{"id":"C2009A00028","name":"Fair Work Act 2009","slug":"fair-work-act-2009","collection":"act","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":"28 of 2009","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":623255,"registerId":"C2026C00355","compilationNumber":"73","startDate":"2026-07-07","status":"InForce","reasons":[{"affect":"Amend","markdown":"sch 1 (items 1-9, 19-62) of the [Workplace Relations Legislation Amendment (Building Cooperative Workplaces No. 1) Act 2026](/C2026A00062)","dateChanged":null,"amendedByTitle":null,"affectedByTitle":{"name":"Workplace Relations Legislation Amendment (Building Cooperative Workplaces No. 1) Act 2026","year":2026,"number":62,"titleId":"C2026A00062","provisions":"sch 1 (items 1-9, 19-62)","seriesType":"Act","optionalSeriesNumber":null}}],"registeredAt":"2026-07-31T12:26:41.119Z"},"sections":[{"sectionNumber":"Part 1-1","sectionType":"part","heading":"Introduction","content":"Part 1‑1—Introduction","sortOrder":0},{"sectionNumber":"Division 1","sectionType":"division","heading":"Preliminary","content":"Division 1—Preliminary","sortOrder":1},{"sectionNumber":"1","sectionType":"section","heading":"Short title","content":"1  Short title\n\n  This Act may be cited as the Fair Work Act 2009.","sortOrder":2},{"sectionNumber":"2","sectionType":"section","heading":"Commencement","content":"2  Commencement\n\n (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.\n\n\n\n- Commencement information\n- Column 1 Column 2 Column 3\n- Provision(s) Commencement Date/Details\n- 1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 7 April 2009\n- 2. Sections 3 to 40 A single day to be fixed by Proclamation.However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. 26 May 2009(see F2009L01818)\n- 3. Sections 41 to 572 A day or days to be fixed by Proclamation.A Proclamation must not specify a day that occurs before the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent.However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent, they commence on the first day after the end of that period. Sections 41–43, 50–54, 58, 169–281A, 300–327, 332, 333, 334–572: 1 July 2009 (see F2009L02563)Sections 44–49, 55–57A, 59–168, 282–299, 328–331, 333A: 1 January 2010 (see F2009L02563)\n- 4. Sections 573 to 718 At the same time as the provision(s) covered by table item 2. 26 May 2009\n- 5. Sections 719 to 800 A day or days to be fixed by Proclamation.A Proclamation must not specify a day that occurs before the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent.However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent, they commence on the first day after the end of that period. Sections 719–740, 769–800: 1 July 2009 (see F2009L02563)Sections 741–768: 1 January 2010 (see F2009L02563)\n- 6. Schedule 1 At the same time as the provision(s) covered by table item 2. 26 May 2009\n\n\nNote: 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.\n\n (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.","sortOrder":3},{"sectionNumber":"Division 2","sectionType":"division","heading":"Object of this Act","content":"Division 2—Object of this Act","sortOrder":4},{"sectionNumber":"3","sectionType":"section","heading":"Object of this Act","content":"3  Object of this Act\n\n  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:\n\n (a) providing workplace relations laws that are fair to working Australians, promote job security and gender equality, 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\n\n (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\n\n (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\n\n (ca) ensuring a safety net of fair and relevant minimum terms and conditions for regulated workers through enforceable minimum standards orders and related measures; and\n\n (caa) ensuring a safety net of fair and relevant minimum terms and conditions for persons in a road transport contractual chain through enforceable road transport contractual chain orders and through road transport contractual chain guidelines; and\n\n (cb) providing appropriate remedies in relation to unfair terms of services contracts; and\n\n (d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and\n\n (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\n\n (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\n\n (g) acknowledging the special circumstances of small and medium‑sized businesses.","sortOrder":5},{"sectionNumber":"Division 3","sectionType":"division","heading":"Guide to this Act","content":"Division 3—Guide to this Act","sortOrder":6},{"sectionNumber":"4","sectionType":"section","heading":"Guide to this Act","content":"4  Guide to this Act\n\nOverview of this Act\n\n (1) This Act is about workplace relations. It:\n\n (a) provides for terms and conditions of employment (Chapter 2); and\n\n (b) sets out rights and responsibilities of employees, employers and organisations in relation to that employment (Chapter 3); and\n\n (ba) provides for minimum terms and conditions for regulated workers (Chapter 3A); and\n\n (bb) sets out measures to deal with unfair terms of services contracts (Chapter 3A); and\n\n (bc) provides for minimum terms and conditions for persons in a road transport contractual chain (Chapter 3B); and\n\n (c) provides for compliance with, and enforcement of, this Act (Chapter 4); and\n\n (d) provides for the administration of this Act by establishing the Fair Work Commission and the Office of the Fair Work Ombudsman (Chapter 5); and\n\n (e) deals with other matters relating to the above (Chapter 6).\n\nOverview of the rest of this Chapter\n\n (2) The rest of this Chapter deals with:\n\n (a) definitions that are used in this Act (Part 1‑2); and\n\n (b) the application of this Act (Part 1‑3), including how this Act interacts with certain State and Territory laws and its geographical application;\n\n (c) certain matters relating to the road transport industry (Part 1‑4).\n\nDefinitions\n\n (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.\n\nApplication, saving and transitional provisions for amendments\n\n (4) Schedule 1 contains application, saving and transitional provisions relating to amendments of this Act.","sortOrder":7},{"sectionNumber":"5","sectionType":"section","heading":"Terms and conditions of employment (Chapter 2)","content":"5  Terms and conditions of employment (Chapter 2)\n\n (1) Chapter 2 provides for terms and conditions of employment of national system employees.\n\n (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.\n\nNote: 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).\n\nMain terms and conditions\n\n (3) Part 2‑2 contains the National Employment Standards, which are minimum terms and conditions that apply to all national system employees.\n\n (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.\n\n (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.\n\n (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 the FWC if certain conditions are met.\n\n (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.\n\nOther terms and conditions\n\n (8) In addition, other terms and conditions of employment for national system employees include those:\n\n (a) provided by a national minimum wage order (see Part 2‑6) or an equal remuneration order (see Part 2‑7); and\n\n (aa) provided by Part 2‑7A (which deals with regulated labour hire arrangement orders); and\n\n (b) provided by Part 2‑9 (which deals with the frequency and method of making payments to employees, deductions from payments, high‑income employees, prohibiting pay secrecy, limitations on fixed term contracts, employee right to disconnect and preservation of employer‑funded paid parental leave).","sortOrder":8},{"sectionNumber":"6","sectionType":"section","heading":"Rights and responsibilities of employees, employers, organisations etc. (Chapter 3)","content":"6  Rights and responsibilities of employees, employers, organisations etc. (Chapter 3)\n\n (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).\n\n (2) Part 3‑1 provides general workplace protections. It:\n\n (a) protects workplace rights; and\n\n (b) protects freedom of association and involvement in lawful industrial activities; and\n\n (c) provides other protections, including protection from discrimination.\n\n (3) Part 3‑2 deals with unfair dismissal of national system employees, and the granting of remedies when that happens.\n\n (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.\n\n (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.\n\n (6) Part 3‑5 allows a national system employer to stand down a national system employee without pay in certain circumstances.\n\n (6A) Part 3‑5A prohibits sexual harassment of workers, persons seeking to become workers and persons conducting businesses or undertakings, and provides for the granting of remedies when that happens.\n\n (7) Part 3‑6 deals with other rights and responsibilities of national system employers in relation to:\n\n (a) termination of employment; and\n\n (b) keeping records and giving payslips; and\n\n (c) advertising rates of pay.\n\n (8) Part 3‑7 deals with offences in relation to corrupting benefits.","sortOrder":9},{"sectionNumber":"6A","sectionType":"section","heading":"Rights and responsibilities of regulated workers, regulated businesses, organisations etc. (Chapter 3A)","content":"6A  Rights and responsibilities of regulated workers, regulated businesses, organisations etc. (Chapter 3A)\n\n (1) Chapter 3A sets out rights and responsibilities of certain regulated workers who perform work under services contracts, and of certain regulated businesses, organisations and others.\n\n (2) Part 3A‑1 has the core provisions for the Chapter. It deals with compliance with the instruments made under the Chapter (minimum standards orders, minimum standards guidelines and collective agreements) and interaction issues.\n\n (3) Part 3A‑2 is about minimum standards orders and minimum standards guidelines, which can be made for certain regulated workers.\n\n (4) Part 3A‑3 deals with unfair termination and unfair deactivation of certain regulated workers, and the granting of remedies when that happens.\n\n (5) Part 3A‑4 is about collective agreements. A collective agreement is made between a regulated business and an organisation. It provides terms and conditions for those regulated workers to whom it applies.\n\n (6) Part 3A‑5 is about unfair contract terms of services contracts. It provides for certain remedies if a services contract includes an unfair term.","sortOrder":10},{"sectionNumber":"6B","sectionType":"section","heading":"Rights and responsibilities of persons in a road transport contractual chain","content":"6B  Rights and responsibilities of persons in a road transport contractual chain\n\n (1) Chapter 3B sets out rights and responsibilities of persons in a road transport contractual chain.\n\n (2) Part 3B‑1 has the core provisions for the Chapter. It deals with compliance with road transport contractual chain orders made under the Chapter and interaction issues.\n\n (3) Part 3B‑2 is about road transport contractual chain orders and road transport contractual chain guidelines, which can be made for certain persons in a road transport contractual chain.","sortOrder":11},{"sectionNumber":"7","sectionType":"section","heading":"Compliance and enforcement (Chapter 4)","content":"7  Compliance and enforcement (Chapter 4)\n\n (1) Chapter 4 provides for compliance with, and enforcement of, this Act.\n\n (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:\n\n (a) deals with applications for orders for contraventions of civil remedy provisions; and\n\n (b) sets out the orders the courts can make in relation to a contravention of a civil remedy provision.\n\n (3) Part 4‑2 is about the jurisdiction and powers of the courts in relation to matters arising under this Act.","sortOrder":12},{"sectionNumber":"8","sectionType":"section","heading":"Administration (Chapter 5)","content":"8  Administration (Chapter 5)\n\n (1) Chapter 5 provides for the administration of this Act by establishing the Fair Work Commission and the Office of the Fair Work Ombudsman.\n\n (2) Part 5‑1 is about the Fair Work Commission. It:\n\n (a) establishes and confers functions on the FWC; and\n\n (b) sets out how matters before the FWC are to be conducted (for example, how the FWC is to deal with applications made to it).\n\n (3) Part 5‑2 is about the Office of the Fair Work Ombudsman. It:\n\n (a) establishes and confers functions on the Fair Work Ombudsman; and\n\n (b) confers functions and powers on Fair Work Inspectors.","sortOrder":13},{"sectionNumber":"9","sectionType":"section","heading":"Miscellaneous (Chapter 6)","content":"9  Miscellaneous (Chapter 6)\n\n (1) Chapter 6 is a collection of miscellaneous matters that relate to the other Chapters.\n\n (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.\n\n (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.\n\n (4) Part 6‑3 extends provisions of the National Employment Standards relating to unpaid parental leave, paid family and domestic violence leave and notice of termination to employees not otherwise covered by the provisions.\n\n (4A) Part 6‑3A provides for the transfer of terms and conditions of employment that are provided for in particular State industrial instruments if there is a transfer of business from a non‑national system employer that is a State public sector employer of the State to a national system employer.\n\n (5) Part 6‑4 contains provisions to give effect, or further effect, to certain international agreements relating to termination of employment.\n\n (5A) Part 6‑4A contains special provisions about TCF outworkers.\n\n (5B) Part 6‑4B allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying.\n\n (6) Part 6‑5 deals with miscellaneous matters such as delegations and regulations.","sortOrder":14},{"sectionNumber":"9A","sectionType":"section","heading":"Application, transitional and saving provisions for amendments (Schedules)","content":"9A  Application, transitional and saving provisions for amendments (Schedules)\n\n  The Schedules contain application, transitional and saving provisions relating to amendments of this Act.\n\nNote: Application, transitional and saving provisions relating to the enactment of this Act, and States becoming referring States, are in the Transitional Act.","sortOrder":15},{"sectionNumber":"Part 1-2","sectionType":"part","heading":"Definitions","content":"Part 1‑2—Definitions","sortOrder":16},{"sectionNumber":"10","sectionType":"section","heading":"Guide to this Part","content":"10  Guide to this Part\n\nThis Part is about the terms that are defined in this Act.\n\nDivision 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.\n\nDivision 3 has definitions relating to the meanings of employee and employer.\n\nDivision 4 has some other definitions that apply across this Act.","sortOrder":18},{"sectionNumber":"11","sectionType":"section","heading":"Meanings of employee and employer","content":"11  Meanings of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":19},{"sectionNumber":"12","sectionType":"section","heading":"The Dictionary","content":"12  The Dictionary\n\n  In this Act:\n\naccommodation arrangement: see subsections 521A(1) and (2).\n\naction includes an omission.\n\nadoption‑related leave: see subsection 67(5).\n\nadverse action: see section 342.\n\naffected employees:\n\n (a) for a variation of an enterprise agreement under Subdivision A of Division 7 of Part 2‑4: see subsection 207(2); and\n\n (b) for a variation of an enterprise agreement under Subdivision AA, AB or AC of Division 7 of Part 2‑4 to add an employer to a supported bargaining agreement or a cooperative workplace agreement: means an employee employed by the employer at the time the variation is made who will be covered by the agreement if the variation is approved (or made) by the FWC; and\n\n (c) for a variation of an enterprise agreement under Subdivision AD of Division 7 of Part 2‑4 (variation of single interest employer agreement to add employer and employees): see paragraphs 216D(1)(b) and 216DB(1)(b); and\n\n (d) for a variation of an enterprise agreement under Subdivision AE of Division 7 of Part 2‑4 (variation of multi‑enterprise agreement to remove employer and employees): see paragraph 216E(1)(b).\n\naffected employer:\n\n (a) in relation to an entry under Subdivision A of Division 2 of Part 3‑4: see subsection 482(2); and\n\n (aa) in relation to an entry under section 483A other than a designated outworker terms entry: see paragraph 483B(3)(a); and\n\n (ab) in relation to a designated outworker terms entry under section 483A: see paragraph 483B(3)(b); and\n\n (b) in relation to an entry in accordance with Division 3 of Part 3‑4: see paragraph 495(2)(a); and\n\n (c) in relation to a State or Territory OHS right to inspect or otherwise access an employee record: see paragraph 495(2)(b).\n\naffected member certificate: see subsection 520(1).\n\nAge Discrimination Commissioner means the Age Discrimination Commissioner appointed under the Age Discrimination Act 2004.\n\naggrieved person in relation to an alleged contravention of Division 2 of Part 3‑5A (prohibiting sexual harassment in connection with work): see subsection 527F(1).\n\nagreed terms for a workplace determination: see section 274.\n\nagreed to in relation to a termination of an enterprise agreement: see section 221.\n\nalternative protected rate of pay order: see subsection 306M(2).\n\nannual rate of an employee’s guaranteed annual earnings: see subsection 330(3).\n\nannual wage review: see subsection 285(1).\n\nanti‑discrimination law: see subsection 351(3).\n\napparent indirectly responsible entity: see subsection 789CC(2).\n\napplicable agreement‑derived long service leave terms: see subsection 113(5).\n\napplicable award‑derived long service leave terms: see subsection 113(3).\n\napplicable time: see subsection 23B(2).\n\napplication or complaint under another law: see subsection 732(2).\n\napplies:\n\n (a) in relation to a modern award: see section 47; and\n\n (b) in relation to an enterprise agreement: see section 52; and\n\n (ba) in relation to a minimum standards order: see section 536JD; and\n\n (bb) in relation to a collective agreement: see section 536JL; and\n\n (bc) in relation to a road transport contractual chain order: see section 536NR; and\n\n (c) in relation to a copied State instrument: see section 768AM.\n\napplies to employment generally: see subsection 26(4).\n\nappointment:\n\n (a) of a bargaining representative means an appointment of a bargaining representative under paragraph 176(1)(c) or (d) or 177(c); and\n\n (b) of an insolvency practitioner includes a person becoming an insolvency practitioner:\n\n (i) by taking possession or control of property; or\n\n (ii) by operation of law.\n\nappropriate safe job: see subsection 81(3).\n\napproved by the FWC, in relation to an enterprise agreement, means approved by the FWC under section 186 or 189.\n\narbitrated protected rate of pay order: see subsection 306Q(1).\n\nART President or Deputy President means the President, a Judicial Deputy President or a Non‑Judicial Deputy President of the Administrative Review Tribunal.\n\nassociated entity has the meaning given by section 50AAA of the Corporations Act 2001.\n\nassociated regulated business for a regulated worker: see subsection 350B(5).\n\nassociated with an underpayment amount: see subsection 546A(1).\n\nAustralia means the Commonwealth of Australia and, when used in a geographical sense, includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory.\n\nAustralian‑based employee: see subsections 35(2) and (3).\n\nAustralian employer: see subsection 35(1).\n\nAustralian government: see subsection 794A(2).\n\nAustralian ship means a ship that has Australian nationality under section 29 of the Shipping Registration Act 1981.\n\nauthority documents: see subsection 489(3).\n\navailable parental leave period: see subsection 75(2).\n\naward/agreement free employee means a national system employee to whom neither a modern award nor an enterprise agreement applies.\n\naward covered employee for an enterprise agreement: see subsection 193(4).\n\naward modernisation process means:\n\n (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 Transitional Act; and\n\n (b) the enterprise instrument modernisation process provided for by Part 2 of Schedule 6 of the Transitional Act; and\n\n (c) the State reference public sector transitional award modernisation process provided for by Part 2 of Schedule 6A of the Transitional Act.\n\nballot paper: see subsection 455(2).\n\nBankruptcy Act 1966: a reference to the Bankruptcy Act 1966 or a provision of that Act is a reference to that Act or provision:\n\n (a) applying of its own force; or\n\n (b) applying, with or without modifications, because of a law of the Commonwealth, a State or a Territory.\n\nbankruptcy trustee of a person means the trustee under the Bankruptcy Act 1966 of the person’s estate in bankruptcy.\n\nbargaining order: see subsection 229(1).\n\nbargaining representative for a proposed enterprise agreement: see sections 176 and 177.\n\nbargaining services: see subsection 353(3).\n\nbargaining services fee: see subsection 353(2).\n\nbase rate of pay: see section 16.\n\nbirth‑related leave: see subsection 67(4).\n\nbreastfeeding:\n\n (a) includes the act of expressing milk; and\n\n (b) includes:\n\n (i) an act of breastfeeding; and\n\n (ii) breastfeeding over a period of time.\n\nbullied at work: see subsection 789FD(1).\n\ncash or in kind payment: see subsection 536F(4).\n\ncasual employee: see section 15A.\n\nchild of a person: see subsection 17(1).\n\ncivil remedy provision: see subsections 539(1) and (3).\n\nclose relative: see subsection 106B(3).\n\ncollective agreement: see section 15B.\n\nCommissioner means a Commissioner of the FWC.\n\ncommon requirements in relation to industrial action: see section 413.\n\nCommonwealth means the Commonwealth of Australia and, when used in a geographical sense, includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory.\n\nCommonwealth authority means:\n\n (a) a body corporate established for a public purpose by or under a law of the Commonwealth; or\n\n (b) a body corporate:\n\n (i) incorporated under a law of the Commonwealth or a State or a Territory; and\n\n (ii) in which the Commonwealth has a controlling interest.\n\nCommonwealth Ombudsman means the person for the time being holding office as Ombudsman under the Ombudsman Act 1976.\n\nCommonwealth outworker entity means an entity that is an outworker entity otherwise than because of section 30F or 30Q.\n\nNote: Sections 30F and 30Q extend the meaning of outworker entity in relation to a referring State.\n\nCommonwealth place means a place referred to in paragraph 52(i) of the Constitution, other than the seat of government.\n\ncompassionate leave means compassionate leave to which a national system employee is entitled under section 104.\n\ncomplaint about an FWC Member means a complaint referred to in paragraph 581A(1)(a) or section 641A.\n\ncomplaint handler means:\n\n (a) the President; or\n\n (b) a person who is authorised by the President under subsection 581A(3); or\n\n (c) a person who is a member of a body that is authorised by the President under subsection 581A(3).\n\ncompliance powers: see section 703.\n\ncompliance purposes: see subsection 706(1).\n\nconduct includes an omission.\n\nconduct of a protected action ballot: see subsection 458(5).\n\nconnected 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:\n\n (a) at the time the arrangement is made, one or more parties to the arrangement is in a Territory in Australia;\n\n (b) the work is to be performed in such a Territory;\n\n (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;\n\n (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.\n\nNote: In this context, Australia includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see the definition of Australia).\n\nconsistent with the Digital Labour Platform Deactivation Code: see subsection 536LJ(3).\n\nconsistent with the Road Transport Industry Termination Code: see subsection 536LN(3).\n\nconsistent with the Small Business Fair Dismissal Code: see subsection 388(2).\n\nconsolidation order:\n\n (a) in relation to a transferring employee—see subsection 768BD(1); and\n\n (b) in relation to a non‑transferring employee—see subsection 768BG(1).\n\nconstitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.\n\nconstitutionally‑covered business: see subsection 789FD(3).\n\nconstitutionally‑covered entity: see subsection 338(2).\n\nconstitutional trade or commerce means trade or commerce:\n\n (a) between Australia and a place outside Australia; or\n\n (b) among the States; or\n\n (c) between a State and a Territory; or\n\n (d) between 2 Territories; or\n\n (e) within a Territory.\n\nconsultation notice for a collective agreement: see subsection 536ML(1).\n\ncontinental shelf means:\n\n (a) the continental shelf (as defined in the Seas and Submerged Lands Act 1973) of Australia (including its external Territories); and\n\n (b) the Greater Sunrise special regime area (as defined in the Seas and Submerged Lands Act 1973).\n\ncontinuous service has a meaning affected by section 22.\n\ncontractor high income threshold: see section 15C.\n\ncontravene this Act, or a provision of this Act, includes contravene any of the following:\n\n (a) a civil remedy provision;\n\n (b) a provision of this Act that creates an offence;\n\n (c) a related offence provision.\n\ncooperation agreement: see subsection 717B(1).\n\ncooperative workplace agreement: a multi‑enterprise agreement is a cooperative workplace agreement if there was no supported bargaining authorisation or single interest employer authorisation in operation in relation to the agreement immediately before the agreement was made.\n\ncopied State award: see subsection 768AI(1).\n\ncopied State collective employment agreement: see subsection 768AK(4).\n\ncopied State employment agreement: see subsection 768AK(1).\n\ncopied State individual employment agreement: see subsection 768AK(5).\n\ncopied State instrument: see section 768AH.\n\ncorporate MySuper product: see subsection 23A(3).\n\nCorporations Act 2001: the reference to the Corporations Act 2001 in the definitions of insolvency practitioner and liquidator in this section is a reference to that Act:\n\n (a) applying of its own force; or\n\n (b) applying, with or without modifications, because of a law of the Commonwealth, a State or a Territory.\n\ncoverage terms:\n\n (a) in relation to a modern award (other than a modern enterprise award): see section 143; and\n\n (b) in relation to a modern enterprise award: see section 143A; and\n\n (c) in relation to a State reference public sector modern award: see section 143B.\n\ncovered employment instrument means:\n\n (a) an enterprise agreement; or\n\n (b) a workplace determination; or\n\n (c) a determination under section 24 of the Public Service Act 1999 that applies to a class of APS employees in an Agency (within the meaning of that Act); or\n\n (d) an instrument made under any other law of the Commonwealth (other than this Act), or of a State or a Territory, that provides for the terms and conditions of employment for a class of national system employees of:\n\n (i) the Commonwealth or a State or Territory; or\n\n (ii) an authority of the Commonwealth or of a State or Territory; or\n\n (e) any other instrument relating to the employment of a class of national system employees that:\n\n (i) is made under a law of the Commonwealth (other than this Act) or a State or Territory; and\n\n (ii) is prescribed by the regulations.\n\ncovers:\n\n (a) in relation to a modern award: see section 48; and\n\n (b) in relation to an enterprise agreement: see section 53; and\n\n (c) in relation to a workplace determination: see section 277; and\n\n (ca) in relation to a minimum standards order: see section 536JE; and\n\n (cb) in relation to minimum standards guidelines: see section 536JG; and\n\n (cc) in relation to a collective agreement: see section 536JM; and\n\n (cd) in relation to a road transport contractual chain order: see section 536NS; and\n\n (ce) in relation to road transport contractual chain guidelines: see section 536NU; and\n\n (d) in relation to a copied State instrument: see section 768AN.\n\nday of placement: see subsection 67(6).\n\ndeactivated: see section 536LG.\n\nde facto partner of a person means:\n\n (a) another person who, although not legally married to the first person, lives with the first person in a relationship as a couple on a genuine domestic basis (whether the first person and the other person are of the same sex or different sexes); or\n\n (b) a former de facto partner (within the meaning of paragraph (a)) of the first person.\n\ndefault fund employee: see subsection 149C(2).\n\ndefault fund term: see subsection 149C(2).\n\nDefault Superannuation List: see subsection 156B(1).\n\ndeferral declaration, in relation to a minimum standards order: see subsection 536KQA(1).\n\ndeferral declaration, in relation to a road transport contractual chain order: see subsection 536PU(1).\n\ndeferral determination, in relation to a road transport minimum standards order: see subsection 536KQH(1).\n\ndeferral determination, in relation to a road transport contractual chain order: see subsection 536QA(1).\n\ndefined benefit member has the meaning given by the Superannuation Guarantee (Administration) Act 1992.\n\ndelegates’ rights term means a term in a fair work instrument that provides for the exercise of the rights of workplace delegates.\n\nNote: The rights of workplace delegates are set out in section 350C, and a delegates’ rights term must provide at least for the exercise of those rights.\n\nDeputy President means a Deputy President of the FWC.\n\ndesignated emergency management body: see subsections 195A(4) and (5).\n\ndesignated 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:\n\n (a) a term that deals with the registration of an employer or outworker entity;\n\n (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;\n\n (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;\n\n (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;\n\n (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;\n\n (f) any other terms prescribed by the regulations.\n\ndesignated outworker terms entry: see subsection 483A(5).\n\ndigital labour platform: see section 15L.\n\nDigital Labour Platform Deactivation Code means the code made under section 536LJ.\n\ndigital labour platform operator: see section 15M.\n\ndigital platform work: see section 15N.\n\ndirectly, when used in relation to TCF work: see section 17A.\n\nDisability Discrimination Commissioner means the Disability Discrimination Commissioner appointed under the Disability Discrimination Act 1992.\n\ndiscriminatory term of an enterprise agreement: see section 195.\n\ndismissal remedy bargaining order application: see subsection 726(2).\n\ndismissed: see section 386.\n\nearnings: see subsections 332(1) and (2).\n\neligible community service activity: see section 109.\n\neligible protected action ballot agent: see subsection 468A(1).\n\neligible State or Territory court means one of the following courts:\n\n (a) a District, County or Local Court;\n\n (b) a magistrates court;\n\n (c) the Industrial Relations Court of South Australia;\n\n (ca) the Industrial Court of New South Wales;\n\n (d) any other State or Territory court that is prescribed by the regulations.\n\nemergency application, in relation to an application for a road transport contractual chain order, or an application for a determination varying or revoking a road transport contractual chain order: see subsections 536PEA(1) and (2).\n\nemployee is defined in the first Division of each Part (other than Part 1‑1) in which the term appears.\n\nNote 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.\n\nNote 2: If the term has its ordinary meaning, see further subsections 15(1), 30E(1) and 30P(1).\n\nNote 3: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).\n\nemployee A, in relation to a transfer of business referred to in Part 6‑3A: see subsections 768BD(1) and 768BG(1).\n\nemployee claim action: see section 409 and paragraph 471(4A)(c).\n\nemployee couple: 2 national system employees are an employee couple if each of the employees is the spouse or de facto partner of the other.\n\nemployee‑like worker: see section 15P.\n\nemployee‑like worker collective agreement: see subsection 536MK(4).\n\nemployee‑like worker guidelines: see subsection 536KR(2).\n\nemployee‑like worker minimum standards order: see subsection 536JY(2).\n\nemployee organisation means an organisation of employees.\n\nemployee record, in relation to an employee, means:\n\n (a) something that is an employee record, in relation to the employee, for the purposes of the Privacy Act 1988; or\n\n (b) in the case of a TCF contract outworker who is taken to be an employee by Division 2 of Part 6‑4A of this Act—something that would be an employee record, in relation to the outworker, for the purposes of the Privacy Act 1988, if the outworker were an employee for the purposes of that Act.\n\nemployee response action: see section 410 and paragraph 471(4A)(d).\n\nemployee 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.\n\nemployer is defined in the first Division of each Part (other than Part 1‑1) in which the term appears.\n\nNote 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.\n\nNote 2: If the term has its ordinary meaning, see further subsections 15(2), 30E(2) and 30P(2).\n\nNote 3: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).\n\nemployer MySuper product: see subsection 23A(1B).\n\nemployer organisation means an organisation of employers.\n\nemployer response action: see section 411.\n\nemploying authority: see subsection 795(6).\n\nend of the minimum bargaining period: see subsection 235(5).\n\nengage in conduct means:\n\n (a) do an act; or\n\n (b) omit to perform an act.\n\nengages in industrial activity: see section 347.\n\nenterprise means a business, activity, project or undertaking.\n\nenterprise agreement means:\n\n (a) a single‑enterprise agreement; or\n\n (b) a multi‑enterprise agreement.\n\nentry notice: see subsection 487(2).\n\nentry permit: see section 512.\n\nequal remuneration for work of equal or comparable value: see subsection 302(2).\n\nNote: See also subsections 302(3A) to (3C) and (4) and (4A) for matters relevant to the meaning of equal remuneration for work of equal or comparable value.\n\nequal remuneration order: see subsection 302(1).\n\nexclusive economic zone means the exclusive economic zone (as defined in the Seas and Submerged Lands Act 1973) of Australia (including its external Territories).\n\nexemption certificate: see subsection 519(1).\n\nexempt public sector superannuation scheme has the meaning given by the Superannuation Industry (Supervision) Act 1993.\n\nExpert Panel means an Expert Panel constituted under section 620.\n\nExpert Panel Member means an Expert Panel Member of the FWC.\n\nextended notice of termination provisions: see subsection 759(3).\n\nextended paid family and domestic violence leave provisions: see subsection 757B(4).\n\nextended parental leave provisions: see subsection 744(3).\n\nFair Work Commission or FWC means the body continued in existence by section 575.\n\nFair Work Information Statement: see subsection 124(1).\n\nFair Work Inspector means:\n\n (a) a person appointed as a Fair Work Inspector under section 700; or\n\n (b) the Fair Work Ombudsman in his or her capacity as a Fair Work Inspector under section 701.\n\nfair work instrument means:\n\n (a) a modern award; or\n\n (b) an enterprise agreement; or\n\n (c) a workplace determination; or\n\n (d) an FWC order, including a minimum standards order or a road transport contractual chain order, but not including minimum standards guidelines or road transport contractual chain guidelines, even if the guidelines are made by order.\n\nfamily and domestic violence: see subsection 106B(2).\n\nFederal Court means the Federal Court of Australia.\n\nFinance Minister means the Minister administering the Public Governance, Performance and Accountability Act 2013.\n\nfirst employer, in relation to a transfer of employment: see subsection 22(7).\n\nfirst stage criteria: see section 156F.\n\nfirst stage test: see section 156Q.\n\nfixed 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.\n\nFixed Term Contract Information Statement: see subsection 333J(1).\n\nflexibility term:\n\n (a) in relation to a modern award—see subsection 144(1); and\n\n (b) in relation to an enterprise agreement—see subsection 202(1).\n\nflexible day: see subsection 74(3C).\n\nflexible unpaid parental leave: see subsections 72A(1) and (2A).\n\nflight 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.\n\nfranchise has the meaning given by the Corporations Act 2001.\n\nfranchisee entity of a franchise: see subsection 558A(1).\n\nFull Bench means a Full Bench of the FWC constituted under section 618.\n\nfull deferral declaration, in relation to a minimum standards order: see subsection 536KQA(2).\n\nfull deferral declaration, in relation to a road transport contractual chain order: see subsection 536PU(2).\n\nfull deferral determination, in relation to a road transport minimum standards order: see subsection 536KQJ(2).\n\nfull deferral determination, in relation to a road transport contractual chain order: see subsection 536QB(2).\n\nfull rate of pay: see section 18.\n\nfull suspension declaration, in relation to a minimum standards order: see subsection 536KQD(2).\n\nfull suspension declaration, in relation to a road transport contractual chain order: see subsection 536PX(2).\n\nfull suspension determination, in relation to a road transport minimum standards order: see subsection 536KQP(2).\n\nfull suspension determination, in relation to a road transport contractual chain order: see subsection 536QG(2).\n\nFWC: see Fair Work Commission.\n\nFWC Member means the President, a Vice President, a Deputy President, a Commissioner or an Expert Panel Member.\n\nFWO notice: see subsection 712A(1).\n\ngender identity has the meaning given by the Sex Discrimination Act 1984.\n\ngeneral building and construction work: see subsection 23B(1).\n\nGeneral Manager means the General Manager of the FWC.\n\ngeneral protections court application: see subsection 368(4).\n\ngeneral protections FWC application: see subsection 727(2).\n\ngeneral State industrial law: see subsection 26(3).\n\ngenuine redundancy: see section 389.\n\ngood faith bargaining requirements: see section 228.\n\ngoverning body of an agency of the Commonwealth: see subsection 794B(5).\n\ngreenfields agreement: see subsection 172(4).\n\nguaranteed period for a guarantee of annual earnings: see section 331.\n\nguarantee of annual earnings: see subsection 330(1).\n\nguarantee of termination entitlements: see subsection 226A(1).\n\nhandle a complaint about an FWC Member means do one or more of the following acts relating to the complaint:\n\n (a) consider the complaint;\n\n (b) investigate the complaint;\n\n (c) report on an investigation of the complaint;\n\n (d) deal with a report of an investigation of the complaint;\n\n (e) dispose of the complaint;\n\n (f) refer the complaint to a person or body.\n\nhigh income employee: see section 329.\n\nhigh income threshold: see section 333.\n\nhost employment instrument: see subsection 306E(6).\n\nILO means the International Labour Organization.\n\nimmediate family of a person means:\n\n (a) a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the person; or\n\n (b) a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the person.\n\nin a road transport contractual chain: see section 15RA.\n\nindependent 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.\n\nindependent contractor is not confined to an individual.\n\nindirectly, when used in relation to TCF work: see section 17A.\n\nindirectly responsible entity, in relation to TCF work performed by a TCF outworker: see subsections 789CA(3), (4) and (5).\n\nindividual flexibility arrangement:\n\n (a) in relation to a modern award—see subsection 144(1); and\n\n (b) in relation to an enterprise agreement—see paragraph 202(1)(a).\n\nindustrial action: see section 19.\n\nindustrial action related workplace determination: see subsection 266(1).\n\nindustrial association means:\n\n (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\n\n (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\n\n (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;\n\nand includes:\n\n (d) a branch of such an association; and\n\n (e) an organisation; and\n\n (f) a branch of an organisation.\n\nindustrial body means:\n\n (a) the FWC; or\n\n (b) a court or commission (however described) performing or exercising, under an industrial law, functions and powers corresponding to those conferred on the FWC by this Act; or\n\n (c) a court or commission (however described) performing or exercising, under a workplace law, functions and powers corresponding to those conferred on the FWC by the Registered Organisations Act.\n\nindustrial law means:\n\n (a) this Act; or\n\n (b) the Registered Organisations Act; or\n\n (c) a law of the Commonwealth, however designated, that regulates the relationships between employers and employees; or\n\n (d) a State or Territory industrial law.\n\nindustry‑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.\n\nInfrastructure Minister means the Minister administering the Infrastructure Australia Act 2008.\n\ninsolvency practitioner for an employer means:\n\n (a) a liquidator of the employer; or\n\n (b) an administrator of the employer appointed under the Corporations Act 2001; or\n\n (c) a restructuring practitioner for the employer appointed under that Act; or\n\n (d) a person appointed as a receiver of property of the employer; or\n\n (e) a person who has possession or control of property of the employer for the purpose of enforcing:\n\n (i) a charge; or\n\n (ii) a mortgage; or\n\n (iii) a lien; or\n\n (iv) a pledge; or\n\n (v) a security interest, within the meaning of the Personal Property Securities Act 2009, to which that Act applies, other than a transitional security interest within the meaning of that Act; or\n\n (f) a bankruptcy trustee of the employer.\n\ninspector means a Fair Work Inspector.\n\ninterim application period: see paragraph 156N(2)(b).\n\nintersex status has the meaning given by the Sex Discrimination Act 1984.\n\nintractable bargaining declaration: see section 234.\n\nintractable bargaining workplace determination: see section 269.\n\ninvolved in: see section 550.\n\nirregularity, in relation to the conduct of a protected action ballot: see subsection 458(6).\n\njunior employee means a national system employee who is under 21.\n\njury service pay: see subsection 111(6).\n\njury service summons: see subsection 111(7).\n\nkeeping in touch day: see subsections 79A(2) and (3).\n\nlaw enforcement officer has the same meaning as in subsection 30K(1).\n\nlawyer means a person who is admitted to the legal profession by a Supreme Court of a State or Territory.\n\nliquidator means a liquidator appointed (provisionally or otherwise) under the Corporations Act 2001.\n\nlocal government employee has the same meaning as in subsection 30K(1).\n\nlocal government employer has the same meaning as in subsection 30K(1).\n\nlock out: see subsection 19(3).\n\nmade:\n\n (a) in relation to an enterprise agreement: see section 182; and\n\n (b) in relation to a variation of an enterprise agreement under Subdivision A of Division 7 of Part 2‑4 (variation of enterprise agreements by employers and employees): see section 209; and\n\n (c) in relation to a variation of an enterprise agreement under Subdivision AA of Division 7 of Part 2‑4 (variation of supported bargaining agreement to add employer and employees (with consent)): see subsection 216A(4); and\n\n (d) in relation to a variation of an enterprise agreement under Subdivision AC of Division 7 of Part 2‑4 (variation of cooperative workplace agreement to add employer and employees): see subsection 216C(4); and\n\n (e) in relation to a variation of an enterprise agreement under Subdivision AD of Division 7 of Part 2‑4 (variation of single interest employer agreement to add employer and employees): see subsection 216D(5); and\n\n (f) in relation to a variation of an enterprise agreement under Subdivision AE of Division 7 of Part 2‑4 (variation of multi‑enterprise agreement to remove employer and employees): see subsection 216E(7).\n\nmagistrates court means:\n\n (a) a court constituted by a police, stipendiary or special magistrate; or\n\n (b) a court constituted by an industrial magistrate; or\n\n (ba) the Local Court of New South Wales; or\n\n (c) the Local Court of the Northern Territory.\n\nmajority support determination: see subsection 236(1).\n\nmaritime employee means a person who is, or whose occupation is that of, a master as defined in subsection 14(1) of the Navigation Act 2012, a seafarer as so defined or a pilot as so defined.\n\nmedical certificate means a certificate signed by a medical practitioner.\n\nmedical 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.\n\nmembership action: see subsection 350(3).\n\nmembers’ voluntary winding up: see subsection 121(5).\n\nminimum employment period: see section 383.\n\nminimum standards guidelines: see section 15D.\n\nminimum standards objective: see section 536JX.\n\nminimum standards order: see section 15E.\n\nminimum wages objective: see subsection 284(1).\n\nmiscarriage means a spontaneous loss of an embryo or fetus before a period of gestation of 20 weeks.\n\nmiscellaneous modern award: see subsection 163(4).\n\nmodel consultation term: see subsection 205(3).\n\nmodel flexibility term: see subsection 202(5).\n\nmodern award means a modern award made under Part 2‑3.\n\nmodern award minimum wages: see subsection 284(3).\n\nmodern award powers: see subsection 134(2).\n\nmodern awards objective: see subsection 134(1).\n\nmodern enterprise award: see subsection 168A(2).\n\nmodern enterprise awards objective: see subsection 168B(1).\n\nmodifications includes additions, omissions and substitutions.\n\nmulti‑enterprise agreement means an enterprise agreement made as referred to in subsection 172(3).\n\nMySuper product: see subsection 23A(1).\n\nnamed employer award: see subsection 312(2).\n\nNational Employment Standards: see subsection 61(3).\n\nnational minimum wage order means a national minimum wage order made in an annual wage review.\n\nnational system employee: see section 13.\n\nNote 1: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.\n\nNote 2: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).\n\nnational system employer: see section 14.\n\nNote 1: Sections 30D and 30N extend the meaning of national system employer in relation to a referring State.\n\nNote 2: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).\n\nnew employer:\n\n (a) in relation to a transfer of business referred to in Part 2‑8—see subsection 311(1); and\n\n (b) in relation to a transfer of business referred to in Part 6‑3A—see subsection 768AD(1).\n\nnominal expiry date:\n\n (a) of an enterprise agreement approved under section 186, means the date specified in the agreement as its nominal expiry date; or\n\n (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\n\n (c) of a workplace determination, means the date specified in the determination as its nominal expiry date; or\n\n (d) of a copied State employment agreement: see subsection 768AO(5).\n\nnon‑excluded matters: see subsection 27(2).\n\nnon‑member record or document: see subsection 482(2A).\n\nnon‑monetary benefits: see subsection 332(3).\n\nnon‑national system employee means an employee who is not a national system employee.\n\nnon‑national system employer means an employer that is not a national system employer.\n\nnon‑transferring employee:\n\n (a) in relation to a transfer of business referred to in Part 2‑8—see subsection 314(2); and\n\n (b) in relation to a transfer of business referred to in Part 6‑3A—see subsection 768BG(2).\n\nnotification time for a proposed enterprise agreement: see subsection 173(2).\n\nnotified negotiation period for a proposed single‑enterprise agreement that is a greenfields agreement: see section 178B.\n\nnotional flexible period: see subsection 72A(6).\n\nobjectionable emergency management term of an enterprise agreement: see section 195A.\n\nobjectionable term means a term that:\n\n (a) requires, has the effect of requiring, or purports to require or have the effect of requiring; or\n\n (b) permits, has the effect of permitting, or purports to permit or have the effect of permitting;\n\neither of the following:\n\n (c) a contravention of Part 3‑1 (which deals with general protections);\n\n (d) the payment of a bargaining services fee.\n\noccupier, of premises, includes a person in charge of the premises.\n\noffence against this Act, or a particular provision of this Act, includes a reference to an offence against a related offence provision.\n\nNote: See also section 11.6 of the Criminal Code.\n\noffice, in an industrial association, means:\n\n (a) an office of president, vice president, secretary or assistant secretary of the association; or\n\n (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:\n\n (i) the management of the affairs of the association;\n\n (ii) the determination of policy for the association;\n\n (iii) the making, alteration or rescission of rules of the association;\n\n (iv) the enforcement of rules of the association, or the performance of functions in relation to the enforcement of such rules; or\n\n (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:\n\n (i) existing policy of the association; or\n\n (ii) decisions concerning the association; or\n\n (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\n\n (e) the office of a person holding (whether as trustee or otherwise) property:\n\n (i) of the association; or\n\n (ii) in which the association has a beneficial interest.\n\nOffice of the Fair Work Ombudsman means the body established by section 696.\n\nofficer, of an industrial association, means:\n\n (a) an official of the association; or\n\n (b) a delegate or other representative of the association.\n\nofficial, of an industrial association, means a person who holds an office in, or is an employee of, the association.\n\nold employer, in relation to a transfer of business: see subsection 311(1).\n\nold State employer: see subsection 768AD(1).\n\nopt out notice: see subsection 15AB(8).\n\nordinary hours of work of an award/agreement free employee: see section 20.\n\norganisation means an organisation registered under the Registered Organisations Act.\n\noriginal State agreement, in relation to a copied State employment agreement: see paragraph 768AK(1)(a).\n\noriginal State award, in relation to a copied State award: see paragraph 768AI(1)(a).\n\noutworker means:\n\n (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\n\n (b) an individual who, for the purpose of a contract for the provision of services, performs work:\n\n (i) in the textile, clothing or footwear industry; and\n\n (ii) at residential premises or at other premises that would not conventionally be regarded as being business premises.\n\noutworker entity means any of the following entities, other than in the entity’s capacity as a national system employer:\n\n (a) a constitutional corporation;\n\n (b) the Commonwealth;\n\n (c) a Commonwealth authority;\n\n (d) a body corporate incorporated in a Territory;\n\n (e) a person so far as:\n\n (i) the person arranges for work to be performed for the person (either directly or indirectly); and\n\n (ii) the work is of a kind that is often performed by outworkers; and\n\n (iii) the arrangement is connected with a Territory.\n\nNote: Sections 30F and 30Q extend the meaning of outworker entity in relation to a referring State.\n\noutworker terms: see subsection 140(3).\n\npaid agent, in relation to a matter before the FWC, means an agent (other than a bargaining representative) who charges or receives a fee to represent a person in the matter.\n\npaid annual leave means paid annual leave to which a national system employee is entitled under section 87.\n\npaid family and domestic violence leave means paid family and domestic violence leave to which a national system employee is entitled under section 106A.\n\npaid no safe job leave means paid no safe job leave to which a national system employee is entitled under section 81A.\n\npaid personal/carer’s leave means paid personal/carer’s leave to which a national system employee is entitled under section 96.\n\npaid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).\n\npart deferral declaration, in relation to a minimum standards order: see subsection 536KQA(2).\n\npart deferral declaration, in relation to a road transport contractual chain order: see subsection 536PU(2).\n\npart deferral determination, in relation to a road transport minimum standards order: see subsection 536KQJ(2).\n\npart deferral determination, in relation to a road transport contractual chain order: see subsection 536QB(2).\n\npartial work ban: see subsection 470(3).\n\npart of a single enterprise: see subsection 168A(6).\n\npart suspension declaration, in relation to a minimum standards order: see subsection 536KQD(2).\n\npart suspension declaration, in relation to a road transport contractual chain order: see subsection 536PX(2).\n\npart suspension determination, in relation to a road transport minimum standards order: see subsection 536KQP(2).\n\npart suspension determination, in relation to a road transport contractual chain order: see subsection 536QG(2).\n\npasses the better off overall test:\n\n (a) in relation to an enterprise agreement that is not a greenfields agreement: see subsection 193(1); and\n\n (b) in relation to a greenfields agreement: see subsection 193(3).\n\npattern bargaining: see section 412.\n\npeak 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.\n\npecuniary penalty order means an order under subsection 546(1).\n\npenalty unit has the meaning given by section 4AA of the Crimes Act 1914.\n\nperiod of employment: see section 384.\n\npermissible occasion: see sections 102 and 104.\n\npermit holder means a person who holds an entry permit.\n\npermit qualification matters: see subsection 513(1).\n\npermitted matters in relation to an enterprise agreement: see subsection 172(1).\n\npieceworker: see section 21.\n\npilot, in relation to an aircraft, includes a pilot in command, co‑pilot or pilot of any other description.\n\npost‑declaration negotiating period: see subsection 235A(1).\n\npost‑industrial action negotiating period: see subsection 266(3).\n\npremises includes:\n\n (a) any land, building, structure, mine, mine working, aircraft, ship, vessel, vehicle or place; and\n\n (b) a part of premises (including premises referred to in paragraph (a)).\n\npre‑parental leave position: an employee’s pre‑parental leave position, in relation to a particular period of unpaid parental leave, is:\n\n (a) unless paragraph (b) applies, the position the employee held before starting the period of unpaid parental leave; or\n\n (b) if, before starting the period of unpaid parental leave, the employee:\n\n (i) was transferred to a safe job because of her pregnancy; or\n\n (ii) reduced her working hours due to her pregnancy;\n\n  the position the employee held immediately before that transfer or reduction.\n\nprescribed State industrial authority means a State board, court, tribunal, body or official prescribed by the regulations.\n\nPresident means the President of the FWC.\n\nprimary party: see subsection 15RA(2).\n\nprocedural rules means the procedural rules of the FWC made under section 609.\n\nprocess or proceedings under a workplace law or workplace instrument: see subsection 341(2).\n\nprohibited beneficiary: see subsection 536F(5).\n\nprotected action ballot means a ballot conducted under Division 8 of Part 3‑3.\n\nprotected action ballot agent for a protected action ballot means the person or entity that conducts the protected action ballot.\n\nprotected action ballot order: see subsection 437(1).\n\nprotected employee for a termination of an enterprise agreement under section 226: see subsection 226A(2).\n\nprotected from unfair deactivation: see section 536LD.\n\nprotected from unfair dismissal: see section 382.\n\nprotected from unfair termination: see section 536LE.\n\nprotected industrial action: see section 408.\n\nprotected rate of pay: see section 306F.\n\npublic holiday: see section 115.\n\npublic sector employment: see subsections 795(4) and (5).\n\npublic sector employment law: see subsection 40(3).\n\nreasonably foreseeable employee for an enterprise agreement: see subsection 193(5).\n\nrecognised emergency management body: see subsection 109(3).\n\nrecurring extended exemption period: see subsection 306K(2).\n\nreduction in take‑home pay: see subsection 768BR(3).\n\nre‑employment time, in relation to a transferring employee covered by a transfer of business referred to in Part 6‑3A: see subsection 768AE(3).\n\nregistered employee association means:\n\n (a) an employee organisation; or\n\n (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.\n\nRegistered Organisations Act means the Fair Work (Registered Organisations) Act 2009.\n\nregistered organisations officer or employee: see section 536E.\n\nregular casual employee: a national system employee of a national system employer is a regular casual employee at a particular time if, at that time:\n\n (a) the employee is a casual employee; and\n\n (b) the employee has been employed by the employer on a regular and systematic basis.\n\nregulated business: see section 15F.\n\nregulated employee: see subsection 306E(5).\n\nregulated host: see section 306C.\n\nregulated labour hire arrangement order: see subsection 306E(1).\n\nregulated road transport contractor: see section 15Q.\n\nregulated worker: see section 15G.\n\nreinstatement includes appointment by an associated entity in the circumstances provided for in an order to which subsection 391(1A) applies.\n\nrelated body corporate has the meaning given by the Corporations Act 2001.\n\nrelated offence provision means:\n\n (a) section 6 of the Crimes Act 1914; or\n\n (b) a provision of Part 2.4 of the Criminal Code;\n\nto the extent that the offence created by the provision relates to an offence against this Act other than an offence mentioned in paragraph (a) or (b).\n\nrelated party has the same meaning as in the Registered Organisations Act.\n\nrelevant affairs, in relation to a registered organisations officer or employee, means the affairs of:\n\n (a) if the registered organisations officer or employee is an officer or employee of an organisation—the organisation and any branch of the organisation, including the affairs of the members of the organisation or any of those branches; or\n\n (b) if the registered organisations officer or employee is an officer or employee of a branch of an organisation—the branch, including the affairs of the members of the branch.\n\nrelevant belief: a person has a relevant belief in relation to a complaint about an FWC Member if:\n\n (a) the person believes that if one or more of the circumstances that gave rise to the complaint were substantiated, the circumstances would justify considering:\n\n (i) terminating the appointment of the FWC Member in accordance with section 641; or\n\n (ii) (other than if the FWC Member is the President) suspending the FWC Member from office in accordance with section 642; or\n\n (b) the person believes that if one or more of the circumstances that gave rise to the complaint were substantiated, the circumstances may:\n\n (i) adversely affect, or have adversely affected, the performance of duties by the FWC Member; or\n\n (ii) have the capacity to adversely affect, or have adversely affected, the reputation of the FWC.\n\nNote: Sections 641 and 642 deal with termination of appointment and suspension on the grounds of misbehaviour or incapacity.\n\nrelevant 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.\n\nremoved person: see subsections 177A(1) and (2).\n\nrespondent in relation to an alleged contravention of Division 2 of Part 3‑5A (prohibiting sexual harassment in connection with work): see subsection 527F(1).\n\nresponsible agency in relation to a contravention of a civil remedy provision by an Australian government or the commission of an offence by the Commonwealth: see subsection 794C(4).\n\nresponsible franchisor entity for a franchisee entity: see subsection 558A(2).\n\nresponsible person, in relation to TCF work performed by a TCF outworker: see subsection 789CA(1).\n\nright to disconnect term means a term in a modern award that provides for the exercise of an employee’s rights set out in subsections 333M(1) and (2).\n\nNote: Section 333M deals with the right to disconnect.\n\nrisk period: see subsections 81(1) and (5).\n\nRoad Transport Advisory Group: see section 40E.\n\nroad transport business: see section 15R.\n\nroad transport collective agreement: see subsection 536MK(5).\n\nroad transport contractual chain: see section 15RA.\n\nroad transport contractual chain guidelines: see section 536QP.\n\nroad transport contractual chain order: see section 536PD.\n\nroad transport employee‑like worker: see section 15RB.\n\nroad transport guidelines: see subsection 536KR(3).\n\nroad transport industry: see section 15S.\n\nroad transport industry contractual chain participant: see section 40H.\n\nRoad Transport Industry Termination Code means the code made under subsection 536LN(1).\n\nroad transport minimum standards order: see subsection 536JY(3).\n\nsafety 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:\n\n (a) subsection 61(2) (which deals with the National Employment Standards); or\n\n (b) subsection 139(1) (which deals with modern awards).\n\nSchedule of Approved Employer MySuper Products: see paragraph 156L(1)(a).\n\nschool 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 attend school.\n\nschool‑based apprentice means a national system employee who is an apprentice to whom a school‑based training arrangement applies.\n\nschool‑based trainee means a national system employee (other than a school‑based apprentice) to whom a school‑based training arrangement applies.\n\nschool‑based training arrangement means a training arrangement undertaken as part of a course of secondary education.\n\nscope order: see subsection 238(1).\n\nsecondary party: see subsection 15RA(2).\n\nsecond employer, in relation to a transfer of employment: see subsection 22(7).\n\nsecond stage test:\n\n (a) in relation to a standard MySuper product—see subsection 156H(2); and\n\n (b) in relation to an employer MySuper product—see section 156S.\n\nsection 15AA commencement: see subsection 15AB(8).\n\nsection 179A disclosable benefit: see subsection 179A(4).\n\nsection 179 disclosable benefit: see subsection 179(6).\n\nselected civil remedy provision means a provision referred to in column 1 of item 1, 2, 3, 4, 5, 7, 8, 9, 10, 10A, 10F, 11A, 29, 29AA, 29A, 32, 33, 33A, 34 or 34AAA in the table in subsection 539(2).\n\nserious contravention has the meaning given by section 557A.\n\nserious misconduct has the meaning prescribed by the regulations.\n\nservice: see section 22.\n\nservices contract: see section 15H.\n\nsetting modern award minimum wages: see subsection 284(4).\n\nSex Discrimination Commissioner means the Sex Discrimination Commissioner appointed under the Sex Discrimination Act 1984.\n\nsexual harassment court application: see subsection 527T(2).\n\nsexual harassment FWC application: see subsection 734A(3).\n\nsexually harass has the meaning given by section 28A of the Sex Discrimination Act 1984.\n\nNote: Other parts of speech and grammatical forms of “sexually harass” (for example, “sexual harassment”) have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).\n\nship includes a barge, lighter, hulk or other vessel.\n\nsingle enterprise: see section 168A.\n\nsingle‑enterprise agreement means an enterprise agreement made as referred to in subsection 172(2).\n\nsingle interest employer agreement: a multi‑enterprise agreement is a single interest employer agreement if a single interest employer authorisation was in operation in relation to the agreement immediately before the agreement was made.\n\nsingle interest employer authorisation: see subsection 248(1).\n\nsmall business employer: see section 23.\n\nSmall Business Fair Dismissal Code means the Small Business Fair Dismissal Code declared under subsection 388(1).\n\nsmall claims proceedings means proceedings dealt with as small claims proceedings under section 548.\n\nspecial measure to achieve equality: see subsections 195(4) to (6).\n\nspouse includes a former spouse.\n\nstandard application period: see paragraph 156N(2)(a).\n\nstandard MySuper product: see subsection 23A(1A).\n\nState award: see section 768AJ.\n\nState collective employment agreement: see subsection 768AL(3).\n\nState employment agreement: see subsections 768AL(1) and (2).\n\nState individual employment agreement: see subsection 768AL(4).\n\nState industrial instrument means an award, an agreement (whether individual or collective), or another industrial instrument or order, that:\n\n (a) is made under, or recognised by, a law of a State that is a State or Territory industrial law; and\n\n (b) determines terms and conditions of employment.\n\nState industrial law means a law of a State that is a State or Territory industrial law.\n\nstate of mind: see subsection 793(3).\n\nState or Territory industrial law: see subsection 26(2).\n\nState or Territory OHS law: see subsection 494(3).\n\nState or Territory OHS right: see subsection 494(2).\n\nState public sector employee, of a State, means:\n\n (a) an employee of a State public sector employer of the State; or\n\n (b) any other non‑national system employee in the State of a kind specified in the regulations;\n\nand includes a law enforcement officer of the State but does not include a local government employee of the State.\n\nState public sector employer, of a State, means a non‑national system employer that is:\n\n (a) the State, the Governor of the State or a Minister of the State; or\n\n (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\n\n (c) a body corporate in which the State has a controlling interest; or\n\n (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\n\n (e) any other employer in the State of a kind specified in the regulations;\n\nand includes a non‑national system employer of a law enforcement officer of the State but does not include a local government employer of the State.\n\nState reference public sector employee: see subsection 168E(3).\n\nState reference public sector employer: see subsection 168E(4).\n\nState reference public sector modern award: see subsection 168E(2).\n\nState reference public sector modern awards objective: see section 168F.\n\nstep‑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.\n\nstillborn: see subsection 77A(2).\n\nstop sexual harassment order: see paragraph 527F(1)(a).\n\nsuperannuation fund means a superannuation fund or a superannuation scheme.\n\nsupported bargaining agreement: a multi‑enterprise agreement is a supported bargaining agreement if a supported bargaining authorisation was in operation in relation to the agreement immediately before the agreement was made.\n\nsupported bargaining authorisation: see subsection 242(1).\n\nsuspension declaration, in relation to a minimum standards order: see subsection 536KQD(1).\n\nsuspension declaration, in relation to a road transport contractual chain order: see subsection 536PX(1).\n\nsuspension determination, in relation to a road transport minimum standards order: see subsection 536KQN(1).\n\nsuspension determination, in relation to a road transport contractual chain order: see subsection 536QF(1).\n\ntailored MySuper product: see subsection 23A(2).\n\ntake‑home pay: see subsection 768BR(2).\n\ntake‑home pay order: see subsection 768BS(1).\n\nTCF award means an instrument prescribed by the regulations for the purposes of this definition.\n\nTCF award worker: see subsection 483A(1A).\n\nTCF contract outworker: see subsection 789BB(2).\n\nTCF outwork code: see section 789DA.\n\nTCF outworker means an outworker in the textile, clothing or footwear industry.\n\nTCF work means work in the textile, clothing or footwear industry.\n\nterminated: see section 536LL.\n\ntermination of industrial action instrument: see subsection 266(2).\n\ntermination time, in relation to a transferring employee covered by a transfer of business referred to in Part 6‑3A: see subsection 768AE(2).\n\nterritorial sea, in relation to Australia, has the meaning given by Division 1 of Part II of the Seas and Submerged Lands Act 1973.\n\nTerritory employer: see subsection 338(4).\n\ntest time: see subsection 193(6).\n\nthis Act includes the regulations.\n\ntime‑sensitive road transport contractual chain order means a road transport contractual chain order made or varied as a result of an emergency application.\n\ntrade and commerce employer: see subsection 338(3).\n\ntraining 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.\n\ntransferable instrument: see subsection 312(1).\n\ntransfer of business:\n\n (a) for a transfer of business between a national system employer and another national system employer—see subsection 311(1); and\n\n (b) for a transfer of business between a non‑national system employer that is a State public sector employer and a national system employer—see subsection 768AD(1).\n\ntransfer of employment: see subsection 22(7).\n\ntransfer of employment between associated entities: see paragraph 22(8)(a).\n\ntransfer of employment between non‑associated entities: see paragraph 22(8)(b).\n\ntransferring employee:\n\n (a) in relation to a transfer of business referred to in Part 2‑8—see subsection 311(2); and\n\n (b) in relation to a transfer of business referred to in Part 6‑3A—see subsection 768AE(1).\n\ntransferring work:\n\n (a) in relation to a transfer of business referred to in Part 2‑8—see paragraph 311(1)(c); and\n\n (b) in relation to a transfer of business referred to in Part 6‑3A—see paragraph 768AD(1)(c).\n\nTransitional Act means the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.\n\ntransport arrangement: see subsections 521B(1) and (2).\n\nunderpayment amount:\n\n (a) in relation to a contravention of a civil remedy provision—see subsection 546A(2); and\n\n (b) in relation to the commission of an offence against subsection 327A(1)—see subsection 327A(7).\n\nunfair dismissal application: see subsection 729(2).\n\nunfairly deactivated: see section 536LF.\n\nunfairly dismissed: see section 385.\n\nunfairly terminated: see section 536LK.\n\nunfairness ground: see section 536JR.\n\nunlawful term of an enterprise agreement: see section 194.\n\nunlawful termination court application: see subsection 776(4).\n\nunlawful termination FWC application: see subsection 730(2).\n\nunpaid amount, in relation to TCF work performed by a TCF outworker: see subsections 789CA(1) and (4).\n\nunpaid carer’s leave means unpaid carer’s leave to which a national system employee is entitled under section 102.\n\nunpaid no safe job leave means unpaid no safe job leave to which a national system employee is entitled under section 82A.\n\nunpaid parental leave means unpaid parental leave to which a national system employee is entitled under section 70.\n\nunpaid pre‑adoption leave means unpaid pre‑adoption leave to which a national system employee is entitled under section 85.\n\nunpaid special parental leave means unpaid special parental leave to which a national system employee is entitled under section 80.\n\nvarying modern award minimum wages: see subsection 284(4).\n\nVice President means a Vice President of the FWC.\n\nvocational placement means a placement that is:\n\n (a) undertaken with an employer for which a person is not entitled to be paid any remuneration; and\n\n (b) undertaken as a requirement of an education or training course; and\n\n (c) authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory.\n\nvoluntary emergency management activity: see subsection 109(2).\n\nVoluntary Small Business Wage Compliance Code means the Voluntary Small Business Wage Compliance Code declared under subsection 327B(1).\n\nvolunteer of a designated emergency management body: see subsection 195A(6).\n\nvoting request order: see subsections 240A(1), (2) and (4).\n\nwaters above the continental shelf means any part of the area in, on or over the continental shelf.\n\nwaterside 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.\n\nworker:\n\n (aa) in Part 3‑5A—see subsection 527D(2); and\n\n (a) in Part 6‑4B—see subsection 789FC(2); and\n\n (b) otherwise—has its ordinary meaning.\n\nworker in a business or undertaking: see subsection 527D(3).\n\nworking day means a day that is not a Saturday, a Sunday or a public holiday.\n\nworkplace delegate: see subsection 350C(1).\n\nworkplace determination means:\n\n (b) an industrial action related workplace determination; or\n\n (c) an intractable bargaining workplace determination.\n\nworkplace instrument means an instrument that:\n\n (a) is made under, or recognised by, a workplace law; and\n\n (b) concerns the relationships between:\n\n (i) employers and employees; or\n\n (ii) digital labour platform operators and employee‑like workers; or\n\n (iii) road transport businesses and regulated road transport contractors; or\n\n (iv) persons in a road transport contractual chain.\n\nworkplace law means:\n\n (a) this Act; or\n\n (b) the Registered Organisations Act; or\n\n (c) the Independent Contractors Act 2006; or\n\n (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).\n\nworkplace right: see subsection 341(1).\n\nwork value reasons: see subsection 157(2A).","sortOrder":21},{"sectionNumber":"13","sectionType":"section","heading":"Meaning of national system employee","content":"13  Meaning of national system employee\n\n  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.\n\nNote: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.","sortOrder":23},{"sectionNumber":"14","sectionType":"section","heading":"Meaning of national system employer","content":"14  Meaning of national system employer\n\n (1) A national system employer is:\n\n (a) a constitutional corporation, so far as it employs, or usually employs, an individual; or\n\n (b) the Commonwealth, so far as it employs, or usually employs, an individual; or\n\n (c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or\n\n (d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:\n\n (i) a flight crew officer; or\n\n (ii) a maritime employee; or\n\n (iii) a waterside worker; or\n\n (e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or\n\n (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.\n\nNote 1: In this context, Australia includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see the definition of Australia in section 12).\n\nNote 2: Sections 30D and 30N extend the meaning of national system employer in relation to a referring State.\n\nParticular employers declared not to be national system employers\n\n (2) Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:\n\n (a) that employer:\n\n (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\n\n (ii) is a body established for a local government purpose by or under a law of a State or Territory; or\n\n (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\n\n (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\n\n (c) an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer.\n\n (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.\n\nEndorsement of declarations\n\n (4) The Minister may, in writing:\n\n (a) endorse, in relation to an employer, a declaration referred to in paragraph (2)(b); or\n\n (b) revoke or amend such an endorsement.\n\n (5) An endorsement, revocation or amendment under subsection (4) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the endorsement, revocation or amendment.\n\nNote: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the endorsement, revocation or amendment (see regulations made for the purposes of paragraph 54(2)(b) of that Act).\n\nEmployers that cannot be declared\n\n (6) Subsection (2) does not apply to an employer that:\n\n (a) generates, supplies or distributes electricity; or\n\n (b) supplies or distributes gas; or\n\n (c) provides services for the supply, distribution or release of water; or\n\n (d) operates a rail service or a port;\n\nunless 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.\n\n (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.","sortOrder":24},{"sectionNumber":"14A","sectionType":"section","heading":"Transitional matters relating to employers etc. becoming, or ceasing to be, national system employers etc.","content":"14A  Transitional matters relating to employers etc. becoming, or ceasing to be, national system employers etc.\n\n (1) The regulations may make provisions of a transitional, application or saving nature in relation to any of the following:\n\n (a) an employer ceasing to be a national system employer because subsection 14(2) applies to the employer;\n\n (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);\n\n (c) an employer becoming a national system employer because subsection 14(2) ceases to apply to the employer;\n\n (d) an individual becoming a national system employee because an employer becomes a national system employer for the reason referred to in paragraph (c).\n\n (2) Without limiting subsection (1), regulations made for the purpose of that subsection may:\n\n (a) modify provisions of this Act or the Transitional Act; or\n\n (b) provide for the application (with or without modifications) of provisions of this Act, or the Transitional Act, to matters to which they would otherwise not apply.","sortOrder":25},{"sectionNumber":"15","sectionType":"section","heading":"Ordinary meanings of employee and employer","content":"15  Ordinary meanings of employee and employer\n\n (1) A reference in this Act to an employee with its ordinary meaning:\n\n (a) includes a reference to a person who is usually such an employee; and\n\n (b) does not include a person on a vocational placement.\n\nNote: Subsections 30E(1) and 30P(1) extend the meaning of employee in relation to a referring State.\n\n (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.\n\nNote: Subsections 30E(2) and 30P(2) extend the meaning of employer in relation to a referring State.","sortOrder":26},{"sectionNumber":"15AA","sectionType":"section","heading":"Determining the ordinary meanings of employee and employer","content":"15AA  Determining the ordinary meanings of employee and employer\n\n (1) For the purposes of this Act, whether an individual is an employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person.\n\n (2) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person:\n\n (a) the totality of the relationship between the individual and the person must be considered; and\n\n (b) in considering the totality of the relationship between the individual and the person, regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice.\n\nNote: This section was enacted as a response to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.\n\n (3) Subsections (1) and (2) do not apply to the following provisions of this Act:\n\n (a) Divisions 2A and 2B of Part 1‑3;\n\n (b) Part 3‑1, to the extent that Part 3‑1 applies only because of the operation of section 30G or 30R.","sortOrder":27},{"sectionNumber":"15AB","sectionType":"section","heading":"Individual may elect that section 15AA does not apply","content":"15AB  Individual may elect that section 15AA does not apply\n\n (1) This section applies to a relationship between a person and an individual.\n\nPerson may notify individual before the section 15AA commencement that they may give an opt out notice\n\n (2) The person may give the individual a written notice before the section 15AA commencement stating that the individual may give the person an opt out notice, if the person considers that the relationship may, on the section 15AA commencement, become a relationship in which the person is the employer of the individual because of the operation of section 15AA.\n\nPerson may notify individual on or after the section 15AA commencement that they may give an opt out notice\n\n (3) The person may give the individual a written notice on or after the section 15AA commencement stating that the individual may give the person an opt out notice, if the person considers that the relationship may be a relationship in which the person is the employer of the individual because of the operation of section 15AA.\n\nEarnings requirement\n\n (4) The person must not give the individual a notice under subsection (2) or (3) unless the person considers that, when the notice is given, the individual’s earnings for work performed under the relationship exceed the contractor high income threshold.\n\nIndividual may give an opt out notice\n\n (5) The individual may give an opt out notice to the person, stating that the individual elects that section 15AA is not to apply to the relationship between the person and the individual:\n\n (a) if the person has given a notice to the individual under subsection (2) or (3) of this section—within 21 days of the giving of the notice; or\n\n (b) if the person has not given a notice to the individual under subsection (2) or (3) of this section—at any time after the commencement of this section.\n\n (6) The individual may give only one opt out notice in respect of the relationship.\n\nOpt out notice to include a statement about earnings\n\n (7) The opt out notice must state that the individual considers that the individual’s earnings for work performed under the relationship exceed the contractor high income threshold when the opt out notice is given.\n\nDefinitions\n\n (8) In this section, and in sections 15AC and 15AD:\n\nopt out notice means a notice under subsection (5).\n\nsection 15AA commencement means the commencement of section 15AA of this Act.\n\nNote: Section 15AA of this Act is inserted by item 237 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, which commences in accordance with item 21 of the table in subsection 2(1) of that Act.","sortOrder":28},{"sectionNumber":"15AC","sectionType":"section","heading":"Effect of an opt out notice","content":"15AC  Effect of an opt out notice\n\n (1) This section applies if an individual gives an opt out notice to a person in respect of the relationship between the person and the individual in accordance with section 15AB.\n\nOpt out notice given before the section 15AA commencement\n\n (2) If the opt out notice is given before the section 15AA commencement, and is not revoked before that commencement under section 15AD, then:\n\n (a) by force of this section, section 15AA does not start to apply to the relationship on that commencement; and\n\n (b) section 15AA does not apply to the relationship after that commencement, unless the opt out notice is revoked.\n\nOpt out notice given on or after the section 15AA commencement\n\n (3) If the opt out notice is given on or after the section 15AA commencement, then:\n\n (a) by force of this section, section 15AA ceases to apply to the relationship on the day on which the opt out notice is given; and\n\n (b) section 15AA does not apply to the relationship on or after that day, unless the opt out notice is revoked.\n\nNote: If an individual does not give an opt out notice to a person in accordance with section 15AB, section 15AA starts to apply, or continues to apply, (as applicable) to the relationship between the person and the individual.","sortOrder":29},{"sectionNumber":"15AD","sectionType":"section","heading":"Opt out notice may be revoked by an individual","content":"15AD  Opt out notice may be revoked by an individual\n\n (1) An individual who has given an opt out notice to a person may (subject to subsection (4)), at any time after giving the opt out notice, revoke the opt out notice by giving written notice (a revocation notice) to the person that the individual elects that section 15AA is to apply to the relationship between the person and the individual.\n\nRevocation before the section 15AA commencement\n\n (2) If an individual gives a revocation notice to a person before the section 15AA commencement, section 15AA applies, by force of this subsection, to the relationship between the person and the individual on and after that commencement.\n\nRevocation on or after the section 15AA commencement\n\n (3) If an individual gives a revocation notice to a person on or after the section 15AA commencement, section 15AA applies, by force of this subsection, to the relationship between the person and the individual on and after the day on which the revocation notice is given.\n\n (4) An individual may give only one revocation notice in respect of a particular relationship.","sortOrder":30},{"sectionNumber":"15A","sectionType":"section","heading":"Meaning of casual employee","content":"15A  Meaning of casual employee\n\nGeneral rule\n\n (1) An employee is a casual employee of an employer only if:\n\n (a) the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and\n\n (b) the employee would be entitled to a casual loading or a specific rate of pay for casual employees under the terms of a fair work instrument if the employee were a casual employee, or the employee is entitled to such a loading or rate of pay under the contract of employment.\n\nNote: An employee who commences employment as a casual employee remains a casual employee until the occurrence of a specified event (see subsection (5)).\n\nIndicia that apply for purposes of general rule\n\n (2) For the purposes of paragraph (1)(a), whether the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work is to be assessed:\n\n (a) on the basis of the real substance, practical reality and true nature of the employment relationship; and\n\n (b) on the basis that a firm advance commitment can be in the form of the contract of employment or, in addition to the terms of that contract, in the form of a mutual understanding or expectation between the employer and employee not rising to the level of a term of that contract (or to a variation of any such term); and\n\n (c) having regard to, but not limited to, the following considerations (which may indicate the presence, rather than an absence, of such a commitment):\n\n (i) whether there is an inability of the employer to elect to offer, or not offer, work or an inability of the employee to elect to accept or reject work (and whether this occurs in practice);\n\n (ii) whether, having regard to the nature of the employer’s enterprise, it is reasonably likely that there will be future availability of continuing work in that enterprise of the kind usually performed by the employee;\n\n (iii) whether there are full‑time employees or part‑time employees performing the same kind of work in the employer’s enterprise that is usually performed by the employee;\n\n (iv) whether there is a regular pattern of work for the employee.\n\nNote: A regular pattern of work does not of itself indicate a firm advance commitment to continuing and indefinite work. An employee who has a regular pattern of work may still be a casual employee if there is no firm advance commitment to continuing and indefinite work.\n\n (3) To avoid doubt:\n\n (a) for the purposes of paragraph (2)(b), a mutual understanding or expectation may be inferred from conduct of the employer and employee after entering into the contract of employment or from how the contract is performed; and\n\n (b) the considerations referred to in paragraph (2)(c) must all be considered but no single consideration is determinative and not all considerations necessarily need to be satisfied for an employee to be considered as other than a casual employee; and\n\n (c) a pattern of work is regular for the purposes of subparagraph (2)(c)(iv) even if it is not absolutely uniform and includes some fluctuation or variation over time (including for reasonable absences such as for illness, injury or recreation).\n\nExceptions to general rule\n\n (4) Despite subsection (1), an employee is not a casual employee of an employer if:\n\n (a) the contract of employment includes a term that provides the contract will terminate at the end of an identifiable period (whether or not the contract also includes other terms that provide for circumstances in which it may be terminated before the end of that period); and\n\n (b) the employee is a member of the academic staff or teaching staff of a higher education institution; and\n\n (c) the employee is covered by one of the following modern awards:\n\n (i) the Higher Education Industry‑Academic Staff‑Award 2020 as in force from time to time;\n\n (ii) the Higher Education Industry‑General Staff‑Award 2020 as in force from time to time; and\n\n (d) the employee is not a State public sector employee of a State within the meaning of subsection 30A(1).\n\nNote 1: A modern award covers an employee if the award is expressed to cover the employee, even if the modern award does not apply to the employee because an enterprise agreement applies to the employee in relation to that particular employment (see subsection 57(1) which deals with interaction between modern awards and enterprise agreements).\n\nNote 2: This means an employee on a fixed term contract who is not covered by paragraphs (4)(b) and (c) may be a casual employee or may be other than a casual employee, depending on whether the employee satisfies the requirements of subsections (1) to (3).