee organisation, must not ask an employer to make a
payment to an employee if the employer would contravene section 474 by
making the payment.
Note 1: This subsection is a civil remedy provision
(see Part 4‑1).
Note 2: Acts of coercion, or misrepresentations, relating
to such payments may also contravene section 348 or 349.
Subdivision C—Miscellaneous
476
Other responses to industrial action unaffected
If an employee engaged, or engages, in
industrial action against an employer, this Division does not affect any right
of the employer, under this Act or otherwise, to do anything in response to the
industrial action that does not involve payments to the employee.
Division 10—Other matters
477
Applications by bargaining representatives
Application of this section
(1) This section applies if a provision of
this Part permits an application to be made by a bargaining representative of
an employer that will be covered by a proposed single‑enterprise agreement.
Persons who may make applications
(2) If the agreement will cover more than one
employer, the application may be made by:
(a) in the case of a proposed single‑enterprise
agreement in relation to which a single interest employer authorisation is in
operation—the person (if any) specified in the authorisation as the person who
may make applications under this Act; or
(b) in any case—a bargaining
representative of an employer that will be covered by the agreement, on behalf
of one or more other such bargaining representatives, if those other bargaining
representatives have agreed to the application being made on their behalf.
Part 3‑4—Right of entry
Division 1—Introduction
478
Guide to this Part
This Part is about the rights of
officials of organisations who hold entry permits to enter premises for
purposes related to their representative role under this Act and under State or
Territory OHS laws.
Division 2 allows permit holders
to enter premises to investigate suspected contraventions of this Act and fair
work instruments. The Division makes special provision in relation to TCF
outworkers. Division 2 also allows permit holders to enter premises to
hold discussions with certain employees and TCF outworkers. In exercising
rights under Division 2, permit holders must comply with the requirements
set out in the Division.
Division 3 sets out requirements
for exercising rights under State or Territory OHS laws.
Division 4 prohibits certain
action in relation to the operation of this Part.
Division 5 sets out powers of FWA
in relation to the operation of this Part.
Division 6 deals with entry
permits, entry notices and certificates.
479
Meanings of employee and employer
In this Part, employee and
employer have their ordinary meanings.
480
Object of this Part
The object of this Part is to establish
a framework for officials of organisations to enter premises that balances:
(a) the right of organisations to
represent their members in the workplace, hold discussions with potential
members and investigate suspected contraventions of:
(i) this Act and fair work
instruments; and
(ii) State or Territory OHS
laws; and
(b) the right of employees and TCF
outworkers to receive, at work, information and representation from officials
of organisations; and
(c) the right of occupiers of premises
and employers to go about their business without undue inconvenience.
Division 2—Entry rights under this Act
Subdivision A—Entry to investigate suspected contravention
481
Entry to investigate suspected contravention
(1) A permit holder may enter premises and
exercise a right under section 482 or 483 for the purpose of investigating
a suspected contravention of this Act, or a term of a fair work instrument,
that relates to, or affects, a member of the permit holder’s organisation:
(a) whose industrial interests the
organisation is entitled to represent; and
(b) who performs work on the premises.
Note 1: Particulars of the suspected contravention must
be specified in an entry notice or exemption certificate (see subsections
518(2) and 519(2)).
Note 2: FWA may issue an affected member certificate if
it is satisfied that a member referred to in this subsection is on the premises
(see subsection 520(1)).
(2) The fair work instrument must apply or
have applied to the member.
(3) The permit holder must reasonably suspect
that the contravention has occurred, or is occurring. The burden of proving
that the suspicion is reasonable lies on the person asserting that fact.
Note: A permit holder who seeks to exercise rights
under this Part without reasonably suspecting that a contravention has occurred,
or is occurring, is liable to be penalised under subsection 503(1) (which deals
with misrepresentations about things authorised by this Part).
482
Rights that may be exercised while on premises
Rights that may be exercised while on premises
(1) While on the premises, the permit holder
may do the following:
(a) inspect any work, process or
object relevant to the suspected contravention;
(b) interview any person about the
suspected contravention:
(i) who agrees to be
interviewed; and
(ii) whose industrial
interests the permit holder’s organisation is entitled to represent;
(c) require the occupier or an
affected employer to allow the permit holder to inspect, and make copies of,
any record or document (other than a non‑member record or document) that is
directly relevant to the suspected contravention and that:
(i) is kept on the
premises; or
(ii) is accessible from a
computer that is kept on the premises.
Note 1: The use or disclosure of information or
documents obtained under this section is strictly controlled (see
section 504).
Note 2: The use or disclosure of personal information
obtained under this section is regulated under the Privacy Act 1988.
(1A) However, an occupier or affected employer
is not required under paragraph (1)(c) to allow the permit holder to
inspect, or make copies of, a record or document if to do so would contravene a
law of the Commonwealth or a law of a State or Territory.
Meaning of affected employer
(2) A person is an affected employer,
in relation to an entry onto premises under this Subdivision, if:
(a) the person employs a member of the
permit holder’s organisation whose industrial interests the organisation is
entitled to represent; and
(b) the member performs work on the
premises; and
(c) the suspected contravention
relates to, or affects, the member.
Meaning of non‑member record or document
(2A) A non‑member record or document
is a record or document that:
(a) relates to the employment of a
person who is not a member of the permit holder’s organisation; and
(b) does not also substantially relate
to the employment of a person who is a member of the permit holder’s
organisation;
but does not include a record or document that relates
only to a person or persons who are not members of the permit holder’s organisation
if the person or persons have consented in writing to the record or document
being inspected or copied by the permit holder.
Occupier and affected employer must not contravene
requirement
(3) An occupier or affected employer must not
contravene a requirement under paragraph (1)(c).
Note: This subsection is a civil remedy provision
(see Part 4‑1).
483
Later access to record or document
Later access to record or document
(1) The permit holder may, by written notice,
require an affected employer to produce, or provide access to, a record or
document (other than a non‑member record or document) that is directly relevant
to the suspected contravention on a later day or days specified in the notice.
(1A) However, an affected employer is not
required under subsection (1) to produce, or provide access to, a record
or document if to do so would contravene a law of the Commonwealth or a law of
a State or Territory.
Other rules relating to notices
(2) The day or days specified in the notice
must not be earlier than 14 days after the notice is given.
(3) The notice may be given:
(a) while the permit holder is on the
premises; or
(b) within 5 days after the entry.
Affected employer must not contravene requirement
(4) An affected employer must not contravene
a requirement under subsection (1).
Note: This subsection is a civil remedy provision
(see Part 4‑1).
Where record or document may be inspected or copied
(5) The permit holder may inspect, and make
copies of, the record or document at:
(a) the premises; or
(b) if another place is agreed upon by
the permit holder and the affected employer—that other place.
Note 1: The use or disclosure of information or
documents obtained under this section is strictly controlled (see
section 504).
Note 2: The use or disclosure of personal information
obtained under this section is regulated under the Privacy Act 1988.
483AA
Application to FWA for access to non‑member records
(1) The permit holder may apply to FWA for an
order allowing the permit holder to do either or both of the following:
(a) require the occupier or an
affected employer to allow the permit holder to inspect, and make copies of,
specified non‑member records or documents (or parts of such records or
documents) under paragraph 482(1)(c);
(b) require an affected employer to
produce, or provide access to, specified non‑member records or documents (or
parts of such records or documents) under subsection 483(1).
(2) FWA may make the order if it is satisfied
that the order is necessary to investigate the suspected contravention. Before
doing so, FWA must have regard to any conditions imposed on the permit holder’s
entry permit.
(3) If FWA makes the order, this Subdivision
has effect accordingly.
(4) An application for an order under this
section:
(a) must be in accordance with the
regulations; and
(b) must set out the reason for the
application.
Subdivision AA—Entry to investigate suspected contravention relating to TCF
outworkers
483A
Entry to investigate suspected contravention relating to TCF outworkers
(1) A permit holder may enter premises and
exercise a right under section 483B or 483C for the purpose of
investigating a suspected contravention of:
(a) this Act, or a term of a fair work
instrument, that relates to, or affects, a TCF outworker:
(i) whose industrial
interests the permit holder’s organisation is entitled to represent; and
(ii) who performs work on
the premises; or
(b) a designated outworker term that
is in an instrument that relates to TCF outworkers whose industrial interests
the permit holder’s organisation is entitled to represent.
Note: Particulars of the suspected contravention
must be specified in an entry notice, unless the entry is a designated
outworker terms entry (see subsection 518(2)).
(2) The permit holder must reasonably suspect
that the contravention has occurred, or is occurring.
(3) The burden of proving that the suspicion
is reasonable lies on the person asserting that fact.
(4) Subsections (2) and (3) do not apply
in relation to a designated outworker terms entry.
(5) A designated outworker terms entry
is an entry under paragraph (1)(b) for the purpose of investigating a
suspected contravention of a designated outworker term.
483B
Rights that may be exercised while on premises
Rights that may be exercised while on premises
(1) While on the premises, the permit holder
may do the following:
(a) inspect any work, process or
object relevant to the suspected contravention;
(b) interview any person about the
suspected contravention:
(i) who agrees to be
interviewed; and
(ii) whose industrial
interests the permit holder’s organisation is entitled to represent;
(c) require the occupier or an
affected employer to allow the permit holder to inspect, and make copies of,
any record or document that is directly relevant to the suspected contravention
and that:
(i) is kept on the
premises; or
(ii) is accessible from a
computer that is kept on the premises.
Note 1: The use or disclosure of information or
documents obtained under this section is strictly controlled (see
section 504).
Note 2: The use or disclosure of personal information
obtained under this section is regulated under the Privacy Act 1988.
(2) However, an occupier or affected employer
is not required under paragraph (1)(c) to allow the permit holder to inspect,
or make copies of, a record or document if to do so would contravene a law of
the Commonwealth or a law of a State or Territory.
Meaning of affected employer
(3) A person is an affected employer:
(a) in relation to an entry onto
premises under section 483A other than a designated outworker terms entry,
if:
(i) the person employs a
TCF outworker whose industrial interests the permit holder’s organisation is
entitled to represent; and
(ii) the TCF outworker
performs work on the premises; and
(iii) the suspected
contravention relates to, or affects, the TCF outworker; or
(b) in relation to a designated
outworker terms entry under section 483A, if the person is covered by a
TCF award.
Occupier and affected employer must not contravene
requirement
(4) An occupier or affected employer must not
contravene a requirement under paragraph (1)(c).
Note: This subsection is a civil remedy provision
(see Part 4‑1).
483C
Later access to record or document
Later access to record or document
(1) The permit holder may, by written notice,
require the occupier or an affected employer to produce, or provide access to,
a record or document that is directly relevant to the suspected contravention
on a later day or days specified in the notice.
(2) However, an occupier or affected employer
is not required under subsection (1) to produce, or provide access to, a
record or document if to do so would contravene a law of the Commonwealth or a
law of a State or Territory.
Other rules relating to notices
(3) The day or days specified in the notice
must not be earlier than 14 days after the notice is given.
(4) The notice may be given:
(a) while the permit holder is on the
premises; or
(b) within 5 days after the entry.
Occupier and affected employer must not contravene requirement
(5) An occupier or affected employer must not
contravene a requirement under subsection (1).
Note: This subsection is a civil remedy provision
(see Part 4‑1).
Where record or document may be inspected or copied
(6) The permit holder may inspect, and make
copies of, the record or document at:
(a) the premises; or
(b) if another place is agreed upon by
the permit holder and the occupier or affected employer—that other place.
Note 1: The use or disclosure of information or
documents obtained under this section is strictly controlled (see
section 504).
Note 2: The use or disclosure of personal information
obtained under this section is regulated under the Privacy Act 1988.
483D
Entry onto other premises to access records and documents
(1) A permit holder who may enter premises
under paragraph 483A(1)(a) for the purpose of investigating a suspected
contravention may enter other premises and exercise a right under
subsection (2) or section 483E if the permit holder reasonably
suspects that records or documents that are directly relevant to the suspected
contravention:
(a) are kept on the other premises; or
(b) are accessible from a computer
that is kept on the other premises.
Note: Particulars of the suspected contravention
must be specified in an entry notice (see subsection 518(2)).
Rights that may be exercised while on premises
(2) While on the other premises, the permit
holder may require the occupier to allow the permit holder to inspect, and make
copies of, any such record or document.
Note 1: The use or disclosure of information or
documents obtained under this section is strictly controlled (see
section 504).
Note 2: The use or disclosure of personal information
obtained under this section is regulated under the Privacy Act 1988.
(3) However, an occupier is not required
under subsection (2) to allow the permit holder to inspect, or make copies
of, a record or document if to do so would contravene a law of the Commonwealth
or a law of a State or Territory.
Occupier must not contravene requirement
(4) An occupier must not contravene a
requirement under subsection (2).
Note: This subsection is a civil remedy provision
(see Part 4‑1).
483E
Later access to record or document—other premises
Later access to record or document
(1) The permit holder may, by written notice,
require the occupier of the other premises to produce, or provide access to, a
record or document that is directly relevant to the suspected contravention on
a later day or days specified in the notice.
(2) However, an occupier is not required
under subsection (1) to produce, or provide access to, a record or
document if to do so would contravene a law of the Commonwealth or a law of a
State or Territory.
Other rules relating to notices
(3) The day or days specified in the notice
must not be earlier than 14 days after the notice is given.
(4) The notice may be given:
(a) while the permit holder is on the
other premises; or
(b) within 5 days after the entry.
Occupier must not contravene requirement
(5) An occupier must not contravene a
requirement under subsection (1).
Note: This subsection is a civil remedy provision
(see Part 4‑1).
Where record or document may be inspected or copied
(6) The permit holder may inspect, and make
copies of, the record or document at:
(a) the other premises; or
(b) if another place is agreed upon by
the permit holder and the occupier—that other place.
Note 1: The use or disclosure of information or
documents obtained under this section is strictly controlled (see
section 504).
Note 2: The use or disclosure of personal information
obtained under this section is regulated under the Privacy Act 1988.
Subdivision B—Entry to hold discussions
484
Entry to hold discussions
A permit holder may enter premises for
the purposes of holding discussions with one or more employees or TCF
outworkers:
(a) who perform work on the premises;
and
(b) whose industrial interests the
permit holder’s organisation is entitled to represent; and
(c) who wish to participate in those
discussions.
Subdivision C—Requirements for permit holders
486
Permit holder must not contravene this Subdivision
Subdivisions A, AA and B do not
authorise a permit holder to enter or remain on premises, or exercise any other
right, if he or she contravenes this Subdivision, or regulations prescribed
under section 521, in exercising that right.
487
Giving entry notice or exemption certificate
Entry under Subdivision A or B
(1) Unless FWA has issued an exemption
certificate for the entry, the permit holder must:
(a) before entering premises under
Subdivision A—give the occupier of the premises and any affected employer an
entry notice for the entry; and
(b) before entering premises under
Subdivision B—give the occupier of the premises an entry notice for the entry.
(2) An entry notice for an
entry is a notice that complies with section 518.
(3) An entry notice for an entry under
Subdivision A or B must be given during working hours at least 24 hours, but
not more than 14 days, before the entry.
(4) If FWA has issued an exemption certificate
for the entry, the permit holder must, either before or as soon as practicable
after entering the premises, give a copy of the certificate to:
(a) the occupier of the premises or
another person who apparently represents the occupier; and
(b) any affected employer or another
person who apparently represents the employer;
if the occupier, employer or other person is present at
the premises.
Entry under Subdivision AA
(5) If the permit holder enters premises
under Subdivision AA, the permit holder must, either before or as soon as
practicable after entering the premises, give an entry notice for the entry to
the occupier of the premises or another person who apparently represents the
occupier if the occupier or other person is present at the premises.
488
Contravening entry permit conditions
The permit holder must not contravene a
condition imposed on the entry permit.
489
Producing authority documents
(1) If the permit holder has entered premises
under Subdivision A or AA, the permit holder must produce his or her authority
documents for inspection by the occupier of the premises, or an affected
employer:
(a) on request; and
(b) before making a requirement under:
(i) paragraph 482(1)(c) or
483B(1)(c), or subsection 483D(2); or
(ii) subsection 483(1),
483C(1) or 483E(1).
Note: Paragraphs 482(1)(c) and 483B(1)(c) and
subsection 483D(2) deal with access to records and documents while the permit
holder is on the premises. Subsections 483(1), 483C(1) and 483E(1) deal with
access to records and documents at later times.
(2) If the permit holder has entered premises
under Subdivision B, the permit holder must produce his or her authority
documents for inspection by the occupier of the premises on request.
(3) Authority documents, for an
entry under Subdivision A, AA or B, means:
(a) the permit holder’s entry permit;
and
(b) either:
(i) a copy of the entry
notice for the entry; or
(ii) if FWA has issued an
exemption certificate for the entry—the certificate.
490
When right may be exercised
(1) The permit holder may exercise a right
under Subdivision A, AA or B only during working hours.
(2) The permit holder may hold discussions
under section 484 only during mealtimes or other breaks.
(3) The permit holder may only enter premises
under Subdivision A, AA or B on a day specified in the entry notice or
exemption certificate for the entry.
491
Occupational health and safety requirements
The permit holder must comply with any
reasonable request by the occupier of the premises for the permit holder to comply
with an occupational health and safety requirement that applies to the
premises.
Note: FWA may deal with a dispute about whether the
request is reasonable (see subsection 505(1)).
492
Conduct of interviews in particular room etc.
(1) The permit holder must comply with any
reasonable request by the occupier of the premises to:
(a) conduct interviews or hold
discussions in a particular room or area of the premises; or
(b) take a particular route to reach a
particular room or area of the premises.
Note: FWA may deal with a dispute about whether the
request is reasonable (see subsection 505(1)).
(2) Without limiting when a request under
subsection (1) might otherwise be unreasonable, a request under
paragraph (1)(a) is unreasonable if:
(a) the room or area is not fit for
the purpose of conducting the interviews or holding the discussions; or
(b) the request is made with the
intention of:
(i) intimidating persons
who might participate in the interviews or discussions; or
(ii) discouraging persons from
participating in the interviews or discussions; or
(iii) making it difficult
for persons to participate in the interviews or discussions, whether because
the room or area is not easily accessible during mealtimes or other breaks, or
for some other reason.
(3) However, a request under
subsection (1) is not unreasonable only because the room, area or route is
not that which the permit holder would have chosen.
(4) The regulations may prescribe
circumstances in which a request under subsection (1) is or is not
reasonable.
493
Residential premises
The permit holder must not enter any
part of premises that is used mainly for residential purposes.
Division 3—State or Territory OHS rights
494
Official must be permit holder to exercise State or Territory OHS right
Official must be permit holder
(1) An official of an organisation must not
exercise a State or Territory OHS right unless the official is a permit holder.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
Meaning of State or Territory OHS right
(2) A right to enter premises, or to inspect
or otherwise access an employee record of an employee that is on premises, is a
State or Territory OHS right if the right is conferred by a State
or Territory OHS law, and:
(a) the premises are occupied or
otherwise controlled by any of the following:
(i) a constitutional
corporation;
(ii) a body corporate
incorporated in a Territory;
(iii) the Commonwealth;
(iv) a Commonwealth
authority; or
(b) the premises are located in a
Territory; or
(c) the premises are, or are located
in, a Commonwealth place; or
(d) the right relates to requirements
to be met, action taken, or activity undertaken or controlled, by any of the
following in its capacity as an employer:
(i) a constitutional
corporation;
(ii) a body corporate
incorporated in a Territory;
(iii) the Commonwealth;
(iv) a Commonwealth
authority; or
(e) the right relates to requirements
to be met, action taken, or activity undertaken or controlled, by an employee
of, or an independent contractor providing services for, any of the following:
(i) a constitutional
corporation;
(ii) a body corporate
incorporated in a Territory;
(iii) the Commonwealth;
(iv) a Commonwealth
authority; or
(f) the exercise of the right will
have a direct effect on any of the following in its capacity as an employer:
(i) a constitutional
corporation;
(ii) a body corporate
incorporated in a Territory;
(iii) the Commonwealth;
(iv) a Commonwealth
authority; or
(g) the exercise of the right will
have a direct effect on a person who is employed by, or who is an independent
contractor providing services for, any of the following:
(i) a constitutional
corporation;
(ii) a body corporate
incorporated in a Territory;
(iii) the Commonwealth;
(iv) a Commonwealth authority.
Meaning of State or Territory OHS law
(3) A State or Territory OHS law is
a law of a State or a Territory prescribed by the regulations.
495
Giving notice of entry
(1) A permit holder must not exercise a State
or Territory OHS right to inspect or otherwise access an employee record of an
employee, unless:
(a) he or she has given the occupier
of the premises, and any affected employer, a written notice setting out his or
her intention to exercise the right, and reasons for doing so; and
(b) the notice is given at least 24
hours before exercising the right.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
Meaning of affected employer
(2) A person is an affected employer:
(a) in relation to an entry onto
premises in accordance with this Division—if one or more of the person’s
employees perform work on the premises; and
(b) in relation to a right to inspect
or otherwise access an employee record in accordance with this Division—if the
person employs the employee to whom the record relates.
496
Contravening entry permit conditions
In exercising a State or Territory OHS
right, a permit holder must not contravene a condition imposed on his or her
entry permit.
Note: This section is a civil remedy provision (see
Part 4‑1).
497 Producing
entry permit
A permit holder must not exercise a
State or Territory OHS right unless the permit holder produces his or her entry
permit for inspection when requested to do so by the occupier of the premises
or an affected employer.
Note: This section is a civil remedy provision (see
Part 4‑1).
498
When right may be exercised
A permit holder may exercise a State or
Territory OHS right only during working hours.
Note: This section is a civil remedy provision (see
Part 4‑1).
499
Occupational health and safety requirements
A permit holder must not exercise a
State or Territory OHS right unless he or she complies with any reasonable
request by the occupier of the premises to comply with an occupational health
and safety requirement that applies to the premises.
Note 1: This section is a civil remedy provision (see
Part 4‑1).
Note 2: FWA may deal with a dispute about whether the
request is reasonable (see subsection 505(1)).
Division 4—Prohibitions
500
Permit holder must not hinder or obstruct
A permit holder exercising, or seeking
to exercise, rights in accordance with this Part must not intentionally hinder
or obstruct any person, or otherwise act in an improper manner.
Note: This section is a civil remedy provision (see
Part 4‑1).
501
Person must not refuse or delay entry
A person must not refuse or unduly delay
entry onto premises by a permit holder who is entitled to enter the premises in
accordance with this Part.
Note: This section is a civil remedy provision (see
Part 4‑1).
502
Person must not hinder or obstruct permit holder
(1) A person must not intentionally hinder or
obstruct a permit holder exercising rights in accordance with this Part.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) To avoid doubt, a failure to agree on a
place as referred to in paragraph 483(5)(b), 483C(6)(b) or 483E(6)(b) does not
constitute hindering or obstructing a permit holder.
(3) Without limiting subsection (1),
that subsection extends to hindering or obstructing that occurs after an entry
notice is given but before a permit holder enters premises.
503
Misrepresentations about things authorised by this Part
(1) A person must not take action:
(a) with the intention of giving the
impression; or
(b) reckless as to whether the impression
is given;
that the doing of a thing is authorised by this Part if it
is not so authorised.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) Subsection (1) does not apply if the
person reasonably believes that the doing of the thing is authorised.
504
Unauthorised use or disclosure of information or documents
A person must not use or disclose
information or a document obtained under section 482, 483, 483B, 483C,
483D or 483E in the investigation of a suspected contravention for a purpose
that is not related to the investigation or rectifying the suspected
contravention, unless:
(a) the person reasonably believes
that the use or disclosure is necessary to lessen or prevent:
(i) a serious and imminent
threat to an individual’s life, health or safety; or
(ii) a serious threat to
public health or public safety; or
(b) the person has reason to suspect
that unlawful activity has been, is being or may be engaged in, and uses or
discloses the information or document as a necessary part of an investigation
of the matter or in reporting concerns to relevant persons or authorities; or
(c) the use or disclosure is required
or authorised by or under law; or
(d) the person reasonably believes
that the use or disclosure is reasonably necessary for one or more of the
following by, or on behalf of, an enforcement body (within the meaning of the Privacy
Act 1988):
(i) the prevention,
detection, investigation, prosecution or punishment of criminal offences,
breaches of a law imposing a penalty or sanction or breaches of a prescribed
law;
(ii) the enforcement of
laws relating to the confiscation of the proceeds of crime;
(iii) the protection of the
public revenue;
(iv) the prevention,
detection, investigation or remedying of seriously improper conduct or
prescribed conduct;
(v) the preparation for, or
conduct of, proceedings before any court or tribunal, or implementation of the
orders of a court or tribunal; or
(e) if the information is, or the
document contains, personal information (within the meaning of the Privacy
Act 1988)—the use or disclosure is made with the consent of the individual
to whom the information relates.