\n\nEmployees engaged as casual employees remain so until the occurrence of a specified event\n\n (5) A person who commences employment as a casual employee within the meaning of subsections (1) to (4) remains a casual employee of the employer until:\n\n (a) the employee’s employment status is changed to full‑time employment or part‑time employment under Division 4A of Part 2‑2; or\n\n (b) the employee’s employment status is changed by order of the FWC under section 66MA or 739; or\n\n (c) the employee’s employment status is changed to full‑time employment or part‑time employment under the terms of a fair work instrument that applies to the employee; or\n\n (d) the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.","sortOrder":31},{"sectionNumber":"Division 3A","sectionType":"division","heading":"Definitions relating to regulated workers and persons in a road transport contractual chain","content":"Division 3A—Definitions relating to regulated workers and persons in a road transport contractual chain","sortOrder":32},{"sectionNumber":"Subdivision A","sectionType":"subdivision","heading":"General","content":"Subdivision A—General","sortOrder":33},{"sectionNumber":"15B","sectionType":"section","heading":"Meaning of collective agreement","content":"15B  Meaning of collective agreement\n\n  A collective agreement means the following:\n\n (a) an employee‑like worker collective agreement (see subsection 536MK(4));\n\n (b) a road transport collective agreement (see subsection 536MK(5)).","sortOrder":34},{"sectionNumber":"15C","sectionType":"section","heading":"Meaning of contractor high income threshold","content":"15C  Meaning of contractor high income threshold\n\n (1) Subject to this section, the contractor high income threshold is the amount prescribed by, or worked out in the manner prescribed by, the regulations.\n\n (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 contractor high income threshold.\n\n (3) If:\n\n (a) in prescribing a manner in which the contractor high income threshold is worked out, regulations made for the purposes of subsection (1) specify a particular matter or state of affairs; and\n\n (b) as a result of a change in the matter or state of affairs, the amount of the contractor 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;\n\nthe contractor high income threshold is the amount that it would be if the change had not occurred.","sortOrder":35},{"sectionNumber":"15D","sectionType":"section","heading":"Meaning of minimum standards guidelines","content":"15D  Meaning of minimum standards guidelines\n\n  Minimum standards guidelines means the following:\n\n (a) employee‑like worker guidelines (see subsection 536KR(2));\n\n (b) road transport guidelines (see subsection 536KR(3)).","sortOrder":36},{"sectionNumber":"15E","sectionType":"section","heading":"Meaning of minimum standards order","content":"15E  Meaning of minimum standards order\n\n  A minimum standards order means the following:\n\n (a) an employee‑like worker minimum standards order (see subsection 536JY(2));\n\n (b) a road transport minimum standards order (see subsection 536JY(3)).","sortOrder":37},{"sectionNumber":"15F","sectionType":"section","heading":"Meaning of regulated business","content":"15F  Meaning of regulated business\n\n  A person is a regulated business if:\n\n (a) the person is a digital labour platform operator (see section 15M); or\n\n (b) the person is a road transport business (see subsection 15R).","sortOrder":38},{"sectionNumber":"15G","sectionType":"section","heading":"Meaning of regulated worker","content":"15G  Meaning of regulated worker\n\n  A person is a regulated worker if:\n\n (a) the person is an employee‑like worker (see section 15P); or\n\n (b) the person is a regulated road transport contractor (see section 15Q).","sortOrder":39},{"sectionNumber":"15H","sectionType":"section","heading":"Meaning of services contract","content":"15H  Meaning of services contract\n\nGeneral meaning\n\n (1) A services contract is a contract for services:\n\n (a) that relates to the performance of work under the contract by an individual; and\n\n (b) that has the requisite constitutional connection specified in subsection (2) or (3).\n\nNote: Conditions or collateral arrangements relating to a services contract may be taken to be part of the services contract: see subsection (4).\n\nThe requisite constitutional connection\n\n (2) A contract for services has the requisite constitutional connection if:\n\n (a) at least one party to the contract is:\n\n (i) a constitutional corporation; or\n\n (ii) the Commonwealth or a Commonwealth authority; or\n\n (iii) a body corporate incorporated in a Territory in Australia; or\n\n (b) one or more of the following subparagraphs is satisfied:\n\n (i) the work concerned is wholly or principally to be performed in a Territory in Australia;\n\n (ii) the contract was entered into in a Territory in Australia;\n\n (iii) at least one party to the contract is a natural person who is resident in, or a body corporate that has its principal place of business in, a Territory in Australia;\n\n (iv) the work concerned is done in the course of constitutional trade or commerce.\n\nNote: In this context, Australia includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see the definition of Australia in section 12).\n\n (3) For the purposes of Part 3A‑2 (minimum standards for regulated workers), Part 3A‑3 (unfair deactivation and unfair termination) and Part 3A‑4 (collective agreements) to the extent to which those Parts relate to digital platform work, a contract for services also has the requisite constitutional connection if the contract was arranged or facilitated through or by means of a digital labour platform, where the operator of the digital labour platform is:\n\n (a) a constitutional corporation; or\n\n (b) the Commonwealth or a Commonwealth authority; or\n\n (c) a body corporate incorporated in a Territory in Australia; or\n\n (d) a natural person who is resident in, or a body corporate that has its principal place of business in, a Territory in Australia.\n\nNote: In this context, Australia includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see the definition of Australia in section 12).\n\nConditions and collateral arrangements\n\n (4) A condition or collateral arrangement that relates to a services contract is taken to be part of that services contract if, were the condition or arrangement itself a contract for services, it would have the requisite constitutional connection.","sortOrder":40},{"sectionNumber":"15J","sectionType":"section","heading":"Prospective regulated workers","content":"15J  Prospective regulated workers\n\n  A reference to a regulated worker, in relation to a services contract, includes a reference to a person who may become a regulated worker for a services contract.","sortOrder":41},{"sectionNumber":"15K","sectionType":"section","heading":"Effect of Chapter in determining whether a person is an employee or an employer","content":"15K  Effect of Chapter in determining whether a person is an employee or an employer\n\n  For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between an individual and a person for the purposes of determining:\n\n (a) whether the individual is an employee of the person within the ordinary meaning of that expression; or\n\n (b) whether the person is an employer of the individual within the ordinary meaning of that expression;\n\nthe effect upon the relationship of a minimum standards order, minimum standards guidelines or a collective agreement applying to, or covering, the individual or the person is to be disregarded.","sortOrder":42},{"sectionNumber":"15KA","sectionType":"section","heading":"Specific provision about the effect of certain provisions in determining whether a person is an employee or an employer","content":"15KA  Specific provision about the effect of certain provisions in determining whether a person is an employee or an employer\n\n (1) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between an individual and a person, any steps taken by a digital labour platform operator to comply with its obligations under any of the following in relation to the individual are to be disregarded:\n\n (a) Part 3A‑3;\n\n (b) the Digital Labour Platform Deactivation Code;\n\n (c) an order made under, or for the purposes of, Chapter 3A.\n\n (1A) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between an individual and a person, any steps taken by a road transport business to comply with its obligations under any of the following in relation to the individual are to be disregarded:\n\n (a) Part 3A‑3;\n\n (b) the Road Transport Industry Termination Code;\n\n (c) an order made under, or for the purposes of, Chapter 3A.\n\n (2) An employee‑like worker to whom an employee‑like worker minimum standards order applies in relation to particular digital platform work is not an employee of any person in relation to that work.\n\n (3) A regulated road transport contractor to whom a road transport minimum standards order applies in relation to particular work in the road transport industry is not an employee of any person in relation to that work.","sortOrder":43},{"sectionNumber":"Subdivision B","sectionType":"subdivision","heading":"Digital platform work","content":"Subdivision B—Digital platform work","sortOrder":44},{"sectionNumber":"15L","sectionType":"section","heading":"Meaning of digital labour platform","content":"15L  Meaning of digital labour platform\n\n (1) A digital labour platform means an online enabled application, website or system operated to arrange, allocate or facilitate the provision of labour services, where:\n\n (a) the operator of the application, website or system:\n\n (i) engages independent contractors directly or indirectly through or by means of the application, website or system; or\n\n (ii) acts as an intermediary for or on behalf of more than one distinct but interdependent sets of users who interact with the independent contractors or the operator via the application, website or system; and\n\n (b) any of the following processes payments referable to the work performed by the independent contractors:\n\n (i) the operator of the application, website or system;\n\n (ii) an associated entity of the operator;\n\n (iii) a person contracted, whether directly or through one or more interposed entities, by the operator or an associated entity of the operator to process the payments.\n\n (2) A digital labour platform also means an online enabled application, website or system that is prescribed by the regulations for the purposes of this subsection.\n\n (3) A digital labour platform does not include an online application, website or system prescribed by the regulations for the purposes of this subsection.\n\n (4) For the purposes of this section:\n\n (a) an online application, website or system may be specified by name or by inclusion in a specified class or specified classes;\n\n (b) an online application, website or system may be specified in respect of all forms of digital platform work, or in respect of specified forms of digital platform work.","sortOrder":45},{"sectionNumber":"15M","sectionType":"section","heading":"Meaning of digital labour platform operator","content":"15M  Meaning of digital labour platform operator\n\n  A digital labour platform operator means the operator of a digital labour platform, being an operator that enters into or facilitates a services contract under which work is performed by employee‑like workers.","sortOrder":46},{"sectionNumber":"15N","sectionType":"section","heading":"Meaning of digital platform work","content":"15N  Meaning of digital platform work\n\n (1) Digital platform work means:\n\n (a) work performed by an independent contractor, where:\n\n (i) the work is performed under a services contract through or by means of a digital labour platform, or the services contract under which the work is performed was arranged or facilitated through or by means of a digital labour platform; and\n\n (ii) payment is made for that work; or\n\n (b) work prescribed by the regulations for the purposes of this subsection.\n\n (2) Digital platform work does not include work prescribed by the regulations for the purposes of this subsection.\n\n (3) For the purposes of paragraph (1)(b) and subsection (2), work may be specified by name or by inclusion in a specified class or specified classes.","sortOrder":47},{"sectionNumber":"15P","sectionType":"section","heading":"Meaning of employee-like worker","content":"15P  Meaning of employee‑like worker\n\n (1) A person is an employee‑like worker if:\n\n (a) the person is:\n\n (i) an individual who is a party to a services contract in their capacity as an individual (other than as a principal), and performs work under the contract; or\n\n (ii) if a body corporate is a party to a services contract (other than as a principal)—an individual who is a director of the body corporate, or a member of the family of a director of a body corporate, and performs work under the contract; or\n\n (iii) if a trustee of a trust is a party to a services contract in their capacity as a trustee (other than as a principal)—an individual who is a trustee of the same trust and performs work under the contract, whether or not the individual is a party to the contract; or\n\n (iv) if a partner in a partnership is a party to a services contract in their capacity as a partner (other than as a principal)—an individual who is a partner in the same partnership and performs work under the contract, whether or not the individual is a party to the contract; and\n\n (b) the person performs all, or a significant majority, of the work to be performed under the services contract; and\n\n (c) the work that the person performs under the services contract is digital platform work; and\n\n (d) the person does not perform any work under the services contract as an employee; and\n\n (e) the person satisfies 2 or more of the following:\n\n (i) the person has low bargaining power in negotiations in relation to the services contract under which the work is performed;\n\n (ii) the person receives remuneration at or below the rate of an employee performing comparable work;\n\n (iii) the person has a low degree of authority over the performance of the work;\n\n (iv) the person has such other characteristics as are prescribed by the regulations.\n\n (2) In this Part, a reference to an independent contractor includes a reference to an individual who is an employee‑like worker within the meaning of subsection (1).\n\n (3) Regulations made for the purposes of subparagraph (1)(e)(iv) may specify that a person must have all or only one or some of the characteristics prescribed.\n\n (4) For the purposes of determining whether an individual satisfies the criteria specified in paragraph (1)(e), the effect of a minimum standards order, minimum standards guidelines or a collective agreement applying to, or covering, the individual is to be disregarded.","sortOrder":48},{"sectionNumber":"Subdivision C","sectionType":"subdivision","heading":"Road transport industry","content":"Subdivision C—Road transport industry","sortOrder":49},{"sectionNumber":"15Q","sectionType":"section","heading":"Meaning of regulated road transport contractor","content":"15Q  Meaning of regulated road transport contractor\n\n (1) A person is a regulated road transport contractor if:\n\n (a) the person is:\n\n (i) an individual who is a party to a services contract in their capacity as an individual (other than as a principal), and performs work under the contract; or\n\n (ii) if a body corporate is a party to a services contract (other than as a principal)—an individual who is a director of the body corporate, or a member of the family of a director of a body corporate, and performs work under the contract; or\n\n (iii) if a trustee of a trust is a party to a services contract in their capacity as a trustee (other than as a principal)—an individual who is a trustee of the same trust and performs work under the contract, whether or not the individual is a party to the contract; or\n\n (iv) if a partner in a partnership is a party to a services contract in their capacity as a partner (other than as a principal)—an individual who is a partner in the same partnership and performs work under the contract, whether or not the individual is a party to the contract; and\n\n (b) the person performs all, or a significant majority, of the work to be performed under the services contract; and\n\n (c) the person does not perform any work under the services contract as an employee; and\n\n (d) the work performed under the services contract is work in the road transport industry; and\n\n (e) the person is not an employee‑like worker who performs work in the road transport industry under the services contract.\n\n (2) In this Part, a reference to an independent contractor includes a reference to an individual who is a regulated road transport contractor within the meaning of subsection (1).","sortOrder":50},{"sectionNumber":"15R","sectionType":"section","heading":"Meaning of road transport business","content":"15R  Meaning of road transport business\n\n (1) A person is a road transport business if the person:\n\n (a) receives services under a services contract, where the services contract provides for the performance of work in the road transport industry; or\n\n (b) is a constitutional corporation, or is included in a class of constitutional corporations, prescribed by the regulations for the purposes of this paragraph.\n\n (2) For the purposes of paragraph (1)(b), a business or undertaking may be specified by name or by inclusion in a specified class or specified classes.","sortOrder":51},{"sectionNumber":"15RA","sectionType":"section","heading":"Meanings of road transport contractual chain and in a road transport contractual chain","content":"15RA  Meanings of road transport contractual chain and in a road transport contractual chain\n\n (1) A road transport contractual chain means a chain or series of contracts or arrangements:\n\n (a) under which work is performed for a party to the first contract or arrangement in the chain or series by a regulated road transport contractor or a road transport employee‑like worker under a services contract, or by an employee; and\n\n (b) in which at least one party to the first contract or arrangement in the chain or series is a constitutional corporation.\n\n (2) A person is in a road transport contractual chain if:\n\n (a) the person is a party (a primary party) to the first contract or arrangement in the road transport contractual chain; or\n\n (b) the person is a party (a secondary party) to a subsequent contract or arrangement in the road transport contractual chain, being a contract or arrangement under which work is performed for the secondary party by a regulated road transport contractor or a road transport employee‑like worker under a services contract, or by an employee; or\n\n (c) the person is a regulated road transport contractor or a road transport employee‑like worker who performs work under a services contract in the road transport contractual chain.\n\n (3) Despite subsection (2), an individual is not in a road transport contractual chain in relation to:\n\n (a) the delivery of a thing to the individual by a regulated road transport contractor, a road transport employee‑like worker or an employee, if the delivery of the thing is solely for the individual’s private or domestic purposes; or\n\n (b) the consignment of a thing by the individual for delivery by a regulated road transport contractor, a road transport employee‑like worker or an employee if the consignment of the thing is solely for the individual’s private or domestic purposes; or\n\n (c) work performed by the individual in the capacity of an employee; or\n\n (d) work performed by the individual in an industry prescribed by the regulations for the purposes of this subsection.\n\n (4) For the purposes of paragraph (3)(d):\n\n (a) an industry may be specified by name or by inclusion in a specified class or specified classes; and\n\n (b) an industry may be specified in respect of work in the road transport industry, or in respect of specified forms of such work.\n\n (5) For the purposes of subsection (1), work performed by a regulated road transport contractor or a road transport employee‑like worker under a services contract, or by an employee, in a chain or series of contracts or arrangements:\n\n (a) is taken to be performed for the person who engaged the regulated road transport contractor, road transport employee‑like worker or employee; and\n\n (b) is also taken to be performed for each party to a contract or arrangement in the chain or series of contracts or arrangements.\n\n (6) This section also has the effect that it would have if it only applied to a secondary party to the extent that rights conferred on, and obligations imposed on, the secondary party by Chapter 3B have, or are likely to have, an impact on the business of the constitutional corporation that is a primary party to the first contract or arrangement in a road transport contractual chain.\n\n (7) This section also has the effect that it would have if it only applied to a secondary party to a contract or arrangement in a road transport contractual chain that:\n\n (a) is a constitutional corporation; or\n\n (b) is a party to a contract with a constitutional corporation; or\n\n (c) is a national system employer to the extent that it engages national system employees to perform work in the road transport industry; or\n\n (d) is a regulated business; or\n\n (e) is engaged in constitutional trade or commerce; or\n\n (f) is incorporated in a Territory; or\n\n (g) is prescribed by the regulations.","sortOrder":52},{"sectionNumber":"15RB","sectionType":"section","heading":"Meaning of a road transport employee-like worker","content":"15RB  Meaning of a road transport employee‑like worker\n\n  A road transport employee‑like worker means an employee‑like worker who performs work in the road transport industry.","sortOrder":53},{"sectionNumber":"15S","sectionType":"section","heading":"Meaning of road transport industry","content":"15S  Meaning of road transport industry\n\n (1) The road transport industry means:\n\n (a) the road transport and distribution industry within the meaning of the Road Transport and Distribution Award 2020 as in force on 1 July 2024, with such modifications (if any) as are prescribed by regulations for the purposes of this paragraph; and\n\n (b) the long distance operations in the private road transport industry within the meaning of the Road Transport (Long Distance Operations) Award 2020 as in force on 1 July 2024, with such modifications (if any) as are prescribed by regulations for the purposes of this paragraph; and\n\n (c) the waste management industry within the meaning of the Waste Management Award 2020 as in force on 1 July 2024, with such modifications (if any) as are prescribed by regulations for the purposes of this paragraph; and\n\n (d) the cash in transit industry within the meaning of the Transport (Cash in Transit) Award 2020 as in force on 1 July 2024, with such modifications (if any) as are prescribed by regulations for the purposes of this paragraph; and\n\n (e) the passenger vehicle transportation industry within the meaning of clause 4.2 of the Passenger Vehicle Transportation Award 2020, not including paragraph 4.2(c)), as in force on 1 July 2024, with such modifications (if any) as are prescribed by regulations for the purposes of this paragraph; and\n\n (f) any other industry (however described) prescribed by the regulations for the purposes of this paragraph.\n\n (2) For the purposes of paragraph (1)(f), the regulations may prescribe an industry by applying, adopting or incorporating any matter contained in a modern award as in force or existing from time to time.","sortOrder":54},{"sectionNumber":"Division 4","sectionType":"division","heading":"Other definitions","content":"Division 4—Other definitions","sortOrder":55},{"sectionNumber":"16","sectionType":"section","heading":"Meaning of base rate of pay","content":"16  Meaning of base rate of pay\n\nGeneral meaning\n\n (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:\n\n (a) incentive‑based payments and bonuses;\n\n (b) loadings;\n\n (c) monetary allowances;\n\n (d) overtime or penalty rates;\n\n (e) any other separately identifiable amounts.\n\nMeaning for pieceworkers in relation to entitlements under National Employment Standards\n\n (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:\n\n (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;\n\n (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;\n\n (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.\n\nMeaning for pieceworkers for the purpose of section 206\n\n (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.\n\nNote: Section 206 deals with an employee’s base rate of pay under an enterprise agreement.","sortOrder":56},{"sectionNumber":"17","sectionType":"section","heading":"Meaning of child of a person","content":"17  Meaning of child of a person\n\n (1) A child of a person includes:\n\n (a) someone who is a child of the person within the meaning of the Family Law Act 1975; and\n\n (b) an adopted child or step‑child of the person.\n\nIt does not matter whether the child is an adult.\n\n (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.\n\nNote: 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, compassionate leave and paid family and domestic violence leave):\n\n(a) the other person is the parent of the child, and so is a member of the child’s immediate family; and\n\n(b) the child, and any other children, of the other person are siblings, and so are members of each other’s immediate family.","sortOrder":57},{"sectionNumber":"17A","sectionType":"section","heading":"Meaning of directly and indirectly (in relation to TCF work)","content":"17A  Meaning of directly and indirectly (in relation to TCF work)\n\n (1) If there is a chain or series of 2 or more arrangements for the supply or production of goods produced by TCF work performed by a person (the worker), the following provisions have effect:\n\n (a) the work is taken to be performed directly for the person (the direct principal) who employed or engaged the worker (and the direct principal is taken to have arranged for the work to be performed directly for the direct principal);\n\n (b) the work is taken to be performed indirectly for each other person (an indirect principal) who is a party to any of the arrangements in the chain or series (and each indirect principal is taken to have arranged for the work to be performed indirectly for the indirect principal).\n\n (2) This section does not limit the circumstances in which TCF work is performed directly or indirectly for a person (or in which a person arranges for TCF work to be performed directly or indirectly for the person).\n\n (3) This section does not apply for the purposes of Division 2A or 2B of Part 1‑3.","sortOrder":58},{"sectionNumber":"18","sectionType":"section","heading":"Meaning of full rate of pay","content":"18  Meaning of full rate of pay\n\nGeneral meaning\n\n (1) The full rate of pay of a national system employee is the rate of pay payable to the employee, including all the following:\n\n (a) incentive‑based payments and bonuses;\n\n (b) loadings;\n\n (c) monetary allowances;\n\n (d) overtime or penalty rates;\n\n (e) any other separately identifiable amounts.\n\nMeaning for pieceworkers in relation to entitlements under National Employment Standards\n\n (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:\n\n (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;\n\n (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;\n\n (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.","sortOrder":59},{"sectionNumber":"19","sectionType":"section","heading":"Meaning of industrial action","content":"19  Meaning of industrial action\n\n (1) Industrial action means action of any of the following kinds:\n\n (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;\n\n (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;\n\n (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;\n\n (d) the lockout of employees from their employment by the employer of the employees.\n\nNote: 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.\n\n (2) However, industrial action does not include the following:\n\n (a) action by employees that is authorised or agreed to by the employer of the employees;\n\n (b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;\n\n (c) action by an employee if:\n\n (i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and\n\n (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.\n\n (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.\n\nNote: In this section, employee and employer have their ordinary meanings (see section 11).","sortOrder":60},{"sectionNumber":"19A","sectionType":"section","heading":"Meaning of industrial action: regulated workers","content":"19A  Meaning of industrial action: regulated workers\n\n (1) This section applies to a regulated worker and to a regulated business if:\n\n (a) the regulated worker is covered by a minimum standards order, or is mentioned in an application for a minimum standards order as a regulated worker who would be covered by the order if it is made; and\n\n (b) the regulated business is covered by the same minimum standards order, or is mentioned in an application for the same minimum standards order as a regulated business that would be covered by the order if it is made; and\n\n (c) if the regulated business is a digital labour platform operator—the regulated worker is an employee‑like worker:\n\n (i) from whom the digital labour platform operator receives services under a services contract; or\n\n (ii) who performs services under a services contract that was arranged or facilitated through or by means of the digital labour platform operated by the digital labour platform operator; and\n\n (d) if the regulated business is a road transport business—the regulated road transport contractor performs work under the services contract for the regulated business.\n\n (2) Industrial action, in relation to the regulated worker and the regulated business, means action of any of the following kinds:\n\n (a) the performance of work under the services contract by the regulated worker in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by the regulated worker, the result of which is a restriction or limitation on, or a delay in, the performance of the work;\n\n (b) a ban, limitation or restriction on the performance of work under the services contract by the regulated worker or on the acceptance of or offering for work by the regulated worker;\n\n (c) a failure or refusal by the regulated worker to attend for work under the services contract or, if the regulated worker attends for work, a refusal to perform any work at all;\n\n (d) the lockout of the regulated worker by the regulated business.\n\n (3) The action referred to in paragraph (2)(a), (b) or (c) must be directed against the regulated business (whether or not the regulated business is a party to the services contract).\n\n (4) However, industrial action does not include the following:\n\n (a) action by a regulated worker that is authorised or agreed to by the regulated business that is covered by the same minimum standards order as the regulated worker;\n\n (b) action by a regulated business referred to in paragraph (2)(d) that is authorised or agreed to by, or on behalf of, regulated workers covered by the same minimum standards order as the regulated business;\n\n (c) action by the regulated worker, if:\n\n (i) the action was based on a reasonable concern of the regulated worker about an imminent risk to the health or safety of the regulated worker; and\n\n (ii) the regulated worker did not unreasonably fail to comply with a direction of the regulated business to perform other available work, whether at the same or another workplace, that was safe and appropriate for the regulated worker to perform.\n\n (5) A regulated business locks out a regulated worker if either or both of the following apply:\n\n (a) the regulated business prevents the regulated worker from performing work under a services contract without terminating the contract;\n\n (b) if the regulated business is a digital labour platform operator and the regulated worker is an employee‑like worker—the digital labour platform operator modifies, limits or suspends the employee‑like worker’s access to a digital labour platform operated by the digital labour platform operator.","sortOrder":61},{"sectionNumber":"20","sectionType":"section","heading":"Meaning of ordinary hours of work for award/agreement free employees","content":"20  Meaning of ordinary hours of work for award/agreement free employees\n\nAgreed ordinary hours of work\n\n (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.\n\nIf there is no agreement\n\n (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:\n\n (a) for a full‑time employee—38 hours; or\n\n (b) for an employee who is not a full‑time employee—the lesser of:\n\n (i) 38 hours; and\n\n (ii) the employee’s usual weekly hours of work.\n\nIf the agreed hours are less than usual weekly hours\n\n (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:\n\n (a) 38 hours; and\n\n (b) the employee’s usual weekly hours of work.\n\nRegulations may prescribe usual weekly hours\n\n (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).","sortOrder":62},{"sectionNumber":"21","sectionType":"section","heading":"Meaning of pieceworker","content":"21  Meaning of pieceworker\n\n (1) A pieceworker is:\n\n (a) a national system employee to whom a modern award applies and who is defined or described in the award as a pieceworker; or\n\n (b) a national system employee to whom an enterprise agreement applies and who is defined or described in the agreement as a pieceworker; or\n\n (c) an award/agreement free employee who is in a class of employees prescribed by the regulations as pieceworkers.\n\nNote: Sections 197 and 198 affect whether the FWC may approve an enterprise agreement covering a national system employee that includes a term that:\n\n(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\n\n(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.\n\n (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:\n\n (a) a particular industry or part of an industry;\n\n (b) a particular kind of work;\n\n (c) a particular type of employment.","sortOrder":63},{"sectionNumber":"22","sectionType":"section","heading":"Meanings of service and continuous service","content":"22  Meanings of service and continuous service\n\nGeneral meaning\n\n (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).\n\n (2) The following periods do not count as service:\n\n (a) any period of unauthorised absence;\n\n (b) any period of unpaid leave or unpaid authorised absence, other than:\n\n (i) a period of absence under Division 8 of Part 2‑2 (which deals with community service leave); or\n\n (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\n\n (iii) a period of leave or absence of a kind prescribed by the regulations;\n\n (c) any other period of a kind prescribed by the regulations.\n\n (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.\n\n (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.\n\nMeaning for Divisions 4 and 5, and Subdivision A of Division 11, of Part 2‑2\n\n (4) For the purposes of Divisions 4 and 5, and Subdivision A of Division 11, of Part 2‑2:\n\n (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:\n\n (i) any period of unauthorised absence; or\n\n (ii) any other period of a kind prescribed by the regulations; and\n\n (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\n\n (c) subsections (1), (2) and (3) do not apply.\n\nNote: 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.\n\n (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.\n\nWhen service with one employer counts as service with another employer\n\n (5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee:\n\n (a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and\n\n (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.\n\nNote: 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)).\n\n (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.\n\nNote: For example:\n\n(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\n\n(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.\n\nMeaning of transfer of employment etc.\n\n (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:\n\n (a) the following conditions are satisfied:\n\n (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;\n\n (ii) the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or\n\n (b) the following conditions are satisfied:\n\n (i) the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;\n\n (ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.\n\nNote: Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer.\n\n (8) A transfer of employment:\n\n (a) is a transfer of employment between associated entities if paragraph (7)(a) applies; and\n\n (b) is a transfer of employment between non‑associated entities if paragraph (7)(b) applies.","sortOrder":64},{"sectionNumber":"23","sectionType":"section","heading":"Meaning of small business employer","content":"23  Meaning of small business employer\n\n (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.\n\n (2) For the purpose of calculating the number of employees employed by the employer at a particular time:\n\n (a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and\n\n (b) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer.\n\n (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.\n\n (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)):\n\n (a) the employee who is being dismissed or whose employment is being terminated; and\n\n (b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.","sortOrder":65},{"sectionNumber":"23A","sectionType":"section","heading":"Terms relating to superannuation","content":"23A  Terms relating to superannuation\n\n (1) MySuper product has the meaning given by the Superannuation Industry (Supervision) Act 1993.\n\n (1A) A standard MySuper product is a MySuper product that is not an employer MySuper product.\n\n (1B) An employer MySuper product is a tailored MySuper product or a corporate MySuper product.\n\n (2) A tailored MySuper product is a MySuper product in relation to which section 29TB of the Superannuation Industry (Supervision) Act 1993 is satisfied.\n\n (3) A corporate MySuper product is a MySuper product that is offered by a superannuation fund that:\n\n (a) is a standard employer‑sponsored fund (within the meaning of the Superannuation Industry (Supervision) Act 1993); and\n\n (b) is not a public offer superannuation fund (within the meaning of that Act); and\n\n (c) has:\n\n (i) one standard employer‑sponsor (within the meaning of that Act); or\n\n (ii) 2 or more standard employer‑sponsors (within the meaning of that Act) that are associates of each other for the purposes of that Act.\n\n (4) A reference in this Act to a superannuation fund doing a thing in relation to a matter (for example, offering a MySuper product or making an application or submission) is a reference to the RSE licensee (within the meaning of the Superannuation Industry (Supervision) Act 1993) of the fund doing that thing.","sortOrder":66},{"sectionNumber":"23B","sectionType":"section","heading":"Meaning of general building and construction work","content":"23B  Meaning of general building and construction work\n\n (1) Work is general building and construction work if:\n\n (a) the work is done, onsite, by an employee in the industry of:\n\n (i) general building and construction within the meaning of paragraph 4.3(a) of the Building and Construction General On‑site Award 2020 as in force at the applicable time; or\n\n (ii) civil construction within the meaning of paragraph 4.3(b) of the Building and Construction General On‑site Award 2020 as in force at the applicable time; and\n\n (b) the work is not any of the following:\n\n (ii) work in the industry of metal and engineering construction within the meaning of paragraph 4.3(c) of the Building and Construction General On‑site Award 2020 as in force at the applicable time;\n\n (iii) work in manufacturing and associated industries and occupations within the meaning of clause 4.8 of the Manufacturing and Associated Industries and Occupations Award 2020 as in force at the applicable time;\n\n (iv) the work of an employee who is covered by the Joinery and Building Trades Award 2020, as in force at the applicable time, in relation to the work;\n\n (v) work in the industry of electrical services, within the meaning of clause 4.3 of the Electrical, Electronic and Communications Contracting Award 2022 as in force at the applicable time, provided by electrical, electronics and communications contractors and their employees;\n\n (vi) work that is plumbing, or fire sprinkler fitting, within the meaning of clause 4.2 of the Plumbing and Fire Sprinklers Award 2020 as in force at the applicable time;\n\n (vii) work in the black coal mining industry within the meaning of clause 4.2 of the Black Coal Mining Industry Award 2020 as in force at the applicable time;\n\n (viii) work in the mining industry within the meaning of clause 4.2 of the Mining Industry Award 2020 as in force at the applicable time;\n\n (ix) work in the quarrying industry within the meaning of clause 4.3 of the Cement, Lime and Quarrying Award 2020 as in force at the applicable time;\n\n (x) work in the concrete products industry within the meaning of clause 4.2 of the Concrete Products Award 2020 as in force at the applicable time;\n\n (xi) work in the premixed concrete industry within the meaning of clause 4.2 of the Premixed Concrete Award 2020 as in force at the applicable time;\n\n (xii) work in connection with the installation, major modernisation, servicing, repair or maintenance of lifts and escalators, or air‑conditioning or ventilation;\n\n (xiii) work in the asphalt industry within the meaning of clause 4.2 of the Asphalt Industry Award 2020 as in force at the applicable time;\n\n (xiv) work, in that part of the industry of civil construction described in subparagraph 4.3(b)(i) of the Building and Construction General On‑site Award 2020 as in force at the applicable time, that is the construction, repair, maintenance or demolition of power houses or other structures that use eligible renewable energy sources (within the meaning of section 17 of the Renewable Energy (Electricity) Act 2000) to generate electricity.\n\n (2) The applicable time is the start of the day before this section commences.","sortOrder":67},{"sectionNumber":"Part 1-3","sectionType":"part","heading":"Application of this Act","content":"Part 1‑3—Application of this Act","sortOrder":68},{"sectionNumber":"24","sectionType":"section","heading":"Guide to this Part","content":"24  Guide to this Part\n\nThis Part deals with the extent of the application of this Act.\n\nDivision 2 is about how this Act affects the operation of certain State or Territory laws.\n\nDivisions 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.\n\nDivision 3 is about the geographical application of this Act.\n\nDivision 4 deals with other matters relating to the application of this Act.","sortOrder":70},{"sectionNumber":"25","sectionType":"section","heading":"Meanings of employee and employer","content":"25  Meanings of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances). However, that Division does not apply for the purposes of Divisions 2A and 2B of this Part.","sortOrder":71},{"sectionNumber":"26","sectionType":"section","heading":"Act excludes State or Territory industrial laws","content":"26  Act excludes State or Territory industrial laws\n\n (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.\n\n (2) A State or Territory industrial law is:\n\n (a) a general State industrial law; or\n\n (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:\n\n (i) regulating workplace relations (including industrial matters, industrial activity, collective bargaining, industrial disputes and industrial action);\n\n (ii) providing for the establishment or enforcement of terms and conditions of employment;\n\n (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;\n\n (iv) prohibiting conduct relating to a person’s membership or non‑membership of an industrial association;\n\n (v) providing for rights and remedies connected with the termination of employment;\n\n (vi) providing for rights and remedies connected with conduct that adversely affects an employee in his or her employment; or\n\n (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\n\n (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\n\n (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\n\n (f) a law of a State or Territory that entitles a representative of a trade union to enter premises; or\n\n (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\n\n (h) either of the following:\n\n (i) a law that is a law of a State or Territory;\n\n (ii) an instrument of a legislative character made under such a law;\n\n  that is prescribed by the regulations.\n\n (3) Each of the following is a general State industrial law:\n\n (a) the Industrial Relations Act 1996 of New South Wales;\n\n (b) the Industrial Relations Act 1999 of Queensland;\n\n (c) the Industrial Relations Act 1979 of Western Australia;\n\n (d) the Fair Work Act 1994 of South Australia;\n\n (e) the Industrial Relations Act 1984 of Tasmania.\n\n (4) A law or an Act of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to:\n\n (a) all employers and employees in the State or Territory; or\n\n (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.\n\nFor 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.","sortOrder":73},{"sectionNumber":"27","sectionType":"section","heading":"State and Territory laws that are not excluded by section 26","content":"27  State and Territory laws that are not excluded by section 26\n\n (1A) Section 26 does not apply to any of the following laws:\n\n (a) the Anti‑Discrimination Act 1977 of New South Wales;\n\n (b) the Equal Opportunity Act 2010 of Victoria;\n\n (c) the Anti‑Discrimination Act 1991 of Queensland;\n\n (d) the Equal Opportunity Act 1984 of Western Australia;\n\n (e) the Equal Opportunity Act 1984 of South Australia;\n\n (f) the Anti‑Discrimination Act 1998 of Tasmania;\n\n (g) the Discrimination Act 1991 of the Australian Capital Territory;\n\n (h) the Anti‑Discrimination Act 1992 (NT).\n\n (1) Section 26 does not apply to a law of a State or Territory so far as:\n\n (b) the law is prescribed by the regulations as a law to which section 26 does not apply; or\n\n (c) the law deals with any non‑excluded matters; or\n\n (d) the law deals with rights or remedies incidental to:\n\n (i) any law referred to in subsection (1A); or\n\n (ii) any matter dealt with by a law to which paragraph (b) applies; or\n\n (iii) any non‑excluded matters.\n\nNote: 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.\n\n (2) The non‑excluded matters are as follows:\n\n (a) superannuation;\n\n (b) workers compensation;\n\n (c) occupational health and safety;\n\n (d) matters relating to outworkers (within the ordinary meaning of the term);\n\n (e) child labour;\n\n (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;\n\n (g) long service leave, except in relation to an employee who is entitled under Division 9 of Part 2‑2 to long service leave;\n\n (h) leave for victims of crime;\n\n (i) attendance for service on a jury, or for emergency service duties;\n\nNote: See also section 112 for employee entitlements in relation to engaging in eligible community service activities.\n\n (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;\n\n (k) the following matters relating to provision of essential services or to situations of emergency:\n\n (i) directions to perform work (including to perform work at a particular time or place, or in a particular way);\n\n (ii) directions not to perform work (including not to perform work at a particular time or place, or in a particular way);\n\n (l) regulation of any of the following:\n\n (i) employee associations;\n\n (ii) employer associations;\n\n (iii) members of employee associations or of employer associations;\n\n (m) workplace surveillance;\n\n (n) business trading hours;\n\n (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;\n\n (p) any other matters prescribed by the regulations.","sortOrder":74},{"sectionNumber":"28","sectionType":"section","heading":"Act excludes prescribed State and Territory laws","content":"28  Act excludes prescribed State and Territory laws\n\n (1) This Act is intended to apply to the exclusion of a law of a State or Territory that is prescribed by the regulations.\n\n (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.\n\n (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).","sortOrder":75},{"sectionNumber":"29","sectionType":"section","heading":"Interaction of modern awards and enterprise agreements with State and Territory laws","content":"29  Interaction of modern awards and enterprise agreements with State and Territory laws\n\n (1) A modern award or enterprise agreement prevails over a law of a State or Territory, to the extent of any inconsistency.\n\n (2) Despite subsection (1), a term of a modern award or enterprise agreement applies subject to the following:\n\n (a) any law covered by subsection 27(1A);\n\n (b) any law of a State or Territory so far as it is covered by paragraph 27(1)(b), (c) or (d).\n\nNote: In addition, a term of an enterprise agreement could be an unlawful term and of no effect if it requires or permits a designated emergency management body to act other than in accordance with a State or Territory law and this affects or could affect the body’s volunteers (see paragraphs 194(baa), 195A(1)(d) and 253(1)(b)).\n\n (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.","sortOrder":76},{"sectionNumber":"30","sectionType":"section","heading":"Act may exclude State and Territory laws etc. in other cases","content":"30  Act may exclude State and Territory laws etc. in other cases\n\n  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.","sortOrder":77},{"sectionNumber":"Division 2A","sectionType":"division","heading":"Application of this Act in States that refer matters before 1 July 2009","content":"Division 2A—Application of this Act in States that refer matters before 1 July 2009","sortOrder":78},{"sectionNumber":"30A","sectionType":"section","heading":"Meaning of terms used in this Division","content":"30A  Meaning of terms used in this Division\n\n (1) In this Division:\n\namendment 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).\n\nexcluded subject matter means any of the following matters:\n\n (a) a matter dealt with in a law referred to in subsection 27(1A) of this Act;\n\n (b) superannuation;\n\n (c) workers compensation;\n\n (d) occupational health and safety;\n\n (e) matters relating to outworkers (within the ordinary meaning of the term);\n\n (f) child labour;\n\n (g) training arrangements;\n\n (h) long service leave;\n\n (i) leave for victims of crime;\n\n (j) attendance for service on a jury, or for emergency service duties;\n\n (k) declaration, prescription or substitution of public holidays;\n\n (l) the following matters relating to provision of essential services or to situations of emergency:\n\n (i) directions to perform work (including to perform work at a particular time or place, or in a particular way);\n\n (ii) directions not to perform work (including not to perform work at a particular time or place, or in a particular way);\n\n (m) regulation of any of the following:\n\n (i) employee associations;\n\n (ii) employer associations;\n\n (iii) members of employee associations or of employer associations;\n\n (n) workplace surveillance;\n\n (o) business trading hours;\n\n (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;\n\n (q) rights or remedies incidental to a matter referred to in a preceding paragraph of this definition;\n\nexcept 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.\n\nexpress 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.\n\nfundamental workplace relations principles: see subsection 30B(9).\n\ninitial 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).\n\nlaw enforcement officer means:\n\n (a) a member of a police force or police service; or\n\n (b) a person appointed to a position for the purpose of being trained as a member of a police force or police service; or\n\n (c) a person who has the powers and duties of a member of a police force or police service;\n\nand, 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.\n\nlocal government employee, of a State, means:\n\n (a) an employee of a local government employer of the State; or\n\n (b) any other employee in the State of a kind specified in the regulations.\n\nlocal government employer, of a State, means an employer that is:\n\n (a) a body corporate that is established for a local government purpose by or under a law of a State; or\n\n (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\n\n (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\n\n (d) any other body corporate that is a local government body in the State of a kind specified in the regulations; or\n\n (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.\n\nreferral 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.\n\nreferred 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.\n\nreferred subject matters means any of the following:\n\n (a) terms and conditions of employment, including any of the following:\n\n (i) minimum terms and conditions of employment, (including employment standards and minimum wages);\n\n (ii) terms and conditions of employment contained in instruments (including instruments such as awards, determinations and enterprise‑level agreements);\n\n (iii) bargaining in relation to terms and conditions of employment;\n\n (iv) the effect of a transfer of business on terms and conditions of employment;\n\n (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;\n\n (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:\n\n (i) freedom of association in the context of workplace relations, and related protections;\n\n (ii) protection from discrimination relating to employment;\n\n (iii) termination of employment;\n\n (iv) industrial action;\n\n (v) protection from payment of fees for services related to bargaining;\n\n (vi) sham independent contractor arrangements;\n\n (vii) standing down employees without pay;\n\n (viii) union rights of entry and rights of access to records;\n\n (d) compliance with, and enforcement of, this Act;\n\n (e) the administration of this Act;\n\n (f) the application of this Act;\n\n (g) matters incidental or ancillary to the operation of this Act or of instruments made or given effect under this Act;\n\nbut does not include any excluded subject matter.\n\nreferring State: see section 30B.\n\nState public sector employee, of a State, means:\n\n (a) an employee of a State public sector employer of the State; or\n\n (b) any other employee in the State of a kind specified in the regulations;\n\nand includes a law enforcement officer to whom subsection 30E(1) applies.\n\nState public sector employer, of a State, means an employer that is:\n\n (a) the State, the Governor of the State or a Minister of the State; or\n\n (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\n\n (c) a body corporate in which the State has a controlling interest; or\n\n (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\n\n (e) any other employer in the State of a kind specified in the regulations;\n\nand includes a holder of an office to whom subsection 30E(2) applies.\n\ntransition 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).\n\n (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.","sortOrder":79},{"sectionNumber":"30B","sectionType":"section","heading":"Meaning of referring State","content":"30B  Meaning of referring State\n\nReference of matters by State Parliament to Commonwealth Parliament\n\n (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:\n\n (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\n\n (b) if and to the extent that the matters are included in the legislative powers of the Parliament of the State.\n\nThis subsection has effect subject to subsection (6).\n\n (2) A State is a referring State even if:\n\n (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\n\n (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\n\n (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).\n\nReference covering referred provisions\n\n (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.\n\nReference covering amendments\n\n (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.\n\nReference covering transitional matters\n\n (5) This subsection covers making laws with respect to the transition from the regime provided for by:\n\n (a) the Workplace Relations Act 1996; or\n\n (b) a law of a State relating to workplace relations;\n\nto the regime provided for by this Act.\n\nEffect of termination of reference\n\n (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:\n\n (a) the State’s initial reference terminates;\n\n (b) the State’s amendment reference terminates, and neither of subsections (7) and (8) apply to the termination;\n\n (c) the State’s transition reference terminates.\n\n (7) A State does not cease to be a referring State because of the termination of its amendment reference if:\n\n (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\n\n (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\n\n (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.\n\n (8) A State does not cease to be a referring State because of the termination of its amendment reference if:\n\n (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\n\n (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\n\n (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:\n\n (i) is proposed to be amended (by an amendment introduced into the Parliament by a Minister); or\n\n (ii) has been amended;\n\n  in a manner that is inconsistent with one or more of the fundamental workplace relations principles.\n\n (9) The following are the fundamental workplace relations principles:\n\n (a) that this Act should provide for, and continue to provide for, the following:\n\n (i) a strong, simple and enforceable safety net of minimum employment standards;\n\n (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;\n\n (iii) collective bargaining at the enterprise level with no provision for individual statutory agreements;\n\n (iv) fair and effective remedies available through an independent umpire;\n\n (v) protection from unfair dismissal;\n\n (b) that there should be, and continue to be, in connection with the operation of this Act, the following:\n\n (i) an independent tribunal system;\n\n (ii) an independent authority able to assist employers and employees within a national workplace relations system.","sortOrder":80},{"sectionNumber":"30C","sectionType":"section","heading":"Extended meaning of national system employee","content":"30C  Extended meaning of national system employee\n\n (1) A national system employee includes:\n\n (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\n\n (b) a law enforcement officer of the State to whom subsection 30E(1) applies.\n\n (2) This section does not limit the operation of section 13 (which defines a national system employee).\n\nNote: Section 30H may limit the extent to which this section extends the meaning of national system employee.","sortOrder":81},{"sectionNumber":"30D","sectionType":"section","heading":"Extended meaning of national system employer","content":"30D  Extended meaning of national system employer\n\n (1) A national system employer includes:\n\n (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\n\n (b) a holder of an office to whom subsection 30E(2) applies.\n\n (2) This section does not limit the operation of section 14 (which defines a national system employer).\n\nNote: Section 30H may limit the extent to which this section extends the meaning of national system employer.","sortOrder":82},{"sectionNumber":"30E","sectionType":"section","heading":"Extended ordinary meanings of employee and employer","content":"30E  Extended ordinary meanings of employee and employer\n\n (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.\n\n (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.\n\n (3) This section does not limit the operation of section 15 (which deals with references to employee and employer with their ordinary meanings).\n\nNote: Section 30H may limit the extent to which this section extends the meanings of employee and employer.","sortOrder":83},{"sectionNumber":"30F","sectionType":"section","heading":"Extended meaning of outworker entity","content":"30F  Extended meaning of outworker entity\n\n (1) An outworker entity includes a person, other than in the person’s capacity as a national system employer, so far as:\n\n (a) the person arranges for work to be performed for the person (either directly or indirectly); and\n\n (b) the work is of a kind that is often performed by outworkers; and\n\n (c) one or more of the following applies:\n\n (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;\n\n (ii) the work is to be performed in a State that is a referring State because of this Division;\n\n (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;\n\n (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.\n\n (2) This section does not limit the operation of the definition of outworker entity in section 12.\n\nNote: Section 30H may limit the extent to which this section extends the meaning of outworker entity.","sortOrder":84},{"sectionNumber":"30G","sectionType":"section","heading":"General protections","content":"30G  General protections\n\n (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.\n\n (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).\n\nNote: Section 30H may limit the extent to which this section extends the application of Part 3‑1.","sortOrder":85},{"sectionNumber":"30H","sectionType":"section","heading":"Division only has effect if supported by reference","content":"30H  Division only has effect if supported by reference\n\n  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.","sortOrder":86},{"sectionNumber":"Division 2B","sectionType":"division","heading":"Application of this Act in States that refer matters after 1 July 2009 but on or before 1 January 2010","content":"Division 2B—Application of this Act in States that refer matters after 1 July 2009 but on or before 1 January 2010","sortOrder":87},{"sectionNumber":"30K","sectionType":"section","heading":"Meaning of terms used in this Division","content":"30K  Meaning of terms used in this Division\n\n (1) In this Division:\n\namendment 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).\n\nexcluded subject matter means any of the following matters:\n\n (a) a matter dealt with in a law referred to in subsection 27(1A) of this Act;\n\n (b) superannuation;\n\n (c) workers compensation;\n\n (d) occupational health and safety;\n\n (e) matters relating to outworkers (within the ordinary meaning of the term);\n\n (f) child labour;\n\n (g) training arrangements;\n\n (h) long service leave;\n\n (i) leave for victims of crime;\n\n (j) attendance for service on a jury, or for emergency service duties;\n\n (k) declaration, prescription or substitution of public holidays;\n\n (l) the following matters relating to provision of essential services or to situations of emergency:\n\n (i) directions to perform work (including to perform work at a particular time or place, or in a particular way);\n\n (ii) directions not to perform work (including not to perform work at a particular time or place, or in a particular way);\n\n (m) regulation of any of the following:\n\n (i) employee associations;\n\n (ii) employer associations;\n\n (iii) members of employee associations or of employer associations;\n\n (n) workplace surveillance;\n\n (o) business trading hours;\n\n (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;\n\n (q) rights or remedies incidental to a matter referred to in a preceding paragraph of this definition;\n\nexcept 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.\n\nexpress 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.\n\nfundamental workplace relations principles: see subsection 30L(9).\n\ninitial 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).\n\nlaw enforcement officer means:\n\n (a) a member of a police force or police service; or\n\n (b) a person appointed to a position for the purpose of being trained as a member of a police force or police service; or\n\n (c) a person who has the powers and duties of a member of a police force or police service;\n\nand, 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.\n\nlocal government employee, of a State, means:\n\n (a) an employee of a local government employer of the State; or\n\n (b) any other employee in the State of a kind specified in the regulations.\n\nlocal government employer, of a State, means an employer that is:\n\n (a) a body corporate that is established for a local government purpose by or under a law of a State; or\n\n (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\n\n (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\n\n (d) any other body corporate that is a local government body in the State of a kind specified in the regulations; or\n\n (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.\n\nreferral 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.\n\nreferred 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.\n\nreferred subject matters means any of the following:\n\n (a) terms and conditions of employment, including any of the following:\n\n (i) minimum terms and conditions of employment, (including employment standards and minimum wages);\n\n (ii) terms and conditions of employment contained in instruments (including instruments such as awards, determinations and enterprise‑level agreements);\n\n (iii) bargaining in relation to terms and conditions of employment;\n\n (iv) the effect of a transfer of business on terms and conditions of employment;\n\n (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;\n\n (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:\n\n (i) freedom of association in the context of workplace relations, and related protections;\n\n (ii) protection from discrimination relating to employment;\n\n (iii) termination of employment;\n\n (iv) industrial action;\n\n (v) protection from payment of fees for services related to bargaining;\n\n (vi) sham independent contractor arrangements;\n\n (vii) standing down employees without pay;\n\n (viii) union rights of entry and rights of access to records;\n\n (d) compliance with, and enforcement of, this Act;\n\n (e) the administration of this Act;\n\n (f) the application of this Act;\n\n (g) matters incidental or ancillary to the operation of this Act or of instruments made or given effect under this Act;\n\nbut does not include any excluded subject matter.\n\nreferring State: see section 30L.\n\nState public sector employee, of a State, means:\n\n (a) an employee of a State public sector employer of the State; or\n\n (b) any other employee in the State of a kind specified in the regulations;\n\nand includes a law enforcement officer of the State.\n\nState public sector employer, of a State, means an employer that is:\n\n (a) the State, the Governor of the State or a Minister of the State; or\n\n (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\n\n (c) a body corporate in which the State has a controlling interest; or\n\n (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\n\n (e) any other employer in the State of a kind specified in the regulations;\n\nand 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.\n\ntransition 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).\n\n (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.","sortOrder":88},{"sectionNumber":"30L","sectionType":"section","heading":"Meaning of referring State","content":"30L  Meaning of referring State\n\nReference of matters by State Parliament to Commonwealth Parliament\n\n (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:\n\n (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\n\n (b) if and to the extent that the matters are included in the legislative powers of the Parliament of the State.\n\nThis subsection has effect subject to subsection (6).\n\n (2) A State is a referring State even if:\n\n (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\n\n (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\n\n (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).\n\nReference covering referred provisions\n\n (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.\n\nReference covering amendments\n\n (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.\n\nReference covering transitional matters\n\n (5) This subsection covers making laws with respect to the transition from the regime provided for by:\n\n (a) the Workplace Relations Act 1996 (as it continues to apply because of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009); or\n\n (b) a law of a State relating to workplace relations or industrial relations;\n\nto the regime provided for by this Act.\n\nEffect of termination of reference\n\n (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:\n\n (a) the State’s initial reference terminates;\n\n (b) the State’s amendment reference terminates, and neither of subsections (7) and (8) apply to the termination;\n\n (c) the State’s transition reference terminates.\n\n (7) A State does not cease to be a referring State because of the termination of its amendment reference if:\n\n (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\n\n (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\n\n (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.\n\n (8) A State does not cease to be a referring State because of the termination of its amendment reference if:\n\n (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\n\n (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\n\n (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:\n\n (i) is proposed to be amended (by an amendment introduced into the Parliament by a Minister); or\n\n (ii) has been amended;\n\n  in a manner that is inconsistent with one or more of the fundamental workplace relations principles.\n\n (9) The following are the fundamental workplace relations principles:\n\n (a) that this Act should provide for, and continue to provide for, the following:\n\n (i) a strong, simple and enforceable safety net of minimum employment standards;\n\n (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;\n\n (iii) collective bargaining at the enterprise level with no provision for individual statutory agreements;\n\n (iv) fair and effective remedies available through an independent umpire;\n\n (v) protection from unfair dismissal;\n\n (b) that there should be, and continue to be, in connection with the operation of this Act, the following:\n\n (i) an independent tribunal system;\n\n (ii) an independent authority able to assist employers and employees within a national workplace relations system.","sortOrder":89},{"sectionNumber":"30M","sectionType":"section","heading":"Extended meaning of national system employee","content":"30M  Extended meaning of national system employee\n\n (1) A national system employee includes:\n\n (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\n\n (b) a law enforcement officer of the State to whom subsection 30P(1) applies.\n\n (2) This section does not limit the operation of section 13 (which defines a national system employee).\n\nNote: Section 30S may limit the extent to which this section extends the meaning of national system employee.","sortOrder":90},{"sectionNumber":"30N","sectionType":"section","heading":"Extended meaning of national system employer","content":"30N  Extended meaning of national system employer\n\n (1) A national system employer includes:\n\n (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\n\n (b) a holder of an office to whom subsection 30P(2) applies.\n\n (2) This section does not limit the operation of section 14 (which defines a national system employer).\n\nNote: Section 30S may limit the extent to which this section extends the meaning of national system employer.","sortOrder":91},{"sectionNumber":"30P","sectionType":"section","heading":"Extended ordinary meanings of employee and employer","content":"30P  Extended ordinary meanings of employee and employer\n\n (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.\n\n (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.\n\n (3) This section does not limit the operation of section 15 (which deals with references to employee and employer with their ordinary meanings).\n\nNote: Section 30S may limit the extent to which this section extends the meanings of employee and employer.","sortOrder":92},{"sectionNumber":"30Q","sectionType":"section","heading":"Extended meaning of outworker entity","content":"30Q  Extended meaning of outworker entity\n\n (1) An outworker entity includes a person, other than in the person’s capacity as a national system employer, so far as:\n\n (a) the person arranges for work to be performed for the person (either directly or indirectly); and\n\n (b) the work is of a kind that is often performed by outworkers; and\n\n (c) one or more of the following applies:\n\n (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;\n\n (ii) the work is to be performed in a State that is a referring State because of this Division;\n\n (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;\n\n (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.\n\n (2) This section does not limit the operation of the definition of outworker entity in section 12.\n\nNote: Section 30S may limit the extent to which this section extends the meaning of outworker entity.","sortOrder":93},{"sectionNumber":"30R","sectionType":"section","heading":"General protections","content":"30R  General protections\n\n (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.\n\n (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).\n\nNote: Section 30S may limit the extent to which this section extends the application of Part 3‑1.","sortOrder":94},{"sectionNumber":"30S","sectionType":"section","heading":"Division only has effect if supported by reference","content":"30S  Division only has effect if supported by reference\n\n  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.","sortOrder":95},{"sectionNumber":"31","sectionType":"section","heading":"Exclusion of persons etc. insufficiently connected with Australia","content":"31  Exclusion of persons etc. insufficiently connected with Australia\n\n (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.\n\nNote 1: In this context, Australia includes Norfolk Island, the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea (see the definition of Australia in section 12 of this Act and section 15B of the Acts Interpretation Act 1901).\n\nNote 2: The regulations may prescribe the person or entity by reference to a class (see subsection 13(3) of the Legislation Act 2003).\n\n (2) Before the Governor‑General makes regulations for the purposes of subsection (1) prescribing either or both of the following:\n\n (a) a provision of this Act that is not to apply to a person or entity;\n\n (b) a person to whom, or an entity to which, a provision of this Act is not to apply;\n\nthe 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.","sortOrder":97},{"sectionNumber":"32","sectionType":"section","heading":"Regulations may modify application of this Act in certain parts of Australia","content":"32  Regulations may modify application of this Act in certain parts of Australia\n\n  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:\n\n (a) all the waters of the sea on the landward side of the outer limits of the territorial sea of Australia, including:\n\n (i) such waters within the limits of a State or Territory; and\n\n (ii) the airspace over, and the seabed and sub‑soil beneath, such waters;\n\n (b) the Territory of Christmas Island;\n\n (c) the Territory of Cocos (Keeling) Islands;\n\nthen this Act has effect as so modified in relation to any such area or part.\n\nNote: 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.","sortOrder":98},{"sectionNumber":"32A","sectionType":"section","heading":"Rules may modify application of this Act in Norfolk Island","content":"32A  Rules may modify application of this Act in Norfolk Island\n\n (1) The Minister may, by legislative instrument, make rules prescribing modifications of this Act for its application in relation to Norfolk Island.\n\n (2) To avoid doubt, the rules may not do the following:\n\n (a) create an offence or civil penalty;\n\n (b) provide powers of:\n\n (i) arrest or detention; or\n\n (ii) entry, search or seizure;\n\n (c) impose a tax;\n\n (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;\n\n (e) directly amend the text of this Act.\n\n (3) If the rules prescribe modifications of this Act for its application in relation to Norfolk Island, then this Act has effect as so modified in relation to Norfolk Island.\n\nNote: This Act would, in the absence of any such rules, apply in relation to Norfolk Island in the same way as it applies in relation to the rest of Australia.","sortOrder":99},{"sectionNumber":"33","sectionType":"section","heading":"Extension of this Act to the exclusive economic zone and the continental shelf","content":"33  Extension of this Act to the exclusive economic zone and the continental shelf\n\nExtension to Australian ships etc.\n\n (1) Without limiting subsection (3), this Act extends to or in relation to:\n\n (a) any Australian ship in the exclusive economic zone or in the waters above the continental shelf; and\n\n (b) any fixed platform in the exclusive economic zone or in the waters above the continental shelf; and\n\n (c) any ship, in the exclusive economic zone or in the waters above the continental shelf, that:\n\n (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\n\n (ii) operates to and from an Australian port; and\n\n (d) any ship, in the exclusive economic zone or in the waters above the continental shelf, that:\n\n (i) is operated or chartered by an Australian employer; and\n\n (ii) uses Australia as a base.\n\n (2) For the purposes of extending this Act in accordance with paragraph (1)(d):\n\n (a) any reference in a provision of this Act to an employer is taken to include a reference to an Australian employer; and\n\n (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.\n\nExtensions prescribed by regulations\n\n (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.\n\nModifications relating to extended application\n\n (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:\n\n (a) all or part of the exclusive economic zone;\n\n (b) all or part of the continental shelf;\n\nthen, 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.\n\n (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.\n\nExtension relating to Greater Sunrise special regime area\n\n (6) Despite subsection 13AB(1) of the Seas and Submerged Lands Act 1973:\n\n (a) an extension of this Act under subsection (1) of this section has effect; and\n\n (b) an extension of this Act, or a provision of this Act, because of regulations made for the purposes of subsection (3) of this section may (subject to those regulations) have effect;\n\nin relation to acts, omissions, matters and things directly or indirectly connected with the exploration of, or exploitation of the natural resources of, the continental shelf in the Greater Sunrise special regime area. This subsection has effect whether or not the extension is affected by subsection (4) of this section.","sortOrder":100},{"sectionNumber":"34","sectionType":"section","heading":"Extension of this Act beyond the exclusive economic zone and the continental shelf","content":"34  Extension of this Act beyond the exclusive economic zone and the continental shelf\n\nExtension to Australian ships etc.\n\n (1) Without limiting subsection (3), this Act extends to or in relation to:\n\n (a) any Australian ship outside the outer limits of the exclusive economic zone and the continental shelf; and\n\n (b) any ship, outside the outer limits of the exclusive economic zone and the continental shelf, that:\n\n (i) is operated or chartered by an Australian employer; and\n\n (ii) uses Australia as a base.\n\n (2) For the purposes of extending this Act in accordance with paragraph (1)(b):\n\n (a) any reference in a provision of this Act to an employer is taken to include a reference to an Australian employer; and\n\n (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.\n\nExtensions prescribed by regulations\n\n (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:\n\n (a) any Australian employer; and\n\n (b) any Australian‑based employee.\n\n (3A) For the purposes of extending this Act in accordance with subsection (3):\n\n (a) any reference in a provision of this Act to an employer is taken to include a reference to:\n\n (i) an Australian employer; and\n\n (ii) an employer of an Australian‑based employee; and\n\n (b) any reference in a provision of this Act to an employee is taken to include a reference to:\n\n (i) an employee of an Australian employer; and\n\n (ii) an Australian‑based employee.\n\nModified application in the area outside the outer limits of the exclusive economic zone and the continental shelf\n\n (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.\n\n (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.","sortOrder":101},{"sectionNumber":"35","sectionType":"section","heading":"Meanings of Australian employer and Australian-based employee","content":"35  Meanings of Australian employer and Australian‑based employee\n\n (1) An Australian employer is an employer that:\n\n (a) is a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or\n\n (b) is a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or\n\n (c) is the Commonwealth; or\n\n (d) is a Commonwealth authority; or\n\n (e) is a body corporate incorporated in a Territory; or\n\n (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\n\n (g) is prescribed by the regulations.\n\n (2) An Australian‑based employee is an employee:\n\n (a) whose primary place of work is in Australia; or\n\n (b) who is employed by an Australian employer (whether the employee is located in Australia or elsewhere); or\n\n (c) who is prescribed by the regulations.\n\n (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.","sortOrder":102},{"sectionNumber":"35A","sectionType":"section","heading":"Regulations excluding application of Act","content":"35A  Regulations excluding application of Act\n\n (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).\n\n (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.","sortOrder":103},{"sectionNumber":"36","sectionType":"section","heading":"Geographical application of offences","content":"36  Geographical application of offences\n\n  Division 14 (Standard geographical jurisdiction) of the Criminal Code does not apply in relation to an offence against this Act.\n\nNote: The extended geographical application that this Division gives to this Act will apply to the offences in this Act.","sortOrder":104},{"sectionNumber":"37","sectionType":"section","heading":"Act binds Crown","content":"37  Act binds Crown\n\n (1) This Act binds the Crown in each of its capacities.\n\n (2) However, this Act does not make the Crown liable to be prosecuted for an offence, except as provided for by subsection (3).\n\n (3) The Crown in right of the Commonwealth is liable to be prosecuted for an offence against any of the following provisions:\n\n (a) subsection 327A(1);\n\n (b) a related offence provision, to the extent that the related offence provision relates to an offence against subsection 327A(1).\n\n (4) The Crown, in each of its capacities and to the extent the Commonwealth’s legislative power permits, is liable to be the subject of proceedings for a contravention of a civil remedy provision.","sortOrder":106},{"sectionNumber":"38","sectionType":"section","heading":"Act not to apply so as to exceed Commonwealth power","content":"38  Act not to apply so as to exceed Commonwealth power\n\n (1) Unless the contrary intention appears, if a provision of this Act:\n\n (a) would, apart from this section, have an application (an invalid application) in relation to:\n\n (i) one or more particular persons, things, matters, places, circumstances or cases; or\n\n (ii) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;\n\n  because of which the provision exceeds the Commonwealth’s legislative power; and\n\n (b) also has at least one application (a valid application) in relation to:\n\n (i) one or more particular persons, things, matters, places, circumstances or cases; or\n\n (ii) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;\n\n  that, if it were the provision’s only application, would be within the Commonwealth’s legislative power;\n\nit is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.\n\n (2) Despite subsection (1), the provision is not to have a particular valid application if:\n\n (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\n\n (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.\n\n (3) Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).\n\n (4) This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section.","sortOrder":107},{"sectionNumber":"39","sectionType":"section","heading":"Acquisition of property","content":"39  Acquisition of property\n\n  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).","sortOrder":108},{"sectionNumber":"40","sectionType":"section","heading":"Interaction between fair work instruments and public sector employment laws","content":"40  Interaction between fair work instruments and public sector employment laws\n\nGenerally, public sector employment laws prevail\n\n (1) A public sector employment law prevails over a fair work instrument that deals with public sector employment, to the extent of any inconsistency.\n\nWhen fair work instruments or their terms prevail\n\n (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:\n\n (a) the instrument or term is prescribed by the regulations for the purposes of that particular law; or\n\n (b) the instrument or term (other than an FWC order or a term of an FWC order) is included in a class of instruments or terms that are prescribed by the regulations for the purposes of that particular law.\n\nMeaning of public sector employment law\n\n (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.\n\nLaws that fair work instruments never prevail over\n\n (4) Subsection (2) does not apply to any provisions of the following that are public sector employment laws:\n\n (a) the Safety, Rehabilitation and Compensation Act 1988;\n\n (b) the Superannuation Act 1976;\n\n (c) the Superannuation Act 1990;\n\n (d) the Superannuation Act 2005;\n\n (e) the Superannuation (Productivity Benefit) Act 1988;\n\n (f) an instrument made under a law referred to in any of the above paragraphs.\n\nRelationship with section 29\n\n (5) This section prevails over section 29, to the extent of any inconsistency.","sortOrder":109},{"sectionNumber":"40A","sectionType":"section","heading":"Application of the Acts Interpretation Act 1901","content":"40A  Application of the Acts Interpretation Act 1901\n\n (1) The Acts Interpretation Act 1901, as in force on 25 June 2009, applies to this Act.\n\n (2) Amendments of the Acts Interpretation Act 1901 made after that day do not apply to this Act.","sortOrder":110},{"sectionNumber":"40B","sectionType":"section","heading":"Effect of the Migration Act 1958","content":"40B  Effect of the Migration Act 1958\n\n  For the purposes of this Act, any effect of the Migration Act 1958, or an instrument made under that Act, on the validity of a contract of employment, or the validity of a contract for services, is to be disregarded.","sortOrder":111},{"sectionNumber":"Part 1-4","sectionType":"part","heading":"Road transport industry objective and advisory group","content":"Part 1‑4—Road transport industry objective and advisory group","sortOrder":112},{"sectionNumber":"40C","sectionType":"section","heading":"Guide to this Part","content":"40C  Guide to this Part\n\nThis Part deals with special provisions relating to the road transport industry.\n\nDivision 2 sets out the road transport objective.\n\nThe Expert Panel for the road transport industry must have regard to the road transport objective when performing functions and exercising powers under certain provisions of this Act. These functions and powers cover both employees and employers and regulated road transport contractors and road transport businesses.\n\nDivision 3 establishes the Road Transport Advisory Group. This Group includes representatives from the road transport industry. It has advisory functions under Chapter 3A (in relation to road transport minimum standards) and the prioritisation of the FWC’s work so far as it relates to the road transport industry.","sortOrder":114},{"sectionNumber":"40D","sectionType":"section","heading":"The road transport objective","content":"40D  The road transport objective\n\n  In performing a function or exercising a power under this Act, the Expert Panel for the road transport industry must take into account the need for an appropriate safety net of minimum standards for regulated road transport workers and employees in the road transport industry, having regard to the following:\n\n (a) the need for standards that ensure that the road transport industry is safe, sustainable and viable;\n\n (b) the need to avoid unreasonable adverse impacts upon the following:\n\n (i) sustainable competition among road transport industry participants;\n\n (ii) road transport industry business viability, innovation and productivity;\n\n (iii) administrative and compliance costs for road transport industry participants;\n\n (c) the need to avoid adverse impacts on the sustainability, performance and competitiveness of supply chains and the national economy;\n\n (d) the need for minimum standards in road transport contractual chains.\n\nThis is the road transport objective.\n\nNote: The matters that must be dealt with by the Expert Panel for the road transport industry are matters relating to modern awards relating to the road transport industry, road transport minimum standards orders and road transport contractual chain orders (see subsection 617(10B)). The President also has a discretion to direct the Expert Panel for the road transport industry to deal with a matter (see subsection 617(10D)).","sortOrder":116},{"sectionNumber":"40E","sectionType":"section","heading":"Establishment of Road Transport Advisory Group","content":"40E  Establishment of Road Transport Advisory Group\n\n (1) There is to be a Road Transport Advisory Group.