Note: This section is a civil remedy provision (see
Part 4‑1).
Division 5—Powers of FWA
Subdivision A—Dealing with disputes
505
FWA may deal with a dispute about the operation of this Part
(1) FWA may deal with a dispute about the
operation of this Part (including a dispute about whether a request under
section 491, 492 or 499 is reasonable).
Note: Sections 491, 492 and 499 deal with
requests for permit holders to use particular rooms or areas, and comply with
occupational health and safety requirements.
(2) FWA may deal with the dispute by
arbitration, including by making one or more of the following orders:
(a) an order imposing conditions on an
entry permit;
(b) an order suspending an entry
permit;
(c) an order revoking an entry permit;
(d) an order about the future issue of
entry permits to one or more persons;
(e) any other order it considers
appropriate.
Note: FWA may also deal with a dispute by mediation
or conciliation, or by making a recommendation or expressing an opinion (see
subsection 595(2)).
(3) FWA may deal with the dispute:
(a) on its own initiative; or
(b) on application by any of the
following to whom the dispute relates:
(i) a permit holder;
(ii) a permit holder’s
organisation;
(iii) an employer;
(iv) an occupier of
premises.
(4) In dealing with the dispute, FWA must
take into account fairness between the parties concerned.
(5) In dealing with the dispute, FWA must not
confer rights on a permit holder that are additional to, or inconsistent with,
rights exercisable in accordance with Division 2 or 3 of this Part, unless
the dispute is about whether a request under section 491, 492 or 499 is
reasonable.
506
Contravening order made to deal with dispute
A person must not contravene a term of
an order under subsection 505(2).
Note: This section is a civil remedy provision (see
Part 4‑1).
Subdivision B—Taking action against permit holder
507
FWA may take action against permit holder
(1) FWA may, on application by an inspector
or a person prescribed by the regulations, take the following action against a
permit holder:
(a) impose conditions on any entry
permit issued to the permit holder;
(b) suspend any entry permit issued to
the permit holder;
(c) revoke any entry permit issued to
the permit holder.
(2) In deciding whether to take action under
subsection (1), FWA must take into account the permit qualification
matters.
Note: For permit qualification matters,
see subsection 513(1).
Subdivision C—Restricting rights of organisations and officials where
misuse of rights
508
FWA may restrict rights if organisation or official has misused rights
(1) FWA may restrict the rights that are exercisable
under this Part by an organisation, or officials of an organisation, if FWA is
satisfied that the organisation, or an official of the organisation, has
misused those rights.
Note: Only a Deputy President or Full Bench may take
action under this subsection (see subsections 612(2) and 615(1)).
(2) The action that FWA may take under
subsection (1) includes the following:
(a) imposing conditions on entry
permits;
(b) suspending entry permits;
(c) revoking entry permits;
(d) requiring some or all of the entry
permits that might in future be issued in relation to the organisation to be
issued subject to specified conditions;
(e) banning, for a specified period,
the issue of entry permits in relation to the organisation, either generally or
to specified persons;
(f) making any order it considers
appropriate.
(3) FWA may take action under
subsection (1):
(a) on its own initiative; or
(b) on application by an inspector.
(4) Without limiting subsection (1), an
official misuses rights exercisable under this Part if:
(a) the official exercises those
rights repeatedly with the intention or with the effect of hindering,
obstructing or otherwise harassing an occupier or employer; or
(b) in exercising a right under
Subdivision B of Division 2 of this Part, the official encourages a person
to become a member of an organisation and does so in a way that is unduly
disruptive:
(i) because the exercise
of the right is excessive in the circumstances; or
(ii) for some other reason.
509
Contravening order made for misuse of rights
A person must not contravene a term of
an order under subsection 508(1).
Note: This section is a civil remedy provision (see
Part 4‑1).
Subdivision D—When FWA must revoke or suspend entry permits
510
When FWA must revoke or suspend entry permits
When FWA must revoke or suspend entry permits
(1) FWA must, under this subsection, revoke
or suspend each entry permit held by a permit holder if it is satisfied that
any of the following has happened since the first of those permits was issued:
(a) the permit holder was found, in
proceedings under this Act, to have contravened subsection 503(1) (which deals
with misrepresentations about things authorised by this Part);
(b) the permit holder has contravened section 504
(which deals with unauthorised use or disclosure of information or documents);
(c) the Information Commissioner has,
under paragraph 52(1)(b) of the Privacy Act 1988, found substantiated a
complaint relating to action taken by the permit holder in relation to information
or documents obtained under section 482, 483, 483B, 483C, 483D or 483E;
(d) the permit holder, or another
person, was ordered to pay a pecuniary penalty under this Act in relation to a
contravention of this Part by the permit holder;
(e) a court, or other person or body,
under a State or Territory industrial law:
(i) cancelled or suspended
a right of entry for industrial purposes that the permit holder had under that
law; or
(ii) disqualified the
permit holder from exercising, or applying for, a right of entry for industrial
purposes under that law;
(f) the permit holder has, in
exercising a right of entry under a State or Territory OHS law, taken action
that was not authorised by that law.
(2) Despite subsection (1), FWA is not
required to suspend or revoke an entry permit under paragraph (1)(d) or
(f) if FWA is satisfied that the suspension or revocation would be harsh or
unreasonable in the circumstances.
(3) Subsection (1) does not apply in
relation to a circumstance referred to in a paragraph of that subsection if FWA
took the circumstance into account when taking action under that subsection on
a previous occasion.
Minimum suspension period
(4) A suspension under subsection (1)
must be for a period that is at least as long as the period (the minimum
suspension period) specified in whichever of the following paragraphs
applies:
(a) if FWA has not previously taken
action under subsection (1) against the permit holder—3 months;
(b) if FWA has taken action under
subsection (1) against the permit holder on only one occasion—12 months;
(c) if FWA has taken action under
subsection (1) against the permit holder on more than one occasion—5
years.
Banning issue of future entry permits
(5) If FWA takes action under
subsection (1), it must also ban the issue of any further entry permit to
the permit holder for a specified period (the ban period).
(6) The ban period must:
(a) begin when the action is taken
under subsection (1); and
(b) be no shorter than the minimum
suspension period.
Subdivision E—General rules for suspending entry permits
511
General rules for suspending entry permits
If FWA suspends an entry permit, the
suspension:
(a) must be for a specified period;
and
(b) does not prevent the revocation
of, or the imposition of conditions on, the entry permit during the suspension
period; and
(c) does not alter the time at which
the entry permit would otherwise expire.
Division 6—Entry permits, entry notices and certificates
Subdivision A—Entry permits
512
FWA may issue entry permits
FWA may, on application by an
organisation, issue a permit (an entry permit) to an official of
the organisation if FWA is satisfied that the official is a fit and proper
person to hold the entry permit.
513
Considering application
(1) In deciding whether the official is a fit
and proper person, FWA must take into account the following permit
qualification matters:
(a) whether the official has received
appropriate training about the rights and responsibilities of a permit holder;
(b) whether the official has ever been
convicted of an offence against an industrial law;
(c) whether the official has ever been
convicted of an offence against a law of the Commonwealth, a State, a Territory
or a foreign country, involving:
(i) entry onto premises;
or
(ii) fraud or dishonesty;
or
(iii) intentional use of
violence against another person or intentional damage or destruction of
property;
(d) whether the official, or any other
person, has ever been ordered to pay a penalty under this Act or any other
industrial law in relation to action taken by the official;
(e) whether a permit issued to the
official under this Part, or under a similar law of the Commonwealth (no matter
when in force), has been revoked or suspended or made subject to conditions;
(f) whether a court, or other person
or body, under a State or Territory industrial law or a State or Territory OHS
law, has:
(i) cancelled, suspended
or imposed conditions on a right of entry for industrial or occupational health
and safety purposes that the official had under that law; or
(ii) disqualified the
official from exercising, or applying for, a right of entry for industrial or
occupational health and safety purposes under that law;
(g) any other matters that FWA
considers relevant.
(2) Despite paragraph 85ZZH(c) of the Crimes
Act 1914, Division 3 of Part VIIC of that Act applies in relation
to the disclosure of information to or by, or the taking into account of
information by, FWA for the purpose of making a decision under this Part.
Note: Division 3 of Part VIIC of the Crimes
Act 1914 includes provisions that, in certain circumstances, relieve
persons from the requirement to disclose spent convictions and require persons
aware of such convictions to disregard them.
514
When FWA must not issue permit
FWA must not issue an entry permit to an
official at a time when a suspension or disqualification, imposed by a court or
other person or body:
(a) applies to the official’s exercise
of; or
(b) prevents the official from
exercising or applying for;
a right of entry for industrial or occupational health and
safety purposes under a State or Territory industrial law or a State or
Territory OHS law.
515
Conditions on entry permit
(1) FWA may impose conditions on an entry
permit when it is issued.
(2) In deciding whether to impose conditions
under subsection (1), FWA must take into account the permit qualification
matters.
(3) FWA must record on an entry permit any
conditions that have been imposed on its use (whether under subsection (1)
or any other provision of this Part).
(4) If FWA imposes a condition on an entry
permit after it has been issued, the permit ceases to be in force until FWA
records the condition on the permit.
(5) To avoid doubt, a permit holder does not
contravene an FWA order merely because the permit holder contravenes a
condition imposed on his or her permit by order (whether the condition is
imposed at the time the entry permit is issued or at any later time).
516
Expiry of entry permit
(1) Unless it is revoked, an entry permit
expires at the earlier of the following times:
(a) at the end of the period of 3
years beginning on the day it is issued, or that period as extended under
subsection (2);
(b) when the permit holder ceases to
be an official of the organisation that applied for the permit.
(2) FWA may extend the period of 3 years
referred to in paragraph (1)(a) by a specified period if:
(a) the organisation that applied for
the permit (the old permit) has applied for another entry permit
for the permit holder; and
(b) the application was made at least
1 month before the old permit would otherwise have expired under that
paragraph; and
(c) FWA is satisfied that the old
permit is likely to expire before FWA determines the application.
(3) The period specified must not be longer
than the period that FWA considers necessary for it to determine the
application.
(4) FWA must not extend the period under
subsection (2) if:
(a) FWA has requested or required the
organisation or permit holder to provide copies of records or documents, or to
provide any other information, in relation to the application; and
(b) the organisation or permit holder
has not complied with the request or requirement; and
(c) FWA is satisfied that the
organisation or permit holder does not have a reasonable excuse.
517
Return of entry permits to FWA
When permit holder must return entry permit to FWA
(1) A permit holder must return an entry
permit to FWA within 7 days of any of the following things happening:
(a) the permit is revoked or
suspended;
(b) conditions are imposed on the
permit after it is issued;
(c) the permit expires.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
FWA to return entry permit to permit holder after
suspension
(2) After the end of a suspension period, FWA
must return the entry permit to the permit holder if:
(a) the permit holder, or the permit
holder’s organisation, applies to FWA for the return of the entry permit; and
(b) the entry permit has not expired.
Subdivision B—Entry notices
518
Entry notice requirements
Requirements for all entry notices
(1) An entry notice must specify the
following:
(a) the premises that are proposed to
be entered;
(b) the day of the entry;
(c) the organisation of which the
permit holder for the entry is an official.
Requirements for entry notice for entry to investigate
suspected contravention
(2) An entry notice given for an entry under
section 481, 483A or 483D must:
(a) specify that section as the
provision that authorises the entry; and
(b) unless the entry is a designated
outworker terms entry under section 483A—specify the particulars of the
suspected contravention, or contraventions; and
(c) for an entry under
section 481—contain a declaration by the permit holder for the entry that
the permit holder’s organisation is entitled to represent the industrial
interests of a member, who performs work on the premises, and:
(i) to whom the suspected
contravention or contraventions relate; or
(ii) who is affected by the
suspected contravention or contraventions; and
(ca) for an entry under
section 483A other than a designated outworker terms entry—contain a
declaration by the permit holder for the entry that the permit holder’s
organisation is entitled to represent the industrial interests of a TCF
outworker, who performs work on the premises, and:
(i) to whom the suspected
contravention or contraventions relate; or
(ii) who is affected by the
suspected contravention or contraventions; and
(cb) for a designated outworker terms
entry under section 483A—contain a declaration by the permit holder for
the entry that the permit holder’s organisation is entitled to represent the
industrial interests of TCF outworkers; and
(cc) for an entry under
section 483D—contain a declaration by the permit holder for the entry that
the permit holder’s organisation is entitled to represent the industrial
interests of a TCF outworker:
(i) to whom the suspected
contravention or contraventions relate; or
(ii) who is affected by the
suspected contravention or contraventions; and
(d) specify the provision of the
organisation’s rules that entitles the organisation to represent the member or
TCF outworker.
Requirements for entry notice for entry to hold
discussions
(3) An entry notice given for an entry under
section 484 (which deals with entry to hold discussions) must:
(a) specify that section as the
provision that authorises the entry; and
(b) contain a declaration by the
permit holder for the entry that the permit holder’s organisation is entitled
to represent the industrial interests of an employee or TCF outworker who
performs work on the premises; and
(c) specify the provision of the
organisation’s rules that entitles the organisation to represent the employee
or TCF outworker.
Note: See section 503 (which deals with
misrepresentations about things authorised by this Part).
Subdivision C—Exemption certificates
519
Exemption certificates
(1) FWA must issue a certificate (an exemption
certificate) to an organisation for an entry under section 481
(which deals with entry to investigate suspected contraventions) if:
(a) the organisation has applied for
the certificate; and
(b) FWA reasonably believes that
advance notice of the entry given by an entry notice might result in the
destruction, concealment or alteration of relevant evidence.
(2) An exemption certificate must specify the
following:
(a) the premises to which it relates;
(b) the organisation to which it
relates;
(c) the day or days on which the entry
may occur;
(d) particulars of the suspected
contravention, or contraventions, to which the entry relates;
(e) section 481 as the provision
that authorises the entry.
Subdivision D—Affected member certificates
520
Affected member certificates
(1) FWA must, on application by an
organisation, issue a certificate (an affected member certificate)
to the organisation if FWA is satisfied that:
(a) a member of the organisation
performs work on particular premises; and
(b) the organisation is entitled to
represent the industrial interests of the member; and
(c) a suspected contravention of a kind
referred to in subsection 481(1) relates to, or affects, the member.
(2) An affected member certificate must state
the following:
(a) the premises to which it relates;
(b) the organisation to which it
relates;
(c) particulars of the suspected
contravention, or contraventions, to which it relates;
(d) that FWA is satisfied of the
matters referred to in paragraphs (1)(a), (b) and (c).
(3) An affected member certificate must not
reveal the identity of the member or members to whom it relates.
Subdivision E—Miscellaneous
521
Regulations dealing with instruments under this Part
The regulations may provide for, and in
relation to, the following:
(a) the form of entry permits, entry
notices, exemption certificates and affected member certificates;
(b) additional information to be
included on, or given with, entry permits, entry notices, exemption
certificates and affected member certificates;
(c) the manner in which entry permits,
entry notices, exemption certificates and affected member certificates are to
be given;
(d) any other matter in relation to
entry permits, entry notices, exemption certificates and affected member
certificates.
Part 3‑5—Stand down
Division 1—Introduction
522
Guide to this Part
This Part provides for a national
system employer to stand down a national system employee without pay in certain
circumstances.
Division 2 sets out the
circumstances in which an employer may stand down an employee without pay.
Division 3 provides for FWA to
deal with disputes about the operation of this Part.
523
Meanings of employee and employer
In this Part, employee
means a national system employee, and employer means a national
system employer.
Division 2—Circumstances allowing stand down
524
Employer may stand down employees in certain circumstances
(1) An employer may, under this subsection,
stand down an employee during a period in which the employee cannot usefully be
employed because of one of the following circumstances:
(a) industrial action (other than
industrial action organised or engaged in by the employer);
(b) a breakdown of machinery or
equipment, if the employer cannot reasonably be held responsible for the
breakdown;
(c) a stoppage of work for any cause
for which the employer cannot reasonably be held responsible.
(2) However, an employer may not stand down
an employee under subsection (1) during a period in which the employee
cannot usefully be employed because of a circumstance referred to in that
subsection if:
(a) an enterprise agreement, or a
contract of employment, applies to the employer and the employee; and
(b) the agreement or contract provides
for the employer to stand down the employee during that period if the employee
cannot usefully be employed during that period because of that circumstance.
Note 1: If an employer may not stand down an employee
under subsection (1), the employer may be able to stand down the employee
in accordance with the enterprise agreement or the contract of employment.
Note 2: An enterprise agreement or a contract of
employment may also include terms that impose additional requirements that an
employer must meet before standing down an employee (for example requirements
relating to consultation or notice).
(3) If an employer stands down an employee
during a period under subsection (1), the employer is not required to make
payments to the employee for that period.
525
Employee not stood down during a period of authorised leave or absence
An employee is not taken to be stood
down under subsection 524(1) during a period when the employee:
(a) is taking paid or unpaid leave
that is authorised by the employer; or
(b) is otherwise authorised to be
absent from his or her employment.
Note: An employee may take paid or unpaid leave (for
example, annual leave) during all or part of a period during which the employee
would otherwise be stood down under subsection 524(1).
Division 3—Dealing with disputes
526
FWA may deal with a dispute about the operation of this Part
(1) FWA may deal with a dispute about the
operation of this Part.
(2) FWA may deal with the dispute by
arbitration.
Note: FWA may also deal with a dispute by mediation
or conciliation, or by making a recommendation or expressing an opinion (see
subsection 595(2)).
(3) FWA may deal with the dispute only on
application by any of the following:
(a) an employee who has been, or is
going to be, stood down under subsection 524(1) (or purportedly under
subsection 524(1));
(b) an employee in relation to whom
the following requirements are satisfied:
(i) the employee has made
a request to take leave to avoid being stood down under subsection 524(1) (or
purportedly under subsection 524(1));
(ii) the employee’s
employer has authorised the leave;
(c) an employee organisation that is
entitled to represent the industrial interests of an employee referred to in
paragraph (a) or (b);
(d) an inspector.
(4) In dealing with the dispute, FWA must
take into account fairness between the parties concerned.
527
Contravening an FWA order dealing with a dispute about the operation of this
Part
A person must not contravene a term of
an FWA order dealing with a dispute about the operation of this Part.
Note: This section is a civil remedy provision (see
Part 4‑1).
Part 3‑6—Other rights and responsibilities
Division 1—Introduction
528
Guide to this Part
This Part deals with other rights and
responsibilities.
Division 2 is about the
obligations of a national system employer if a decision is made to dismiss 15
or more employees for reasons of an economic, technological, structural or
similar nature.
Subdivision A of Division 2 deals
with notifying the Chief Executive Officer of the Commonwealth Services
Delivery Agency (Centrelink) about the proposed dismissals.
Subdivision B of Division 2
provides for FWA to make orders if the employer fails to notify and consult
relevant industrial associations.
Subdivision C of Division 2
provides that that Division does not apply in relation to certain employees.
Division 3 is about the
obligations of national system employers to make and keep employee records in relation
to each of their employees and to give pay slips to each of their employees.
529
Meanings of employee and employer
In this Part, employee
means a national system employee, and employer means a national
system employer.
Division 2—Notification and consultation relating to certain dismissals
Subdivision A—Requirement to notify Centrelink
530
Employer to notify Centrelink of certain proposed dismissals
(1) If an employer decides to dismiss 15 or
more employees for reasons of an economic, technological, structural or similar
nature, or for reasons including such reasons, the employer must give a written
notice about the proposed dismissals to the Chief Executive Officer of the
Commonwealth Services Delivery Agency (Centrelink).
(2) The notice must be in the form (if any)
prescribed by the regulations and set out:
(a) the reasons for the dismissals;
and
(b) the number and categories of
employees likely to be affected; and
(c) the time when, or the period over
which, the employer intends to carry out the dismissals.
(3) The notice must be given:
(a) as soon as practicable after
making the decision; and
(b) before dismissing an employee in
accordance with the decision.
(4) The employer must not dismiss an employee
in accordance with the decision unless the employer has complied with this
section.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(5) The orders that may be made under
subsection 545(1) in relation to a contravention of subsection (4) of this
section:
(a) include an order requiring the
employer not to dismiss the employees in accordance with the decision, except
as permitted by the order; but
(b) do not include an order granting
an injunction.
Subdivision B—Failure to notify or consult registered employee associations
531
FWA may make orders where failure to notify or consult registered employee
associations about dismissals
(1) FWA may make an order under subsection
532(1) if it is satisfied that:
(a) an employer has decided to dismiss
15 or more employees for reasons of an economic, technological, structural or
similar nature, or for reasons including such reasons; and
(b) the employer has not complied with
subsection (2) (which deals with notifying relevant registered employee
associations) or subsection (3) (which deals with consulting relevant
registered employee associations); and
(c) the employer could reasonably be
expected to have known, when he or she made the decision, that one or more of
the employees were members of a registered employee association.
Notifying relevant registered employee associations
(2) An employer complies with this subsection
if:
(a) the employer notifies each
registered employee association of which any of the employees was a member, and
that was entitled to represent the industrial interests of that member, of the
following:
(i) the proposed
dismissals and the reasons for them;
(ii) the number and
categories of employees likely to be affected;
(iii) the time when, or the
period over which, the employer intends to carry out the dismissals; and
(b) the notice is given:
(i) as soon as practicable
after making the decision; and
(ii) before dismissing an
employee in accordance with the decision.
Consulting relevant registered employee associations
(3) An employer complies with this subsection
if:
(a) the employer gives each registered
employee association of which any of the employees was a member, and that was
entitled to represent the industrial interests of that member, an opportunity
to consult the employer on:
(i) measures to avert or
minimise the proposed dismissals; and
(ii) measures (such as
finding alternative employment) to mitigate the adverse effects of the proposed
dismissals; and
(b) the opportunity is given:
(i) as soon as practicable
after making the decision; and
(ii) before dismissing an
employee in accordance with the decision.
532
Orders that FWA may make
(1) FWA may make whatever orders it considers
appropriate, in the public interest, to put:
(a) the employees; and
(b) each registered employee association
referred to in paragraph 531(2)(a) or (3)(a);
in the same position (as nearly as can be done) as if the
employer had complied with subsections 531(2) and (3).
(2) FWA must not, under subsection (1),
make orders for any of the following:
(a) reinstatement of an employee;
(b) withdrawal of a notice of
dismissal if the notice period has not expired;
(c) payment of an amount in lieu of
reinstatement;
(d) payment of severance pay;
(e) disclosure of confidential
information or commercially sensitive information relating to the employer,
unless the recipient of such information gives an enforceable undertaking not
to disclose the information to any other person;
(f) disclosure of personal
information relating to a particular employee, unless the employee has given
written consent to the disclosure of the information and the disclosure is in
accordance with that consent.
533
Application for FWA order
FWA may make the order only on
application by:
(a) one of the employees; or
(b) a registered employee association
referred to in paragraph 531(2)(a) or (3)(a); or
(c) any other registered employee
association that is entitled to represent the industrial interests of one of
the employees.
Subdivision C—Limits on scope of this Division
534
Limits on scope of this Division
(1) This Division does not apply in relation
to any of the following employees:
(a) an employee employed for a
specified period of time, for a specified task, or for the duration of a
specified season;
(b) an employee who is dismissed
because of serious misconduct;
(c) a casual employee;
(d) an employee (other than an
apprentice) to whom a training arrangement applies and whose employment is for
a specified period of time or is, for any reason, limited to the duration of
the training arrangement;
(e) a daily hire employee working in
the building and construction industry (including working in connection with
the erection, repair, renovation, maintenance, ornamentation or demolition of
buildings or structures);
(f) a daily hire employee working in
the meat industry in connection with the slaughter of livestock;
(g) a weekly hire employee working in
connection with the meat industry and whose dismissal is determined solely by
seasonal factors;
(h) an employee prescribed by the regulations
as an employee in relation to whom this Division does not apply.
(2) Paragraph (1)(a) does not prevent
this Division from applying in relation to an employee if a substantial reason
for employing the employee as described in that paragraph was to avoid the
application of this Division.