\n\n (2) The function of the Road Transport Advisory Group is to advise the FWC in relation to matters that relate to the road transport industry including, but not limited to the following:\n\n (a) the making and varying of modern awards that relate to the road transport industry;\n\n (b) the making and varying of road transport minimum standards orders and road transport guidelines;\n\n (ba) the making and varying of road transport contractual chain orders and road transport contractual chain guidelines;\n\n (c) the prioritisation by the FWC of matters relating to the road transport industry;\n\n (d) such other matters as are prescribed by the regulations.\n\n (3) Before advising the FWC in relation to a matter, the Road Transport Advisory Group must consult any relevant subcommittee established under section 40G.\n\n (4) The President must consult, and have regard to the views of, the Road Transport Advisory Group in determining priorities for the work of the FWC in relation to matters affecting the road transport industry.","sortOrder":118},{"sectionNumber":"40F","sectionType":"section","heading":"Membership of Road Transport Advisory Group","content":"40F  Membership of Road Transport Advisory Group\n\n (1) The Road Transport Advisory Group consists of such members as the Minister from time to time appoints.\n\n (2) In appointing the members of the Road Transport Advisory Group, the Minister must ensure that the membership consists of persons who are members of or who are nominated by the following:\n\n (a) an organisation that is entitled to represent the industrial interests of one or more regulated road transport contractors;\n\n (b) an organisation that is entitled to represent the industrial interests of one or more road transport businesses.\n\n (3) A member of the Road Transport Advisory Group holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.\n\nNote: A member of the Road Transport Advisory Group is eligible for reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).\n\n (4) The Minister may revoke a person’s appointment to the Road Transport Advisory Group.\n\n (5) The President may give the Road Transport Advisory Group directions as to the way in which the body is to carry out its functions.\n\n (6) The President may appoint a member of the Expert Panel for the road transport industry to chair the Road Transport Advisory Group.","sortOrder":119},{"sectionNumber":"40G","sectionType":"section","heading":"Road Transport Advisory Group subcommittees","content":"40G  Road Transport Advisory Group subcommittees\n\n (1) The Road Transport Advisory Group may establish subcommittees to advise it in relation to matters relevant to the performance of its functions.\n\n (2) A subcommittee may include persons who are not members of the Road Transport Advisory Group, but a subcommittee must be chaired by a member.\n\n (3) The Road Transport Advisory Group must establish a subcommittee under subsection (1) of which a majority of the members are owner drivers or representatives of owner drivers:\n\n (a) if a proposed road transport minimum standards order or a proposed road transport contractual chain order will cover owner drivers; or\n\n (b) if the FWC proposes to perform a function or exercise a power in relation to a road transport minimum standards order or a road transport contractual chain order that has, or may have, an effect upon owner drivers that is more than minor or technical.","sortOrder":120},{"sectionNumber":"Part 2-1","sectionType":"part","heading":"Core provisions for this Chapter","content":"Part 2‑1—Core provisions for this Chapter","sortOrder":121},{"sectionNumber":"41","sectionType":"section","heading":"Guide to this Part","content":"41  Guide to this Part\n\nThis 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.\n\nThe National Employment Standards (Part 2‑2) are minimum terms and conditions that apply to all national system employees.\n\nA 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.\n\nDivision 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.\n\nNote: 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.\n\nDivision 3 deals with the interaction between the National Employment Standards, modern awards and enterprise agreements.","sortOrder":123},{"sectionNumber":"42","sectionType":"section","heading":"Meanings of employee and employer","content":"42  Meanings of employee and employer\n\n  In this Part, employee means a national system employee, and employer means a national system employer.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":124},{"sectionNumber":"43","sectionType":"section","heading":"Terms and conditions of employment provided under this Act","content":"43  Terms and conditions of employment provided under this Act\n\nMain terms and conditions\n\n (1) The main terms and conditions of employment of an employee that are provided under this Act are those set out in:\n\n (a) the National Employment Standards (see Part 2‑2); and\n\n (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.\n\nNote 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.\n\nNote 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.\n\nNote 3: Copied State instruments provide the main terms and conditions of employment for an employee to whom the instrument applies. See Part 6‑3A generally for the rules about those instruments.\n\nOther terms and conditions\n\n (2) In addition, other terms and conditions of employment include:\n\n (a) those terms and conditions arising from:\n\n (i) a national minimum wage order (see Part 2‑6); or\n\n (ii) an equal remuneration order (see Part 2‑7); and\n\n (b) those terms and conditions provided by Part 2‑9.\n\nNote: Part 2‑9 deals with miscellaneous terms and conditions of employment, such as payment of wages.","sortOrder":127},{"sectionNumber":"44","sectionType":"section","heading":"Contravening the National Employment Standards","content":"44  Contravening the National Employment Standards\n\n  An employer must not contravene a provision of the National Employment Standards.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":129},{"sectionNumber":"45","sectionType":"section","heading":"Contravening a modern award","content":"45  Contravening a modern award\n\n  A person must not contravene a term of a modern award.\n\nNote 1: This section is a civil remedy provision (see Part 4‑1).\n\nNote 2: A person does not contravene a term of a modern award unless the award applies to the person: see subsection 46(1).","sortOrder":131},{"sectionNumber":"46","sectionType":"section","heading":"The significance of a modern award applying to a person","content":"46  The significance of a modern award applying to a person\n\n (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.\n\n (2) A modern award does not give a person an entitlement unless the award applies to the person.\n\nNote: 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.","sortOrder":132},{"sectionNumber":"47","sectionType":"section","heading":"When a modern award applies to an employer, employee, organisation or outworker entity","content":"47  When a modern award applies to an employer, employee, organisation or outworker entity\n\nWhen a modern award applies to an employee, employer, organisation or outworker entity\n\n (1) A modern award applies to an employee, employer, organisation or outworker entity if:\n\n (a) the modern award covers the employee, employer, organisation or outworker entity; and\n\n (b) the modern award is in operation; and\n\n (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.\n\nNote 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.\n\nNote 2: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).\n\nModern awards do not apply to high income employees\n\n (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.\n\nModern awards apply to employees in relation to particular employment\n\n (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.","sortOrder":133},{"sectionNumber":"48","sectionType":"section","heading":"When a modern award covers an employer, employee, organisation or outworker entity","content":"48  When a modern award covers an employer, employee, organisation or outworker entity\n\nWhen a modern award covers an employee, employer, organisation or outworker entity\n\n (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.\n\nNote: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).\n\nEffect of other provisions of this Act, FWC orders or court orders on coverage\n\n (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:\n\n (a) a provision of this Act or of the Registered Organisations Act;\n\n (b) an FWC order made under a provision of this Act;\n\n (c) an order of a court.\n\n (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:\n\n (a) a provision of this Act;\n\n (b) an FWC order made under a provision of this Act;\n\n (c) an order of a court.\n\nModern awards that have ceased to operate\n\n (4) Despite subsections (1) and (2), a modern award that has ceased to operate does not cover an employee, employer, organisation or outworker entity.\n\nModern awards cover employees in relation to particular employment\n\n (5) A reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment.","sortOrder":134},{"sectionNumber":"49","sectionType":"section","heading":"When a modern award is in operation","content":"49  When a modern award is in operation\n\nWhen a modern award comes into operation\n\n (1) A modern award comes into operation:\n\n (a) on 1 July in the next financial year after it is made; or\n\n (b) if it is made on 1 July in a financial year—on that day.\n\n (2) However, if the FWC specifies another day as the day on which the modern award comes into operation, it comes into operation on that other day. The FWC must not specify another day unless it is satisfied that it is appropriate to do so.\n\n (3) The specified day must not be earlier than the day on which the modern award is made.\n\nNote: For when a State reference public sector modern award comes into operation, see section 168J.\n\nWhen a determination revoking a modern award comes into operation\n\n (4) A determination revoking a modern award comes into operation on the day specified in the determination.\n\n (5) The specified day must not be earlier than the day on which the determination is made.\n\nModern awards and revocation determinations take effect from first full pay period\n\n (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.\n\nModern awards operate until revoked\n\n (7) A modern award continues in operation until it is revoked.","sortOrder":135},{"sectionNumber":"Subdivision D","sectionType":"subdivision","heading":"Terms and conditions of employment provided by an enterprise agreement","content":"Subdivision D—Terms and conditions of employment provided by an enterprise agreement","sortOrder":136},{"sectionNumber":"50","sectionType":"section","heading":"Contravening an enterprise agreement","content":"50  Contravening an enterprise agreement\n\n  A person must not contravene a term of an enterprise agreement.\n\nNote 1: This section is a civil remedy provision (see Part 4‑1).\n\nNote 2: A person does not contravene a term of an enterprise agreement unless the agreement applies to the person: see subsection 51(1).","sortOrder":137},{"sectionNumber":"51","sectionType":"section","heading":"The significance of an enterprise agreement applying to a person","content":"51  The significance of an enterprise agreement applying to a person\n\n (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.\n\n (2) An enterprise agreement does not give a person an entitlement unless the agreement applies to the person.","sortOrder":138},{"sectionNumber":"52","sectionType":"section","heading":"When an enterprise agreement applies to an employer, employee or employee organisation","content":"52  When an enterprise agreement applies to an employer, employee or employee organisation\n\nWhen an enterprise agreement applies to an employee, employer or organisation\n\n (1) An enterprise agreement applies to an employee, employer or employee organisation if:\n\n (a) the agreement is in operation; and\n\n (b) the agreement covers the employee, employer or organisation; and\n\n (c) no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.\n\nEnterprise agreements apply to employees in relation to particular employment\n\n (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.","sortOrder":139},{"sectionNumber":"53","sectionType":"section","heading":"When an enterprise agreement covers an employer, employee or employee organisation","content":"53  When an enterprise agreement covers an employer, employee or employee organisation\n\nEmployees and employers\n\n (1) An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer.\n\nEmployee organisations\n\n (2) An enterprise agreement covers an employee organisation:\n\n (a) for an enterprise agreement that is not a greenfields agreement—if the FWC has noted in its decision to approve the agreement that the agreement covers the organisation (see subsection 201(2)); or\n\n (b) for a greenfields agreement—if the agreement is made by the organisation.\n\nEffect of provisions of this Act, FWC orders and court orders on coverage\n\n (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:\n\n (a) a provision of this Act or of the Registered Organisations Act;\n\n (b) an FWC order made under a provision of this Act;\n\n (c) an order of a court.\n\n (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:\n\n (a) another provision of this Act;\n\n (b) an FWC order made under another provision of this Act;\n\n (c) an order of a court.\n\nEnterprise agreements that have ceased to operate\n\n (5) Despite subsections (1), (2) and (3), an enterprise agreement that has ceased to operate does not cover an employee, employer or employee organisation.\n\nEnterprise agreements cover employees in relation to particular employment\n\n (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.","sortOrder":140},{"sectionNumber":"54","sectionType":"section","heading":"When an enterprise agreement is in operation","content":"54  When an enterprise agreement is in operation\n\n (1) An enterprise agreement approved by the FWC operates from:\n\n (a) 7 days after the agreement is approved; or\n\n (b) if a later day is specified in the agreement—that later day.\n\n (2) An enterprise agreement ceases to operate on the earlier of the following days:\n\n (a) the day on which a termination of the agreement comes into operation under section 224 or 227;\n\n (b) the day on which section 58 or subsection 278(1A) first has the effect that there is no employee to whom the agreement applies.\n\nNote: Section 58 and subsection 278(1A) deal with when an enterprise agreement ceases to apply to an employee.\n\n (3) An enterprise agreement that has ceased to operate can never operate again.","sortOrder":141},{"sectionNumber":"55","sectionType":"section","heading":"Interaction between the National Employment Standards and a modern award or enterprise agreement","content":"55  Interaction between the National Employment Standards and a modern award or enterprise agreement\n\nNational Employment Standards must not be excluded\n\n (1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.\n\nTerms expressly permitted by Part 2‑2 or regulations may be included\n\n (2) A modern award or enterprise agreement may include any terms that the award or agreement is expressly permitted to include:\n\n (a) by a provision of Part 2‑2 (which deals with the National Employment Standards); or\n\n (b) by regulations made for the purposes of section 127.\n\nNote: 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.\n\n (3) The National Employment Standards have effect subject to terms included in a modern award or enterprise agreement as referred to in subsection (2).\n\nNote: See also the note to section 63 (which deals with the effect of averaging arrangements).\n\nAncillary and supplementary terms may be included\n\n (4) A modern award or enterprise agreement may also include the following kinds of terms:\n\n (a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;\n\n (b) terms that supplement the National Employment Standards;\n\nbut 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.\n\nNote 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:\n\n(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\n\n(b) that specify when payment under section 90 for paid annual leave must be made.\n\nNote 2: Supplementary terms permitted by paragraph (b) include (for example) terms:\n\n(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\n\n(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).\n\nNote 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.\n\nEnterprise agreements may include terms that have the same effect as provisions of the National Employment Standards\n\n (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).\n\nEffect of terms that give an employee the same entitlement as under the National Employment Standards\n\n (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:\n\n (a) those terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit; and\n\n (b) the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement.\n\nNote: 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.\n\nTerms permitted by subsection (4) or (5) do not contravene subsection (1)\n\n (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).\n\nNote: 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).","sortOrder":144},{"sectionNumber":"56","sectionType":"section","heading":"Terms of a modern award or enterprise agreement contravening section 55 have no effect","content":"56  Terms of a modern award or enterprise agreement contravening section 55 have no effect\n\n  A term of a modern award or enterprise agreement has no effect to the extent that it contravenes section 55.","sortOrder":145},{"sectionNumber":"57","sectionType":"section","heading":"Interaction between modern awards and enterprise agreements","content":"57  Interaction between modern awards and enterprise agreements\n\n (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.\n\n (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.","sortOrder":147},{"sectionNumber":"57A","sectionType":"section","heading":"Designated outworker terms of a modern award continue to apply","content":"57A  Designated outworker terms of a modern award continue to apply\n\n (1) This section applies if, at a particular time:\n\n (a) an enterprise agreement applies to an employer; and\n\n (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\n\n (c) the modern award includes one or more designated outworker terms.\n\n (2) Despite section 57, the designated outworker terms of the modern award apply at that time to the following:\n\n (a) the employer;\n\n (b) each employee who is both:\n\n (i) a person to whom the enterprise agreement applies; and\n\n (ii) a person who is covered by the modern award;\n\n (c) each employee organisation that is covered by the modern award.\n\n (3) To avoid doubt:\n\n (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\n\n (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.","sortOrder":148},{"sectionNumber":"58","sectionType":"section","heading":"Only one enterprise agreement can apply to an employee","content":"58  Only one enterprise agreement can apply to an employee\n\nOnly one enterprise agreement can apply to an employee\n\n (1) Only one enterprise agreement can apply to an employee at a particular time.\n\nGeneral rule—later agreement does not apply until earlier agreement passes its nominal expiry date\n\n (2) If:\n\n (a) an enterprise agreement (the earlier agreement) applies to an employee in relation to particular employment; and\n\n (b) another enterprise agreement (the later agreement) that covers the employee in relation to the same employment comes into operation; and\n\n (c) subsections (3), (4) and (5) do not apply;\n\nthen:\n\n (d) if the earlier agreement has not passed its nominal expiry date:\n\n (i) the later agreement cannot apply to the employee in relation to that employment until the earlier agreement passes its nominal expiry date; and\n\n (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\n\n (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.\n\nSpecial rule—supported bargaining agreement replaces single‑enterprise agreement\n\n (3) If:\n\n (a) a single‑enterprise agreement applies to an employee in relation to particular employment; and\n\n (b) a supported bargaining agreement that covers the employee in relation to the same employment comes into operation;\n\nthe single‑enterprise agreement ceases to apply to the employee when the supported bargaining agreement comes into operation, and can never so apply again.\n\nSpecial rule—single‑enterprise agreement replaces single interest employer agreement\n\n (4) If:\n\n (a) a single interest employer agreement applies to an employee in relation to particular employment; and\n\n (b) a single‑enterprise agreement that covers the employee in relation to the same employment comes into operation;\n\nthe single interest employer agreement ceases to apply to the employee when the single‑enterprise agreement comes into operation, and can never so apply again.\n\nSpecial rule—single‑enterprise agreement replaces supported bargaining agreement\n\n (5) If:\n\n (a) a supported bargaining agreement applies to an employee in relation to particular employment; and\n\n (b) a single‑enterprise agreement that covers the employee in relation to the same employment comes into operation;\n\nthe supported bargaining agreement ceases to apply to the employee when the single‑enterprise agreement comes into operation, and can never so apply again.","sortOrder":150},{"sectionNumber":"Part 2-2","sectionType":"part","heading":"The National Employment Standards","content":"Part 2‑2—The National Employment Standards","sortOrder":151},{"sectionNumber":"59","sectionType":"section","heading":"Guide to this Part","content":"59  Guide to this Part\n\nThis Part contains the National Employment Standards.\n\nDivision 2 identifies the National Employment Standards, the detail of which is set out in Divisions 3 to 12.\n\nDivision 13 contains miscellaneous provisions relating to the National Employment Standards.\n\nThe 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).\n\nThe 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).\n\nDivisions 2, 2A and 3 of Part 6‑3 extend the operation of the parental leave, paid family and domestic violence leave and notice of termination provisions of the National Employment Standards to employees not otherwise covered by those provisions.","sortOrder":153},{"sectionNumber":"60","sectionType":"section","heading":"Meanings of employee and employer","content":"60  Meanings of employee and employer\n\n  In this Part, employee means a national system employee, and employer means a national system employer.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":154},{"sectionNumber":"61","sectionType":"section","heading":"The National Employment Standards are minimum standards applying to employment of employees","content":"61  The National Employment Standards are minimum standards applying to employment of employees\n\n (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).\n\nNote: 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.\n\n (2) The minimum standards relate to the following matters:\n\n (a) maximum weekly hours (Division 3);\n\n (b) requests for flexible working arrangements (Division 4);\n\n (ba) casual employment (Division 4A);\n\n (c) parental leave and related entitlements (Division 5);\n\n (d) annual leave (Division 6);\n\n (e) personal/carer’s leave, compassionate leave and paid family and domestic violence leave (Division 7);\n\n (f) community service leave (Division 8);\n\n (g) long service leave (Division 9);\n\n (h) public holidays (Division 10);\n\n (ha) superannuation contributions (Division 10A);\n\n (i) notice of termination and redundancy pay (Division 11);\n\n (j) Fair Work Information Statement (Division 12).\n\n (3) Divisions 3 to 12 constitute the National Employment Standards.","sortOrder":156},{"sectionNumber":"62","sectionType":"section","heading":"Maximum weekly hours","content":"62  Maximum weekly hours\n\nMaximum weekly hours of work\n\n (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:\n\n (a) for a full‑time employee—38 hours; or\n\n (b) for an employee who is not a full‑time employee—the lesser of:\n\n (i) 38 hours; and\n\n (ii) the employee’s ordinary hours of work in a week.\n\nEmployee may refuse to work unreasonable additional hours\n\n (2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.\n\nDetermining whether additional hours are reasonable\n\n (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:\n\n (a) any risk to employee health and safety from working the additional hours;\n\n (b) the employee’s personal circumstances, including family responsibilities;\n\n (c) the needs of the workplace or enterprise in which the employee is employed;\n\n (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;\n\n (e) any notice given by the employer of any request or requirement to work the additional hours;\n\n (f) any notice given by the employee of his or her intention to refuse to work the additional hours;\n\n (g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;\n\n (h) the nature of the employee’s role, and the employee’s level of responsibility;\n\n (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;\n\n (j) any other relevant matter.\n\nAuthorised leave or absence treated as hours worked\n\n (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:\n\n (a) by the employee’s employer; or\n\n (b) by or under a term or condition of the employee’s employment; or\n\n (c) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law.","sortOrder":158},{"sectionNumber":"63","sectionType":"section","heading":"Modern awards and enterprise agreements may provide for averaging of hours of work","content":"63  Modern awards and enterprise agreements may provide for averaging of hours of work\n\n (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:\n\n (a) for a full‑time employee—38 hours; or\n\n (b) for an employee who is not a full‑time employee—the lesser of:\n\n (i) 38 hours; and\n\n (ii) the employee’s ordinary hours of work in a week.\n\n (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).\n\nNote: 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)).","sortOrder":159},{"sectionNumber":"64","sectionType":"section","heading":"Averaging of hours of work for award/agreement free employees","content":"64  Averaging of hours of work for award/agreement free employees\n\n (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:\n\n (a) for a full‑time employee—38 hours; or\n\n (b) for an employee who is not a full‑time employee—the lesser of:\n\n (i) 38 hours; and\n\n (ii) the employee’s ordinary hours of work in a week.\n\n (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).\n\nNote: 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)).","sortOrder":160},{"sectionNumber":"65","sectionType":"section","heading":"Requests for flexible working arrangements","content":"65  Requests for flexible working arrangements\n\nEmployee may request change in working arrangements\n\n (1) If:\n\n (a) any of the circumstances referred to in subsection (1A) apply to an employee; and\n\n (b) the employee would like to change his or her working arrangements because of those circumstances;\n\nthen the employee may request the employer for a change in working arrangements relating to those circumstances.\n\nNote: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.\n\n (1A) The following are the circumstances:\n\n (aa) the employee is pregnant;\n\n (a) the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;\n\n (b) the employee is a carer (within the meaning of the Carer Recognition Act 2010);\n\n (c) the employee has a disability;\n\n (d) the employee is 55 or older;\n\n (e) the employee is experiencing family and domestic violence;\n\n (f) the employee provides 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 the member is experiencing family and domestic violence.\n\n (1B) To avoid doubt, and without limiting subsection (1), an employee who:\n\n (a) is a parent, or has responsibility for the care, of a child; and\n\n (b) is returning to work after taking leave in relation to the birth or adoption of the child;\n\nmay request to work part‑time to assist the employee to care for the child.\n\n (2) The employee is not entitled to make the request unless:\n\n (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\n\n (b) for a casual employee—the employee:\n\n (i) is, immediately before making the request, a regular casual employee of the employer who has been employed on that basis for a sequence of periods of employment during a period of at least 12 months; and\n\n (ii) has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.\n\n (2A) For the purposes of applying paragraph (2)(a) in relation to an employee who has had their employment changed under Division 4A of Part 2‑2, any period for which the employee was a regular casual employee of the employer is taken to be continuous service for the purposes of that paragraph.\n\nFormal requirements\n\n (3) The request must:\n\n (a) be in writing; and\n\n (b) set out details of the change sought and of the reasons for the change.\n\nAgreeing to the request","sortOrder":162},{"sectionNumber":"65A","sectionType":"section","heading":"Responding to requests for flexible working arrangements","content":"65A  Responding to requests for flexible working arrangements\n\nResponding to the request\n\n (1) If, under subsection 65(1), an employee requests an employer for a change in working arrangements relating to circumstances that apply to the employee, the employer must give the employee a written response to the request within 21 days.\n\n (2) The response must:\n\n (a) state that the employer grants the request; or\n\n (b) if, following discussion between the employer and the employee, the employer and the employee agree to a change to the employee’s working arrangements that differs from that set out in the request—set out the agreed change; or\n\n (c) subject to subsection (3)—state that the employer refuses the request and include the matters required by subsection (6).\n\n (3) The employer may refuse the request only if:\n\n (a) the employer has:\n\n (i) discussed the request with the employee; and\n\n (ii) genuinely tried to reach an agreement with the employee about making changes to the employee’s working arrangements to accommodate the circumstances mentioned in subsection (1); and\n\n (b) the employer and the employee have not reached such an agreement; and\n\n (c) the employer has had regard to the consequences of the refusal for the employee; and\n\n (d) the refusal is on reasonable business grounds.\n\nNote: An employer’s grounds for refusing a request may be taken to be reasonable business grounds, or not to be reasonable business grounds, in certain circumstances: see subsection 65C(5).\n\n (4) To avoid doubt, subparagraph (3)(a)(ii) does not require the employer to agree to a change to the employee’s working arrangements if the employer would have reasonable business grounds for refusing a request for the change.\n\nReasonable business grounds for refusing requests\n\n (5) Without limiting what are reasonable business grounds for the purposes of paragraph (3)(d) and subsection (4), reasonable business grounds for refusing a request include the following:\n\n (a) that the new working arrangements requested would be too costly for the employer;\n\n (b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested;\n\n (c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested;\n\n (d) that the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity;\n\n (e) that the new working arrangements requested would be likely to have a significant negative impact on customer service.\n\nNote: The specific circumstances of the employer, including the nature and size of the enterprise carried on by the employer, are relevant to whether the employer has reasonable business grounds for refusing a request for the purposes of paragraph (3)(d) and subsection (4). For example, if the employer has only a small number of employees, there may be no capacity to change the working arrangements of other employees to accommodate the request (see paragraph (5)(b)).\n\nEmployer must explain grounds for refusal\n\n (6) If the employer refuses the request, the written response under subsection (1) must:\n\n (a) include details of the reasons for the refusal; and\n\n (b) without limiting paragraph (a) of this subsection:\n\n (i) set out the employer’s particular business grounds for refusing the request; and\n\n (ii) explain how those grounds apply to the request; and\n\n (c) either:\n\n (i) set out the changes (other than the requested change) in the employee’s working arrangements that would accommodate, to any extent, the circumstances mentioned in subsection (1) and that the employer would be willing to make; or\n\n (ii) state that there are no such changes; and\n\n (d) set out the effect of sections 65B and 65C.\n\nGenuinely trying to reach an agreement\n\n (7) 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.","sortOrder":163},{"sectionNumber":"65B","sectionType":"section","heading":"Disputes about the operation of this Division","content":"65B  Disputes about the operation of this Division\n\nApplication of this section\n\n (1) This section applies to a dispute between an employer and an employee about the operation of this Division if:\n\n (a) the dispute relates to a request by the employee to the employer under subsection 65(1) for a change in working arrangements relating to circumstances that apply to the employee; and\n\n (b) either:\n\n (i) the employer has refused the request; or\n\n (ii) 21 days have passed since the employee made the request, and the employer has not given the employee a written response to the request under section 65A.\n\nNote 1: Modern awards and enterprise agreements must include a term that provides a procedure for settling disputes in relation to the National Employment Standards (see paragraph 146(b) and subsection 186(6)).\n\nNote 2: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards. However, a term of a modern award or an enterprise agreement has no effect to the extent it contravenes section 55 (see section 56).\n\nResolving disputes\n\n (2) In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level, by discussions between the parties.\n\nFWC may deal with disputes\n\n (3) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the FWC.\n\n (4) If a dispute is referred under subsection (3):\n\n (a) the FWC must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances; and\n\n (b) the FWC may deal with the dispute by arbitration in accordance with section 65C.\n\nNote: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate. The FWC commonly deals with disputes by conciliation. The FWC may also deal with the dispute by mediation, making a recommendation or expressing an opinion (see subsection 595(2)).\n\nRepresentatives\n\n (5) The employer or employee may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of:\n\n (a) resolving the dispute; or\n\n (b) the FWC dealing with the dispute.\n\nNote: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).","sortOrder":164},{"sectionNumber":"65C","sectionType":"section","heading":"Arbitration","content":"65C  Arbitration\n\n (1) For the purposes of paragraph 65B(4)(b), the FWC may deal with the dispute by arbitration by making any of the following orders:\n\n (a) if the employer has not given the employee a written response to the request under section 65A—an order that the employer be taken to have refused the request;\n\n (b) if the employer refused the request:\n\n (i) an order that it would be appropriate for the grounds on which the employer refused the request to be taken to have been reasonable business grounds; or\n\n (ii) an order that it would be appropriate for the grounds on which the employer refused the request to be taken not to have been reasonable business grounds;\n\n (e) if the FWC is satisfied that the employer has not responded, or has not responded adequately, to the employee’s request under section 65A—an order that the employer take such further steps as the FWC considers appropriate, having regard to the matters in section 65A;\n\n (f) subject to subsection (3) of this section:\n\n (i) an order that the employer grant the request; or\n\n (ii) an order that the employer make specified changes (other than the requested changes) in the employee’s working arrangements to accommodate, to any extent, the circumstances mentioned in paragraph 65B(1)(a).\n\nNote: An order by the FWC under paragraph (e) could, for example, require the employer to give a response, or further response, to the employee’s request, and could set out matters that must be included in the response or further response.\n\n (2) In making an order under subsection (1), the FWC must take into account fairness between the employer and the employee.\n\n (2A) The FWC must not make an order under paragraph (1)(e) or (f) that would be inconsistent with:\n\n (a) a provision of this Act; or\n\n (b) a term of a fair work instrument (other than an order made under that paragraph) that, immediately before the order is made, applies to the employer and employee.\n\n (3) The FWC may make an order under paragraph (1)(f) only if the FWC is satisfied that there is no reasonable prospect of the dispute being resolved without the making of such an order.\n\n (4) If the FWC makes an order under paragraph (1)(a), the employer is taken to have refused the request.\n\n (5) If the FWC makes an order under paragraph (1)(b), the grounds on which the employer refuses the request are taken:\n\n (a) for an order made under subparagraph (1)(b)(i)—to be reasonable business grounds; or\n\n (b) for an order made under subparagraph (1)(b)(ii)—not to be reasonable business grounds.\n\nContravening an order under subsection (1)\n\n (6) A person must not contravene a term of an order made under subsection (1).\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).","sortOrder":165},{"sectionNumber":"66","sectionType":"section","heading":"State and Territory laws that are not excluded","content":"66  State and Territory laws that are not excluded\n\n  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.","sortOrder":166},{"sectionNumber":"Division 4A","sectionType":"division","heading":"Casual employment","content":"Division 4A—Casual employment","sortOrder":167},{"sectionNumber":"66A","sectionType":"section","heading":"Division applies to casual employees etc.","content":"66A  Division applies to casual employees etc.\n\n (1) This Division applies in relation to an employee who is a casual employee.\n\n (2) A reference in this Division to full‑time employment or part‑time employment is taken not to include employment for a specified period of time, for a specified task or for the duration of a specified season.","sortOrder":169},{"sectionNumber":"66AAA","sectionType":"section","heading":"Object of this Division","content":"66AAA  Object of this Division\n\n  The object of this Division is to establish a framework for dealing with changes to casual employment status that:\n\n (a) is quick, flexible and informal; and\n\n (b) addresses the needs of employers and employees; and\n\n (c) provides for the resolution of disputes to support employee choice about employment status.","sortOrder":170},{"sectionNumber":"66AAB","sectionType":"section","heading":"Employee notification","content":"66AAB  Employee notification\n\n  A casual employee may give an employer a written notification under this section if:\n\n (a) having regard to subsections 15A(1) to (4) and the employee’s current employment relationship with the employer, the employee believes that the employee no longer meets the requirements of those subsections; and\n\n (b) the employee does not have a dispute with the employer relating to the operation of Division 4A of Part 2‑2 being dealt with under section 66M (including by way of arbitration under section 66MA) or under section 739; and\n\n (c) if the employer:\n\n (i) is a small business employer at the time the notification is given—the employee has been employed by the employer for a period of at least 12 months beginning the day the employment started; or\n\n (ii) is not a small business employer at the time the notification is given—the employee has been employed by the employer for a period of at least 6 months beginning the day the employment started; and\n\n (d) in the period of 6 months before the day the notification is given, the employee has not:\n\n (i) received a response from the employer under section 66AAC not accepting a previous notification made under this section; or\n\n (v) had a dispute with the employer relating to the operation of Division 4A of Part 2‑2 resolved under section 66M (including by way of arbitration under section 66MA) or under section 739.\n\nNote: This section does not prevent an employee changing to full‑time employment or part‑time employment other than under this Division (see paragraphs 15A(5)(c) and (d)).","sortOrder":172},{"sectionNumber":"66AAC","sectionType":"section","heading":"Employer response","content":"66AAC  Employer response\n\nTiming of response\n\n (1) An employer must give an employee a written response to a notification given under section 66AAB within 21 days after the notification is given to the employer.\n\nInformation that must be included in response\n\n (2) The response must be in writing and include the following:\n\n (a) a statement that the employer:\n\n (i) accepts the notification; or\n\n (ii) does not accept the notification on one or more grounds referred to in subsection (4); and\n\n (b) if the employer accepts the notification—the following information:\n\n (i) whether the employee is changing to full‑time employment or part‑time employment;\n\n (ii) the employee’s hours of work after the change takes effect;\n\n (iii) the day the employee’s change to full‑time employment or part‑time employment takes effect;\n\n (c) if the employer does not accept the notification—reasons for the employer’s decision.\n\nConsulting with employee\n\n (3) Before giving a response under subsection (1), the employer must consult with the employee about the notification and must, if the employer is accepting the notification, discuss the matters the employer intends to specify for the purposes of subparagraphs (2)(b)(i) to (iii).\n\nGrounds for employer to not accept notification\n\n (4) For the purposes of subparagraph (2)(a)(ii), the employer may not accept the notification on any of the following grounds:\n\n (a) having regard to subsections 15A(1) to (4) and the employee’s current employment relationship with the employer, the employee still meets the requirements of those subsections;\n\n (b) there are fair and reasonable operational grounds for not accepting the notification;\n\n (c) accepting the notification would result in the employer not complying with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.\n\nNote 2: In relation to paragraph (4)(c), see (for example) the APS Employment Principle at paragraph 10A(1)(c) of the Public Service Act 1999 (which deals with decisions based on merit) and any directions made under subsection 11A(2) of that Act in relation to that principle.\n\n (5) For the purposes of paragraph (4)(b), fair and reasonable operational grounds for not accepting the notification include the following:\n\n (a) substantial changes would be required to the way in which work in the employer’s enterprise is organised;\n\n (b) there would be significant impacts on the operation of the employer’s enterprise;\n\n (c) substantial changes to the employee’s terms and conditions would be reasonably necessary to ensure the employer does not contravene a term of a fair work instrument that would apply to the employee as a full‑time employee or part‑time employee (as the case may be).\n\nNote: For the purposes of paragraphs (5)(a) and (c), substantial changes include changes that significantly affect the way an employee would need to work.","sortOrder":173},{"sectionNumber":"66AAD","sectionType":"section","heading":"Effect of employer acceptance of employee notification","content":"66AAD  Effect of employer acceptance of employee notification\n\n (1) If an employer responds under section 66AAC that the employer accepts an employee’s notification given under section 66AAB, the employee is taken to be a full‑time employee or part‑time employee (as the case may be) beginning on the day specified in the response.\n\n (2) The day specified in the response for the purposes of subsection (1) must be the first day of the employee’s first full pay period that starts after the day the employer response is given, unless the employer and employee agree to another day.","sortOrder":174},{"sectionNumber":"66K","sectionType":"section","heading":"Effect of change","content":"66K  Effect of change\n\n  To avoid doubt, an employee is taken, on and after the day specified in a notice for the purposes of subparagraph 66AAC(2)(b)(iii), to be a full‑time employee or part‑time employee of the employer for the purposes of the following:\n\n (a) this Act and any other law of the Commonwealth;\n\n (b) a law of a State or Territory;\n\n (c) any fair work instrument that applies to the employee;\n\n (d) the employee’s contract of employment.","sortOrder":176},{"sectionNumber":"66L","sectionType":"section","heading":"Other rights and obligations","content":"66L  Other rights and obligations\n\n (1) An employer must not do any of the following in order to avoid any right or obligation under this Division:\n\n (a) reduce or vary an employee’s hours of work;\n\n (b) change the employee’s pattern of work;\n\n (c) terminate an employee’s employment.\n\nNote: The general protections provisions in Part 3‑1 also prohibit the taking of adverse action by an employer against an employee (which includes a casual employee) because of a workplace right of the employee under this Division.\n\n (2) Nothing in this Division:\n\n (a) requires an employee to change to full‑time employment or part‑time employment under this Division; or\n\n (b) permits an employer to require an employee to change to full‑time employment or part‑time employment under this Division; or\n\n (c) requires an employer to increase the hours of work of an employee who gives a notification to change to full‑time employment or part‑time employment under this Division.\n\n (3) To avoid doubt, each of the following is a workplace right within the meaning of Part 3‑1:\n\n (a) giving an employer a notification under section 66AAB;\n\n (b) receiving a response from an employer in accordance with section 66AAC;\n\n (c) being taken to be a full‑time employee or part‑time employee under section 66AAD;\n\n (d) receiving an offer or notice in accordance with sections 66B and 66C;\n\n (e) accepting an offer and receiving a notice under section 66E;\n\n (f) participating in a dispute about the operation of this Division in accordance with sections 66M and 66MA.\n\nNote: The general protections provisions in Part 3‑1 prohibit adverse action, coercion, undue influence or pressure, and misrepresentations because of a workplace right of an employee.","sortOrder":177},{"sectionNumber":"66M","sectionType":"section","heading":"Disputes about the operation of this Division","content":"66M  Disputes about the operation of this Division\n\nApplication of this section to disputes about employee choice\n\n (1) This section applies to a dispute between an employer and an employee about the operation of Subdivision B of this Division.\n\nResolving disputes\n\n (4) In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level, by discussions between the parties.\n\nNote 1: Modern awards and enterprise agreements must include a term that provides a procedure for settling disputes in relation to the National Employment Standards (see paragraph 146(b) and subsection 186(6)).\n\nNote 2: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards. However, a term of a modern award or an enterprise agreement has no effect to the extent it contravenes section 55 (see section 56).\n\nFWC may deal with disputes\n\n (5) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the FWC.\n\n (6) If a dispute is referred under subsection (5):\n\n (a) the FWC must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances; and\n\n (b) the FWC may deal with the dispute by arbitration in accordance with section 66MA.\n\nNote: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate, including by mediation, conciliation, making a recommendation or expressing an opinion (see subsection 595(2)).\n\nRepresentatives\n\n (10) The employer or employee may appoint a person, or an employer organisation or employee organisation, that is entitled to represent the industrial interests of the employer or employee to provide the employer or employee (as the case may be) with support or representation for the purposes of:\n\n (a) resolving the dispute; or\n\n (b) the FWC dealing with the dispute.\n\nNote: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).\n\nProcedural rules\n\n (11) Without limiting section 609, the procedural rules may provide, in relation to a dispute between an employer and employee that has been referred to the FWC under subsection (5) of this section, for the joinder of the following as parties to the dispute:\n\n (a) any other employee that has a dispute to which this section applies with the same employer;\n\n (b) any employee organisation that is entitled to represent the industrial interests of such an employee.","sortOrder":178},{"sectionNumber":"66MA","sectionType":"section","heading":"Arbitration","content":"66MA  Arbitration\n\nFWC may make any orders it considers appropriate\n\n (1) For the purposes of paragraph 66M(6)(b), the FWC may deal with the dispute by arbitration, including by making any orders it considers appropriate, including (but not limited to) any order referred to in subsection (4) of this section.\n\n (2) However, the FWC must not make an order under this section unless the FWC considers that it would be fair and reasonable to make the order.\n\nNote: The FWC must also take into account the object of this Act and the object of this Division (see paragraph 578(a)).\n\n (3) The FWC must not make an order under subsection (1) that would be inconsistent with:\n\n (a) a provision of this Act; or\n\n (b) a term of a fair work instrument (other than an order made under that subsection) that, immediately before the order is made, applies to the employer and employee.\n\nOrders relating to employee choice\n\n (4) For the purposes of paragraph (1)(a), the orders are the following:\n\n (a) that the employee continue to be treated as a casual employee;\n\n (b) that the employee be treated as a full‑time employee or part‑time employee (as the case may be) from the first day of the employee’s first full pay period that starts after the day the order is made, or such later day that the FWC considers appropriate.\n\n (5) In considering whether to make, and the terms of, an order under subsection (1) (including an order referred to in subsection (4)) in relation to a dispute about the operation of Subdivision B of this Division (which deals with employee choice about casual employment), the FWC must:\n\n (a) have regard to whether substantial changes to the employee’s terms and conditions would be reasonably necessary to ensure the employer does not contravene a term of a fair work instrument that would apply to the employee as a full‑time employee or part‑time employee; and\n\n (b) disregard conduct of the employer and employee that occurred after the employee gave the notification under section 66AAB (which deals with employee choice notifications) to the employer.\n\nContravening an order under subsection (1)\n\n (8) A person must not contravene a term of an order made under subsection (1).\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).","sortOrder":179},{"sectionNumber":"Division 5","sectionType":"division","heading":"Parental leave and related entitlements","content":"Division 5—Parental leave and related entitlements","sortOrder":180},{"sectionNumber":"67","sectionType":"section","heading":"General rule—employee must have completed at least 12 months of service","content":"67  General rule—employee must have completed at least 12 months of service\n\nEmployees other than casual employees\n\n (1) An employee, other than a casual employee, is not entitled to leave under this Division (other than unpaid pre‑adoption leave or unpaid no safe job 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).\n\n (1A) For the purposes of applying subsection (1) in relation to an employee who has had their employment changed under Division 4A of Part 2‑2, any period for which the employee was a regular casual employee of the employer is taken to be continuous service for the purposes of that subsection.\n\nCasual employees\n\n (2) A casual employee, is not entitled to leave (other than unpaid pre‑adoption leave or unpaid no safe job leave) under this Division unless:\n\n (a) the employee is, or will be, immediately before the date that applies under subsection (3), a regular casual employee of the employer who has been employed on that basis for a sequence of periods of employment during a period of at least 12 months; and\n\n (b) but for:\n\n (i) the birth or expected birth of the child; or\n\n (ii) the placement or the expected placement of the child;\n\n  the employee would have a reasonable expectation of continuing employment by the employer on a regular and systematic basis.\n\nDate at which employee must have completed 12 months of service\n\n (3) For the purposes of subsections (1) and (2), the date that applies is:\n\n (a) if the leave is:\n\n (i) birth‑related leave starting before the birth of the child; or\n\n (ii) unpaid special parental leave;\n\n  the expected date of birth of the child; or\n\n (b) in any other case—the date on which the employee’s period of leave is to start.\n\nMeaning of birth‑related leave\n\n (4) Birth‑related leave means leave of either of the following kinds:\n\n (a) unpaid parental leave taken in association with the birth of a child (see section 70);\n\n (b) unpaid special parental leave (see section 80).\n\nMeaning of adoption‑related leave\n\n (5) Adoption‑related leave means leave of either of the following kinds:\n\n (a) unpaid parental leave taken in association with the placement of a child for adoption (see section 70);\n\n (b) unpaid pre‑adoption leave (see section 85).\n\nMeaning of day of placement\n\n (6) The day of placement, in relation to the adoption of a child by an employee, means the earlier of the following days:\n\n (a) the day on which the employee first takes custody of the child for the adoption;\n\n (b) the day on which the employee starts any travel that is reasonably necessary to take custody of the child for the adoption.","sortOrder":182},{"sectionNumber":"68","sectionType":"section","heading":"General rule for adoption-related leave—child must be under 16 etc.","content":"68  General rule for adoption‑related leave—child must be under 16 etc.\n\n  An employee is not entitled to adoption‑related leave unless the child that is, or is to be, placed with the employee for adoption:\n\n (a) is, or will be, under 16 as at the day of placement, or the expected day of placement, of the child; and\n\n (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\n\n (c) is not (otherwise than because of the adoption) a child of the employee or the employee’s spouse or de facto partner.","sortOrder":183},{"sectionNumber":"69","sectionType":"section","heading":"Transfer of employment situations in which employee is entitled to continue on leave etc.","content":"69  Transfer of employment situations in which employee is entitled to continue on leave etc.\n\n (1) If:\n\n (a) there is a transfer of employment in relation to an employee; and\n\n (b) the employee has already started a period of leave under this Division when the employee’s employment with the first employer ends;\n\nthe employee is entitled to continue on that leave for the rest of that period.\n\n (2) If:\n\n (a) there is a transfer of employment in relation to an employee; and\n\n (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;\n\nthe employee is taken to have taken the step in relation to the second employer.\n\nNote: Steps covered by this subsection include (for example) complying with a notice or evidence requirement of section 74 in relation to the first employer.","sortOrder":184},{"sectionNumber":"70","sectionType":"section","heading":"Entitlement to unpaid parental leave","content":"70  Entitlement to unpaid parental leave\n\n  An employee is entitled to 12 months of unpaid parental leave if:\n\n (a) the leave is associated with:\n\n (i) the birth of a child of the employee or the employee’s spouse or de facto partner; or\n\n (ii) the placement of a child with the employee for adoption; and\n\n (b) the employee has or will have a responsibility for the care of the child.\n\nNote: The employee’s entitlement under this section may be affected by other provisions of this Division.","sortOrder":186},{"sectionNumber":"71","sectionType":"section","heading":"The period of leave","content":"71  The period of leave\n\nApplication of this section\n\n (1) This section applies to an employee who intends to take unpaid parental leave.\n\nLeave must be taken in single continuous period\n\n (2) The employee must take the leave in a single continuous period.\n\nNote 1: An employee may take a form of paid leave at the same time as the employee is on unpaid parental leave (see section 79).\n\nNote 2: For provisions affecting the rule in this subsection, see:\n\n(a) subsection 72A(11) (flexible unpaid parental leave); and\n\n(b) subsection 73(4) (pregnant employee may be required to take unpaid parental leave within 6 weeks before the birth); and\n\n(c) paragraph 78A(2)(b) (permitted work periods while child is hospitalised); and\n\n(d) subsection 79A(1) (keeping in touch days).\n\nWhen birth‑related leave must start and end\n\n (3) If the leave is birth‑related leave for an employee who is pregnant with, or gives birth to, the child, the period of leave may start:\n\n (a) up to 6 weeks before the expected date of birth of the child; or\n\n (b) earlier, if the employer and employee so agree; or\n\n (c) during the 24‑month period starting on the date of birth of the child;\n\nbut must end during the 24‑month period starting on the date of birth of the child.\n\nNote 1: If the employee is not fit for work, the employee may be entitled to:\n\n(a) paid personal leave under Subdivision A of Division 7; or\n\n(b) unpaid special parental leave under section 80.\n\nNote 2: If it is inadvisable for the employee to continue in the employee’s present position, the employee may be entitled:\n\n(a) to be transferred to an appropriate safe job under section 81; or\n\n(b) to paid no safe job leave under section 81A; or\n\n(c) to unpaid no safe job leave under section 82A.\n\nNote 3: Section 344 prohibits the exertion of undue influence or undue pressure on the employee in relation to a decision by the employee whether to agree as mentioned in paragraph (3)(b) of this section.\n\n (4) If the leave is birth‑related leave but subsection (3) does not apply, the period of leave must start and end during the 24‑month period starting on the date of birth of the child.\n\nWhen adoption‑related leave must start and end\n\n (5) If the leave is adoption‑related leave, the period of leave must start and end during the 24‑month period starting on the day of placement of the child.\n\nLimit on amount of leave\n\n (6) The employee may take unpaid parental leave under this section only if the period of leave is no longer than 12 months, less the employee’s notional flexible period.\n\nNote: An employee is entitled under section 76 to request an extension of the period of leave beyond the employee’s 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)).","sortOrder":187},{"sectionNumber":"72A","sectionType":"section","heading":"Flexible unpaid parental leave","content":"72A  Flexible unpaid parental leave\n\nTaking leave during 24 months starting on date of birth or day of placement\n\n (1) An employee may take up to 100 days (or, if a higher number of days is prescribed by the regulations, that higher number of days) of unpaid parental leave (flexible unpaid parental leave) during the 24‑month period starting on the date of birth or day of placement of the child if the requirements of this section are satisfied in relation to the leave.\n\nNote 1: The flexible unpaid parental leave is unpaid parental leave and so comes out of the employee’s entitlement to 12 months of unpaid parental leave under section 70.\n\nNote 2: The number of days of flexible unpaid parental leave that the employee takes must not be more than the number of flexible days notified to the employer under subsection 74(3C) (subject to any agreement under subsection 74(3D)).\n\n (2) Flexible unpaid parental leave under subsection (1) is available in full to part‑time and casual employees.\n\nTaking leave that starts up to 6 weeks before the expected date of birth of the child\n\n (2A) A pregnant employee may take unpaid parental leave (flexible unpaid parental leave) during the period that starts 6 weeks before the expected date of birth of the child if the requirements of this section are satisfied in relation to the leave.\n\nNote 1: The flexible unpaid parental leave is unpaid parental leave and so comes out of the employee’s entitlement to 12 months of unpaid parental leave under section 70.\n\nNote 2: The number of days of flexible unpaid parental leave that the employee takes must not be more than the number of flexible days notified to the employer under subsection 74(3C) (subject to any agreement under subsection 74(3D)).\n\n (2B) Flexible unpaid parental leave under subsection (2A) is available in full to pregnant part‑time employees and pregnant casual employees.\n\n (2C) The amount of flexible unpaid parental leave to which an employee is entitled under subsection (1) in relation to the child is reduced by the number of days of flexible unpaid parental leave taken by the employee under subsection (2A) in relation to the child.\n\nHow flexible unpaid parental leave may be taken\n\n (3) The employee must take the flexible unpaid parental leave as:\n\n (a) a single continuous period of one or more days; or\n\n (b) separate periods of one or more days each.\n\nEffect of taking unpaid parental leave under other provisions\n\n (4) The employee may take the flexible unpaid parental leave whether or not the employee has taken unpaid parental leave under another provision of this Division in relation to the child.\n\n (5) However, the employee may take flexible unpaid parental leave after taking one or more periods of unpaid parental leave under another provision of this Division only if the total of those periods (disregarding any extension under section 76A) is no longer than 12 months, less the employee’s notional flexible period.\n\nMeaning of notional flexible period\n\n (6) An employee’s notional flexible period is the period during which the employee would be on flexible unpaid parental leave if the employee took leave for all the employee’s flexible days in a single continuous period. For this purpose, the employee’s flexible days are the flexible days notified to the employer under subsection 74(3C) (subject to any agreement under subsection 74(3D)).\n\n (7) For the purposes of subsection (6), assume that:\n\n (a) the employee ordinarily works each day that is not a Saturday or a Sunday; and\n\n (b) there are no public holidays during the period.\n\nMultiple births\n\n (10) An employee is not entitled to take flexible unpaid parental leave in relation to a child if:\n\n (a) the child and another child:\n\n (i) are born during the same multiple birth; or\n\n (ii) are both placed with the employee for adoption and have the same day of placement; and\n\n (b) the employee takes flexible unpaid parental leave in relation to the other child.\n\nInteraction with section 71\n\n (11) Flexible unpaid parental leave taken by an employee is an exception to the rules in section 71 about:\n\n (a) taking the employee’s unpaid parental leave in a single continuous period; and\n\n (b) when the employee’s period of unpaid parental leave must start.\n\n (12) Despite anything in subsection (11), flexible unpaid parental leave cannot be used to break up a period of unpaid parental leave taken under section 71.","sortOrder":188},{"sectionNumber":"73","sectionType":"section","heading":"Pregnant employee may be required to take unpaid parental leave within 6 weeks before the birth","content":"73  Pregnant employee may be required to take unpaid parental leave within 6 weeks before the birth\n\nEmployer may ask employee to provide a medical certificate\n\n (1) If a pregnant employee who is entitled to unpaid parental leave (whether or not the employee 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):\n\n (a) a statement of whether the employee is fit for work;\n\n (b) if the employee is fit for work—a statement of whether it is inadvisable for the employee to continue in the employee’s present position during a stated period because of:\n\n (i) illness, or risks, arising out of the employee’s pregnancy; or\n\n (ii) hazards connected with the position.\n\nNote: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.\n\nEmployer may require employee to take unpaid parental leave\n\n (2) The employer may require the employee to take a period of unpaid parental leave other than flexible unpaid parental leave (the period of leave) as soon as practicable if:\n\n (a) the employee does not give the employer the requested certificate within 7 days after the request; or\n\n (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\n\n (c) the following subparagraphs are satisfied:\n\n (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 the employee’s present position for a stated period for a reason referred to in subparagraph (1)(b)(i) or (ii);\n\n (ii) the employee has not complied with the notice and evidence requirements of section 74 for taking unpaid parental leave.\n\nNote: If the medical certificate contains a statement as referred to in subparagraph (c)(i) and the employee has complied with the notice and evidence requirements of section 74, then the employee is entitled to be transferred to a safe job (see section 81) or to paid no safe job leave (see section 81A).\n\nWhen the period of leave must end\n\n (3) The period of leave must not end later than the earlier of the following:\n\n (a) the end of the pregnancy;\n\n (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.\n\nSpecial rules about the period of leave\n\n (4) The period of leave is an exception to the rules in section 71 about:\n\n (a) taking the employee’s unpaid parental leave in a single continuous period; and\n\n (b) when the employee’s period of unpaid parental leave must start.\n\nNote: 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.\n\n (5) The employee is not required to comply with section 74 in relation to the period of leave.","sortOrder":189},{"sectionNumber":"74","sectionType":"section","heading":"Notice and evidence requirements","content":"74  Notice and evidence requirements\n\nGeneral requirement to give notice of taking leave\n\n (1) An employee must give the employee’s employer written notice of the taking of unpaid parental leave under section 71, or flexible unpaid parental leave, or both, by the employee.\n\nNotice requirements\n\n (2) The employee must give the notice to the employer:\n\n (a) at least 10 weeks before starting any of the leave covered by the notice; or\n\n (b) if that is not practicable, and:\n\n (i) the first or only period of leave covered by the notice is leave to be taken under section 71; or\n\n (ii) any of the leave covered by the notice starts before the child’s date of birth or expected date of birth;\n\n  as soon as practicable (which may be a time after any of the leave covered by the notice has started).\n\n (2A) However, if the first or only period of leave covered by the notice is leave to be taken under section 72A, the notice may be given at any later time if the employer agrees.\n\n (3) If any of the leave covered by the notice is to be taken under section 71, the notice must specify the intended start and end dates of the leave to be taken under section 71.\n\n (3C) If any of the leave covered by the notice is to be taken under section 72A, the notice must specify the total number of days (flexible days) of flexible unpaid parental leave that the employee intends to take in relation to the child.\n\n (3D) If the employer agrees, the employee may:\n\n (a) reduce the number of flexible days, including by reducing the number of flexible days to zero; or\n\n (b) increase the number of flexible days, but not so as to increase the number of flexible days above 100 (or, if a higher number of days is prescribed by regulations made for the purposes of subsection 72A(1), that higher number).\n\nTaking leave under section 71—confirming or changing intended start and end dates\n\n (4) If any of the leave covered by the notice is to be taken under section 71, then at least 4 weeks before the intended start date specified in the notice given under subsection (1), the employee must:\n\n (a) confirm the intended start and end dates of the leave to be taken under section 71; or\n\n (b) advise the employer of any changes to the intended start and end dates of the leave to be taken under section 71;\n\nunless it is not practicable to do so.\n\nTaking flexible unpaid parental leave—notifying days on which employee will take leave\n\n (4B) The employee must give the employer written notice of a flexible day on which the employee will take flexible unpaid parental leave:\n\n (a) at least 4 weeks before that day; or\n\n (b) if that is not practicable—as soon as practicable (which may be a time after the leave has started).\n\nNote: Whether or not it is practicable for the employee to give notice at least 4 weeks before that day will depend on the employee’s personal and family circumstances. For example, it may not be practicable for the employee to give notice at least 4 weeks before that day where the employee experiences a health issue, a pregnancy complication or an unexpected change in the employee’s child care arrangements.\n\n (4C) If the employer agrees, the employee may change a day on which the employee takes flexible unpaid parental leave from a day specified in a notice under subsection (4B).\n\nEvidence requirements\n\n (5) An employee who has given the employee’s 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:\n\n (a) if the leave is birth‑related leave:\n\n (i) of the date of birth, or the expected date of birth, of the child; and\n\n (ii) that paragraph 77A(1)(a) (which deals with the stillbirth of a child) applies in relation to the employee, if relevant; or\n\n (b) if the leave is adoption‑related leave:\n\n (i) of the day of placement, or the expected day of placement, of the child; and\n\n (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.\n\n (6) Without limiting subsection (5), an employer may require the evidence referred to in paragraph (5)(a) to be a medical certificate.\n\nExample: If the application of paragraph 77A(1)(a) (which deals with the stillbirth of a child) is relevant—certification by a medical practitioner of the child as having been delivered.\n\nCompliance\n\n (7) An employee is not entitled to take unpaid parental leave under section 71, or flexible unpaid parental leave, unless the employee complies with this section.\n\nNote: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.","sortOrder":190},{"sectionNumber":"75","sectionType":"section","heading":"Extending period of unpaid parental leave—extending to use more of available parental leave period","content":"75  Extending period of unpaid parental leave—extending to use more of available parental leave period\n\nApplication of this section\n\n (1) This section applies if:\n\n (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) under section 71; and\n\n (b) the original leave period is less than the employee’s available parental leave period; and\n\n (c) the original leave period has started.\n\n (2) The employee’s available parental leave period is 12 months, less any periods of the following kinds:\n\n (b) a period of unpaid parental leave that the employee has been required to take under subsection 73(2) or 82(2);\n\n (d) if the employee has given notice in accordance with subsection 74(2) or (2A) of the taking of flexible unpaid parental leave—a period equal to the employee’s notional flexible period.\n\nFirst extension by giving notice to employer\n\n (3) The employee may extend the period of unpaid parental leave taken under section 71 by giving the employee’s 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.\n\n (4) Only one extension is permitted under subsection (3).\n\nFurther extensions by agreement with employer\n\n (5) If the employer agrees, the employee may further extend the period of unpaid parental leave one or more times.\n\nNo entitlement to extension beyond available parental leave period\n\n (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.","sortOrder":191},{"sectionNumber":"76","sectionType":"section","heading":"Extending period of unpaid parental leave—extending for up to 12 months beyond available parental leave period","content":"76  Extending period of unpaid parental leave—extending for up to 12 months beyond available parental leave period\n\nEmployee may request further period of leave\n\n (1) An employee who takes unpaid parental leave under section 71 for the employee’s available parental leave period may request the employee’s 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.\n\nNote: Extended periods of unpaid parental leave can include keeping in touch days on which an employee performs work (see section 79A).\n\nMaking the request\n\n (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.\n\nNote: The request must be made when the employee is taking unpaid parental leave under section 71.\n\nNo extension beyond 24 months after birth or placement\n\n (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.","sortOrder":192},{"sectionNumber":"76A","sectionType":"section","heading":"Responding to requests for extension of unpaid parental leave","content":"76A  Responding to requests for extension of unpaid parental leave\n\nResponding to the request\n\n (1) If, under subsection 76(1), an employee requests an 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, the employer must give the employee a written response to the request within 21 days.\n\n (2) The response must:\n\n (a) state that the employer grants the request; or\n\n (b) if, following discussion between the employer and the employee, the employer and the employee agree to an extension of unpaid parental leave for the employee for a period that differs from the period requested—set out the agreed extended period; or\n\n (c) subject to subsection (3)—state that the employer refuses the request and include the matters required by subsection (6).\n\n (3) The employer may refuse the request only if:\n\n (a) the employer has:\n\n (i) discussed the request with the employee; and\n\n (ii) genuinely tried to reach an agreement with the employee about an extension of the period of unpaid parental leave for the employee; and\n\n (b) the employer and the employee have not reached such an agreement; and\n\n (c) the employer has had regard to the consequences of the refusal for the employee; and\n\n (d) the refusal is on reasonable business grounds.\n\nNote: An employer’s grounds for refusing a request may be taken to be reasonable business grounds, or not to be reasonable business grounds, in certain circumstances (see subsection 76C(6)).\n\n (4) To avoid doubt, subparagraph (3)(a)(ii) does not require the employer to agree to an extension of the period of unpaid parental leave for the employee if the employer would have reasonable business grounds for refusing a request for the extension.\n\nReasonable business grounds for refusing requests\n\n (5) Without limiting what are reasonable business grounds for the purposes of paragraph (3)(d) and subsection (4), reasonable business grounds for refusing a request include the following:\n\n (a) that the extension of the period of unpaid parental leave requested by the employee would be too costly for the employer;\n\n (b) that there is no capacity to change the working arrangements of other employees to accommodate the extension of the period of unpaid parental leave requested by the employee;\n\n (c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the extension of the period of unpaid parental leave requested by the employee;\n\n (d) that the extension of the period of unpaid parental leave requested by the employee would be likely to result in a significant loss in efficiency or productivity;\n\n (e) that the extension of the period of unpaid parental leave requested by the employee would be likely to have a significant negative impact on customer service.\n\nNote: The specific circumstances of the employer, including the nature and size of the enterprise carried on by the employer, are relevant to whether the employer has reasonable business grounds for refusing a request for the purposes of paragraph (3)(d) and subsection (4). For example, if the employer has only a small number of employees, there may be no capacity to change the working arrangements of other employees to accommodate the request (see paragraph (5)(b)).\n\nEmployer must explain grounds for refusal\n\n (6) If the employer refuses the request, the written response under subsection (1) must:\n\n (a) include details of the reasons for the refusal; and\n\n (b) without limiting paragraph (a) of this subsection:\n\n (i) set out the employer’s particular business grounds for refusing the request; and\n\n (ii) explain how those grounds apply to the request; and\n\n (c) either:\n\n (i) set out the extension of the period of unpaid parental leave for the employee (other than the period requested by the employee) that the employer would be willing to agree to; or\n\n (ii) state that there is no extension of the period that the employer would be willing to agree to; and\n\n (d) set out the effect of sections 76B and 76C.\n\nGenuinely trying to reach an agreement\n\n (7) 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.","sortOrder":193},{"sectionNumber":"76B","sectionType":"section","heading":"Disputes about extension of period of unpaid parental leave","content":"76B  Disputes about extension of period of unpaid parental leave\n\nApplication of this section\n\n (1) This section applies to a dispute between an employer and an employee that relates to a request by the employee to the employer under subsection 76(1) 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 if:\n\n (a) the employer has refused the request; or\n\n (b) 21 days have passed since the employee made the request, and the employer has not given the employee a written response to the request under section 76A.\n\nNote 1: Modern awards and enterprise agreements must include a term that provides a procedure for settling disputes in relation to the National Employment Standards (see paragraph 146(b) and subsection 186(6)).\n\nNote 2: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards. However, a term of a modern award or an enterprise agreement has no effect to the extent it contravenes section 55 (see section 56).\n\nResolving disputes\n\n (2) In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level, by discussions between the parties.\n\nFWC may deal with disputes\n\n (3) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the FWC.\n\n (4) If a dispute is referred under subsection (3):\n\n (a) the FWC must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances; and\n\n (b) the FWC may deal with the dispute by arbitration in accordance with section 76C.\n\nNote: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate. The FWC commonly deals with disputes by conciliation. The FWC may also deal with the dispute by mediation, making a recommendation or expressing an opinion (see subsection 595(2)).\n\nRepresentatives\n\n (5) The employer or employee may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of:\n\n (a) resolving the dispute; or\n\n (b) the FWC dealing with the dispute.\n\nNote: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).","sortOrder":194},{"sectionNumber":"76C","sectionType":"section","heading":"Arbitration","content":"76C  Arbitration\n\n (1) For the purposes of paragraph 76B(4)(b), the FWC may deal with the dispute by arbitration by making any of the following orders:\n\n (a) if the employer has not given the employee a written response to the request under section 76A—an order that the employer be taken to have refused the request;\n\n (b) if the employer refused the request:\n\n (i) an order that it would be appropriate for the grounds on which the employer refused the request to be taken to have been reasonable business grounds; or\n\n (ii) an order that it would be appropriate for the grounds on which the employer refused the request to be taken not to have been reasonable business grounds;\n\n (c) if the FWC is satisfied that the employer has not responded, or has not responded adequately, to the employee’s request under section 76A—an order that the employer take such further steps as the FWC considers appropriate, having regard to the matters in section 76A;\n\n (d) subject to subsection (4) of this section:\n\n (i) an order that the employer grant the request; or\n\n (ii) an order that the employer agree to an extension of unpaid parental leave for the employee for a further period of up to 12 months (other than the period requested by the employee) immediately following the end of the available parental leave period.\n\nNote: An order by the FWC under paragraph (c) could, for example, require the employer to give a response, or further response, to the employee’s request, and could set out matters that must be included in the response or further response.\n\n (2) In making an order under subsection (1), the FWC must take into account fairness between the employer and the employee.\n\n (3) The FWC must not make an order under paragraph (1)(c) or (d) that would be inconsistent with:\n\n (a) a provision of this Act; or\n\n (b) a term of a fair work instrument (other than an order made under that paragraph) that, immediately before the order is made, applies to the employer and employee.\n\n (4) The FWC may make an order under paragraph (1)(d) only if the FWC is satisfied that there is no reasonable prospect of the dispute being resolved without the making of such an order.\n\n (5) If the FWC makes an order under paragraph (1)(a), the employer is taken to have refused the request.\n\n (6) If the FWC makes an order under paragraph (1)(b), the grounds on which the employer refuses the request are taken:\n\n (a) for an order made under subparagraph (1)(b)(i)—to be reasonable business grounds; or\n\n (b) for an order made under subparagraph (1)(b)(ii)—not to be reasonable business grounds.\n\nContravening an order under subsection (1)\n\n (7) A person must not contravene a term of an order made under subsection (1).\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).","sortOrder":195},{"sectionNumber":"77","sectionType":"section","heading":"Reducing period of unpaid parental leave","content":"77  Reducing period of unpaid parental leave\n\n  If the employer agrees, an employee whose period of unpaid parental leave has started may reduce the period of unpaid parental leave the employee takes.","sortOrder":196},{"sectionNumber":"77A","sectionType":"section","heading":"Effect of stillbirth or death of child on unpaid parental leave","content":"77A  Effect of stillbirth or death of child on unpaid parental leave\n\nStillbirth—preserving entitlement to birth‑related leave\n\n (1) If:\n\n (a) a child is stillborn; and\n\n (b) an employee would have been entitled to unpaid parental leave that is birth‑related leave, if the child had been born alive;\n\nthen the employee is taken to be entitled to the unpaid parental leave, despite the stillbirth of the child.\n\nNote: In addition, an employer generally must not refuse or cancel employer‑funded paid parental leave for an employee because the employee’s child is stillborn or dies (see section 333X).\n\n (2) A stillborn child is a child:\n\n (a) who weighs at least 400 grams at delivery or whose period of gestation was at least 20 weeks; and\n\n (b) who has not breathed since delivery; and\n\n (c) whose heart has not beaten since delivery.\n\n (3) The provisions of this Division have effect in relation to the employee as if the birth of a child included the stillbirth of a child.\n\nNote: One effect of this subsection is that if the employee has not given notice in accordance with section 74 before the stillbirth of the child, the employee can do so as soon as practicable (which may be a time after the leave has started).\n\nStillbirth or death of child—cancelling leave or returning to work\n\n (4) If a child is stillborn, or dies during the 24‑month period starting on the child’s date of birth, then an employee who is entitled to a period of unpaid parental leave in relation to the child may:\n\n (a) before the period of leave starts, give the employee’s employer written notice cancelling the leave; or\n\n (b) if the period of leave has started, give the employee’s employer written notice that the employee wishes to return to work on a specified day.\n\n (5) For the purposes of paragraph (4)(b), the specified day must be at least 4 weeks after the employer receives the notice.\n\n (6) If the employee takes action under subsection (4), the employee’s entitlement to unpaid parental leave in relation to the child ends:\n\n (a) if the action is taken under paragraph (4)(a)—immediately after the cancellation of the leave; or\n\n (b) if the action is taken under paragraph (4)(b)—immediately before the specified day.\n\nInteraction with section 77\n\n (7) Subsections (4) to (6) do not limit section 77 (which deals with the employee reducing the period of unpaid parental leave with the agreement of the employer).","sortOrder":197},{"sectionNumber":"78","sectionType":"section","heading":"Employee who ceases to have responsibility for care of child","content":"78  Employee who ceases to have responsibility for care of child\n\n (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 for a reason other than because the child:\n\n (a) is stillborn; or\n\n (b) dies during the 24‑month period starting on the child’s date of birth.\n\n (2) The employer may give the employee written notice requiring the employee to return to work on a specified day.\n\n (3) The specified day:\n\n (a) must be at least 4 weeks after the notice is given to the employee; and\n\n (b) if the leave is birth‑related leave taken by an employee who has given birth—must not be earlier than 6 weeks after the date of birth of the child.\n\n (4) The employee’s entitlement to unpaid parental leave in relation to the child ends immediately before the specified day.","sortOrder":198},{"sectionNumber":"78A","sectionType":"section","heading":"Hospitalised children","content":"78A  Hospitalised children\n\nAgreeing to not take unpaid parental leave for a period while child remains in hospital\n\n (1) If:\n\n (a) a child is required to remain in hospital after the child’s birth, or is hospitalised immediately after the child’s birth, including because:\n\n (i) the child was born prematurely; or\n\n (ii) the child developed a complication or contracted an illness during the child’s period of gestation or at birth; or\n\n (iii) the child developed a complication or contracted an illness following the child’s birth; and\n\n (b) an employee, whether before or after the birth of the child, gives notice in accordance with section 74 of the taking of a period of unpaid parental leave (the original leave period) in relation to the child;\n\nthen the employee may agree with the employee’s employer that the employee will not take unpaid parental leave for a period (the permitted work period) while the child remains in hospital.\n\nNote: Section 344 prohibits the exertion of undue influence or undue pressure on the employee in relation to a decision by the employee whether to agree.\n\n (2) If the employee and employer so agree, then the following rules have effect:\n\n (a) the employee is taken to not be taking unpaid parental leave during the permitted work period;\n\n (b) the permitted work period does not break the continuity of the original leave period;\n\n (c) the employee is taken to have advised the employer, for the purposes of subsection 74(4), of an end date for the original leave period that is the date on which that period would end if it were extended by a period equal to the permitted work period.\n\nNote: One effect of paragraph (b) is that, if the employee takes periods of unpaid parental leave either side of the permitted work period, the periods are still treated as a single continuous period for the purposes of section 71.\n\nWhen permitted work period must start\n\n (3) The permitted work period must start after the birth of the child.\n\nWhen permitted work period ends\n\n (4) The permitted work period ends at the earliest of the following:\n\n (a) the time agreed by the employee and employer;\n\n (b) the end of the day of the child’s first discharge from hospital after birth;\n\n (c) if the child dies before being discharged—the end of the day the child dies.\n\nOnly one permitted work period allowed\n\n (5) Only one period may be agreed to under subsection (1) for which the employee will not take unpaid parental leave in relation to the child.\n\nEvidence\n\n (6) The employee must, if required by the employer, give the employer evidence that would satisfy a reasonable person of either or both of the following:\n\n (a) that paragraph (1)(a) applies in relation to the child;\n\n (b) that the employee is fit for work.\n\n (7) Without limiting subsection (6), an employer may require the evidence referred to in that subsection to be a medical certificate.\n\nNote: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.","sortOrder":199},{"sectionNumber":"79","sectionType":"section","heading":"Interaction with paid leave","content":"79  Interaction with paid leave\n\n (1) This Subdivision (except for subsections (2) and (3)) does not prevent an employee from taking any other kind of paid leave while the employee 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.\n\nNote: For example, if the employee has paid annual leave available, the employee may (with the employer’s agreement) take some or all of that paid annual leave at the same time as the unpaid parental leave.\n\n (2) While an employee is taking unpaid parental leave, the employee is not entitled to take:\n\n (a) paid personal/carer’s leave; or\n\n (b) compassionate leave, unless the permissible occasion is the stillbirth or death of the child in relation to whom the employee is taking unpaid parental leave.\n\n (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.","sortOrder":200},{"sectionNumber":"79A","sectionType":"section","heading":"Keeping in touch days","content":"79A  Keeping in touch days\n\n (1) This Subdivision does not prevent an employee from performing work for the employee’s employer on a keeping in touch day while the employee is taking unpaid parental leave. If the employee does so, the performance of that work does not break the continuity of the period of unpaid parental leave.\n\n (2) A day on which the employee performs work for the employer during the period of leave is a keeping in touch day if:\n\n (a) the purpose of performing the work is to enable the employee to keep in touch with the employee’s employment in order to facilitate a return to that employment after the end of the period of leave; and\n\n (b) both the employee and the employer consent to the employee performing work for the employer on that day; and\n\n (c) the day is not within:\n\n (i) if the employee suggested or requested that the employee perform work for the employer on that day—14 days after the date of birth, or day of placement, of the child to which the period of leave relates; or\n\n (ii) otherwise—42 days after the date of birth, or day of placement, of the child; and\n\n (d) the employee has not already performed work for the employer or another entity on 10 days during the period of leave that were keeping in touch days.\n\nThe duration of the work the employee performs on that day is not relevant for the purposes of this subsection.\n\nNote: The employer will be obliged, under the relevant contract of employment or industrial instrument, to pay the employee for performing work on a keeping in touch day.\n\n (3) The employee’s decision whether to give the consent mentioned in paragraph (2)(b) is taken, for the purposes of section 344 (which deals with undue influence or pressure), to be a decision to make, or not make, an arrangement under the National Employment Standards.\n\n (4) For the purposes of paragraph (2)(d), treat as 2 separate periods of unpaid parental leave:\n\n (a) a period of unpaid parental leave taken during the employee’s available parental leave period; and\n\n (b) a period of unpaid parental leave taken as an extension of the leave referred to in paragraph (a) for a further period immediately following the end of the available parental leave period.\n\n (5) Subsection (1) does not apply in relation to flexible unpaid parental leave.","sortOrder":201},{"sectionNumber":"79B","sectionType":"section","heading":"Unpaid parental leave not extended by paid leave or keeping in touch days","content":"79B  Unpaid parental leave not extended by paid leave or keeping in touch days\n\n  If, during a period of unpaid parental leave, an employee:\n\n (a) takes paid leave; or\n\n (b) performs work for the employee’s employer on a keeping in touch day;\n\ntaking that leave or performing that work does not have the effect of extending the period of unpaid parental leave.","sortOrder":202},{"sectionNumber":"80","sectionType":"section","heading":"Unpaid special parental leave","content":"80  Unpaid special parental leave\n\nEntitlement to unpaid special parental leave\n\n (1) An employee is entitled to a period of unpaid special parental leave if the employee is not fit for work during that period because:\n\n (a) the employee is pregnant and has a pregnancy‑related illness; or\n\n (b) all of the following apply:\n\n (i) the employee has been pregnant;\n\n (ii) the pregnancy ends after a period of gestation of at least 12 weeks otherwise than by the birth of a living child;\n\n (iii) the child is not stillborn.\n\nNote 1: Entitlement is also affected by section 67 (which deals with the length of the employee’s service).\n\nNote 1A: If the child is stillborn, the employee may be entitled to unpaid parental leave (see section 77A).\n\nNote 2: If an employee has an entitlement to paid personal/carer’s leave (see section 96), the employee may take that leave instead of taking unpaid special parental leave under this section.\n\nNotice and evidence\n\n (2) An employee must give the employee’s employer notice of the taking of unpaid special parental leave by the employee.\n\n (3) The notice:\n\n (a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and\n\n (b) must advise the employer of the period, or expected period, of the leave.\n\n (4) An employee who has given the employee’s employer notice of the taking of unpaid special parental 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).\n\n (5) Without limiting subsection (4), an employer may require the evidence referred to in that subsection to be a medical certificate.\n\n (6) An employee is not entitled to take unpaid special parental leave unless the employee complies with subsections (2) to (4).\n\n (7) Subdivision B does not apply to unpaid special parental leave.\n\nNote: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.","sortOrder":204},{"sectionNumber":"81","sectionType":"section","heading":"Transfer to a safe job","content":"81  Transfer to a safe job\n\n (1) This section applies to a pregnant employee if the employee gives the employee’s employer evidence that would satisfy a reasonable person that the employee is fit for work, but that it is inadvisable for the employee to continue in the employee’s present position during a stated period (the risk period) because of:\n\n (a) illness, or risks, arising out of the employee’s pregnancy; or\n\n (b) hazards connected with that position.\n\nNote: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.\n\n (2) If there is an appropriate safe job available, then 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.\n\nNote: If there is no appropriate safe job available, then the employee may be entitled to paid no safe job leave under section 81A or unpaid no safe job leave under 82A.\n\n (3) An appropriate safe job is a safe job that has:\n\n (a) the same ordinary hours of work as the employee’s present position; or\n\n (b) a different number of ordinary hours agreed to by the employee.\n\n (4) 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 the employee was in before the transfer) for the hours that the employee works in the risk period.\n\n (5) If the employee’s pregnancy ends before the end of the risk period, the risk period ends when the pregnancy ends.\n\n (6) Without limiting subsection (1), an employer may require the evidence to be a medical certificate.","sortOrder":205},{"sectionNumber":"81A","sectionType":"section","heading":"Paid no safe job leave","content":"81A  Paid no safe job leave\n\n (1) If:\n\n (a) section 81 applies to a pregnant employee but there is no appropriate safe job available; and\n\n (b) the employee is entitled to unpaid parental leave; and\n\n (c) the employee has complied with the notice and evidence requirements of section 74 for taking unpaid parental leave;\n\nthen the employee is entitled to paid no safe job leave for the risk period.\n\n (2) 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.","sortOrder":206},{"sectionNumber":"82","sectionType":"section","heading":"Employee on paid no safe job leave may be asked to provide a further medical certificate","content":"82  Employee on paid no safe job leave may be asked to provide a further medical certificate\n\nEmployer may ask employee to provide a medical certificate\n\n (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.\n\nNote: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.\n\nEmployer may require employee to take unpaid parental leave\n\n (2) The employer may require the employee to take a period of unpaid parental leave (the period of leave) as soon as practicable if:\n\n (a) the employee does not give the employer the requested certificate within 7 days after the request; or\n\n (b) within 7 days after the request, the employee gives the employer a certificate stating that the employee is not fit for work.\n\nEntitlement to paid no safe job leave ends\n\n (3) When the period of leave starts, the employee’s entitlement to paid no safe job leave ends.\n\nWhen the period of leave must end etc.\n\n (4) Subsections 73(3), (4) and (5) apply to the period of leave.","sortOrder":207},{"sectionNumber":"82A","sectionType":"section","heading":"Unpaid no safe job leave","content":"82A  Unpaid no safe job leave\n\n (1) If:\n\n (a) section 81 applies to a pregnant employee but there is no appropriate safe job available; and\n\n (b) the employee is not entitled to unpaid parental leave; and\n\n (c) if required by the employer—the employee has given the employer evidence that would satisfy a reasonable person of the pregnancy;\n\nthen the employee is entitled to unpaid no safe job leave for the risk period.\n\n (2) Without limiting subsection (1), an employer may require the evidence referred to in paragraph (1)(c) to be a medical certificate.","sortOrder":208},{"sectionNumber":"83","sectionType":"section","heading":"Consultation with employee on unpaid parental leave","content":"83  Consultation with employee on unpaid parental leave\n\n  If:\n\n (a) an employee is taking a period of unpaid parental leave, other than flexible unpaid parental leave; and\n\n (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;\n\nthe 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.","sortOrder":209},{"sectionNumber":"84","sectionType":"section","heading":"Return to work guarantee","content":"84  Return to work guarantee\n\n  On ending a period of unpaid parental leave, an employee is entitled to return to:\n\n (a) the employee’s pre‑parental leave position; or\n\n (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.","sortOrder":210},{"sectionNumber":"84A","sectionType":"section","heading":"Replacement employees","content":"84A  Replacement employees\n\n (1) Before an employer engages an employee to perform the work of another employee who is going to take, or is taking, unpaid parental leave, the employer must notify the replacement employee:\n\n (a) that the engagement to perform that work is temporary; and\n\n (b) of the rights the employee taking unpaid parental leave has under:\n\n (i) subsections 77A(4) and (5) (which provide a right to cancel the leave or end the leave early if the child is stillborn or dies within 24 months); and\n\n (ii) section 84 (which deals with the return to work guarantee); and\n\n (d) of the effect of section 78 (which provides the employer with a right to require the employee taking unpaid parental leave to return to work if the employee ceases to have any responsibility for the care of the child).\n\n (2) Subsection (1) does not apply in relation to the taking of flexible unpaid parental leave.","sortOrder":211},{"sectionNumber":"85","sectionType":"section","heading":"Unpaid pre-adoption leave","content":"85  Unpaid pre‑adoption leave\n\nEntitlement to unpaid pre‑adoption leave\n\n (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.\n\nNote: Entitlement is also affected by section 68 (which deals with the age etc. of the adopted child).\n\n (2) However, an employee is not entitled to take a period of unpaid pre‑adoption leave if:\n\n (a) the employee could instead take some other form of leave; and\n\n (b) the employer directs the employee to take that other form of leave.\n\n (3) An employee who is entitled to a period of unpaid pre‑adoption leave is entitled to take the leave as:\n\n (a) a single continuous period of up to 2 days; or\n\n (b) any separate periods to which the employee and the employer agree.\n\nNotice and evidence\n\n (4) An employee must give the employee’s employer notice of the taking of unpaid pre‑adoption leave by the employee.\n\n (5) The notice:\n\n (a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and\n\n (b) must advise the employer of the period, or expected period, of the leave.\n\n (6) An employee who has given the employee’s 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).\n\n (7) An employee is not entitled to take unpaid pre‑adoption leave unless the employee complies with subsections (4) to (6).\n\nNote: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.","sortOrder":212},{"sectionNumber":"Division 6","sectionType":"division","heading":"Annual leave","content":"Division 6—Annual leave","sortOrder":213},{"sectionNumber":"86","sectionType":"section","heading":"Division applies to employees other than casual employees","content":"86  Division applies to employees other than casual employees\n\n  This Division applies to employees, other than casual employees.","sortOrder":214},{"sectionNumber":"87","sectionType":"section","heading":"Entitlement to annual leave","content":"87  Entitlement to annual leave\n\nAmount of leave\n\n (1) For each year of service with an employer (other than periods of employment as a casual employee of the employer), an employee is entitled to:\n\n (a) 4 weeks of paid annual leave; or\n\n (b) 5 weeks of paid annual leave, if:\n\n (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\n\n (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\n\n (iii) the employee qualifies for the shiftworker annual leave entitlement under subsection (3) (this relates to award/agreement free employees).\n\nNote: Section 196 affects whether the FWC 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.\n\nAccrual of leave\n\n (2) An employee’s entitlement to paid annual leave accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee’s ordinary hours of work, and accumulates from year to year.\n\nNote: 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.\n\nAward/agreement free employees who qualify for the shiftworker entitlement\n\n (3) An award/agreement free employee qualifies for the shiftworker annual leave entitlement if:\n\n (a) the employee:\n\n (i) is employed in an enterprise in which shifts are continuously rostered 24 hours a day for 7 days a week; and\n\n (ii) is regularly rostered to work those shifts; and\n\n (iii) regularly works on Sundays and public holidays; or\n\n (b) the employee is in a class of employees prescribed by the regulations as shiftworkers for the purposes of the National Employment Standards.\n\n (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.\n\n (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:\n\n (a) a particular industry or part of an industry;\n\n (b) a particular kind of work;\n\n (c) a particular type of employment.","sortOrder":215},{"sectionNumber":"88","sectionType":"section","heading":"Taking paid annual leave","content":"88  Taking paid annual leave\n\n (1) Paid annual leave may be taken for a period agreed between an employee and his or her employer.\n\n (2) The employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.","sortOrder":216},{"sectionNumber":"89","sectionType":"section","heading":"Employee not taken to be on paid annual leave at certain times","content":"89  Employee not taken to be on paid annual leave at certain times\n\nPublic holidays\n\n (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.\n\nOther periods of leave\n\n (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.","sortOrder":217},{"sectionNumber":"90","sectionType":"section","heading":"Payment for annual leave","content":"90  Payment for annual leave\n\n (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.\n\n (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.","sortOrder":218},{"sectionNumber":"91","sectionType":"section","heading":"Transfer of employment situations that affect entitlement to payment for period of untaken paid annual leave","content":"91  Transfer of employment situations that affect entitlement to payment for period of untaken paid annual leave\n\nTransfer of employment situation in which employer may decide not to recognise employee’s service with first employer\n\n (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).\n\nEmployee is not entitled to payment for untaken annual leave if service with first employer counts as service with second employer\n\n (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.\n\nNote: 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.","sortOrder":219},{"sectionNumber":"92","sectionType":"section","heading":"Paid annual leave must not be cashed out except in accordance with permitted cashing out terms","content":"92  Paid annual leave must not be cashed out except in accordance with permitted cashing out terms\n\n  Paid annual leave must not be cashed out, except in accordance with:\n\n (a) cashing out terms included in a modern award or enterprise agreement under section 93, or\n\n (b) an agreement between an employer and an award/agreement free employee under subsection 94(1).","sortOrder":220},{"sectionNumber":"93","sectionType":"section","heading":"Modern awards and enterprise agreements may include terms relating to cashing out and taking paid annual leave","content":"93  Modern awards and enterprise agreements may include terms relating to cashing out and taking paid annual leave\n\nTerms about cashing out paid annual leave\n\n (1) A modern award or enterprise agreement may include terms providing for the cashing out of paid annual leave by an employee.\n\n (2) The terms must require that:\n\n (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\n\n (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\n\n (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.\n\nTerms about requirements to take paid annual leave\n\n (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.\n\nTerms about taking paid annual leave\n\n (4) A modern award or enterprise agreement may include terms otherwise dealing with the taking of paid annual leave.","sortOrder":221},{"sectionNumber":"94","sectionType":"section","heading":"Cashing out and taking paid annual leave for award/agreement free employees","content":"94  Cashing out and taking paid annual leave for award/agreement free employees\n\nAgreements to cash out paid annual leave\n\n (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.\n\n (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.\n\n (3) Each agreement to cash out a particular amount of paid annual leave must be a separate agreement in writing.\n\n (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.\n\nRequirements to take paid annual leave\n\n (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.\n\nNote: A requirement to take paid annual leave may be reasonable if, for example:\n\n(a) the employee has accrued an excessive amount of paid annual leave; or\n\n(b) the employer’s enterprise is being shut down for a period (for example, between Christmas and New Year).\n\nAgreements about taking paid annual leave\n\n (6) An employer and an award/agreement free employee may agree on when and how paid annual leave may be taken by the employee.\n\nNote: Matters that could be agreed include, for example, the following:\n\n(a) that paid annual leave may be taken in advance of accrual;\n\n(b) that paid annual leave must be taken within a fixed period of time after it is accrued;\n\n(c) the form of application for paid annual leave;\n\n(d) that a specified period of notice must be given before taking paid annual leave.","sortOrder":222},{"sectionNumber":"Division 7","sectionType":"division","heading":"Personal/carer’s leave, compassionate leave and paid family and domestic violence leave","content":"Division 7—Personal/carer’s leave, compassionate leave and paid family and domestic violence leave","sortOrder":223},{"sectionNumber":"95","sectionType":"section","heading":"Subdivision applies to employees other than casual employees","content":"95  Subdivision applies to employees other than casual employees\n\n  This Subdivision applies to employees, other than casual employees.","sortOrder":225},{"sectionNumber":"96","sectionType":"section","heading":"Entitlement to paid personal/carer’s leave","content":"96  Entitlement to paid personal/carer’s leave\n\nAmount of leave\n\n (1) For each year of service with an employer (other than periods of employment as a casual employee of the employer), an employee is entitled to 10 days of paid personal/carer’s leave.\n\nAccrual of leave\n\n (2) An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee’s ordinary hours of work, and accumulates from year to year.","sortOrder":226},{"sectionNumber":"97","sectionType":"section","heading":"Taking paid personal/carer’s leave","content":"97  Taking paid personal/carer’s leave\n\n  An employee may take paid personal/carer’s leave if the leave is taken:\n\n (a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or\n\n (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:\n\n (i) a personal illness, or personal injury, affecting the member; or\n\n (ii) an unexpected emergency affecting the member.\n\nNote 1: The notice and evidence requirements of section 107 must be complied with.\n\nNote 2: If an employee has an entitlement to paid personal/carer’s leave, the employee may take that leave instead of taking unpaid special parental leave under section 80.","sortOrder":227},{"sectionNumber":"98","sectionType":"section","heading":"Employee taken not to be on paid personal/carer’s leave at certain times","content":"98  Employee taken not to be on paid personal/carer’s leave at certain times\n\nPublic holidays\n\n (1) 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.\n\nPeriod of paid family and domestic violence leave\n\n (2) If the period during which an employee takes paid personal/carer’s leave includes a period of paid family and domestic violence leave, the employee is taken not to be on paid personal/carer’s leave for the period of that paid family and domestic violence leave.","sortOrder":228},{"sectionNumber":"99","sectionType":"section","heading":"Payment for paid personal/carer’s leave","content":"99  Payment for paid personal/carer’s leave\n\n  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.","sortOrder":229},{"sectionNumber":"100","sectionType":"section","heading":"Paid personal/carer’s leave must not be cashed out except in accordance with permitted cashing out terms","content":"100  Paid personal/carer’s leave must not be cashed out except in accordance with permitted cashing out terms\n\n  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.","sortOrder":230},{"sectionNumber":"101","sectionType":"section","heading":"Modern awards and enterprise agreements may include terms relating to cashing out paid personal/carer’s leave","content":"101  Modern awards and enterprise agreements may include terms relating to cashing out paid personal/carer’s leave\n\n (1) A modern award or enterprise agreement may include terms providing for the cashing out of paid personal/carer’s leave by an employee.\n\n (2) The terms must require that:\n\n (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\n\n (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\n\n (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.","sortOrder":231},{"sectionNumber":"102","sectionType":"section","heading":"Entitlement to unpaid carer’s leave","content":"102  Entitlement to unpaid carer’s leave\n\n  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:\n\n (a) a personal illness, or personal injury, affecting the member; or\n\n (b) an unexpected emergency affecting the member.","sortOrder":233},{"sectionNumber":"103","sectionType":"section","heading":"Taking unpaid carer’s leave","content":"103  Taking unpaid carer’s leave\n\n (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.\n\n (2) An employee may take unpaid carer’s leave for a particular permissible occasion as:\n\n (a) a single continuous period of up to 2 days; or\n\n (b) any separate periods to which the employee and his or her employer agree.\n\n (3) An employee cannot take unpaid carer’s leave during a particular period if the employee could instead take paid personal/carer’s leave.\n\nNote: The notice and evidence requirements of section 107 must be complied with.","sortOrder":234},{"sectionNumber":"104","sectionType":"section","heading":"Entitlement to compassionate leave","content":"104  Entitlement to compassionate leave\n\n (1) An employee is entitled to 2 days of compassionate leave for each occasion (a permissible occasion) when:\n\n (a) a member of the employee’s immediate family or a member of the employee’s household:\n\n (i) contracts or develops a personal illness that poses a serious threat to his or her life; or\n\n (ii) sustains a personal injury that poses a serious threat to his or her life; or\n\n (iii) dies; or\n\n (b) a child is stillborn, where the child would have been a member of the employee’s immediate family, or a member of the employee’s household, if the child had been born alive; or\n\n (c) the employee, or the employee’s spouse or de facto partner, has a miscarriage.\n\n (2) Paragraph (1)(c) does not apply:\n\n (a) if the miscarriage results in a stillborn child; or\n\n (b) to a former spouse, or former de facto partner, of the employee.\n\nNote: For the definition of a stillborn child, see subsection 77A(2).","sortOrder":236},{"sectionNumber":"105","sectionType":"section","heading":"Taking compassionate leave","content":"105  Taking compassionate leave\n\n (1) An employee may take compassionate leave for a particular permissible occasion if the leave is taken:\n\n (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\n\n (b) after the death of the member of the employee’s immediate family or household, or the stillbirth of the child, referred to in section 104; or\n\n (c) after the employee, or the employee’s spouse or de facto partner, has the miscarriage referred to in section 104.\n\n (2) An employee may take compassionate leave for a particular permissible occasion as:\n\n (a) a single continuous 2 day period; or\n\n (b) 2 separate periods of 1 day each; or\n\n (c) any separate periods to which the employee and his or her employer agree.\n\n (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.\n\nNote: The notice and evidence requirements of section 107 must be complied with.","sortOrder":237},{"sectionNumber":"106","sectionType":"section","heading":"Payment for compassionate leave (other than for casual employees)","content":"106  Payment for compassionate leave (other than for casual employees)\n\n  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.\n\nNote: For casual employees, compassionate leave is unpaid leave.","sortOrder":238},{"sectionNumber":"Subdivision CA","sectionType":"subdivision","heading":"Paid family and domestic violence leave","content":"Subdivision CA—Paid family and domestic violence leave","sortOrder":239},{"sectionNumber":"106A","sectionType":"section","heading":"Entitlement to paid family and domestic violence leave","content":"106A  Entitlement to paid family and domestic violence leave\n\n (1) An employee is entitled to 10 days of paid family and domestic violence leave in a 12 month period.\n\n (2) Paid family and domestic violence leave:\n\n (a) is available in full at the start of each 12 month period of the employee’s employment; and\n\n (b) does not accumulate from year to year; and\n\n (c) is available in full to part‑time and casual employees.\n\n (3) For the purposes of subsection (2), if an employee is employed by a particular employer:\n\n (a) as a casual employee; or\n\n (b) for a specified period of time, for a specified task or for the duration of a specified season;\n\nthe start of the employee’s employment is taken to be the start of the employee’s first employment with that employer.\n\n (4) The employee may take paid family and domestic violence leave as:\n\n (a) a single continuous 10 day period; or\n\n (b) separate periods of one or more days each; or\n\n (c) any separate periods to which the employee and the employer agree, including periods of less than one day.\n\n (5) To avoid doubt, this section does not prevent the employee and the employer agreeing that the employee may take paid or unpaid leave in addition to the entitlement in subsection (1) to deal with the impact of family and domestic violence.","sortOrder":240},{"sectionNumber":"106B","sectionType":"section","heading":"Taking paid family and domestic violence leave","content":"106B  Taking paid family and domestic violence leave\n\n (1) The employee may take paid family and domestic violence leave if:\n\n (a) the employee is experiencing family and domestic violence; and\n\n (b) the employee needs to do something to deal with the impact of the family and domestic violence; and\n\n (c) it is impractical for the employee to do that thing outside the employee’s work hours.\n\nNote 1: Examples of actions, by an employee who is experiencing family and domestic violence, that could be covered by paragraph (b) include arranging for the safety of the employee or a close relative (including relocation), attending court hearings, accessing police services, attending counselling and attending appointments with medical, financial or legal professionals.\n\nNote 2: The notice and evidence requirements of section 107 must be complied with.\n\n (2) Family and domestic violence is violent, threatening or other abusive behaviour by a close relative of a person, a member of a person’s household, or a current or former intimate partner of a person, that:\n\n (a) seeks to coerce or control the person; and\n\n (b) causes the person harm or to be fearful.\n\n (3) A close relative of a person is another person who:\n\n (a) is a member of the first person’s immediate family; or\n\n (b) is related to the first person according to Aboriginal or Torres Strait Islander kinship rules.\n\nNote: Immediate family is defined in section 12.","sortOrder":241},{"sectionNumber":"106BA","sectionType":"section","heading":"Payment for paid family and domestic violence leave","content":"106BA  Payment for paid family and domestic violence leave\n\n (1) If, in accordance with this Subdivision, an employee takes a period of paid family and domestic violence leave, the employer must pay the employee, in relation to the period:\n\n (a) for an employee other than a casual employee—at the employee’s full rate of pay, worked out as if the employee had not taken the period of leave; or\n\n (b) for a casual employee—at the employee’s full rate of pay, worked out as if the employee had worked the hours in the period for which the employee was rostered.\n\n (2) Without limiting paragraph (1)(b), an employee is taken to have been rostered to work hours in a period if the employee has accepted an offer by the employer of work for those hours.\n\n (3) Paragraph (1)(b) does not prevent a casual employee from taking a period of paid family and domestic violence leave that does not include hours for which the employee is rostered to work. However, the employer is not required to pay the employee in relation to such a period.","sortOrder":242},{"sectionNumber":"106C","sectionType":"section","heading":"Confidentiality","content":"106C  Confidentiality\n\n (1) Employers must take steps to ensure information concerning any notice or evidence an employee has given under section 107 of the employee taking leave under this Subdivision is treated confidentially, as far as it is reasonably practicable to do so.\n\n (2) An employer must not, other than with the consent of the employee, use such information for a purpose other than satisfying itself in relation to the employee’s entitlement to leave under this Subdivision. In particular, an employer must not use such information to take adverse action against an employee.\n\n (3) Subsection (2) has effect subject to subsection (4).\n\n (4) Nothing in this Subdivision prevents an employer from dealing with information provided by an employee if doing so is required by an Australian law or is necessary to protect the life, health or safety of the employee or another person.\n\nNote: Information covered by this section that is personal information may also be regulated under the Privacy Act 1988.","sortOrder":243},{"sectionNumber":"106D","sectionType":"section","heading":"Operation of paid family and domestic violence leave and leave for victims of crime","content":"106D  Operation of paid family and domestic violence leave and leave for victims of crime\n\n (1) This Subdivision does not exclude or limit the operation of a law of a State or Territory to the extent that it provides for leave for victims of crime.\n\nNote: Leave for victims of crime is a non‑excluded matter under paragraph 27(2)(h).\n\n (2) If an employee who is entitled, under a law of a State or Territory, to leave for victims of crime is also entitled to leave under this Subdivision, that law applies in addition to this Subdivision.\n\n (3) A person who is a national system employee only because of section 30C or 30M is entitled to leave under this Subdivision only to the extent that the leave would not constitute leave for victims of crime.\n\nNote: To the extent that leave would constitute leave for victims of crime, the entitlement to paid family and domestic violence leave is extended to the persons mentioned in subsection (3) by Division 2A of Part 6‑3 (see subsection 757B(2)).","sortOrder":244},{"sectionNumber":"106E","sectionType":"section","heading":"Entitlement to days of leave","content":"106E  Entitlement to days of leave\n\n  What constitutes a day of leave for the purposes of this Subdivision is taken to be the same as what constitutes a day of leave for the purposes of sections 72A and 85 and Subdivisions B and C.","sortOrder":245},{"sectionNumber":"107","sectionType":"section","heading":"Notice and evidence requirements","content":"107  Notice and evidence requirements\n\nNotice\n\n (1) An employee must give his or her employer notice of the taking of leave under this Division by the employee.\n\n (2) The notice:\n\n (a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and\n\n (b) must advise the employer of the period, or expected period, of the leave.\n\nEvidence\n\n (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:\n\n (a) if it is paid personal/carer’s leave—the leave is taken for a reason specified in section 97; or\n\n (b) if it is unpaid carer’s leave—the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or\n\n (c) if it is compassionate leave—the leave is taken for a permissible occasion in circumstances specified in subsection 105(1); or\n\n (d) if it is paid family and domestic violence leave, and the employee has met the requirement specified in paragraph 106B(1)(a)—the leave is taken for the purpose specified in paragraph 106B(1)(b), and the requirement specified in paragraph 106B(1)(c) is met.\n\nCompliance\n\n (4) An employee is not entitled to take leave under this Division unless the employee complies with this section.\n\nModern awards and enterprise agreements may include evidence requirements\n\n (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.\n\nNote: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.","sortOrder":247},{"sectionNumber":"Division 8","sectionType":"division","heading":"Community service leave","content":"Division 8—Community service leave","sortOrder":248},{"sectionNumber":"108","sectionType":"section","heading":"Entitlement to be absent from employment for engaging in eligible community service activity","content":"108  Entitlement to be absent from employment for engaging in eligible community service activity\n\n  An employee who engages in an eligible community service activity is entitled to be absent from his or her employment for a period if:\n\n (a) the period consists of one or more of the following:\n\n (i) time when the employee engages in the activity;\n\n (ii) reasonable travelling time associated with the activity;\n\n (iii) reasonable rest time immediately following the activity; and\n\n (b) unless the activity is jury service—the employee’s absence is reasonable in all the circumstances.","sortOrder":249},{"sectionNumber":"109","sectionType":"section","heading":"Meaning of eligible community service activity","content":"109  Meaning of eligible community service activity\n\nGeneral\n\n (1) Each of the following is an eligible community service activity:\n\n (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\n\n (b) a voluntary emergency management activity (see subsection (2)); or\n\n (c) an activity prescribed in regulations made for the purpose of subsection (4).\n\nVoluntary emergency management activities\n\n (2) An employee engages in a voluntary emergency management activity if, and only if:\n\n (a) the employee engages in an activity that involves dealing with an emergency or natural disaster; and\n\n (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\n\n (c) the employee is a member of, or has a member‑like association with, a recognised emergency management body; and\n\n (d) either:\n\n (i) the employee was requested by or on behalf of the body to engage in the activity; or\n\n (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.\n\n (3) A recognised emergency management body is:\n\n (a) a body, or part of a body, that has a role or function under a plan that:\n\n (i) is for coping with emergencies and/or disasters; and\n\n (ii) is prepared by the Commonwealth, a State or a Territory; or\n\n (b) a fire‑fighting, civil defence or rescue body, or part of such a body; or\n\n (c) any other body, or part of a body, a substantial purpose of which involves:\n\n (i) securing the safety of persons or animals in an emergency or natural disaster; or\n\n (ii) protecting property in an emergency or natural disaster; or\n\n (iii) otherwise responding to an emergency or natural disaster; or\n\n (d) a body, or part of a body, prescribed by the regulations;\n\nbut 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.\n\nRegulations may prescribe other activities\n\n (4) The regulations may prescribe an activity that is of a community service nature as an eligible community service activity.","sortOrder":250},{"sectionNumber":"110","sectionType":"section","heading":"Notice and evidence requirements","content":"110  Notice and evidence requirements\n\nNotice\n\n (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.\n\n (2) The notice:\n\n (a) must be given to the employer as soon as practicable (which may be a time after the absence has started); and\n\n (b) must advise the employer of the period, or expected period, of the absence.\n\nEvidence\n\n (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.\n\nCompliance\n\n (4) An employee’s absence from his or her employment is not covered by this Division unless the employee complies with this section.\n\nNote: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.","sortOrder":251},{"sectionNumber":"111","sectionType":"section","heading":"Payment to employees (other than casuals) on jury service","content":"111  Payment to employees (other than casuals) on jury service\n\nApplication of this section\n\n (1) This section applies if:\n\n (a) in accordance with this Division, an employee is absent from his or her employment for a period because of jury service; and\n\n (b) the employee is not a casual employee.\n\nEmployee to be paid base rate of pay\n\n (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.\n\nEvidence\n\n (3) The employer may require the employee to give the employer evidence that would satisfy a reasonable person:\n\n (a) that the employee has taken all necessary steps to obtain any amount of jury service pay to which the employee is entitled; and\n\n (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.\n\nNote: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.\n\n (4) If, in accordance with subsection (3), the employer requires the employee to give the employer the evidence referred to in that subsection:\n\n (a) the employee is not entitled to payment under subsection (2) unless the employee provides the evidence; and\n\n (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.\n\nPayment only required for first 10 days of absence\n\n (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:\n\n (a) the employer is only required to pay the employee for the first 10 days of absence; and\n\n (b) the evidence provided in response to a requirement under subsection (3) need only relate to the first 10 days of absence; and\n\n (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.\n\nMeaning of jury service pay\n\n (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.\n\nMeaning of jury service summons\n\n (7) Jury service summons means a summons or other instruction (however described) that requires a person to attend for, or perform, jury service.","sortOrder":252},{"sectionNumber":"112","sectionType":"section","heading":"State and Territory laws that are not excluded","content":"112  State and Territory laws that are not excluded\n\n (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.\n\nNote: 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.\n\n (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.","sortOrder":253},{"sectionNumber":"Division 9","sectionType":"division","heading":"Long service leave","content":"Division 9—Long service leave","sortOrder":254},{"sectionNumber":"113","sectionType":"section","heading":"Entitlement to long service leave","content":"113  Entitlement to long service leave\n\nEntitlement in accordance with applicable award‑derived long service leave terms\n\n (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.\n\nNote: 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).\n\n (2) However, subsection (1) does not apply if:\n\n (a) a workplace agreement, or an AWA, that came into operation before the commencement of this Part applies to the employee; or\n\n (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:\n\n (i) an enterprise agreement;\n\n (ii) a preserved State agreement;\n\n (iii) a workplace determination;\n\n (iv) a pre‑reform certified agreement;\n\n (v) a pre‑reform AWA;\n\n (vi) a section 170MX award;\n\n (vii) an old IR agreement.\n\nNote: 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.\n\n (3) Applicable award‑derived long service leave terms, in relation to an employee, are:\n\n (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)):\n\n (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\n\n (ii) would have entitled the employee to long service leave; and\n\n (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).\n\n (3A) For the purpose of subparagraph (3)(a)(i), the test time is:\n\n (a) immediately before the commencement of this Part; or\n\n (b) if the employee is a Division 2B State reference employee (as defined in Schedule 2 to the Transitional Act)—immediately before the Division 2B referral commencement (as defined in that Schedule).\n\nEntitlement in accordance with applicable agreement‑derived long service leave terms\n\n (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.\n\n (5) There are applicable agreement‑derived long service leave terms, in relation to an employee if:\n\n (a) an order under subsection (6) is in operation in relation to terms of an instrument; and\n\n (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\n\n (c) there are no applicable award‑derived long service leave terms in relation to the employee.\n\n (6) If the FWC is satisfied that:\n\n (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:\n\n (i) an enterprise agreement;\n\n (ii) a collective agreement;\n\n (iii) a pre‑reform certified agreement;\n\n (iv) an old IR agreement; and\n\n (b) those terms constituted a long service leave scheme that was applying in more than one State or Territory; and\n\n (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;\n\nthe FWC 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.\n\nReferences to instruments\n\n (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 Transitional Act.","sortOrder":255},{"sectionNumber":"113A","sectionType":"section","heading":"Enterprise agreements may contain terms discounting service under prior agreements etc. in certain circumstances","content":"113A  Enterprise agreements may contain terms discounting service under prior agreements etc. in certain circumstances\n\n (1) This section applies if:\n\n (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:\n\n (i) an enterprise agreement;\n\n (ii) a workplace agreement;\n\n (iii) a workplace determination;\n\n (iv) a preserved State agreement;\n\n (v) an AWA;\n\n (vi) a pre‑reform certified agreement;\n\n (vii) a pre‑reform AWA;\n\n (viii) an old IR agreement;\n\n (ix) a section 170MX award; and\n\n (b) the instrument states that the employee is not entitled to long service leave; and\n\n (c) the instrument ceases, for whatever reason, to apply to the employee; and\n\n (d) immediately after the first instrument ceases to apply, an enterprise agreement (the replacement agreement) starts to apply to the employee.\n\n (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.\n\n (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.\n\n (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 Transitional Act.","sortOrder":256},{"sectionNumber":"Division 10","sectionType":"division","heading":"Public holidays","content":"Division 10—Public holidays","sortOrder":257},{"sectionNumber":"114","sectionType":"section","heading":"Entitlement to be absent from employment on public holiday","content":"114  Entitlement to be absent from employment on public holiday\n\nEmployee entitled to be absent on public holiday\n\n (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.\n\nReasonable requests to work on public holidays\n\n (2) However, an employer may request an employee to work on a public holiday if the request is reasonable.\n\n (3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if:\n\n (a) the request is not reasonable; or\n\n (b) the refusal is reasonable.\n\n (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:\n\n (a) the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;\n\n (b) the employee’s personal circumstances, including family responsibilities;\n\n (c) whether the employee could reasonably expect that the employer might request work on the public holiday;\n\n (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;\n\n (e) the type of employment of the employee (for example, whether full‑time, part‑time, casual or shiftwork);\n\n (f) the amount of notice in advance of the public holiday given by the employer when making the request;\n\n (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;\n\n (h) any other relevant matter.","sortOrder":258},{"sectionNumber":"115","sectionType":"section","heading":"Meaning of public holiday","content":"115  Meaning of public holiday\n\nThe public holidays\n\n (1) The following are public holidays:\n\n (a) each of these days:\n\n (i) 1 January (New Year’s Day);\n\n (ii) 26 January (Australia Day);\n\n (iii) Good Friday;\n\n (iv) Easter Monday;\n\n (v) 25 April (Anzac Day);\n\n (vi) the holiday for the birthday of the Sovereign (on the day on which it is celebrated in a State or Territory or a region of a State or Territory);\n\n (vii) 25 December (Christmas Day);\n\n (viii) 26 December (Boxing Day);\n\n (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.\n\nSubstituted public holidays under State or Territory laws\n\n (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.\n\nSubstituted public holidays under modern awards and enterprise agreements\n\n (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).\n\nSubstituted public holidays for award/agreement free employees\n\n (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).\n\nNote: 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)).","sortOrder":259},{"sectionNumber":"116","sectionType":"section","heading":"Payment for absence on public holiday","content":"116  Payment for absence on public holiday\n\n  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.\n\nNote: 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.","sortOrder":260},{"sectionNumber":"Division 10A","sectionType":"division","heading":"Superannuation contributions","content":"Division 10A—Superannuation contributions","sortOrder":261},{"sectionNumber":"116A","sectionType":"section","heading":"Division does not apply to certain employees or employers in referring States","content":"116A  Division does not apply to certain employees or employers in referring States\n\n  This Division does not apply in relation to:\n\n (a) an employee who is a national system employee only because of section 30C or 30M (which extend the meaning of national system employee); or\n\n (b) an employer that is a national system employer only because of section 30D or 30N (which extend the meaning of national system employer).","sortOrder":262},{"sectionNumber":"116B","sectionType":"section","heading":"Employer’s obligation to make superannuation contributions","content":"116B  Employer’s obligation to make superannuation contributions\n\n  An employer must make contributions to a superannuation fund for the benefit of an employee so as to avoid liability to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the employee.","sortOrder":263},{"sectionNumber":"116C","sectionType":"section","heading":"Reduction of employer’s liability to the extent of superannuation charge payments","content":"116C  Reduction of employer’s liability to the extent of superannuation charge payments\n\n  The obligation to make contributions for an employee under section 116B does not apply to an employer to the extent that:\n\n (a) the employer has made a charge payment (within the meaning of section 63A of the Superannuation Guarantee (Administration) Act 1992) in respect of the employee under Part 8 of that Act; and\n\n (b) the employee is a benefiting employee (within the meaning of that Part); and\n\n (c) the Commissioner of Taxation is required to pay, or otherwise deal with, a shortfall component (within the meaning of that Part) for the benefit of the employee under that Part.","sortOrder":264},{"sectionNumber":"116D","sectionType":"section","heading":"Preventing multiple actions","content":"116D  Preventing multiple actions\n\nScope\n\n (1) This section applies if:\n\n (a) an employer has contravened, or allegedly contravened, a civil remedy provision that relates to a contravention of this Division; and\n\n (b) the contravention, or alleged contravention, relates wholly or partly to an employee; and\n\n (c) the employee or another person referred to in an item in column 2 of the table in subsection 539(2) would be entitled to apply for an order under Division 2 of Part 4‑1 in relation to the contravention, or alleged contravention.\n\nNo application for orders in certain circumstances\n\n (2) An application for such an order may not be made if:\n\n (a) the Commissioner of Taxation has commenced proceedings against the employer to recover an amount of superannuation guarantee charge; and\n\n (b) either:\n\n (i) the Commissioner has obtained an order for recovery of the charge; or\n\n (ii) if the proceedings have not been finally disposed of—the Commissioner has not discontinued the proceedings; and\n\n (c) the employer’s superannuation guarantee shortfall in respect of which the charge is imposed arises because the employer has an individual base superannuation guarantee shortfall, or a choice loading, for the employee that is greater than nil.\n\n (3) Terms (apart from employee and employer) used in this section that are defined in the Superannuation Guarantee (Administration) Act 1992 have the same meaning in this section as they have in that Act.","sortOrder":265},{"sectionNumber":"116E","sectionType":"section","heading":"Orders for compensation","content":"116E  Orders for compensation\n\n (1) This section applies if a court makes an order under section 545 awarding compensation to an employee for a contravention of a civil remedy provision that relates to a contravention of this Division.\n\n (2) The court must have regard to the principle that any component of the compensation payable on account of unpaid superannuation contributions should usually be paid to a superannuation fund for the benefit of the employee.","sortOrder":266},{"sectionNumber":"Division 11","sectionType":"division","heading":"Notice of termination and redundancy pay","content":"Division 11—Notice of termination and redundancy pay","sortOrder":267},{"sectionNumber":"117","sectionType":"section","heading":"Requirement for notice of termination or payment in lieu","content":"117  Requirement for notice of termination or payment in lieu\n\nNotice specifying day of termination\n\n (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).\n\nNote 1: Section 123 describes situations in which this section does not apply.\n\nNote 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:\n\n(a) delivering it personally; or\n\n(b) leaving it at the employee’s last known address; or\n\n(c) sending it by pre‑paid post to the employee’s last known address.\n\nAmount of notice or payment in lieu of notice\n\n (2) The employer must not terminate the employee’s employment unless:\n\n (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\n\n (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.\n\n (3) Work out the minimum period of notice as follows:\n\n (a) first, work out the period using the following table:\n\n\n\n- Period\n- Employee’s period of continuous service with the employer at the end of the day the notice is given Period\n- 1 Not more than 1 year 1 week\n- 2 More than 1 year but not more than 3 years 2 weeks\n- 3 More than 3 years but not more than 5 years 3 weeks\n- 4 More than 5 years 4 weeks\n\n\n (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.\n\n (4) A reference in this section to continuous service with the employer does not include periods of employment as a casual employee of the employer.","sortOrder":269},{"sectionNumber":"118","sectionType":"section","heading":"Modern awards and enterprise agreements may provide for notice of termination by employees","content":"118  Modern awards and enterprise agreements may provide for notice of termination by employees\n\n  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.","sortOrder":270},{"sectionNumber":"119","sectionType":"section","heading":"Redundancy pay","content":"119  Redundancy pay\n\nEntitlement to redundancy pay\n\n (1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:\n\n (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\n\n (b) because of the insolvency or bankruptcy of the employer.\n\nNote: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.\n\nAmount of redundancy pay\n\n (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:\n\n\n\n- Redundancy pay period\n- Employee’s period of continuous service with the employer on termination Redundancy pay period\n- 1 At least 1 year but less than 2 years 4 weeks\n- 2 At least 2 years but less than 3 years 6 weeks\n- 3 At least 3 years but less than 4 years 7 weeks\n- 4 At least 4 years but less than 5 years 8 weeks\n- 5 At least 5 years but less than 6 years 10 weeks\n- 6 At least 6 years but less than 7 years 11 weeks\n- 7 At least 7 years but less than 8 years 13 weeks\n- 8 At least 8 years but less than 9 years 14 weeks\n- 9 At least 9 years but less than 10 years 16 weeks\n- 10 At least 10 years 12 weeks\n\n\n (3) A reference in this section to continuous service with the employer does not include periods of employment as a casual employee of the employer.","sortOrder":272},{"sectionNumber":"120","sectionType":"section","heading":"Variation of redundancy pay for other employment or incapacity to pay","content":"120  Variation of redundancy pay for other employment or incapacity to pay\n\n (1) This section applies if:\n\n (a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and\n\n (b) the employer:\n\n (i) obtains other acceptable employment for the employee; or\n\n (ii) cannot pay the amount.\n\n (2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.\n\n (3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.","sortOrder":273},{"sectionNumber":"121","sectionType":"section","heading":"Exclusions from obligation to pay redundancy pay","content":"121  Exclusions from obligation to pay redundancy pay\n\n (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):\n\n (a) the employee’s period of continuous service with the employer (other than periods of employment as a casual employee of the employer) is less than 12 months; or\n\n (b) the employer is a small business employer.\n\n (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.\n\n (3) If a modern award that is in operation includes such a term (the award term), an enterprise agreement may:\n\n (a) incorporate the award term by reference (and as in force from time to time) into the enterprise agreement; and\n\n (b) provide that the incorporated term covers some or all of the employees who are also covered by the award term.\n\nCertain small businesses to pay redundancy pay\n\n (4) Despite subsection (1), an employee whose employment is terminated is entitled to be paid redundancy pay in accordance with this Division if:\n\n (a) at the time of the termination, section 119 did not apply to the termination because the employer was a small business employer; and\n\n (b) the employer is bankrupt or in liquidation (other than only because of a members’ voluntary winding up); and\n\n (c) the employer is a small business employer because the employment of one or more employees was terminated; and\n\n (d) those terminations occurred:\n\n (i) on or after the day that is 6 months before the employer became bankrupt or went into liquidation; or\n\n (ii) if there was an insolvency practitioner (the last insolvency practitioner) for the employer on the business day before the employer became bankrupt or went into liquidation—on or after the day that is 6 months before the insolvency practitioner was appointed; or\n\n (iii) if, before the last insolvency practitioner was appointed, other insolvency practitioners for the employer were appointed without any intervening business days between any of those appointments—on or after the day that is 6 months before the first of those insolvency practitioners was appointed; or\n\n (iv) due to the insolvency of the employer.\n\n (5) A members’ voluntary winding up is a winding up under section 495 of the Corporations Act 2001.\n\nTime of liquidation—members’ voluntary winding up where company turns out to be insolvent\n\n (6) If a liquidator takes action under section 496 of the Corporations Act 2001 (company turns out to be insolvent) in relation to a small business employer whose liquidation began as a members’ voluntary winding up, then, for the purposes of subparagraph (4)(d)(i), the time the employer goes into liquidation is the time the employer goes into liquidation because of the members’ voluntary winding up.\n\nApplication to partnerships\n\n (7) For the purposes of subsection (4), a small business employer that is a partnership is not bankrupt or in liquidation unless each partner of the partnership is bankrupt or in liquidation, as the case requires.","sortOrder":274},{"sectionNumber":"122","sectionType":"section","heading":"Transfer of employment situations that affect the obligation to pay redundancy pay","content":"122  Transfer of employment situations that affect the obligation to pay redundancy pay\n\nTransfer of employment situation in which employer may decide not to recognise employee’s service with first employer\n\n (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).\n\nEmployee is not entitled to redundancy pay if service with first employer counts as service with second employer\n\n (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.\n\nNote: 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.\n\nEmployee not entitled to redundancy pay if refuses employment in certain circumstances\n\n (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:\n\n (a) the employee rejects an offer of employment made by another employer (the second employer) that:\n\n (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\n\n (ii) recognises the employee’s service with the first employer, for the purpose of this Subdivision; and\n\n (b) had the employee accepted the offer, there would have been a transfer of employment in relation to the employee.\n\n (4) If the FWC is satisfied that subsection (3) operates unfairly to the employee, the FWC 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 the FWC considers appropriate. The first employer must pay the employee that amount of redundancy pay.","sortOrder":275},{"sectionNumber":"123","sectionType":"section","heading":"Limits on scope of this Division","content":"123  Limits on scope of this Division\n\nEmployees not covered by this Division\n\n (1) This Division does not apply to any of the following employees:\n\n (a) an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;\n\n (b) an employee whose employment is terminated because of serious misconduct;\n\n (c) a casual employee;\n\n (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;\n\n (e) an employee prescribed by the regulations as an employee to whom this Division does not apply.\n\n (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.\n\nOther employees not covered by notice of termination provisions\n\n (3) Subdivision A does not apply to:\n\n (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\n\n (c) a daily hire employee working in the meat industry in connection with the slaughter of livestock; or\n\n (d) a weekly hire employee working in connection with the meat industry and whose termination of employment is determined solely by seasonal factors; or\n\n (e) an employee prescribed by the regulations as an employee to whom that Subdivision does not apply.\n\nOther employees not covered by redundancy pay provisions\n\n (4) Subdivision B does not apply to:\n\n (a) an employee who is an apprentice; or\n\n (b) an employee to whom an industry‑specific redundancy scheme in a modern award applies; or\n\n (c) an employee to whom a redundancy scheme in an enterprise agreement applies if:\n\n (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\n\n (ii) the employee is covered by the industry‑specific redundancy scheme in the modern award; or\n\n (d) an employee prescribed by the regulations as an employee to whom that Subdivision does not apply.","sortOrder":277},{"sectionNumber":"Division 12","sectionType":"division","heading":"Fair Work Ombudsman to prepare and publish statements","content":"Division 12—Fair Work Ombudsman to prepare and publish statements","sortOrder":278},{"sectionNumber":"124","sectionType":"section","heading":"Fair Work Ombudsman to prepare and publish Fair Work Information Statement","content":"124  Fair Work Ombudsman to prepare and publish Fair Work Information Statement\n\n (1) The Fair Work Ombudsman must prepare a Fair Work Information Statement. The Fair Work Ombudsman must publish the Statement in the Gazette.\n\nNote: If the Fair Work Ombudsman changes the Statement, the Fair Work Ombudsman must publish the new version of the Statement in the Gazette.\n\n (2) The Statement must contain information about the following:\n\n (a) the National Employment Standards;\n\n (b) modern awards;\n\n (c) agreement‑making under this Act;\n\n (d) the right to freedom of association;\n\n (e) the role of the FWC and the Fair Work Ombudsman;\n\n (f) termination of employment;\n\n (g) individual flexibility arrangements;\n\n (h) right of entry (including the protection of personal information by privacy laws).\n\n (3) The Fair Work Information Statement is not a legislative instrument.\n\n (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.","sortOrder":279},{"sectionNumber":"125","sectionType":"section","heading":"Giving new employees the Fair Work Information Statement","content":"125  Giving new employees the Fair Work Information Statement\n\n (1) An employer must give each employee the Fair Work Information Statement before, or as soon as practicable after, the employee starts employment.\n\n (2) Subsection (1) does not require the employer to give the employee the Statement more than once in any 12 months.\n\nNote: This is relevant if the employer employs the employee more than once in the 12 months.","sortOrder":280},{"sectionNumber":"125A","sectionType":"section","heading":"Fair Work Ombudsman to prepare and publish Casual Employment Information Statement","content":"125A  Fair Work Ombudsman to prepare and publish Casual Employment Information Statement\n\n (1) The Fair Work Ombudsman must prepare a Casual Employment Information Statement. The Fair Work Ombudsman must publish the Statement in the Gazette.\n\nNote: If the Fair Work Ombudsman changes the Statement, the Fair Work Ombudsman must publish the new version of the Statement in the Gazette.\n\n (2) The Statement must contain information about casual employment and how this can be changed under Division 4A of Part 2‑2, including the following:\n\n (a) the meaning of casual employee under section 15A;\n\n (aa) an employee who has completed 6 months of employment (12 months if a small business employer) can notify the employer if, having regard to the employee’s current employment relationship with the employer, the employee believes that the employee no longer meets the requirements of subsections 15A(1) to (4);\n\n (ab) the grounds upon which an employer may not accept a notification given by an employee;\n\n (e) the FWC may deal with disputes about the operation of that Division.\n\n (3) The Casual Employment Information Statement is not a legislative instrument.\n\n (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.","sortOrder":281},{"sectionNumber":"125B","sectionType":"section","heading":"Giving employees the Casual Employment Information Statement","content":"125B  Giving employees the Casual Employment Information Statement\n\n (1) An employer must give a casual employee the Casual Employment Information Statement:\n\n (a) before, or as soon as practicable after, the employee starts employment as a casual employee with the employer; and\n\n (b) as soon as practicable after the employee has been employed by the employer for a period of 6 months beginning the day the employment started; and\n\n (c) as soon as practicable after the following:\n\n (i) the employee has been employed by the employer for a period of 12 months beginning the day the employment started;\n\n (ii) the end of any subsequent period of 12 months for which the employee is employed by the employer.\n\n (2) However, paragraph (1)(b) and subparagraph (1)(c)(ii) do not apply if at the time the employer has employed the employee for the period referred to in that paragraph or subparagraph, the employer is a small business employer.\n\n (3) This section does not, apart from the operation of paragraph (1)(b), require the employer to give the employee the Statement more than once in any 12 months.\n\nNote: This is relevant if the employer employs the employee more than once in the 12 months.","sortOrder":282},{"sectionNumber":"Division 13","sectionType":"division","heading":"Miscellaneous","content":"Division 13—Miscellaneous","sortOrder":283},{"sectionNumber":"126","sectionType":"section","heading":"Modern awards and enterprise agreements may provide for school-based apprentices and trainees to be paid loadings in lieu","content":"126  Modern awards and enterprise agreements may provide for school‑based apprentices and trainees to be paid loadings in lieu\n\n  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:\n\n (a) paid annual leave;\n\n (b) paid personal/carer’s leave;\n\n (c) paid absence under Division 10 (which deals with public holidays).\n\nNote: Section 199 affects whether the FWC 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.","sortOrder":284},{"sectionNumber":"127","sectionType":"section","heading":"Regulations about what modern awards and enterprise agreements can do","content":"127  Regulations about what modern awards and enterprise agreements can do\n\n  The regulations may:\n\n (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\n\n (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.","sortOrder":285},{"sectionNumber":"128","sectionType":"section","heading":"Relationship between National Employment Standards and agreements etc. permitted by this Part for award/agreement free employees","content":"128  Relationship between National Employment Standards and agreements etc. permitted by this Part for award/agreement free employees\n\n  The National Employment Standards have effect subject to:\n\n (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\n\n (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.\n\nNote 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.\n\nNote 2: See also the note to section 64 (which deals with the effect of averaging arrangements).","sortOrder":286},{"sectionNumber":"129","sectionType":"section","heading":"Regulations about what can be agreed to etc. in relation to award/agreement free employees","content":"129  Regulations about what can be agreed to etc. in relation to award/agreement free employees\n\n  The regulations may:\n\n (a) permit employers, and award/agreement free employees, to agree on matters that would or might otherwise be contrary to this Part; or\n\n (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.","sortOrder":287},{"sectionNumber":"130","sectionType":"section","heading":"Restriction on taking or accruing leave or absence while receiving workers’ compensation","content":"130  Restriction on taking or accruing leave or absence while receiving workers’ compensation\n\n (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.\n\n (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.\n\n (3) Subsection (1) does not prevent an employee from taking unpaid parental leave during a compensation period.","sortOrder":288},{"sectionNumber":"131","sectionType":"section","heading":"Relationship with other Commonwealth laws","content":"131  Relationship with other Commonwealth laws\n\n  This Part establishes minimum standards and so is intended to supplement, and not to override, entitlements under other laws of the Commonwealth.","sortOrder":289},{"sectionNumber":"Part 2-3","sectionType":"part","heading":"Modern awards","content":"Part 2‑3—Modern awards","sortOrder":290},{"sectionNumber":"132","sectionType":"section","heading":"Guide to this Part","content":"132  Guide to this Part\n\nThis Part provides for the FWC 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).\n\nDivision 2 provides for the modern awards objective. This requires the FWC 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.\n\nDivision 3 deals with the terms of modern awards.\n\nDivision 4A provides for the FWC to conduct 4 yearly reviews of default fund terms of modern awards.\n\nIt also sets out the process for making the Schedule of Approved Employer MySuper products in a 4 yearly review, and amending the schedule after it is made to include other employer MySuper products. If an employer MySuper product is on the schedule, an employer covered by a modern award can make contributions, for the benefit of a default fund employee, to a superannuation fund that offers the product (see subsection 149D(1A)).\n\nDivision 5 provides for the FWC to exercise modern award powers in certain circumstances.\n\nDivision 6 contains some general provisions relating to modern award powers.\n\nDivision 7 contains additional provisions relating to modern enterprise awards.\n\nDivision 8 contains additional provisions relating to State reference public sector modern awards.\n\nThe obligation to comply with a modern award is in section 45 (in Part 2‑1).\n\nIn relation to minimum wages in modern awards, the FWC has powers both under this Part and under Part 2‑6 (which deals with minimum wages). The following is a summary of the FWC’s powers under the 2 Parts:\n\n (a) the initial making of a modern award setting modern award minimum wages can only occur under this Part;\n\n (b) the main power to vary modern award minimum wages is in annual wage reviews under Part 2‑6;\n\n (c) modern award minimum wages can also be varied under this Part, but only for work value reasons or in other limited circumstances;\n\n (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.","sortOrder":292},{"sectionNumber":"133","sectionType":"section","heading":"Meanings of employee and employer","content":"133  Meanings of employee and employer\n\n  In this Part, employee means a national system employee, and employer means a national system employer.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":293},{"sectionNumber":"134","sectionType":"section","heading":"The modern awards objective","content":"134  The modern awards objective\n\nWhat is the modern awards objective?\n\n (1) The FWC 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:\n\n (a) relative living standards and the needs of the low paid; and\n\n (aa) the need to improve access to secure work across the economy; and\n\n (ab) the need to achieve gender equality in the workplace by ensuring equal remuneration for work of equal or comparable value, eliminating gender‑based undervaluation of work and providing workplace conditions that facilitate women’s full economic participation; and\n\n (b) the need to encourage collective bargaining; and\n\n (c) the need to promote social inclusion through increased workforce participation; and\n\n (d) the need to promote flexible modern work practices and the efficient and productive performance of work; and\n\n (da) the need to provide additional remuneration for:\n\n (i) employees working overtime; or\n\n (ii) employees working unsocial, irregular or unpredictable hours; or\n\n (iii) employees working on weekends or public holidays; or\n\n (iv) employees working shifts; and\n\n (f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and\n\n (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\n\n (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.\n\nThis is the modern awards objective.\n\nWhen does the modern awards objective apply?\n\n (2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:\n\n (a) the FWC’s functions or powers under this Part; and\n\n (b) the FWC’s functions or powers under Part 2‑6, so far as they relate to modern award minimum wages.\n\nNote 1: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).\n\nNote 2: Further, the FWC must take into account the road transport objective when performing certain functions: see section 40D and subsection 617(10B).","sortOrder":295},{"sectionNumber":"135","sectionType":"section","heading":"Special provisions relating to modern award minimum wages","content":"135  Special provisions relating to modern award minimum wages\n\n (1) Modern award minimum wages cannot be varied under this Part except as follows:\n\n (a) modern award minimum wages can be varied if the FWC is satisfied that the variation is justified by work value reasons (see subsection 157(2));\n\n (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).\n\nNote 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.\n\nNote 2: For the meanings of modern award minimum wages, and setting and varying such wages, see section 284.\n\n (2) In exercising its powers under this Part to set, vary or revoke modern award minimum wages, the FWC must take into account the rate of the national minimum wage as currently set in a national minimum wage order.","sortOrder":296},{"sectionNumber":"135A","sectionType":"section","heading":"Special provisions relating to penalty rates and overtime rates","content":"135A  Special provisions relating to penalty rates and overtime rates\n\n (1) In exercising its powers under this Part to make, vary or revoke modern awards, the FWC must ensure that:\n\n (a) the rate of a penalty rate or an overtime rate that employees are entitled to receive is not reduced; and\n\n (b) modern awards do not include terms that substitute employees’ entitlements to receive penalty rates or overtime rates where those terms would have the effect of reducing the additional remuneration referred to in paragraph 134(1)(da) that any employee would otherwise receive.\n\n (2) Subsection (1) does not limit the operation of section 144 (flexibility terms) or section 160 (which deals with variation to remove ambiguities or correct errors).\n\n (3) Nothing in subsection (1) requires the FWC to exercise its powers under this Part to make, vary or revoke modern awards.","sortOrder":297},{"sectionNumber":"136","sectionType":"section","heading":"What can be included in modern awards","content":"136  What can be included in modern awards\n\nTerms that may or must be included\n\n (1) A modern award must only include terms that are permitted or required by:\n\n (a) Subdivision B (which deals with terms that may be included in modern awards); or\n\n (b) Subdivision C (which deals with terms that must be included in modern awards); or\n\n (c) section 55 (which deals with interaction between the National Employment Standards and a modern award or enterprise agreement); or\n\n (d) Part 2‑2 (which deals with the National Employment Standards).\n\nNote 1: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards.\n\nNote 2: Part 2‑2 includes a number of provisions permitting inclusion of terms about particular matters.\n\nTerms that must not be included\n\n (2) A modern award must not include terms that contravene:\n\n (a) Subdivision D (which deals with terms that must not be included in modern awards); or\n\n (b) section 55 (which deals with the interaction between the National Employment Standards and a modern award or enterprise agreement).\n\nNote: 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).","sortOrder":300},{"sectionNumber":"137","sectionType":"section","heading":"Terms that contravene section 136 have no effect","content":"137  Terms that contravene section 136 have no effect\n\n  A term of a modern award has no effect to the extent that it contravenes section 136.","sortOrder":301},{"sectionNumber":"138","sectionType":"section","heading":"Achieving the modern awards objective","content":"138  Achieving the modern awards objective\n\n  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.","sortOrder":302},{"sectionNumber":"139","sectionType":"section","heading":"Terms that may be included in modern awards—general","content":"139  Terms that may be included in modern awards—general\n\n (1) A modern award may include terms about any of the following matters:\n\n (a) minimum wages (including wage rates for junior employees, employees with a disability and employees to whom training arrangements apply), and:\n\n (i) skill‑based classifications and career structures; and\n\n (ii) incentive‑based payments, piece rates and bonuses;\n\n (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;\n\n (c) arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours;\n\n (d) overtime rates;\n\n (e) penalty rates, including for any of the following:\n\n (i) employees working unsocial, irregular or unpredictable hours;\n\n (ii) employees working on weekends or public holidays;\n\n (iii) shift workers;\n\n (f) annualised wage arrangements that:\n\n (i) have regard to the patterns of work in an occupation, industry or enterprise; and\n\n (ii) provide an alternative to the separate payment of wages and other monetary entitlements; and\n\n (iii) include appropriate safeguards to ensure that individual employees are not disadvantaged;\n\n (g) allowances, including for any of the following:\n\n (i) expenses incurred in the course of employment;\n\n (ii) responsibilities or skills that are not taken into account in rates of pay;\n\n (iii) disabilities associated with the performance of particular tasks or work in particular conditions or locations;\n\n (h) leave, leave loadings and arrangements for taking leave;\n\n (i) superannuation;\n\n (j) procedures for consultation, representation and dispute settlement.\n\n (2) Any allowance included in a modern award must be separately and clearly identified in the award.","sortOrder":304},{"sectionNumber":"140","sectionType":"section","heading":"Outworker terms","content":"140  Outworker terms\n\n (1) A modern award may include either or both of the following:\n\n (a) terms relating to the conditions under which an employer may employ employees who are outworkers;\n\n (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.\n\nNote: A person who is an employer may also be an outworker entity (see the definition of outworker entity in section 12).\n\n (2) Without limiting subsection (1), terms referred to in that subsection may include terms relating to the pay or conditions of outworkers.\n\n (3) The following terms of a modern award are outworker terms:\n\n (a) terms referred to in subsection (1);\n\n (b) terms that are incidental to terms referred to in subsection (1), included in the modern award under subsection 142(1);\n\n (c) machinery terms in relation to terms referred to in subsection (1), included in the modern award under subsection 142(2).","sortOrder":305},{"sectionNumber":"141","sectionType":"section","heading":"Industry-specific redundancy schemes","content":"141  Industry‑specific redundancy schemes\n\nWhen can a modern award include an industry‑specific redundancy scheme?\n\n (1) A modern award may include an industry‑specific redundancy scheme if the scheme was included in the award:\n\n (a) in the award modernisation process; or\n\n (b) in accordance with subsection (2).\n\nNote: 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.\n\nCoverage of industry‑specific redundancy schemes must not be extended\n\n (2) If:\n\n (a) a modern award includes an industry‑specific redundancy scheme; and\n\n (b) the FWC is making or varying another modern award under Division 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;\n\nthe FWC may include the scheme in that other modern award. However, the FWC must not extend the coverage of the scheme to classes of employees that it did not previously cover.\n\nVarying industry‑specific redundancy schemes\n\n (3) The FWC may only vary an industry‑specific redundancy scheme in a modern award under Division 5:\n\n (a) by varying the amount of any redundancy payment in the scheme; or\n\n (b) in accordance with a provision of Subdivision B of Division 5 (which deals with varying modern awards in some limited situations).\n\n (4) In varying an industry‑specific redundancy scheme as referred to in subsection (3), the FWC:\n\n (a) must not extend the coverage of the scheme to classes of employees that it did not previously cover; and\n\n (b) must retain the industry‑specific character of the scheme.\n\nOmitting industry‑specific redundancy schemes\n\n (5) The FWC may vary a modern award under Division 5 by omitting an industry‑specific redundancy scheme from the award.","sortOrder":306},{"sectionNumber":"141A","sectionType":"section","heading":"Terms permitting fixed term contracts","content":"141A  Terms permitting fixed term contracts\n\n (1) A modern award may include terms that permit an employee to be employed under a contract of employment that includes a term that provides the contract will terminate at the end of an identifiable period (whether or not the contract also includes other terms that provide for circumstances in which it may be terminated before the end of that period).\n\n (2) Without limiting subsection (1), a modern award may include terms that permit any of the circumstances mentioned in subsections 333E(2) to (4) (about certain fixed term contracts) to occur.","sortOrder":307},{"sectionNumber":"142","sectionType":"section","heading":"Incidental and machinery terms","content":"142  Incidental and machinery terms\n\nIncidental terms\n\n (1) A modern award may include terms that are:\n\n (a) incidental to a term that is permitted or required to be in the modern award; and\n\n (b) essential for the purpose of making a particular term operate in a practical way.\n\nMachinery terms\n\n (2) A modern award may include machinery terms, including formal matters (such as a title, date or table of contents).","sortOrder":308},{"sectionNumber":"143","sectionType":"section","heading":"Coverage terms of modern awards other than modern enterprise awards and State reference public sector modern awards","content":"143  Coverage terms of modern awards other than modern enterprise awards and State reference public sector modern awards\n\nCoverage terms must be included\n\n (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.\n\nEmployers and employees\n\n (2) A modern award must be expressed to cover:\n\n (a) specified employers; and\n\n (b) specified employees of employers covered by the modern award.\n\nOrganisations\n\n (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.\n\nOutworker entities\n\n (4) A modern award may be expressed to cover, but only in relation to outworker terms included in the award, specified outworker entities.\n\nHow coverage is expressed\n\n (5) For the purposes of subsections (2) to (4):\n\n (a) employers may be specified by name or by inclusion in a specified class or specified classes; and\n\n (b) employees must be specified by inclusion in a specified class or specified classes; and\n\n (c) organisations must be specified by name; and\n\n (d) outworker entities may be specified by name or by inclusion in a specified class or specified classes.\n\n (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.\n\nEmployees not traditionally covered by awards etc.\n\n (7) A modern award must not be expressed to cover classes of employees:\n\n (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\n\n (b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.\n\nNote: For example, in some industries, managerial employees have traditionally not been covered by awards.\n\nModern enterprise awards\n\n (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 Transitional Act), or employers in relation to those employees.\n\n (9) This section does not apply to modern enterprise awards.\n\nState reference public sector modern awards\n\n (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 Transitional Act), or employers in relation to those employees.\n\n (11) This section does not apply to State reference public sector modern awards.","sortOrder":310},{"sectionNumber":"143A","sectionType":"section","heading":"Coverage terms of modern enterprise awards","content":"143A  Coverage terms of modern enterprise awards\n\nCoverage terms must be included\n\n (1) A modern enterprise award must include terms (coverage terms) setting out, in accordance with this section:\n\n (a) the enterprise or enterprises to which the modern enterprise award relates; and\n\n (b) the employers, employees and organisations that are covered by the modern enterprise award.\n\nEnterprises\n\n (2) A modern enterprise award must be expressed to relate:\n\n (a) to a single enterprise (or a part of a single enterprise) only; or\n\n (b) to one or more enterprises, but only if the employers all carry on similar business activities under the same franchise and are:\n\n (i) franchisees of the same franchisor; or\n\n (ii) related bodies corporate of the same franchisor; or\n\n (iii) any combination of the above.\n\nEmployers and employees\n\n (3) A modern enterprise award must be expressed to cover:\n\n (a) a specified employer that carries on, or specified employers that carry on, the enterprise or enterprises referred to in subsection (2); and\n\n (b) specified employees of employers covered by the modern enterprise award.\n\nOrganisations\n\n (4) A modern enterprise award may be expressed to cover one or more specified organisations, in relation to:\n\n (a) all or specified employees covered by the award; or\n\n (b) the employer, or all or specified employers, covered by the award.\n\nOutworker entities\n\n (5) A modern enterprise award must not be expressed to cover outworker entities.\n\nHow coverage etc. is expressed\n\n (6) For the purposes of subsection (2), an enterprise must be specified:\n\n (a) if paragraph (2)(a) applies to the enterprise—by name; or\n\n (b) if paragraph (2)(b) applies to the enterprise—by name, or by the name of the franchise.\n\n (7) For the purposes of subsections (3) and (4):\n\n (a) an employer or employers may be specified by name or by inclusion in a specified class or specified classes; and\n\n (b) employees must be specified by inclusion in a specified class or specified classes; and\n\n (c) organisations must be specified by name.\n\nEmployees not traditionally covered by awards etc.\n\n (8) A modern enterprise award must not be expressed to cover classes of employees:\n\n (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\n\n (b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.