Division 3—Employer obligations in relation to employee records and pay
slips
535
Employer obligations in relation to employee records
(1) An employer must make, and keep for 7
years, employee records of the kind prescribed by the regulations in relation
to each of its employees.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) The records must:
(a) if a form is prescribed by the
regulations—be in that form; and
(b) include any information prescribed
by the regulations.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(3) The regulations may provide for the
inspection of those records.
536
Employer obligations in relation to pay slips
(1) An employer must give a pay slip to each
of its employees within one working day of paying an amount to the employee in
relation to the performance of work.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) The pay slip must:
(a) if a form is prescribed by the
regulations—be in that form; and
(b) include any information prescribed
by the regulations.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
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 Magistrates
Court or an eligible State or Territory Court in relation to a contravention of
a civil remedy provision.
Division 3 sets out when
proceedings relating to a contravention of a civil remedy provision may be
dealt with as small claims proceedings.
Division 4 deals with general
provisions relating to civil remedies, including rules about evidence and
procedure.
Division 5 deals with unclaimed
money.
538
Meanings of employee and employer
In this Part, employee and
employer have their ordinary meanings.
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 Magistrates Court;
(c) an eligible State or Territory court
|
60 penalty units
|
|
2
|
45 (other than in relation to a contravention or proposed
contravention of an outworker term)
|
(a) an employee;
(b) an employer;
(c) an employee organisation;
(d) an employer organisation;
(e) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) an eligible State or Territory court
|
60 penalty units
|
|
3
|
45 (in relation to a contravention or proposed
contravention of an outworker term)
|
(a) an outworker;
(b) an employer;
(c) an outworker entity;
(d) an employee organisation;
(e) an employer organisation;
(f) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) an eligible State or Territory court
|
60 penalty units
|
|
4
|
50 (other than in relation to a contravention or proposed
contravention of a term that would be an outworker term if it were included
in a modern award)
|
(a) an employee;
(b) an employer;
(c) an employee organisation to which the enterprise
agreement concerned applies;
(d) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) an eligible State or Territory court
|
60 penalty units
|
|
5
|
50 (in relation to a contravention or proposed
contravention of a term that would be an outworker term if it were included
in a modern award)
|
(a) an employee;
(b) an employer;
(c) an employee organisation;
(d) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) an eligible State or Territory court
|
60 penalty units
|
|
Part 2‑4—Enterprise
agreements
|
|
6
|
233
|
(a) an employee who the proposed enterprise agreement will
cover;
(b) a bargaining representative for the proposed enterprise
agreement;
(c) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) an eligible State or Territory court
|
60 penalty units
|
|
Part 2‑5—Workplace
determinations
|
|
7
|
280
|
(a) an employee;
(b) an employer;
(c) an employee organisation to which the workplace
determination concerned applies;
(d) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) an eligible State or Territory court
|
60 penalty units
|
|
Part 2‑6—Minimum
wages
|
|
8
|
293
|
(a) an employee;
(b) an employee organisation;
(c) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) an eligible State or Territory court
|
60 penalty units
|
|
Part 2‑7—Equal
remuneration
|
|
9
|
305
|
(a) an employee;
(b) an employee organisation;
(c) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) an eligible State or Territory court
|
60 penalty units
|
|
Part 2‑9—Other
terms and conditions of employment
|
|
10
|
323(1)
323(3)
325(1)
328(1)
328(2)
328(3)
|
(a) an employee;
(b) an employee organisation;
(c) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) an eligible State or Territory court
|
60 penalty units
|
|
Part 3‑1—General
protections
|
|
11
|
340(1)
340(2)
343(1)
344
345(1)
346
348
349(1)
350(1)
350(2)
351(1)
352
353(1)
354(1)
355
357(1)
358
359
|
(a) a person affected by the contravention;
(b) an industrial association;
(c) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court
|
60 penalty units
|
|
12
|
378
|
(a) a person to whom the costs are payable;
(b) an industrial association;
(c) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court
|
60 penalty units
|
|
Part 3‑2—Unfair
dismissal
|
|
13
|
405
|
(a) a person affected by the contravention;
(b) an employee organisation;
(c) an employer organisation;
(d) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) an eligible State or Territory court
|
60 penalty units
|
|
Part 3‑3—Industrial
action
|
|
14
|
417(1)
|
(a) an employee;
(b) an employer;
(c) an employee organisation covered by the enterprise
agreement or workplace determination concerned;
(d) a person affected by the industrial action;
(e) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court
|
60 penalty units
|
|
15
|
421(1)
|
(a) a person affected by the contravention;
(b) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court
|
60 penalty units
|
|
16
|
434
|
an inspector
|
the Federal Court
|
60 penalty units
|
|
17
|
458(2)
|
(a) an employee;
(b) an employer;
(c) an applicant for the protected action ballot order;
(d) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court
|
30 penalty units
|
|
18
|
462(1)
462(3)
|
(a) an employee;
(b) an employer;
(c) an applicant for the protected action ballot order;
(d) the protected action ballot agent;
(e) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court
|
30 penalty units
|
|
19
|
463(1)
463(2)
|
(a) an employee;
(b) an employer;
(c) an applicant for the protected action ballot order;
(d) the protected action ballot agent;
(e) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court
|
60 penalty units
|
|
20
|
467(1)
|
(a) an employee;
(b) an employer;
(c) an applicant for the protected action ballot order;
(d) the protected action ballot agent;
(e) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court
|
30 penalty units
|
|
21
|
470(1)
|
an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court
|
60 penalty units
|
|
22
|
473(1)
473(2)
|
(a) an employer;
(b) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court
|
60 penalty units
|
|
23
|
474(1)
|
an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court
|
60 penalty units
|
|
24
|
475(1)
475(2)
|
(a) an employer;
(b) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court
|
60 penalty units
|
|
Part 3‑4—Right of
entry
|
|
25
|
482(3)
483(4)
483B(4)
483C(5)
483D(4)
483E(5)
494(1)
495(1)
496
497
498
499
500
501
502(1)
503(1)
504
506
509
|
(a) a person affected by the contravention;
(b) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court
|
60 penalty units
|
|
26
|
517(1)
|
an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court
|
60 penalty units
|
|
Part 3‑5—Stand down
|
|
27
|
527
|
(a) an employee;
(b) an employee organisation;
(c) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) an eligible State or Territory court
|
60 penalty units
|
|
Part 3‑6—Other
rights and responsibilities
|
|
28
|
530(4)
|
(a) an employee;
(b) a registered employee association;
(c) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court
|
30 penalty units
|
|
29
|
535(1)
535(2)
536(1)
536(2)
|
(a) an employee;
(b) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) an eligible State or Territory court
|
30 penalty units
|
|
Part 5‑1—Fair Work
Australia
|
|
30
|
611(3)
|
(a) a person to whom the costs are payable;
(b) an employee organisation;
(c) an employer organisation;
(d) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) an eligible State or Territory court
|
60 penalty units
|
|
Part 5‑2—Office of
the Fair Work Ombudsman
|
|
31
|
711(3)
|
an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) an eligible State or Territory court
|
30 penalty units
|
|
32
|
712(3)
|
an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) an eligible State or Territory court
|
60 penalty units
|
|
33
|
716(5)
|
an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) an eligible State or Territory court
|
30 penalty units
|
|
Part 6‑3—Extension
of National Employment Standards entitlements
|
|
34
|
745(1)
760
|
(a) an employee;
(b) a registered employee association;
(c) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) an eligible State or Territory court
|
60 penalty units
|
|
Part 6‑4—Additional
provisions relating to termination of employment
|
|
35
|
772(1)
|
(a) a person affected by the contravention;
(b) an industrial association;
(c) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court
|
60 penalty units
|
|
36
|
782
|
(a) a person to whom the costs are payable;
(b) an industrial association;
(c) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court
|
60 penalty units
|
|
37
|
785(4)
|
(a) an employee;
(b) a registered employee association;
(c) an inspector
|
(a) the Federal Court;
(b) the Federal Magistrates Court
|
30 penalty units
|
(3) The regulations may provide that a
provision set out in the regulations is a civil remedy provision.
(4) If the regulations make provision as
mentioned in subsection (3):
(a) the regulations must set out:
(i) the persons who would
be referred to in column 2; and
(ii) the courts that would
be referred to in column 3; and
(iii) the maximum penalty
that would be referred to in column 4;
of the table in
subsection (2) if there were an item for the civil remedy provision in the
table; and
(b) this Part has effect as if the
matters referred to subparagraphs (a)(i) to (iii) were set out in such an item
in the table.
Note: See section 798 for limits on the
penalties that may be set out in the regulations.
540
Limitations on who may apply for orders etc.
Employees, employers, outworkers and outworker entities
(1) The following persons may apply for an
order under this Division, in relation to a contravention or proposed
contravention of a civil remedy provision, only if the person is affected by
the contravention, or will be affected by the proposed contravention:
(a) an employee;
(b) an employer;
(c) an outworker;
(d) an outworker entity.
Employee organisations and registered employee
associations
(2) An employee organisation or a registered
employee association may apply for an order under this Division, in relation to
a contravention or proposed contravention of a civil remedy provision in
relation to an employee, only if:
(a) the employee is affected by the
contravention, or will be affected by the proposed contravention; and
(b) the organisation or association is
entitled to represent the industrial interests of the employee.
(3) However, subsection (2) does not
apply in relation to:
(a) items 4, 7 and 14 in the
table in subsection 539(2); or
(b) a contravention or proposed
contravention of:
(i) an outworker term in a
modern award; or
(ii) a term in an
enterprise agreement that would be an outworker term if it were included in a
modern award.
(4) An employee organisation may apply for an
order under this Division, in relation to a contravention or proposed
contravention of:
(a) an outworker term in a modern
award; or
(b) a term in an enterprise agreement
that would be an outworker term if it were included in a modern award;
only if the employee organisation is entitled to represent
the industrial interests of an outworker to whom the term relates.
Employer organisations
(5) An employer organisation may apply for an
order under this Division, in relation to a contravention or proposed
contravention of a civil remedy provision, only if the organisation has a
member who is affected by the contravention, or who will be affected by the
proposed contravention.
Industrial associations
(6) An industrial association may apply for
an order under this Division, in relation to a contravention or proposed
contravention of a civil remedy provision, only if:
(a) the industrial association is
affected by the contravention, or will be affected by the proposed
contravention; or
(b) if the contravention is in
relation to a person:
(i) the person is affected
by the contravention, or will be affected by the proposed contravention; and
(ii) the industrial
association is entitled to represent the industrial interests of the person.
(7) If an item in column 2 of the table in
subsection 539(2) refers to an industrial association then, to avoid doubt, an
employee organisation, a registered employee association or an employer
organisation may apply for an order, in relation to a contravention or proposed
contravention of a civil remedy provision, only if the organisation or
association is entitled to apply for the order under subsection (6).
Regulations
(8) The regulations may prescribe a person
for the purposes of an item in column 2 of the table in subsection 539(2). The
regulations may provide that the person is prescribed only in relation to
circumstances specified in the regulations.
541
Applications for orders in relation to safety net contractual entitlements
(1) This section applies if an inspector
applies to a court for an order under this Division, in relation to an
employer’s contravention or proposed contravention of a provision or term
referred to in subsection (3) in relation to an employee.
(2) The inspector may also apply to the
court, on behalf of the employee, for an order in relation to the employer’s
contravention, or proposed contravention, of a safety net contractual
entitlement of the employee.
(3) The provisions and terms are the
following:
(a) a provision of the National
Employment Standards;
(b) a term of a modern award;
(c) a term of an enterprise agreement;
(d) a term of a workplace
determination;
(e) a term of a national minimum wage
order;
(f) a term of an equal remuneration
order.
542
Entitlements under contracts
(1) For the purposes of this Part, a safety
net contractual entitlement of a national system employer or a national system
employee, as in force from time to time, also has effect as an entitlement of
the employer or employee under this Act.
(2) The entitlement has effect under this Act
subject to any modifications, by a law of the Commonwealth (including this Act
or a fair work instrument), a State or a Territory, of the safety net
contractual entitlement.
543
Applications for orders in relation to statutory entitlements derived from
contracts
A national system employer or a national
system employee may apply to the Federal Court or the Federal Magistrates Court
to enforce an entitlement of the employer or employee arising under subsection
542(1).
544
Time limit on applications
A person may apply for an order under
this Division in relation to a contravention of one of the following only if
the application is made within 6 years after the day on which the contravention
occurred:
(a) a civil remedy provision;
(b) a safety net contractual
entitlement;
(c) an entitlement arising under
subsection 542(1).
Note 1: This section does not apply in relation to
general protections court applications or unlawful termination court
applications (see subsections 371(2) and 779(2)).
Note 2: For time limits on orders relating to
underpayments, see subsection 545(5).
Subdivision B—Orders
545
Orders that can be made by particular courts
Federal Court and Federal Magistrates Court
(1) The Federal Court or the Federal
Magistrates Court may make any order the court considers appropriate if the
court is satisfied that a person has contravened, or proposes to contravene, a
civil remedy provision.
Note 1: For the court’s power to make pecuniary penalty
orders, see section 546.
Note 2: For limitations on orders in relation to costs,
see section 570.
Note 3: The Federal Court and the Federal Magistrates
Court may grant injunctions in relation to industrial action under subsections
417(3) and 421(3).
Note 4: There are limitations on orders that can be
made in relation to contraventions of subsection 65(5), 76(4), 463(1) or 463(2)
(which deal with reasonable business grounds and protected action ballot
orders) (see subsections 44(2), 463(3) and 745(2)).
(2) Without limiting subsection (1),
orders the Federal Court or Federal Magistrates Court may make include the
following:
(a) an order granting an injunction,
or interim injunction, to prevent, stop or remedy the effects of a
contravention;
(b) an order awarding compensation for
loss that a person has suffered because of the contravention;
(c) an order for reinstatement of a
person.
Eligible State or Territory courts
(3) An eligible State or Territory court may
order an employer to pay an amount to, or on behalf of, an employee of the
employer if the court is satisfied that:
(a) the employer was required to pay
the amount under this Act or a fair work instrument; and
(b) the employer has contravened a
civil remedy provision by failing to pay the amount.
Note 1: For the court’s power to make pecuniary penalty
orders, see section 546.
Note 2: For limitations on orders in relation to costs,
see section 570.
(3A) An eligible State or Territory court may
order an outworker entity to pay an amount to, or on behalf of, an outworker if
the court is satisfied that:
(a) the outworker entity was required
to pay the amount under a modern award; and
(b) the outworker entity has
contravened a civil remedy provision by failing to pay the amount.
Note 1: For the court’s power to make pecuniary penalty
orders, see section 546.
Note 2: For limitations on orders in relation to costs,
see section 570.
When orders may be made
(4) A court may make an order under this
section:
(a) on its own initiative, during
proceedings before the court; or
(b) on application.
Time limit for orders in relation to underpayments
(5) A court must not make an order under this
section in relation to an underpayment that relates to a period that is more
than 6 years before the proceedings concerned commenced.
546
Pecuniary penalty orders
(1) The Federal Court, the Federal
Magistrates Court or an eligible State or Territory court may, on application,
order a person to pay a pecuniary penalty that the court considers is
appropriate if the court is satisfied that the person has contravened a civil
remedy provision.
Note: Pecuniary penalty orders cannot be made in
relation to conduct that contravenes a term of a modern award, a national
minimum wage order or an enterprise agreement only because of the retrospective
effect of a determination (see subsections 167(3) and 298(2)).
Determining amount of pecuniary penalty
(2) The pecuniary penalty must not be more
than:
(a) if the person is an individual—the
maximum number of penalty units referred to in the relevant item in column 4 of
the table in subsection 539(2); or
(b) if the person is a body
corporate—5 times the maximum number of penalty units referred to in the
relevant item in column 4 of the table in subsection 539(2).
Payment of penalty
(3) The court may order that the pecuniary
penalty, or a part of the penalty, be paid to:
(a) the Commonwealth; or
(b) a particular organisation; or
(c) a particular person.
Recovery of penalty
(4) The pecuniary penalty may be recovered as
a debt due to the person to whom the penalty is payable.
No limitation on orders
(5) To avoid doubt, a court may make a
pecuniary penalty order in addition to one or more orders under
section 545.
547
Interest up to judgment
(1) This section applies to an order (other
than a pecuniary penalty order) under this Division in relation to an amount
that a person was required to pay to, or on behalf of, another person under
this Act or a fair work instrument.
(2) In making the order the court must, on
application, include an amount of interest in the sum ordered, unless good
cause is shown to the contrary.
(3) Without limiting subsection (2), in
determining the amount of interest, the court must take into account the period
between the day the relevant cause of action arose and the day the order is
made.
Division 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 Magistrates Court; and
(b) the order relates to an amount
referred to in subsection (1A); and
(c) the person indicates, in a manner
prescribed by the regulations or by the rules of the court, that he or she
wants the small claims procedure to apply to the proceedings.
(1A) The amounts are as follows:
(a) an amount that an employer was
required to pay to, or on behalf of, an employee:
(i) under this Act or a
fair work instrument; or
(ii) because of a safety
net contractual entitlement; or
(iii) because of an
entitlement of the employee arising under subsection 542(1);
(b) an amount that an outworker entity
was required to pay to, or on behalf of, an outworker under a modern award.
Limits on award
(2) In small claims proceedings, the court
may not award more than:
(a) $20,000; or
(b) if a higher amount is prescribed
by the regulations—that higher amount.
Procedure
(3) In small claims proceedings, the court is
not bound by any rules of evidence and procedure and may act:
(a) in an informal manner; and
(b) without regard to legal forms and
technicalities.
(4) At any stage of the small claims
proceedings, the court may amend the papers commencing the proceedings if
sufficient notice is given to any party adversely affected by the amendment.
Legal representation
(5) A party to small claims proceedings may
be represented in the proceedings by a lawyer only with the leave of the court.
(6) If the court grants leave for a party to
the proceedings to be represented by a lawyer, the court may, if it considers
appropriate, do so subject to conditions designed to ensure that no other party
is unfairly disadvantaged.
(7) For the purposes of this section, a
person is taken not to be represented by a lawyer if the lawyer is an employee
or officer of the person.
Representation by an industrial association
(8) The regulations may provide for a party
to small claims proceedings to be represented in the proceedings, in specified
circumstances, by an official of an industrial association.
(9) However, if small claims proceedings are
heard in a court of a State, the regulations may so provide only if the law of
the State allows a party to be represented in that court in those circumstances
by officials of bodies representing interests related to the matters in
dispute.
Division 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.
Appropriation of Consolidated Revenue Fund
(4) The Consolidated Revenue Fund is
appropriated for the purposes of this section.
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 Magistrates Court. That
jurisdiction is generally required to be exercised in the Fair Work Divisions
of those courts.
Division 4 deals with
intervention, costs, limitation on imprisonment, and regulations, in relation
to proceedings in the Federal Court, the Federal Magistrates Court and, in some
cases, a court of a State or Territory.
561
Meanings of employee and employer
In this Part, employee and
employer have their ordinary meanings.
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 Magistrates Court or a court of a
State or Territory in a matter arising under this Act; or
(g) proceedings in relation to a
matter arising under this Act are transferred to the Federal Court from the
Federal Magistrates Court; or
(h) the Federal Magistrates Court or a
court of a State or Territory states a case or reserves a question for the
consideration of the Federal Court in a matter arising under this Act; or
(i) the President refers, under
section 608 of this Act, a question of law to the Federal Court; or
(j) the High Court remits a matter
arising under this Act to the Federal Court.
564 No
limitation on Federal Court’s powers
To avoid doubt, nothing in this Act
limits the Federal Court’s powers under section 21, 22 or 23 of the Federal
Court of Australia Act 1976.
565
Appeals from eligible State or Territory courts
Appeals from original decisions of eligible State or
Territory courts
(1) An appeal lies to the Federal Court from
a decision of an eligible State or Territory court exercising jurisdiction
under this Act.
(1A) No appeal lies from a decision of an
eligible State or Territory court exercising jurisdiction under this Act,
except:
(a) if the court was exercising
summary jurisdiction—an appeal, to that court or another eligible State or
Territory court of the same State or Territory, as provided for by a law of
that State or Territory; or
(b) in any case—an appeal as provided
for by subsection (1).
Appeals from appellate decisions of eligible State or
Territory courts
(1B) An appeal lies to the Federal Court from a
decision of an eligible State or Territory court made on appeal from a decision
that:
(a) was a decision of that court or
another eligible State or Territory court of the same State or Territory; and
(b) was made in the exercise of
jurisdiction under this Act.
(1C) No appeal lies from a decision to which
subsection (1B) applies, except an appeal as provided for by that
subsection.
Leave to appeal not required
(2) It is not necessary to obtain the leave
of the Federal Court, or the court appealed from, in relation to an appeal
under subsection (1) or (1B).
Division 3—Jurisdiction and powers of the Federal Magistrates Court
566
Conferring jurisdiction on the Federal Magistrates Court
Jurisdiction is conferred on the Federal
Magistrates Court in relation to any civil matter arising under this Act.
567
Exercising jurisdiction in the Fair Work Division of the Federal Magistrates
Court
Jurisdiction conferred on the Federal
Magistrates Court under section 566 is to be exercised in the Fair Work
Division of the Federal Magistrates Court if:
(a) an application is made to the
Federal Magistrates Court under this Act; or
(b) an injunction is sought under
section 15 of the Federal Magistrates Act 1999 in relation to a
matter arising under this Act; or
(c) a declaration is sought under
section 16 of the Federal Magistrates Act 1999 in relation to a
matter arising under this Act; or
(d) proceedings in relation to a
matter arising under this Act are transferred to the Federal Magistrates Court
from the Federal Court; or
(e) the High Court remits a matter
arising under this Act to the Federal Magistrates Court.
568 No
limitation on Federal Magistrates Court’s powers
To avoid doubt, nothing in this Act
limits the Federal Magistrates Court’s powers under section 14, 15 or 16
of the Federal Magistrates Act 1999.
Division 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) exercising
jurisdiction 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 FWA;
(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—Fair Work Australia
Division 1—Introduction
573
Guide to this Part
This Part is about Fair Work
Australia.
Division 2 establishes and
confers functions on FWA. FWA consists of the President, Deputy Presidents,
Commissioners and Minimum Wage Panel Members. Division 2 also confers
functions on the President.
Division 3 deals with the conduct
of matters before FWA (such as applications, representation by lawyers, FWA’s
decisions and appeals).
Division 4 deals with the
organisation of FWA, who may perform functions of FWA and delegation of FWA’s
functions and powers. Certain functions must be performed by a Full Bench or
the Minimum Wage Panel.
Division 5 deals with the
appointment, terms and conditions of FWA Members.
Division 6 deals with cooperation
with the States.
Division 7 deals with FWA’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 FWA).
Division 8 is about the General
Manager of FWA (whose function is to assist the President), staff of FWA and
others assisting FWA.
Division 9 contains offences in
relation to FWA.
574
Meanings of employee and employer
In this Part, employee and
employer have their ordinary meanings.
Division 2—Establishment and functions of Fair Work Australia
Subdivision A—Establishment and functions of Fair Work Australia
575
Establishment of Fair Work Australia
(1) Fair Work Australia is established by
this section.
(2) Fair Work Australia consists of:
(a) the President; and
(b) such number of Deputy Presidents
as, from time to time, hold office under this Act; and
(c) such number of Commissioners as,
from time to time, hold office under this Act; and
(d) a minimum of 3, and no more than
6, Minimum Wage Panel Members.
Note: Fair Work Australia also has a General Manager
and staff (see Division 8).
576
Functions of FWA
(1) FWA has the functions conferred by this
Act in relation to the following subject matters:
(a) the National Employment Standards
(Part 2‑2);
(b) modern awards (Part 2‑3);
(c) enterprise agreements (Part 2‑4);
(d) workplace determinations
(Part 2‑5);
(e) minimum wages (Part 2‑6);
(f) equal remuneration (Part 2‑7);
(g) transfer of business (Part 2‑8);
(h) general protections (Part 3‑1);
(i) unfair dismissal (Part 3‑2);
(j) industrial action (Part 3‑3);
(k) right of entry (Part 3‑4);
(l) stand down (Part 3‑5);
(m) other rights and responsibilities
(Part 3‑6);
(n) the extension of the National
Employment Standards entitlements (Part 6‑3);
(o) unlawful termination protections
(Part 6‑4).