\n\nNote: For example, in some industries, managerial employees have traditionally not been covered by awards.","sortOrder":311},{"sectionNumber":"143B","sectionType":"section","heading":"Coverage terms of State reference public sector modern awards","content":"143B  Coverage terms of State reference public sector modern awards\n\nCoverage terms must be included\n\n (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.\n\nEmployers and employees\n\n (2) The coverage terms must be such that:\n\n (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\n\n (b) the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers.\n\nOrganisations\n\n (3) A State reference public sector modern award may be expressed to cover one or more specified organisations, in relation to:\n\n (a) all or specified employees covered by the modern award; or\n\n (b) the employer, or all or specified employers, covered by the modern award.\n\nOutworker entities\n\n (4) A State reference public sector modern award must not be expressed to cover outworker entities.\n\nHow coverage etc. is expressed\n\n (5) For the purposes of this section:\n\n (a) an employer or employers may be specified by name or by inclusion in a specified class or specified classes; and\n\n (b) employees must be specified by inclusion in a specified class or specified classes; and\n\n (c) organisations must be specified by name.","sortOrder":312},{"sectionNumber":"144","sectionType":"section","heading":"Flexibility terms","content":"144  Flexibility terms\n\nFlexibility terms must be included\n\n (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.\n\nEffect of individual flexibility arrangements\n\n (2) If an employee and employer agree to an individual flexibility arrangement under a flexibility term in a modern award:\n\n (a) the modern award has effect in relation to the employee and the employer as if it were varied by the flexibility arrangement; and\n\n (b) the arrangement is taken, for the purposes of this Act, to be a term of the modern award.\n\n (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.\n\nRequirements for flexibility terms\n\n (4) The flexibility term must:\n\n (a) identify the terms of the modern award the effect of which may be varied by an individual flexibility arrangement; and\n\n (b) require that the employee and the employer genuinely agree to any individual flexibility arrangement; and\n\n (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\n\n (d) set out how any flexibility arrangement may be terminated by the employee or the employer; and\n\n (e) require the employer to ensure that any individual flexibility arrangement must be in writing and signed:\n\n (i) in all cases—by the employee and the employer; and\n\n (ii) if the employee is under 18—by a parent or guardian of the employee; and\n\n (f) require the employer to ensure that a copy of any individual flexibility arrangement must be given to the employee.\n\n (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.","sortOrder":313},{"sectionNumber":"145","sectionType":"section","heading":"Effect of individual flexibility arrangement that does not meet requirements of flexibility term","content":"145  Effect of individual flexibility arrangement that does not meet requirements of flexibility term\n\nApplication of this section\n\n (1) This section applies if:\n\n (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\n\n (b) the arrangement does not meet a requirement set out in section 144.\n\nNote: A failure to meet such a requirement may be a contravention of a provision of Part 3‑1 (which deals with general protections).\n\nArrangement has effect as if it were an individual flexibility arrangement\n\n (2) The arrangement has effect as if it were an individual flexibility arrangement.\n\nEmployer contravenes flexibility term in specified circumstances\n\n (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.\n\nFlexibility arrangement may be terminated by agreement or notice\n\n (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:\n\n (a) by either the employee, or the employer, giving written notice of not more than 28 days; or\n\n (b) by the employee and the employer at any time if they agree, in writing, to the termination.","sortOrder":314},{"sectionNumber":"145A","sectionType":"section","heading":"Consultation about changes to rosters or hours of work","content":"145A  Consultation about changes to rosters or hours of work\n\n (1) Without limiting paragraph 139(1)(j), a modern award must include a term that:\n\n (a) requires the employer to consult employees about a change to their regular roster or ordinary hours of work; and\n\n (b) allows for the representation of those employees for the purposes of that consultation.\n\n (2) The term must require the employer:\n\n (a) to provide information to the employees about the change; and\n\n (b) to invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and\n\n (c) to consider any views about the impact of the change that are given by the employees.","sortOrder":315},{"sectionNumber":"146","sectionType":"section","heading":"Terms about settling disputes","content":"146  Terms about settling disputes\n\n  Without limiting paragraph 139(1)(j), a modern award must include a term that provides a procedure for settling disputes:\n\n (a) about any matters arising under the award; and\n\n (b) in relation to the National Employment Standards.","sortOrder":316},{"sectionNumber":"147","sectionType":"section","heading":"Ordinary hours of work","content":"147  Ordinary hours of work\n\n  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.\n\nNote: An employee’s ordinary hours of work are significant in determining the employee’s entitlements under the National Employment Standards.","sortOrder":317},{"sectionNumber":"148","sectionType":"section","heading":"Base and full rates of pay for pieceworkers","content":"148  Base and full rates of pay for pieceworkers\n\n  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.\n\nNote: An employee’s base and full rates of pay are significant in determining the employee’s entitlements under the National Employment Standards.","sortOrder":318},{"sectionNumber":"149","sectionType":"section","heading":"Automatic variation of allowances","content":"149  Automatic variation of allowances\n\n  If a modern award includes allowances that the FWC 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.","sortOrder":319},{"sectionNumber":"149B","sectionType":"section","heading":"Term requiring avoidance of liability to pay superannuation guarantee charge","content":"149B  Term requiring avoidance of liability to pay superannuation guarantee charge\n\n (1) A modern award must include a term that requires an employer covered by the award to make contributions to a superannuation fund for the benefit of an employee covered by the award so as to avoid liability to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the employee.\n\nReduction of employer’s liability to the extent of superannuation charge payments\n\n (2) The obligation of an employer to make contributions for the benefit of an employee under a term mentioned in subsection (1) does not apply to the extent that:\n\n (a) the employer has made a charge payment (within the meaning of section 63A of the Superannuation Guarantee (Administration) Act 1992) in respect of the employee under Part 8 of that Act; and\n\n (b) the employee is a benefiting employee (within the meaning of that Part); and\n\n (c) the Commissioner of Taxation is required to pay, or otherwise deal with, a shortfall component (within the meaning of that Part) for the benefit of the employee under that Part.","sortOrder":320},{"sectionNumber":"149C","sectionType":"section","heading":"Default fund terms","content":"149C  Default fund terms\n\n (1) A modern award must include a default fund term that complies with section 149D.\n\n (2) A default fund term is a term of a modern award that requires, permits or prohibits an employer covered by the award to make contributions to a superannuation fund for the benefit of an employee (a default fund employee) who:\n\n (a) is covered by the award; and\n\n (b) has no chosen fund (within the meaning of the Superannuation Guarantee (Administration) Act 1992).","sortOrder":321},{"sectionNumber":"149D","sectionType":"section","heading":"Default fund term must provide for contributions to be made to certain funds","content":"149D  Default fund term must provide for contributions to be made to certain funds\n\nSpecified superannuation fund offering standard MySuper product\n\n (1) A default fund term of a modern award must require an employer covered by the award to make contributions, for the benefit of a default fund employee, to a superannuation fund that:\n\n (a) offers a standard MySuper product; and\n\n (b) is specified in the default fund term of the award in relation to that product;\n\nif:\n\n (c) the employer will be liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the employee if the employer does not make contributions to a superannuation fund for the benefit of the employee; and\n\n (d) the employer is not making contributions to a superannuation fund referred to in subsection (1A), (2), (3), (4) or (5) for the benefit of the employee.\n\nNote: If a superannuation fund is specified in the default fund term of a modern award in relation to a standard MySuper product and, in addition to offering the standard MySuper product, the fund offers a tailored MySuper product that a default fund employee is entitled to hold, then any contributions made by the employer to the fund for the benefit of that employee will be paid into the tailored MySuper product instead of the standard MySuper product (see section 29WB of the Superannuation Industry (Supervision) Act 1993).\n\nSuperannuation funds offering employer MySuper products on the schedule\n\n (1A) A default fund term of a modern award must permit an employer covered by the award to make contributions, for the benefit of a default fund employee, to a superannuation fund that offers an employer MySuper product that:\n\n (a) relates to the employer; and\n\n (b) is on the Schedule of Approved Employer MySuper Products.\n\nNote: The Schedule of Approved Employer MySuper Products is made during a 4 yearly review of default fund terms of modern awards under Division 4A of Part 2‑3.\n\nDefined Benefits Scheme\n\n (2) A default fund term of a modern award must permit an employer covered by the award to make contributions, for the benefit of a default fund employee, to a superannuation fund in relation to which a default fund employee is a defined benefit member.\n\nExempt public sector superannuation scheme\n\n (3) A default fund term of a modern award must permit an employer covered by the award to make contributions, for the benefit of a default fund employee, to a superannuation fund that is an exempt public sector superannuation scheme.\n\nState public sector superannuation scheme\n\n (4) A default fund term of a modern award must permit an employer covered by the award to make contributions, for the benefit of a default fund employee, to a superannuation fund that:\n\n (a) is a public sector superannuation scheme (within the meaning of the Superannuation Industry (Supervision) Act 1993); and\n\n (b) a law of a State requires the employer to make contributions to for the benefit of the employee.\n\nTransitionally authorised superannuation fund\n\n (5) A default fund term of a modern award must permit an employer covered by the award to make contributions, for the benefit of a default fund employee, to a superannuation fund in relation to which a transitional authorisation is in operation under section 156K.","sortOrder":322},{"sectionNumber":"149E","sectionType":"section","heading":"Workplace delegates’ rights","content":"149E  Workplace delegates’ rights\n\n  A modern award must include a delegates’ rights term for workplace delegates covered by the award.\n\nNote: Delegates’ rights term is defined in section 12.","sortOrder":323},{"sectionNumber":"149F","sectionType":"section","heading":"Right to disconnect","content":"149F  Right to disconnect\n\n  A modern award must include a right to disconnect term.\n\nNote: Right to disconnect term is defined in section 12.","sortOrder":324},{"sectionNumber":"150","sectionType":"section","heading":"Objectionable terms","content":"150  Objectionable terms\n\n  A modern award must not include an objectionable term.","sortOrder":326},{"sectionNumber":"151","sectionType":"section","heading":"Terms about payments and deductions for benefit of employer etc.","content":"151  Terms about payments and deductions for benefit of employer etc.\n\n  A modern award must not include a term that has no effect because of:\n\n (a) subsection 326(1) (which deals with unreasonable deductions for the benefit of an employer); or\n\n (b) subsection 326(3) (which deals with unreasonable requirements to spend or pay an amount); or\n\n (c) subsection 326(4) (which deals with deductions or payments in relation to employees under 18).","sortOrder":327},{"sectionNumber":"152","sectionType":"section","heading":"Terms about right of entry","content":"152  Terms about right of entry\n\n  A modern award must not include terms that require or authorise an official of an organisation to enter premises:\n\n (a) to hold discussions with, or interview, an employee; or\n\n (b) to inspect any work, process or object.","sortOrder":328},{"sectionNumber":"153","sectionType":"section","heading":"Terms that are discriminatory","content":"153  Terms that are discriminatory\n\nDiscriminatory terms must not be included\n\n (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 orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.\n\nCertain terms are not discriminatory\n\n (2) A term of a modern award does not discriminate against an employee:\n\n (a) if the reason for the discrimination is the inherent requirements of the particular position held by the employee; or\n\n (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:\n\n (i) in good faith; and\n\n (ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.\n\n (3) A term of a modern award does not discriminate against an employee merely because it provides for minimum wages for:\n\n (a) all junior employees, or a class of junior employees; or\n\n (b) all employees with a disability, or a class of employees with a disability; or\n\n (c) all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.","sortOrder":329},{"sectionNumber":"154","sectionType":"section","heading":"Terms that contain State-based differences","content":"154  Terms that contain State‑based differences\n\nGeneral rule—State‑based difference terms must not be included\n\n (1) A modern award must not include terms and conditions of employment (State‑based difference terms) that:\n\n (a) are determined by reference to State or Territory boundaries; or\n\n (b) are expressed to operate in one or more, but not every, State and Territory.\n\nWhen State‑based difference terms may be included\n\n (2) However, a modern award may include State‑based difference terms if the terms were included in the award:\n\n (a) in the award modernisation process; or\n\n (b) in accordance with subsection (3);\n\nbut only for up to 5 years starting on the day on which the first modern award that included those terms came into operation.\n\n (3) If:\n\n (a) a modern award includes State‑based difference terms as permitted under subsection (2); and\n\n (b) the FWC 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;\n\nthe FWC may include those terms in that other modern award. However, the FWC must not extend the coverage of those terms to classes of employees that they did not previously cover.","sortOrder":330},{"sectionNumber":"155","sectionType":"section","heading":"Terms dealing with long service leave","content":"155  Terms dealing with long service leave\n\n  A modern award must not include terms dealing with long service leave.","sortOrder":331},{"sectionNumber":"156A","sectionType":"section","heading":"4 yearly reviews of default fund terms","content":"156A  4 yearly reviews of default fund terms\n\nTiming of 4 yearly reviews\n\n (1) The FWC must conduct a 4 yearly review of default fund terms of modern awards starting as soon as practicable after each 4th anniversary of the commencement of this Part.\n\nNote: The President may give directions about the conduct of those reviews (see section 582).\n\nTwo stages of the 4 yearly reviews\n\n (2) There are 2 stages of the 4 yearly review.\n\nFirst stage—the Default Superannuation List\n\n (3) In the first stage, the FWC must make the Default Superannuation List for the purposes of the review.\n\nNote: In the first stage, the FWC must be constituted by an Expert Panel for the purposes of making the list and determining applications to include standard MySuper products on the list (see paragraphs 617(4)(a) and (b)).\n\nSecond stage—reviewing and varying default fund terms\n\n (4) In the second stage, the FWC:\n\n (a) must review the default fund term of each modern award; and\n\n (b) must make a determination varying the term in accordance with section 156H; and\n\n (c) if section 156J applies—must make a determination varying the term in accordance with that section.\n\nNote: For the second stage, the FWC must be constituted by a Full Bench (see subsections 616(2A) and (3A)).\n\nThe Schedule of Approved Employer MySuper Products\n\n (5) In the 4 yearly review, the FWC must also make the Schedule of Approved Employer MySuper Products.\n\nNote: The FWC must be constituted by an Expert Panel for the purposes of making the schedule and determining applications to include employer MySuper products on the schedule (see paragraphs 617(4)(c) and (d)).","sortOrder":334},{"sectionNumber":"156B","sectionType":"section","heading":"Making the Default Superannuation List","content":"156B  Making the Default Superannuation List\n\n (1) In the 4 yearly review, the FWC must make and publish the Default Superannuation List.\n\n (2) The Default Superannuation List must specify each standard MySuper product that the FWC has determined under section 156E is to be included on the list.\n\n (3) The Default Superannuation List must not specify any other product.","sortOrder":336},{"sectionNumber":"156C","sectionType":"section","heading":"Applications to list a standard MySuper product","content":"156C  Applications to list a standard MySuper product\n\n (1) Before making the Default Superannuation List, the FWC must publish a notice that invites superannuation funds that offer a standard MySuper product to apply to the FWC to have the product included on the list.\n\n (2) The notice must specify the period in which an application may be made.\n\n (3) After the notice is published, a superannuation fund that offers a standard MySuper product may make a written application to have the product included on the list.\n\n (4) The application must:\n\n (a) be made in the period specified in the notice; and\n\n (b) be accompanied by any fees that are prescribed by the regulations; and\n\n (c) provide information relating to the first stage criteria.\n\n (5) The FWC must publish any application made under subsection (3).\n\n (6) However, if an application includes information that is claimed by the superannuation fund to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive:\n\n (a) the FWC may decide not to publish the information; and\n\n (b) if it does so, it must instead publish 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).\n\n (7) A reference in this Act (other than in this section) in relation to an application made under subsection (3) includes a reference to a summary referred to in paragraph (6)(b).","sortOrder":337},{"sectionNumber":"156D","sectionType":"section","heading":"Submissions on applications to list a standard MySuper product","content":"156D  Submissions on applications to list a standard MySuper product\n\n (1) The FWC must ensure that all persons and bodies have a reasonable opportunity to make written submissions to the FWC in relation to an application made under subsection 156C(3).\n\n (2) If:\n\n (a) a person or body makes a written submission in relation to an application made under subsection 156C(3); and\n\n (b) the person or body has an interest in relation to:\n\n (i) the superannuation fund that made the application; or\n\n (ii) if the person or body refers to another superannuation fund in the submission—that superannuation fund;\n\nthen the person or body must disclose that interest in the submission.\n\n (3) The FWC must publish any submission that is made.","sortOrder":338},{"sectionNumber":"156E","sectionType":"section","heading":"Determining applications to list a standard MySuper product","content":"156E  Determining applications to list a standard MySuper product\n\n (1) If an application is made under subsection 156C(3) to have a standard MySuper product included on the Default Superannuation List, the FWC must make a determination about whether to include the product on the list.\n\n (2) The FWC must not determine that the product is to be included on the list unless, taking into account:\n\n (a) the information provided in the application; and\n\n (b) the first stage criteria; and\n\n (c) any submissions that were made in relation to the application;\n\nthe FWC is satisfied that including the product on the list would be in the best interests of default fund employees to whom modern awards apply or a particular class of those employees.","sortOrder":339},{"sectionNumber":"156F","sectionType":"section","heading":"First stage criteria","content":"156F  First stage criteria\n\n  The first stage criteria are as follows:\n\n (a) the appropriateness of the MySuper product’s long term investment return target and risk profile;\n\n (b) the superannuation fund’s expected ability to deliver on the MySuper product’s long term investment return target, given its risk profile;\n\n (c) the appropriateness of the fees and costs associated with the MySuper product, given:\n\n (i) its stated long term investment return target and risk profile; and\n\n (ii) the quality and timeliness of services provided;\n\n (d) the net returns on contributions invested in the MySuper product;\n\n (e) whether the superannuation fund’s governance practices are consistent with meeting the best interests of members of the fund, including whether there are mechanisms in place to deal with conflict of interest;\n\n (f) the appropriateness of any insurance offered in relation to the MySuper product;\n\n (g) the quality of advice given to a member of the superannuation fund relating to the member’s existing interest in the fund and products offered by the fund;\n\n (h) the administrative efficiency of the superannuation fund;\n\n (i) any other matters the FWC considers relevant.","sortOrder":340},{"sectionNumber":"156G","sectionType":"section","heading":"Review of the default fund term of modern awards","content":"156G  Review of the default fund term of modern awards\n\n (1) As soon as practicable after the Default Superannuation List is made, the FWC must review the default fund term of each modern award.\n\n (2) The FWC must ensure that the following persons have a reasonable opportunity to make written submissions (including submissions requesting that a particular superannuation fund be specified in the term in relation to a standard MySuper product) to the FWC in relation to the default fund term of the award:\n\n (a) an employee and employer that are covered by the modern award;\n\n (b) an organisation that is entitled to represent the industrial interests of one or more employees or employers that are covered by the award;\n\n (c) if the award includes an outworker term—an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker term relates.\n\n (3) If:\n\n (a) a person or body (whether or not a person referred to in subsection (2)) makes a written submission in relation to the default fund term of a modern award; and\n\n (b) the person or body refers to a particular superannuation fund in the submission; and\n\n (c) the person or body has an interest in relation to that superannuation fund;\n\nthen the person or body must disclose that interest in the submission.\n\n (4) The FWC must publish any submission that is made.","sortOrder":342},{"sectionNumber":"156H","sectionType":"section","heading":"Default fund term must specify certain superannuation funds","content":"156H  Default fund term must specify certain superannuation funds\n\n (1) After reviewing the default fund term of a modern award, the FWC must make a determination varying the term:\n\n (a) to remove every superannuation fund that is specified in the term; and\n\n (b) to specify at least 2, but no more than 15, superannuation funds in relation to standard MySuper products that satisfy the second stage test.\n\nNote: See subsection (3) for when the default fund term may specify more than 15 superannuation funds.\n\n (2) A standard MySuper product satisfies the second stage test if:\n\n (a) it is on the Default Superannuation List; and\n\n (b) the FWC is satisfied that specifying a superannuation fund in relation to the product in the default fund term of the modern award would be in the best interests of the default fund employees to whom the modern award applies, taking into account:\n\n (i) any submissions that were made in relation to the default fund term of the award; and\n\n (ii) any other matter the FWC considers relevant.\n\n (3) The default fund term may specify more than 15 superannuation funds in relation to standard MySuper products that satisfy the second stage test if, taking into account the range of occupations of employees covered by the modern award, the FWC is satisfied it is warranted.","sortOrder":343},{"sectionNumber":"156J","sectionType":"section","heading":"Variation to comply with section 149D","content":"156J  Variation to comply with section 149D\n\n  If, at the time of the 4 yearly review, the default fund term of a modern award does not comply with section 149D, the FWC must make a determination varying the term so that it does.","sortOrder":344},{"sectionNumber":"156K","sectionType":"section","heading":"Transitional authorisation for certain superannuation funds","content":"156K  Transitional authorisation for certain superannuation funds\n\n (1) The FWC may make a transitional authorisation in relation to a superannuation fund (other than a superannuation fund referred to in subsection 149D(1), (1A), (2), (3) or (4)) if, at the time of the 4 yearly review, the FWC is satisfied that it is appropriate to make the authorisation.\n\n (2) The transitional authorisation comes into operation on the day it is made and ceases to be in operation on the day specified in the authorisation.","sortOrder":345},{"sectionNumber":"156L","sectionType":"section","heading":"The Schedule of Approved Employer MySuper Products","content":"156L  The Schedule of Approved Employer MySuper Products\n\n (1) In the 4 yearly review, the FWC must:\n\n (a) make and publish the Schedule of Approved Employer MySuper Products; and\n\n (b) revoke any previous Schedule of Approved Employer MySuper Products.\n\nNote: If an employer MySuper product is on the schedule, an employer covered by a modern award can make contributions, for the benefit of a default fund employee, to a superannuation fund that offers the product (see subsection 149D(1A)).\n\n (2) When the schedule is made, it must specify any employer MySuper product that the FWC has determined under section 156P is to be included on the schedule.\n\n (3) After the schedule is made, it must be amended to specify any employer MySuper product that the FWC has determined under section 156P is to be included on the schedule.\n\nNote: The FWC must be constituted by an Expert Panel for the purposes of amending the schedule (see paragraph 617(5)(b)).\n\n (4) If the schedule is amended as referred to in subsection (3), the FWC must publish the schedule as amended.\n\n (5) The schedule must not specify any other product.","sortOrder":347},{"sectionNumber":"156M","sectionType":"section","heading":"FWC to invite applications to include employer MySuper products on schedule","content":"156M  FWC to invite applications to include employer MySuper products on schedule\n\n (1) Before making the schedule, the FWC must publish a notice that invites:\n\n (a) superannuation funds that offer an employer MySuper product; and\n\n (b) employers to which an employer MySuper product relates;\n\nto apply to the FWC to have the product included on the schedule.\n\n (2) The notice must specify the period in which an application may be made.","sortOrder":348},{"sectionNumber":"156N","sectionType":"section","heading":"Making applications to include employer MySuper products on schedule","content":"156N  Making applications to include employer MySuper products on schedule\n\n (1) The following may apply to the FWC to have an employer MySuper product included on the schedule:\n\n (a) a superannuation fund that offers the product;\n\n (b) an employer to which the product relates.\n\n (2) The application must be made:\n\n (a) in the period (the standard application period) specified in the notice under section 156M; or\n\n (b) in the period (the interim application period) that:\n\n (i) starts immediately after the schedule is made under paragraph 156L(1)(a); and\n\n (ii) ends immediately before the next 4th anniversary of the commencement of this Part.\n\nNote: Paragraph (2)(a) deals with applications that are made in a 4 yearly review of default fund terms, and paragraph (2)(b) deals with applications that are made outside a 4 yearly review.\n\n (3) The application must also:\n\n (a) be accompanied by any fees that are prescribed by the regulations; and\n\n (b) provide information relating to the first stage criteria.\n\n (4) The FWC must publish any application made under subsection (1).\n\n (5) However, if an application includes information that is claimed by the applicant to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive:\n\n (a) the FWC may decide not to publish the information; and\n\n (b) if it does so, it must instead publish 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).\n\n (6) A reference in this Act (other than in this section) in relation to an application made under subsection (1) includes a reference to a summary referred to in paragraph (5)(b).\n\n (7) Only one application in relation to an employer MySuper product may be made under subsection (1) in the period that:\n\n (a) starts at the start of the standard application period; and\n\n (b) ends at the end of the interim application period.","sortOrder":349},{"sectionNumber":"156P","sectionType":"section","heading":"FWC to determine applications","content":"156P  FWC to determine applications\n\n (1) If an application is made under subsection 156N(1) to have an employer MySuper product included on the schedule, the FWC must make a determination about whether to include the product on the schedule.\n\nNote: The FWC must be constituted by an Expert Panel for the purposes of making this determination (see paragraphs 617(4)(d) and (5)(a)).\n\n (2) The FWC must not determine that the product is to be included on the schedule unless the product satisfies the first stage test and the second stage test.","sortOrder":350},{"sectionNumber":"156Q","sectionType":"section","heading":"The first stage test","content":"156Q  The first stage test\n\n  An employer MySuper product satisfies the first stage test if the FWC is satisfied that including the product on the Schedule of Approved Employer MySuper Products would be in the best interests of default fund employees, or a particular class of those employees, taking into account:\n\n (a) the information provided in the application; and\n\n (b) the first stage criteria; and\n\n (c) any submissions that were made in relation to whether the product satisfies the first stage test.","sortOrder":351},{"sectionNumber":"156R","sectionType":"section","heading":"Submissions about the first stage test","content":"156R  Submissions about the first stage test\n\n (1) The FWC must ensure that all persons and bodies have a reasonable opportunity to make written submissions to the FWC about whether an employer MySuper product satisfies the first stage test.\n\n (2) If:\n\n (a) a person or body makes a written submission in relation to whether an employer MySuper product satisfies the first stage test; and\n\n (b) the person or body has an interest in relation to:\n\n (i) the superannuation fund that offers the product; or\n\n (ii) if the person or body refers to another superannuation fund in the submission—that superannuation fund;\n\nthen the person or body must disclose that interest in the submission.\n\n (3) The FWC must publish any submission that is made.","sortOrder":352},{"sectionNumber":"156S","sectionType":"section","heading":"The second stage test","content":"156S  The second stage test\n\n  An employer MySuper product satisfies the second stage test if the FWC is satisfied that including the product on the Schedule of Approved Employer MySuper Products would be in the best interests of default fund employees of an employer to which the product relates, or a particular class of those employees, taking into account:\n\n (a) any submissions that were made in relation to whether the product satisfies the second stage test; and\n\n (b) any other matter the FWC considers relevant.","sortOrder":353},{"sectionNumber":"156T","sectionType":"section","heading":"Submissions about the second stage test","content":"156T  Submissions about the second stage test\n\n (1) The FWC must ensure that the following persons have a reasonable opportunity to make written submissions to the FWC about whether an employer MySuper product satisfies the second stage test:\n\n (a) an employee of an employer to which the product relates;\n\n (b) an employer to which the product relates;\n\n (c) an organisation that is entitled to represent the industrial interests of a person referred to in paragraph (a) or (b).\n\n (2) If:\n\n (a) a person or body (whether or not a person referred to in subsection (1)) makes a written submission in relation to whether an employer MySuper product satisfies the second stage test; and\n\n (b) the person or body has an interest in relation to:\n\n (i) the superannuation fund that offers the product; or\n\n (ii) if the person or body refers to another superannuation fund in the submission—that superannuation fund;\n\nthen the person or body must disclose that interest in the submission.\n\n (3) The FWC must publish any submission that is made.","sortOrder":354},{"sectionNumber":"Subdivision E","sectionType":"subdivision","heading":"Publishing documents under this Division","content":"Subdivision E—Publishing documents under this Division","sortOrder":355},{"sectionNumber":"156U","sectionType":"section","heading":"Publishing documents under this Division","content":"156U  Publishing documents under this Division\n\n  If the FWC is required by this Division to publish a document, the FWC must publish the document on its website or by any other means that the FWC considers appropriate.","sortOrder":356},{"sectionNumber":"157","sectionType":"section","heading":"FWC may vary etc. modern awards if necessary to achieve modern awards objective","content":"157  FWC may vary etc. modern awards if necessary to achieve modern awards objective\n\n (1) The FWC may:\n\n (a) make a determination varying a modern award, otherwise than to vary modern award minimum wages or to vary a default fund term of the award; or\n\n (b) make a modern award; or\n\n (c) make a determination revoking a modern award;\n\nif the FWC is satisfied that making the determination or modern award is necessary to achieve the modern awards objective.\n\nNote 1: Generally, the FWC must be constituted by a Full Bench to make, vary or revoke a modern award. However, the President may direct a single FWC Member to make a variation (see section 616).\n\nNote 2: Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).\n\nNote 3: If the FWC is setting modern award minimum wages, the minimum wages objective also applies (see section 284).\n\nNote 4: If the FWC is making, varying or revoking a modern award that the President considers might relate to the road transport industry, it must take into account the road transport objective (see section 40D).\n\n (2) The FWC may make a determination varying modern award minimum wages if the FWC is satisfied that:\n\n (a) the variation of modern award minimum wages is justified by work value reasons; and\n\n (b) making the determination outside the system of annual wage reviews is necessary to achieve the modern awards objective.\n\nNote: As the FWC is varying modern award minimum wages, the minimum wages objective also applies (see section 284).\n\n (2A) 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:\n\n (a) the nature of the work;\n\n (b) the level of skill or responsibility involved in doing the work;\n\n (c) the conditions under which the work is done.\n\n (2B) The FWC’s consideration of work value reasons must:\n\n (a) be free of assumptions based on gender; and\n\n (b) include consideration of whether historically the work has been undervalued because of assumptions based on gender.\n\n (3) The FWC may make a determination or modern award under this section:\n\n (a) on its own initiative; or\n\n (b) on application under section 158.","sortOrder":359},{"sectionNumber":"158","sectionType":"section","heading":"Applications to vary, revoke or make modern award","content":"158  Applications to vary, revoke or make modern award\n\n (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:\n\n\n\n- Who may make an application?\n- Item Column 1This kind of application … Column 2may be made by …\n- 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.\n- 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.\n- 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.\n- 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.\n- 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.\n- 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.\n- 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.\n- 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.\n\n\nNote: The FWC may dismiss an application to vary, revoke or make a modern award in certain circumstances (see section 587).\n\n (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.\n\nNote: For example, an applicant may apply for the making of a modern award and for the related revocation of an existing modern award.","sortOrder":360},{"sectionNumber":"159","sectionType":"section","heading":"Variation of modern award to update or omit name of employer, organisation or outworker entity","content":"159  Variation of modern award to update or omit name of employer, organisation or outworker entity\n\n (1) The FWC may make a determination varying a modern award:\n\n (a) to reflect a change in the name of an employer, organisation or outworker entity; or\n\n (b) to omit the name of an organisation, employer or outworker entity from the modern award, if:\n\n (i) the registration of the organisation has been cancelled under the Workplace Relations Act 1996; or\n\n (ii) the employer, organisation or outworker entity has ceased to exist; or\n\n (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.\n\n (2) The FWC may make a determination under this section:\n\n (a) in any case—on its own initiative; or\n\n (b) if paragraph (1)(a) or (b) applies—on application by the employer, organisation or outworker entity referred to in that paragraph; or\n\n (c) if paragraph (1)(c) applies—on application by:\n\n (i) the old employer or the new employer; or\n\n (ii) a transferring employee who was covered by the modern award as an employee of the old employer; or\n\n (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).","sortOrder":362},{"sectionNumber":"159A","sectionType":"section","heading":"Variation of default fund term of modern award","content":"159A  Variation of default fund term of modern award\n\n (1) The FWC may make a determination varying the default fund term of a modern award in relation to a superannuation fund specified in the term in relation to a standard MySuper product (the specified product) in the following circumstances:\n\n (a) to reflect a change in the name of the fund or the specified product;\n\n (b) if the fund has ceased to exist—to omit the name of the fund and the specified product;\n\n (c) if the specified product has ceased to exist and no other MySuper product is specified in relation to the fund—to omit the name of the fund and the specified product;\n\n (d) if the specified product has ceased to exist and another MySuper product is specified in relation to the fund—to omit the name of the specified product;\n\n (e) if the Australian Prudential Regulation Authority gives the FWC notice under subsection 29U(4) of the Superannuation Industry (Supervision) Act 1993 that the fund no longer offers the specified product and no other MySuper product is specified in relation to the fund—to omit the name of the fund and the specified product;\n\n (f) if the Australian Prudential Regulation Authority gives the FWC notice under subsection 29U(4) of the Superannuation Industry (Supervision) Act 1993 that the fund no longer offers the specified product and another MySuper product is specified in relation to the fund—to omit the name of the specified product.\n\n (2) The FWC may make a determination under this section:\n\n (a) in any case—on its own initiative; or\n\n (b) on application by an employee, employer, organisation or outworker entity covered by the modern award.","sortOrder":363},{"sectionNumber":"160","sectionType":"section","heading":"Variation of modern award to remove ambiguity or uncertainty or correct error","content":"160  Variation of modern award to remove ambiguity or uncertainty or correct error\n\n (1) The FWC may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.\n\n (2) The FWC may make the determination:\n\n (a) on its own initiative; or\n\n (b) on application by an employer, employee, organisation or outworker entity that is covered by the modern award; or\n\n (c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award; or\n\n (d) if the modern award includes outworker terms—on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker terms relate.","sortOrder":364},{"sectionNumber":"161","sectionType":"section","heading":"Variation of modern award on referral by Australian Human Rights Commission","content":"161  Variation of modern award on referral by Australian Human Rights Commission\n\n (1) The FWC 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).\n\n (2) The following are entitled to make submissions to the FWC for consideration in the review:\n\n (a) if the referral relates to action that would be unlawful under Part 4 of the Age Discrimination Act 2004—the Age Discrimination Commissioner;\n\n (b) if the referral relates to action that would be unlawful under Part 2 of the Disability Discrimination Act 1992—the Disability Discrimination Commissioner;\n\n (c) if the referral relates to action that would be unlawful under Part II of the Sex Discrimination Act 1984—the Sex Discrimination Commissioner.\n\n (3) If the FWC 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), the FWC 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.\n\nNote: Special criteria apply to changing coverage of modern awards (see section 163).","sortOrder":365},{"sectionNumber":"162","sectionType":"section","heading":"General","content":"162  General\n\n  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 the FWC’s processes in Part 5‑1.\n\nNote: Relevant provisions of Part 5‑1 include the following:\n\n(a) section 582 (which deals with the President’s power to give directions);\n\n(b) section 590 (which deals with the FWC’s discretion to inform itself as it considers appropriate, including by commissioning research);\n\n(c) section 596 (which deals with being represented in a matter before the FWC);\n\n(d) section 601 (which deals with writing and publication requirements).","sortOrder":367},{"sectionNumber":"163","sectionType":"section","heading":"Special criteria relating to changing coverage of modern awards","content":"163  Special criteria relating to changing coverage of modern awards\n\nSpecial rule about reducing coverage\n\n (1) The FWC must not make a determination varying a modern award so that certain employers or employees stop being covered by the award unless the FWC is satisfied that they will instead become covered by another modern award (other than the miscellaneous modern award) that is appropriate for them.\n\nSpecial rule about making a modern award\n\n (2) The FWC must not make a modern award covering certain employers or employees unless the FWC has considered whether it should, instead, make a determination varying an existing modern award to cover them.\n\nSpecial rule about covering organisations\n\n (3) The FWC 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.\n\nThe miscellaneous modern award\n\n (4) The miscellaneous modern award is the modern award that is expressed to cover employees who are not covered by any other modern award.","sortOrder":368},{"sectionNumber":"164","sectionType":"section","heading":"Special criteria for revoking modern awards","content":"164  Special criteria for revoking modern awards\n\n  The FWC must not make a determination revoking a modern award unless the FWC is satisfied that:\n\n (a) the award is obsolete or no longer capable of operating; or\n\n (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.","sortOrder":369},{"sectionNumber":"165","sectionType":"section","heading":"When variation determinations come into operation, other than determinations setting, varying or revoking modern award minimum wages","content":"165  When variation determinations come into operation, other than determinations setting, varying or revoking modern award minimum wages\n\nDeterminations come into operation on specified day\n\n (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.\n\nNote 1: For when a modern award, or a revocation of a modern award, comes into operation, see section 49.\n\nNote: For when a determination under this Part setting, varying or revoking modern award minimum wages comes into operation, see section 166.\n\n (2) The specified day must not be earlier than the day on which the determination is made, unless:\n\n (a) the determination is made under section 160 (which deals with variation to remove ambiguities or correct errors); and\n\n (b) the FWC is satisfied that there are exceptional circumstances that justify specifying an earlier day.\n\nDeterminations take effect from first full pay period\n\n (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.","sortOrder":370},{"sectionNumber":"166","sectionType":"section","heading":"When variation determinations setting, varying or revoking modern award minimum wages come into operation","content":"166  When variation determinations setting, varying or revoking modern award minimum wages come into operation\n\nDeterminations generally come into operation on 1 July\n\n (1) A determination under this Part that sets, varies or revokes modern award minimum wages comes into operation:\n\n (a) on 1 July in the next financial year after it is made; or\n\n (b) if it is made on 1 July in a financial year—on that day.\n\nNote: 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.\n\nFWC may specify another day of operation if appropriate\n\n (2) However, if the FWC specifies another day in the determination as the day on which it comes into operation, the determination comes into operation on that other day. The FWC must not specify another day unless it is satisfied that it is appropriate to do so.\n\n (3) The specified day must not be earlier than the day on which the determination is made, unless:\n\n (a) the determination is made under section 160 (which deals with variation to remove ambiguities or correct errors); and\n\n (b) the FWC is satisfied that there are exceptional circumstances that justify specifying an earlier day.\n\nDeterminations may take effect in stages\n\n (4) The FWC may specify in the determination that changes to modern award minimum wages made by the determination take effect in stages if the FWC is satisfied that it is appropriate to do so.\n\nDeterminations take effect from first full pay period\n\n (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:\n\n (a) unless paragraph (b) applies—the day the determination comes into operation; or\n\n (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.","sortOrder":371},{"sectionNumber":"167","sectionType":"section","heading":"Special rules relating to retrospective variations of awards","content":"167  Special rules relating to retrospective variations of awards\n\nApplication of this section\n\n (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.\n\nNo effect on past approval of enterprise agreement or variation\n\n (2) If, before the determination was made, an enterprise agreement or a variation of an enterprise agreement was approved by the FWC, the validity of the approval is not affected by the retrospective effect of the determination.\n\nNo creation of liability to pay pecuniary penalty for past conduct\n\n (3) If:\n\n (a) a person engaged in conduct before the determination was made; and\n\n (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;\n\na 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.\n\nNote 1: This subsection does not affect the powers of a court to make other kinds of orders under Division 2 of Part 4‑1.\n\nNote 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).","sortOrder":372},{"sectionNumber":"168","sectionType":"section","heading":"Varied modern award must be published","content":"168  Varied modern award must be published\n\n (1) If the FWC makes a determination under this Part or Part 2‑6 (which deals with minimum wages) varying a modern award, the FWC must publish the award as varied as soon as practicable.\n\n (2) The publication may be on the FWC’s website or by any other means that the FWC considers appropriate.","sortOrder":373},{"sectionNumber":"168A","sectionType":"section","heading":"Modern enterprise awards","content":"168A  Modern enterprise awards\n\n (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.\n\n (2) A modern enterprise award is a modern award that is expressed to relate to:\n\n (a) a single enterprise (or a part of a single enterprise) only; or\n\n (b) one or more enterprises, if the employers all carry on similar business activities under the same franchise and are:\n\n (i) franchisees of the same franchisor; or\n\n (ii) related bodies corporate of the same franchisor; or\n\n (iii) any combination of the above.\n\n (3) A single enterprise is:\n\n (a) a business, project or undertaking that is carried on by an employer; or\n\n (b) the activities carried on by:\n\n (i) the Commonwealth, a State or a Territory; or\n\n (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\n\n (iii) any other body in which the Commonwealth, a State or a Territory has a controlling interest.\n\n (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.\n\n (5) For the purposes of subsection (3), if 2 or more related bodies corporate each carry on a single enterprise:\n\n (a) the bodies corporate are taken to be one employer; and\n\n (b) the single enterprises are taken to be one single enterprise.\n\nNote: However, a modern enterprise award could just relate to a part of that single enterprise.\n\n (6) A part of a single enterprise includes, for example:\n\n (a) a geographically distinct part of the single enterprise; or\n\n (b) a distinct operational or organisational unit within the single enterprise.","sortOrder":375},{"sectionNumber":"168B","sectionType":"section","heading":"The modern enterprise awards objective","content":"168B  The modern enterprise awards objective\n\nWhat is the modern enterprise awards objective?\n\n (1) The FWC 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.\n\nWhen does the modern enterprise awards objective apply?\n\n (2) The modern enterprise awards objective applies to the performance of the FWC’s functions or powers under this Act, so far as they relate to modern enterprise awards.\n\nReferences to the modern awards objective\n\n (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.","sortOrder":376},{"sectionNumber":"168C","sectionType":"section","heading":"Rules about making and revoking modern enterprise awards","content":"168C  Rules about making and revoking modern enterprise awards\n\nMaking modern enterprise awards\n\n (1) The FWC must not, under this Part:\n\n (a) make a modern enterprise award; or\n\n (b) make a determination varying a modern award so that it becomes a modern enterprise award.\n\nNote: 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 Transitional Act.\n\nRevoking modern enterprise awards\n\n (2) The FWC may make a determination revoking a modern enterprise award only on application under section 158.\n\n (3) The FWC must not make a determination revoking a modern enterprise award unless the FWC is satisfied that:\n\n (a) the award is obsolete or no longer capable of operating; or\n\n (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.\n\n (4) In deciding whether to make a determination revoking a modern enterprise award the FWC must take into account the following:\n\n (a) the circumstances that led to the making of the modern enterprise award;\n\n (b) the content of the modern award referred to in paragraph (3)(b);\n\n (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;\n\n (d) the extent to which the modern enterprise award provides enterprise‑specific terms and conditions of employment;\n\n (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;\n\n (f) the views of the persons covered by the modern enterprise award;\n\n (g) any other matter prescribed by the regulations.","sortOrder":377},{"sectionNumber":"168D","sectionType":"section","heading":"Rules about changing coverage of modern enterprise awards","content":"168D  Rules about changing coverage of modern enterprise awards\n\n (1) The FWC 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.\n\n (2) In deciding whether to make a determination varying the coverage of a modern enterprise award in some other way, the FWC must take into account the following:\n\n (a) the circumstances that led to the making of the modern enterprise award;\n\n (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;\n\n (c) the content of the modern award referred to in paragraph (b);\n\n (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;\n\n (e) the extent to which the modern enterprise award provides enterprise‑specific terms and conditions of employment;\n\n (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;\n\n (g) the views of the persons covered, or proposed to be covered, by the modern enterprise award;\n\n (h) any other matter prescribed by the regulations.","sortOrder":378},{"sectionNumber":"168E","sectionType":"section","heading":"State reference public sector modern awards","content":"168E  State reference public sector modern awards\n\n (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.\n\n (2) A State reference public sector modern award is a modern award in relation to which the following conditions are satisfied:\n\n (a) the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers;\n\n (b) the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers.\n\n (3) A State reference public sector employee is an employee:\n\n (a) who is a national system employee only because of section 30C or 30M; and\n\n (b) who is a State public sector employee as defined in section 30A or 30K.\n\n (4) A State reference public sector employer is an employer:\n\n (a) that is a national system employer only because of section 30D or 30N; and\n\n (b) that is a State public sector employer as defined in section 30A or 30K.","sortOrder":380},{"sectionNumber":"168F","sectionType":"section","heading":"The State reference public sector modern awards objective","content":"168F  The State reference public sector modern awards objective\n\nThe State reference public sector modern awards objective\n\n (1) The FWC must recognise:\n\n (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\n\n (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.\n\nThis is the State reference public sector modern awards objective.\n\nWhen does the State reference public sector modern awards objective apply?\n\n (2) The State reference public sector modern awards objective applies to the performance of the FWC’s functions or powers under this Act, so far as they relate to State reference public sector modern awards.\n\nReferences to the modern awards objective\n\n (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.","sortOrder":381},{"sectionNumber":"168G","sectionType":"section","heading":"Making State reference public sector modern awards on application","content":"168G  Making State reference public sector modern awards on application\n\n (1) The FWC may make a State reference public sector modern award (the proposed award) only on application under section 158 by:\n\n (a) a State reference public sector employer; or\n\n (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.\n\n (2) The application must specify the employers, employees and organisations (the proposed parties) proposed to be covered by the proposed award.\n\n (3) The FWC must consider the application, and must make a State reference public sector modern award covering the proposed parties if the FWC is satisfied that:\n\n (a) the employers and organisations that are proposed parties have agreed to the making of the application; and\n\n (b) either:\n\n (i) none of the employers and employees that are proposed parties are already covered by a State reference public sector modern award; or\n\n (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.\n\n (4) The FWC 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 Transitional Act.","sortOrder":382},{"sectionNumber":"168H","sectionType":"section","heading":"State reference public sector modern awards may contain State-based differences","content":"168H  State reference public sector modern awards may contain State‑based differences\n\n  Section 154 (which deals with terms that contain State‑based differences) does not apply in relation to State reference public sector modern awards.","sortOrder":383},{"sectionNumber":"168J","sectionType":"section","heading":"When State reference public sector modern awards come into operation","content":"168J  When State reference public sector modern awards come into operation\n\n  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.","sortOrder":384},{"sectionNumber":"168K","sectionType":"section","heading":"Rules about revoking State reference public sector modern awards","content":"168K  Rules about revoking State reference public sector modern awards\n\n (1) The FWC may make a determination revoking a State reference public sector modern award only on application under section 158 by:\n\n (a) a State reference public sector employer; or\n\n (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.\n\n (2) The FWC must not make a determination revoking a State reference public sector modern award unless the FWC is satisfied that:\n\n (a) the modern award is obsolete or no longer capable of operating; or\n\n (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.\n\n (3) In deciding whether to revoke a State reference public sector modern award, the FWC must take into account the following:\n\n (a) the circumstances that led to the making of the modern award;\n\n (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;\n\n (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);\n\n (d) the likely impact on the persons covered by the modern award of a decision to revoke, or not to revoke, the modern award;\n\n (e) the views of the persons covered by the modern award;\n\n (f) any other matter prescribed by the regulations.","sortOrder":385},{"sectionNumber":"168L","sectionType":"section","heading":"Rules about varying coverage of State reference public sector modern awards","content":"168L  Rules about varying coverage of State reference public sector modern awards\n\n (1) The FWC may make a determination varying the coverage of a State reference public sector modern award only on application under section 158 by:\n\n (a) a State reference public sector employer; or\n\n (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.\n\n (2) The FWC 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.\n\n (3) In deciding whether to make a determination varying the coverage of a State reference public sector modern award in some other way, the FWC must take into account the following:\n\n (a) the circumstances that led to the making of the modern award;\n\n (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;\n\n (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;\n\n (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;\n\n (e) the views of the persons covered, or proposed to be covered, by the modern award;\n\n (f) any other matter prescribed by the regulations.","sortOrder":386},{"sectionNumber":"Part 2-4","sectionType":"part","heading":"Enterprise agreements","content":"Part 2‑4—Enterprise agreements","sortOrder":387},{"sectionNumber":"169","sectionType":"section","heading":"Guide to this Part","content":"169  Guide to this Part\n\nThis 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.\n\nDivision 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.\n\nDivision 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.\n\nSubdivision A of Division 4 deals with the approval of proposed enterprise agreements by employees and sets out when an enterprise agreement is made.\n\nSubdivision B of Division 4 deals with the approval of enterprise agreements by the FWC. 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.\n\nDivision 5 deals with the mandatory terms of enterprise agreements relating to individual flexibility arrangements, consultation requirements and the rights of workplace delegates.\n\nDivision 6 deals with the base rate of pay under an enterprise agreement.\n\nDivision 7 deals with the variation and termination of enterprise agreements.\n\nDivision 8 provides for the FWC to facilitate bargaining by making bargaining orders, intractable bargaining declarations, majority support determinations and scope orders. It also permits bargaining representatives to apply for the FWC to deal with bargaining disputes.\n\nDivision 9 provides for the making of supported bargaining 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 the FWC to assist the bargaining representatives for such agreements.\n\nDivision 10 deals with single interest employer authorisations.\n\nDivision 11 deals with other matters relating to enterprise agreements.","sortOrder":389},{"sectionNumber":"170","sectionType":"section","heading":"Meanings of employee and employer","content":"170  Meanings of employee and employer\n\n  In this Part, employee means a national system employee, and employer means a national system employer.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":390},{"sectionNumber":"171","sectionType":"section","heading":"Objects of this Part","content":"171  Objects of this Part\n\n  The objects of this Part are:\n\n (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\n\n (b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:\n\n (i) making bargaining orders; and\n\n (ii) dealing with disputes where the bargaining representatives request assistance; and\n\n (iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.","sortOrder":391},{"sectionNumber":"172","sectionType":"section","heading":"Making an enterprise agreement","content":"172  Making an enterprise agreement\n\nEnterprise agreements may be made about permitted matters\n\n (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:\n\n (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;\n\n (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;\n\n (c) deductions from wages for any purpose authorised by an employee who will be covered by the agreement;\n\n (d) how the agreement will operate.\n\nNote 1: For when an enterprise agreement covers an employer, employee or employee organisation, see section 53.\n\nNote 2: An employee organisation that was a bargaining representative for a proposed enterprise agreement that is not a greenfields agreement will be covered by the agreement if the organisation notifies the FWC under section 183 that it wants to be covered.\n\nSingle‑enterprise agreements\n\n (2) An employer, or 2 or more employers that are related employers, may make an enterprise agreement (a single‑enterprise agreement):\n\n (a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or\n\n (b) with one or more relevant employee organisations if:\n\n (i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and\n\n (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.\n\nNote: The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).\n\nMulti‑enterprise agreements\n\n (3) Two or more employers that are not all related employers, or that are all related employers mentioned in subsection (3A), may make an enterprise agreement (a multi‑enterprise agreement):\n\n (a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or\n\n (b) with one or more relevant employee organisations if:\n\n (i) the agreement relates to a genuine new enterprise that the employers are establishing or propose to establish; and\n\n (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.\n\nNote 1: The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).\n\nNote 2: The FWC must not approve a multi‑enterprise agreement that is not a greenfields agreement if the agreement would cover employees in relation to general building and construction work (see subsection 186(2B)).\n\n (3A) Two or more employers that are all related employers under paragraph (5A)(c) (whether or not those employers are also related employers under another paragraph of subsection (5A)) may make a multi‑enterprise agreement under subsection (3).\n\nGreenfields agreements\n\n (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.\n\nRequirement for employer specified in single interest employer authorisation\n\n (5) Despite any other provision of this Part, if an employer is specified in a single interest employer authorisation that is in operation:\n\n (a) the only kind of enterprise agreement the employer may make with their employees who are specified in the authorisation is a single interest employer agreement; and\n\n (b) the employer must not initiate bargaining, agree to bargain, or be required to bargain with those employees for any other kind of enterprise agreement.\n\nRelated employers\n\n (5A) Two or more employers are related employers if:\n\n (a) the employers are engaged in a joint venture or common enterprise; or\n\n (b) the employers are related bodies corporate; or\n\n (c) the employers carry on similar business activities under the same franchise and are:\n\n (i) franchisees of the same franchisor; or\n\n (ii) related bodies corporate of the same franchisor; or\n\n (iii) any combination of the above.\n\nRequirement that there be at least 2 employees\n\n (6) An enterprise agreement cannot be made with a single employee.\n\nRequirement for employer specified in supported bargaining authorisation\n\n (7) Despite any other provision of this Part, if an employer is specified in a supported bargaining authorisation that is in operation:\n\n (a) the only kind of enterprise agreement the employer may make with their employees who are specified in the authorisation is a supported bargaining agreement; and\n\n (b) the employer must not initiate bargaining, agree to bargain, or be required to bargain with those employees for any other kind of enterprise agreement.","sortOrder":393},{"sectionNumber":"172A","sectionType":"section","heading":"Special measures to achieve equality","content":"172A  Special measures to achieve equality\n\n  Without limiting subsection 172(1), the matters mentioned in paragraph 172(1)(a) include special measures to achieve equality.\n\nNote: A special measure to achieve equality may be a discriminatory term under section 195 (and thus be an unlawful term under section 194) to the extent that action that may be taken because of the term is unlawful under an anti‑discrimination law.","sortOrder":394},{"sectionNumber":"173","sectionType":"section","heading":"Notice of employee representational rights","content":"173  Notice of employee representational rights\n\nEmployers for single‑enterprise agreements to notify each employee of representational rights\n\n (1) An employer that will be covered by a proposed single‑enterprise agreement (other than 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:\n\n (a) will be covered by the agreement; and\n\n (b) is employed at the notification time for the agreement.\n\nNote: For the content of the notice, see section 174.\n\nNotification time\n\n (2) The notification time for a proposed enterprise agreement is the time when:\n\n (a) the employer agrees to bargain, or initiates bargaining, for the agreement; or\n\n (aa) the employer receives a request to bargain under subsection (2A) in relation to the agreement; or\n\n (b) a majority support determination in relation to the agreement comes into operation; or\n\n (c) a scope order in relation to the agreement comes into operation; or\n\n (d) a supported bargaining authorisation in relation to the agreement that specifies the employer comes into operation; or\n\n (e) a single interest employer authorisation in relation to the agreement that specifies the employer comes into operation.\n\nNote: An employer that is required to give a notice under subsection (1) cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).\n\n (2A) A bargaining representative of an employee who will be covered by a proposed single‑enterprise agreement (other than a greenfields agreement) may give the employer who will be covered by the proposed agreement a request in writing to bargain for the proposed agreement if:\n\n (a) the proposed agreement will replace an earlier single‑enterprise agreement (the earlier agreement) that has passed its nominal expiry date; and\n\n (b) a single interest employer authorisation did not cease to be in operation because of the making of the earlier agreement; and\n\n (c) no more than 5 years have passed since the nominal expiry date; and\n\n (d) the proposed agreement will cover the same, or substantially the same, group of employees as the earlier agreement.\n\nWhen notice must be given\n\n (3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.\n\nNotice need not be given in certain circumstances\n\n (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.\n\nHow notices are given\n\n (5) The regulations may prescribe how notices under subsection (1) may be given.","sortOrder":396},{"sectionNumber":"174","sectionType":"section","heading":"Content and form of notice of employee representational rights","content":"174  Content and form of notice of employee representational rights\n\nApplication of this section\n\n (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.\n\nNotice requirements\n\n (1A) The notice must:\n\n (a) contain the content prescribed by the regulations; and\n\n (b) not contain any other content; and\n\n (c) be in the form prescribed by the regulations.\n\n (1B) When prescribing the content of the notice for the purposes of paragraph (1A)(a), the regulations must ensure that the notice complies with this section.\n\nContent of notice—employee may appoint a bargaining representative\n\n (2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:\n\n (a) in bargaining for the agreement; and\n\n (b) in a matter before the FWC that relates to bargaining for the agreement.\n\nContent of notice—default bargaining representative\n\n (3) The notice must explain that:\n\n (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\n\n (b) the employee does not appoint another person as his or her bargaining representative for the agreement;\n\nthe organisation will be the bargaining representative of the employee.\n\nContent of notice—copy of instrument of appointment to be given\n\n (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).","sortOrder":397},{"sectionNumber":"176","sectionType":"section","heading":"Bargaining representatives for proposed enterprise agreements that are not greenfields agreements","content":"176  Bargaining representatives for proposed enterprise agreements that are not greenfields agreements\n\nBargaining representatives\n\n (1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:\n\n (a) an employer that will be covered by the agreement is a bargaining representative for the agreement;\n\n (b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:\n\n (i) the employee is a member of the organisation; and\n\n (ii) in the case where the agreement is a multi‑enterprise agreement in relation to which a supported bargaining authorisation is in operation—the organisation applied for the authorisation;\n\n  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\n\n (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;\n\n (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.\n\nBargaining representatives for a proposed multi‑enterprise agreement if a supported bargaining authorisation is in operation\n\n (2) If:\n\n (a) the proposed enterprise agreement is a multi‑enterprise agreement in relation to which a supported bargaining authorisation is in operation; and\n\n (b) an employee organisation applied for the authorisation; and\n\n (c) but for this subsection, the organisation would not be a bargaining representative of an employee who will be covered by the agreement;\n\nthe organisation is taken to be a bargaining representative of such an employee unless:\n\n (d) the employee is a member of another employee organisation that also applied for the authorisation; or\n\n (e) the employee has appointed another person under paragraph (1)(c) as his or her bargaining representative for the agreement; or\n\n (f) the employee has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2).\n\n (3) Despite subsections (1) and (2):\n\n (a) an employee organisation; or\n\n (b) an official of an employee organisation (whether acting in that capacity or otherwise);\n\ncannot 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.\n\nEmployee may appoint himself or herself\n\n (4) To avoid doubt and despite subsection (3), 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.\n\nNote: 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).","sortOrder":398},{"sectionNumber":"177","sectionType":"section","heading":"Bargaining representatives for proposed enterprise agreements that are greenfields agreements","content":"177  Bargaining representatives for proposed enterprise agreements that are greenfields agreements\n\n  The following paragraphs set out the persons who are bargaining representatives for a proposed single‑enterprise agreement that is a greenfields agreement:\n\n (a) an employer that will be covered by the agreement;\n\n (b) an employee organisation:\n\n (i) 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; and\n\n (ii) with which the employer agrees to bargain for the agreement;\n\n (c) a person who 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.","sortOrder":399},{"sectionNumber":"177A","sectionType":"section","heading":"Restrictions on removed persons being bargaining representatives","content":"177A  Restrictions on removed persons being bargaining representatives\n\nDefinition of removed persons\n\n (1) A person is a removed person if:\n\n (a) any of the following events has happened as a result of a scheme determined under subsection 323B(1) of the Registered Organisations Act (a scheme for the administration of the Construction and General Division of the CFMEU and its branches):\n\n (i) the person is removed (however described and including by having their office vacated) or suspended as an officer (within the meaning of this Act), or the person’s role as an officer otherwise comes to an end;\n\n (ii) the person’s employment, as a person employed by the CFMEU or any of its branches, divisions or parts working in the Construction and General Division or any of its branches, is terminated or otherwise comes to an end, or is suspended;\n\n (iii) the person is removed (however described) or suspended as a workplace delegate, or the person’s role as a workplace delegate otherwise comes to an end; and\n\n (b) if the event involved suspension—the suspension has not ended.\n\n (2) A person is also a removed person if:\n\n (a) on or after 1 July 2024 and before the Construction and General Division and its branches are placed under administration by force of subsection 323A(1) of the Registered Organisations Act, the person, by the person’s own choice:\n\n (i) ceases to be an officer (within the meaning of this Act) of the Construction and General Division or any of its branches; or\n\n (ii) ceases to be a person employed by the CFMEU or any of its branches, divisions or parts working in the Construction and General Division or any of its branches; or\n\n (iii) ceases to be a workplace delegate for members of the Construction and General Division or any of its branches; and\n\n (b) during the period of the administration, the administrator formed the opinion that, if the person had not made the choice, the administrator would have taken action under the scheme of administration to ensure the person ceased to be an officer, employee or workplace delegate (as applicable).\n\nRemoved person must not be bargaining representative without a certificate\n\n (3) A removed person must not do any of the following, whether in their personal capacity or any other capacity:\n\n (a) be a bargaining representative of an employee or employer;\n\n (b) purport to be a bargaining representative of an employee or employer;\n\n (c) hold out that the person is a bargaining representative of an employee or employer.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (4) Subsection (3) does not apply if the removed person holds a certificate granted under subsection (7).\n\n (5) If, in proceedings for a pecuniary penalty order against a removed person for a contravention of subsection (3), the person wishes to rely on the exception in subsection (4), the person bears an evidential burden in relation to the matter.\n\n (6) Subsection (3) has effect despite subsection 176(1) and section 177. However, subsection (3) does not prevent an employee who will be covered by the agreement concerned from appointing themselves under paragraph 176(1)(c) as their own bargaining representative for the agreement.\n\nCertificate to be a bargaining representative\n\n (7) The FWC may, on application in writing by a removed person, grant the person a certificate to be a bargaining representative, if satisfied that the person is a fit and proper person to be a bargaining representative.\n\n (8) In deciding whether the removed person is a fit and proper person to be a bargaining representative, the FWC must have regard to the following matters:\n\n (a) the reasons the person became a removed person, including whether the person engaged or allegedly engaged in a kind of conduct described in subparagraph 141(1)(c)(i), (ii) or (iii) of the Registered Organisations Act;\n\n (b) whether the person has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving:\n\n (i) fraud or dishonesty; or\n\n (ii) intentional use of violence against another person; or\n\n (iii) intentional damage or destruction of property;\n\n (c) the general character of the person.\n\n (9) The FWC may also have regard to any other matters the FWC considers relevant.\n\n (10) The FWC must not grant the certificate:\n\n (a) if the removed person has been disqualified under a scheme determined under subsection 323B(1) of the Registered Organisations Act and the period of the disqualification has not ended; or\n\n (b) at any time while the removed person is not eligible to be a candidate for an election, or to be elected or appointed, to an office in an organisation under subsection 215(1) of the Registered Organisations Act.\n\n (11) Nothing in this section affects the operation of Part VIIC of the Crimes Act 1914 (which includes provisions relieving persons from requirements to disclose spent convictions).\n\n (12) In this section:\n\nCFMEU has the same meaning as in the Registered Organisations Act.\n\nConstruction and General Division has the same meaning as in the Registered Organisations Act.","sortOrder":400},{"sectionNumber":"178","sectionType":"section","heading":"Appointment of bargaining representatives—other matters","content":"178  Appointment of bargaining representatives—other matters\n\nWhen appointment of a bargaining representative comes into force\n\n (1) An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment.\n\nCopies of instruments of appointment must be given\n\n (2) A copy of an instrument of appointment of a bargaining representative for a proposed enterprise agreement must:\n\n (a) for an appointment made by an employee who will be covered by the agreement—be given to the employee’s employer; and\n\n (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; and\n\n (c) for an appointment made by an employer that will be covered by a proposed single‑enterprise agreement that is a greenfields agreement—be given, on request, to an employee organisation that is a bargaining representative for the agreement.\n\nRegulations may prescribe matters relating to qualifications and appointment\n\n (3) The regulations may prescribe matters relating to the qualifications or appointment of bargaining representatives.","sortOrder":401},{"sectionNumber":"178A","sectionType":"section","heading":"Revocation of appointment of bargaining representatives etc.","content":"178A  Revocation of appointment of bargaining representatives etc.\n\n (1) The appointment of a bargaining representative for an enterprise agreement may be revoked by written instrument.\n\n (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.\n\n (3) A copy of an instrument under subsection (1) or (2):\n\n (a) for an instrument made by an employee who will be covered by the agreement—must be given to the employee’s employer; and\n\n (b) for an instrument made by an employer that will be covered by a proposed enterprise agreement, other than a single‑enterprise agreement that is a greenfields 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.\n\n (3A) A copy of an instrument under subsection (1) made by an employer that will be covered by a proposed single‑enterprise agreement that is a greenfields agreement must be given to the bargaining representative and, on request, to an employee organisation that is a bargaining representative for the agreement.\n\n (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.","sortOrder":402},{"sectionNumber":"178B","sectionType":"section","heading":"Notified negotiation period for a proposed single-enterprise agreement that is a greenfields agreement","content":"178B  Notified negotiation period for a proposed single‑enterprise agreement that is a greenfields agreement\n\n (1) If a proposed single‑enterprise agreement is a greenfields agreement, an employer that is a bargaining representative for the agreement may give written notice:\n\n (a) to each employee organisation that is a bargaining representative for the agreement; and\n\n (b) stating that the period of 6 months beginning on a specified day is the notified negotiation period for the agreement.\n\n (2) The specified day must be later than:\n\n (a) if only one employee organisation is a bargaining representative for the agreement—the day on which the employer gave the notice to the organisation; or\n\n (b) if 2 or more employee organisations are bargaining representatives for the agreement—the last day on which the employer gave the notice to any of those organisations.\n\nMultiple employers—agreement to giving of notice\n\n (3) If 2 or more employers are bargaining representatives for the agreement, the notice has no effect unless the other employer or employers agree to the giving of the notice.","sortOrder":403},{"sectionNumber":"179","sectionType":"section","heading":"Disclosure by organisations that are bargaining representatives","content":"179  Disclosure by organisations that are bargaining representatives\n\n (1) If:\n\n (a) an organisation is a bargaining representative for a proposed enterprise agreement that is not a greenfields agreement; and\n\n (b) the organisation is not an employer that will be covered by the agreement; and\n\n (c) as a direct or indirect consequence of the operation of one or more terms of the agreement (the beneficial terms), the organisation or a person mentioned in subsection (2) will, or can reasonably be expected to, receive or obtain (directly or indirectly) a section 179 disclosable benefit (each such person is a beneficiary);\n\nthe organisation must take all reasonable steps to ensure that, in the time required by subsection (3), each employer that will be covered by the agreement is given a document in accordance with subsection (4).\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) For the purposes of paragraph (1)(c), the persons are any of the following:\n\n (a) a related party of the organisation (other than a related party prescribed by the regulations);\n\n (b) a person or body prescribed by the regulations for the purposes of this paragraph.\n\n (3) The document must be given to the employers a reasonable time before the voting process referred to in subsection 181(1) starts for the agreement.\n\n (4) The document must:\n\n (a) itemise the beneficial terms; and\n\n (b) describe the nature and (as far as reasonably practicable) amount of each section 179 disclosable benefit in relation to each beneficiary; and\n\n (c) name each beneficiary; and\n\n (d) be in accordance with any other requirements prescribed by the regulations for the purposes of this paragraph; and\n\n (e) be given in a manner (if any) prescribed by the regulations.\n\n (5) An organisation that gives a document under subsection (1) must not knowingly or recklessly make a false or misleading representation in the document.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (6) A section 179 disclosable benefit is any financial benefit, other than a financial benefit that is:\n\n (a) payable to an individual as an employee covered by the agreement; or\n\n (b) payment of a membership fee for membership of an organisation; or\n\n (c) prescribed by the regulations for the purposes of this paragraph.","sortOrder":406},{"sectionNumber":"179A","sectionType":"section","heading":"Disclosure by employers","content":"179A  Disclosure by employers\n\n (1) If:\n\n (a) an employer will be covered by a proposed enterprise agreement that is not a greenfields agreement; and\n\n (b) as a direct or indirect consequence of the operation of one or more terms of the agreement (the beneficial terms), the employer or a person mentioned in subsection (2) will, or can reasonably be expected to, receive or obtain (directly or indirectly) a section 179A disclosable benefit (each such person is a beneficiary);\n\nthe employer must prepare a document in accordance with subsection (3).\n\n (2) For the purposes of paragraph (1)(b), the persons are any of the following:\n\n (a) an associated entity of the employer (other than an associated entity prescribed by the regulations);\n\n (b) a person or body prescribed by the regulations for the purposes of this paragraph.\n\n (3) The document must:\n\n (a) itemise the beneficial terms; and\n\n (b) describe the nature and (as far as reasonably practicable) amount of each section 179A disclosable benefit in relation to each beneficiary; and\n\n (c) name each beneficiary; and\n\n (d) be in accordance with any other requirements prescribed by the regulations for the purposes of this paragraph.\n\n (4) A section 179A disclosable benefit is any financial benefit, other than a financial benefit that is:\n\n (a) received or obtained in the ordinary course of the employer’s business; or\n\n (b) prescribed by the regulations for the purposes of this paragraph.","sortOrder":407},{"sectionNumber":"180","sectionType":"section","heading":"Certain pre-approval requirements","content":"180  Certain pre‑approval requirements\n\nPre‑approval requirements\n\n (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.\n\nEmployees must be given copy of disclosure documents etc.\n\n (4A) If an organisation gives the employer a document under section 179 before the voting process referred to in subsection 181(1) starts for the agreement, the employer must take all reasonable steps to ensure that the employees employed at the time who will be covered by the agreement:\n\n (a) are given a copy of the document as soon as practicable after it was given to the employer; or\n\n (b) are given access to a copy of the document as soon as practicable after it was given to the employer and have access to that copy until the voting process starts.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (4B) If the employer is required to prepare a document under section 179A, the employer must take all reasonable steps to ensure that the employees employed at the time who will be covered by the agreement:\n\n (a) are given a copy of the document a reasonable time before the voting process referred to in subsection 181(1) starts for the agreement; or\n\n (b) are given access to a copy of the document a reasonable time before the voting process starts and have access to that copy until the voting process starts.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (4C) The employer must not knowingly or recklessly make a false or misleading representation in the document that employees are given a copy of or access to under subsection (4B).\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\nTerms of the agreement must be explained to employees etc.\n\n (5) The employer must take all reasonable steps to ensure that:\n\n (a) the terms of the agreement, and the effect of those terms, are explained to the employees employed at the time who will be covered by the agreement; and\n\n (b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of those employees.