(2) FWA also has the following functions:
(a) dealing with disputes as referred
to in section 595;
(b) providing assistance and advice
about its functions and activities;
(c) providing administrative support
in accordance with an arrangement under section 650 or 653A;
(ca) mediating any proceedings, part of
proceedings or matter arising out of any proceedings that, under
section 53A of the Federal Court of Australia Act 1976 or
section 34 of the Federal Magistrates Act 1999, have been referred
by the Fair Work Division of the Federal Court or Federal Magistrates Court to
FWA for mediation;
(d) any other function conferred on
FWA by a law of the Commonwealth.
Note: Section 13 of the Fair Work (Registered
Organisations) Act 2009 confers additional functions on FWA.
577
Performance of functions etc. by FWA
FWA 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 FWA performs its functions and exercises its powers efficiently etc. (see
section 581).
578
Matters FWA 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), FWA must take into account:
(a) the objects of this Act, and any
objects of the part of this Act; and
(b) equity, good conscience and the
merits of the matter; and
(c) the need to respect and value the
diversity of the work force by helping to prevent and eliminate discrimination
on the basis of race, colour, sex, sexual preference, age, physical or mental
disability, marital status, family or carer’s responsibilities, pregnancy,
religion, political opinion, national extraction or social origin.
579
FWA has privileges and immunities of the Crown
FWA has the privileges and immunities of
the Crown in right of the Commonwealth.
580
Protection of FWA Members
An FWA Member has, in performing his or
her functions or exercising his or her powers as an FWA Member, the same
protection and immunity as a Justice of the High Court.
Subdivision B—Functions and powers of the President
581
Functions of the President
The President is responsible for
ensuring that FWA 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).
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 FWA 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 FWA Member;
(b) a Full Bench;
(c) the Minimum Wage Panel;
(d) the General Manager.
(3) The direction must not relate to a
decision by FWA.
(4) Without limiting subsection (2), the
direction may be a direction of the following kind:
(a) a direction about the conduct of 4
yearly reviews of modern awards;
(b) a direction about the conduct of
annual wage reviews;
(c) a direction that 2 or more matters
be dealt with jointly by one or more single FWA Members or one or more Full
Benches;
(d) a direction about the transfer
between FWA Members (including a transfer between Full Benches) of one or more
matters being dealt with by FWA.
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 Deputy President all or any of the President’s functions or powers, other
than under:
(a) section 620 (which deals with
the constitution and decision‑making of the Minimum Wage Panel); or
(b) section 625 (which deals with
the delegation of functions and powers of FWA).
(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.
Division 3—Conduct of matters before FWA
Subdivision A—Applications to FWA
585
Applications in accordance with procedural rules
An application to FWA 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: FWA 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.
FWA may:
(a) allow a correction or amendment of
any application, or other document relating to a matter before FWA, on any
terms that it considers appropriate; or
(b) waive an irregularity in the form
or manner in which an application is made to FWA.
587
Dismissing applications
(1) Without limiting when FWA may dismiss an
application, FWA 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.
(2) Despite paragraphs (1)(b) and (c),
FWA 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) FWA may dismiss an application:
(a) on its own initiative; or
(b) on application.
588
Discontinuing applications
A person who has applied to FWA 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 FWA
589
Procedural and interim decisions
(1) FWA may make decisions as to how, when
and where a matter is to be dealt with.
(2) FWA may make an interim decision in
relation to a matter before it.
(3) FWA may make a decision under this
section:
(a) on its own initiative; or
(b) on application.
(4) This section does not limit FWA’s power
to make decisions.
590
Powers of FWA to inform itself
(1) FWA 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), FWA
may inform itself in the following ways:
(a) by requiring a person to attend
before FWA;
(b) by inviting, subject to any terms
and conditions determined by FWA, oral or written submissions;
(c) by requiring a person to provide
copies of documents or records, or to provide any other information to FWA;
(d) by taking evidence under oath or
affirmation in accordance with the regulations (if any);
(e) by requiring an FWA Member, a Full
Bench or the Minimum Wage Panel to prepare a report;
(f) by conducting inquiries;
(g) by undertaking or commissioning
research;
(h) by conducting a conference (see
section 592);
(i) by holding a hearing (see
section 593).
591
FWA not bound by rules of evidence and procedure
FWA is not bound by the rules of
evidence and procedure in relation to a matter before it (whether or not
FWA holds a hearing in relation to the matter).
592
Conferences
(1) For the purpose of performing a function
or exercising a power of FWA (other than a function or power under Part 2‑6),
FWA 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 FWA Member (other than a Minimum Wage
Panel Member), or a delegate of FWA, is responsible for conducting the
conference.
(3) The conference must be conducted in
private, unless the person responsible for conducting the conference directs
that it be conducted in public.
Note: This subsection does not apply in relation to
conferences conducted in relation to unfair dismissal or general protection
matters (see sections 368, 374, 398 and 776).
593
Hearings
(1) FWA is not required to hold a hearing in
performing functions or exercising powers, except as provided by this Act.
(2) If FWA 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) FWA may make the following orders in
relation to a hearing that FWA holds if FWA 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 FWA in relation to the hearing.
(4) Subsection (3) does not apply to the
publication of a submission made to FWA for consideration in an annual wage
review (see subsection 289(2)).
594
Confidential evidence
(1) FWA may make an order prohibiting or
restricting the publication of the following in relation to a matter before FWA
(whether or not FWA holds a hearing in relation to the matter) if FWA 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 FWA in relation
to the matter;
(b) the names and addresses of persons
making submissions to FWA in relation to the matter;
(c) matters contained in documents
lodged with FWA or received in evidence by FWA 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 FWA for consideration in an annual wage
review (see subsection 289(2)).
595
FWA’s power to deal with disputes
(1) FWA may deal with a dispute only if FWA
is expressly authorised to do so under or in accordance with another
provision of this Act.
(2) FWA 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) FWA may deal with a dispute by
arbitration (including by making any orders it considers appropriate) only if
FWA is expressly authorised to do so under or in accordance with another
provision of this Act.
Example: Parties may consent to FWA arbitrating a
bargaining dispute (see subsection 240(4)).
(4) In dealing with a dispute, FWA may
exercise any powers it has under this Subdivision.
Example: FWA could direct a person to attend a conference
under section 592.
(5) To avoid doubt, FWA must not exercise any
of the powers referred to in subsection (2) or (3) in relation to a matter
before FWA 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 FWA
(including by making an application or submission to FWA on behalf of the
person) by a lawyer or paid agent only with the permission of FWA.
(2) FWA may grant permission for a person to
be represented by a lawyer or paid agent in a matter before FWA 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 FWA 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) FWA’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 Fair Work (Registered
Organisations) Act 2009; 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 FWA 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 FWA 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 FWA 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
FWA holds a hearing in relation to the matter.
Subdivision D—Decisions of FWA
598
Decisions of FWA
(1) A reference in this Part to a decision of
FWA includes any decision of FWA however described. However, to avoid doubt, a
reference to a decision of FWA does not include an outcome of a process carried
out in accordance with subsection 595(2) (which deals with FWA’s power to deal
with disputes).
Note: Examples of decisions that FWA 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 FWA makes a decision that makes or
varies an instrument, a reference in this Part to a decision of FWA includes
FWA’s decision to make or vary the instrument in the particular terms decided.
(3) A decision of FWA 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 FWA that is not described
as an order may be made by order.
599
FWA not required to decide an application in terms applied for
Except as provided by this Act, FWA 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
FWA 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 FWA’s decisions
(1) The following decisions of FWA must be in
writing:
(a) a decision of FWA 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) FWA 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) FWA must publish the following, on its
website or by any other means that FWA considers appropriate:
(a) a decision that is required to be
in writing and any written reasons that FWA gives in relation to such a
decision;
(b) an enterprise agreement that has
been approved by FWA under Part 2‑4.
FWA must do so as soon as practicable after making the
decision or approving the agreement.
(5) Subsection (4) does not apply to any
of the following decisions or reasons in relation to such decisions:
(a) a decision to issue, or refuse to
issue, a certificate under section 369;
(c) a decision to issue an entry
permit under section 512;
(d) a decision to impose conditions on
an entry permit under section 515;
(e) a decision to issue, or refuse to
issue, an exemption certificate under section 519;
(f) a decision to issue, or refuse to
issue, an affected member certificate under section 520;
(g) a decision or reasons in relation
to which an order is in operation under paragraph 594(1)(d).
(6) Subsections (1) and (4) do not limit
FWA’s power to put decisions in writing or publish decisions.
602
Correcting obvious errors etc. in relation to FWA’s decisions
(1) FWA may correct or amend any obvious
error, defect or irregularity (whether in substance or form) in relation to a
decision of FWA (other than an error, defect or irregularity in a modern award
or national minimum wage order).
Note 1: If FWA makes a decision to make an instrument,
FWA may correct etc. the instrument under this section (see subsection 598(2)).
Note 2: FWA corrects modern awards and national minimum
wage orders under sections 160 and 296.
(2) FWA may correct or amend the error,
defect or irregularity:
(a) on its own initiative; or
(b) on application.
603
Varying and revoking FWA’s decisions
(1) FWA may vary or revoke a decision of FWA
that is made under this Act (other than a decision referred to in
subsection (3)).
Note: If FWA makes a decision to make an instrument,
FWA may vary or revoke the instrument under this subsection (see
subsection 598(2)).
(2) FWA may vary or revoke a decision under
this section:
(a) on its own initiative; or
(b) on application by:
(i) a person who is
affected by the decision; or
(ii) if the kind of
decision is prescribed by the regulations—a person prescribed by the
regulations in relation to that kind of decision.
(3) FWA must not vary or revoke any of the
following decisions of FWA under this section:
(a) a decision under Part 2‑3
(which deals with modern awards);
(b) a decision under section 235
or Division 4, 7, 9 or 10 of Part 2‑4 (which deal with enterprise
agreements);
(c) a decision under Part 2‑5
(which deals with workplace determinations);
(d) a decision under Part 2‑6
(which deals with minimum wages);
(e) a decision under Division 3
of Part 2‑8 (which deals with transfer of business);
(f) a decision under Division 8
of Part 3‑3 (which deals with protected action ballots);
(g) a decision under section 472
(which deals with partial work bans);
(h) a decision that is prescribed by
the regulations.
Note: FWA can vary or revoke decisions, and
instruments made by decisions, under other provisions of this Act (see, for
example, sections 447 and 448).
Subdivision E—Appeals, reviews and referring questions of law
604
Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by FWA (other than a decision
of a Full Bench or the Minimum Wage Panel); or
(b) made by the General Manager
(including a delegate of the General Manager) under the Fair Work
(Registered Organisations) Act 2009;
may appeal the decision, with the permission of FWA.
(2) Without limiting when FWA may grant
permission, FWA must grant permission if FWA is satisfied that it is in the
public interest to do so.
Note: Subsection (2) does not apply in relation
to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by
applying to FWA.
605
Minister’s entitlement to apply for review of a decision
(1) The Minister may apply to FWA for a
review to be conducted by FWA of a decision made by FWA (other than a decision
of a Full Bench or the Minimum Wage Panel) if the Minister believes that the
decision is contrary to the public interest.
(2) Without limiting when FWA may conduct a
review, FWA must conduct a review of the decision if FWA is satisfied that it
is in the public interest to conduct the review.
Note: FWA must be constituted by a Full Bench to
decide whether to conduct a review, and to conduct the review (see
section 614).
(3) In conducting a review:
(a) FWA must take such steps as it
considers appropriate to ensure that each person with an interest in the review
is made aware of the review; and
(b) the Minister is entitled to make
submissions for consideration in the review.
(4) Nothing in this section affects any right
of appeal or any power of FWA under section 604 or 607. A review of a
decision and an appeal of the decision may be dealt with together if FWA
considers it appropriate.
606
Staying decisions that are appealed or reviewed
(1) If, under section 604 or 605, FWA
hears an appeal from, or conducts a review of, a decision, FWA may (except as
provided by subsection (3)) order that the operation of the whole or part
of the decision be stayed, on any terms and conditions that FWA considers
appropriate, until a decision in relation to the appeal or review is made or
FWA makes a further order.
(2) If a Full Bench is hearing the appeal or
conducting the review, an order under subsection (1) in relation to the appeal
or review may be made by:
(a) the Full Bench; or
(b) the person who has seniority under
section 619 in relation to the appeal or review.
(3) This section does not apply in relation
to a decision to make a protected action ballot order.
607
Process for appealing or reviewing decisions
(1) An appeal from, or a review of, a
decision of FWA or the General Manager may be heard or conducted without
holding a hearing only if:
(a) it appears to FWA that the appeal
or review can be adequately determined without persons making oral submissions
for consideration in the appeal or review; and
(b) the persons who would otherwise,
or who will, make submissions (whether oral or written) for consideration in
the appeal or review consent to the appeal or review being heard or conducted
without a hearing.
(2) FWA may:
(a) admit further evidence; and
(b) take into account any other
information or evidence.
(3) FWA may do any of the following in
relation to the appeal or review:
(a) confirm, quash or vary the decision;
(b) make a further decision in
relation to the matter that is the subject of the appeal or review;
(c) refer the matter that is the
subject of the appeal or review to an FWA Member (other than a Minimum Wage
Panel Member) and:
(i) require the FWA Member
to deal with the subject matter of the decision; or
(ii) require the FWA Member
to act in accordance with the directions of FWA.
608
Referring questions of law to the Federal Court
(1) The President may refer a question of law
arising in a matter before FWA for the opinion of the Federal Court.
(2) A question of law referred under
subsection (1) must be determined by the Full Court of the Federal Court.
(3) FWA may make a decision in relation to
the matter even if the Federal Court is determining the question of law, except
if the question is whether FWA may exercise powers in relation to the matter.
(4) Once the Federal Court has determined the
question, FWA may only make a decision in relation to the matter that is not
inconsistent with the opinion of the Federal Court (if FWA has not already done
so).
(5) However, if FWA has made a decision in
relation to the matter that is inconsistent with the opinion of the Federal
Court, FWA must vary the decision in such a way as to make it consistent with
the opinion of the Federal Court.
Subdivision F—Miscellaneous
609
Procedural rules
(1) After consulting the other FWA Members,
the President may, by legislative instrument, make procedural rules in relation
to:
(a) the practice and procedure to be followed
by FWA; or
(b) the conduct of business in
relation to matters allowed or required to be dealt with by FWA.
(2) Without limiting subsection (1), the
procedural rules may provide for the following:
(a) the requirements for making an
application to FWA;
(b) the circumstances in which a
lawyer or paid agent may make an application or submission to FWA on behalf of
a person who is entitled to make the application or submission;
(c) the form and manner in which, and
the time within which, submissions may or must be made to FWA;
(d) the procedural requirements for
making decisions of FWA;
(e) the form and manner in which FWA
gives directions and notifies persons of things;
(f) who is notified by FWA of things;
(g) the manner in which conferences are
to be conducted in relation to applications made under Part 3‑1, 3‑2 or
Part 6‑4 (which deal with general protections, unfair dismissal and
unlawful termination).
(3) To avoid doubt, subsection (1)
includes the power to make procedural rules in relation to any functions
conferred on FWA by any other law of the Commonwealth.
610
Regulations dealing with FWA matters
The regulations may provide for any
matter that the procedural rules may provide for.
Note: Regulations made under this section prevail over
procedural rules (see subsection 796(2)).
611
Costs
(1) A person must bear the person’s own costs
in relation to a matter before FWA.
(2) However, FWA may order a person (the first
person) to bear some or all of the costs of another person in
relation to an application to FWA if:
(a) FWA is satisfied that the first
person made the application, or the first person responded to the application,
vexatiously or without reasonable cause; or
(b) FWA is satisfied that it should
have been reasonably apparent to the first person that the first person’s
application, or the first person’s response to the application, had no
reasonable prospect of success.
Note: FWA can also order costs under
sections 376, 401 and 780.
(3) A person to whom an order for costs applies
must not contravene a term of the order.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
Division 4—Organisation of FWA
Subdivision A—Functions etc. to be performed by a single FWA Member, a
Full Bench or the Minimum Wage Panel
612
FWA functions etc. may generally be performed by single FWA Member
(1) A function or power of FWA may be
performed or exercised by a single FWA Member (other than a Minimum Wage Panel
Member), as directed by the President, except as provided by this Subdivision.
Note: The President gives directions under
section 582.
(2) Action taken under subsection 508(1)
(which deals with misuse of rights under Part 3‑4) must be taken by a
Deputy President, except as provided by section 615.
(3) This section does not limit the power of
the President to delegate a function or power of FWA under section 625.
613
Appeal of decisions to be heard by a Full Bench, the President or a Deputy
President
(1) A Full Bench must (except as provided by
subsection (2)):
(a) decide under section 604
whether to grant permission to appeal a decision; and
(b) if the Full Bench decides to grant
the permission—hear the appeal in accordance with section 607.
Note: For the constitution of a Full Bench, see
section 618.
(2) The President, or a Deputy President
directed by the President, may:
(a) decide under section 604
whether to grant permission to appeal:
(i) a decision of a
delegate under subsection 625(2); or
(ii) a decision of the
General Manager (including a delegate of the General Manager) under the Fair
Work (Registered Organisations) Act 2009; and
(b) if President or the Deputy
President (as the case may be) grants the permission—hear the appeal in
accordance with section 607.
Note: The President gives directions under section 582.
614
Review of decisions by a Full Bench
A Full Bench must:
(a) decide under section 605
whether to conduct a review of a decision; and
(b) if the Full Bench decides to
conduct the review—conduct the review in accordance with section 607.
Note: For the constitution of a Full Bench, see
section 618.
615
FWA functions etc. performed by a Full Bench on direction by the President
(1) A function or power of FWA may be
performed or exercised by a Full Bench if the President so directs.
Note: The President gives directions under
section 582.
(2) The President may direct that the
function or power be exercised by a Full Bench generally, or in relation to a
particular matter or class of matters.
(3) To avoid doubt, a reference in this
section to a Full Bench includes a reference to more than one Full Bench.
Note: For the constitution of a Full Bench, see
section 618.
616
FWA functions etc. that must be performed by a Full Bench
Modern awards
(1) A modern award must be made under
Part 2‑3 by a Full Bench.
(2) A 4 yearly review of modern awards must
be conducted under Part 2‑3 by a Full Bench.
(3) A determination that varies or revokes a
modern award made in a 4 yearly review of modern awards must be made by a
Full Bench.
Note: A determination that varies or revokes a
modern award may be made by a single FWA Member if it is not made in a 4 yearly
review of modern awards or in an annual wage review.
Workplace determinations
(4) A workplace determination must be made
under Part 2‑5 by a Full Bench.
Full Benches
(5) To avoid doubt, a reference in this
section to a Full Bench includes a reference to more than one Full Bench.
Note: For the constitution of a Full Bench, see
section 618.
617
FWA functions etc. that must be performed by the Minimum Wage Panel
(1) An annual wage review must be conducted
under Part 2‑6 by the Minimum Wage Panel.
Note: For the constitution of the Minimum Wage
Panel, see section 620.
(2) A national minimum wage order, or a
determination, made in an annual wage review must be made by the Minimum Wage
Panel.
(3) A determination that varies a national
minimum wage order must be made under Part 2‑6 by the Minimum Wage Panel.
Subdivision B—Constitution of FWA by a single FWA Member, a Full Bench or
the Minimum Wage Panel
618
Constitution and decision‑making of a Full Bench
Constitution of a Full Bench
(1) A Full Bench constituted under this
section consists of at least 3 FWA Members, including at least one Deputy
President.
Note: A Minimum Wage Panel Member might form part of
a Full Bench.
(2) The President may determine which FWA
Members form part of a Full Bench.
Making decisions
(3) A decision of a majority of the FWA
Members on the Full Bench prevails.
(4) However, if there is no majority, the
decision of the FWA Member who has seniority under section 619 prevails.
619
Seniority of FWA Members
(1) While FWA is constituted by a Full Bench,
the FWA Members on the Full Bench have seniority according to the following
order:
(a) the President;
(b) the Deputy Presidents, according
to the days on which their appointments as Deputy Presidents took effect;
(c) if 2 or more appointments as
Deputy Presidents took effect on the same day—the Deputy Presidents, according
to the precedence assigned to them in their instruments of appointment.
(2) The FWA Member on a Full Bench who has
seniority under this section is responsible for managing the Full Bench in
performing functions and exercising powers of FWA.
Note: The FWA Member who has seniority also has a
deciding vote if there is no majority (see subsection 618(4)).
620
Constitution and decision‑making of the Minimum Wage Panel
Constitution of the Minimum Wage Panel
(1) The Minimum Wage Panel constituted under
this section consists of 7 FWA Members (except as provided by section 622),
and must include:
(a) the President; and
(b) at least 3 Minimum Wage Panel
Members.
(2) The President may determine which FWA
Members form part of the Minimum Wage Panel.
(3) The President is responsible for managing
the Minimum Wage Panel in performing the functions and exercising the powers
referred to in section 617.
Making decisions
(4) A decision of the majority of the FWA
Members of the Minimum Wage Panel prevails.
(5) However, if there is no majority, the
decision of the President prevails.
621
Reconstitution of FWA when single FWA Member becomes unavailable
(1) This section applies if:
(a) an FWA Member is dealing with a
matter (other than by forming part of a Full Bench or the Minimum Wage Panel in
relation to a matter); and
(b) the FWA Member becomes unavailable
to continue dealing with the matter before the matter is completely dealt with.
(2) The President must direct another FWA
Member to constitute FWA for the purposes of dealing with the matter.
Note: The new FWA Member must take into account
everything that happened before the FWA Member began to deal with the matter
(see section 623).
622
Reconstitution of FWA when FWA Member of a Full Bench or the Minimum Wage Panel
becomes unavailable
(1) This section applies if:
(a) an FWA Member (the unavailable
member) forms part of a Full Bench or the Minimum Wage Panel in
relation to a matter; and
(b) the FWA Member becomes unavailable
to continue dealing with the matter before the matter is completely dealt with.
(2) The Full Bench or the Minimum Wage Panel
may continue to deal with the matter without the unavailable member if the Full
Bench or the Minimum Wage Panel consists of the following:
(a) for the Minimum Wage Panel—the
President and at least 2 Minimum Wage Panel Members;
(b) for a Full Bench—at least 3 FWA
Members, including at least one Deputy President.
(3) Otherwise, the President must direct
another FWA member to form part of the Full Bench or the Minimum Wage Panel.
After the President does so, the Full Bench or the Minimum Wage Panel may
continue to deal with the matter without the unavailable member.
Note: The new FWA Member must take into account
everything that happened before the FWA Member began to deal with the matter
(see section 623).
623
When new FWA Members begin to deal with matters
If an FWA Member begins to deal with a
matter under section 621 or 622, the FWA Member must take into account
everything that occurred before FWA, and everything that FWA did, in relation
to the matter before the FWA Member began to deal with the matter.
624
FWA’s decisions not invalid when improperly constituted
A decision of FWA is not invalid merely
because it was made by a Full Bench, or the Minimum Wage Panel, constituted
otherwise than as provided by this Division.
Note: If FWA makes a decision to make an instrument
while constituted otherwise than as provided by this Division, the instrument
is not invalid (see subsection 598(2)).
Subdivision C—Delegation of FWA’s functions and powers
625
Delegation by the President of functions and powers of FWA
(1) The President may, in writing, delegate
all or any of the following powers of FWA to the General Manager or a member of
the staff of FWA:
(a) correcting or amending
applications and documents, or waiving irregularities, under section 586;
(b) informing itself as it considers
appropriate under section 590 (other than FWA’s power to hold a hearing);
(c) conducting a conference in
accordance with section 592;
(d) correcting or amending obvious
errors, defects or irregularities under section 602.
(2) The President may, in writing, delegate
all or any of the following functions or powers of FWA to a person referred to
in subsection (3):
(a) publishing varied modern awards
under section 168;
(b) publishing submissions under section 289;
(c) publishing research under
section 291;
(d) publishing varied wage rates under
section 292;
(da) publishing the results of a
protected action ballot under section 457;
(f) imposing conditions on entry
permits, revoking or suspending entry permits, or banning the issue of any
further entry permits, under section 507 or 510;
(g) the functions and powers of FWA
under Division 6 of Part 3‑4 (which deals with entry permits, entry
notices and certificates);
(h) publishing enterprise agreements
under paragraph 601(4)(b);
(i) any function or power prescribed
by the regulations.