\n\n (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:\n\n (a) employees from culturally and linguistically diverse backgrounds;\n\n (b) young employees;\n\n (c) employees who did not have a bargaining representative for the agreement.","sortOrder":408},{"sectionNumber":"180A","sectionType":"section","heading":"Agreement of bargaining representatives that are employee organisations—proposed multi-enterprise agreements","content":"180A  Agreement of bargaining representatives that are employee organisations—proposed multi‑enterprise agreements\n\n (1) This section applies to a proposed enterprise agreement that is a multi‑enterprise agreement.\n\n (2) An employer must not request under subsection 181(1) that employees approve the enterprise agreement by voting for it unless:\n\n (a) each bargaining representative for the enterprise agreement that is an employee organisation has provided the employer with written agreement to the making of the request; or\n\n (b) a voting request order permits the employer to make the request.\n\nNote: Voting request orders can be made where failure to provide written agreement to the making of a request is unreasonable in the circumstances (see section 240B).","sortOrder":409},{"sectionNumber":"180B","sectionType":"section","heading":"Agreement of bargaining representatives that are employee organisations—certain proposed single-enterprise agreements","content":"180B  Agreement of bargaining representatives that are employee organisations—certain proposed single‑enterprise agreements\n\n (1) This section applies to a proposed single‑enterprise agreement (the new agreement) if:\n\n (a) a single interest employer agreement or a supported bargaining agreement (each of which is an old agreement) applies to an employee in relation to particular employment; and\n\n (b) the old agreement has not passed its nominal expiry date; and\n\n (c) when the new agreement comes into operation, the old agreement will cease to apply to the employee in relation to that employment.\n\n (2) An employer must not request under subsection 181(1) that employees approve the new agreement by voting for it unless:\n\n (a) each employee organisation to which the old agreement applies has provided the employer with written agreement to the making of the request; or\n\n (b) a voting request order permits the employer to make the request.\n\nNote: Voting request orders can be made where failure to provide written agreement to the making of a request is unreasonable in the circumstances (see section 240B).","sortOrder":410},{"sectionNumber":"181","sectionType":"section","heading":"Employers may request employees to approve a proposed enterprise agreement","content":"181  Employers may request employees to approve a proposed enterprise agreement\n\n (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.\n\n (2) If the employer is required by subsection 173(1) (which deals with giving notice of employee representational rights) to take all reasonable steps to give notice in relation to the agreement, the request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) in relation to the agreement is given.\n\n (3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.","sortOrder":411},{"sectionNumber":"182","sectionType":"section","heading":"When an enterprise agreement is made","content":"182  When an enterprise agreement is made\n\nSingle‑enterprise agreement that is not a greenfields agreement\n\n (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.\n\nMulti‑enterprise agreement that is not a greenfields agreement\n\n (2) If:\n\n (a) a proposed enterprise agreement is a multi‑enterprise agreement; and\n\n (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\n\n (c) those employees have voted on whether or not to approve the agreement; and\n\n (d) a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement;\n\nthe agreement is made immediately after the end of the voting process referred to in subsection 181(1).\n\nGreenfields agreement\n\n (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).\n\n (4) If:\n\n (a) a proposed single‑enterprise agreement is a greenfields agreement that has not been made under subsection (3); and\n\n (b) there has been a notified negotiation period for the agreement; and\n\n (c) the notified negotiation period has ended; and\n\n (d) the employer or employers that were bargaining representatives for the agreement (the relevant employer or employers) gave each of the employee organisations that were bargaining representatives for the agreement a reasonable opportunity to sign the agreement; and\n\n (e) the relevant employer or employers apply to the FWC for approval of the agreement;\n\nthe agreement is taken to have been made:\n\n (f) by the relevant employer or employers with each of the employee organisations that were bargaining representatives for the agreement; and\n\n (g) when the application is made to the FWC for approval of the agreement.\n\nNote: See also section 185A (material that must accompany an application).","sortOrder":412},{"sectionNumber":"183","sectionType":"section","heading":"Entitlement of an employee organisation to have an enterprise agreement cover it","content":"183  Entitlement of an employee organisation to have an enterprise agreement cover it\n\n (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 the FWC a written notice stating that the organisation wants the enterprise agreement to cover it.\n\n (2) The notice must be given to the FWC, and a copy given to each employer covered by the enterprise agreement, before the FWC approves the agreement.\n\nNote: The FWC must note in its decision to approve the enterprise agreement that the agreement covers the employee organisation (see subsection 201(2)).","sortOrder":413},{"sectionNumber":"184","sectionType":"section","heading":"Multi-enterprise agreement to be varied if not all employees approve the agreement","content":"184  Multi‑enterprise agreement to be varied if not all employees approve the agreement\n\nApplication of this section\n\n (1) This section applies if:\n\n (a) a multi‑enterprise agreement is made; and\n\n (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.\n\nVariation of agreement\n\n (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:\n\n (a) each employer whose employees approved the agreement;\n\n (b) the employees of each of those employers.\n\n (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.\n\n (4) The notice must specify the employers and employees that the agreement as varied covers.\n\n (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.","sortOrder":414},{"sectionNumber":"185","sectionType":"section","heading":"Bargaining representative must apply for the FWC’s approval of an enterprise agreement","content":"185  Bargaining representative must apply for the FWC’s approval of an enterprise agreement\n\nApplication for approval\n\n (1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.\n\n (1A) Despite subsection (1), if the agreement is a multi‑enterprise agreement that is a greenfields agreement, the application must be made by:\n\n (a) an employer covered by the agreement; or\n\n (b) a relevant employee organisation that is covered by the agreement.\n\nMaterial to accompany the application\n\n (2) The application must be accompanied by:\n\n (a) a signed copy of the agreement; and\n\n (b) any declarations that are required by the procedural rules to accompany the application.\n\nWhen the application must be made\n\n (3) If the agreement is not a greenfields agreement, the application must be made:\n\n (a) within 14 days after the agreement is made; or\n\n (b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.\n\n (4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.\n\nSignature requirements\n\n (5) The regulations may prescribe requirements relating to the signing of enterprise agreements.\n\nSingle‑enterprise agreements that are greenfields agreements\n\n (6) This section does not apply to an agreement made under subsection 182(4).","sortOrder":415},{"sectionNumber":"185A","sectionType":"section","heading":"Material that must accompany an application under subsection 182(4) for approval of a greenfields agreement","content":"185A  Material that must accompany an application under subsection 182(4) for approval of a greenfields agreement\n\n  An application under subsection 182(4) for approval of an agreement must be accompanied by:\n\n (a) a copy of the agreement; and\n\n (b) any declarations that are required by the procedural rules to accompany the application.","sortOrder":416},{"sectionNumber":"186","sectionType":"section","heading":"When the FWC must approve an enterprise agreement—general requirements","content":"186  When the FWC must approve an enterprise agreement—general requirements\n\nBasic rule\n\n (1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.\n\nNote: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).\n\nRequirements relating to the safety net etc.\n\n (2) The FWC must be satisfied that:\n\n (a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and\n\n (b) if the agreement is a multi‑enterprise agreement:\n\n (i) the agreement has been genuinely agreed to by each employer covered by the agreement; and\n\n (ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and\n\n (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\n\n (d) the agreement passes the better off overall test.\n\nNote 1: For provisions dealing with determining whether an enterprise agreement has been genuinely agreed to by employees, see section 188.\n\nNote 2: The FWC 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).\n\nNote 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).\n\n (2AA) In applying paragraph 186(2)(b), the FWC must disregard anything done, and the effect of anything done, by a person other than one of the employers who bargained for the agreement, that is authorised by or under this Act (including protected industrial action).\n\nRequirement relating to representation for cooperative workplace agreement (not greenfields)\n\n (2A) If the agreement is a cooperative workplace agreement that is not a greenfields agreement, the FWC must be satisfied that at least some of the employees covered by the agreement were represented by an employee organisation in relation to bargaining for the agreement.\n\nRequirement that multi‑enterprise agreements (other than greenfields agreements) not cover employees in relation to general building and construction work\n\n (2B) If the agreement is a multi‑enterprise agreement that is not a greenfields agreement, the FWC must be satisfied that the agreement does not cover employees in relation to general building and construction work.\n\nRequirement that the group of employees covered by the agreement is fairly chosen\n\n (3) The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.\n\n (3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.\n\nRequirement that there be no unlawful terms\n\n (4) The FWC must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).\n\nRequirement that there be no designated outworker terms\n\n (4A) The FWC must be satisfied that the agreement does not include any designated outworker terms.\n\nRequirement for a nominal expiry date etc.\n\n (5) The FWC must be satisfied that:\n\n (a) the agreement specifies a date as its nominal expiry date; and\n\n (b) the date will not be more than 4 years after the day on which the FWC approves the agreement.\n\nRequirement for a term about settling disputes\n\n (6) The FWC must be satisfied that the agreement includes a term:\n\n (a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:\n\n (i) about any matters arising under the agreement; and\n\n (ii) in relation to the National Employment Standards; and\n\n (b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.","sortOrder":418},{"sectionNumber":"187","sectionType":"section","heading":"When the FWC must approve an enterprise agreement—additional requirements","content":"187  When the FWC must approve an enterprise agreement—additional requirements\n\nAdditional requirements\n\n (1) This section sets out additional requirements that must be met before the FWC approves an enterprise agreement under section 186.\n\nRequirement that approval not be inconsistent with good faith bargaining etc.\n\n (2) The FWC 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.\n\nRequirement relating to notice of variation of agreement\n\n (3) If a bargaining representative is required to vary the agreement as referred to in subsection 184(2), the FWC must be satisfied that the bargaining representative has complied with that subsection and subsection 184(3) (which deals with giving notice of the variation).\n\nRequirements relating to particular kinds of employees\n\n (4) The FWC must be satisfied as referred to in any provisions of Subdivision E of this Division that apply in relation to the agreement.\n\nNote: Subdivision E of this Division deals with approval requirements relating to particular kinds of employees.\n\nRequirements relating to greenfields agreements\n\n (5) If the agreement is a greenfields agreement, the FWC must be satisfied that:\n\n (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\n\n (b) it is in the public interest to approve the agreement.\n\n (6) If an agreement is made under subsection 182(4) (which deals with a single‑enterprise agreement that is a greenfields agreement), the FWC must be satisfied that the agreement, considered on an overall basis, provides for pay and conditions that are consistent with the prevailing pay and conditions within the relevant industry for equivalent work.\n\nNote: In considering the prevailing pay and conditions within the relevant industry for equivalent work, the FWC may have regard to the prevailing pay and conditions in the relevant geographical area.","sortOrder":419},{"sectionNumber":"188","sectionType":"section","heading":"Determining whether an enterprise agreement has been genuinely agreed to by employees","content":"188  Determining whether an enterprise agreement has been genuinely agreed to by employees\n\nStatement of principles\n\n (1) The FWC must take into account the statement of principles made under section 188B in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement.\n\nSufficient interest and sufficiently representative\n\n (2) The FWC cannot be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employees requested to approve the agreement by voting for it:\n\n (a) have a sufficient interest in the terms of the agreement; and\n\n (b) are sufficiently representative, having regard to the employees the agreement is expressed to cover.\n\nNote: In One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 (2018) 262 FCR 527, a Full Court of the Federal Court observed that whether an agreement has been genuinely agreed involves consideration of the authenticity of the agreement of the employees, including whether the employees who voted for the agreement had an informed and genuine understanding of what was being approved.\n\nAgreement of bargaining representatives that are employee organisations\n\n (2A) The FWC cannot be satisfied that an enterprise agreement to which section 180A or 180B applies has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employer complied with section 180A or 180B (as the case requires) in relation to the agreement.\n\nWhere notice of employee representational rights was required\n\n (3) Subsection (4) applies in relation to an enterprise agreement if an employer was required by subsection 173(1) (which deals with giving notice of employee representational rights) to take all reasonable steps to give notice in relation to the agreement.\n\n (4) The FWC cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employer complied with the following provisions in relation to the agreement:\n\n (a) sections 173 and 174 (which deal with giving notice of employee representational rights);\n\n (b) subsection 181(2) (which requires that employees not be requested to approve certain enterprise agreements until 21 days after the last notice of employee representational rights is given).\n\nExplanation of terms of the agreement\n\n (4A) The FWC cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employer complied with subsection 180(5) in relation to the agreement.\n\nMinor errors may be disregarded\n\n (5) In determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement (including determining whether it is satisfied that an employer complied with the provisions mentioned in subsection (2A) or (4) or (4A)), the FWC may disregard minor procedural or technical errors made in relation to the following requirements if it is satisfied that the employees were not likely to have been disadvantaged by the errors:\n\n (a) section 173 or 174 (which deal with notices of employee representational rights for certain agreements);\n\n (aa) subsection 180(5) (which requires employers to explain the terms of agreements);\n\n (ab) section 180A or 180B (which deal with agreement of certain bargaining representatives);\n\n (b) subsection 181(2) (which requires that employees not be requested to approve certain enterprise agreements until 21 days after the last notice of employee representational rights is given);\n\n (c) subsection 182(1) or (2) (which deal with the making of different kinds of enterprise agreements by employee vote).\n\nRegulations\n\n (6) The FWC cannot be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the requirements (if any) prescribed by the regulations for the purposes of this subsection are met.","sortOrder":420},{"sectionNumber":"188A","sectionType":"section","heading":"Disclosure documents","content":"188A  Disclosure documents\n\n  Failure by an organisation to comply with section 179 (disclosure by organisations), or by an employer to comply with section 179A or subsection 180(4A), (4B) or (4C) (disclosure by employers), in relation to an agreement:\n\n (a) does not mean that the agreement has not been genuinely agreed to by employees; and\n\n (b) is not otherwise relevant to approval by the FWC of the agreement.","sortOrder":421},{"sectionNumber":"188B","sectionType":"section","heading":"Statement of principles on genuine agreement","content":"188B  Statement of principles on genuine agreement\n\n (1) The FWC must, by legislative instrument, make a statement of principles for employers on ensuring that employees have genuinely agreed to an enterprise agreement.\n\n (2) The FWC must publish the statement on the FWC’s website and by any other means that the FWC considers appropriate.\n\n (3) The statement must deal with the following matters:\n\n (a) informing employees of bargaining for a proposed enterprise agreement;\n\n (b) informing employees of their right to be represented by a bargaining representative;\n\n (c) providing employees with a reasonable opportunity to consider a proposed enterprise agreement;\n\n (d) explaining to employees the terms of a proposed enterprise agreement and their effect;\n\n (e) providing employees with a reasonable opportunity to vote on a proposed agreement in a free and informed manner, including by informing employees of the time, place and method for the vote;\n\n (f) any matter prescribed by the regulations for the purposes of this paragraph;\n\n (g) any other matters the FWC considers relevant.\n\n (4) The statement is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the statement.","sortOrder":422},{"sectionNumber":"189","sectionType":"section","heading":"FWC may approve an enterprise agreement that does not pass better off overall test—public interest test","content":"189  FWC may approve an enterprise agreement that does not pass better off overall test—public interest test\n\nApplication of this section\n\n (1) This section applies if:\n\n (a) the FWC is not required to approve an enterprise agreement under section 186; and\n\n (b) the only reason for this is that the FWC is not satisfied that the agreement passes the better off overall test.\n\nApproval of agreement if not contrary to the public interest\n\n (2) The FWC may approve the agreement under this section if the FWC is satisfied that, because of exceptional circumstances, the approval of the agreement would not be contrary to the public interest.\n\nNote: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).\n\n (3) An example of a case in which the FWC 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.\n\nNominal expiry date\n\n (4) The nominal expiry date of an enterprise agreement approved by the FWC under this section is the earlier of the following:\n\n (a) the date specified in the agreement as the nominal expiry date of the agreement;\n\n (b) 2 years after the day on which the FWC approved the agreement.","sortOrder":423},{"sectionNumber":"190","sectionType":"section","heading":"FWC may approve an enterprise agreement with undertakings","content":"190  FWC may approve an enterprise agreement with undertakings\n\nApplication of this section\n\n (1) This section applies if:\n\n (a) an application for the approval of an enterprise agreement has been made under subsection 182(4) or section 185; and\n\n (b) the FWC has a concern that the agreement does not meet the requirements set out in sections 186 and 187.\n\nApproval of agreement with undertakings\n\n (2) The FWC may approve the agreement under section 186 if the FWC is satisfied that an undertaking accepted by the FWC under subsection (3) of this section meets the concern.\n\nUndertakings\n\n (3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to:\n\n (a) cause financial detriment to any employee covered by the agreement; or\n\n (b) result in substantial changes to the agreement.\n\nFWC must seek views of bargaining representatives\n\n (4) The FWC must not accept an undertaking under subsection (3) unless the FWC has sought the views of each person who the FWC knows is a bargaining representative for the agreement.\n\nSignature requirements\n\n (5) The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.","sortOrder":424},{"sectionNumber":"191","sectionType":"section","heading":"Effect of undertakings","content":"191  Effect of undertakings\n\n (1) If:\n\n (a) the FWC approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement; and\n\n (b) the agreement covers a single employer;\n\nthe undertaking is taken to be a term of the agreement, as the agreement applies to the employer.\n\n (2) If:\n\n (a) the FWC approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement; and\n\n (b) the agreement covers 2 or more employers;\n\nthe undertaking is taken to be a term of the agreement, as the agreement applies to each employer that gave the undertaking.","sortOrder":425},{"sectionNumber":"191A","sectionType":"section","heading":"FWC may approve an enterprise agreement with amendments","content":"191A  FWC may approve an enterprise agreement with amendments\n\n (1) This section applies if:\n\n (a) an application for the approval of an enterprise agreement has been made under subsection 182(4) or section 185; and\n\n (b) the FWC has a concern that the agreement does not meet the requirement set out in paragraph 186(2)(d) (better off overall test).\n\n (2) The FWC may approve the agreement under section 186 if the FWC is satisfied that an amendment specified by the FWC is necessary to address the concern.\n\n (3) If the FWC intends to specify an amendment under subsection (2), the FWC must seek the views of the following:\n\n (a) the employer or employers that are covered by the agreement;\n\n (b) the award covered employees for the agreement;\n\n (ba) if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies—those employees;\n\n (c) a bargaining representative for the agreement.","sortOrder":426},{"sectionNumber":"191B","sectionType":"section","heading":"Effect of amendment specified by FWC","content":"191B  Effect of amendment specified by FWC\n\n (1) If:\n\n (a) the FWC specifies an amendment in approving an enterprise agreement under subsection 191A(2); and\n\n (b) the agreement covers a single employer;\n\nthe agreement is taken to be amended by the amendment, as the agreement applies to the employer.\n\n (2) If:\n\n (a) the FWC specifies an amendment in approving an enterprise agreement under subsection 191A(2); and\n\n (b) the agreement covers 2 or more employers;\n\nthe agreement is taken to be amended by the amendment, as the agreement applies to each employer.","sortOrder":427},{"sectionNumber":"192","sectionType":"section","heading":"When the FWC may refuse to approve an enterprise agreement","content":"192  When the FWC may refuse to approve an enterprise agreement\n\n (1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC may refuse to approve the agreement if the FWC considers that compliance with the terms of the agreement may result in:\n\n (a) a person committing an offence against a law of the Commonwealth; or\n\n (b) a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth.\n\n (2) Subsection (1) has effect despite sections 186 and 189 (which deal with the approval of enterprise agreements).\n\n (3) If the FWC refuses to approve an enterprise agreement under this section, the FWC may refer the agreement to any person or body the FWC considers appropriate.","sortOrder":428},{"sectionNumber":"193","sectionType":"section","heading":"Passing the better off overall test","content":"193  Passing the better off overall test\n\nWhen a non‑greenfields agreement passes the better off overall test\n\n (1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that:\n\n (a) each award covered employee, and each reasonably foreseeable 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; and\n\n (b) if the agreement is a single‑enterprise agreement that covers one or more employees (each of whom is an old agreement employee) to whom a supported bargaining agreement or a single interest employer agreement applies—each old agreement employee would be better off overall if the single‑enterprise agreement applied to the employee than if the supported bargaining agreement or single interest employer agreement (as the case requires) applied to the employee.\n\nNote 1: Reasonably foreseeable employee is defined in subsection (5).\n\nNote 2: Section 193A sets out rules for applying the better off overall test, including requiring the FWC to only have regard to patterns or kinds of work, or types of employment, that are reasonably foreseeable at the test time (see subsection 193A(6)).\n\n (1A) If an employee is, at the test time, both an old agreement employee and an award covered employee, the FWC must undertake an assessment against only paragraph (1)(b) for that employee.\n\nFWC must disregard individual flexibility arrangement\n\n (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, the FWC must disregard the individual flexibility arrangement for the purposes of determining whether the agreement passes the better off overall test.\n\n (2A) If, under the flexibility term in the supported bargaining agreement or single interest employer agreement, an individual flexibility arrangement has been agreed to by an old agreement employee and his or her employer, the FWC must disregard the individual flexibility arrangement for the purposes of determining whether the single‑enterprise agreement passes the better off overall test.\n\nWhen a greenfields agreement passes the better off overall test\n\n (3) A greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each reasonably foreseeable 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.\n\nAward covered employee\n\n (4) An award covered employee for an enterprise agreement is an employee who:\n\n (a) is covered by the agreement; and\n\n (b) at the test time, is covered by a modern award (the relevant modern award) that:\n\n (i) is in operation; and\n\n (ii) covers the employee in relation to the work that he or she is to perform under the agreement; and\n\n (iii) covers his or her employer.\n\nReasonably foreseeable employee\n\n (5) A reasonably foreseeable 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:\n\n (a) would be covered by the agreement; and\n\n (b) would be covered by a modern award (the relevant modern award) that:\n\n (i) is in operation; and\n\n (ii) would cover the person in relation to the work that he or she would perform under the agreement; and\n\n (iii) covers the employer.\n\nTest time\n\n (6) The test time is the time the application for approval of the agreement by the FWC was made under subsection 182(4) or section 185.","sortOrder":430},{"sectionNumber":"193A","sectionType":"section","heading":"Applying the better off overall test","content":"193A  Applying the better off overall test\n\n (1) This section applies for the purposes of determining whether an enterprise agreement passes the better off overall test under section 193.\n\n (2) To avoid doubt, the FWC must undertake a global assessment of whether each employee concerned would be better off having regard to:\n\n (a) the terms of the agreement which would be more beneficial to the employee if the agreement applied to the employee than if the relevant modern award, supported bargaining agreement or single interest employer agreement (as the case requires) applied to the employee; and\n\n (b) the terms of the agreement which would be less beneficial to the employee if the agreement applied to the employee than if the relevant modern award, supported bargaining agreement or single interest employer agreement (as the case requires) applied to the employee.\n\n (3) The FWC must give consideration to any views relating to whether the agreement passes the better off overall test that have been expressed by any of the following:\n\n (a) the employer or employers that are covered by the agreement;\n\n (b) if the agreement is not a greenfields agreement:\n\n (i) the award covered employees for the agreement; and\n\n (ii) if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies—those employees;\n\n (c) in any case—a bargaining representative for the agreement.\n\n (4) The FWC must give primary consideration to a common view (if any) relating to whether the agreement passes the better off overall test expressed by all of the following:\n\n (a) the bargaining representative or bargaining representatives of the employer or employers that are covered by the agreement;\n\n (b) the bargaining representative or bargaining representatives of award covered employees for the agreement (other than a bargaining representative that is not an employee organisation);\n\n (c) if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies—the bargaining representative or bargaining representatives of those employees (other than a bargaining representative that is not an employee organisation).\n\n (5) Subsection (4) does not apply if the agreement is a greenfields agreement.\n\n (6) The FWC may only have regard to patterns or kinds of work, or types of employment, if they are reasonably foreseeable at the test time. In considering what is reasonably foreseeable, the FWC must have regard to the nature of the enterprise or enterprises to which the agreement relates.\n\n (6A) The FWC must determine whether a particular pattern or kind of work, or type of employment, is reasonably foreseeable for the purposes of subsection (6) if a view is expressed by any of the following that it is, or is not, reasonably foreseeable:\n\n (a) the employer or employers that are covered by the agreement;\n\n (b) if the agreement is not a greenfields agreement:\n\n (i) the award covered employees for the agreement; and\n\n (ii) if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies—those employees;\n\n (c) in any case—a bargaining representative for the agreement.\n\n (7) 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, supported bargaining agreement or single interest employer agreement (as the case requires) applied to that class, the FWC 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.","sortOrder":431},{"sectionNumber":"194","sectionType":"section","heading":"Meaning of unlawful term","content":"194  Meaning of unlawful term\n\n  A term of an enterprise agreement is an unlawful term if it is:\n\n (a) a discriminatory term; or\n\n (b) an objectionable term; or\n\n (baa) an objectionable emergency management term; or\n\n (ba) a term that provides a method by which an employee or employer may elect (unilaterally or otherwise) not to be covered by the agreement; or\n\n (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\n\n (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\n\n (e) a term that is inconsistent with a provision of Part 3‑3 (which deals with industrial action); or\n\n (f) a term that provides for an entitlement:\n\n (i) to enter premises for a purpose referred to in section 481 (which deals with investigation of suspected contraventions); or\n\n (ii) to enter premises to hold discussions of a kind referred to in section 484;\n\n  other than in accordance with Part 3‑4 (which deals with right of entry); or\n\n (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); or\n\n (h) a term that has the effect of requiring or permitting contributions, for the benefit of an employee (the relevant employee) covered by the agreement who is a default fund employee, to be made to a superannuation fund or scheme that is specified in the agreement but does not satisfy one of the following:\n\n (i) it is a fund that offers a MySuper product;\n\n (ii) it is a fund or scheme of which the relevant employee, and each other default fund employee in relation to whom contributions are made to the fund or scheme by the same employer as the relevant employee, is a defined benefit member;\n\n (iii) it is an exempt public sector superannuation scheme.","sortOrder":433},{"sectionNumber":"195","sectionType":"section","heading":"Meaning of discriminatory term","content":"195  Meaning of discriminatory term\n\nDiscriminatory term\n\n (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 orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.\n\nCertain terms are not discriminatory terms\n\n (2) A term of an enterprise agreement does not discriminate against an employee:\n\n (a) if the reason for the discrimination is the inherent requirements of the particular position concerned; or\n\n (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:\n\n (i) in good faith; and\n\n (ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed; or\n\n (c) if the term is a special measure to achieve equality—to the extent that action that may be taken because of the term is not unlawful under any anti‑discrimination law in force in a place where the action may occur.\n\n (3) A term of an enterprise agreement does not discriminate against an employee merely because it provides for wages for:\n\n (a) all junior employees, or a class of junior employees; or\n\n (b) all employees with a disability, or a class of employees with a disability; or\n\n (c) all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.\n\nSpecial measures to achieve equality\n\n (4) A term of an enterprise agreement is a special measure to achieve equality if:\n\n (a) the term has the purpose of achieving substantive equality for employees or prospective employees who have a particular attribute or a particular kind of attribute (as the case may be) mentioned in subsection (1), or a particular combination of these; and\n\nNote: For example, a term that has the purpose of achieving substantive equality for employees who are female and have a physical or mental disability.\n\n (b) a reasonable person would consider that the term is necessary in order to achieve substantive equality.\n\n (5) A term of an enterprise agreement is to be treated as having the purpose referred to in paragraph (4)(a) if it is:\n\n (a) solely for that purpose; or\n\n (b) for that purpose as well as other purposes, whether or not that purpose is the dominant or substantial one.\n\n (6) However, a term of an enterprise agreement ceases to be a special measure to achieve equality after substantive equality for the employees referred to in paragraph (4)(a) has been achieved.","sortOrder":434},{"sectionNumber":"195A","sectionType":"section","heading":"Meaning of objectionable emergency management term","content":"195A  Meaning of objectionable emergency management term\n\nObjectionable emergency management term\n\n (1) A term of an enterprise agreement is an objectionable emergency management term if an employer covered by the agreement is a designated emergency management body and the term has, or is likely to have, the effect of:\n\n (a) restricting or limiting the body’s ability to do any of the following:\n\n (i) engage or deploy its volunteers;\n\n (ii) provide support or equipment to those volunteers;\n\n (iii) manage its relationship with, or work with, any recognised emergency management body in relation to those volunteers;\n\n (iv) otherwise manage its operations in relation to those volunteers; or\n\n (b) requiring the body to consult, or reach agreement with, any other person or body before taking any action for the purposes of doing anything mentioned in subparagraph (a)(i), (ii), (iii) or (iv); or\n\n (c) restricting or limiting the body’s ability to recognise, value, respect or promote the contribution of its volunteers to the well‑being and safety of the community; or\n\n (d) requiring or permitting the body to act other than in accordance with a law of a State or Territory, so far as the law confers or imposes on the body a power, function or duty that affects or could affect its volunteers.\n\n (2) However, a term of an enterprise agreement is not an objectionable emergency management term if:\n\n (a) both of the following apply:\n\n (i) the term provides for the matters required by subsections 205(1) and (1A) (which deal with terms about consultation in enterprise agreements);\n\n (ii) the term does not provide for any other matter that has, or is likely to have, the effect referred to in paragraph (1)(a), (b), (c) or (d) of this section; or\n\n (b) the term is the model consultation term.\n\n (3) Paragraphs (1)(a), (b), (c) and (d) do not limit each other.\n\nMeaning of designated emergency management body\n\n (4) A body is a designated emergency management body if:\n\n (a) either:\n\n (i) the body is, or is a part of, a fire‑fighting body or a State Emergency Service of a State or Territory (however described); or\n\n (ii) the body is a recognised emergency management body that is prescribed by the regulations for the purposes of this subparagraph; and\n\n (b) the body is, or is a part of a body that is, established for a public purpose by or under a law of the Commonwealth, a State or a Territory.\n\n (5) However, a body is not a designated emergency management body if the body is, or is a part of a body that is, prescribed by the regulations for the purposes of this subsection.\n\nMeaning of volunteer of a designated emergency management body\n\n (6) A person is a volunteer of a designated emergency management body if:\n\n (a) the person engages in activities with the body on a voluntary basis (whether or not the person directly or indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for engaging in the activity); and\n\n (b) the person is a member of, or has a member‑like association with, the body.\n\nLimited application of subsection (1) for certain terms\n\n (7) If:\n\n (a) a term of an enterprise agreement deals to any extent with the following matters relating to provision of essential services or to situations of emergency:\n\n (i) directions to perform work (including to perform work at a particular time or place, or in a particular way);\n\n (ii) directions not to perform work (including not to perform work at a particular time or place, or in a particular way); and\n\n (b) the application of subsection (1) in relation to the term would (apart from this subsection) be beyond the Commonwealth’s legislative power to the extent that the term deals with those matters;\n\nthen subsection (1) does not apply in relation to the term to that extent.\n\nNote: See paragraph (l) of the definition of excluded subject matter in subsections 30A(1) and 30K(1).","sortOrder":435},{"sectionNumber":"196","sectionType":"section","heading":"Shiftworkers","content":"196  Shiftworkers\n\nApplication of this section\n\n (1) This section applies if:\n\n (a) an employee is covered by an enterprise agreement; and\n\n (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.\n\nShiftworkers and the National Employment Standards\n\n (2) The FWC must be satisfied that the agreement defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.\n\nNote: 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.","sortOrder":437},{"sectionNumber":"197","sectionType":"section","heading":"Pieceworkers—enterprise agreement includes pieceworker term","content":"197  Pieceworkers—enterprise agreement includes pieceworker term\n\nApplication of this section\n\n (1) This section applies if:\n\n (a) an enterprise agreement that covers an employee includes a term that defines or describes the employee as a pieceworker; and\n\n (b) a modern award that is in operation and covers the employee does not include such a term.\n\nNo detriment test\n\n (2) The FWC 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.","sortOrder":438},{"sectionNumber":"198","sectionType":"section","heading":"Pieceworkers—enterprise agreement does not include a pieceworker term","content":"198  Pieceworkers—enterprise agreement does not include a pieceworker term\n\nApplication of this section\n\n (1) This section applies if:\n\n (a) an enterprise agreement that covers an employee does not include a term that defines or describes the employee as a pieceworker; and\n\n (b) a modern award that is in operation and covers the employee includes such a term.\n\nNo detriment test\n\n (2) The FWC 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.","sortOrder":439},{"sectionNumber":"199","sectionType":"section","heading":"School-based apprentices and school-based trainees","content":"199  School‑based apprentices and school‑based trainees\n\nApplication of this section\n\n (1) This section applies if:\n\n (a) an employee who is a school‑based apprentice or a school‑based trainee is covered by an enterprise agreement; and\n\n (b) the agreement provides for the employee to be paid loadings (the agreement loadings) in lieu of any of the following:\n\n (i) paid annual leave;\n\n (ii) paid personal/carer’s leave;\n\n (iii) paid absence under Division 10 of Part 2‑2 (which deals with public holidays); and\n\n (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.\n\nNo detriment test\n\n (2) The FWC 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.","sortOrder":440},{"sectionNumber":"200","sectionType":"section","heading":"Outworkers","content":"200  Outworkers\n\nApplication of this section\n\n (1) This section applies if:\n\n (a) an employee who is an outworker is covered by an enterprise agreement; and\n\n (b) a modern award that is in operation and covers the employee includes outworker terms.\n\nAgreement must include outworker terms etc.\n\n (2) The FWC must be satisfied that:\n\n (a) the agreement includes terms of that kind; and\n\n (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.","sortOrder":441},{"sectionNumber":"Subdivision F","sectionType":"subdivision","heading":"Other matters","content":"Subdivision F—Other matters","sortOrder":442},{"sectionNumber":"201","sectionType":"section","heading":"Approval decision to note certain matters","content":"201  Approval decision to note certain matters\n\nApproval decision to note model terms included in an enterprise agreement\n\n (1) If:\n\n (a) the FWC approves an enterprise agreement; and\n\n (b) either or both of the following apply:\n\n (i) the model flexibility term is taken, under subsection 202(4), to be a term of the agreement;\n\n (ii) the model consultation term is taken, under subsection 205(2), to be a term of the agreement;\n\nthe FWC must note in its decision to approve the agreement that those terms are so included in the agreement.\n\nApproval decision to note modern award delegates’ rights term included in an enterprise agreement\n\n (1A) If:\n\n (a) the FWC approves an enterprise agreement; and\n\n (b) a delegates’ rights term in a modern award is taken to be a term of the enterprise agreement because of subsection 205A(2):\n\nthe FWC must note in its decision to approve the agreement that the term is so included in the agreement.\n\nApproval decision to note that an enterprise agreement covers an employee organisation\n\n (2) If:\n\n (a) an employee organisation has given a notice under subsection 183(1) that the organisation wants the enterprise agreement to cover it; and\n\n (b) the FWC approves the agreement;\n\nthe FWC must note in its decision to approve the agreement that the agreement covers the organisation.\n\n (2A) If:\n\n (a) an agreement is made under subsection 182(4) (which deals with a single‑enterprise agreement that is a greenfields agreement); and\n\n (b) the FWC approves the agreement;\n\nthe FWC must note in its decision to approve the agreement that the agreement covers each employee organisation that was a bargaining representative for the agreement.\n\nApproval decision to note undertakings\n\n (3) If the FWC approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement, the FWC must note in its decision to approve the agreement that the undertaking is taken to be a term of the agreement.\n\nApproval decision to note amendments\n\n (4) If the FWC specifies an amendment in approving an enterprise agreement under subsection 191A(2), the FWC must note the amendment in its decision to approve the agreement.\n\nApproval decision to note that enterprise agreement to be new host employment instrument for regulated labour hire arrangement order\n\n (5) If:\n\n (a) the FWC approves an enterprise agreement; and\n\n (b) the enterprise agreement will become the host employment instrument covered by a regulated labour hire arrangement order because of section 306EB;\n\nthe FWC must note in its decision to approve the agreement that the agreement will be the host employment instrument covered by the order.\n\nNote: Certain notification requirements also apply if the enterprise agreement will be the host employment instrument covered by a regulated labour hire arrangement order (see section 306EC).","sortOrder":443},{"sectionNumber":"202","sectionType":"section","heading":"Enterprise agreements to include a flexibility term etc.","content":"202  Enterprise agreements to include a flexibility term etc.\n\nFlexibility term must be included in an enterprise agreement\n\n (1) An enterprise agreement must include a term (a flexibility term) that:\n\n (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\n\n (b) complies with section 203.\n\nEffect of an individual flexibility arrangement\n\n (2) If an employee and employer agree to an individual flexibility arrangement under a flexibility term in an enterprise agreement:\n\n (a) the agreement has effect in relation to the employee and the employer as if it were varied by the arrangement; and\n\n (b) the arrangement is taken to be a term of the agreement.\n\n (3) To avoid doubt, the individual flexibility arrangement:\n\n (a) does not change the effect the agreement has in relation to the employer and any other employee; and\n\n (b) does not have any effect other than as a term of the agreement.\n\nModel flexibility term\n\n (4) If an enterprise agreement does not include a flexibility term, the model flexibility term is taken to be a term of the agreement.\n\n (5) The FWC must determine the model flexibility term for enterprise agreements.\n\n (6) In determining the model flexibility term, the FWC must:\n\n (a) ensure that the model term is consistent with the requirements set out in subsection (1); and\n\n (b) take into account the following matters:\n\n (i) whether the model term is broadly consistent with comparable terms in modern awards;\n\n (ii) best practice workplace relations as determined by the FWC;\n\n (iii) whether all persons and bodies have had a reasonable opportunity to be heard and make submissions to the FWC for consideration in determining the model term;\n\n (iv) the object of this Act (see section 3), and the objects of this Part (see section 171);\n\n (v) any other matters the FWC considers relevant.\n\nNote 1: The FWC must be constituted by a Full Bench to make the model flexibility term (see subsection 616(4A)).\n\nNote 2: For the variation of a determination, see subsection 33(3) of the Acts Interpretation Act 1901.\n\n (7) A determination under subsection (5) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.","sortOrder":445},{"sectionNumber":"203","sectionType":"section","heading":"Requirements to be met by a flexibility term","content":"203  Requirements to be met by a flexibility term\n\nFlexibility term must meet requirements\n\n (1) A flexibility term in an enterprise agreement must meet the requirements set out in this section.\n\nRequirements relating to content\n\n (2) The flexibility term must:\n\n (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\n\n (b) require the employer to ensure that any individual flexibility arrangement agreed to under the flexibility term:\n\n (i) must be about matters that would be permitted matters if the arrangement were an enterprise agreement; and\n\n (ii) must not include a term that would be an unlawful term if the arrangement were an enterprise agreement.\n\n (2A) If, in accordance with this Part, the enterprise agreement includes terms that would be outworker terms if they were included in a modern award, the flexibility term must not allow the effect of those outworker terms to be varied.\n\nRequirement for genuine agreement\n\n (3) The flexibility term must require that any individual flexibility arrangement is genuinely agreed to by the employer and the employee.\n\nRequirement that the employee be better off overall\n\n (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.\n\nRequirement relating to approval or consent of another person\n\n (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.\n\nRequirement relating to termination of individual flexibility arrangements\n\n (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:\n\n (a) by either the employee, or the employer, giving written notice of not more than 28 days; or\n\n (b) by the employee and the employer at any time if they agree, in writing, to the termination.\n\nOther requirements\n\n (7) The flexibility term must require the employer to ensure that:\n\n (a) any individual flexibility arrangement agreed to under the term must be in writing and signed:\n\n (i) in all cases—by the employee and the employer; and\n\n (ii) if the employee is under 18—by a parent or guardian of the employee; and\n\n (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.","sortOrder":446},{"sectionNumber":"204","sectionType":"section","heading":"Effect of arrangement that does not meet requirements of flexibility term","content":"204  Effect of arrangement that does not meet requirements of flexibility term\n\nApplication of this section\n\n (1) This section applies if:\n\n (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\n\n (b) the arrangement does not meet a requirement set out in section 203.\n\nNote: A failure to meet such a requirement may be a contravention of a provision of Part 3‑1 (which deals with general protections).\n\nArrangement has effect as if it were an individual flexibility arrangement\n\n (2) The arrangement has effect as if it were an individual flexibility arrangement.\n\nEmployer contravenes flexibility term in specified circumstances\n\n (3) If section 203 requires the employer to ensure that the arrangement meets the requirement, the employer contravenes the flexibility term of the agreement.\n\nRequirement relating to termination of arrangement\n\n (4) If the arrangement does not provide that the arrangement is able to be terminated:\n\n (a) by either the employee, or the employer, giving written notice of not more than 28 days; or\n\n (b) by the employee and the employer at any time if they agree, in writing, to the termination;\n\nthe arrangement is taken to provide that the arrangement is able to be so terminated.","sortOrder":447},{"sectionNumber":"205","sectionType":"section","heading":"Enterprise agreements to include a consultation term etc.","content":"205  Enterprise agreements to include a consultation term etc.\n\nConsultation term must be included in an enterprise agreement\n\n (1) An enterprise agreement must include a term (a consultation term) that:\n\n (a) requires the employer or employers to which the agreement applies to consult the employees to whom the agreement applies about:\n\n (i) a major workplace change that is likely to have a significant effect on the employees; or\n\n (ii) a change to their regular roster or ordinary hours of work; and\n\n (b) allows for the representation of those employees for the purposes of that consultation.\n\n (1A) For a change to the employees’ regular roster or ordinary hours of work, the term must require the employer:\n\n (a) to provide information to the employees about the change; and\n\n (b) to invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and\n\n (c) to consider any views given by the employees about the impact of the change.\n\nModel consultation term\n\n (2) If an enterprise agreement does not include a consultation term, or if the consultation term is an objectionable emergency management term, the model consultation term is taken to be a term of the agreement.\n\n (3) The FWC must determine the model consultation term for enterprise agreements.\n\n (4) In determining the model consultation term, the FWC must:\n\n (a) ensure that the model term is consistent with the requirements set out in subsections (1) and (1A); and\n\n (b) take into account the following matters:\n\n (i) whether the model term is broadly consistent with comparable terms in modern awards;\n\n (ii) best practice workplace relations as determined by the FWC;\n\n (iii) whether all persons and bodies have had a reasonable opportunity to be heard and make submissions to the FWC for consideration in determining the model term;\n\n (iv) whether the model term would, or would be likely to have, the effect referred to in paragraph 195A(1)(a), (b), (c) or (d) (objectionable emergency management terms);\n\n (v) the object of this Act (see section 3), and the objects of this Part (see section 171);\n\n (vi) any other matters the FWC considers relevant.\n\nNote 1: The FWC must be constituted by a Full Bench to make the model consultation term (see subsection 616(4A)).\n\nNote 2: For the variation of a determination, see subsection 33(3) of the Acts Interpretation Act 1901.\n\n (5) To avoid doubt, subsections (1) and (1A) do not limit the matters the model consultation term may deal with.\n\n (6) A determination under subsection (3) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.","sortOrder":448},{"sectionNumber":"205A","sectionType":"section","heading":"Enterprise agreements to include a delegates’ rights term etc.","content":"205A  Enterprise agreements to include a delegates’ rights term etc.\n\n (1) An enterprise agreement must include a delegates’ rights term for workplace delegates to whom the agreement applies.\n\nNote: Delegates’ rights term is defined in section 12.\n\nWhen modern award term prevails\n\n (2) However, if, when the agreement is approved, the delegates’ rights term is less favourable than the delegates’ rights term in one or more modern awards that cover the workplace delegates:\n\n (a) the term in the enterprise agreement has no effect; and\n\n (b) the most favourable term of those in the modern awards, as determined by the FWC, is taken to be a term of the enterprise agreement.\n\n (3) To avoid doubt, if the delegates’ rights term of a modern award is taken to be a term of an enterprise agreement, the term does not change if the modern award changes.","sortOrder":449},{"sectionNumber":"206","sectionType":"section","heading":"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.","content":"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.\n\nIf an employee is covered by a modern award that is in operation\n\n (1) If:\n\n (a) an enterprise agreement applies to an employee; and\n\n (b) a modern award that is in operation covers the employee;\n\nthe 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.\n\n (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.\n\nIf an employer is required to pay an employee the national minimum wage etc.\n\n (3) If:\n\n (a) an enterprise agreement applies to an employee; and\n\n (b) the employee is not covered by a modern award that is in operation; and\n\n (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;\n\nthe 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.\n\n (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.","sortOrder":451},{"sectionNumber":"207","sectionType":"section","heading":"Variation of an enterprise agreement may be made by employers and employees","content":"207  Variation of an enterprise agreement may be made by employers and employees\n\nVariation by employers and employees\n\n (1) The following may jointly make a variation of an enterprise agreement:\n\n (a) if the agreement covers a single employer—the employer and:\n\n (i) the employees employed at the time who are covered by the agreement; and\n\n (ii) the employees employed at the time who will be covered by the agreement if the variation is approved by the FWC;\n\n (b) if the agreement covers 2 or more employers—all of those employers and:\n\n (i) the employees employed at the time who are covered by the agreement; and\n\n (ii) the employees employed at the time who will be covered by the agreement if the variation is approved by the FWC.\n\nNote: For when a variation of an enterprise agreement is made, see section 209.\n\n (2) The employees referred to in paragraphs (1)(a) and (b) are the affected employees for the variation.\n\nVariation has no effect unless approved by the FWC\n\n (3) A variation of an enterprise agreement has no effect unless it is approved by the FWC under section 211.\n\nLimitation—greenfields agreement\n\n (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.","sortOrder":454},{"sectionNumber":"207A","sectionType":"section","heading":"Agreement of employee organisations covered by the agreement","content":"207A  Agreement of employee organisations covered by the agreement\n\n (1) This section applies to a proposed variation of a multi‑enterprise agreement.\n\n (2) An employer must not request under subsection 208(1) that employees approve the variation by voting for it unless:\n\n (a) each employee organisation covered by the enterprise agreement has provided the employer with written agreement to the making of the request; or\n\n (b) a voting request order permits the employer to make the request.\n\nNote: Voting request orders can be made where failure to provide written agreement to the making of a request is unreasonable in the circumstances (see section 240B).","sortOrder":455},{"sectionNumber":"208","sectionType":"section","heading":"Employers may request employees to approve a proposed variation of an enterprise agreement","content":"208  Employers may request employees to approve a proposed variation of an enterprise agreement\n\n (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.\n\n (2) Without limiting subsection (1), the employer may request that the affected employees vote by ballot or by an electronic method.","sortOrder":456},{"sectionNumber":"209","sectionType":"section","heading":"When a variation of an enterprise agreement is made","content":"209  When a variation of an enterprise agreement is made\n\nSingle‑enterprise agreement\n\n (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.\n\nMulti‑enterprise agreement\n\n (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.","sortOrder":457},{"sectionNumber":"210","sectionType":"section","heading":"Application for the FWC’s approval of a variation of an enterprise agreement","content":"210  Application for the FWC’s approval of a variation of an enterprise agreement\n\nApplication for approval\n\n (1) If a variation of an enterprise agreement has been made, a person covered by the agreement must apply to the FWC for approval of the variation.\n\nMaterial to accompany the application\n\n (2) The application must be accompanied by:\n\n (a) a signed copy of the variation; and\n\n (b) a copy of the agreement as proposed to be varied; and\n\n (c) any declarations that are required by the procedural rules to accompany the application.\n\nWhen the application must be made\n\n (3) The application must be made:\n\n (a) within 14 days after the variation is made; or\n\n (b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.\n\nSignature requirements\n\n (4) The regulations may prescribe requirements relating to the signing of variations of enterprise agreements.","sortOrder":458},{"sectionNumber":"211","sectionType":"section","heading":"When the FWC must approve a variation of an enterprise agreement","content":"211  When the FWC must approve a variation of an enterprise agreement\n\nApproval of variation by the FWC\n\n (1) If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC must approve the variation if:\n\n (a) the FWC is satisfied that had an application been made under subsection 182(4) or section 185 for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and\n\n (b) the FWC 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 the FWC approved the agreement;\n\nunless the FWC is satisfied that there are serious public interest grounds for not approving the variation.\n\nNote: The FWC may approve a variation under this section with undertakings (see section 212).\n\n (1A) Despite subsection (1), the FWC must not approve the variation if:\n\n (a) as a result of the variation, employees who were not covered by the agreement will be covered by it; and\n\n (b) the employees’ employer is specified in a supported bargaining authorisation, or a single interest employer authorisation, in relation to those employees.\n\nModification of approval requirements\n\n (2) For the purposes of the FWC deciding whether it is satisfied of the matter referred to in paragraph (1)(a), the FWC must:\n\n (a) take into account subsections (3) and (4) and any regulations made for the purposes of subsection (6); and\n\n (aa) if the agreement is a multi‑enterprise agreement—take into account subsection (3A); and\n\n (b) comply with subsection (5); and\n\n (c) disregard sections 190 and 191 (which deal with the approval of enterprise agreements with undertakings); and\n\n (d) disregard sections 191A and 191B (which deal with FWC amendment of enterprise agreements).\n\n (3) The following provisions:\n\n (a) section 180 (which deals with pre‑approval steps);\n\n (b) subsection 186(2) (which deals with the FWC’s approval of enterprise agreements);\n\n (c) section 188 (which deals with genuine agreement);\n\nhave effect as if:\n\n (d) references in sections 180 and 188 (other than paragraph 188(2)(b)) 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\n\n (e) references in section 180, subsection 186(2) and section 188 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\n\n (f) references in section 180 to subsection 181(1) were references to subsection 208(1); and\n\n (fa) subsections 180(4A) to (4C) were omitted; and\n\n (fb) the word “bargaining” in paragraph 180(6)(c) were omitted; and\n\n (g) the words “if the agreement is not a greenfields agreement—” in paragraph 186(2)(a) were omitted; and\n\n (ga) references in paragraph 186(2)(a) to the agreement were references to the variation of the agreement; and\n\n (h) paragraph 186(2)(b) were omitted; and\n\n (ha) references in paragraphs 186(2)(c) and (d) and 188(2)(b) to the agreement were references to the enterprise agreement as proposed to be varied; and\n\n (hb) references in section 188 to section 180A were references to section 207A; and\n\n (j) the words “182(1) or (2)” in paragraph 188(5)(c) were omitted and the words “209(1) or (2)” were substituted.\n\n (3A) Subsection 186(2B) has effect as if the requirement in that subsection that the agreement must not cover employees in relation to general building and construction work were a requirement that the agreement as proposed to be varied must not cover employees in relation to such work.\n\n (4) Section 193 (which deals with passing the better off overall test) has effect as if:\n\n (a) the words “that is not a greenfields agreement” in subsection (1) were omitted; and\n\n (b) subsection (3) were omitted; and\n\n (c) the words “the agreement” in subsection (6) were omitted and the words “the variation of the enterprise agreement” were substituted; and\n\n (d) the reference in subsection (6) to subsection 182(4) or section 185 were a reference to section 210.\n\n (4A) Section 193A (which also deals with passing the better off overall test) has effect as if:\n\n (a) the words “if the agreement is not a greenfields agreement—” in paragraph (3)(b) were omitted; and\n\n (aa) the words “in any case—a bargaining representative for the agreement” in paragraph (3)(c) were omitted and the words “the employee organisation or employee organisations that are covered by the agreement” were substituted; and\n\n (ab) the words “the bargaining representative or bargaining representatives of” in paragraph (4)(a) were omitted; and\n\n (ac) the words “the bargaining representative or bargaining representatives of award covered employees for the agreement (other than a bargaining representative that is not an employee organisation)” in paragraph (4)(b) were omitted and the words “the employee organisation or employee organisations that are covered by the agreement” were substituted; and\n\n (ad) paragraph (4)(c) were omitted; and\n\n (b) subsection (5) were omitted; and\n\n (c) the words “if the agreement is not a greenfields agreement—” in paragraph (6A)(b) were omitted; and\n\n (d) the words “in any case—a bargaining representative for the agreement” in paragraph (6A)(c) were omitted and the words “the employee organisation or employee organisations that are covered by the agreement” were substituted.\n\n (5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC 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.\n\nRegulations may prescribe additional modifications\n\n (6) The regulations may provide that, for the purposes of the FWC deciding whether it is satisfied of the matter referred to in paragraph (1)(a), specified provisions of this Part, or regulations made for the purposes of this Part, have effect with such modifications as are prescribed by the regulations.","sortOrder":459},{"sectionNumber":"212","sectionType":"section","heading":"FWC may approve a variation of an enterprise agreement with undertakings","content":"212  FWC may approve a variation of an enterprise agreement with undertakings\n\nApplication of this section\n\n (1) This section applies if:\n\n (a) an application for the approval of a variation of an enterprise agreement has been made under section 210; and\n\n (b) the FWC has a concern that the variation does not meet the requirements set out in section 211.\n\nApproval of agreement with undertakings\n\n (2) The FWC may approve the variation under section 211 if the FWC is satisfied that an undertaking accepted by the FWC under subsection (3) of this section meets the concern.\n\nUndertakings\n\n (3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to:\n\n (a) cause financial detriment to any affected employee for the variation; or\n\n (b) result in substantial changes to the variation.\n\nSignature requirements\n\n (4) An undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.","sortOrder":460},{"sectionNumber":"213","sectionType":"section","heading":"Effect of undertakings","content":"213  Effect of undertakings\n\n (1) If:\n\n (a) the FWC approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation; and\n\n (b) the agreement covers a single employer;\n\nthe undertaking is taken to be a term of the agreement, as the agreement applies to the employer.\n\n (2) If:\n\n (a) the FWC approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation; and\n\n (b) the agreement covers 2 or more employers;\n\nthe undertaking is taken to be a term of the agreement, as the agreement applies to each employer that gave the undertaking.","sortOrder":461},{"sectionNumber":"213A","sectionType":"section","heading":"FWC may approve variation with amendments","content":"213A  FWC may approve variation with amendments\n\n (1) This section applies if:\n\n (a) an application for the approval of a variation of an enterprise agreement has been made under section 210; and\n\n (b) the FWC has a concern that the variation does not meet the requirements set out in section 211 because the requirement set out in paragraph 186(2)(d) (better off overall test), as it has effect because of subsection 211(4), is not met.\n\n (2) The FWC may approve the variation under section 211 if the FWC is satisfied that an amendment to the variation specified by the FWC is necessary to address the concern.\n\n (3) If the FWC intends to specify an amendment under subsection (2), the FWC must seek the views of the following:\n\n (a) one or more of the employers covered by the agreement;\n\n (b) an employee organisation covered by the agreement.","sortOrder":462},{"sectionNumber":"213B","sectionType":"section","heading":"Effect of amendment specified by FWC","content":"213B  Effect of amendment specified by FWC\n\n (1) If:\n\n (a) the FWC specifies an amendment in approving a variation of an enterprise agreement under subsection 213A(2); and\n\n (b) the agreement covers a single employer;\n\nthe variation is taken to be amended by the amendment, as the agreement applies to the employer.\n\n (2) If:\n\n (a) the FWC specifies an amendment in approving an enterprise agreement under subsection 191A(2); and\n\n (b) the agreement covers 2 or more employers;\n\nthe variation is taken to be amended by the amendment, as the agreement applies to each employer.","sortOrder":463},{"sectionNumber":"214","sectionType":"section","heading":"When the FWC may refuse to approve a variation of an enterprise agreement","content":"214  When the FWC may refuse to approve a variation of an enterprise agreement\n\n (1) If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC may refuse to approve the variation if the FWC considers that compliance with the terms of the agreement as proposed to be varied may result in:\n\n (a) a person committing an offence against a law of the Commonwealth; or\n\n (b) a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth.\n\n (2) Subsection (1) has effect despite section 211 (which deals with the approval of variations of enterprise agreements).\n\n (3) If the FWC refuses to approve a variation of an enterprise agreement under this section, the FWC may refer the agreement as proposed to be varied to any person or body the FWC considers appropriate.","sortOrder":464},{"sectionNumber":"215","sectionType":"section","heading":"Approval decision to note undertakings","content":"215  Approval decision to note undertakings\n\n  If the FWC approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation, the FWC must note in its decision to approve the variation that the undertaking is taken to be a term of the agreement.","sortOrder":465},{"sectionNumber":"215A","sectionType":"section","heading":"Approval decision to note amendments","content":"215A  Approval decision to note amendments\n\n  If the FWC specifies an amendment in approving a variation of an enterprise agreement under subsection 213A(2), the FWC must note the amendment in its decision to approve the variation.","sortOrder":466},{"sectionNumber":"216","sectionType":"section","heading":"When variation comes into operation","content":"216  When variation comes into operation\n\n  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.","sortOrder":467},{"sectionNumber":"Subdivision AA","sectionType":"subdivision","heading":"Variation of supported bargaining agreement to add employer and employees (with consent)","content":"Subdivision AA—Variation of supported bargaining agreement to add employer and employees (with consent)","sortOrder":468},{"sectionNumber":"216A","sectionType":"section","heading":"Variation of supported bargaining agreement to add employer and employees","content":"216A  Variation of supported bargaining agreement to add employer and employees\n\n (1) A variation of a supported bargaining agreement, that has the effect that an employer that was not covered by the agreement will be covered by it, may be made jointly by the employer and the affected employees.\n\nNote: Once the employer is covered by the agreement, any of their employees who the agreement is expressed to cover will also be covered by it. See also the definition of affected employees in section 12.\n\n (2) The employer may request the affected employees to approve the proposed variation by voting for it.\n\n (3) Without limiting subsection (2), the employer may request that the affected employees vote by ballot or by an electronic method.\n\n (4) The variation is made when a majority of the affected employees who cast a valid vote approve the variation.\n\n (5) The variation has no effect unless it is approved by the FWC under section 216AB.","sortOrder":469},{"sectionNumber":"216AAA","sectionType":"section","heading":"Terms of variation must be explained to employees","content":"216AAA  Terms of variation must be explained to employees\n\n (1) Before an employer requests under subsection 216A(2) that affected employees approve a proposed variation, the employer must take all reasonable steps to ensure that:\n\n (a) the terms of the agreement as proposed to be varied, and the effect of those terms, are explained to the affected employees; and\n\n (b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of those employees.\n\n (2) Without limiting paragraph (1)(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:\n\n (a) employees from culturally and linguistically diverse backgrounds;\n\n (b) young employees;\n\n (c) employees who did not have a representative for the variation.","sortOrder":470},{"sectionNumber":"216AA","sectionType":"section","heading":"Application for the FWC’s approval of a variation of a supported bargaining agreement to add employer and employees","content":"216AA  Application for the FWC’s approval of a variation of a supported bargaining agreement to add employer and employees\n\nApplication for approval\n\n (1) If a variation of a supported bargaining agreement is made as mentioned in section 216A, the employer to be covered by the agreement must apply to the FWC for approval of the variation.\n\nMaterial to accompany the application\n\n (2) The application must be accompanied by:\n\n (a) a signed copy of the variation; and\n\n (b) a copy of the agreement as proposed to be varied; and\n\n (c) any declarations that are required by the procedural rules to accompany the application.\n\nWhen the application must be made\n\n (3) The application must be made:\n\n (a) within 14 days after the variation is made; or\n\n (b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.\n\nSignature requirements\n\n (4) The regulations may, for the purposes of this Subdivision, prescribe requirements relating to the signing of variations.\n\n216AB  When the FWC must approve a variation of a supported bargaining agreement to add employer and employees\n\n (1) If an application for the approval of a variation of a supported bargaining agreement is made under section 216AA, the FWC must approve the variation if the FWC is satisfied that:\n\n (a) if the application that was made under section 242 for the supported bargaining authorisation in relation to the agreement had specified the affected employees and their employer, the FWC would have been required to make the authorisation in accordance with section 216AC; and\n\n (b) the affected employees have voted on whether to approve the variation and, of those who cast a valid vote, a majority approved the variation; and\n\n (c) the variation has been genuinely agreed to by the affected employees in accordance with section 216AD;\n\nunless the FWC is satisfied that there are serious public interest grounds for not approving the variation.\n\n (2) Despite subsection (1), the FWC must not approve the variation if, as a result of the variation, the agreement would cover employees in relation to general building and construction work.\n\n (3) Despite subsection (1), the FWC must not approve the variation if the employer that will be covered by the agreement is specified in a single interest employer authorisation in relation to any of the affected employees.\n\n216AC  Determining whether the FWC would have been required to make a supported bargaining authorisation\n\n  For the purposes of paragraph 216AB(1)(a), the FWC is to determine whether it is satisfied that it would have been required to make the supported bargaining authorisation in accordance with sections 243 and 243A, modified as follows:\n\n (a) as if paragraph 243(1)(a), subparagraph 243(1)(b)(iii) and paragraphs 243(1)(c) and (2A)(a) were omitted;\n\n (b) as if references to the employers included the employer who made the application under section 216AA for approval of the variation;\n\n (c) as if references to employees who will be covered by the agreement, or an employee, were references to the affected employees or an affected employee;\n\n (d) as if all of the words in paragraph 243(2A)(b) were replaced with the words “the affected employees are, at the time the application for approval of the variation is being considered, employees in an industry, occupation or sector declared by the Minister under subsection (2B)”.\n\n216AD  Determining whether a variation of a supported bargaining agreement to add employer and employees has been genuinely agreed to by affected employees\n\n (1) For the purposes of paragraph 216AB(1)(c), the FWC is to determine whether it is satisfied that the variation has been genuinely agreed to by the affected employees in accordance with section 188, modified as follows:\n\n (a) as if references (other than in a note) to an enterprise agreement being genuinely agreed to were references to the variation being genuinely agreed to;\n\n (b) as if references to employees covered by or expressed to be covered by the agreement, employees requested to approve the agreement by voting for it, or employees, were references to the affected employees;\n\n (c) as if, in paragraph 188(2)(a), the reference to the agreement were a reference to the agreement as proposed to be varied;\n\n (d) as if subsections 188(2A), (3) and (4) were omitted;\n\n (e) as if, in subsections 188(4A) and (5), references to subsection 180(5) were references to section 216AAA;\n\n (f) as if, in paragraph 188(5)(c), the reference to subsection 182(1) or (2) were a reference to subsection 216A(4).\n\n (2) In taking into account the statement of principles made under section 188B:\n\n (a) the FWC may disregard the matters mentioned in paragraphs 188B(3)(a) and (b); and\n\n (b) the matters mentioned in paragraphs 188B(3)(c) and (d) are taken to be matters relating to the agreement as proposed to be varied; and\n\n (c) the matters mentioned in paragraphs 188B(3)(e) are taken to be matters relating to the variation.\n\n (3) The regulations may provide that, for the purposes of the FWC deciding whether it is satisfied that the variation has been genuinely agreed to, specified provisions of this Part, or regulations made for the purposes of this Part, have effect with such modifications as are prescribed by the regulations.","sortOrder":471},{"sectionNumber":"216AB","sectionType":"section","heading":"When the FWC must approve a variation of a supported bargaining agreement to add employer and employees","content":"216AB  When the FWC must approve a variation of a supported bargaining agreement to add employer and employees","sortOrder":472},{"sectionNumber":"216AC","sectionType":"section","heading":"Determining whether the FWC would have been required to make a supported bargaining authorisation","content":"216AC  Determining whether the FWC would have been required to make a supported bargaining authorisation","sortOrder":473},{"sectionNumber":"216AD","sectionType":"section","heading":"Determining whether a variation of a supported bargaining agreement to add employer and employees has been genuinely agreed to by affected employees","content":"216AD  Determining whether a variation of a supported bargaining agreement to add employer and employees has been genuinely agreed to by affected employees","sortOrder":474},{"sectionNumber":"216AE","sectionType":"section","heading":"When the FWC may refuse to approve a variation of a supported bargaining agreement to add employer and employees","content":"216AE  When the FWC may refuse to approve a variation of a supported bargaining agreement to add employer and employees\n\n (1) If an application for the approval of a variation of a supported bargaining agreement is made under section 216AA, the FWC may refuse to approve the variation if the FWC considers that compliance with the terms of the agreement as proposed to be varied may result in:\n\n (a) a person committing an offence against a law of the Commonwealth; or\n\n (b) a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth.\n\n (2) Subsection (1) has effect despite section 216AB (which deals with the approval of variations of supported bargaining agreements).\n\n (3) If the FWC refuses to approve a variation of a supported bargaining agreement under this section, the FWC may refer the agreement as proposed to be varied to any person or body the FWC considers appropriate.","sortOrder":475},{"sectionNumber":"216AF","sectionType":"section","heading":"When variation comes into operation","content":"216AF  When variation comes into operation\n\n  If a variation of a supported bargaining agreement is approved under section 216AB, the variation operates from the day specified in the decision to approve the variation.","sortOrder":476},{"sectionNumber":"Subdivision AB","sectionType":"subdivision","heading":"Variation of supported bargaining agreement to add employer and employees (without consent)","content":"Subdivision AB—Variation of supported bargaining agreement to add employer and employees (without consent)","sortOrder":477},{"sectionNumber":"216B","sectionType":"section","heading":"Application for the FWC to vary a supported bargaining agreement to add employer and employees","content":"216B  Application for the FWC to vary a supported bargaining agreement to add employer and employees\n\nApplication for variation\n\n (1) An employee organisation that is covered by a supported bargaining agreement may apply to the FWC for a variation of the agreement that has the effect that an employer that was not covered by the agreement will be covered by it.\n\nNote: Once the employer is covered by the agreement, any of their employees who the agreement is expressed to cover will also be covered by it. See also the definition of affected employees in section 12.\n\nMaterial to accompany the application\n\n (2) The application must be accompanied by:\n\n (a) a signed copy of the variation proposed by the employee organisation; and\n\n (b) a copy of the agreement as proposed to be varied; and\n\n (c) any declarations that are required by the procedural rules to accompany the application.\n\nSignature requirements\n\n (3) The regulations may, for the purposes of this Subdivision, prescribe requirements relating to the signing of variations.","sortOrder":478},{"sectionNumber":"216BA","sectionType":"section","heading":"When the FWC must make a variation of a supported bargaining agreement to add employer and employees","content":"216BA  When the FWC must make a variation of a supported bargaining agreement to add employer and employees\n\n (1) If an application for the FWC to vary a supported bargaining agreement is made under section 216B, the FWC must make the variation if the FWC is satisfied that:\n\n (a) a majority of the employees:\n\n (i) who are employed by the employer at a time determined by the FWC; and\n\n (ii) who will be covered by the agreement as proposed to be varied;\n\n  want to be covered by the agreement; and\n\n (b) it is appropriate for the employees to be covered by the agreement.\n\n (2) In determining whether it is satisfied that it is appropriate for the employees to be covered by the agreement:\n\n (a) the FWC must take into account the views of:\n\n (i) each employee organisation covered by the agreement; and\n\n (ii) the employer that will be covered by the agreement if the variation is made; and\n\n (b) the FWC may have regard to the matters referred to in section 243 (when the FWC must make a supported bargaining authorisation).\n\n (3) Despite subsection (1), the FWC must not make the variation if:\n\n (a) as a result of the variation, the agreement would cover employees in relation to general building and construction work; or\n\n (b) the affected employees are covered by an enterprise agreement that has not passed its nominal expiry date.\n\n (4) Despite subsection (1), the FWC must not make the variation if the employer that will be covered by the agreement is specified in a single interest employer authorisation in relation to any of the affected employees.","sortOrder":479},{"sectionNumber":"216BB","sectionType":"section","heading":"When the FWC may refuse to make a variation of a supported bargaining agreement to add employer and employees","content":"216BB  When the FWC may refuse to make a variation of a supported bargaining agreement to add employer and employees\n\n (1) If an application for the variation of a supported bargaining agreement is made under section 216B, the FWC may refuse to make the variation if the FWC considers that compliance with the terms of the agreement as proposed to be varied may result in:\n\n (a) a person committing an offence against a law of the Commonwealth; or\n\n (b) a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth.\n\n (2) Subsection (1) has effect despite section 216BA (which deals with making variations of supported bargaining agreements without consent).\n\n (3) If the FWC refuses to make a variation of a supported bargaining agreement under this section, the FWC may refer the agreement as proposed to be varied to any person or body the FWC considers appropriate.","sortOrder":480},{"sectionNumber":"216BC","sectionType":"section","heading":"When variation comes into operation","content":"216BC  When variation comes into operation\n\n  If a variation of a supported bargaining agreement is made under section 216BA, the variation operates from the day specified in the decision to make the variation.\n\nSubdivision AC—Variation of cooperative workplace agreement to add employer and employees\n\n216C  Variation of cooperative workplace agreement to add employer and employees\n\n (1) A variation of a cooperative workplace agreement, that has the effect that an employer that was not covered by the agreement will be covered by it, may be made jointly by the employer and the affected employees.\n\nNote: Once the employer is covered by the agreement, any of their employees who the agreement is expressed to cover will also be covered by it. See also the definition of affected employees in section 12.\n\n (2) The employer may request the affected employees to approve the proposed variation by voting for it.\n\n (3) Without limiting subsection (3), the employer may request that the affected employees vote by ballot or by an electronic method.\n\n (4) The variation is made when a majority of the affected employees who cast a valid vote approve the variation.\n\n (5) The variation has no effect unless it is approved by the FWC under section 216CB.","sortOrder":481},{"sectionNumber":"Subdivision AC","sectionType":"subdivision","heading":"Variation of cooperative workplace agreement to add employer and employees","content":"Subdivision AC—Variation of cooperative workplace agreement to add employer and employees","sortOrder":482},{"sectionNumber":"216C","sectionType":"section","heading":"Variation of cooperative workplace agreement to add employer and employees","content":"216C  Variation of cooperative workplace agreement to add employer and employees","sortOrder":483},{"sectionNumber":"216CAA","sectionType":"section","heading":"Terms of the variation must be explained to employees","content":"216CAA  Terms of the variation must be explained to employees\n\n (1) Before an employer requests under subsection 216C(2) that affected employees approve a proposed variation, the employer must take all reasonable steps to ensure that:\n\n (a) the terms of the agreement as proposed to be varied, and the effect of those terms, are explained to the affected employees; and\n\n (b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of those employees.\n\n (2) Without limiting paragraph (1)(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:\n\n (a) employees from culturally and linguistically diverse backgrounds;\n\n (b) young employees;\n\n (c) employees who did not have a representative for the variation.\n\n216CA  Application for the FWC’s approval of a variation of a cooperative workplace agreement to add employer and employees\n\nApplication for approval\n\n (1) If a variation of a cooperative workplace agreement is made as mentioned in section 216C, the employer must apply to the FWC for approval of the variation.\n\nMaterial to accompany the application\n\n (2) The application must be accompanied by:\n\n (a) a signed copy of the variation; and\n\n (b) a copy of the agreement as proposed to be varied; and\n\n (c) any declarations that are required by the procedural rules to accompany the application.\n\nWhen the application must be made\n\n (3) The application must be made:\n\n (a) within 14 days after the variation is made; or\n\n (b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.\n\nSignature requirements\n\n (4) The regulations may, for the purposes of this Subdivision, prescribe requirements relating to the signing of variations.\n\n216CB  When the FWC must approve a variation of a cooperative workplace agreement to add employer and employees\n\n (1) If an application for the approval of a variation of a cooperative workplace agreement is made under section 216CA, the FWC must approve the variation if the FWC is satisfied that:\n\n (a) the employers, and any employee organisations, covered by the agreement before the variation was made have had an opportunity to express to the FWC their views (if any) on the variation; and\n\n (b) the affected employees have voted on whether to approve the variation and, of those who cast a valid vote, a majority approved the variation; and\n\n (c) the variation has been genuinely agreed to by the affected employees in accordance with section 216CC; and\n\n (d) it is not contrary to the public interest for the employer and the affected employees to be covered by the agreement.\n\n (2) Despite subsection (1), the FWC must not approve the variation if:\n\n (a) the agreement is a greenfields agreement that covers employees in relation to general building and construction work; or\n\n (b) as a result of the variation, the agreement would cover employees in relation to general building and construction work.\n\n (3) Despite subsection (1), the FWC must not approve the variation if the employer that will be covered by the agreement is specified in a supported bargaining authorisation, or a single interest employer authorisation, in relation to any of the affected employees.\n\n216CC  Determining whether a variation of a cooperative workplace agreement to add employer and employees has been genuinely agreed to by affected employees\n\n (1) For the purposes of paragraph 216CB(1)(c), the FWC is to determine whether it is satisfied that the variation has been genuinely agreed to by the affected employees in accordance with section 188, modified as follows:\n\n (a) as if references (other than in a note) to an enterprise agreement being genuinely agreed to were references to the variation being genuinely agreed to;\n\n (b) as if references to employees covered by or expressed to be covered by the agreement, employees requested to approve the agreement by voting for it, or employees, were references to the affected employees;\n\n (c) as if, in paragraph 188(2)(a), the reference to the agreement were a reference to the agreement as proposed to be varied;\n\n (d) as if subsections 188(2A), (3) and (4) were omitted;\n\n (e) as if, in subsections 188(4A) and (5), references to subsection 180(5) were references to section 216CAA;\n\n (f) as if, in paragraph 188(5)(c), the reference to subsection 182(1) or (2) were a reference to subsection 216C(4).\n\n (2) In taking into account the statement of principles made under section 188B:\n\n (a) the FWC may disregard the matters mentioned in paragraphs 188B(3)(a) and (b); and\n\n (b) the matters mentioned in paragraphs 188B(3)(c) and (d) are taken to be matters relating to the agreement as proposed to be varied; and\n\n (c) the matters mentioned in paragraph 188B(3)(e) are taken to be matters relating to the variation.\n\n (3) The regulations may provide that, for the purposes of the FWC determining whether it is satisfied that the variation has been genuinely agreed to by the affected employees, specified provisions of this Part, or regulations made for the purposes of this Part, have effect with such modifications as are prescribed by the regulations.\n\n216CD  When the FWC may refuse to approve a variation of a cooperative workplace agreement\n\n (1) If an application for the approval of a variation of a cooperative workplace agreement is made under section 216CA, the FWC may refuse to approve the variation if the FWC considers that compliance with the terms of the agreement as proposed to be varied may result in:\n\n (a) a person committing an offence against a law of the Commonwealth; or\n\n (b) a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth.\n\n (2) Subsection (1) has effect despite section 216CB (which deals with the approval of variations of cooperative workplace agreements).\n\n (3) If the FWC refuses to approve a variation of a cooperative workplace agreement under this section, the FWC may refer the agreement as proposed to be varied to any person or body the FWC considers appropriate.\n\n216CE  When variation comes into operation\n\n  If a variation of a cooperative workplace agreement is approved under section 216CB, the variation operates from the day specified in the decision to approve the variation.","sortOrder":484},{"sectionNumber":"216CA","sectionType":"section","heading":"Application for the FWC’s approval of a variation of a cooperative workplace agreement to add employer and employees","content":"216CA  Application for the FWC’s approval of a variation of a cooperative workplace agreement to add employer and employees","sortOrder":485},{"sectionNumber":"216CB","sectionType":"section","heading":"When the FWC must approve a variation of a cooperative workplace agreement to add employer and employees","content":"216CB  When the FWC must approve a variation of a cooperative workplace agreement to add employer and employees","sortOrder":486},{"sectionNumber":"216CC","sectionType":"section","heading":"Determining whether a variation of a cooperative workplace agreement to add employer and employees has been genuinely agreed to by affected employees","content":"216CC  Determining whether a variation of a cooperative workplace agreement to add employer and employees has been genuinely agreed to by affected employees","sortOrder":487},{"sectionNumber":"216CD","sectionType":"section","heading":"When the FWC may refuse to approve a variation of a cooperative workplace agreement","content":"216CD  When the FWC may refuse to approve a variation of a cooperative workplace agreement","sortOrder":488},{"sectionNumber":"216CE","sectionType":"section","heading":"When variation comes into operation","content":"216CE  When variation comes into operation","sortOrder":489},{"sectionNumber":"Subdivision AD","sectionType":"subdivision","heading":"Variation of single interest employer agreement to add employer and employees","content":"Subdivision AD—Variation of single interest employer agreement to add employer and employees","sortOrder":490},{"sectionNumber":"216D","sectionType":"section","heading":"Variation of single interest employer agreement to add employer and employees—joint variation","content":"216D  Variation of single interest employer agreement to add employer and employees—joint variation\n\nVariation by employers and employees\n\n (1) The following may jointly make a variation of a single interest employer agreement that will have the effect that they will be covered by the agreement:\n\n (a) an employer that is not covered by the agreement;\n\n (b) the employees employed by the employer at the time who will be covered by the agreement if the variation is approved by the FWC (the affected employees).\n\nVariation has no effect unless approved by the FWC\n\n (2) The variation has no effect unless it is approved by the FWC under section 216DC.\n\nApproval by employee vote\n\n (3) The employer may request the affected employees to approve the proposed variation by voting for it.\n\n (4) Without limiting subsection (3), the employer may request that the affected employees vote by ballot or by an electronic method.\n\nWhen a variation is made\n\n (5) A variation under this section is made when a majority of the affected employees who cast a valid vote approve the variation.","sortOrder":491},{"sectionNumber":"216DAA","sectionType":"section","heading":"Terms of variation must be explained to employees","content":"216DAA  Terms of variation must be explained to employees\n\n (1) Before an employer requests under subsection 216D(3) that affected employees approve a proposed variation, the employer must take all reasonable steps to ensure that:\n\n (a) the terms of the agreement as proposed to be varied, and the effect of those terms, are explained to the affected employees; and\n\n (b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of those employees.\n\n (2) Without limiting paragraph (1)(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:\n\n (a) employees from culturally and linguistically diverse backgrounds;\n\n (b) young employees;\n\n (c) employees who did not have a representative for the variation.","sortOrder":492},{"sectionNumber":"216DA","sectionType":"section","heading":"Application for the FWC’s approval of a variation of a single interest employer agreement to add employer and employees—joint variation","content":"216DA  Application for the FWC’s approval of a variation of a single interest employer agreement to add employer and employees—joint variation\n\nApplication for approval\n\n (1) If a variation of a single interest employer agreement is made under section 216D, the employer to be covered by the agreement must apply to the FWC for approval of the variation.\n\nMaterial to accompany the application\n\n (2) The application must be accompanied by:\n\n (a) a signed copy of the variation; and\n\n (b) a copy of the agreement as proposed to be varied; and\n\n (c) any declarations that are required by the procedural rules to accompany the application.\n\nWhen the application must be made\n\n (3) The application must be made:\n\n (a) within 14 days after the variation is made; or\n\n (b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.\n\nSignature requirements\n\n (4) The regulations may prescribe requirements relating to the signing of variations of single interest employer agreements made under section 216D.","sortOrder":493},{"sectionNumber":"216DB","sectionType":"section","heading":"Application for the FWC’s approval of a variation of a single interest employer agreement to add employer and employees—application by employee organisation","content":"216DB  Application for the FWC’s approval of a variation of a single interest employer agreement to add employer and employees—application by employee organisation\n\nApplication for approval\n\n (1) An employee organisation that is covered by a single interest employer agreement may apply to the FWC for the approval of a variation of the agreement that will have the effect that the following will be covered by the agreement:\n\n (a) an employer that is not covered by the agreement;\n\n (b) the employees employed by the employer at the time who will be covered by the agreement if the variation is approved by the FWC (the affected employees).\n\nMaterial to accompany the application\n\n (2) The application must be accompanied by:\n\n (a) a signed copy of the variation for which approval is sought; and\n\n (b) a copy of the agreement as proposed to be varied; and\n\n (c) any declarations that are required by the procedural rules to accompany the application.\n\nSignature requirements\n\n (3) The regulations may prescribe requirements relating to the signing of variations of single interest employer agreements for which approval is sought under this section.","sortOrder":494},{"sectionNumber":"216DC","sectionType":"section","heading":"When the FWC must approve a variation of a single interest employer agreement to add employer and employees","content":"216DC  When the FWC must approve a variation of a single interest employer agreement to add employer and employees\n\nApproval of variation by the FWC\n\n (1) The FWC must approve a variation of a single interest employer agreement if:\n\n (a) an application for approval of the variation has been made under section 216DA or 216DB; and\n\n (b) the FWC is satisfied that:\n\n (i) the employers and any employee organisations covered by the agreement have had an opportunity to express to the FWC their views (if any) on the application; and\n\n (ii) if the application was made by an employer under section 216DA—the variation has been genuinely agreed to by the affected employees in accordance with section 216DD; and\n\n (iii) if the application was made by an employee organisation under section 216DB—the requirements of subsection (1A) are met; and\n\n (iv) the requirements of either subsection (2) or (3) (which deal with franchisees and common interest employers) are met; and\n\n (v) if the requirements of subsection (3) are met—the operations and business activities of the employer are reasonably comparable with those of the other employers who are covered by the agreement.\n\n (1AA) If:\n\n (a) the application for approval of the variation was made by an employee organisation under section 216DB; and\n\n (b) the employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;\n\nit is presumed for the purposes of subparagraph (1)(b)(v) that the operations and business activities of the employer are reasonably comparable with those of the other employers that are covered by the agreement, unless the contrary is proved.\n\nAdditional requirements for application by employee organisation\n\n (1A) The requirements of this subsection are met if:\n\n (a) the employer that will be covered by the agreement employed at least 20 employees at the time that the application for approval of the variation was made; and\n\n (b) a majority of the affected employees want to be covered by the agreement; and\n\n (c) subsection (1C) does not apply to the employer.\n\n (1B) For the purposes of paragraph (1A)(b), the FWC may work out whether a majority of the affected employees want to be covered by the agreement using any method the FWC considers appropriate.\n\n (1C) This subsection applies to an employer if:\n\n (a) the employer and the affected employees are covered by another enterprise agreement that has not passed its nominal expiry date at the time that the FWC will approve the variation; or\n\n (b) the employer and an employee organisation that is entitled to represent the industrial interests of one or more of the affected employees have agreed in writing to bargain for a proposed single‑enterprise agreement that would cover the employer and the affected employees or substantially the same group of the affected employees.\n\nFranchisees\n\n (2) The requirements of this subsection are met if the employers covered by the agreement and the employer that will be covered by the agreement carry on similar business activities under the same franchise and are:\n\n (a) franchisees of the same franchisor; or\n\n (b) related bodies corporate of the same franchisor; or\n\n (c) any combination of the above.\n\nCommon interest employers\n\n (3) The requirements of this subsection are met if it is appropriate to approve the variation, having regard to:\n\n (a) whether the employers covered by the agreement and the employer that will be covered by the agreement have clearly identifiable common interests; and\n\n (b) whether it would be contrary to the public interest to approve the variation.\n\n (3A) For the purposes of paragraph (3)(a), matters that may be relevant to determining whether the employers have a common interest include the following:\n\n (a) geographical location;\n\n (b) regulatory regime;\n\n (c) the nature of the enterprises to which the agreement relates, and the terms and conditions of employment in those enterprises.\n\n (3AB) If:\n\n (a) the application for approval of the variation was made by an employee organisation under section 216DB; and\n\n (b) the employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;\n\nit is presumed that the requirements of subsection (3) are met, unless the contrary is proved.\n\nCalculating number of employees\n\n (3AC) For the purposes of calculating the number of employees referred to in paragraph (1AA)(b), (1A)(a) or (3AB)(b):\n\n (a) employee has its ordinary meaning; and\n\n (b) subject to paragraph (c), all employees employed by the employer at the time that the application was made are to be counted; and\n\n (c) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer; and\n\n (d) associated entities of the employer are taken to be one entity.\n\nEmployers and employees that are already bargaining\n\n (3B) Despite subsection (1), the FWC may refuse to approve the variation if the FWC is satisfied that:\n\n (a) the employer is bargaining in good faith for a proposed enterprise agreement that will cover the employer and the affected employees, or substantially the same group of the affected employees; and\n\n (b) the employer and the affected employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the employer and the affected employees, or substantially the same group of the affected employees; and\n\n (c) on the day that the FWC will approve the variation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b).\n\nGeneral building and construction work\n\n (4) Despite subsection (1), the FWC must not approve the variation if:\n\n (a) the agreement is a greenfields agreement that covers employees in relation to general building and construction work; or\n\n (b) as a result of the variation, the agreement would cover employees in relation to general building and construction work.\n\nSupported bargaining authorisation\n\n (5) Despite subsection (1), the FWC must not approve the variation if the employer that will be covered by the agreement is specified in a supported bargaining authorisation in relation to any of the affected employees.\n\n216DD  Determining whether a variation of a single interest employer agreement to add employer and employees has been genuinely agreed to by affected employees\n\n (1) For the purposes of subparagraph 216DC(1)(b)(ii), the FWC is to determine whether it is satisfied that the variation has been genuinely agreed to by the affected employees in accordance with section 188, modified as follows:\n\n (a) as if references (other than in a note) to an enterprise agreement being genuinely agreed to were references to the variation being genuinely agreed to;\n\n (b) as if references to employees covered by or expressed to be covered by the agreement, employees requested to approve the agreement by voting for it, or employees, were references to the affected employees;\n\n (c) as if, in paragraph 188(2)(a), the reference to the agreement were a reference to the agreement as proposed to be varied;\n\n (d) as if subsections 188(2A), (3) and (4) were omitted;\n\n (e) as if, in subsections 188(4A) and (5), references to subsection 180(5) were references to section 216DAA;\n\n (f) as if, in paragraph 188(5)(c), the reference to subsection 182(1) or (2) were a reference to subsection 216D(5).\n\n (2) In taking into account the statement of principles made under section 188B:\n\n (a) the FWC may disregard the matters mentioned in paragraphs 188B(3)(a) and (b); and\n\n (b) the matters mentioned in paragraphs 188B(3)(c) and (d) are taken to be matters relating to the agreement as proposed to be varied; and\n\n (c) the matters mentioned in paragraphs 188B(3)(e) are taken to be matters relating to the variation.\n\n (3) The regulations may provide that, for the purposes of the FWC determining whether it is satisfied that the variation has been genuinely agreed to by the affected employees for the purposes of subparagraph 216DC(1)(b)(ii), specified provisions of this Part, or regulations made for the purposes of this Part, have effect with such modifications as are prescribed by the regulations.","sortOrder":495},{"sectionNumber":"216DD","sectionType":"section","heading":"Determining whether a variation of a single interest employer agreement to add employer and employees has been genuinely agreed to by affected employees","content":"216DD  Determining whether a variation of a single interest employer agreement to add employer and employees has been genuinely agreed to by affected employees","sortOrder":496},{"sectionNumber":"216DE","sectionType":"section","heading":"When the FWC may refuse to approve a variation of a single interest employer agreement","content":"216DE  When the FWC may refuse to approve a variation of a single interest employer agreement\n\n (1) If an application for the approval of a variation of a single interest employer agreement is made under section 216DA or 216DB, the FWC may refuse to approve the variation if the FWC considers that compliance with the terms of the agreement as proposed to be varied may result in:\n\n (a) a person committing an offence against a law of the Commonwealth; or\n\n (b) a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth.\n\n (2) Subsection (1) has effect despite section 216DC (which deals with the approval of variations of single interest employer agreements).\n\n (3) If the FWC refuses to approve a variation of a single interest employer agreement under this section, the FWC may refer the agreement as proposed to be varied to any person or body the FWC considers appropriate.","sortOrder":497},{"sectionNumber":"216DF","sectionType":"section","heading":"When variation comes into operation","content":"216DF  When variation comes into operation\n\n  If a variation of a single interest employer agreement is approved under section 216DC, the variation operates from the day specified in the decision to approve the variation.","sortOrder":498},{"sectionNumber":"Subdivision AE","sectionType":"subdivision","heading":"Variation of multi-enterprise agreement to remove employer and employees","content":"Subdivision AE—Variation of multi‑enterprise agreement to remove employer and employees","sortOrder":499},{"sectionNumber":"216E","sectionType":"section","heading":"Variation of multi-enterprise agreement to remove employer and employees with consent","content":"216E  Variation of multi‑enterprise agreement to remove employer and employees with consent\n\nVariation by employers and employees\n\n (1) The following may jointly make a variation of a multi‑enterprise agreement covered by subsection (2), that will have the effect that they will cease to be covered by the agreement:\n\n (a) an employer that is covered by the agreement;\n\n (b) the employees employed at the time who will cease to be covered by the agreement if the variation is approved by the FWC (the affected employees).\n\n (2) This subsection covers a multi‑enterprise agreement made after the commencement of this subsection if the agreement is not a greenfields agreement and there are 2 or more employers covered by the agreement.\n\nVariation has no effect unless approved by the FWC\n\n (3) The variation has no effect unless it is approved by the FWC under section 216EB.\n\nApproval by employee vote\n\n (4) The employer may request the affected employees to approve the proposed variation by voting for it.\n\n (5) Before making the request, the employer must:\n\n (a) take all reasonable steps to notify the employees of the following:\n\n (i) the time and place at which the vote will occur;\n\n (ii) the voting method that will be used; and\n\n (b) give the employees a reasonable opportunity to decide whether they want to approve the proposed variation.\n\n (6) Without limiting subsection (4), the employer may request that the affected employees vote by ballot or by an electronic method.\n\nWhen a variation is made\n\n (7) The variation is made when a majority of the affected employees who cast a valid vote approve the variation.","sortOrder":500},{"sectionNumber":"216EA","sectionType":"section","heading":"Application for the FWC’s approval of variation","content":"216EA  Application for the FWC’s approval of variation\n\nApplication for approval\n\n (1) If a variation of a multi‑enterprise agreement is made as mentioned in section 216E, one of the following must apply to the FWC for approval of the variation:\n\n (a) the employer mentioned in paragraph 216E(1)(a);\n\n (b) an affected employee;\n\n (c) an employee organisation covered by the agreement that is entitled to represent the industrial interests of an affected employee.\n\nMaterial to accompany the application\n\n (2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.\n\nWhen the application must be made\n\n (3) The application must be made:\n\n (a) within 14 days after the variation is made; or\n\n (b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.\n\nSignature requirements\n\n (4) The regulations may prescribe requirements relating to the signing of variations of enterprise agreements.","sortOrder":501},{"sectionNumber":"216EB","sectionType":"section","heading":"When the FWC must approve variation of multi-enterprise agreement to remove employer and employees","content":"216EB  When the FWC must approve variation of multi‑enterprise agreement to remove employer and employees\n\n  If an application for the approval of a variation of a multi‑enterprise agreement is made under section 216EA, the FWC must approve the variation if the FWC is satisfied that:\n\n (a) the employer mentioned in paragraph 216E(1)(a) complied with subsection 216E(5) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the variation; and\n\n (b) the affected employees have voted, by ballot or by an electronic method, on whether to approve the variation and, of those who cast a valid vote, a majority approved the variation; and\n\n (c) there are no other reasonable grounds for believing that a majority of the affected employees who cast a valid vote did not approve the variation; and\n\n (d) each employee organisation covered by the agreement, that is entitled to represent the industrial interests of one or more affected employees, agrees to the variation.","sortOrder":502},{"sectionNumber":"216EC","sectionType":"section","heading":"When variation comes into operation","content":"216EC  When variation comes into operation\n\n  If a variation of a multi‑enterprise agreement is approved under section 216EB, the variation operates from the day specified in the decision to approve the variation.","sortOrder":503},{"sectionNumber":"216ED","sectionType":"section","heading":"Effect of variation","content":"216ED  Effect of variation\n\n  A multi‑enterprise agreement that is varied under this Subdivision remains a multi‑enterprise agreement, despite the variation.","sortOrder":504},{"sectionNumber":"217","sectionType":"section","heading":"Variation of an enterprise agreement to remove an ambiguity or uncertainty","content":"217  Variation of an enterprise agreement to remove an ambiguity or uncertainty\n\n (1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:\n\n (a) one or more of the employers covered by the agreement;\n\n (b) an employee covered by the agreement;\n\n (c) an employee organisation covered by the agreement.\n\n (2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.","sortOrder":506},{"sectionNumber":"217A","sectionType":"section","heading":"FWC may deal with certain disputes about variations","content":"217A  FWC may deal with certain disputes about variations\n\n (1) This section applies if a variation of an enterprise agreement is proposed.\n\n (2) An employer or employee organisation covered by the enterprise agreement or an affected employee for the variation may apply to the FWC for the FWC to deal with a dispute about the proposed variation if the employer and the affected employees are unable to resolve the dispute.\n\n (3) The FWC must not arbitrate (however described) the dispute.","sortOrder":507},{"sectionNumber":"218","sectionType":"section","heading":"Variation of an enterprise agreement on referral by Australian Human Rights Commission","content":"218  Variation of an enterprise agreement on referral by Australian Human Rights Commission\n\nReview of an enterprise agreement\n\n (1) The FWC 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).\n\n (2) The following are entitled to make submissions to the FWC for consideration in the review:\n\n (a) if the referral relates to action that would be unlawful under Part 4 of the Age Discrimination Act 2004—the Age Discrimination Commissioner;\n\n (b) if the referral relates to action that would be unlawful under Part 2 of the Disability Discrimination Act 1992—the Disability Discrimination Commissioner;\n\n (c) if the referral relates to action that would be unlawful under Part II of the Sex Discrimination Act 1984—the Sex Discrimination Commissioner.\n\nVariation of an enterprise agreement\n\n (3) If the FWC 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), the FWC must vary the agreement so that it no longer requires the person to do an act that would be so unlawful.\n\n (4) If the agreement is varied under subsection (3), the variation operates from the day specified in the decision to vary the agreement.","sortOrder":508},{"sectionNumber":"Subdivision BA","sectionType":"subdivision","heading":"Variation of enterprise agreements to correct or amend errors, defects or irregularities","content":"Subdivision BA—Variation of enterprise agreements to correct or amend errors, defects or irregularities","sortOrder":509},{"sectionNumber":"218A","sectionType":"section","heading":"Variation of enterprise agreements to correct or amend errors, defects or irregularities","content":"218A  Variation of enterprise agreements to correct or amend errors, defects or irregularities\n\n (1) The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).\n\n (2) The FWC may vary an enterprise agreement under subsection (1):\n\n (a) on its own initiative; or\n\n (b) on application by any of the following:\n\n (i) one or more of the employers covered by the agreement;\n\n (ii) an employee covered by the agreement;\n\n (iii) an employee organisation covered by the agreement.\n\n (3) If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.","sortOrder":510},{"sectionNumber":"219","sectionType":"section","heading":"Employers and employees may agree to terminate an enterprise agreement","content":"219  Employers and employees may agree to terminate an enterprise agreement\n\nTermination by employers and employees\n\n (1) The following may jointly agree to terminate an enterprise agreement:\n\n (a) if the agreement covers a single employer—the employer and the employees covered by the agreement; or\n\n (b) if the agreement covers 2 or more employers—all of the employers and the employees covered by the agreement.\n\nNote: For when a termination of an enterprise agreement is agreed to, see section 221.\n\nTermination has no effect unless approved by the FWC\n\n (2) A termination of an enterprise agreement has no effect unless it is approved by the FWC under section 223.\n\nLimitation—greenfields agreement\n\n (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.","sortOrder":512},{"sectionNumber":"220","sectionType":"section","heading":"Employers may request employees to approve a proposed termination of an enterprise agreement","content":"220  Employers may request employees to approve a proposed termination of an enterprise agreement\n\n (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.\n\n (2) Before making the request, the employer must:\n\n (a) take all reasonable steps to notify the employees of the following:\n\n (i) the time and place at which the vote will occur;\n\n (ii) the voting method that will be used; and\n\n (b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.\n\n (3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.","sortOrder":513},{"sectionNumber":"221","sectionType":"section","heading":"When termination of an enterprise agreement is agreed to","content":"221  When termination of an enterprise agreement is agreed to\n\nSingle‑enterprise agreement\n\n (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.\n\nMulti‑enterprise agreement\n\n (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.","sortOrder":514},{"sectionNumber":"222","sectionType":"section","heading":"Application for the FWC’s approval of a termination of an enterprise agreement","content":"222  Application for the FWC’s approval of a termination of an enterprise agreement\n\nApplication for approval\n\n (1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.\n\nMaterial to accompany the application\n\n (2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.\n\nWhen the application must be made\n\n (3) The application must be made:\n\n (a) within 14 days after the termination is agreed to; or\n\n (b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.","sortOrder":515},{"sectionNumber":"223","sectionType":"section","heading":"When the FWC must approve a termination of an enterprise agreement","content":"223  When the FWC must approve a termination of an enterprise agreement\n\n  If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:\n\n (a) the FWC 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\n\n (b) the FWC 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\n\n (c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and\n\n (d) the FWC 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.","sortOrder":516},{"sectionNumber":"224","sectionType":"section","heading":"When termination comes into operation","content":"224  When termination comes into operation\n\n  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.","sortOrder":517},{"sectionNumber":"225","sectionType":"section","heading":"Application for termination of an enterprise agreement after its nominal expiry date","content":"225  Application for termination of an enterprise agreement after its nominal expiry date\n\n  If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:\n\n (a) one or more of the employers covered by the agreement;\n\n (b) an employee covered by the agreement;\n\n (c) an employee organisation covered by the agreement.","sortOrder":519},{"sectionNumber":"226","sectionType":"section","heading":"Terminating an enterprise agreement after its nominal expiry date","content":"226  Terminating an enterprise agreement after its nominal expiry date\n\n (1) If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:\n\n (a) the FWC is satisfied that the continued operation of the agreement would be unfair for the employees covered by the agreement; or\n\n (b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or\n\n (c) all of the following apply:\n\n (i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;\n\n (ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;\n\n (iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.\n\n (1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.\n\n (2) This subsection covers a termination of the employment of an employee:\n\n (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\n\n (b) because of the insolvency or bankruptcy of the employer.\n\n (3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:\n\n (a) the employees (unless there are no employees covered by the agreement);\n\n (b) each employer;\n\n (c) each employee organisation (if any).\n\nNote: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).\n\n (4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:\n\n (a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and\n\n (b) whether bargaining for the proposed enterprise agreement is occurring; and\n\n (c) whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.\n\n (5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.","sortOrder":520},{"sectionNumber":"226A","sectionType":"section","heading":"Guarantee of termination entitlements","content":"226A  Guarantee of termination entitlements\n\nGuarantee of termination entitlements\n\n (1) A guarantee of termination entitlements is an undertaking given by an employer covered by an enterprise agreement that:\n\n (a) is an undertaking that the employer will comply with subsection (3) if the agreement is terminated under section 226 and the employer terminates the employment of a protected employee for the termination of the agreement:\n\n (i) 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\n\n (ii) because of the insolvency or bankruptcy of the employer; and\n\n (b) is in writing; and\n\n (c) meets any requirements relating to the signing of undertakings that are prescribed by the regulations.\n\n (2) A protected employee for a termination of an enterprise agreement under section 226 is an employee who would, but for the termination of the agreement, be covered by the agreement.\n\n (3) For the purposes of paragraph (1)(a), the employer complies with this subsection, in relation to the termination of the protected employee’s employment, if the employer complies with the terms of the enterprise agreement that, if the agreement were still in operation, would have provided the employee with entitlements that:\n\n (a) relate to a termination of the employee’s employment:\n\n (i) 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\n\n (ii) because of the insolvency or bankruptcy of the employer; and\n\n (b) except if the employee was an award/agreement free employee immediately before the termination of the employee’s employment—are more beneficial than the entitlements under a modern award that covered the employee in relation to the employment at that time.\n\nWhen guarantee is in force\n\n (4) A guarantee of termination entitlements given in relation to the termination of an enterprise agreement:\n\n (a) comes into force on the day on which the termination of the agreement comes into operation under section 227; and\n\n (b) ceases to be in force at the earliest of the following times:\n\n (i) if the guarantee specifies a period during which the guarantee is to remain in force and the FWC approves that period under subsection (5)—the end of that period;\n\n (ii) immediately before another enterprise agreement that covers the same, or substantially the same, group of employees as the terminated agreement comes into force;\n\n (iii) the end of the period of 4 years beginning on the day the guarantee is given to the FWC.\n\n (5) The FWC may, in its decision terminating an enterprise agreement, approve a period for the purposes of subparagraph (4)(b)(i) if it considers the period to be appropriate.\n\nEmployer must comply with guarantee\n\n (6) An employer must comply with a guarantee of termination entitlements given by the employer to the FWC in relation to the termination of an enterprise agreement if:\n\n (a) the agreement is terminated under section 226; and\n\n (b) the employer terminates the employment of a protected employee for the termination of the agreement while the guarantee is in force:\n\n (i) 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\n\n (ii) because of the insolvency or bankruptcy of the employer.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\nGuarantee is a governing instrument for employment\n\n (7) To avoid doubt, a guarantee of termination entitlements is a governing instrument for employment for the purposes of the Fair Entitlements Guarantee Act 2012.","sortOrder":521},{"sectionNumber":"227","sectionType":"section","heading":"When termination comes into operation","content":"227  When termination comes into operation\n\n  If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.","sortOrder":522},{"sectionNumber":"Division 7A","sectionType":"division","heading":"Reconsideration of whether an enterprise agreement passes the better off overall test","content":"Division 7A—Reconsideration of whether an enterprise agreement passes the better off overall test","sortOrder":523},{"sectionNumber":"227A","sectionType":"section","heading":"Application for FWC to reconsider whether an enterprise agreement passes the better off overall test","content":"227A  Application for FWC to reconsider whether an enterprise agreement passes the better off overall test\n\n (1) If the condition in subsection (2) is satisfied, any of the following may apply to the FWC for a reconsideration of whether an enterprise agreement passes the better off overall test:\n\n (a) one or more of the employers covered by the agreement;\n\n (b) an employee covered by the agreement;\n\n (c) an employee organisation covered by the agreement.\n\n (2) The condition in this subsection is satisfied if:\n\n (a) before approving the agreement the FWC had regard, under subsection 193A(6), to patterns or kinds of work, or types of employment engaged in, or to be engaged in, by:\n\n (i) the award covered employees for the agreement; and\n\n (ii) if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies—those employees; and\n\n (b) at the test time or a later time, one or more employees covered by subsection (4) or (5) engaged in other patterns or kinds of work, or other types of employment, to which the FWC did not have regard under subsection 193A(6).\n\nExample: Before approving the agreement the FWC had regard, under subsection 193A(6), to work on Saturdays and Sundays as a pattern of work for a class of employees. At the test time some employees covered by subsection (4) worked only on Sundays, and the FWC did not have regard, under subsection 193A(6), to this pattern of work. In these circumstances, the condition in this subsection is satisfied.\n\n (4) An employee is covered by this subsection if, on the assumption that the test time mentioned in paragraph 193(4)(b) were the time the application is made under subsection (1) of this section, the employee would be an award covered employee for the agreement.\n\n (5) An employee is covered by this subsection if, on the assumption that the test time mentioned in section 193 were the time the application is made under subsection (1) of this section, the employee would be an employee referred to in subparagraph (2)(a)(ii).","sortOrder":524},{"sectionNumber":"227B","sectionType":"section","heading":"Reconsideration of whether an enterprise agreement passes the better off overall test","content":"227B  Reconsideration of whether an enterprise agreement passes the better off overall test\n\n (1) If an application is made under subsection 227A(1), the FWC must reconsider whether the agreement passes the better off overall test under section 193.\n\n (2) For the purposes of the reconsideration, sections 193 and 193A have effect as if:\n\n (a) the conditions in paragraphs 193(4)(a) and (b) were satisfied in relation to an employee covered by subsection 227A(4); and\n\n (aa) in the case of an agreement of a kind covered by paragraph 193(1)(b)—the condition that a supported bargaining agreement or a single interest employer agreement applies to the employees is satisfied in relation to an employee covered by subsection 227A(5); and\n\n (b) the words “the time the application for approval of the agreement by the FWC was made under subsection 182(4) or section 185” in subsection 193(6) were omitted and the words “the time mentioned in subsection 227B(2A)” were substituted; and\n\n (c) the words “if the agreement is not a greenfields agreement—” in paragraph 193A(3)(b) were omitted; and\n\n (d) the words “in any case—a bargaining representative for the agreement” in paragraph 193A(3)(c) were omitted and the words “the employee organisation or employee organisations that are covered by the agreement” were substituted; and\n\n (e) the words “the bargaining representative or bargaining representatives of” in paragraph 193A(4)(a) were omitted; and\n\n (f) the words “the bargaining representative or bargaining representatives of award covered employees for the agreement (other than a bargaining representative that is not an employee organisation)” in paragraph 193A(4)(b) were omitted and the words “the employee organisation or employee organisations that are covered by the agreement” were substituted; and\n\n (fa) paragraph 193A(4)(c) were omitted; and\n\n (g) the words “if the agreement is not a greenfields agreement—” in paragraph 193A(6A)(b) were omitted; and\n\n (h) the words “in any case—a bargaining representative for the agreement” in paragraph 193A(6A)(c) were omitted and the words “the employee organisation or employee organisations that are covered by the agreement” were substituted.\n\n (2A) For the purposes of paragraph (2)(b), the time is:\n\n (a) unless paragraph (b) applies—the time the application for approval of the agreement by the FWC was made under section 185; or\n\n (b) if the FWC has approved one or more variations of the agreement under section 211—the time the application for approval of the most recent of those variations by the FWC was made under section 210.\n\n (3) If the FWC has a concern that the enterprise agreement does not pass the better off overall test, the FWC may:\n\n (a) accept an undertaking from one or more employers covered by the agreement if the FWC is satisfied the undertaking addresses the concern; or\n\n (b) amend the agreement if the FWC is satisfied the amendment is necessary to address the concern.\n\n (4) An amendment under paragraph (3)(b) operates from:\n\n (a) 7 days after the FWC makes the amendment; or\n\n (b) if another day is specified in the amendment (which may be a day before the amendment is made)—that other day.\n\n (5) The FWC must specify a day before the amendment is made for the purposes of paragraph (4)(b) if the FWC considers that it is necessary for the amendment to operate from the earlier day to address the concern to which the amendment relates.","sortOrder":525},{"sectionNumber":"227C","sectionType":"section","heading":"Effect of undertakings","content":"227C  Effect of undertakings\n\n (1) If:\n\n (a) the FWC accepts an undertaking under paragraph 227B(3)(a) in relation to an enterprise agreement; and\n\n (b) the agreement covers a single employer;\n\nthe undertaking is taken to be a term of the agreement, as the agreement applies to the employer.\n\n (2) If:\n\n (a) the FWC accepts an undertaking under paragraph 227B(3)(a) in relation to an enterprise agreement; and\n\n (b) the agreement covers 2 or more employers;\n\nthe undertaking is taken to be a term of the agreement, as the agreement applies to each employer that gave the undertaking.","sortOrder":526},{"sectionNumber":"227D","sectionType":"section","heading":"Effect of amendment","content":"227D  Effect of amendment\n\n (1) If:\n\n (a) the FWC makes an amendment under paragraph 227B(3)(b) in relation to an enterprise agreement; and\n\n (b) the agreement covers a single employer;\n\nthe agreement is taken to be amended by the amendment, as the agreement applies to the employer.\n\n (2) If:\n\n (a) the FWC makes an amendment under paragraph 227B(3)(b) in relation to an enterprise agreement; and\n\n (b) the agreement covers 2 or more employers;\n\nthe agreement is taken to be amended by the amendment, as the agreement applies to each employer.","sortOrder":527},{"sectionNumber":"227E","sectionType":"section","heading":"No creation of liability to pay pecuniary penalty for past conduct","content":"227E  No creation of liability to pay pecuniary penalty for past conduct\n\nApplication of this section\n\n (1) This section applies if an amendment of an enterprise agreement made under paragraph 227B(3)(b) has a retrospective effect because it comes into operation on a day before the day on which the amendment is made.\n\nNo creation of liability to pay pecuniary penalty for past conduct\n\n (2) If:\n\n (a) a person engaged in conduct before the amendment was made; and\n\n (b) but for the retrospective effect of the amendment, the conduct would not have contravened a term of the enterprise agreement;\n\na court must not order a 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 an enterprise agreement.\n\nNote: This section does not affect the powers of a court to make other kinds of orders under Division 2 of Part 4‑1.","sortOrder":528},{"sectionNumber":"228","sectionType":"section","heading":"Bargaining representatives must meet the good faith bargaining requirements","content":"228  Bargaining representatives must meet the good faith bargaining requirements\n\n (1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:\n\n (a) attending, and participating in, meetings at reasonable times;\n\n (b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;\n\n (c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;\n\n (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;\n\n (e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;\n\n (f) recognising and bargaining with the other bargaining representatives for the agreement.\n\nNote: See also section 255A (limitations relating to greenfields agreements).\n\n (2) The good faith bargaining requirements do not require:\n\n (a) a bargaining representative to make concessions during bargaining for the agreement; or\n\n (b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.","sortOrder":531},{"sectionNumber":"229","sectionType":"section","heading":"Applications for bargaining orders","content":"229  Applications for bargaining orders\n\nPersons who may apply for a bargaining order\n\n (1) A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order) under section 230 in relation to the agreement.\n\nNote: See also section 255A (limitations relating to greenfields agreements).\n\nMulti‑enterprise agreements\n\n (2) An application for a bargaining order must not be made in relation to a proposed multi‑enterprise agreement unless a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the agreement.\n\nTiming of applications\n\n (3) The application may only be made at whichever of the following times applies:\n\n (a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:\n\n (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\n\n (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;\n\n (b) otherwise—at any time.\n\nNote: An employer that is required to give a notice of employee representational rights under subsection 173(1) cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice is given.\n\nPrerequisites for making an application\n\n (4) The bargaining representative may only apply for the bargaining order if the bargaining representative:\n\n (a) has concerns that:\n\n (i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or\n\n (ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and\n\n (b) has given a written notice setting out those concerns to the relevant bargaining representatives; and\n\n (c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and\n\n (d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.\n\nNon‑compliance with notice requirements may be permitted\n\n (5) The FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so.","sortOrder":532},{"sectionNumber":"230","sectionType":"section","heading":"When the FWC may make a bargaining order","content":"230  When the FWC may make a bargaining order\n\nBargaining orders\n\n (1) The FWC may make a bargaining order under this section in relation to a proposed enterprise agreement if:\n\n (a) an application for the order has been made; and\n\n (b) the requirements of this section are met in relation to the agreement; and\n\n (c) the FWC is satisfied that it is reasonable in all the circumstances to make the order.\n\nNote: See also section 255A (limitations relating to greenfields agreements).\n\nAgreement to bargain or certain instruments in operation\n\n (2) The FWC must be satisfied in all cases that one of the following applies:\n\n (a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;\n\n (aa) the employer or employers have received a request to bargain under subsection 173(2A) in relation to the agreement;\n\n (b) a majority support determination in relation to the agreement is in operation;\n\n (c) a scope order in relation to the agreement is in operation;\n\n (d) all of the employers are specified in a supported bargaining authorisation that is in operation in relation to the agreement;\n\n (e) all of the employers are specified in a single interest employer authorisation that is in operation in relation to the agreement.\n\nGood faith bargaining requirements not met\n\n (3) The FWC must in all cases be satisfied:\n\n (a) that:\n\n (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\n\n (ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and\n\n (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.\n\nBargaining order must be in accordance with section 231\n\n (4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).","sortOrder":533},{"sectionNumber":"231","sectionType":"section","heading":"What a bargaining order must specify","content":"231  What a bargaining order must specify\n\n (1) A bargaining order in relation to a proposed enterprise agreement must specify all or any of the following:\n\n (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;\n\n (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;\n\n (c) the actions to be taken by those bargaining representatives to deal with the effects of such capricious or unfair conduct;\n\n (d) such matters, actions or requirements as the FWC 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.\n\n (2) The kinds of bargaining orders that the FWC may make in relation to a proposed enterprise agreement include the following:\n\n (a) an order excluding a bargaining representative for the agreement from bargaining;\n\n (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;\n\n (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);\n\n (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).\n\n (3) The regulations may:\n\n (a) specify the factors the FWC may or must take into account in deciding whether or not to make a bargaining order for reinstatement of an employee; and\n\n (b) provide for the FWC to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind.","sortOrder":534},{"sectionNumber":"232","sectionType":"section","heading":"Operation of a bargaining order","content":"232  Operation of a bargaining order\n\n  A bargaining order in relation to a proposed enterprise agreement:\n\n (a) comes into operation on the day on which it is made; and\n\n (b) ceases to be in operation at the earliest of the following:\n\n (i) if the order is revoked—the time specified in the instrument of revocation;\n\n (ii) when the agreement is approved by the FWC;\n\n (iii) when a workplace determination that covers the employees that would have been covered by the agreement comes into operation;\n\n (iv) when the bargaining representatives for the agreement agree that bargaining has ceased.\n\nNote: See also section 255A (limitations relating to greenfields agreements).","sortOrder":535},{"sectionNumber":"233","sectionType":"section","heading":"Contravening a bargaining order","content":"233  Contravening a bargaining order\n\n  A person to whom a bargaining order applies must not contravene a term of the order.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":536},{"sectionNumber":"234","sectionType":"section","heading":"Applications for intractable bargaining declarations","content":"234  Applications for intractable bargaining declarations\n\n (1) A bargaining representative for a proposed enterprise agreement, other than a greenfields agreement, may apply to the FWC for a declaration (an intractable bargaining declaration) under section 235 in relation to the agreement.\n\nNote: The consequence of an intractable bargaining declaration being made in relation to the agreement is that the FWC may, in certain circumstances, make an intractable bargaining workplace determination under section 269 in relation to the agreement.\n\n (2) An application for an intractable bargaining declaration must not be made in relation to a proposed multi‑enterprise agreement unless a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the agreement.","sortOrder":538},{"sectionNumber":"235","sectionType":"section","heading":"When the FWC may make an intractable bargaining declaration","content":"235  When the FWC may make an intractable bargaining declaration\n\nIntractable bargaining declaration\n\n (1) The FWC may make an intractable bargaining declaration in relation to a proposed enterprise agreement if:\n\n (a) an application for the declaration has been made; and\n\n (b) the FWC is satisfied of the matters set out in subsection (2); and\n\n (c) it is after the end of the minimum bargaining period (see subsection (5)).\n\nMatters of which the FWC must be satisfied before making an intractable bargaining declaration\n\n (2) The FWC must be satisfied that:\n\n (a) the FWC has dealt with the dispute about the agreement under section 240 and the applicant participated in the FWC’s processes to deal with the dispute; and\n\n (b) there is no reasonable prospect of agreement being reached if the FWC does not make the declaration; and\n\n (c) it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement.\n\nWhat declaration must specify\n\n (3) The declaration must specify:\n\n (a) the date it is made; and\n\n (b) the proposed enterprise agreement to which it relates; and\n\n (c) any other matter prescribed by the procedural rules.\n\nOperation of declaration\n\n (4) The declaration:\n\n (a) comes into operation on the day it is made; and\n\n (b) ceases to be in operation when each employer specified in the declaration is covered by an enterprise agreement or a workplace determination.\n\nEnd of the minimum bargaining period\n\n (5) The end of the minimum bargaining period in relation to a proposed enterprise agreement is:\n\n (a) if one or more enterprise agreements (the existing agreements) apply to any of the employees that will be covered by the proposed agreement—the later of the following:\n\n (i) the day that is 9 months after the nominal expiry date for that existing agreement, or the latest nominal expiry date for those existing agreements;\n\n (ii) the day that is 9 months after the day bargaining starts, as worked out under subsection (6); or\n\n (b) the day that is 9 months after the day bargaining starts, as worked out under subsection (6).\n\n (6) For the purposes of subparagraph (5)(a)(ii) and paragraph (5)(b), the day bargaining starts for a proposed agreement is:\n\n (a) if a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the proposed agreement—the day that the authorisation first comes into operation; or\n\n (b) otherwise—the notification time for the proposed agreement.","sortOrder":539},{"sectionNumber":"235A","sectionType":"section","heading":"Post-declaration negotiating period","content":"235A  Post‑declaration negotiating period\n\n (1) The FWC may, if it considers it appropriate to do so, specify in the declaration a period (the post‑declaration negotiating period) that:\n\n (a) starts on the day the declaration is made; and\n\n (b) ends on:\n\n (i) the day specified by the FWC in the declaration; or\n\n (ii) any later day determined under subsection (2).\n\nNote: The FWC cannot make an intractable bargaining workplace determination during any post‑declaration negotiating period (see section 269) but may still provide other assistance during the period, such as conciliation.\n\n (2) The FWC may, if it considers it appropriate to do so and taking into account any views of the bargaining representatives, extend the period referred to in subsection (1) by determining a later day for the purposes of subparagraph (1)(b)(ii).","sortOrder":540},{"sectionNumber":"236","sectionType":"section","heading":"Majority support determinations","content":"236  Majority support determinations\n\n (1) A bargaining representative of an employee who will be covered by a proposed single‑enterprise agreement may apply to the FWC 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.\n\n (1A) Despite subsection (1), a bargaining representative may not apply to the FWC for a determination if a supported bargaining authorisation that specifies the employee is in operation.\n\nNote: While a supported bargaining authorisation that specifies an employee is in operation, an employer cannot bargain with that employee for any kind of agreement other than a supported bargaining agreement (see subsection 172(7)).\n\n (1B) Despite subsection (1), a bargaining representative of an employee may not apply to the FWC for a determination if:\n\n (a) a single interest employer agreement or a supported bargaining agreement applies to the employee; and\n\n (b) the agreement has not passed its nominal expiry date.\n\n (2) The application must specify:\n\n (a) the employer, or employers, that will be covered by the agreement; and\n\n (b) the employees who will be covered by the agreement.","sortOrder":542},{"sectionNumber":"237","sectionType":"section","heading":"When the FWC must make a majority support determination","content":"237  When the FWC must make a majority support determination\n\nMajority support determination\n\n (1) The FWC must make a majority support determination in relation to a proposed single‑enterprise agreement if:\n\n (a) an application for the determination has been made; and\n\n (b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.\n\nMatters of which the FWC must be satisfied before making a majority support determination\n\n (2) The FWC must be satisfied that:\n\n (a) a majority of the employees:\n\n (i) who are employed by the employer or employers at a time determined by the FWC; and\n\n (ii) who will be covered by the agreement;\n\n  want to bargain; and\n\n (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\n\n (c) the group of employees who will be covered by the agreement was fairly chosen; and\n\n (d) it is reasonable in all the circumstances to make the determination.\n\n (3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.\n\n (3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC 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.\n\nOperation of determination\n\n (4) The determination comes into operation on the day on which it is made.","sortOrder":543},{"sectionNumber":"238","sectionType":"section","heading":"Scope orders","content":"238  Scope orders\n\nBargaining representatives may apply for scope orders\n\n (1) A bargaining representative for a proposed single‑enterprise agreement (other than a greenfields agreement) may apply to the FWC for an order (a scope order) under this section if:\n\n (a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and\n\n (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.\n\n (2) Despite subsection (1), a bargaining representative may not apply to the FWC for a scope order in relation to a proposed single‑enterprise agreement if:\n\n (a) a single interest employer agreement or a supported bargaining agreement applies to one or more employees who will be covered by the proposed single‑enterprise agreement; and\n\n (b) the single interest employer agreement or supported bargaining agreement has not passed its nominal expiry date.\n\nBargaining representative to give notice of concerns\n\n (3) The bargaining representative may only apply for the scope order if the bargaining representative:\n\n (a) has taken all reasonable steps to give a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and\n\n (b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and\n\n (c) considers that the relevant bargaining representatives have not responded appropriately.\n\nWhen the FWC may make scope order\n\n (4) The FWC may make the scope order if the FWC is satisfied:\n\n (a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and\n\n (b) that making the order will promote the fair and efficient conduct of bargaining; and\n\n (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\n\n (d) it is reasonable in all the circumstances to make the order.\n\nMatters which the FWC must take into account\n\n (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, the FWC 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.\n\nScope order must specify employer and employees to be covered\n\n (5) The scope order must specify, in relation to a proposed single‑enterprise agreement:\n\n (a) the employer, or employers, that will be covered by the agreement; and\n\n (b) the employees who will be covered by the agreement.\n\nScope order must be in accordance with this section etc.\n\n (6) The scope order:\n\n (a) must be in accordance with this section; and\n\n (b) may relate to more than one proposed single‑enterprise agreement.\n\nOrders etc. that the FWC may make\n\n (7) If the FWC makes the scope order, the FWC may also:\n\n (a) amend any existing bargaining orders; and\n\n (b) make or vary such other orders (such as protected action ballot orders), determinations or other instruments made by the FWC, or take such other actions, as the FWC considers appropriate.","sortOrder":544},{"sectionNumber":"239","sectionType":"section","heading":"Operation of a scope order","content":"239  Operation of a scope order\n\n  A scope order in relation to a proposed single‑enterprise agreement:\n\n (a) comes into operation on the day on which it is made; and\n\n (b) ceases to be in operation at the earliest of the following:\n\n (i) if the order is revoked—the time specified in the instrument of revocation;\n\n (ii) when the agreement is approved by the FWC;\n\n (iii) when a workplace determination that covers the employees that would have been covered by the agreement comes into operation;\n\n (iv) when the bargaining representatives for the agreement agree that bargaining has ceased.","sortOrder":545},{"sectionNumber":"240","sectionType":"section","heading":"Application for the FWC to deal with a bargaining dispute","content":"240  Application for the FWC to deal with a bargaining dispute\n\nBargaining representative may apply for the FWC to deal with a dispute\n\n (1) A bargaining representative for a proposed enterprise agreement may apply to the FWC for the FWC to deal with a dispute about the agreement if the bargaining representatives for the agreement are unable to resolve the dispute.\n\nNote: See also section 255A (limitations relating to greenfields agreements).\n\n (2) If the proposed enterprise agreement is:\n\n (a) a single‑enterprise agreement; or\n\n (b) a supported bargaining agreement; or\n\n (c) a multi‑enterprise agreement in relation to which a single interest employer authorisation is in operation;\n\nthe 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.\n\n (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.\n\n (4) If the bargaining representatives have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.","sortOrder":547},{"sectionNumber":"240A","sectionType":"section","heading":"Application to FWC for voting request order","content":"240A  Application to FWC for voting request order\n\nProposed multi‑enterprise agreement\n\n (1) After the notification time for a proposed multi‑enterprise agreement, a bargaining representative for the enterprise agreement may apply to the FWC for an order (a voting request order) permitting an employer to make a request under subsection 181(1) that employees approve the enterprise agreement by voting for it if:\n\n (a) each bargaining representative for the enterprise agreement that is an employee organisation has been asked to provide the employer with written agreement to the making of the request; and\n\n (b) one or more of the employee organisations has failed to provide the written agreement.\n\nVariation of multi‑enterprise agreement\n\n (2) A person referred to in subsection (3) may apply to the FWC for an order (also a voting request order) permitting an employer to make a request under subsection 208(1) that employees approve a variation of a multi‑enterprise agreement by voting for it if:\n\n (a) each employee organisation covered by the enterprise agreement has been asked to provide the employer with written agreement to the making of the request; and\n\n (b) one or more of the employee organisations has failed to provide the written agreement.\n\n (3) The persons are the following:\n\n (a) an employer covered by the enterprise agreement;\n\n (b) an employee organisation covered by the enterprise agreement;\n\n (c) an affected employee for the variation.\n\nCertain proposed single‑enterprise agreements\n\n (4) A bargaining representative for a proposed single‑enterprise agreement (the new agreement) may apply to the FWC for an order (also a voting request order) permitting an employer to make a request under subsection 181(1) that employees approve the new agreement by voting for it if all of the following apply:\n\n (a) a single interest employer agreement or a supported bargaining agreement (each of which is an old agreement) applies to one or more employees who will be covered by the new agreement;\n\n (b) the old agreement has not passed its nominal expiry date;\n\n (c) when the new agreement comes into operation, the old agreement will cease to apply to the employees;\n\n (d) it is after the notification time for the new agreement;\n\n (e) each employee organisation to which the old agreement applies has been asked to provide the employer with written agreement to the making of the request;\n\n (f) one or more of the employee organisations has failed to provide the written agreement.","sortOrder":549},{"sectionNumber":"240B","sectionType":"section","heading":"FWC must make voting request order","content":"240B  FWC must make voting request order\n\n  The FWC must, on application under subsection 240A(1), (2) or (4), make a voting request order permitting an employer to make a request if the FWC is satisfied that:\n\n (a) for each employee organisation that has failed to provide written agreement to the making of the request, the failure was unreasonable in the circumstances; and\n\n (b) if the request relates to approval of a proposed enterprise agreement—the making of the request by the employer would not be inconsistent with or undermine good faith bargaining for the enterprise agreement.","sortOrder":550},{"sectionNumber":"241","sectionType":"section","heading":"Objects of this Division","content":"241  Objects of this Division\n\n  The objects of this Division are:\n\n (a) to assist and encourage employees and their employers who require support to bargain, and to make an enterprise agreement that meets their needs; and\n\n (c) to address constraints on the ability of those 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\n\n (d) to enable the FWC to provide assistance to those employees and their employers to facilitate bargaining for enterprise agreements.","sortOrder":552},{"sectionNumber":"242","sectionType":"section","heading":"Supported bargaining authorisations","content":"242  Supported bargaining authorisations\n\n (1) The following persons may apply to the FWC for an authorisation (a supported bargaining authorisation) under section 243 in relation to a proposed multi‑enterprise agreement:\n\n (a) a bargaining representative for the agreement;\n\n (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.\n\nNote: The effect of a supported bargaining 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)).\n\n (2) The application must specify:\n\n (a) the employers that will be covered by the agreement; and\n\n (b) the employees who will be covered by the agreement.\n\n (3) An application under this section must not be made in relation to a proposed greenfields agreement.","sortOrder":553},{"sectionNumber":"243","sectionType":"section","heading":"When the FWC must make a supported bargaining authorisation","content":"243  When the FWC must make a supported bargaining authorisation\n\nSupported bargaining authorisation—main case\n\n (1) The FWC must make a supported bargaining authorisation in relation to a proposed multi‑enterprise agreement if:\n\n (a) an application for the authorisation has been made; and\n\n (b) the FWC is satisfied that it is appropriate for the employers and employees (which may be some or all of the employers or employees specified in the application) that will be covered by the agreement to bargain together, having regard to:\n\n (i) the prevailing pay and conditions within the relevant industry or sector (including whether low rates of pay prevail in the industry or sector); and\n\n (ii) whether the employers have clearly identifiable common interests; and\n\n (iii) whether the likely number of bargaining representatives for the agreement would be consistent with a manageable collective bargaining process; and\n\n (iv) any other matters the FWC considers appropriate; and\n\n (c) the FWC is satisfied that at least some of the employees who will be covered by the agreement are represented by an employee organisation.\n\nNote: This subsection is subject to section 243A (restrictions on making supported bargaining authorisations).\n\nCommon interests\n\n (2) For the purposes of subparagraph (1)(b)(ii), examples of common interests that employers may have include the following:\n\n (a) a geographical location;\n\n (b) the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises;\n\n (c) being substantially funded, directly or indirectly, by the Commonwealth, a State or a Territory.\n\nSupported bargaining authorisation—declared industry etc.\n\n (2A) The FWC must also make a supported bargaining authorisation in relation to a proposed multi‑enterprise agreement if:\n\n (a) an application for the authorisation has been made; and\n\n (b) the employees specified in the application are employees in an industry, occupation or sector declared by the Minister under subsection (2B).\n\nNote: This subsection is subject to section 243A (restrictions on making supported bargaining authorisations).\n\n (2B) The Minister may, by legislative instrument, declare an industry, occupation or sector, if the Minister is satisfied that doing so is consistent with the objects of this Division set out in section 241.\n\nSupported bargaining authorisation—agreement replacing earlier supported bargaining agreement\n\n (2C) The FWC must also make a supported bargaining authorisation in relation to a proposed multi‑enterprise agreement if:\n\n (a) the proposed agreement will replace an earlier supported bargaining agreement (the earlier agreement) that will have passed its nominal expiry date; and\n\n (b) an application for the authorisation has been made by an employee organisation that was a bargaining representative for the earlier agreement; and\n\n (c) the application was made:\n\n (i) no earlier than 3 months before the nominal expiry date of the earlier agreement; and\n\n (ii) no later than 2 years after the nominal expiry date of the earlier agreement; and\n\n (d) the FWC is satisfied that the proposed agreement will cover:\n\n (i) the same employers, or substantially the same employers, as the earlier agreement; and\n\n (ii) the same employees, or substantially the same group of employees, as the earlier agreement.\n\nNote: This subsection is subject to section 243A (restrictions on making supported bargaining authorisations).\n\n (2D) The FWC must make the authorisation as quickly as possible after the application is made.\n\nWhat authorisation must specify etc.\n\n (3) The authorisation must specify:\n\n (a) the employers that will be covered by the agreement; and\n\n (b) the employees who will be covered by the agreement; and\n\n (c) any other matter prescribed by the procedural rules.\n\nOperation of authorisation\n\n (4) The authorisation comes into operation on the day on which it is made.","sortOrder":554},{"sectionNumber":"243A","sectionType":"section","heading":"Restrictions on making supported bargaining authorisations","content":"243A  Restrictions on making supported bargaining authorisations\n\nRelationship between this section and section 243\n\n (1A) Section 243 has effect subject to this section.\n\nEmployees covered by single‑enterprise agreement that has not passed nominal expiry date\n\n (1) The FWC must not make a supported bargaining authorisation specifying an employee who is covered by a single‑enterprise agreement that has not passed its nominal expiry date.\n\n (2) A supported bargaining authorisation has no effect to the extent that it specifies an employee who is covered by a single‑enterprise agreement that has not passed its nominal expiry date.\n\n (3) However, subsections (1) and (2) do not apply if the FWC is satisfied that the employer’s main intention in making the agreement with the employees covered by it was to avoid being specified in a supported bargaining authorisation.\n\nAgreement replacing earlier supported bargaining agreement\n\n (3A) The FWC must not make a supported bargaining authorisation under subsection 243(2C) specifying an employer if:\n\n (a) the employer is specified in an application for the authorisation; and\n\n (b) before the FWC makes the authorisation, the employer applies to the FWC for the employer not to be specified in the authorisation; and\n\n (c) the FWC is satisfied that, because of a change in the employer’s circumstances, it would not be appropriate for the employer to be specified in the authorisation.\n\nGeneral building and construction work\n\n (4) The FWC must not make a supported bargaining authorisation in relation to a proposed enterprise agreement if the agreement would cover employees in relation to general building and construction work.","sortOrder":555},{"sectionNumber":"244","sectionType":"section","heading":"Variation of supported bargaining authorisations—general","content":"244  Variation of supported bargaining authorisations—general\n\nVariation to remove employer\n\n (1) An employer specified in a supported bargaining authorisation may apply to the FWC for a variation of the authorisation to remove the employer’s name from the authorisation.\n\n (2) If an application is made under subsection (1), the FWC must vary the authorisation to remove the employer’s name if the FWC 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.\n\nVariation to add employer\n\n (3) The following may apply to the FWC for a variation of a supported bargaining authorisation to add the name of an employer that is not specified in the authorisation:\n\n (a) the employer;\n\n (b) a bargaining representative of an employee who will be covered by the proposed multi‑enterprise agreement to which the authorisation relates;\n\n (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.\n\n (4) If an application is made under subsection (3), the FWC must vary the authorisation to add the employer’s name if the FWC is satisfied that it is in the public interest to do so, taking into account:\n\n (a) if the employer’s employees are in an industry, occupation or sector declared by the Minister under subsection 243(2B)—the declaration; and\n\n (b) if paragraph (a) of this subsection does not apply—the matters set out in paragraph 243(1)(b); and\n\n (c) any other matters the FWC considers appropriate.\n\n (4A) Despite subsection (4), the FWC must not vary the authorisation if subsection 243A(1) (employees covered by single‑enterprise agreement that has not passed nominal expiry date) would prevent the FWC from making a supported bargaining authorisation specifying the employees.\n\n (5) Despite subsection (4), the FWC must not vary the authorisation if, as a result of the variation, the proposed multi‑enterprise agreement to which the authorisation relates would cover employees in relation to general building and construction work.","sortOrder":556},{"sectionNumber":"245","sectionType":"section","heading":"Variation of supported bargaining authorisations—enterprise agreement etc. comes into operation","content":"245  Variation of supported bargaining authorisations—enterprise agreement etc. comes into operation\n\n (1) The FWC is taken to have varied a supported bargaining authorisation to remove an employer’s name when the employer and all of their employees who are specified in the authorisation are covered by an enterprise agreement, or a workplace determination, that comes into operation after the authorisation is made.\n\n (2) The FWC is taken to have varied a supported bargaining authorisation to remove an employee when the employee is covered by an enterprise agreement, or a workplace determination, that comes into operation after the authorisation is made.","sortOrder":557},{"sectionNumber":"246","sectionType":"section","heading":"FWC’s assistance","content":"246  FWC’s assistance\n\nApplication of this section\n\n (1) This section applies if a supported bargaining authorisation is in operation in relation to a proposed multi‑enterprise agreement.\n\nFWC’s assistance\n\n (2) The FWC may, on its own initiative, provide to the bargaining representatives for the agreement such assistance:\n\n (a) that the FWC considers appropriate to facilitate bargaining for the agreement; and\n\n (b) that the FWC could provide if it were dealing with a dispute.\n\nNote: This section does not empower the FWC to arbitrate, because subsection 595(3) provides that the FWC may arbitrate only if expressly authorised to do so.\n\nFWC may direct a person to attend a conference\n\n (3) Without limiting subsection (2), the FWC 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 the FWC 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.\n\n (4) Subsection (3) does not limit the FWC’s powers under Subdivision B of Division 3 of Part 5‑1.","sortOrder":558},{"sectionNumber":"248","sectionType":"section","heading":"Single interest employer authorisations","content":"248  Single interest employer authorisations\n\n (1) The following may apply to the FWC for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement that will cover two or more employers:\n\n (a) those employers;\n\n (b) a bargaining representative of an employee who will be covered by the agreement.\n\n (2) The application must specify the following:\n\n (a) the employers that will be covered by the agreement;\n\n (b) the employees who will be covered by the agreement;\n\n (c) the person (if any) nominated by the employers to make applications under this Act if the authorisation is made.","sortOrder":560},{"sectionNumber":"249","sectionType":"section","heading":"When the FWC must make a single interest employer authorisation","content":"249  When the FWC must make a single interest employer authorisation\n\nSingle interest employer authorisation\n\n (1) The FWC must make a single interest employer authorisation in relation to a proposed enterprise agreement if:\n\n (a) an application for the authorisation has been made; and\n\n (b) the FWC is satisfied that:\n\n (i) at least some of the employees that will be covered by the agreement are represented by an employee organisation; and\n\n (ii) the employers and the bargaining representatives of the employees of those employers have had the opportunity to express to the FWC their views (if any) on the authorisation; and\n\n (iii) if the application was made by 2 or more employers under paragraph 248(1)(a)—the requirements of subsection (1A) are met; and\n\n (iv) if the application was made by a bargaining representative under paragraph 248(1)(b)—each employer either has consented to the application or is covered by subsection (1B); and\n\n (v) the requirements of either subsection (2) or (3) (which deal with franchisees and common interest employers) are met; and\n\n (vi) if the requirements of subsection (3) are met—the operations and business activities of each of those employers are reasonably comparable with those of the other employers that will be covered by the agreement.\n\n (1AA) If:\n\n (a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and\n\n (b) an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;\n\nit is presumed that the operations and business activities of the employer are reasonably comparable with those of the other employers that will be covered by the agreement, unless the contrary is proved.\n\nAdditional requirements for application by employers\n\n (1A) The requirements of this subsection are met if:\n\n (a) the employers that will be covered by the agreement have agreed to bargain together; and\n\n (b) no person coerced, or threatened to coerce, any of the employers to agree to bargain together.\n\nAdditional requirements for application by bargaining representative\n\n (1B) An employer is covered by this subsection if:\n\n (a) the employer employed at least 20 employees at the time that the application for the authorisation was made; and\n\n (b) the employer has not made an application for a single interest employer authorisation that has not yet been decided in relation to the employees that will be covered by the agreement; and\n\n (c) the employer is not named in a single interest employer authorisation or supported bargaining authorisation in relation to the employees that will be covered by the agreement; and\n\n (d) a majority of the employees who are employed by the employer at a time determined by the FWC and who will be covered by the agreement want to bargain for the agreement; and\n\n (e) subsection (1D) does not apply to the employer.\n\n (1C) For the purposes of paragraph (1B)(d), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.\n\n (1D) This subsection applies to an employer if:\n\n (a) the employer and the employees of the employer that will be covered by the agreement are covered by an enterprise agreement that has not passed its nominal expiry date at the time that the FWC will make the authorisation; or\n\n (b) the employer and an employee organisation that is entitled to represent the industrial interests of one or more of the employees of the employer that will be covered by the agreement have agreed in writing to bargain for a proposed single‑enterprise agreement that would cover the employer and those employees or substantially the same group of those employees.\n\nFranchisees\n\n (2) The requirements of this subsection are met if the employers carry on similar business activities under the same franchise and are:\n\n (a) franchisees of the same franchisor; or\n\n (b) related bodies corporate of the same franchisor; or\n\n (c) any combination of the above.\n\nCommon interest employers\n\n (3) The requirements of this subsection are met if:\n\n (a) the employers have clearly identifiable common interests; and\n\n (b) it is not contrary to the public interest to make the authorisation.\n\n (3A) For the purposes of paragraph (3)(a), matters that may be relevant to determining whether the employers have a common interest include the following:\n\n (a) geographical location;\n\n (b) regulatory regime;\n\n (c) the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises.\n\n (3AB) If:\n\n (a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and\n\n (b) an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;\n\nit is presumed that the requirements of subsection (3) are met in relation to that employer, unless the contrary is proved.\n\nCalculating number of employees\n\n (3AC) For the purposes of calculating the number of employees referred to in paragraph (1AA)(b), (1B)(a) or (3AB)(b):\n\n (a) employee has its ordinary meaning; and\n\n (b) subject to paragraph (c), all employees employed by the employer at the time that the application for the authorisation was made are to be counted; and\n\n (c) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer; and\n\n (d) associated entities of the employer are taken to be one entity.\n\nOperation of authorisation\n\n (4) The authorisation:\n\n (a) comes into operation on the day on which it is made; and\n\n (b) ceases to be in operation at the earlier of the following:\n\n (i) at the same time as the enterprise agreement to which the authorisation relates is made;\n\n (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.","sortOrder":561},{"sectionNumber":"249A","sectionType":"section","heading":"Restriction on making single interest employer authorisations","content":"249A  Restriction on making single interest employer authorisations\n\n  The FWC must not make a single interest employer authorisation in relation to a proposed enterprise agreement if the agreement would cover employees in relation to general building and construction work.","sortOrder":562},{"sectionNumber":"250","sectionType":"section","heading":"What a single interest employer authorisation must specify","content":"250  What a single interest employer authorisation must specify\n\nWhat authorisation must specify\n\n (1) A single interest employer authorisation in relation to a proposed enterprise agreement must specify the following:\n\n (a) the employers that will be covered by the agreement;\n\n (b) the employees who will be covered by the agreement;\n\n (c) the person (if any) nominated by the employers to make applications under this Act if the authorisation is made;\n\n (d) any other matter prescribed by the procedural rules.\n\nAuthorisation may relate to only some of employers or employees\n\n (2) If the FWC is satisfied of the matters specified in subsection 249(2) or (3) (which deal with franchisees and common interest employers) in relation to only some of the employers that will be covered by the agreement, the FWC may make a single interest employer authorisation specifying those employers and their employees only.\n\n (3) The FWC may make a single interest employer authorisation that does not specify one or more employers specified in an application for the authorisation, and the employees (the relevant employees) of those employers specified in that application, if the FWC is satisfied that:\n\n (a) the employers are bargaining in good faith for a proposed enterprise agreement that will cover the employers and the relevant employees, or substantially the same group of the relevant employees; and\n\n (b) the employers and the relevant employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the employers and the relevant employees, or substantially the same group of the relevant employees; and\n\n (c) on the day that the FWC will make the authorisation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b).\n\n (4) If the effect of subsection (3) is that no employers would be specified in the authorisation, the FWC may refuse the application for the authorisation.","sortOrder":563},{"sectionNumber":"251","sectionType":"section","heading":"Variation of single interest employer authorisations","content":"251  Variation of single interest employer authorisations\n\nVariation to remove employer\n\n (1) The following may apply to the FWC for a variation of a single interest employer authorisation to remove an employer’s name from the authorisation:\n\n (a) the employer;\n\n (b) a bargaining representative of an employee who will be covered by the proposed enterprise agreement to which the authorisation relates.\n\n (2) The FWC must vary the authorisation to remove the employer’s name if:\n\n (a) an application has been made under subsection (1); and\n\n (b) the requirements of either subsection (2A) or (2B) are met.