(3) The people to whom a delegation may be
given under subsection (2) are any of the following:
(a) the General Manager;
(b) a member of the staff of FWA who
is an SES employee or acting SES employee;
(c) a member of the staff of FWA who
is in a class of employees prescribed by the regulations.
(4) In performing functions or exercising
powers under a delegation under subsection (1) or (2), the delegate must
comply with any directions of the President.
Note: See also sections 34AA and 34AB of the Acts
Interpretation Act 1901.
Division 5—FWA Members
Subdivision A—Appointment of FWA Members
626
Appointment of FWA Members
(1) An FWA Member is to be appointed by the
Governor‑General by written instrument.
(2) The instrument of appointment must
specify whether the FWA Member is the President, a Deputy President, a
Commissioner or a Minimum Wage Panel Member.
(3) The instrument of appointment must assign
a precedence to the FWA Member if the FWA Member and one or more other FWA
Members are appointed as Deputy Presidents on the same day.
Note: Precedence is relevant to the seniority of
Deputy Presidents (see paragraph 619(1)(c)).
(4) The same person must not hold, at the
same time, an appointment as both:
(a) a Minimum Wage Panel Member; and
(b) the President, a Deputy President
or a Commissioner.
627
Qualifications for appointment of FWA Members
President
(1) Before the Governor‑General appoints a
person as the President, the Minister must be satisfied that the person:
(a) is or has been a Judge of a court
created by the Parliament; or
(b) is qualified for appointment
because the person has knowledge of, or experience in, one or more of the
following fields:
(i) workplace relations;
(ii) law;
(iii) business, industry or
commerce.
Deputy Presidents
(2) Before the Governor‑General appoints a
person as a Deputy President, the Minister must be satisfied that the person:
(a) either:
(i) is or has been a Judge
of a court created by the Parliament; or
(ii) has been a Judge of a
court of a State or Territory; or
(b) has a high level of experience in
the field of workplace relations, including a high level of experience that has
been acquired:
(i) through legal practice;
or
(ii) in the service of a
peak council or another association representing the interests of employers or
employees; or
(iii) in the service of
government or an authority of government; or
(iv) in academia.
Commissioners
(3) Before the Governor‑General appoints a
person as a Commissioner, the Minister must be satisfied that the person is
qualified for appointment because the person has knowledge of, or experience
in, one or more of the following fields:
(a) workplace relations;
(b) law;
(c) business, industry or commerce.
Minimum Wage Panel Members
(4) Before the Governor‑General appoints a
person as a Minimum Wage Panel Member, the Minister must be satisfied that the
person is qualified for appointment because the person has knowledge of, or experience
in, one or more of the following fields:
(a) workplace relations;
(b) economics;
(c) social policy;
(d) business, industry or commerce.
628
Basis of appointment of FWA Members
President, Deputy Presidents and Commissioners
(1) The President, a Deputy President or a
Commissioner holds office on a full‑time basis.
(2) A Deputy President or a Commissioner may
perform his or her duties on a part‑time basis, with the President’s approval.
Minimum Wage Panel Members
(3) A Minimum Wage Panel Member holds office
on a part‑time basis.
629
Period of appointment of FWA Members
President, Deputy Presidents and Commissioners
(1) The President, a Deputy President or a
Commissioner holds office until the earliest of the following:
(a) he or she attains the age of 65
years;
(b) he or she resigns or the
appointment is terminated under this Part.
Members of a prescribed State industrial authority
(2) Despite subsection (1), a person who
is a member of a prescribed State industrial authority may be appointed as a
Deputy President or Commissioner for a period specified in the instrument of
appointment.
Note: A member of a prescribed State industrial
authority may hold office as a Deputy President or Commissioner (see
section 631).
(3) If a person is so appointed, the person
holds office as Deputy President or Commissioner until the earliest of the
following:
(a) the specified period ends;
(b) the person ceases to be a member
of the prescribed State industrial authority;
(c) the person resigns or the appointment
is terminated under this Part.
Minimum Wage Panel Members
(4) A Minimum Wage Panel Member holds office
for the period specified in the instrument of appointment. The period must not
exceed 5 years.
Note: A Minimum Wage Panel Member is eligible for reappointment
(see subsection 33(4A) of the Acts Interpretation Act 1901).
Subdivision B—Terms and conditions of FWA Members
629A
Status of the President
The President has the same status as a
Judge of the Federal Court.
630
Appointment of a Judge not to affect tenure etc.
(1) The appointment of a Judge of a court
created by the Parliament as an FWA Member, or service by such a Judge as an
FWA Member, does not affect:
(a) the Judge’s tenure of office as a
Judge; or
(b) the Judge’s rank, title, status,
precedence, salary, annual or other allowances or other rights or privileges as
the holder of his or her office as a Judge.
(2) For all purposes, the Judge’s service as
the FWA Member is taken to be service as a Judge.
631
Dual federal and State appointments of Deputy Presidents or Commissioners
(1) Nothing in this Act prevents a Deputy
President or Commissioner from being appointed to, and holding at the same
time, an office as a member of a prescribed State industrial authority, with
the President’s approval.
(2) Nothing in this Act prevents a member of
a prescribed State industrial authority from being appointed to, and holding at
the same time, an office as a Deputy President or Commissioner.
Note 1: A member of a prescribed State industrial
authority may hold office as a Deputy President or Commissioner only if he or
she is qualified for appointment (see section 627).
Note 2: For the period of appointment, and remuneration
and allowances, of a Deputy President or Commissioner who is a member of a prescribed
State industrial authority, see sections 629 and 637.
(3) Subsections (1) and (2) have effect
subject to any law of the relevant State.
632
Dual federal and Territory appointments of Deputy Presidents or Commissioners
Nothing in this Act prevents a Deputy
President or Commissioner from being appointed to, and holding at the same
time, one of the following offices, with the President’s approval:
(a) an office as a member of a
Commonwealth or Territory tribunal prescribed by the regulations (other than a
court);
(b) an office under a Commonwealth or
Territory law that provides for the office to be held by an FWA Member.
633
Outside employment of FWA Members
Deputy Presidents and Commissioners
(1) A Deputy President or Commissioner
(whether performing duties on a full‑time or part‑time basis) must not engage
in paid employment outside the duties of his or her office without the
President’s approval.
(2) However, the President’s approval is not
required if the paid employment is an office or appointment in the Defence
Force.
Minimum Wage Panel Members
(3) A Minimum Wage Panel Member must not
engage in any paid employment that, in the President’s opinion, conflicts or
may conflict with the proper performance of his or her duties.
634
Oath or affirmation of office
Before beginning to discharge the duties
of his or her office, an FWA Member must take an oath or affirmation in
accordance with the regulations.
635
Remuneration of the President
Remuneration if the President is not a Judge
(1) The President (other than a President who
is a Judge of a court created by the Parliament) is to be paid:
(a) salary at an annual rate equal to
the annual rate of salary payable to the Chief Justice of the Federal Court;
and
(b) such travelling allowances as are
determined from time to time by the Remuneration Tribunal; and
(c) such other allowances as are
prescribed by the regulations.
Remuneration if the President is a Judge
(2) A President who is a Judge of a court
created by the Parliament must be paid an additional allowance, in accordance
with subsection (3), if the salary payable to the person as a Judge is
less than the salary that would be payable to the person as President under
subsection (1).
(3) The amount of the allowance is the
difference between the Judge’s salary and the salary that is payable to the
President under subsection (1).
Additional amount
(4) The President or a former President must
be paid an amount in accordance with subsection 7(5E) of the Remuneration
Tribunal Act 1973 if the President, or former President, would be entitled
to that amount had the President or former President held the office of Chief
Justice of the Federal Court instead of the office of President.
636
Application of Judges’ Pensions Act to the President
(1) The Judges’ Pensions Act 1968 does
not apply to the President if:
(a) immediately before being appointed
as the President, he or she was one of the following (a public sector
superannuation scheme member):
(i) an eligible employee
for the purposes of the Superannuation Act 1976;
(ii) a member of the
superannuation scheme established by deed under the Superannuation Act 1990;
(iii) an ordinary employer‑sponsored
member of PSSAP (within the meaning of the Superannuation Act 2005); and
(b) he or she does not make an
election under subsection (2).
(2) The President may elect to cease to be a
public sector superannuation scheme member.
(3) The election must be made:
(a) within 3 months of the President’s
appointment; and
(b) by written notice to the Minister.
(4) If the President makes the election:
(a) he or she is taken to have ceased
to be a public sector superannuation scheme member immediately before being
appointed as the President; and
(b) the Judges’ Pensions Act 1968
applies to him or her, and is taken to have so applied, immediately after he or
she was appointed as the President.
637
Remuneration of FWA Members other than the President
Remuneration if an FWA Member is not a Judge
(1) An FWA Member (other than an FWA Member
who is a Judge of a court created by the Parliament) is to be paid the
remuneration that is determined by the Remuneration Tribunal. If no
determination of that remuneration by the Tribunal is in operation, the FWA
Member is to be paid the remuneration that is prescribed by the regulations.
(2) An FWA Member is to be paid the
allowances that are prescribed by the regulations.
(3) Subsections (1) and (2) have effect
subject to the Remuneration Tribunal Act 1973 and to section 638
(which deals with remuneration of part‑time Deputy Presidents and
Commissioners).
(4) Despite subsections (1) to (3), if a
person who is a member of a prescribed State industrial authority is appointed
as a Deputy President or Commissioner, the person is not to be paid any
remuneration or allowances in relation to the office of Deputy President or
Commissioner other than any travel allowance prescribed under
subsection (2).
Remuneration if an FWA Member is a Judge
(5) An FWA Member who is a Judge (other than
the Chief Justice of the Federal Court) of a court created by the Parliament is
to be paid an additional allowance, in accordance with subsection (6), if
the salary payable to the person as a Judge is less than the salary that would
be payable to the person as an FWA Member under subsection (1).
(6) The amount of the allowance is the
difference between the Judge’s salary and the salary that is payable to the FWA
Member under subsection (1).
Section does not apply to the President
(7) This section does not apply to the
President.
638
Remuneration of Deputy Presidents or Commissioners performing duties on a part‑time
basis
(1) If the President approves a Deputy
President or Commissioner (the part‑time member) performing his
or her duties on a part‑time basis, the President and the part‑time member are
to enter into a written agreement specifying the proportion (the agreed
proportion) of full‑time duties to be worked by the part‑time member.
(2) The agreed proportion may be varied by a
written agreement between the President and the part‑time member.
(3) The part‑time member’s annual rate of
salary at a particular time is equal to the agreed proportion at that time of
the annual rate of salary that would be payable to the part‑time member if he
or she were performing his or her duties on a full‑time basis.
(4) The allowances that are to be paid to the
part‑time member under section 637 are not affected by this section.
639
Leave of absence of FWA Members other than the President
(1) An FWA Member has the recreation leave
entitlements that are determined by the Remuneration Tribunal.
(2) The President may grant an FWA Member
leave of absence, other than recreation leave, on the terms and conditions as
to remuneration or otherwise as the President determines.
(3) In making a determination in accordance
with this section, the Remuneration Tribunal and the President must take into
account:
(a) any past employment of the FWA
Member in the service of a State or an authority of a State; or
(b) any past service of the FWA Member
as a member of an authority of a State.
(4) This section does not apply to the
President.
640
Disclosure of interests by FWA Members other than the President
(1) This section applies if:
(a) an FWA Member (other than the
President) is dealing, or will deal, with a matter; and
(b) the FWA Member has or acquires any
interest (the potential conflict), pecuniary or otherwise, that
conflicts or could conflict with the proper performance of the FWA Member’s
functions in relation to the matter.
(2) An FWA Member must disclose a potential
conflict to the President.
(3) If an FWA Member discloses a potential
conflict to the President, the FWA Member may only deal, or continue to deal,
with the matter with the President’s approval.
(4) The President must give a direction to
the FWA Member not to deal, or to no longer deal, with the matter if:
(a) the President becomes aware that
an FWA Member has a potential conflict in relation to a matter (whether or not
because of a disclosure under subsection (2)); and
(b) the President considers that the
FWA Member should not deal, or should no longer deal, with the matter.
(5) To avoid doubt, subsection (4)
applies in relation to an FWA Member even if the President has previously given
approval to the FWA Member under subsection (3).
641 Termination
of appointment on grounds of misbehaviour or incapacity
The Governor‑General may terminate the
appointment of an FWA Member if an address praying for the termination, on one
of the following grounds, is presented to the Governor‑General by each House of
the Parliament in the same session:
(a) proved misbehaviour;
(b) the FWA Member is unable to
perform the duties of his or her office because of physical or mental
incapacity.
642
Suspension on grounds of misbehaviour or incapacity
Governor‑General may suspend FWA Member
(1) The Governor‑General may suspend an FWA
Member (other than the President) from office:
(a) for misbehaviour; or
(b) if the FWA Member is unable to
perform the duties of his or her office because of physical or mental incapacity.
Statement of grounds
(2) The Minister must cause to be tabled in
each House of Parliament, within 7 sitting days of that House after the
suspension, a statement identifying the FWA Member and setting out the ground
of the suspension.
Resolution by a House of Parliament
(3) A House of the Parliament may, within 15
sitting days of that House after the day on which the statement has been tabled
in it, declare by resolution that the appointment of the FWA Member should be
terminated.
Suspension terminates
(4) If a House does not pass a resolution in
that way, the suspension terminates.
Appointment to be terminated
(5) If each House of the Parliament passes a
resolution in that way, the Governor‑General must terminate the appointment of
the FWA Member.
Suspension not to affect entitlements
(6) The suspension of an FWA Member under
this section does not affect any entitlement of the FWA Member to be paid
remuneration, and allowances, in accordance with this Act.
643
Termination of appointment for bankruptcy, etc.
The Governor‑General must terminate the
appointment of an FWA Member (other than the President) if:
(a) the FWA Member becomes bankrupt,
applies to take the benefit of any law for the relief of bankrupt or insolvent
debtors, compounds with his or her creditors, or makes an assignment of his or
her remuneration for the benefit of his or her creditors; or
(b) the FWA Member is absent, except
on leave of absence, for 14 consecutive days or for 28 days in any 12 months;
or
(c) the FWA Member fails, without
reasonable excuse, to comply with section 640 (which deals with disclosure
of interests).
644
Termination of appointment for outside employment
Deputy Presidents and Commissioners
(1) The Governor‑General must terminate the
appointment of a Deputy President or Commissioner if the Deputy President or
Commissioner engages, except with the President’s approval, in paid employment
outside the duties of his or her office (see subsection 633(1)).
Minimum Wage Panel Members
(2) The Governor‑General must terminate the
appointment of a Minimum Wage Panel Member if the Minimum Wage Panel Member
engages in paid employment that, in the President’s opinion, conflicts or may
conflict with the proper performance of his or her duties (see subsection 633(3)).
645
Resignation of FWA Members
(1) An FWA Member may resign his or her
appointment by giving the Governor‑General a written resignation.
(2) The resignation takes effect on the day
it is received by the Governor‑General or, if a later day is specified in the
resignation, on that later day.
646
Other terms and conditions of FWA Members
An FWA Member holds office on the terms
and conditions (if any) in relation to matters not covered by this Act that are
determined by the Governor‑General.
647
Appointment of acting President
Appointment by Governor‑General
(1) The Governor‑General may, by written
instrument, appoint a person who is qualified for appointment as the President
to act as the President:
(a) during a vacancy in the office of
the President (whether or not an appointment has previously been made to the
office); or
(b) during any period, or during all
periods, when the President is absent from duty or from Australia, or is, for
any reason, unable to perform the duties of the office.
Note: See also section 33A of the Acts
Interpretation Act 1901, which contains extra rules about acting
appointments.
No invalidity
(2) Anything done by or in relation to a
person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion for the person to act
had not arisen or had ceased.
Not disqualified
(3) A person is not disqualified from being
appointed to act as the President under subsection (1) merely because the
person is over 65.
648
Appointment of acting Deputy Presidents
Appointment by Governor‑General
(1) The Governor‑General may, by written
instrument, appoint a person who is qualified for appointment as a Deputy
President to act as a Deputy President for a specified period (including a
period that exceeds 12 months).
Note: See also section 33A of the Acts
Interpretation Act 1901, which contains extra rules about acting
appointments.
(2) Before the Governor‑General appoints a
person to act as a Deputy President, the Minister must be satisfied that the
appointment is necessary to enable FWA to perform its functions effectively.
No invalidity
(3) Anything done by or in relation to a
person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion for the person to act
had not arisen or had ceased.
Not disqualified
(4) A person is not disqualified from being
appointed to act as a Deputy President under subsection (1) merely because
the person is over 65.
Division 6—Cooperation with the States
649
President to cooperate with prescribed State industrial authorities
(1) The President must perform his or her
functions, and exercise his or her powers, in a manner that facilitates and
encourages cooperation between FWA and prescribed State industrial authorities.
(2) Without limiting subsection (1), the
President may invite the heads of prescribed State industrial authorities, or
the principal registrars of prescribed State industrial authorities, to meet
with the President to exchange information and discuss matters of mutual
interest in relation to workplace relations.
650
Provision of administrative support
The President may make a written
arrangement with a prescribed State industrial authority for:
(a) FWA to provide administrative
support to the authority; or
(b) the authority to provide
administrative support to FWA.
Division 7—Seals and additional powers and functions of the President
and the General Manager
651 Seals
Seal of FWA
(1) FWA must have a seal on which are
inscribed the words “The Seal of Fair Work Australia”.
Duplicate seals
(2) There are to be such duplicates of the
seal of FWA as the President directs.
Note: The President gives directions under section 582.
(3) A document to which a duplicate seal of
FWA is affixed is taken to have the seal of FWA affixed to it.
Custody and use of the seal of FWA and duplicate seals
(4) The seal of FWA, and the duplicates of
that seal, are to be kept in such custody as the President directs and must not
be used except as authorised by the President.
Note: The President gives directions under
section 582.
Judicial notice of the seal of FWA
(5) All courts, judges and persons acting
judicially must:
(a) take judicial notice of the
imprint of the seal of FWA appearing on a document; and
(b) presume that the document was duly
sealed.
652
Annual report
(1) The President must, as soon as
practicable after the end of each financial year, prepare and give to the
Minister, for presentation to the Parliament, a report on the operations of FWA
during that year.
Note: See also section 34C of the Acts
Interpretation Act 1901, which contains extra rules about annual reports.
(2) To avoid doubt, subsection (1) does
not require or authorise the disclosure of information for the purposes of the Privacy
Act 1988.
653 Reports about making enterprise agreements, individual
flexibility arrangements etc.
Review and research
(1) The General Manager must:
(a) review the developments, in
Australia, in making enterprise agreements; and
(b) conduct research into the extent
to which individual flexibility arrangements under modern awards and enterprise
agreements are being agreed to, and the content of those arrangements; and
(c) conduct research into the
operation of the provisions of the National Employment Standards relating to:
(i) requests for flexible
working arrangements under subsection 65(1); and
(ii) requests for
extensions of unpaid parental leave under subsection 76(1); and
(d) conduct research into:
(i) the circumstances in
which employees make such requests; and
(ii) the outcome of such
requests; and
(iii) the circumstances in
which such requests are refused.
(1A) The review and research must be conducted
in relation to each of the following periods:
(a) the 3 year period that starts when
this section commences;
(b) each later 3 year period.
(2) Without limiting subsection (1), the
General Manager must, in conducting the review and research, consider the
effect that the matters referred to in paragraphs (1)(a) to (d) have had,
during the period, on the employment (including wages and conditions of
employment) of the following persons:
(a) women;
(b) part‑time employees;
(c) persons from a non‑English
speaking background;
(d) mature age persons;
(e) young persons;
(f) any other persons prescribed by
the regulations.
Report
(3) The General Manager must give the
Minister a written report of the review and research as soon as practicable,
and in any event within 6 months, after the end of the period to which it
relates.
(4) The Minister must cause a copy of the
report to be tabled in each House of the Parliament within 15 sitting days of
that House after the Minister receives the report.
(5) Subsections 34C(4) to (7) of the Acts
Interpretation Act 1901 apply to the report as if it were a periodic report
as defined in subsection 34C(1) of that Act.
653A
Arrangements with the Federal Court and the Federal Magistrates Court
The General Manager may make a written
arrangement with the Federal Court or the Federal Magistrates Court for FWA to
provide administrative support to the Fair Work Division of the Court.
654
President must provide certain information etc. to the Minister and Fair Work
Ombudsman
(1) The President must provide to the
Minister and the Fair Work Ombudsman information and copies of documents
prescribed by the regulations by the time, and in the form, prescribed.
(2) The regulations may prescribe:
(a) information that is publicly
available, or derived from information that is publicly available, relating to:
(i) a decision of FWA; or
(ii) a notice, notification
or application given or made to FWA; and
(b) a decision of FWA that is publicly
available.
655
Disclosure of information by FWA
Information to which this section applies
(1) This section applies to the following
information:
(a) information acquired by FWA, or a
member of the staff of FWA, in the course of performing functions or exercising
powers as FWA;
(b) information acquired by a person
in the course of assisting FWA under section 672, or in the course of
performing functions, or exercising powers, as a consultant under
section 673.
Disclosure that is necessary or appropriate, or likely
to assist administration or enforcement
(2) The President may disclose, or authorise
the disclosure of, the information if the President reasonably believes:
(a) that it is necessary or
appropriate to do so in the course of performing functions, or exercising
powers, of FWA; or
(b) that the disclosure is likely to
assist in the administration or enforcement of a law of the Commonwealth, a
State or a Territory.
Division 8—General Manager, staff and consultants
Subdivision A—Functions of the General Manager
656
Establishment
There is to be a General Manager of Fair
Work Australia.
657
Functions and powers of the General Manager
(1) The General Manager is to assist the
President in ensuring that FWA performs its functions and exercises its powers.
(1A) The General Manager also has the following
functions:
(a) any function conferred on him or
her by a fair work instrument;
(b) any function conferred on him or
her by a law of the Commonwealth.
Note: Sections 653 and 653A confer additional
functions and powers on the General Manager.
(2) The General Manager has power to do all
things necessary or convenient to be done for the purpose of performing his or
her functions.
658
Directions from the President
Despite the President’s power of
direction under section 582, the General Manager is not required to comply
with a direction by the President to the extent that:
(a) compliance with the
direction would be inconsistent with the General Manager’s performance of
functions or exercise of powers under the Financial Management and
Accountability Act 1997 in relation to FWA; or
(b) the direction relates to
the General Manager’s performance of functions or exercise of powers under the Public
Service Act 1999 in relation to FWA; or
(c) the direction relates to the
conduct by the General Manager of the review and research, and the preparation
of the report, under section 653.
659
General Manager not otherwise subject to direction
Except as provided by this or any other
Act, the General Manager is not subject to direction by or on behalf of the
Commonwealth.
Subdivision B—Appointment and terms and conditions of the General Manager
660
Appointment of the General Manager
(1) The General Manager is to be appointed by
the Governor‑General by written instrument.
(2) The General Manager holds office on a full‑time
basis.
(3) The General Manager holds office for the
period specified in the instrument of appointment. The period must not exceed 5
years.
Note: The General Manager is eligible for
reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).
661
Remuneration of the General Manager
(1) The General Manager is to be paid the
remuneration that is determined by the Remuneration Tribunal. If no
determination of that remuneration by the Tribunal is in operation, the General
Manager is to be paid the remuneration that is prescribed by the regulations.
(2) The General Manager is to be paid the
allowances that are prescribed by the regulations.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
662
Leave of absence of the General Manager
(1) The General Manager has the recreation
leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the General
Manager leave of absence, other than recreation leave, on the terms and
conditions as to remuneration or otherwise that the Minister determines.
663
Outside employment of the General Manager
The General Manager must not engage in
paid employment outside the duties of his or her office without the President’s
approval.
664
Disclosure of interests to the President
The General Manager must give written
notice to the President of all interests, pecuniary or otherwise, that the
General Manager has or acquires and that conflict or could conflict with the
proper performance of the General Manager’s functions.
665
Resignation of the General Manager
(1) The General Manager may resign his or her
appointment by giving the Governor‑General a written resignation.
(2) The resignation takes effect on the day
it is received by the Governor‑General or, if a later day is specified in the
resignation, on that later day.
666
Termination of appointment of the General Manager
(1) The Governor‑General may terminate the
appointment of the General Manager:
(a) for misbehaviour; or
(b) if the General Manager is unable
to perform the duties of his or her office because of physical or mental
incapacity.
(2) The Governor‑General must terminate the
appointment of the General Manager if:
(a) the General Manager becomes
bankrupt, applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors, compounds with his or her creditors, or makes an assignment
of his or her remuneration for the benefit of his or her creditors; or
(b) the General Manager is absent,
except on leave of absence, for 14 consecutive days or for 28 days in any 12
months; or
(c) the General Manager engages,
except with the President’s approval, in paid employment outside the duties of
his or her office (see section 663); or
(d) the General Manager fails, without
reasonable excuse, to comply with section 664 (which deals with disclosure
of interests to the President).
667
Other terms and conditions of the General Manager
The General Manager holds office on the
terms and conditions (if any) in relation to matters not covered by this Act
that are determined by the Governor‑General.
668
Appointment of acting General Manager
(1) The Minister may, by written instrument,
appoint a person to act as the General Manager:
(a) during a vacancy in the office of
the General Manager (whether or not an appointment has previously been made to
the office); or
(b) during any period, or during all
periods, when the General Manager is absent from duty or from Australia, or is,
for any reason, unable to perform the duties of the office.
Note: See also section 33A of the Acts
Interpretation Act 1901, which contains extra rules about acting
appointments.
(2) Anything done by or in relation to a
person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
669
Minister to consult the President
The Minister must consult the President
before:
(a) a person is appointed as the
General Manager under section 660; or
(b) terms and conditions are
determined under section 667; or
(c) a person is appointed to act as
the General Manager under section 668.
Subdivision C—Staff and consultants
670
Staff
(1) The staff of FWA must be persons engaged
under the Public Service Act 1999.
(2) For the purposes of the Public Service
Act 1999:
(a) the General Manager and the staff
of FWA together constitute a Statutory Agency; and
(b) the General Manager is the Head of
that Statutory Agency.
671
Delegation by General Manager to staff
(1) The General Manager may, in writing,
delegate all or any of his or her functions or powers to:
(a) a member of the staff of FWA who
is an SES employee or acting SES employee; or
(b) a member of the staff of FWA who
is in a class of employees prescribed by the regulations.
(2) In performing functions or exercising
powers under a delegation, the delegate must comply with any directions of the
General Manager.
Note: See also sections 34AA and 34AB of the Acts
Interpretation Act 1901.
672
Persons assisting FWA
FWA may also be assisted:
(a) by employees of Agencies (within
the meaning of the Public Service Act 1999); or
(b) by officers and employees of a
State or Territory; or
(c) by officers and employees of
authorities of the Commonwealth, a State or a Territory;
whose services are made available to FWA in connection
with the performance of any of its functions.
673
Consultants
The General Manager may engage persons
having suitable qualifications and experience as consultants to FWA.
Division 9—Offences relating to Fair Work Australia
674
Offences in relation to FWA
Insulting or disturbing an FWA Member
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct insults or
disturbs an FWA Member in the performance of functions, or the exercise of
powers, as an FWA Member.
Penalty: Imprisonment for 12 months.
Using insulting language
(2) A person commits an offence if:
(a) the person uses insulting language
towards another person; and
(b) the person is reckless as to
whether the language is insulting; and
(c) the other person is an FWA Member
performing functions, or exercising powers, as an FWA Member.
Penalty: Imprisonment for 12 months.
Interrupting matters before FWA
(3) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct interrupts a
matter before FWA.
Penalty: Imprisonment for 12 months.
Creating or continuing a disturbance
(4) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person’s conduct creates, or
contributes to creating or continuing, a disturbance; and
(c) the disturbance is in or near a
place where FWA is dealing with a matter.
Penalty: Imprisonment for 12 months.
Improper influence of FWA Members etc.
(5) A person commits an offence if:
(a) the person uses words (whether by
writing or speech) that are intended to improperly influence another person;
and
(b) the other person is an FWA Member
or a person attending before FWA.
Penalty: Imprisonment for 12 months.
Delegates of FWA
(6) A reference in subsections (1) to
(5) to FWA or an FWA Member includes a delegate of FWA.
Adversely affecting public confidence in FWA
(7) A person commits an offence if:
(a) the person publishes a statement;
and
(b) the statement implies or states
that an FWA Member (whether identified or not) has engaged in misconduct in
relation to the performance of functions, or the exercise of powers, as an FWA
Member; and
(c) the FWA Member has not engaged in
that misconduct; and
(d) the publication is likely to have
a significant adverse effect on public confidence that FWA is properly
performing its functions and exercising its powers.
Penalty: 12 months imprisonment.
Note 1: Sections 135.1, 135.4, 139.1, 141.1 and
142.1 of the Criminal Code create offences of using various dishonest
means to influence a Commonwealth public official.
Note 2: Sections 676 and 678 of this Act and
sections 36A, 37, 38 and 40 of the Crimes Act 1914 create offences
relating to interference with a witness. Section 39 of that Act makes it
an offence to destroy anything that may be required in evidence.
675
Contravening an FWA order
(1) A person commits an offence if:
(a) FWA has made an order under this
Act; and
(b) either of the following applies:
(i) the order applies to
the person;
(ii) a term of the order
applies to the person; and
(c) the person engages in conduct; and
(d) the conduct contravenes:
(i) a term of the order
referred to in subparagraph (b)(i); or
(ii) the term referred to
in subparagraph (b)(ii).
(2) However, subsection (1) does not
apply to the following orders:
(a) an order under Part 2‑3 (which
deals with modern awards);
(b) a bargaining order;
(c) a scope order;
(d) an order under Part 2‑6
(which deals with minimum wages);
(e) an equal remuneration order;
(f) an order under Part 2‑8
(which deals with transfer of business);
(g) an order under Division 6 of
Part 3‑3 (which deals with the suspension or termination of protected
industrial action);
(h) a protected action ballot order,
or an order in relation to a protected action ballot order or a protected
action ballot;
(i) an order under Part 3‑5
(which deals with stand down).
Penalty: Imprisonment for 12 months.
(3) Strict liability applies to
paragraphs (1)(a) and (b).
Note: For strict liability, see section 6.1 of
the Criminal Code.
676
Intimidation etc.
A person commits an offence if:
(a) the person threatens, intimidates,
coerces or prejudices another person; and
(b) the person does so because the
other person has given, or proposes to give, information or documents to FWA.
Penalty: Imprisonment for 12 months.
Note: A person may also contravene a civil remedy
provision by threatening etc. a person who has given, or proposes to give,
information or documents to FWA (see section 343).
677
Offences in relation to attending before FWA
Required to attend
(1) A person commits an offence if:
(a) the person has been required to
attend before FWA; and
(b) the person fails to attend as
required.
Penalty: Imprisonment for 6 months.
Oath or affirmation
(2) A person commits an offence if:
(a) the person attends before FWA; and
(b) FWA requires the person to take an
oath or make an affirmation; and
(c) the person refuses or fails to be
sworn or to make an affirmation as required.
Penalty: Imprisonment for 6 months.
Questions or documents
(3) A person commits an offence if:
(a) the person attends before FWA; and
(b) FWA requires the person to answer
a question or produce a document; and
(c) the person refuses or fails to
answer the question or produce the document.
Penalty: Imprisonment for 6 months.
Reasonable excuse
(4) Subsection (1), (2) or (3) does not
apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4) (see subsection 13.3(3) of the
Criminal Code).
(5) A reference in this section to FWA or an
FWA Member includes a delegate of FWA.
678
False or misleading evidence
Giving false or misleading evidence
(1) A person (the witness)
commits an offence if:
(a) the witness gives sworn or
affirmed evidence; and
(b) the witness gives the evidence as
a witness:
(i) in a matter before
FWA; or
(ii) before a person
taking evidence on behalf of FWA for use in a matter that the witness will
start by application to FWA; and
(c) the evidence is false or
misleading.
Penalty: Imprisonment for 12 months.
Note: A person will not commit an offence if the
person carries out the conduct constituting the offence under duress (see
section 10.2 of the Criminal Code).
Inducing or coercing another person to give false or
misleading evidence
(2) A person (the offender)
commits an offence if:
(a) another person (the witness)
has been, or will be, required to appear as a witness in a matter before FWA
(whether the person is to appear before FWA or a delegate of FWA); and
(b) the offender induces, threatens or
intimidates the witness to give false or misleading evidence in the matter.
Penalty: Imprisonment for 12 months.
Part 5‑2—Office of the Fair Work Ombudsman
Division 1—Introduction
679
Guide to this Part
This Part is about the Office of the
Fair Work Ombudsman.
Division 2 is about the Fair Work
Ombudsman. The Fair Work Ombudsman’s functions include promoting and monitoring
compliance with this Act, and providing education, assistance and advice to
employees, employers, outworkers, outworker entities and organisations.
Division 3 is about the Office of
the Fair Work Ombudsman. The Office of the Fair Work Ombudsman consists of the
Fair Work Ombudsman, Fair Work Inspectors and staff.
The inspectors exercise compliance
powers for purposes including determining whether this Act is being complied
with. The compliance powers include the power to enter certain premises, and to
inspect and make copies of documents on the premises.
680
Meanings of employee and employer
In this Part, employee and
employer have their ordinary meanings.
Division 2—Fair Work Ombudsman
Subdivision A—Establishment and functions and powers of the Fair Work
Ombudsman
681
Establishment
There is to be a Fair Work Ombudsman.
682
Functions of the Fair Work Ombudsman
(1) The Fair Work Ombudsman has the following
functions:
(a) to promote:
(i) harmonious, productive
and cooperative workplace relations; and
(ii) compliance with this
Act and fair work instruments;
including by providing
education, assistance and advice to employees, employers, outworkers, outworker
entities and organisations and producing best practice guides to workplace
relations or workplace practices;
(b) to monitor compliance with this
Act and fair work instruments;
(c) to inquire into, and investigate,
any act or practice that may be contrary to this Act, a fair work instrument or
a safety net contractual entitlement;
(d) to commence proceedings in a
court, or to make applications to FWA, to enforce this Act, fair work
instruments and safety net contractual entitlements;
(e) to refer matters to relevant
authorities;
(f) to represent employees or
outworkers who are, or may become, a party to proceedings in a court, or a
party to a matter before FWA, under this Act or a fair work instrument, if the
Fair Work Ombudsman considers that representing the employees or outworkers
will promote compliance with this Act or the fair work instrument;
(g) any other functions conferred on
the Fair Work Ombudsman by any Act.
Note 1: The Fair Work Ombudsman also has the functions
of an inspector (see section 701).
Note 2: In performing functions under
paragraph (a), the Fair Work Ombudsman might, for example, produce a best
practice guide to achieving productivity through bargaining.
(2) The Fair Work Ombudsman must consult with
FWA in producing guidance material that relates to the functions of FWA.
683
Delegation by the Fair Work Ombudsman
(1) The Fair Work Ombudsman may, in writing,
delegate to a member of the staff of the Office of the Fair Work Ombudsman or
to an inspector all or any of the Fair Work Ombudsman’s functions or powers
under any Act (other than his or her functions or powers as an inspector).
(2) In performing functions or exercising
powers under a delegation, the delegate must comply with any directions of the
Fair Work Ombudsman.
684
Directions from the Minister
(1) The Minister may, by legislative
instrument, give written directions to the Fair Work Ombudsman about the
performance of his or her functions.
Note: Section 42 (disallowance) and Part 6
(sunsetting) of the Legislative Instruments Act 2003 do not apply to the
direction (see sections 44 and 54 of that Act).
(2) The direction must be of a general nature
only.
(3) The Fair Work Ombudsman must comply with
the direction.
(4) The Fair Work Ombudsman is not required to
comply with the direction to the extent that it relates to the Fair Work
Ombudsman’s performance of functions, or exercise of powers, under the Public
Service Act 1999 in relation to the Office of the Fair Work Ombudsman.
685
Minister may require reports
(1) The Minister may, in writing, direct the
Fair Work Ombudsman to give the Minister specified reports relating to the Fair
Work Ombudsman’s functions.
(2) The Fair Work Ombudsman must comply with
the direction.
(3) The direction, or the report (if made in
writing), is not a legislative instrument.
686
Annual report
(1) The Fair Work Ombudsman must, as soon as
practicable after the end of each financial year, prepare and give to the
Minister, for presentation to the Parliament, a report on the operations of the
Office of the Fair Work Ombudsman during that year.
Note: See also section 34C of the Acts
Interpretation Act 1901, which contains extra rules about annual reports.
(2) To avoid doubt, subsection (1) does
not require or authorise the disclosure of information for the purposes of the Privacy
Act 1988.
Subdivision B—Appointment and terms and conditions of the Fair Work
Ombudsman
687
Appointment of the Fair Work Ombudsman
(1) The Fair Work Ombudsman is to be
appointed by the Governor‑General by written instrument.
(2) Before the Governor‑General appoints a
person as the Fair Work Ombudsman, the Minister must be satisfied that the
person:
(a) has suitable qualifications or
experience; and
(b) is of good character.
(3) The Fair Work Ombudsman holds office on a
full‑time basis.
(4) The Fair Work Ombudsman holds office for
the period specified in the instrument of appointment. The period must not
exceed 5 years.
Note: The Fair Work Ombudsman is eligible for
reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).
688
Remuneration of the Fair Work Ombudsman
(1) The Fair Work Ombudsman is to be paid the
remuneration that is determined by the Remuneration Tribunal. If no
determination of that remuneration by the Tribunal is in operation, the Fair
Work Ombudsman is to be paid the remuneration that is prescribed by the
regulations.
(2) The Fair Work Ombudsman is to be paid the
allowances that are prescribed by the regulations.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
689
Leave of absence of the Fair Work Ombudsman
(1) The Fair Work Ombudsman has the
recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the Fair Work
Ombudsman leave of absence, other than recreation leave, on the terms and
conditions as to remuneration or otherwise that the Minister determines.
690
Outside employment of the Fair Work Ombudsman
The Fair Work Ombudsman must not engage
in paid employment outside the duties of his or her office without the
Minister’s approval.
691
Disclosure of interests to the Minister
The Fair Work Ombudsman must give
written notice to the Minister of all interests, pecuniary or otherwise, that
the Fair Work Ombudsman has or acquires and that conflict or could conflict
with the proper performance of the Fair Work Ombudsman’s functions.
692
Resignation of the Fair Work Ombudsman
(1) The Fair Work Ombudsman may resign his or
her appointment by giving the Governor‑General a written resignation.
(2) The resignation takes effect on the day
it is received by the Governor‑General or, if a later day is specified in the
resignation, on that later day.
693
Termination of appointment of the Fair Work Ombudsman
(1) The Governor‑General may terminate the
appointment of the Fair Work Ombudsman:
(a) for misbehaviour; or
(b) if the Fair Work Ombudsman is
unable to perform the duties of his or her office because of physical or mental
incapacity.
(2) The Governor‑General must terminate the
appointment of the Fair Work Ombudsman if:
(a) the Fair Work Ombudsman becomes
bankrupt, applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors, compounds with his or her creditors, or makes an assignment
of his or her remuneration for the benefit of his or her creditors; or
(b) the Fair Work Ombudsman is absent,
except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;
or
(c) the Fair Work Ombudsman engages,
except with the Minister’s approval, in paid employment outside the duties of
his or her office (see section 690); or
(d) the Fair Work Ombudsman fails,
without reasonable excuse, to comply with section 691 (which deals with
disclosure of interests to the Minister).
694
Other terms and conditions of the Fair Work Ombudsman
The Fair Work Ombudsman holds office on
the terms and conditions (if any) in relation to matters not covered by this
Act that are determined by the Governor‑General.
695
Appointment of acting Fair Work Ombudsman
(1) The Minister may, by written instrument,
appoint a person who is qualified for appointment as the Fair Work Ombudsman to
act as the Fair Work Ombudsman:
(a) during a vacancy in the office of
Fair Work Ombudsman (whether or not an appointment has previously been made to
the office); or
(b) during any period, or during all
periods, when the Fair Work Ombudsman is absent from duty or from Australia, or
is, for any reason, unable to perform the duties of the office.
Note: See also section 33A of the Acts
Interpretation Act 1901, which contains extra rules about acting
appointments.
(2) Anything done by or in relation to a
person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
Division 3—Office of the Fair Work Ombudsman
Subdivision A—Establishment of the Office of the Fair Work Ombudsman
696
Establishment of the Office of the Fair Work Ombudsman
(1) The Office of the Fair Work Ombudsman is
established by this section.
(2) The Office of the Fair Work Ombudsman
consists of:
(a) the Fair Work Ombudsman; and
(b) the staff of the Office of the
Fair Work Ombudsman; and
(c) the inspectors appointed under
section 700.
Subdivision B—Staff and consultants etc.
697
Staff
(1) The staff of the Office of the Fair Work
Ombudsman must be persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service
Act 1999:
(a) the Fair Work Ombudsman and the
staff of the Office of the Fair Work Ombudsman together constitute a Statutory
Agency; and
(b) the Fair Work Ombudsman is the
Head of that Statutory Agency.
698
Persons assisting the Fair Work Ombudsman
The Fair Work Ombudsman may also be
assisted:
(a) by employees of Agencies (within
the meaning of the Public Service Act 1999); or
(b) by officers and employees of a
State or Territory; or
(c) by officers and employees of
authorities of the Commonwealth, a State or a Territory;
whose services are made available to the Fair Work
Ombudsman in connection with the performance of any of his or her functions.
Note: For example, State or Territory employees
could be made available to assist the Fair Work Ombudsman in providing
education in a particular region.
699
Consultants
The Fair Work Ombudsman may engage
persons having suitable qualifications and experience as consultants to the
Office of the Fair Work Ombudsman.
Subdivision C—Appointment of Fair Work Inspectors
700
Appointment of Fair Work Inspectors
(1) The Fair Work Ombudsman may, in writing,
appoint as a Fair Work Inspector:
(a) a person who has been appointed,
or who is employed, by the Commonwealth; or
(b) a person who is employed by a
State or Territory.
(2) The Fair Work Ombudsman may appoint a
person as a Fair Work Inspector only if the Fair Work Ombudsman is satisfied
that the person is of good character.
(3) A Fair Work Inspector is appointed for
the period specified in the instrument of appointment. The period must not
exceed 4 years.
Note: A Fair Work Inspector is eligible for
reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).
701
Fair Work Ombudsman is a Fair Work Inspector
The Fair Work Ombudsman is a Fair Work
Inspector by force of this section.
702
Identity cards
(1) The Fair Work Ombudsman must issue an
identity card to an inspector appointed under section 700.
(2) The Minister must issue an identity card
to the Fair Work Ombudsman.
Form of identity card
(3) The identity card must:
(a) be in the form approved by the
Fair Work Ombudsman; and
(b) contain a recent photograph of the
inspector.
Inspector must carry card
(4) An inspector must carry the identity card
at all times when performing functions or exercising powers as an inspector.
Offence
(5) A person commits an offence if:
(a) the person ceases to be an
inspector; and
(b) the person does not, within 14
days of so ceasing, return the person’s identity card to the Fair Work
Ombudsman or the Minister (as the case may be).
Penalty: 1 penalty unit.
(6) Subsection (5) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
Defence—card lost or destroyed
(7) Subsection (5) does not apply if the
identity card was lost or destroyed.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection (see subsection 13.3(3) of the Criminal
Code).
Subdivision D—Functions and powers of Fair Work Inspectors
703
Conditions and restrictions on functions and powers
The functions, and powers (compliance
powers), conferred on an inspector are subject to such conditions and
restrictions as are specified in his or her instrument of appointment.
704
General directions by the Fair Work Ombudsman
(1) The Fair Work Ombudsman may, by
legislative instrument, give a written direction to inspectors relating to the
performance of their functions or the exercise of their powers as inspectors.
(2) The direction must be of a general nature
only, and cannot relate to a particular case.
(3) An inspector must comply with the
direction.
705
Particular directions by the Fair Work Ombudsman
(1) The Fair Work Ombudsman may give a
direction to an inspector relating to the performance of the inspector’s
functions or the exercise of the inspector’s powers as an inspector.
(2) The inspector must comply with the
direction.
(3) If a direction is in writing, the
direction is not a legislative instrument.
706 Purpose
for which powers of inspectors may be exercised
(1) An inspector may exercise compliance
powers (other than a power under section 715 or 716) for one or more of
the following purposes (compliance purposes):
(a) determining whether this Act or a
fair work instrument is being, or has been, complied with;
(b) subject to subsection (2),
determining whether a safety net contractual entitlement is being, or
has been, contravened by a person;
(c) the purposes of a provision of the
regulations that confers functions or powers on inspectors;
(d) the purposes of a provision of
another Act that confers functions or powers on inspectors.
Note: The powers in sections 715 (which deals
with enforceable undertakings) and 716 (which deals with compliance notices) may
be exercised for the purpose of remedying the effects of certain
contraventions.
(2) An inspector may exercise compliance
powers for the purpose referred to in paragraph (1)(b) only if the
inspector reasonably believes that the person has contravened one or more of
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.
707
When powers of inspectors may be exercised
An inspector may exercise compliance
powers:
(a) at any time during working hours;
or
(b) at any other time, if the
inspector reasonably believes that it is necessary to do so for compliance
purposes.
708
Power of inspectors to enter premises
(1) An inspector may, without force:
(a) enter premises, if the inspector
reasonably believes that this Act or a fair work instrument applies to work
that is being, or applied to work that has been, performed on the premises; or
(b) enter business premises, if the
inspector reasonably believes that there are records or documents relevant to
compliance purposes on the premises, or accessible from a computer on the
premises.
(2) Despite paragraph (1)(a), an
inspector must not enter a part of premises that is used for residential
purposes unless the inspector reasonably believes that the work referred to in
that paragraph is being performed on that part of the premises.
(3) The inspector must, either before or as
soon as practicable after entering premises, show his or her identity card to
the occupier, or another person who apparently represents the occupier, if the
occupier or other person is present at the premises.
709
Powers of inspectors while on premises
The inspector may exercise one or more
of the following powers while on the premises:
(a) inspect any work, process or
object;
(b) interview any person;
(c) require a person to tell the
inspector who has custody of, or access to, a record or document;
(d) require a person who has the
custody of, or access to, a record or document to produce the record or
document to the inspector either while the inspector is on the premises, or
within a specified period;
(e) inspect, and make copies of, any
record or document that:
(i) is kept on the
premises; or
(ii) is accessible from a
computer that is kept on the premises;
(f) take samples of any goods or
substances in accordance with any procedures prescribed by the regulations.
Note: See also sections 713, 713A and 714
(which deal with self‑incrimination and produced documents etc.).
710
Persons assisting inspectors
(1) A person (the assistant)
may accompany the inspector onto the premises to assist the inspector if the
Fair Work Ombudsman is satisfied that:
(a) the assistance is necessary and
reasonable; and
(b) the assistant has suitable
qualifications and experience to properly assist the inspector.
(2) The assistant:
(a) may do such things on the premises
as the inspector requires to assist the inspector to exercise compliance
powers; but
(b) must not do anything that the
inspector does not have power to do.
(3) Anything done by the assistant is taken
for all purposes to have been done by the inspector.
711
Power to ask for person’s name and address
(1) An inspector may require a person to tell
the inspector the person’s name and address if the inspector reasonably
believes that the person has contravened a civil remedy provision.
(2) If the inspector reasonably believes that
the name or address is false, the inspector may require the person to give
evidence of its correctness.
(3) A person must comply with a requirement
under subsection (1) or (2) if:
(a) the inspector advises the person
that he or she may contravene a civil remedy provision if he or she fails to
comply with the requirement; and
(b) the inspector shows his or her
identity card to the person.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(4) Subsection (3) does not apply if the
person has a reasonable excuse.
712
Power to require persons to produce records or documents
(1) An inspector may require a person, by
notice, to produce a record or document to the inspector.
(2) The notice must:
(a) be in writing; and
(b) be served on the person; and
(c) require the person to produce the
record or document at a specified place within a specified period of at least
14 days.
The notice may be served by sending the notice to the
person’s fax number.
(3) A person who is served with a notice to
produce must not fail to comply with the notice.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(4) Subsection (3) does not apply if the
person has a reasonable excuse.
713
Self‑incrimination [see Note 2]
(1) A person is not excused from producing a
record or document under paragraph 709(d), or subsection 712(1), on the ground
that the production of the record or document might tend to incriminate the
person or expose the person to a penalty.
(2) However, in the case of an individual
none of the following are admissible in evidence against the individual in
criminal proceedings:
(a) the record or document produced;
(b) producing the record or document;
(c) any information, document or thing
obtained as a direct or indirect consequence of producing the record or
document;
(d) any record or document that is
inspected or copied under paragraph 709(e);
(e) any information, document or thing
obtained as a direct or indirect consequence of inspecting or copying a record
or document under paragraph 709(e).
713A
Certain records and documents are inadmissible
The following are not admissible in
evidence in criminal proceedings against an individual:
(a) any record or document inspected
or copied under paragraph 709(e) of which the individual had custody, or to
which the individual had access, when it was inspected or copied;
(b) any information, document or thing
obtained as a direct or indirect consequence of inspecting or copying a record
or document of which the individual had custody, or to which the individual had
access, when it was inspected or copied under paragraph 709(e).
714
Power to keep records or documents
(1) If a record or document is produced to an
inspector in accordance with this Subdivision, the inspector may:
(a) inspect, and make copies of, the
record or document; and
(b) keep the record or document for
such period as is necessary.
(2) While an inspector keeps a record or
document, the inspector must allow the following persons to inspect, or make
copies of, the record or document at all reasonable times:
(a) the person who produced the record
or document;
(b) any person otherwise entitled to
possession of the record or document;
(c) a person authorised by the person
referred to in paragraph (b).
715
Enforceable undertakings relating to contraventions of civil remedy provisions
Application of this section
(1) This section applies if the Fair Work
Ombudsman reasonably believes that a person has contravened a civil remedy
provision.
Accepting an undertaking
(2) The Fair Work Ombudsman may accept a
written undertaking given by the person in relation to the contravention,
except as provided by subsection (5).
Withdrawing or varying an undertaking
(3) The person may withdraw or vary the
undertaking at any time, but only with the Fair Work Ombudsman’s consent.
Relationship with orders in relation to contraventions
of civil remedy provisions
(4) An inspector must not apply for an order
under Division 2 of Part 4‑1 in relation to a contravention of a
civil remedy provision by a person if an undertaking given by the person under
this section in relation to the contravention has not been withdrawn.
Note: A person other than an inspector who is
otherwise entitled to apply for an order in relation to the contravention may
do so.
Relationship with compliance notices
(5) The Fair Work Ombudsman must not
accept an undertaking in relation to a contravention if the person has been
given a notice in relation to the contravention under section 716.
Enforcement of undertakings
(6) If the Fair Work Ombudsman considers that
the person who gave the undertaking has contravened any of its terms, the Fair
Work Ombudsman may apply to the Federal Court, the Federal Magistrates Court or
an eligible State or Territory Court for an order under subsection (7).
(7) If the court is satisfied that the person
has contravened a term of the undertaking, the court may make one or more of
the following orders:
(a) an order directing the person to
comply with the term of the undertaking;
(b) an order awarding compensation for
loss that a person has suffered because of the contravention;
(c) any other order that the court
considers appropriate.
716
Compliance notices
Application of this section
(1) This section applies if an inspector
reasonably believes that a person has contravened one or more of 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.
Giving a notice
(2) The inspector may, except as provided by
subsection (4), give the person a notice requiring the person to do either
or both of the following within such reasonable time as is specified in the
notice:
(a) take specified action to remedy
the direct effects of the contravention referred to in subsection (1);
(b) produce reasonable evidence of the
person’s compliance with the notice.
(3) The notice must also:
(a) set out the name of the person to
whom the notice is given; and
(b) set out the name of the inspector
who gave the notice; and
(c) set out brief details of the
contravention; and
(d) explain that a failure to comply
with the notice may contravene a civil remedy provision; and
(e) explain that the person may apply
to the Federal Court, the Federal Magistrates Court or an eligible State or
Territory Court for a review of the notice on either or both of the following
grounds:
(i) the person has not
committed a contravention set out in the notice;
(ii) the notice does not
comply with subsection (2) or this subsection; and
(f) set out any other matters
prescribed by the regulations.
Relationship with enforceable undertakings
(4) An inspector must not give a
person a notice in relation to a contravention if:
(a) the person has given an
undertaking under section 715 in relation to the contravention; and
(b) the undertaking has not been
withdrawn.
Relationship with civil remedy provisions
(4A) An inspector must not apply for an
order under Division 2 of Part 4‑1 in relation to a contravention of
a civil remedy provision by a person if:
(a) the inspector has given the person
a notice in relation to the contravention; and
(b) either of the following subparagraphs
applies:
(i) the notice has not
been withdrawn, and the person has complied with the notice;
(ii) the person has made an
application under section 717 in relation to the notice that has not been
completely dealt with.
Note: A person other than an inspector who is
otherwise entitled to apply for an order in relation to the contravention may
do so.
(4B) A person who complies with a notice in
relation to a contravention of a civil remedy provision is not taken:
(a) to have admitted to contravening
the provision; or
(b) to have been found to have
contravened the provision.
Person must not fail to comply with notice
(5) A person must not fail to comply with a
notice given under this section.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(6) Subsection (5) does not apply if the
person has a reasonable excuse.
717
Review of compliance notices
(1) A person who has been given a notice
under section 716 may apply to the Federal Court, the Federal Magistrates
Court or an eligible State or Territory Court for a review of the notice on
either or both of the following grounds:
(a) the person has not committed a
contravention set out in the notice;
(b) the notice does not comply with
subsection 716(2) or (3).
(2) At any time after the application has
been made, the court may stay the operation of the notice on the terms and
conditions that the court considers appropriate.
(3) The court may confirm, cancel or vary the
notice after reviewing it.
Subdivision E—Disclosure of information by the Office of the Fair Work
Ombudsman
718
Disclosure of information by the Office of the Fair Work Ombudsman
Information to which this section applies
(1) This section applies to the following
information:
(a) information acquired by the Fair
Work Ombudsman in the course of performing functions, or exercising powers, as
the Fair Work Ombudsman;
(b) information acquired by an
inspector in the course of performing functions, or exercising powers, as an
inspector;
(c) information acquired by a member
of the staff of the Office of the Fair Work Ombudsman in the course of
performing functions, or exercising powers, as a member of that staff;
(d) information acquired by a person
in the course of assisting the Fair Work Ombudsman under section 698, or
in the course of performing functions, or exercising powers, as a consultant
under section 699;
(e) information acquired by a person
in the course of assisting an inspector under section 710.
Disclosure that is necessary or appropriate, or likely
to assist administration or enforcement
(2) The Fair Work Ombudsman may disclose, or
authorise the disclosure of, the information if the Fair Work Ombudsman
reasonably believes:
(a) that it is necessary or
appropriate to do so in the course of performing functions, or exercising
powers, under this Act; or
(b) that the disclosure is likely to
assist in the administration or enforcement of a law of the Commonwealth, a
State or a Territory.
Disclosure to the Minister
(3) The Fair Work Ombudsman may disclose, or
authorise the disclosure of, the information to the Minister if the Fair Work
Ombudsman reasonably believes that the disclosure is likely to assist the
Minister to consider a complaint or issue in relation to a matter arising under
this Act.
Disclosure to the Department
(4) The Fair Work Ombudsman may disclose, or
authorise the disclosure of, the information to:
(a) the Secretary of the Department;
or
(b) an SES employee, or an APS
employee, in the Department;
for the purpose of briefing, or considering briefing, the
Minister if the Fair Work Ombudsman reasonably believes the disclosure is
likely to assist the Minister to consider a complaint or issue in relation to a
matter arising under this Act.
Chapter 6—Miscellaneous
Part 6‑1—Multiple actions
Division 1—Introduction
719
Guide to this Part
This Part provides rules relating to
applications for remedies under this Act.
Division 2 prevents certain
applications where other remedies are available.
Division 3 prevents multiple
applications or complaints in relation to the same conduct.
720
Meanings of employee and employer
In this Part, employee and
employer have their ordinary meanings.
Division 2—Certain actions not permitted if alternative action can be
taken
721
Equal remuneration applications
(1) FWA must not deal with an application for
an equal remuneration order if FWA is satisfied that there is available to the
employees to whom the order will apply, an adequate alternative remedy that:
(a) exists under a law of the
Commonwealth (other than Part 2‑7) or a law of a State or Territory; and
(b) will ensure equal remuneration for
work of equal or comparable value for those employees.
(2) A remedy that:
(a) exists under a law of the
Commonwealth, a State or a Territory relating to discrimination in relation to
employment; and
(b) consists solely of compensation
for past actions;
is not an adequate alternative remedy for the purposes of
this section.
722
Notification and consultation requirements applications
FWA must not make an order under subsection
532(1) or 787(1) if FWA is satisfied that there is available to the applicant,
or to the employees represented by the applicant, an alternative remedy that:
(a) exists under a law of the
Commonwealth (other than Division 2 of Part 3‑6 or Division 3 of
Part 6‑4) or a law of a State or Territory; and
(b) will give effect, in relation to
the employees and registered employee associations concerned, to the
requirements of Article 13 of the ILO Convention (No. 158) concerning
Termination of Employment at the Initiative of the Employer, done at Geneva on
22 June 1982 ([1994] ATS 4).
Note: In 2009, the text of a Convention in the
Australian Treaty Series was accessible through the Australian Treaties Library
on the AustLII website (www.austlii.edu.au).
723 Unlawful
termination applications
A person must not make an unlawful
termination application in relation to conduct if the person is entitled to
make a general protections court application in relation to the conduct.
Division 3—Preventing multiple actions
Subdivision A—Equal remuneration applications
724
Equal remuneration applications
(1) FWA must not deal with an application for
an equal remuneration order in relation to an employee if proceedings for an
alternative remedy:
(a) to ensure equal remuneration for
work of equal or comparable value for the employee; or
(b) against unequal remuneration for
work of equal or comparable value for the employee;
have commenced under a law of the Commonwealth (other than
Part 2‑7) or a law of a State or Territory.
(2) Subsection (1) does not prevent FWA
from dealing with the application if the proceedings for the alternative
remedy:
(a) have been discontinued by the
party who commenced the proceedings; or
(b) have failed for want of
jurisdiction.
(3) If an application has been made to FWA
for an equal remuneration order in relation to an employee, a person is not
entitled to commence proceedings for an alternative remedy under a law of the
Commonwealth (other than Part 2‑7) or a law of a State or Territory:
(a) to ensure equal remuneration for
work of equal or comparable value for the employee; or
(b) against unequal remuneration for
work of equal or comparable value for the employee.
(4) Subsection (3) does not prevent a
person from commencing proceedings for an alternative remedy if:
(a) the applicant has discontinued the
application for the equal remuneration order; or
(b) the application has failed for
want of jurisdiction.
(5) A remedy that:
(a) exists under a law of the
Commonwealth, a State or a Territory relating to discrimination in relation to
employment; and
(b) consists solely of compensation
for past actions;
is not an alternative remedy for the purposes of this
section.
Subdivision B—Applications and complaints relating to dismissal
725 General
rule
A person who has been dismissed must not
make an application or complaint of a kind referred to in any one of
sections 726 to 732 in relation to the dismissal if any other of those
sections applies.
726
Dismissal remedy bargaining order applications
(1) This section applies if:
(a) a dismissal remedy bargaining
order application has been made by, or on behalf of, the person in relation to
the dismissal; and
(b) the application has not:
(i) been withdrawn by the
person who made the application; or
(ii) failed for want of
jurisdiction.
(2) A dismissal remedy bargaining order
application is an application for a bargaining order made on the ground
that the person was dismissed in contravention of the good faith bargaining
requirement in paragraph 228(1)(e).
727
General protections FWA applications
(1) This section applies if:
(a) a general protections FWA
application has been made by, or on behalf of, the person in relation to the
dismissal; and
(b) the application has not:
(i) been withdrawn by the
person who made the application; or
(ii) failed for want of
jurisdiction; or
(iii) resulted in the issue
of a certificate under section 369 (which provides for FWA to issue a
certificate if FWA is satisfied that all reasonable attempts to resolve a
dispute have been, or are likely to be, unsuccessful).
(2) A general protections FWA
application is an application under section 365 for FWA to deal
with a dispute that relates to dismissal.
728
General protections court applications
This section applies if:
(a) a general protections court
application has been made by, or on behalf of, the person in relation to the
dismissal; and
(b) the application has not:
(i) been withdrawn by the
person who made the application; or
(ii) failed for want of
jurisdiction.
729
Unfair dismissal applications
(1) This section applies if:
(a) an unfair dismissal application
has been made by the person in relation to the dismissal; and
(b) the application has not:
(i) been withdrawn by the
person who made the application; or
(ii) failed for want of
jurisdiction; or
(iii) failed because FWA was
satisfied that the dismissal was a case of genuine redundancy.
(2) An unfair dismissal application
is an application under subsection 394(1) for a remedy for unfair dismissal.
730
Unlawful termination FWA applications
(1) This section applies if:
(a) an unlawful termination FWA
application has been made by, or on behalf of, the person in relation to the
dismissal; and
(b) the application has not:
(i) been withdrawn by the
person who made the application; or
(ii) failed for want of
jurisdiction; or
(iii) resulted in the issue
of a certificate under section 777 (which provides for FWA to issue a
certificate if FWA is satisfied that all reasonable attempts to resolve a
dispute have been, or are likely to be, unsuccessful).
(2) An unlawful termination FWA
application is an application under section 773 for FWA to deal
with a dispute that relates to dismissal.
731
Unlawful termination court applications
This section applies if:
(a) an unlawful termination court
application has been made by, or on behalf of, the person in relation to the
dismissal; and
(b) the application has not:
(i) been withdrawn by the
person who made the application; or
(ii) failed for want of
jurisdiction.
732
Applications and complaints under other laws
(1) This section applies if:
(a) an application or complaint under
another law has been made by, or on behalf of, the person in relation to the
dismissal; and
(b) the application or complaint has
not:
(i) been withdrawn by the
person who made the application; or
(ii) failed for want of
jurisdiction.
(2) An application or complaint under
another law is an application or complaint made under:
(a) a law of the Commonwealth (other
than this Act); or
(b) a law of a State or Territory.
(3) For the purposes of this Subdivision, if
a complaint under the Australian Human Rights Commission Act 1986
relates to a dismissal only as a result of an amendment of the complaint, the
complaint is taken to be made when the complaint is amended.
733
Dismissal does not include failure to provide benefits
For the purposes of this Subdivision, a
reference to an application or complaint made in relation to a dismissal does
not include a reference to an application or complaint made only in relation to
failure by the employer concerned to provide a benefit to which the dismissed
person is entitled as a result of the dismissal.
Subdivision C—General protections applications that do not relate to
dismissal
734
General rule
(1) A person must not make a general
protections court application in relation to conduct that does not involve the
dismissal of the person if:
(a) an application or complaint under an
anti‑discrimination law has been made by, or on behalf of, the person in
relation to the conduct; and
(b) the application or complaint has
not:
(i) been withdrawn by the
person who made the application; or
(ii) failed for want of
jurisdiction.
(2) A person must not make an application or
complaint under an anti‑discrimination law in relation to conduct that does not
involve the dismissal of the person if:
(a) a general protections court
application has been made by, or on behalf of, the person in relation to the
conduct; and
(b) the application has not:
(i) been withdrawn by the
person who made the application; or
(ii) failed for want of
jurisdiction.
Part 6‑2—Dealing with disputes
Division 1—Introduction
735
Guide to this Part
This Part is about dealing with
disputes between national system employees and their employers.
Division 2 deals with the powers
of FWA and other persons to deal with a dispute if a modern award, enterprise
agreement or contract of employment includes a term that provides for FWA or
the person to deal with the dispute.
736 Meanings
of employee and employer
In this Part, employee
means a national system employee, and employer means a national
system employer.
Division 2—Dealing with disputes
Subdivision A—Model term about dealing with disputes
737
Model term about dealing with disputes
The regulations must prescribe a model
term for dealing with disputes for enterprise agreements.
Subdivision B—Dealing with disputes
738
Application of this Division
This Division applies if:
(a) a modern award includes a term
that provides a procedure for dealing with disputes, including a term in
accordance with section 146; or
(b) an enterprise agreement includes a
term that provides a procedure for dealing with disputes, including a term
referred to in subsection 186(6); or
(c) a contract of employment or other
written agreement includes a term that provides a procedure for dealing with
disputes between the employer and the employee, to the extent that the dispute
is about any matters in relation to the National Employment Standards or a
safety net contractual entitlement; or
(d) a determination under the Public
Service Act 1999 includes a term that provides a procedure for dealing with
disputes arising under the determination or in relation to the National
Employment Standards.
739
Disputes dealt with by FWA
(1) This section applies if a term referred
to in section 738 requires or allows FWA to deal with a dispute.
(2) FWA must not deal with a dispute to the
extent that the dispute is about whether an employer had reasonable business
grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a
contract of employment, enterprise agreement or other written agreement to FWA
dealing with the matter; or
(b) a determination under the Public
Service Act 1999 authorises FWA to deal with the matter.
Note: This does not prevent FWA from dealing with a
dispute relating to a term of an enterprise agreement that has the same (or
substantially the same) effect as subsection 65(5) or 76(4) (see also
subsection 55(5)).
(3) In dealing with a dispute, FWA must not
exercise any powers limited by the term.
(4) If, in accordance with the term, the
parties have agreed that FWA may arbitrate (however described) the dispute, FWA
may do so.
Note: FWA may also deal with a dispute by mediation
or conciliation, or by making a recommendation or expressing an opinion (see
subsection 595(2)).
(5) Despite subsection (4), FWA must not
make a decision that is inconsistent with this Act, or a fair work instrument
that applies to the parties.
(6) FWA may deal with a dispute only on
application by a party to the dispute.
740
Dispute dealt with by persons other than FWA
(1) This section applies if a term referred
to in section 738 requires or allows a person other than FWA to deal with
a dispute.
(2) The person must not deal with a dispute
to the extent that the dispute is about whether an employer had reasonable
business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a
contract of employment, enterprise agreement or other written agreement to the
person dealing with the matter; or
(b) a determination under the Public
Service Act 1999 authorises the person to deal with the matter.
Note: This does not prevent a person from dealing
with a dispute relating to a term of an enterprise agreement that has the same
(or substantially the same) effect as subsection 65(5) or 76(4) (see also
subsection 55(5)).
(3) If, in accordance with the term, the
parties have agreed that the person may arbitrate (however described) the
dispute, the person may do so.
(4) Despite subsection (3), the person
must not make a decision that is inconsistent with this Act, or a fair work
instrument that applies to the parties.
Part 6‑3—Extension of National Employment Standards entitlements
Division 1—Introduction
741
Guide to this Part
This Part contains Divisions that
extend some National Employment Standards entitlements to non‑national system
employees.
Division 2 extends the
entitlements to unpaid parental leave, and related entitlements.
Division 3 extends the
entitlements to notice of termination or payment in lieu of notice.
742
Meanings of employee and employer
In this Part, employee and
employer have their ordinary meanings.
Division 2—Extension of entitlement to unpaid parental leave and related
entitlements
Subdivision A—Main provisions
743
Object of this Division
The object of this Division is to give
effect, or further effect, to:
(a) the ILO Convention (No. 156)
concerning Equal Opportunities and Equal Treatment for Men and Women Workers:
Workers with Family Responsibilities, done at Geneva on 23 June 1981
([1991] ATS 7); and
(b) the Workers with Family
Responsibilities Recommendation, 1981 (Recommendation No. R165) which the
General Conference of the ILO adopted on 23 June 1981;
by providing for a system of unpaid parental leave and
related entitlements, that will help men and women workers who have
responsibilities in relation to their dependent children:
(c) to prepare for, enter, participate
in or advance in economic activity; and
(d) to reconcile their employment and
family responsibilities.
Note 1: In 2009, the text of a Convention in the
Australian Treaty Series was accessible through the Australian Treaties Library
on the AustLII website (www.austlii.edu.au).
Note 2: In 2009, the text of a Recommendation adopted
by the General Conference of the ILO was accessible through the ILO website
(www.ilo.org).
744
Extending the entitlement to unpaid parental leave and related entitlements
Extension of Division 5 of Part 2‑2 and
related provisions
(1) The provisions of Division 5 of
Part 2‑2, and the related provisions identified in subsection (2),
apply in relation to a non‑national system employee as if:
(a) any reference in the provisions to
a national system employee also included a reference to a non‑national system
employee; and
(b) any reference in the provisions to
a national system employer also included a reference to a non‑national system
employer.
Note 1: Division 5 of Part 2‑2 provides for
unpaid parental leave and related entitlements.
Note 2: This subsection applies to express references
to national system employees and national system employers, and to references
that are to national system employees and national system employers because of
section 60 or another similar section.
(2) The related provisions are the following,
so far as they apply in relation to Division 5 of Part 2‑2 as it
applies because of subsection (1):
(a) the provisions of Divisions 2
and 13 of Part 2‑2;
(b) any other provisions of this Act
prescribed by the regulations;
(c) any provisions of this Act that
define expressions that are used (directly or indirectly) in provisions of
Division 5 of Part 2‑2, or in provisions referred to in
paragraph (a) or (b) of this subsection.
Modifications are set out in Subdivision B
(3) The extended parental leave provisions
have effect subject to the modifications provided for in Subdivision B. The extended
parental leave provisions are the provisions of Division 5 of
Part 2‑2, and the related provisions identified in subsection (2) of
this section, as they apply because of this section.
Regulations made for the purpose of provisions
(4) Subsection (1) also applies to any
regulations made for the purpose of a provision to which that subsection applies,
other than a provision that is modified by Subdivision B.
745
Contravening the extended parental leave provisions
(1) A non‑national system employer must not
contravene the extended parental leave provisions.
Note 1: This subsection is a civil remedy provision
(see Part 4‑1).
Note 2: The extended parental leave provisions also
affect national system employers (including as section 44 applies to them)
and their national system employees. This is because the provisions may result
in a national system employee, and a non‑national system employee, being an
employee couple.
(2) However, an order cannot be made under
Division 2 of Part 4‑1 in relation to a contravention (or alleged
contravention) of subsection 76(4).
Note: Subsection 76(4) states that an employer may
refuse an application to extend unpaid parental leave only on reasonable
business grounds.
746
References to the National Employment Standards include extended parental leave
provisions
A reference in this Act, or another law
of the Commonwealth, to the National Employment Standards includes a
reference to the extended parental leave provisions.
747
State and Territory laws that are not excluded
This Act is not intended to apply to the
exclusion of laws of a State or Territory that provide employee entitlements in
relation to the birth or adoption of children, to the extent that those laws:
(a) apply to non‑national system
employees; and
(b) provide entitlements for those
employees that are more beneficial than the entitlements under the extended
parental leave provisions.
Subdivision B—Modifications of the extended parental leave provisions
748
Non‑national system employees are not award/agreement free employees
A non‑national system employee is not an
award/agreement free employee for the purpose of the extended parental leave
provisions.
749
Modification of meaning of base rate of pay for pieceworkers
Section 16 has effect as if the
following paragraph were added at the end of subsection 16(2):
(d) the employee is a non‑national system
employee, and the regulations prescribe, or provide for the determination of,
the employee’s base rate of pay for the purposes of the extended parental leave
provisions.
750
Modification of meaning of full rate of pay for pieceworkers
Section 18 has effect as if the
following paragraph were added at the end of subsection 18(2):
(d) the employee is a non‑national
system employee, and the regulations prescribe, or provide for the
determination of, the employee’s full rate of pay for the purposes of the
extended parental leave provisions.
751
Modification of meaning of ordinary hours of work—if determined by State
industrial instrument
Section 20 has effect as if the
following subsection were inserted before subsection 20(1):
(1A) If a State industrial instrument applies to
a non‑national system employee and specifies, or provides for the determination
of, the employee’s ordinary hours of work, the employee’s ordinary hours
of work are as specified in, or determined in accordance with, that
instrument.
752
Modification of meaning of ordinary hours of work—if not determined by
State industrial instrument
Section 20 has effect as if
references in subsections 20(1), (2) and (3) to an award/agreement free
employee also included references to a non‑national system employee to whom
either of the following paragraphs applies:
(a) a State industrial instrument
applies to the employee, but it does not specify, or provide for the
determination of, the employee’s ordinary hours of work;
(b) no State industrial instrument
applies to the employee.
753
Modification of meaning of ordinary hours of work—regulations may
prescribe usual weekly hours
Section 20 has effect as if the
following subsection were added at the end:
(5) For a non‑national system employee:
(a) who is not a full‑time employee;
and
(b) who does not have usual weekly
hours of work; and
(c) to whom either of the following
subparagraphs applies:
(i) a State industrial
instrument applies to the employee, but it does not specify, or provide for the
determination of, the employee’s ordinary hours of work;
(ii) no State industrial
instrument applies to the employee;
the regulations may prescribe, or provide for the
determination of, hours that are taken to be the employee’s usual weekly hours
of work for the purposes of the extended parental leave provisions.
754
Modification of meaning of pieceworker
Section 21 has effect as if the
following paragraph were added at the end of subsection 21(1):
(d) a non‑national system employee who
is in a class of employees prescribed by the regulations as pieceworkers for
the purpose of the extended parental leave provisions.
755
Modification of provision about interaction with paid leave
Section 79 applies as if
subsections 79(2) and (3) were omitted.
756
Modification of provision about relationship between National Employment
Standards and agreements
Section 128 has effect as if
references to an award/agreement free employee also included references to a
non‑national system employee.
757
Modification of power to make regulations
Section 129 has effect as if the
following subsection were added at the end:
(2) The regulations may:
(a) permit non‑national system
employers and non‑national system employees to agree on matters that would or
might otherwise be contrary to an extended parental leave provision; and
(b) prohibit such employers and
employees from agreeing on matters, or prohibit such employers from making
requirements of such employees, that would or might otherwise be permitted by
an extended parental leave provision.
Division 3—Extension of entitlement to notice of termination or payment
in lieu of notice
Subdivision A—Main provisions
758
Object of this Division
The object of this Division is to give
effect, or further effect, to:
(a) the ILO Convention (No. 158)
concerning Termination of Employment at the Initiative of the Employer, done at
Geneva on 22 June 1982 ([1994] ATS 4); and
(b) the Termination of Employment
Recommendation, 1982 (Recommendation No. R166) which the General Conference of
the ILO adopted on 22 June 1982.
Note 1: In 2009, the text of a Convention in the
Australian Treaty Series was accessible through the Australian Treaties Library
on the AustLII website (www.austlii.edu.au).
Note 2: In 2009, the text of a Recommendation adopted
by the General Conference of the ILO was accessible through the ILO website
(www.ilo.org).
759
Extending entitlement to notice of termination or payment in lieu of notice
Extension of Subdivision A of Division 11 of
Part 2‑2 and related provisions
(1) The provisions of Subdivision A of
Division 11 of Part 2‑2, and the related provisions identified in
subsection (2), apply in relation to a non‑national system employee as if:
(a) any reference in the provisions to
a national system employee also included a reference to a non‑national system
employee; and
(b) any reference in the provisions to
a national system employer also included a reference to a non‑national system
employer.
Note 1: Subdivision A of Division 11 of
Part 2‑2 provides for notice of termination or payment in lieu of notice.
Note 2: This subsection applies to express references
to national system employees and national system employers, and to references
that are to national system employees and national system employers because of
section 60 or another similar section.
(2) The related provisions are the following,
so far as they apply in relation to Subdivision A of Division 11 of
Part 2‑2 as it applies because of subsection (1):
(a) the provisions of Division 2,
Subdivision C of Division 11, and Division 13, of Part 2‑2;
(b) any other provisions of this Act
prescribed by the regulations;
(c) any provisions of this Act that
define expressions that are used (directly or indirectly) in provisions of
Subdivision A of Division 11 of Part 2‑2, or in provisions referred
to in paragraph (a) or (b) of this subsection.
Modifications are set out in Subdivision B
(3) The extended notice of termination
provisions have effect subject to the modifications provided for in Subdivision
B. The extended notice of termination provisions are the
provisions of Subdivision A of Division 11 of Part 2‑2, and the
related provisions identified in subsection (2) of this section, as they
apply because of this section.
Regulations made for the purpose of provisions
(4) Subsection (1) also applies to any
regulations made for the purpose of a provision to which that subsection
applies, other than a provision that is modified by Subdivision B.
760
Contravening the extended notice of termination provisions
A non‑national system employer must not
contravene the extended notice of termination provisions.
Note: This section is a civil remedy provision (see
Part 4‑1).
761
References to the National Employment Standards include extended notice of
termination provisions
A reference in this Act, or another law
of the Commonwealth, to the National Employment Standards includes a
reference to the extended notice of termination provisions.
762
State and Territory laws that are not excluded
This Act is not intended to apply to the
exclusion of laws of a State or Territory that provide employee entitlements
relating to notice of termination of employment (or payment in lieu of notice),
to the extent that those laws:
(a) apply to non‑national system
employees; and
(b) provide entitlements for those
employees that are more beneficial than the entitlements under the extended
notice of termination provisions.
Subdivision B—Modifications of the extended notice of termination
provisions
763
Non‑national system employees are not award/agreement free employees
A non‑national system employee is not an
award/agreement free employee for the purpose of the extended notice of
termination provisions.
764
Modification of meaning of full rate of pay for pieceworkers
Section 18 has effect as if the
following paragraph were added at the end of subsection 18(2):
(d) the employee is a non‑national
system employee, and the regulations prescribe, or provide for the
determination of, the employee’s full rate of pay for the purposes of the
extended notice of termination provisions.
765
Modification of meaning of pieceworker
Section 21 has effect as if the
following paragraph were added at the end of subsection 21(1):
(d) a non‑national system employee who
is in a class of employees prescribed by the regulations as pieceworkers for
the purpose of the extended notice of termination provisions.
766
Modification of provision about notice of termination by employee
Section 118 has effect as if the
following subsection were added at the end:
(2) A State industrial instrument may include
terms specifying the period of notice a non‑national system employee must give
in order to terminate his or her employment.
767
Modification of provision about relationship between National Employment
Standards and agreements
Section 128 has effect as if
references to an award/agreement free employee also included references to a
non‑national system employee.
768
Modification of power to make regulations
Section 129 has effect as if the following
subsection were added at the end:
(2) The regulations may:
(a) permit non‑national system
employers and non‑national system employees to agree on matters that would or
might otherwise be contrary to an extended notice of termination provision; and
(b) prohibit such employers and
employees from agreeing on matters, or prohibit such employers from making
requirements of such employees, that would or might otherwise be permitted by
an extended notice of termination provision.
Part 6‑4—Additional provisions relating to termination of employment
Division 1—Introduction
769
Guide to this Part
This Part contains provisions to give
effect, or further effect, to certain international agreements relating to
discrimination and termination of employment.
Division 2 makes it unlawful for
an employer to terminate an employee’s employment for certain reasons.
Division 2 also deals with compliance. In most cases, a dispute that
involves the termination of an employee’s employment will be dealt with by a
court only if the dispute has not been resolved by FWA.
Division 3 sets out notification
and consultation requirements in relation to certain terminations of
employment.
770
Meanings of employee and employer
In this Part, employee and
employer have their ordinary meanings.
Division 2—Termination of employment
771
Object of this Division
The object of this Division is to give
effect, or further effect, to:
(a) the ILO Convention (No. 111)
concerning Discrimination in respect of Employment and Occupation, done at
Geneva on 25 June 1958 ([1974] ATS 12); and
(b) the ILO Convention (No. 156)
concerning Equal Opportunities and Equal Treatment for Men and Women Workers:
Workers with Family Responsibilities, done at Geneva on 23 June 1981
([1991] ATS 7); and
(c) the ILO Convention (No. 158)
concerning Termination of Employment at the Initiative of the Employer, done at
Geneva on 22 June 1982 ([1994] ATS 4); and
(d) the Termination of Employment
Recommendation, 1982 (Recommendation No. R166) which the General Conference of
the ILO adopted on 22 June 1982.
Note 1: In 2009, the text of a Convention in the
Australian Treaty Series was accessible through the Australian Treaties Library
on the AustLII website (www.austlii.edu.au).
Note 2: In 2009, the text of a Recommendation adopted
by the General Conference of the ILO was accessible through the ILO website
(www.ilo.org).
772
Employment not to be terminated on certain grounds
(1) An employer must not terminate an
employee’s employment for one or more of the following reasons, or for reasons
including one or more of the following reasons:
(a) temporary absence from work
because of illness or injury of a kind prescribed by the regulations;
(b) trade union membership or
participation in trade union activities outside working hours or, with the
employer’s consent, during working hours;
(c) non‑membership of a trade union;
(d) seeking office as, or acting or
having acted in the capacity of, a representative of employees;
(e) the filing of a complaint, or the
participation in proceedings, against an employer involving alleged violation
of laws or regulations or recourse to competent administrative authorities;
(f) race, colour, sex, sexual
preference, age, physical or mental disability, marital status, family or
carer’s responsibilities, pregnancy, religion, political opinion, national
extraction or social origin;
(g) absence from work during maternity
leave or other parental leave;
(h) temporary absence from work for
the purpose of engaging in a voluntary emergency management activity, where the
absence is reasonable having regard to all the circumstances.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(2) However, subsection (1) does not
prevent a matter referred to in paragraph (1)(f) from being a reason for
terminating a person’s employment if:
(a) the reason is based on the
inherent requirements of the particular position concerned; or
(b) if the person is a member of the
staff of an institution that is conducted in accordance with the doctrines,
tenets, beliefs or teachings of a particular religion or creed—the employment
is terminated:
(i) in good faith; and
(ii) to avoid injury to the
religious susceptibilities of adherents of that religion or creed.
(3) To avoid doubt, if:
(a) an employer terminates an
employee’s employment; and
(b) the reason, or a reason, for the
termination is that the position held by the employee no longer exists, or will
no longer exist; and
(c) the reason, or a reason, that the
position held by the employee no longer exists, or will no longer exist, is the
employee’s absence, or proposed or probable absence, during maternity leave or
other parental leave;
the employee’s employment is taken, for the purposes of
paragraph (1)(g), to have been terminated for the reason, or for reasons
including the reason, of absence from work during maternity leave or other
parental leave.
(4) For the purposes of subsection (1),
subsection 109(2) (which deals with the meaning of voluntary emergency
management activity) has effect as if the word employee had its
ordinary meaning.
773
Application for FWA to deal with a dispute
If:
(a) an employer has terminated an
employee’s employment; and
(b) the employee, or an industrial
association that is entitled to represent the industrial interests of the
employee, alleges that the employee’s employment was terminated in
contravention of subsection 772(1);
the employee, or the industrial association, may apply to
FWA for FWA to deal with the dispute.
774
Time for application
(1) An application under section 773
must be made:
(a) within 60 days after the
employment was terminated; or
(b) within such further period as FWA
allows under subsection (2).
(2) FWA may allow a further period if FWA is
satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the employee
to dispute the termination; and
(c) prejudice to the employer
(including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and
other persons in a like position.
775
Application fees
(1) The application must be accompanied by
any fee prescribed by the regulations.
(2) The regulations may prescribe:
(a) a fee for making an application to
FWA under section 773; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or
part of the fee may be waived or refunded.
776
Conferences
(1) If an application is made under
section 773, FWA must conduct a conference to deal with the dispute.
Note 1: For conferences, see section 592.
Note 2: FWA may deal with a dispute by mediation or
conciliation, or by making a recommendation or expressing an opinion (see
subsection 595(2)).
(2) Despite subsection 592(3), FWA must
conduct the conference in private.
777
Certificate if dispute not resolved
If FWA is satisfied that all reasonable
attempts to resolve the dispute have been, or are likely to be, unsuccessful,
FWA must issue a certificate to that effect.
778
Advice on unlawful termination court application
(1) If FWA considers, taking into account all
the materials before it, that an unlawful termination court application in
relation to the dispute would not have a reasonable prospect of success, it
must advise the parties accordingly.
(2) An unlawful termination court
application is an application to a court under Division 2 of
Part 4‑1 for orders in relation to a contravention of subsection 772(1).
779
Unlawful termination court applications
FWA conference to be held before application
(1) A person who is entitled to apply under
section 773, to FWA for FWA to deal with a dispute must not make an
unlawful termination court application in relation to the dispute unless:
(a) FWA has issued a certificate under
section 777 in relation to the dispute; or
(b) the unlawful termination court
application includes an application for an interim injunction.
Time for application
(2) Despite section 544, an unlawful
termination court application that requires a certificate under
section 777 must be made within 14 days after the certificate is
issued, or within such period as a court allows on an application made during
or after those 14 days.
Note: In Brodie‑Hanns v MTV Publishing Ltd
(1995) 67 IR 298, the Industrial Relations Court of Australia set down
principles relating to the exercise of its discretion under a similarly worded
provision of the Industrial Relations Act 1988.
780
Costs orders against lawyers and paid agents
(1) If FWA has granted permission in
accordance with section 596 for a person to be represented by a lawyer or
paid agent in relation to an application under section 773, FWA may make
an order for costs against the lawyer or paid agent if FWA is satisfied:
(a) that:
(i) the lawyer or paid
agent caused costs to be incurred by the other party to the dispute because the
lawyer or paid agent encouraged the person to make the application; and
(ii) it should have been
reasonably apparent that the application would have no reasonable prospect of
success; or
(b) that the lawyer or paid agent
caused costs to be incurred by the other party to the dispute because of an
unreasonable act or omission of the lawyer or paid agent in connection with the
conduct or continuation of the dispute.
(2) FWA may make an order under this section
only if the other party to the dispute has applied for it under
section 781.
(3) This section does not limit FWA’s power
to order costs under section 611.
781
Applications for costs orders
An application for an order for costs in
relation to an application under section 773 must be made within 14 days
after FWA finishes dealing with the dispute.
782
Contravening costs orders
A person to whom an order for costs made
under section 780 applies must not contravene a term of the order.
Note: This section is a civil remedy provision (see
Part 4‑1).
783
Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a
contravention of subsection 772(1), it is alleged that a person took, or is
taking, action for a particular reason; and
(b) taking that action for that reason
would constitute a contravention of subsection 772(1);
it is presumed, in proceedings arising from the
application, that the action was, or is being, taken for that reason, unless
the person proves otherwise.
(2) Subsection (1) does not apply in
relation to orders for an interim injunction.
Division 3—Notification and consultation requirements relating to
certain terminations of employment
Subdivision A—Object of this Division
784
Object of this Division
The object of this Division is to give
effect, or further effect, to:
(a) the ILO Convention (No. 158)
concerning Termination of Employment at the Initiative of the Employer, done at
Geneva on 22 June 1982 ([1994] ATS 4); and
(b) the Termination of Employment
Recommendation, 1982 (Recommendation No. R166) which the General Conference of
the ILO adopted on 22 June 1982.
Note 1: In 2009, the text of a Convention in the
Australian Treaty Series was accessible through the Australian Treaties Library
on the AustLII website (www.austlii.edu.au).
Note 2: In 2009, the text of a Recommendation adopted
by the General Conference of the ILO was accessible through the ILO website
(www.ilo.org).
Subdivision B—Requirement to notify Centrelink
785
Employer to notify Centrelink of certain proposed terminations
(1) If an employer decides to terminate the
employment of 15 or more employees for reasons of an economic, technological,
structural or similar nature, or for reasons including such reasons, the employer
must give a written notice about the proposed terminations to the Chief
Executive Officer of the Commonwealth Services Delivery Agency (Centrelink).
(2) The notice must be in the form (if any)
prescribed by the regulations and set out:
(a) the reasons for the terminations;
and
(b) the number and categories of
employees likely to be affected; and
(c) the time when, or the period over
which, the employer intends to carry out the terminations.
(3) The notice must be given:
(a) as soon as practicable after
making the decision; and
(b) before terminating an employee’s
employment in accordance with the decision.
(4) The employer must not terminate an
employee’s employment in accordance with the decision unless the employer has
complied with this section.
Note: This subsection is a civil remedy provision
(see Part 4‑1).
(5) The orders that may be made under
subsection 545(1) in relation to a contravention of subsection (4) of this
section:
(a) include an order requiring the
employer not to terminate the employment of employees in accordance with the
decision, except as permitted by the order; but
(b) do not include an order granting
an injunction.
Subdivision C—Failure to notify or consult registered employee
associations
786
FWA may make orders where failure to notify or consult registered employee
associations about terminations
(1) FWA may make an order under subsection
787(1) if it is satisfied that:
(a) an employer has decided to
terminate the employment of 15 or more employees for reasons of an economic,
technological, structural or similar nature, or for reasons including such
reasons; and
(b) the employer has not complied with
subsection (2) (which deals with notifying relevant registered employee
associations) or subsection (3) (which deals with consulting relevant
registered employee associations); and
(c) the employer could reasonably be
expected to have known, when he or she made the decision, that one or more of
the employees were members of a registered employee association.
Notifying relevant registered employee associations
(2) An employer complies with this subsection
if:
(a) the employer notifies each
registered employee association of which any of the employees was a member, and
that was entitled to represent the industrial interests of that member, of the
following:
(i) the proposed
terminations and the reasons for them;
(ii) the number and
categories of employees likely to be affected;
(iii) the time when, or the
period over which, the employer intends to carry out the terminations; and
(b) the notice is given:
(i) as soon as practicable
after making the decision; and
(ii) before terminating an
employee’s employment in accordance with the decision.
Consulting relevant registered employee associations
(3) An employer complies with this subsection
if:
(a) the employer gives each registered
employee association of which any of the employees was a member, and that was
entitled to represent the industrial interests of that member, an opportunity
to consult the employer on:
(i) measures to avert or
minimise the proposed terminations; and
(ii) measures (such as
finding alternative employment) to mitigate the adverse effects of the proposed
terminations; and
(b) the opportunity is given:
(i) as soon as practicable
after making the decision; and
(ii) before terminating an
employee’s employment in accordance with the decision.
787
Orders that FWA may make
(1) FWA may make whatever orders it considers
appropriate, in the public interest, to put:
(a) the employees; and
(b) each registered employee
association referred to in paragraph 786(2)(a) or (3)(a);
in the same position (as nearly as can be done) as if the
employer had complied with subsections 786(2) and (3).
(2) FWA must not, under subsection (1),
make orders for any of the following:
(a) reinstatement of an employee;
(b) withdrawal of a notice of
termination if the notice period has not expired;
(c) payment of an amount in lieu of
reinstatement;
(d) payment of severance pay;
(e) disclosure of confidential
information or commercially sensitive information relating to the employer,
unless the recipient of such information gives an enforceable undertaking not
to disclose the information to any other person;
(f) disclosure of personal
information relating to a particular employee, unless the employee has given
written consent to the disclosure of the information and the disclosure is in
accordance with that consent.
788
Application to FWA for order
FWA may make the order only on
application by:
(a) one of the employees; or
(b) a registered employee association
referred to in paragraph 786(2)(a) or (3)(a); or
(c) any other registered employee
association that is entitled to represent the industrial interests of one of
the employees.
Subdivision D—Limits on scope of this Division
789
Limits on scope of this Division
(1) This Division does not apply in relation
to any of the following employees:
(a) an employee employed for a
specified period of time, for a specified task, or for the duration of a
specified season;
(b) an employee whose employment is
terminated because of serious misconduct;
(c) a casual employee;
(d) an employee (other than an
apprentice) to whom a training arrangement applies and whose employment is for
a specified period of time or is, for any reason, limited to the duration of
the training arrangement;
(e) a daily hire employee working in
the building and construction industry (including working in connection with
the erection, repair, renovation, maintenance, ornamentation or demolition of
buildings or structures);
(f) a daily hire employee working in
the meat industry in connection with the slaughter of livestock;
(g) a weekly hire employee working in
connection with the meat industry and whose termination of employment is
determined solely by seasonal factors;
(h) an employee prescribed by the
regulations as an employee in relation to whom this Division does not apply.
(2) Paragraph (1)(a) does not prevent
this Division from applying in relation to an employee if a substantial reason
for employing the employee as described in that paragraph was to avoid the
application of this Division.
Part 6‑5—Miscellaneous
Division 1—Introduction
790
Guide to this Part
This Part deals with miscellaneous
matters such as delegations and regulations.
791 Meanings
of employee and employer
In this Part, employee
means a national system employee, and employer means a national
system employer.
Division 2—Miscellaneous
792
Delegation by Minister
(1) The Minister may, in writing, delegate
all or any of his or her functions or powers under this Act to:
(a) the Secretary of the Department;
or
(b) an SES employee, or acting SES
employee, in the Department.
(2) In performing functions or exercising
powers under a delegation, the delegate must comply with any directions of the
Minister.
Note: See also sections 34AA and 34AB of the Acts
Interpretation Act 1901.
793
Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a
body corporate:
(a) by an officer, employee or agent
(an official) of the body within the scope of his or her actual
or apparent authority; or
(b) by any other person at the
direction or with the consent or agreement (whether express or implied) of an
official of the body, if the giving of the direction, consent or agreement is
within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural
rules, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act or the
procedural rules, it is necessary to establish the state of mind of a body
corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by
a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of
mind.
Meaning of state of mind
(3) The state of mind of a
person includes:
(a) the knowledge, intention, opinion,
belief or purpose of the person; and
(b) the person’s reasons for the
intention, opinion, belief or purpose.
Disapplication of Part 2.5 of the Criminal Code
(4) Part 2.5 of Chapter 2 of the Criminal
Code does not apply to an offence against this Act.
Note: Part 2.5 of the Criminal Code
deals with corporate criminal responsibility.
(5) In this section, employee
has its ordinary meaning.
794
Signature on behalf of body corporate
For the purposes of this Act, a document
may be signed on behalf of a body corporate by an authorised officer of the
body and need not be made under the body’s seal.
795
Public sector employer to act through employing authority
Employer to act through employing authority
(1) For the purposes of this Act and the
procedural rules, the employer of an employee (a public sector employee)
employed in public sector employment must act only through the employee’s
employing authority acting on behalf of the employer.
Acts done by or to employing authority
(2) For the purposes of this Act and the
procedural rules, anything done by or to a public sector employee’s employing
authority acting on behalf of the employee’s employer is taken to have been
done by or to the employer (as the case may be).
Application of subsections (1) and (2)
(3) Subsections (1) and (2) apply
despite any other law of the Commonwealth, a State or a Territory.
Meaning of public sector employment
(4) Public sector
employment means employment of, or service by, a person in any capacity
(whether permanently or temporarily, and whether full‑time or part‑time):
(a) under the Public Service Act
1999 or the Parliamentary Service Act 1999; or
(b) by or in the service of a
Commonwealth authority; or
(c) under a law of the Australian
Capital Territory relating to employment by that Territory, including a law
relating to the Australian Capital Territory Government Service; or
(d) by or in the service of:
(i) an enactment authority
as defined by section 3 of the A.C.T. Self‑Government (Consequential
Provisions) Act 1988; or
(ii) a body corporate
incorporated by or under a law of the Australian Capital Territory and in which
the Australian Capital Territory has a controlling interest;
other than an authority or body
prescribed by the regulations; or
(e) under a law of the Northern
Territory relating to the Public Service of the Northern Territory; or
(f) by or in the service of a
Northern Territory authority; or
(g) by or in the service of a person
prescribed by the regulations; or
(h) under a law prescribed by the
regulations.
(5) However, public sector employment does
not include:
(a) employment of, or service by, a
person prescribed by the regulations; or
(b) employment or service under a law
prescribed by the regulations.
This subsection does not apply for the purposes of
section 40.
Note: Section 40 deals with the interaction
between fair work instruments and public sector employment laws.
Meaning of employing authority
(6) An employing authority of
an employee is the person prescribed by the regulations as the employee’s
employing authority.
796
Regulations—general
(1) The Governor‑General may make regulations
prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
(2) Regulations made under this Act prevail
over procedural rules made under this Act, to the extent of any inconsistency.
796A
Regulations conferring functions
The regulations may confer functions on
the following:
(a) FWA;
(b) the General Manager.
797
Regulations dealing with offences
(1) The regulations may provide for offences
against the regulations.
(2) The penalties for offences must not be
more than 20 penalty units.
798
Regulations dealing with civil penalties
(1) The regulations may provide for civil
penalties for contravention of the regulations.
(2) The penalties for contravention must not
be more than:
(a) 20 penalty units for an
individual; or
(b) 100 penalty units for a body
corporate.
799
Regulations dealing with infringement notices
Infringement notices for offences
(1) The regulations may provide for a person
who is alleged to have committed an offence against the regulations to pay a
penalty to the Commonwealth as an alternative to prosecution.
(2) The penalty must not exceed one‑fifth of
the maximum penalty prescribed by the regulations for that offence.
800
Regulations dealing with exhibiting fair work instruments
The regulations may provide for the
exhibiting, on the premises of an employer, of a fair work instrument or a term
of a fair work instrument.