\n\n (2A) The requirements of this subsection are met if the FWC is satisfied that:\n\n (a) the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had an opportunity to express to the FWC their views (if any) on the application; and\n\n (b) because of a change in the employer’s circumstances, it is no longer appropriate for the employer to be specified in the authorisation.\n\n (2B) The requirements of this subsection are met if:\n\n (a) the application was made by a bargaining representative of an employee who will be covered by the proposed enterprise agreement to which the authorisation relates; and\n\n (b) the FWC is satisfied that:\n\n (i) the employer (the relevant employer) whose name is proposed to be removed employed fewer than 50 employees at the time that the application was made; and\n\n (ii) the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had the opportunity to express to the FWC their views (if any) on the application; and\n\n (iii) the employees (the relevant employees) who are employed by the relevant employer and that would be covered by the proposed enterprise agreement to which the authorisation relates have, on request by the bargaining representative, approved the removal of the relevant employer’s name by voting for the removal; and\n\n (iv) there are no reasonable grounds for believing that the removal of the relevant employer’s name has not been genuinely approved by the relevant employees.\n\nNote: A person must not coerce another person to exercise a workplace right in a particular way (see section 343).\n\n (2C) Without limiting subparagraph (2B)(b)(iii), the bargaining representative may request that the relevant employees vote by ballot or by an electronic method.\n\n (2D) For the purposes of subparagraph (2B)(b)(iii), the relevant employees are taken to have approved the removal of the employer’s name if:\n\n (a) at least 50% of the relevant employees cast a vote; and\n\n (b) more than 50% of the valid votes were votes approving the removal.\n\nVariation to add employer\n\n (3) The following may apply to the FWC for a variation of a single interest employer authorisation to add the name of an employer (the new employer) that is not specified in the authorisation to the authorisation:\n\n (a) the new employer;\n\n (b) a person who is a bargaining representative:\n\n (i) for the proposed enterprise agreement to which the authorisation relates; and\n\n (ii) of an employee of the new employer.\n\n (4) The FWC must vary the authorisation to add the new employer’s name if:\n\n (a) an application for the variation has been made; and\n\n (b) the FWC is satisfied that:\n\n (i) the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had an opportunity to express to the FWC their views (if any) on the application; and\n\n (ii) if the application was made by the new employer under paragraph (3)(a)—no person coerced, or threatened to coerce, the new employer to make the application; and\n\n (iii) if the application was made by a bargaining representative under paragraph (3)(b)—the requirements of subsection (5) are met; and\n\n (iv) the requirements of subsection 249(2) or (3) (which deal with franchisees and common interest employers) would continue to be met if the new employer’s name were added; and\n\n (v) if the requirements of subsection 249(3) would continue to be met if the new employer’s name were added—the operations and business activities of the new employer are reasonably comparable with those of the employers specified in the authorisation.\n\n (4A) If:\n\n (a) the application for approval of the variation was made by a bargaining representative under paragraph (3)(b) of this section; and\n\n (b) the new employer employed 50 employees or more at the time that the application was made; and\n\n (c) the requirements of subsection 249(2) do not apply to the new employer;\n\nthen the following matters are presumed, unless the contrary is proved:\n\n (d) that the requirements of subsection 249(3) would continue to be met if the new employer’s name were added;\n\n (e) that, for the purposes of subparagraph (4)(b)(v) of this section, the operations and business activities of the new employer are reasonably comparable with those of the other employers that are specified in the authorisation.\n\nAdditional requirements for application by bargaining representative\n\n (5) The requirements of this subsection are met if:\n\n (a) the new employer employed at least 20 employees at the time that the application for the variation was made; and\n\n (b) the new employer has not made an application for a single interest employer authorisation that has not yet been decided in relation to the employees that will be covered by the agreement; and\n\n (c) the new employer is not named in a single interest employer authorisation or supported bargaining authorisation in relation to the employees that will be covered by the agreement; and\n\n (d) a majority of the employees who are employed by the new employer at a time determined by the FWC and who will be covered by the proposed enterprise agreement want to bargain for the agreement; and\n\n (e) subsection (7) does not apply to the employer.\n\n (5A) For the purposes of calculating the number of employees referred to in subparagraph (2B)(b)(i) or paragraph (4A)(b) or (5)(a):\n\n (a) employee has its ordinary meaning; and\n\n (b) subject to paragraph (c), all employees employed by the new employer at the time that the application for the variation was made are to be counted; and\n\n (c) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the new employer; and\n\n (d) associated entities of the new employer are taken to be one entity.\n\n (6) For the purposes of paragraph (5)(d), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.\n\n (7) This subsection applies to an employer if:\n\n (a) the new employer and the employees of the new employer that will be covered by the agreement are covered by an enterprise agreement that has not passed its nominal expiry date at the time that the FWC will make the variation; or\n\n (b) the new employer and an employee organisation that is entitled to represent the industrial interests of one or more of the employees of the new employer that will be covered by the agreement have agreed in writing to bargain for a proposed single‑enterprise agreement that would cover the new employer and those employees or substantially the same group of those employees.\n\nEmployers and employees that are already bargaining\n\n (8) Despite subsection (4), the FWC may refuse to vary the authorisation if the FWC is satisfied that:\n\n (a) the new employer is bargaining in good faith for a proposed enterprise agreement that will cover the new employer and the employees of the new employer that will be covered by the agreement, or substantially the same group of those employees; and\n\n (b) the new employer and those employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the new employer and those employees, or substantially the same group of those employees; and\n\n (c) on the day that the FWC will vary the authorisation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b).","sortOrder":564},{"sectionNumber":"251A","sectionType":"section","heading":"Restriction on variation of single interest employer authorisation","content":"251A  Restriction on variation of single interest employer authorisation\n\n  Despite subsection 251(4), the FWC must not vary a single interest employer authorisation if, as a result of the variation, the proposed enterprise agreement to which the authorisation relates would cover employees in relation to general building and construction work.","sortOrder":565},{"sectionNumber":"252","sectionType":"section","heading":"Variation to extend period single interest employer authorisation is in operation","content":"252  Variation to extend period single interest employer authorisation is in operation\n\n (1) A bargaining representative for a proposed enterprise agreement to which a single interest employer authorisation relates may apply to the FWC to vary the authorisation to extend the period for which the authorisation is in operation.\n\n (2) The FWC may vary the authorisation to extend the period if the FWC is satisfied that:\n\n (a) there are reasonable prospects that the agreement will be made if the authorisation is in operation for a longer period; and\n\n (b) it is appropriate in all the circumstances to extend the period.","sortOrder":566},{"sectionNumber":"253","sectionType":"section","heading":"Terms of an enterprise agreement that are of no effect","content":"253  Terms of an enterprise agreement that are of no effect\n\n (1) A term of an enterprise agreement has no effect to the extent that:\n\n (a) it is not a term about a permitted matter; or\n\n (b) it is an unlawful term; or\n\n (c) it is a designated outworker term.\n\nNote 1: A term of an enterprise agreement has no effect to the extent that it contravenes section 55 (see section 56).\n\nNote 2: Certain terms of enterprise agreements relating to deductions, or requiring employees to spend or pay amounts, have no effect (see section 326).\n\n (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.","sortOrder":568},{"sectionNumber":"254","sectionType":"section","heading":"Applications by bargaining representatives","content":"254  Applications by bargaining representatives\n\nApplication of this section\n\n (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.\n\nPersons who may make applications\n\n (2) If the agreement will cover more than one employer, the application may be made by:\n\n (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\n\n (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.","sortOrder":569},{"sectionNumber":"254A","sectionType":"section","heading":"Entitlement for volunteer bodies to make submissions","content":"254A  Entitlement for volunteer bodies to make submissions\n\n (1) A body covered by subsection (2) is entitled to make a submission for consideration in relation to a matter before the FWC if:\n\n (a) the matter arises under this Part; and\n\n (b) the matter affects, or could affect, the volunteers of a designated emergency management body.\n\n (2) The bodies are as follows:\n\n (a) a body corporate that:\n\n (i) has a history of representing the interests of the designated emergency management body’s volunteers; and\n\n (ii) is not prescribed by the regulations for the purposes of this subparagraph;\n\n (b) any other body that is prescribed by the regulations for the purposes of this paragraph.\n\n (3) Subsection (1) applies whether or not the FWC holds a hearing in relation to the matter.","sortOrder":570},{"sectionNumber":"255","sectionType":"section","heading":"Part does not empower the FWC to make certain orders","content":"255  Part does not empower the FWC to make certain orders\n\n (1) This Part does not empower the FWC to make an order that requires, or has the effect of requiring:\n\n (a) particular content to be included or not included in a proposed enterprise agreement; or\n\n (b) an employer to request under subsection 181(1) that employees approve a proposed enterprise agreement; or\n\n (c) an employee to approve, or not approve, a proposed enterprise agreement; or\n\n (d) an employer to give a notice under section 178B; or\n\n (e) an employer to specify a particular day in a notice under section 178B; or\n\n (f) an employer to agree to the giving of a notice under section 178B.\n\n (2) Despite paragraph (1)(a), the FWC 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.\n\nNote: The FWC 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)).","sortOrder":571},{"sectionNumber":"255A","sectionType":"section","heading":"Limitations relating to greenfields agreements","content":"255A  Limitations relating to greenfields agreements\n\n (1) If:\n\n (a) a proposed single‑enterprise agreement is a greenfields agreement; and\n\n (b) there has been a notified negotiation period for the agreement; and\n\n (c) the notified negotiation period has ended;\n\nthen:\n\n (d) the following provisions do not apply in relation to the agreement at any time after the end of the notified negotiation period:\n\n (i) section 228 (which deals with good faith bargaining requirements);\n\n (ii) sections 229 and 230 (which deal with bargaining orders);\n\n (iii) sections 234 and 235 (which deal with serious breach declarations);\n\n (iv) section 240 (which deals with bargaining disputes); and\n\n (e) a bargaining order that relates to the agreement ceases to have effect at the end of the notified negotiation period.\n\n (2) Paragraph (1)(e) has effect despite anything in section 232 (which deals with the operation of bargaining orders).","sortOrder":572},{"sectionNumber":"256","sectionType":"section","heading":"Prospective employers and employees","content":"256  Prospective employers and employees\n\n  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.","sortOrder":573},{"sectionNumber":"256A","sectionType":"section","heading":"How employees, employers and employee organisations are to be described","content":"256A  How employees, employers and employee organisations are to be described\n\n (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.\n\n (2) The employees may be specified by class or by name.\n\n (3) The employers and employee organisations must be specified by name.\n\n (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:\n\n (a) a particular industry or part of an industry;\n\n (b) a particular kind of work;\n\n (c) a particular type of employment;\n\n (d) a particular classification, job level or grade.","sortOrder":574},{"sectionNumber":"257","sectionType":"section","heading":"Enterprise agreements may incorporate material in force from time to time etc.","content":"257  Enterprise agreements may incorporate material in force from time to time etc.\n\nDespite section 46AA of the Acts Interpretation Act 1901, an enterprise agreement may incorporate material contained in an instrument or other writing:\n\n (a) as in force at a particular time; or\n\n (b) as in force from time to time.","sortOrder":575},{"sectionNumber":"Part 2-5","sectionType":"part","heading":"Workplace determinations","content":"Part 2‑5—Workplace determinations","sortOrder":576},{"sectionNumber":"258","sectionType":"section","heading":"Guide to this Part","content":"258  Guide to this Part\n\nThis Part is about workplace determinations, which provide terms and conditions for those national system employees to whom they apply.\n\nDivision 3 deals with industrial action related workplace determinations. The FWC must make such a determination if:\n\n (a) a termination of industrial action instrument is made in relation to a proposed enterprise agreement; and\n\n (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.\n\nDivision 4 deals with intractable bargaining workplace determinations. The FWC must make such a determination if:\n\n (a) an intractable bargaining declaration is made in relation to a proposed enterprise agreement; and\n\n (b) the bargaining representatives for the agreement have not settled the matters that were at issue during bargaining for the agreement.\n\nDivision 5 sets out the core terms, mandatory terms and agreed terms of workplace determinations. It also sets out the factors that the FWC must take into account in deciding the terms of a workplace determination.\n\nDivision 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.\n\nDivision 7 deals with other matters relating to workplace determinations.","sortOrder":578},{"sectionNumber":"259","sectionType":"section","heading":"Meanings of employee and employer","content":"259  Meanings of employee and employer\n\n  In this Part, employee means a national system employee, and employer means a national system employer.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":579},{"sectionNumber":"266","sectionType":"section","heading":"When the FWC must make an industrial action related workplace determination","content":"266  When the FWC must make an industrial action related workplace determination\n\nIndustrial action related workplace determination\n\n (1) If:\n\n (a) a termination of industrial action instrument has been made in relation to a proposed enterprise agreement; and\n\n (b) the post‑industrial action negotiating period ends; and\n\n (c) the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the agreement;\n\nthe FWC must make a determination (an industrial action related workplace determination) as quickly as possible after the end of that period.\n\nNote: The FWC must be constituted by a Full Bench to make an industrial action related workplace determination (see subsection 616(4)).\n\nTermination of industrial action instrument\n\n (2) A termination of industrial action instrument in relation to a proposed enterprise agreement is:\n\n (a) an order under section 423 or 424 terminating protected industrial action for the agreement; or\n\n (b) a declaration under section 431 terminating protected industrial action for the agreement.\n\nPost‑industrial action negotiating period\n\n (3) The post‑industrial action negotiating period is the period that:\n\n (a) starts on the day on which the termination of industrial action instrument is made; and\n\n (b) ends:\n\n (i) 21 days after that day; or\n\n (ii) if the FWC extends that period under subsection (4)—42 days after that day.\n\n (4) The FWC must extend the period referred to in subparagraph (3)(b)(i) if:\n\n (a) all of the bargaining representatives for the agreement jointly apply to the FWC for the extension within 21 days after the termination of industrial action instrument was made; and\n\n (b) those bargaining representatives have not settled all of the matters that were at issue during bargaining for the agreement.","sortOrder":581},{"sectionNumber":"267","sectionType":"section","heading":"Terms etc. of an industrial action related workplace determination","content":"267  Terms etc. of an industrial action related workplace determination\n\nBasic rule\n\n (1) An industrial action related workplace determination must comply with subsection (4) and include:\n\n (a) the terms set out in subsections (2) and (3); and\n\n (b) the core terms set out in section 272; and\n\n (c) the mandatory terms set out in section 273.\n\nNote: For the factors that the FWC must take into account in deciding the terms of the determination, see section 275.\n\nAgreed terms\n\n (2) The determination must include the agreed terms (see subsection 274(2)) for the determination.\n\nTerms dealing with the matters at issue\n\n (3) The determination must include the terms that the FWC considers deal with the matters that were still at issue at the end of the post‑industrial action negotiating period.\n\nCoverage\n\n (4) The determination must be expressed to cover:\n\n (a) each employer that would have been covered by the proposed enterprise agreement concerned; and\n\n (b) the employees who would have been covered by that agreement; and\n\n (c) each employee organisation (if any) that was a bargaining representative of those employees.","sortOrder":582},{"sectionNumber":"268","sectionType":"section","heading":"No other terms","content":"268  No other terms\n\n  An industrial action related workplace determination must not include any terms other than those required by subsection 267(1).","sortOrder":583},{"sectionNumber":"269","sectionType":"section","heading":"When the FWC must make an intractable bargaining workplace determination","content":"269  When the FWC must make an intractable bargaining workplace determination\n\n  If an intractable bargaining declaration has been made in relation to a proposed enterprise agreement, the FWC must make a determination (an intractable bargaining workplace determination) as quickly as possible:\n\n (a) if there is a post‑declaration negotiating period for the declaration under section 235A—after the end of that period; or\n\n (b) otherwise—after making the declaration.\n\nNote: The FWC must be constituted by a Full Bench to make an intractable bargaining workplace determination (see subsection 616(4)).","sortOrder":585},{"sectionNumber":"270","sectionType":"section","heading":"Terms etc. of an intractable bargaining workplace determination","content":"270  Terms etc. of an intractable bargaining workplace determination\n\nBasic rule\n\n (1) An intractable bargaining workplace determination must comply with subsection (4) and include:\n\n (a) the terms set out in this section; and\n\n (b) the core terms set out in section 272; and\n\n (c) the mandatory terms set out in section 273.\n\nNote: For the factors that the FWC must take into account in deciding the terms of the determination, see section 275.\n\nAgreed terms\n\n (2) The determination must include the agreed terms (see subsection 274(3)) for the determination.\n\nTerms dealing with the matters at issue\n\n (3) The determination must include the terms that the FWC considers deal with the matters that were still at issue:\n\n (a) if there is a post‑declaration negotiating period under section 235A for the declaration concerned—after the end of that period; or\n\n (b) otherwise—after making the declaration.\n\nNote: Any such terms must comply with section 270A.\n\nCoverage\n\n (4) The determination must be expressed to cover:\n\n (a) each employer that would have been covered by the agreement; and\n\n (b) the employees who would have been covered by that agreement; and\n\n (c) each employee organisation (if any) that was a bargaining representative of those employees.","sortOrder":586},{"sectionNumber":"270A","sectionType":"section","heading":"Certain terms must not be less favourable","content":"270A  Certain terms must not be less favourable\n\n (1) This section applies if, immediately before the determination is made, an enterprise agreement applies to one or more employees who will be covered by the determination.\n\n (2) A term that is included in the determination to comply with subsection 270(3), and that deals with a particular matter, must be not less favourable to each of those employees, and any employee organisation that was a bargaining representative of any of those employees, than a term of the enterprise agreement that deals with the matter.\n\n (2A) A term that is included in the determination to comply with subsection 273(2), (4), (5) or (6) must be not less favourable to each of those employees, and any employee organisation that was a bargaining representative of any of those employees, than a term of the enterprise agreement that deals with the same matter as the term included in the determination.\n\nNote: In addition, the delegates’ rights term included in compliance with subsection 273(6) must not be less favourable than the delegates’ rights term in any modern award that covers a workplace delegate to whom the determination applies (see subsection 273(7)).\n\n (3) If a term to be included in the determination is not less favourable to a class of employees to which a particular employee belongs, the FWC is entitled to assume, in the absence of evidence to the contrary, that the term is not less favourable to the employee.\n\n (4) Subsection (2) does not apply to a term that provides for a wage increase.\n\n (5) For the avoidance of doubt, subsection (2A) does not apply to any agreed term for the determination that:\n\n (a) is of a kind referred to in subsection 273(3), (4) or (5); or\n\n (b) is a delegates’ rights term for the workplace delegates to whom the determination applies.","sortOrder":587},{"sectionNumber":"271","sectionType":"section","heading":"No other terms","content":"271  No other terms\n\n  An intractable bargaining workplace determination must not include any terms other than those required by subsection 270(1).","sortOrder":588},{"sectionNumber":"272","sectionType":"section","heading":"Core terms of workplace determinations","content":"272  Core terms of workplace determinations\n\nCore terms\n\n (1) This section sets out the core terms that a workplace determination must include.\n\nNominal expiry date\n\n (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.\n\nPermitted matters etc.\n\n (3) The determination must not include:\n\n (a) any terms that would not be about permitted matters if the determination were an enterprise agreement; or\n\n (b) a term that would be an unlawful term if the determination were an enterprise agreement; or\n\n (c) any designated outworker terms.\n\nBetter off overall test\n\n (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.\n\nSafety net requirements\n\n (5) The determination must not include a term that would, if the determination were an enterprise agreement, mean that the FWC could not approve the agreement:\n\n (a) because the term would contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); or\n\n (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).","sortOrder":590},{"sectionNumber":"273","sectionType":"section","heading":"Mandatory terms of workplace determinations","content":"273  Mandatory terms of workplace determinations\n\nMandatory terms\n\n (1) This section sets out the mandatory terms that a workplace determination must include.\n\nTerm about settling disputes\n\n (2) The determination must include a term that provides a procedure for settling disputes:\n\n (a) about any matters arising under the determination; and\n\n (b) in relation to the National Employment Standards.\n\n (3) Subsection (2) does not apply to the determination if the FWC 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).\n\nFlexibility term\n\n (4) Unless the FWC 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), the determination must include:\n\n (a) unless paragraph (b) applies—the model flexibility term; or\n\n (b) if the model flexibility term does not comply with subsection 270A(2A)—a term that complies with that subsection and that would, if the determination were an enterprise agreement, satisfy paragraph 202(1)(a) and section 203.\n\nConsultation term\n\n (5) Unless the FWC 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), the determination must include:\n\n (a) unless paragraph (b) applies—the model consultation term; or\n\n (b) if the model consultation term does not comply with subsection 270A(2A)—a term that complies with that subsection and that would, if the determination were an enterprise agreement, satisfy subsection 205(1).\n\nDelegates’ rights term\n\n (6) The determination must include a delegates’ rights term for the workplace delegates to whom the determination applies.\n\nNote: Delegates’ rights term is defined in section 12.\n\n (7) The delegates’ rights term must not be less favourable than the delegates’ rights term in any modern award that covers a workplace delegate to whom the determination applies.","sortOrder":591},{"sectionNumber":"274","sectionType":"section","heading":"Agreed terms for workplace determinations","content":"274  Agreed terms for workplace determinations\n\nAgreed term for an industrial action related workplace determination\n\n (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.\n\nNote: The determination must include an agreed term (see subsection 267(2)).\n\nAgreed term for an intractable bargaining workplace determination\n\n (3) An agreed term for an intractable bargaining workplace determination is:\n\n (a) a term that the bargaining representatives for the proposed enterprise agreement concerned had agreed, at the time the application for the intractable bargaining declaration concerned was made, should be included in the agreement; and\n\n (b) any other term, in addition to a term mentioned in paragraph (a), that the bargaining representatives had agreed, at the time the declaration was made, should be included in the agreement; and\n\n (c) if there is a post‑declaration negotiating period for the declaration—any other term, in addition to a term mentioned in paragraph (a) or (b), that the bargaining representatives had agreed, at the end of the period, should be included in the agreement.\n\nNote: The determination must include an agreed term (see subsection 270(2)).","sortOrder":592},{"sectionNumber":"275","sectionType":"section","heading":"Factors the FWC must take into account in deciding terms of a workplace determination","content":"275  Factors the FWC must take into account in deciding terms of a workplace determination\n\n  The factors that the FWC must take into account in deciding which terms to include in a workplace determination include the following:\n\n (a) the merits of the case;\n\n (c) the interests of the employers and employees who will be covered by the determination;\n\n (ca) the significance, to those employers and employees, of any arrangements or benefits in an enterprise agreement that, immediately before the determination is made, applies to any of the employers in respect of any of the employees;\n\n (d) the public interest;\n\n (e) how productivity might be improved in the enterprise or enterprises concerned;\n\n (f) the extent to which the conduct of the bargaining representatives for the proposed enterprise agreement concerned was reasonable during bargaining for the agreement;\n\n (g) the extent to which the bargaining representatives for the proposed enterprise agreement concerned have complied with the good faith bargaining requirements;\n\n (h) incentives to continue to bargain at a later time.","sortOrder":593},{"sectionNumber":"276","sectionType":"section","heading":"When a workplace determination operates etc.","content":"276  When a workplace determination operates etc.\n\n (1) A workplace determination operates from the day on which it is made.\n\n (2) A workplace determination ceases to operate on the earlier of the following days:\n\n (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);\n\n (b) the day on which subsection 278(1) or (2) first has the effect that there is no employee to whom the determination applies.\n\nNote: Subsections 278(1) and (2) deal with when a workplace determination ceases to apply to an employee.\n\n (3) A workplace determination that has ceased to operate can never operate again.","sortOrder":595},{"sectionNumber":"277","sectionType":"section","heading":"Employers, employees and employee organisations covered by a workplace determination","content":"277  Employers, employees and employee organisations covered by a workplace determination\n\nEmployers, employees and employee organisations\n\n (1) A workplace determination covers an employer, employee or employee organisation if the determination is expressed to cover the employer, employee or organisation.\n\nEffect of provisions of this Act, FWC orders and court orders on coverage\n\n (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:\n\n (a) a provision of this Act;\n\n (b) an FWC order made under a provision of this Act;\n\n (c) an order of a court.\n\n (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:\n\n (a) another provision of this Act;\n\n (b) an FWC order made under another provision of this Act;\n\n (c) an order of a court.\n\nWorkplace determinations that have ceased to operate\n\n (4) Despite subsections (1) and (2), a workplace determination that has ceased to operate does not cover an employer, employee or employee organisation.\n\nWorkplace determinations cover employees in relation to particular employment\n\n (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.","sortOrder":596},{"sectionNumber":"278","sectionType":"section","heading":"Interaction of a workplace determination with enterprise agreements etc.","content":"278  Interaction of a workplace determination with enterprise agreements etc.\n\nInteraction with an earlier enterprise agreement\n\n (1A) If:\n\n (a) an enterprise agreement applies to an employee in relation to particular employment; and\n\n (b) a workplace determination that covers the employee in relation to the same employment comes into operation;\n\nthe enterprise agreement ceases to apply to the employee in relation to that employment, and can never so apply again.\n\nInteraction with a later enterprise agreement\n\n (1) If:\n\n (a) a workplace determination applies to an employee in relation to particular employment; and\n\n (b) an enterprise agreement that covers the employee in relation to the same employment comes into operation;\n\nthe determination ceases to apply to the employee in relation to that employment, and can never so apply again.\n\nInteraction with another workplace determination\n\n (2) If:\n\n (a) a workplace determination (the earlier determination) applies to an employee in relation to particular employment; and\n\n (b) another workplace determination (the later determination) that covers the employee in relation to the same employment comes into operation;\n\nthe 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.","sortOrder":597},{"sectionNumber":"279","sectionType":"section","heading":"Act applies to a workplace determination as if it were an enterprise agreement","content":"279  Act applies to a workplace determination as if it were an enterprise agreement\n\n (1) This Act applies to a workplace determination that is in operation as if it were an enterprise agreement that is in operation.\n\n (2) However, the following provisions do not apply to the determination:\n\n (a) section 50 (which deals with contraventions of enterprise agreements);\n\n (b) section 53 (which deals with the coverage of enterprise agreements);\n\n (c) section 54 (which deals with the operation of enterprise agreements);\n\n (d) section 58 (which deals with the interaction between one or more enterprise agreements);\n\n (e) section 183 (which deals with the entitlement of employee organisations to be covered by enterprise agreements);\n\n (f) the provisions of Subdivisions A, AA, AB, AC, AD, AE 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).\n\n (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.","sortOrder":598},{"sectionNumber":"280","sectionType":"section","heading":"Contravening a workplace determination","content":"280  Contravening a workplace determination\n\n  A person must not contravene a term of a workplace determination.\n\nNote 1: This section is a civil remedy provision (see Part 4‑1).\n\nNote 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).","sortOrder":600},{"sectionNumber":"281","sectionType":"section","heading":"Applications by bargaining representatives","content":"281  Applications by bargaining representatives\n\nApplication of this section\n\n (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.\n\nPersons who may make applications\n\n (2) If the agreement would have covered more than one employer, the application may be made by:\n\n (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\n\n (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.","sortOrder":601},{"sectionNumber":"281AA","sectionType":"section","heading":"Entitlement for volunteer bodies to make submissions","content":"281AA  Entitlement for volunteer bodies to make submissions\n\n (1) A body covered by subsection (2) is entitled to make a submission for consideration in relation to a matter before the FWC if:\n\n (a) the matter arises under this Part; and\n\n (b) the matter affects, or could affect, the volunteers of a designated emergency management body.\n\n (2) The bodies are as follows:\n\n (a) a body corporate that:\n\n (i) has a history of representing the interests of the designated emergency management body’s volunteers; and\n\n (ii) is not prescribed by the regulations for the purposes of this subparagraph;\n\n (b) any other body that is prescribed by the regulations for the purposes of this paragraph.\n\n (3) Subsection (1) applies whether or not the FWC holds a hearing in relation to the matter.","sortOrder":602},{"sectionNumber":"281A","sectionType":"section","heading":"How employees, employers and employee organisations are to be described","content":"281A  How employees, employers and employee organisations are to be described\n\n (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.\n\n (2) The employees may be specified by class or by name.\n\n (3) The employers and employee organisations must be specified by name.\n\n (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:\n\n (a) a particular industry or part of an industry;\n\n (b) a particular kind of work;\n\n (c) a particular type of employment;\n\n (d) a particular classification, job level or grade.","sortOrder":603},{"sectionNumber":"Part 2-6","sectionType":"part","heading":"Minimum wages","content":"Part 2‑6—Minimum wages","sortOrder":604},{"sectionNumber":"282","sectionType":"section","heading":"Guide to this Part","content":"282  Guide to this Part\n\nThis Part provides for the FWC (constituted by an Expert 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.\n\nDivision 2 provides for the minimum wages objective. This requires the FWC to establish and maintain a safety net of fair minimum wages, taking into account certain social and economic factors.\n\nDivision 3 provides for the FWC (constituted by an Expert Panel) to conduct annual wage reviews. In an annual wage review, the FWC 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).\n\nDivision 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.\n\nNational minimum wages and special national minimum wages apply to award/agreement free employees. However, they are also relevant to other employees as follows:\n\n (a) in setting or varying modern award minimum wages, the FWC must take the national minimum wage into account (see subsection 135(2) (in Part 2‑3) and subsection 285(3) (in this Part));\n\n (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)).\n\nFor 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)).","sortOrder":606},{"sectionNumber":"283","sectionType":"section","heading":"Meanings of employee and employer","content":"283  Meanings of employee and employer\n\n  In this Part, employee means a national system employee, and employer means a national system employer.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":607},{"sectionNumber":"284","sectionType":"section","heading":"The minimum wages objective","content":"284  The minimum wages objective\n\nWhat is the minimum wages objective?\n\n (1) The FWC must establish and maintain a safety net of fair minimum wages, taking into account:\n\n (a) the performance and competitiveness of the national economy, including productivity, business competitiveness and viability, inflation and employment growth; and\n\n (aa) the need to achieve gender equality, including by ensuring equal remuneration for work of equal or comparable value, eliminating gender‑based undervaluation of work and addressing gender pay gaps; and\n\n (b) promoting social inclusion through increased workforce participation; and\n\n (c) relative living standards and the needs of the low paid; and\n\n (e) providing a comprehensive range of fair minimum wages to junior employees, employees to whom training arrangements apply and employees with a disability.\n\nThis is the minimum wages objective.\n\nWhen does the minimum wages objective apply?\n\n (2) The minimum wages objective applies to the performance or exercise of:\n\n (a) the FWC’s functions or powers under this Part; and\n\n (b) the FWC’s functions or powers under Part 2‑3, so far as they relate to setting, varying or revoking modern award minimum wages.\n\nNote: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the modern awards objective also applies (see section 134).\n\nMeaning of modern award minimum wages\n\n (3) Modern award minimum wages are the rates of minimum wages in modern awards, including:\n\n (a) wage rates for junior employees, employees to whom training arrangements apply and employees with a disability; and\n\n (b) casual loadings; and\n\n (c) piece rates.\n\nMeaning of setting and varying modern award minimum wages\n\n (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.","sortOrder":609},{"sectionNumber":"285","sectionType":"section","heading":"Annual wage reviews to be conducted","content":"285  Annual wage reviews to be conducted\n\n (1) The FWC must conduct and complete an annual wage review in each financial year.\n\nNote 1: The FWC must be constituted by an Expert Panel to conduct annual wage reviews, and to make determinations and orders in those reviews (see section 617).\n\nNote 2: The President may give directions about the conduct of annual wage reviews (see section 582).\n\n (2) In an annual wage review, the FWC:\n\n (a) must review:\n\n (i) modern award minimum wages; and\n\n (ii) the national minimum wage order; and\n\n (b) may make one or more determinations varying modern awards to set, vary or revoke modern award minimum wages; and\n\n (c) must make a national minimum wage order.\n\nNote: For provisions about national minimum wage orders, see Division 4.\n\n (3) In exercising its power in an annual wage review to make determinations referred to in paragraph (2)(b), the FWC must take into account the rate of the national minimum wage that it proposes to set in the review.","sortOrder":612},{"sectionNumber":"286","sectionType":"section","heading":"When annual wage review determinations varying modern awards come into operation","content":"286  When annual wage review determinations varying modern awards come into operation\n\nDeterminations generally come into operation on 1 July\n\n (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.\n\nLater operation of determinations in exceptional circumstances\n\n (2) If the FWC is satisfied that there are exceptional circumstances justifying why a variation determination should not come into operation until a later day, the FWC 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.\n\nNote: This may mean that the FWC needs to make more than one determination, if different circumstances apply to different employees.\n\n (3) If a later day is so specified, the variation determination comes into operation on that later day.\n\nEffect of determinations cannot be deferred\n\n (4) The FWC 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.\n\nDeterminations take effect from first full pay period\n\n (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.","sortOrder":613},{"sectionNumber":"287","sectionType":"section","heading":"When national minimum wage orders come into operation etc.","content":"287  When national minimum wage orders come into operation etc.\n\nOrders come into operation on 1 July\n\n (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).\n\nSetting of different wages or loadings only permitted in exceptional circumstances\n\n (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:\n\n (a) the FWC is satisfied that there are exceptional circumstances justifying setting different wages or loadings; and\n\n (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.\n\n (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:\n\n (a) the FWC is satisfied that there are exceptional circumstances justifying setting different wages; and\n\n (b) the setting of different wages is limited just to the extent necessary because of the particular situation to which the exceptional circumstances relate.\n\nAdjustments taking effect during year of operation only permitted in exceptional circumstances\n\n (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:\n\n (a) the FWC is satisfied that there are exceptional circumstances justifying the adjustment taking effect on that day; and\n\n (b) the adjustment is limited just to the particular situation to which the exceptional circumstances relate.\n\nWhen orders take effect\n\n (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.","sortOrder":614},{"sectionNumber":"288","sectionType":"section","heading":"General","content":"288  General\n\n  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 the FWC’s processes in Part 5‑1.\n\nNote: Relevant provisions of Part 5‑1 include the following:\n\n(a) section 582 (which deals with the President’s power to give directions);\n\n(b) section 590 (which deals with the FWC’s discretion to inform itself as it considers appropriate, including by commissioning research);\n\n(c) section 596 (which deals with being represented in a matter before the FWC);\n\n(d) section 601 (which deals with writing and publication requirements).","sortOrder":616},{"sectionNumber":"289","sectionType":"section","heading":"Everyone to have a reasonable opportunity to make and comment on submissions","content":"289  Everyone to have a reasonable opportunity to make and comment on submissions\n\n (1) The FWC must, in relation to each annual wage review, ensure that all persons and bodies have a reasonable opportunity to make written submissions to the FWC for consideration in the review.\n\n (2) The FWC must publish all submissions made to the FWC for consideration in the review.\n\n (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 the FWC is satisfied that the information is confidential or commercially sensitive, the FWC:\n\n (a) may decide not to publish the information; and\n\n (b) may instead publish:\n\n (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\n\n (ii) if the FWC 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.\n\n (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).\n\n (5) The FWC must ensure that all persons and bodies have a reasonable opportunity to make comments to the FWC, for consideration in the review, on the material published under subsections (2) and (3).\n\n (6) The publishing of material under subsections (2) and (3) may be on the FWC’s website or by any other means that the FWC considers appropriate.","sortOrder":617},{"sectionNumber":"290","sectionType":"section","heading":"President may direct investigations and reports","content":"290  President may direct investigations and reports\n\n (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.\n\n (2) The direction:\n\n (a) may be given to:\n\n (i) an Expert Panel; or\n\n (ii) an Expert Panel Member; or\n\n (iii) a Full Bench that includes one or more Expert Panel Members; and\n\n (b) must require the report to be given to the Expert Panel that is constituted to conduct the annual wage review, unless the direction is given to that Expert Panel.","sortOrder":618},{"sectionNumber":"291","sectionType":"section","heading":"Research must be published","content":"291  Research must be published\n\n (1) If the FWC undertakes or commissions research for the purposes of an annual wage review, the FWC must publish the research so that submissions can be made addressing issues covered by the research.\n\n (2) The publication may be on the FWC’s website or by any other means that the FWC considers appropriate.","sortOrder":619},{"sectionNumber":"292","sectionType":"section","heading":"Varied wage rates must be published","content":"292  Varied wage rates must be published\n\n (1) If the FWC makes one or more determinations varying modern award minimum wages in an annual wage review, the FWC must publish the rates of those wages as so varied:\n\n (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\n\n (b) for wages in a modern enterprise award or a State reference public sector modern award—as soon as practicable.\n\nNote: The FWC must also publish the modern award as varied (see section 168).\n\n (2) The publication may be on the FWC’s website or by any other means that the FWC considers appropriate.","sortOrder":620},{"sectionNumber":"293","sectionType":"section","heading":"Contravening a national minimum wage order","content":"293  Contravening a national minimum wage order\n\n  An employer must not contravene a term of a national minimum wage order.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":622},{"sectionNumber":"294","sectionType":"section","heading":"Content of national minimum wage order—main provisions","content":"294  Content of national minimum wage order—main provisions\n\nSetting minimum wages and the casual loading\n\n (1) A national minimum wage order:\n\n (a) must set the national minimum wage; and\n\n (b) must set special national minimum wages for all award/agreement free employees in the following classes:\n\n (i) junior employees;\n\n (ii) employees to whom training arrangements apply;\n\n (iii) employees with a disability; and\n\n (c) must set the casual loading for award/agreement free employees.\n\nNote: A national minimum wage order must be made in each annual wage review (see section 285).\n\nRequiring employers to pay minimum wages and the casual loading\n\n (2) The order:\n\n (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\n\n (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\n\n (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).\n\nWhat employees does the national minimum wage apply to?\n\n (3) The national minimum wage applies to all award/agreement free employees who are not:\n\n (a) junior employees; or\n\n (b) employees to whom training arrangements apply; or\n\n (c) employees with a disability.\n\nWhat employees does a special national minimum wage apply to?\n\n (4) A special national minimum wage applies to the employees to whom it is expressed in the order to apply. Those employees must be:\n\n (a) all junior employees who are award/agreement free employees, or a specified class of those employees; or\n\n (b) all employees to whom training arrangements apply and who are award/agreement free employees, or a specified class of those employees; or\n\n (c) all employees with a disability who are award/agreement free employees, or a specified class of those employees.","sortOrder":623},{"sectionNumber":"295","sectionType":"section","heading":"Content of national minimum wage order—other matters","content":"295  Content of national minimum wage order—other matters\n\nExpressing minimum wages and the casual loading\n\n (1) In a national minimum wage order:\n\n (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\n\n (b) the casual loading for award/agreement free employees must be expressed as a percentage.\n\nNote: The means by which the national minimum wage or a special national minimum wage may be expressed include:\n\n(a) a monetary amount per hour; or\n\n(b) a monetary amount for a specified number of hours; or\n\n(c) a method for calculating a monetary amount per hour.\n\nTerms about how the order applies\n\n (2) The order may also include terms about how the order, or any of the requirements in it, applies.","sortOrder":624},{"sectionNumber":"296","sectionType":"section","heading":"Variation of national minimum wage order to remove ambiguity or uncertainty or correct error","content":"296  Variation of national minimum wage order to remove ambiguity or uncertainty or correct error\n\nPermitted variations\n\n (1) The FWC may make a determination varying a national minimum wage order to remove an ambiguity or uncertainty or to correct an error.\n\nNote: The FWC must be constituted by an Expert Panel to vary a national minimum wage order (see section 617).\n\n (2) If the FWC varies a national minimum wage order, the FWC must, as soon as practicable, publish the order as varied on its website or by any other means that the FWC considers appropriate.\n\nNo other variation or revocation permitted\n\n (3) A national minimum wage order:\n\n (a) cannot be varied except as referred to in subsection (1); and\n\n (b) cannot be revoked.","sortOrder":625},{"sectionNumber":"297","sectionType":"section","heading":"When determinations varying national minimum wage orders come into operation","content":"297  When determinations varying national minimum wage orders come into operation\n\nDeterminations come into operation on specified day\n\n (1) A determination varying a national minimum wage order under section 296 comes into operation on the day specified in the determination.\n\nNote: For when a national minimum wage order comes into operation, see section 287.\n\n (2) The specified day must not be earlier than the day on which the determination is made, unless the FWC is satisfied that there are exceptional circumstances that justify specifying an earlier day.\n\nDeterminations take effect from first full pay period\n\n (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.","sortOrder":626},{"sectionNumber":"298","sectionType":"section","heading":"Special rule about retrospective variations of national minimum wage orders","content":"298  Special rule about retrospective variations of national minimum wage orders\n\nApplication of this section\n\n (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.\n\nNo creation of liability to pay pecuniary penalty for past conduct\n\n (2) If:\n\n (a) a person engaged in conduct before the determination was made; and\n\n (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;\n\na 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.\n\nNote 1: This subsection does not affect the powers of a court to make other kinds of orders under Division 2 of Part 4‑1.\n\nNote 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).","sortOrder":627},{"sectionNumber":"299","sectionType":"section","heading":"When a national minimum wage order is in operation","content":"299  When a national minimum wage order is in operation\n\n  A national minimum wage order continues in operation until the next national minimum wage order comes into operation.\n\nNote: For when a national minimum wage order comes into operation, see section 287.","sortOrder":628},{"sectionNumber":"Part 2-7","sectionType":"part","heading":"Equal remuneration","content":"Part 2‑7—Equal remuneration","sortOrder":629},{"sectionNumber":"300","sectionType":"section","heading":"Guide to this Part","content":"300  Guide to this Part\n\nThis Part allows the FWC to make orders to ensure that there will be equal remuneration for men and women workers for work of equal or comparable value.","sortOrder":631},{"sectionNumber":"301","sectionType":"section","heading":"Meanings of employee and employer","content":"301  Meanings of employee and employer\n\n  In this Part, employee means a national system employee, and employer means a national system employer.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":632},{"sectionNumber":"302","sectionType":"section","heading":"FWC may make an order requiring equal remuneration","content":"302  FWC may make an order requiring equal remuneration\n\nPower to make an equal remuneration order\n\n (1) The FWC 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.\n\nNote: The FWC must be constituted by an Expert Panel for the purposes of making an equal remuneration order (see subsections 617(7) and (10)).\n\nMeaning of equal remuneration for work of equal or comparable value\n\n (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.\n\nWhen the FWC may make an equal remuneration order\n\n (3) The FWC may make the equal remuneration order:\n\n (a) on its own initiative; or\n\n (b) on application by any of the following:\n\n (i) an employee to whom the order will apply;\n\n (ii) an employee organisation that is entitled to represent the industrial interests of an employee to whom the order will apply;\n\n (iii) the Sex Discrimination Commissioner.\n\nGender equity considerations\n\n (3A) For the purposes of this Act, in deciding whether there is equal remuneration for work of equal or comparable value, the FWC may take into account:\n\n (a) comparisons within and between occupations and industries to establish whether the work has been undervalued on the basis of gender; or\n\n (b) whether historically the work has been undervalued on the basis of gender; or\n\n (c) any fair work instrument or State industrial instrument.\n\n (3B) If the FWC takes into account a comparison for the purposes of paragraph (3A)(a), the comparison:\n\n (a) is not limited to similar work; and\n\n (b) does not need to be a comparison with an historically male‑dominated occupation or industry.\n\n (3C) If the FWC takes into account a matter referred to in paragraph (3A)(a) or (b), the FWC is not required to find discrimination on the basis of gender to establish the work has been undervalued as referred to in that paragraph.\n\nFWC must take into account orders and determinations made in annual wage reviews\n\n (4) For the purposes of this Act, in deciding whether there is equal remuneration for work of equal or comparable value, the FWC must take into account:\n\n (a) orders and determinations made by the FWC in annual wage reviews; and\n\n (b) the reasons for those orders and determinations.\n\nNote: The FWC must be constituted by an Expert Panel in annual wage reviews (see section 617).\n\n (4A) Nothing in this section limits the considerations the FWC may take into account in deciding whether there is equal remuneration for work of equal or comparable value.\n\nRequirement to make an equal remuneration order\n\n (5) If an application for an equal remuneration order is made as mentioned in paragraph (3)(b), the FWC must make the equal remuneration order 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.","sortOrder":634},{"sectionNumber":"303","sectionType":"section","heading":"Equal remuneration order may increase, but must not reduce, rates of remuneration","content":"303  Equal remuneration order may increase, but must not reduce, rates of remuneration\n\n (1) Without limiting subsection 302(1), an equal remuneration order may provide for such increases in rates of remuneration as the FWC 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.\n\n (2) An equal remuneration order must not provide for a reduction in an employee’s rate of remuneration.","sortOrder":635},{"sectionNumber":"304","sectionType":"section","heading":"Equal remuneration order may implement equal remuneration in stages","content":"304  Equal remuneration order may implement equal remuneration in stages\n\n  An equal remuneration order may implement equal remuneration for work of equal or comparable value in stages (as provided in the order) if the FWC considers that it is not feasible to implement equal remuneration for work of equal or comparable value when the order comes into operation.","sortOrder":636},{"sectionNumber":"305","sectionType":"section","heading":"Contravening an equal remuneration order","content":"305  Contravening an equal remuneration order\n\n  An employer must not contravene a term of an equal remuneration order.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":637},{"sectionNumber":"306","sectionType":"section","heading":"Inconsistency with modern awards, enterprise agreements and orders of the FWC","content":"306  Inconsistency with modern awards, enterprise agreements and orders of the FWC\n\n  A term of a modern award, an enterprise agreement or an FWC 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.","sortOrder":638},{"sectionNumber":"Part 2-7A","sectionType":"part","heading":"Regulated labour hire arrangement orders","content":"Part 2‑7A—Regulated labour hire arrangement orders","sortOrder":639},{"sectionNumber":"306A","sectionType":"section","heading":"Guide to this Part","content":"306A  Guide to this Part\n\nThis Part is about regulated labour hire arrangement orders.\n\nDivision 2 deals with the making of regulated labour hire arrangement orders by the FWC and sets out the obligations of employers and regulated hosts covered by those orders.\n\nDivision 2 also deals with the making of alternative protected rate of pay orders by the FWC, the continued application of regulated labour hire arrangement orders in particular circumstances, and certain payments relating to termination of employment.\n\nDivision 3 deals with disputes about the operation of this Part.\n\nDivision 4 is about anti‑avoidance.\n\nDivision 5 requires the FWC to make written guidelines in relation to the operation of this Part.","sortOrder":641},{"sectionNumber":"306B","sectionType":"section","heading":"Meanings of employee and employer","content":"306B  Meanings of employee and employer\n\n  In this Part, employee means a national system employee, and employer means a national system employer.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":642},{"sectionNumber":"306C","sectionType":"section","heading":"Meaning of regulated host","content":"306C  Meaning of regulated host\n\n  A regulated host is:\n\n (a) a constitutional corporation; or\n\n (b) the Commonwealth; or\n\n (c) a Commonwealth authority; or\n\n (d) a person, so far as work is performed for the person in connection with constitutional trade or commerce, and the work is of a kind that would ordinarily be performed by:\n\n (i) a flight crew officer; or\n\n (ii) a maritime employee; or\n\n (iii) a waterside worker; or\n\n (e) a body corporate incorporated in a Territory; or\n\n (f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as work is performed for the person in connection with the activity carried on in the Territory; or\n\n (g) a person, so far as work is performed for the person in a Territory in Australia; or\n\n (h) any person in a State that is a referring State because of Division 2A or 2B of Part 1‑3.\n\nNote: In this context, Australia includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see the definition of Australia in section 12).","sortOrder":643},{"sectionNumber":"306D","sectionType":"section","heading":"References to kinds of work and work performed for a person etc.","content":"306D  References to kinds of work and work performed for a person etc.\n\n (1) A reference in this Part to work of a kind includes a reference to work that is substantially of that kind.\n\n (2) A reference in this Part to work performed for a person includes a reference to work performed wholly or principally for the benefit of:\n\n (a) the person; or\n\n (b) an enterprise carried on by the person; or\n\n (c) a joint venture or common enterprise engaged in by the person and one or more other persons.\n\n (3) To avoid doubt, in determining for the purposes of this Part whether work is or is to be performed for a person by an employee of an employer, it does not matter whether there is or will be any agreement between the person and the employer relating to the performance of the work.","sortOrder":644},{"sectionNumber":"306E","sectionType":"section","heading":"FWC may make a regulated labour hire arrangement order","content":"306E  FWC may make a regulated labour hire arrangement order\n\nRegulated labour hire arrangement order\n\n (1) The FWC must, on application by a person mentioned in subsection (7), make an order (a regulated labour hire arrangement order) if the FWC is satisfied that:\n\n (a) an employer supplies or will supply, either directly or indirectly, one or more employees of the employer to perform work for a regulated host; and\n\n (b) a covered employment instrument that applies to the regulated host would apply to the employees if the regulated host were to employ the employees to perform work of that kind; and\n\n (c) the regulated host is not a small business employer.\n\nNote: The FWC may make other decisions under this Part which relate to regulated labour hire arrangement orders: see Subdivisions C (short‑term arrangements) and D (alternative protected rate of pay orders) of this Division, and Division 3 (dealing with disputes).\n\n (1A) Despite subsection (1), the FWC must not make the order unless it is satisfied that the performance of the work is not or will not be for the provision of a service, rather than the supply of labour, having regard to the matters in subsection (7A).\n\n (2) Despite subsection (1), the FWC must not make the order if the FWC is satisfied that it is not fair and reasonable in all the circumstances to do so, having regard to any matters in subsection (8) in relation to which submissions have been made.\n\n (3) For the purposes of paragraph (1)(a), it does not matter:\n\n (a) whether the supply is the result of an agreement, or one or more agreements; or\n\n (b) if there are one or more agreements relating to the supply—whether an agreement is between:\n\n (i) the regulated host and the employer; or\n\n (ii) the regulated host and a person other than the employer; or\n\n (iii) the employer and a person other than the regulated host; or\n\n (iv) any 2 persons who are neither the regulated host nor the employer; or\n\n (c) whether the regulated host and employer are related bodies corporate.\n\nNote: If related bodies corporate with different corporate branding do not provide labour to each other, a regulated labour hire arrangement order cannot be made because labour is not supplied in the way mentioned in paragraph (1)(a).\n\n (4) For the purposes of paragraph (1)(b), in determining whether a covered employment instrument would apply to the employees, it does not matter on what basis the employees are or would be employed.\n\nRegulated employee and host employment instrument\n\n (5) An employee referred to in paragraph (1)(a) is a regulated employee.\n\n (6) The covered employment instrument referred to in paragraph (1)(b) is a host employment instrument.\n\nWho may apply for an order\n\n (7) The following persons may apply for the order:\n\n (a) a regulated employee;\n\n (b) an employee of the regulated host;\n\n (c) an employee organisation that is entitled to represent the industrial interests of an employee mentioned in paragraph (a) or (b);\n\n (d) the regulated host.\n\nMatters that must be considered in relation to whether work is for the provision of a service\n\n (7A) For the purposes of subsection (1A), the matters are as follows:\n\n (a) the involvement of the employer in matters relating to the performance of the work;\n\n (b) the extent to which, in practice, the employer or a person acting on behalf of the employer directs, supervises or controls (or will direct, supervise or control) the regulated employees when they perform the work, including by managing rosters, assigning tasks or reviewing the quality of the work;\n\n (c) the extent to which the regulated employees use or will use systems, plant or structures of the employer to perform the work;\n\n (d) the extent to which either the employer or another person is or will be subject to industry or professional standards or responsibilities in relation to the regulated employees;\n\n (e) the extent to which the work is of a specialist or expert nature.\n\nMatters to be considered if submissions are made\n\n (8) For the purposes of subsection (2), the matters are as follows:\n\n (a) the pay arrangements that apply to employees of the regulated host (or related bodies corporate of the regulated host) and the regulated employees, including in relation to:\n\n (i) whether the host employment instrument applies only to a particular class or group of employees; and\n\n (ii) whether, in practice, the host employment instrument has ever applied to an employee at a classification, job level or grade that would be applicable to the regulated employees; and\n\n (iii) the rate of pay that would be payable to the regulated employees if the order were made;\n\n (c) the history of industrial arrangements applying to the regulated host and the employer;\n\n (d) the relationship between the regulated host and the employer, including whether they are related bodies corporate or engaged in a joint venture or common enterprise;\n\n (da) if the performance of the work is or will be wholly or principally for the benefit of a joint venture or common enterprise engaged in by the regulated host and one or more other persons:\n\n (i) the nature of the regulated host’s interests in the joint venture or common enterprise; and\n\n (ii) the pay arrangements that apply to employees of any of the other persons engaged in the joint venture or common enterprise (or related bodies corporate of those other persons);\n\n (e) the terms and nature of the arrangement under which the work will be performed, including:\n\n (i) the period for which the arrangement operates or will operate; and\n\n (ii) the location of the work being performed or to be performed under the arrangement; and\n\n (iii) the industry in which the regulated host and the employer operate; and\n\n (iv) the number of employees of the employer performing work, or who are to perform work, for the regulated host under the arrangement;\n\n (f) any other matter the FWC considers relevant.\n\nWhat an order must specify\n\n (9) A regulated labour hire arrangement order must specify:\n\n (a) the regulated host covered by the order; and\n\n (b) the employer covered by the order under this section; and\n\n (c) the regulated employees covered by the order under this section; and\n\n (d) the host employment instrument covered by the order; and\n\n (e) the day the order comes into force, which must be:\n\n (i) if the order is made before 1 November 2024—that day or a later day; or\n\n (ii) otherwise—the day the order is made or a later day.\n\nNote: For paragraphs (b) and (c), additional employers and regulated employees of those employers may be covered by the order under section 306EA.\n\nWhat an order may specify\n\n (10) A regulated labour hire arrangement order may specify when the order ceases to be in force.\n\nNote: For variation and revocation of a regulated labour hire arrangement order, see section 603.","sortOrder":647},{"sectionNumber":"306EA","sectionType":"section","heading":"Regulated labour hire arrangement order may cover additional arrangements","content":"306EA  Regulated labour hire arrangement order may cover additional arrangements\n\nDetermination that application covers additional employers and employees\n\n (1) If an application for a regulated labour hire arrangement order is made in relation to a regulated host, an employer and one or more employees of the employer, the FWC may determine that the application is taken to also relate to:\n\n (a) one or more other employers (each of which is an additional employer) that the FWC is satisfied supply or will supply, in the manner referred to in paragraph 306E(1)(a), one or more employees to perform work, for the regulated host, of the kind in relation to which the application was made; and\n\n (b) the employees referred to in paragraph (a) of this subsection (each of whom is an additional regulated employee).\n\nNote: The employees referred to in paragraph (a) of this subsection are regulated employees (see subsection 306E(5)).\n\n (2) The FWC may make the determination:\n\n (a) on its own initiative; or\n\n (b) on application by any of the following:\n\n (i) the applicant for the order or any other person who could have applied for the order (see subsection 306E(7));\n\n (ii) the employer mentioned in paragraph 306E(1)(a);\n\n (iii) an employer that supplies or will supply employees as referred to in paragraph (1)(a) of this section;\n\n (iv) a person who is such an employee;\n\n (v) an employee organisation that is entitled to represent the industrial interests of such an employee.\n\n (3) If the FWC makes such a determination, the FWC must seek the views of the following before deciding whether to make the regulated labour hire arrangement order:\n\n (a) the additional regulated employees;\n\n (b) employee organisations that are entitled to represent the industrial interests of the additional regulated employees;\n\n (c) the additional employers.\n\nAdditional employers and employees in regulated labour hire arrangement order\n\n (4) Subject to subsections (5) and (6), if the FWC makes a determination under subsection (1) in relation to an application for a regulated labour hire arrangement order, the FWC may specify in the regulated labour hire arrangement order (if made) that, in addition to the persons referred to in paragraphs 306E(9)(b) and (c), the order also covers:\n\n (a) any or all of the additional employers; and\n\n (b) additional regulated employees of those employers.\n\n (5) The FWC must not specify an additional employer or additional regulated employees of the employer under subsection (4) unless:\n\n (a) the FWC is satisfied of the matters mentioned in subsection 306E(1) in relation to the additional employer and the additional regulated employees; and\n\n (b) the FWC is satisfied that the covered employment instrument that would apply to the additional regulated employees, as referred to in paragraph 306E(1)(b), is the host employment instrument covered by the order; and\n\n (c) the FWC is satisfied that the performance of the work by the additional regulated employees is not or will not be for the provision of a service, rather than the supply of labour, having regard to the matters in subsection 306E(7A) in relation to the additional employer and the additional regulated employees.\n\n (6) The FWC must not specify an additional employer or additional regulated employees of the employer under subsection (4) if the FWC is satisfied that it is not fair and reasonable in all the circumstances to do so, having regard to:\n\n (a) the views (if any) of persons referred to in subsection (3); and\n\n (b) any matters mentioned in subsection 306E(8) in relation to which submissions are made, to the extent the submissions relate to the additional employer and the additional regulated employees.","sortOrder":648},{"sectionNumber":"306EB","sectionType":"section","heading":"Application of regulated labour hire arrangement order to new covered employment instrument","content":"306EB  Application of regulated labour hire arrangement order to new covered employment instrument\n\n (1) This section applies if:\n\n (a) a regulated labour hire arrangement order is in force; and\n\n (b) the host employment instrument covered by the order ceases to apply to the regulated host covered by the order, or to a class of employees of the regulated host covered by the order, in connection with another covered employment instrument (the new instrument) starting to apply to the regulated host or those employees; and\n\n (c) the new instrument would apply to the regulated employees covered by the order if the regulated host were to employ the employees to perform work of a kind to which the order relates.\n\n (2) From the time the new instrument starts to apply to the regulated host or the class of employees mentioned in paragraph (1)(b), the order has effect (and may be dealt with) as if the new instrument were the host employment instrument covered by the order.\n\n (3) For the purposes of paragraph (1)(c), in determining whether a covered employment instrument would apply to the employees, it does not matter on what basis the employees are or would be employed.","sortOrder":649},{"sectionNumber":"306EC","sectionType":"section","heading":"Notification requirements in relation to new covered employment instrument","content":"306EC  Notification requirements in relation to new covered employment instrument\n\nNotification by regulated host\n\n (1) If a regulated labour hire arrangement order in force covers a regulated host and an event mentioned in subsection (2) occurs, the regulated host must, as soon as practicable after the event occurs, give written notice to any employers covered by the order of:\n\n (a) the event; and\n\n (b) the effect that the event will have or would have in relation to the order.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) The events are the following:\n\n (a) approval, by employees, of a covered employment instrument that will, if it comes into operation, become the host employment instrument covered by the order because of section 306EB;\n\n (b) any other approval or making of a covered employment instrument that will, if it comes into operation, become the host employment instrument covered by the order because of section 306EB, other than an approval by the FWC of an enterprise agreement (see subsection (3) of this section).\n\nNotification by FWC\n\n (3) If the FWC approves an enterprise agreement that, because of section 306EB, will become the host employment instrument covered by a regulated labour hire arrangement order, the FWC must, as soon as practicable after the approval, give written notice to any employers covered by the order of:\n\n (a) the approval of the enterprise agreement; and\n\n (b) the effect of the approval in relation to the order.","sortOrder":650},{"sectionNumber":"306ED","sectionType":"section","heading":"Varying regulated labour hire arrangement order to cover new employers","content":"306ED  Varying regulated labour hire arrangement order to cover new employers\n\n (1) This section applies if:\n\n (a) a regulated labour hire arrangement order that covers a regulated host and one or more employers, and relates to a kind of work, is in force or has been made but is not yet in force; and\n\n (b) one or more other employers (each of which is a new employer) start or will start to supply employees (each of whom is a relevant regulated employee) to perform work of that kind for the regulated host, in a manner referred to in paragraph 306E(1)(a); and\n\n (c) the new employers are not covered by any regulated labour hire arrangement order (whether in force, or made but not yet in force) that covers or will cover the relevant regulated employees in relation to the performance of that work; and\n\n (d) the FWC did not make a determination under subsection 306EA(1) in relation to the new employers and the application for the regulated labour hire arrangement order.\n\nNote: The employees referred to in paragraph (b) of this subsection are regulated employees (see subsection 306E(5)).\n\nRegulated host must make application\n\n (2) As soon as practicable after the regulated host becomes aware of the circumstances referred to in paragraph (1)(b), the regulated host must apply to the FWC for an order under this section varying the regulated labour hire arrangement order to cover the new employers and the relevant regulated employees of those employers.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (3) Section 588 (discontinuing applications) does not apply in relation to the application unless the circumstances referred to in paragraph (1)(b) of this section no longer exist.\n\n (4) As soon as possible after the application is made, the regulated host must give written notice of the following to each of the new employers:\n\n (a) that the application has been made;\n\n (b) the effect of subsection (11) in relation to the application.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\nFWC must decide whether to make variation order\n\n (5) The FWC must:\n\n (a) decide whether to make an order under this section varying the regulated labour hire arrangement order in accordance with subsection (6) or (7) to cover:\n\n (i) any or all of the new employers; and\n\n (ii) relevant regulated employees of those employers; and\n\n (b) take all reasonable steps to make the decision before the time any of those employees start to perform the work referred to in paragraph (1)(b).\n\n (6) The FWC must vary the regulated labour hire arrangement order to cover a new employer and the relevant regulated employees of the employer if the regulated host and the new employer notify the FWC that the regulated host and the new employer agree to the making of the variation.\n\n (7) Subject to subsections (8) and (9), the FWC must also vary the regulated labour hire arrangement order to cover a new employer and the relevant regulated employees of the employer if the FWC is satisfied of the matters referred to in subsection 306E(1) in relation to the regulated host, the new employer and the relevant regulated employees.\n\n (8) The FWC must not vary the regulated labour hire arrangement order in accordance with subsection (7) unless the FWC is satisfied that the performance of the work by the relevant regulated employees is not or will not be for the provision of a service, rather than the supply of labour, having regard to the matters referred to in subsection 306E(7A) in relation to the new employer and the relevant regulated employees.\n\n (9) The FWC must not vary the regulated labour hire arrangement order in accordance with subsection (7) if the FWC is satisfied that it is not fair and reasonable in all the circumstances to make the variation, having regard to any matters referred to in subsection 306E(8) in relation to which submissions have been made in respect of the variation.\n\nWhen variation order comes into force\n\n (10) An order under this section comes into force on a day specified in the order.\n\nInterim arrangements before FWC decides application\n\n (11) If the FWC does not decide whether to make an order under this section by the time referred to in paragraph (5)(b), the regulated labour hire arrangement order is taken (so long as it is in force) to cover the new employers and the relevant regulated employees from the time the application for the order under this section is made until:\n\n (a) if the FWC decides not to make an order under this section—the time the FWC makes that decision; or\n\n (b) if the FWC decides to make an order under this section—the time that order comes into force.","sortOrder":651},{"sectionNumber":"306EE","sectionType":"section","heading":"Notifying tenderers etc. of regulated labour hire arrangement order","content":"306EE  Notifying tenderers etc. of regulated labour hire arrangement order\n\n (1) This section applies if:\n\n (a) a regulated host is covered by a regulated labour hire arrangement order that is in force or has been made but is not yet in force; and\n\n (b) a tender process is conducted:\n\n (i) by or on behalf of the regulated host; or\n\n (ii) for the purposes of a joint venture or common enterprise engaged in by the regulated host and one or more other persons.\n\n (2) If it could reasonably be expected that one or more employers would, as a result of the tender process, become covered by the regulated labour hire arrangement order because of section 306ED, the regulated host must ensure that, from the start of the tender process, all prospective tenderers are advised, in writing, that if one or more tenderers are successful in the process:\n\n (a) one or more employers could become covered by the regulated labour hire arrangement order; and\n\n (b) the employers could be required to pay employees of the employers who perform work for the regulated host, in accordance with this Part, in connection with the work.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (3) If the regulated host is required to apply to the FWC in relation to one or more employers under subsection 306ED(2) as a result of the tender process, the regulated host must, as soon as practicable after the end of the tender process, advise the successful tenderer or tenderers in that process (whether or not they are the employers), in writing, of the following:\n\n (a) that the regulated host is required to make the application;\n\n (b) the effect of subsection 306ED(11) in relation to the application;\n\n (c) that if the FWC decides to vary the order under section 306ED to cover those employers, and the order is in force or comes into force, the employers will be required to pay employees of the employers who perform work for the regulated host, in accordance with this Part, in connection with the work.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).","sortOrder":652},{"sectionNumber":"306F","sectionType":"section","heading":"Protected rate of pay payable to employees if a regulated labour hire arrangement order is in force","content":"306F  Protected rate of pay payable to employees if a regulated labour hire arrangement order is in force\n\nApplication of section\n\n (1) This section applies if a regulated labour hire arrangement order is in force that covers a regulated host, an employer and a regulated employee of the employer.\n\nEmployer must not pay less than protected rate of pay\n\n (2) The employer must pay the regulated employee at no less than the protected rate of pay for the employee in connection with the work performed by the employee for the regulated host.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\nExceptions\n\n (3) The employer does not contravene subsection (2) if the employer pays the regulated employee at less than the protected rate of pay because:\n\n (a) the regulated host provides information to the employer under section 306H (which deals with information about the protected rate of pay); and\n\n (b) the employer reasonably relies on the information for the purposes of working out the protected rate of pay for the regulated employee; and\n\n (c) the information is incorrect in a material particular.\n\n (3A) The employer does not contravene subsection (2) if:\n\n (a) the regulated labour hire arrangement order covers the employer because of the operation of subsection 306ED(11); and\n\n (b) the employer pays the regulated employee at less than the protected rate of pay because the employer has not been either:\n\n (i) notified that the regulated host has made an application under subsection 306ED(2) (which deals with certain variation orders); or\n\n (ii) for an employer who was a successful tenderer in a tender process—advised under subsection 306EE(2) or (3) (which deal with notifying tenderers) in relation to the regulated labour hire arrangement order.\n\nMeaning of protected rate of pay\n\n (4) Unless subsection (5) applies, the protected rate of pay for the regulated employee is the full rate of pay that would be payable to the employee if the host employment instrument covered by the regulated labour hire arrangement order were to apply to the employee.\n\n (5) If the regulated employee is a casual employee, and there is no covered employment instrument that applies to the regulated host that provides for work of that kind to be performed by casual employees, the protected rate of pay for the regulated employee is the full rate of pay that would be payable to the employee if:\n\n (a) the employee were an employee other than a casual employee and the host employment instrument covered by the regulated labour hire arrangement order were to apply to the employee; and\n\n (b) the base rate of pay that would be payable to the employee, in the circumstances referred to in paragraph (a), were increased by 25%.\n\n (6) Despite subsections (4) and (5), if the employer is a national system employer only because of section 30D or 30N, the protected rate of pay for the regulated employee does not include any amount that relates to an excluded subject matter within the meaning of subsection 30A(1) or 30K(1).\n\nNote: Sections 30D and 30N extend the meaning of national system employer.\n\n (7) If the regulated employee is a pieceworker and paragraph 16(2)(b) would apply to the employee were the host employment instrument to apply to the employee, the base rate of pay that would be payable to the employee for the purposes of subsection (5) of this section is taken to be the base rate of pay that would be referred to in that paragraph.\n\n (8) If the regulated employee is a pieceworker and paragraph 18(2)(b) would apply to the employee were the host employment instrument to apply to the employee, the full rate of pay that would be payable to the employee for the purposes of subsections (4) and (5) of this section is taken to be the full rate of pay that would be referred to in that paragraph.\n\n (9) To avoid doubt, this section does not require that a regulated employee referred to in subsection (5) be taken to be an employee other than a casual employee for the purposes of determining entitlements to kinds of leave, or any other purpose, except determining the protected rate of pay for the regulated employee.\n\nRequirement to pay no less than protected rate of pay applies despite other fair work instruments etc.\n\n (10) Subsection (2) applies despite any provision of:\n\n (a) a fair work instrument (other than an instrument made by the FWC under this Part) that applies to the regulated employee; or\n\n (b) a covered employment instrument (other than a fair work instrument) that applies to the regulated employee; or\n\n (c) the regulated employee’s contract of employment;\n\nthat provides for a rate of pay for the regulated employee that is less than the protected rate of pay for the regulated employee.\n\nNote: See also section 306N (effect of alternative protected rate of pay order) and subsection 306Q(6) (effect of arbitrated protected rate of pay order).","sortOrder":654},{"sectionNumber":"306G","sectionType":"section","heading":"Exceptions from requirement to pay protected rate of pay","content":"306G  Exceptions from requirement to pay protected rate of pay\n\nTraining arrangements\n\n (1) Section 306F does not apply to a regulated employee if a training arrangement applies to the employee in respect of the work performed for the regulated host.\n\nCertain short‑term arrangements\n\n (2) Section 306F does not apply to a regulated employee if:\n\n (a) no determination for the purposes of paragraph 306J(2)(a) (no exemption period) that applies to the employee in respect of the work performed for the regulated host is in force; and\n\n (b) the employee performs, or is to perform, the work for the regulated host during:\n\n (i) if neither subparagraph (ii) nor (iii) applies—a period of no longer than 3 months; or\n\n (ii) if a determination in force under section 306J specifies a period as the exemption period for the regulated host, the employer and the work—a period of no longer than the period specified; or\n\n (iii) if subparagraph (ii) does not apply and the work commences during a recurring extended exemption period for work of the kind performed by the employee for the regulated host—a period of no longer than the remainder of the extended exemption period, or a period of no longer than 3 months, whichever ends later.\n\n (3) However, if the regulated employee does in fact perform the work for longer than the maximum period applicable under paragraph (2)(b), as a result of a variation to or the making of one or more agreements, section 306F applies to the regulated employee on and after the day the agreements are varied or made.","sortOrder":655},{"sectionNumber":"306H","sectionType":"section","heading":"Obligations of regulated hosts covered by a regulated labour hire arrangement order","content":"306H  Obligations of regulated hosts covered by a regulated labour hire arrangement order\n\nApplication of this section\n\n (1) This section applies to a regulated host and an employer if the regulated host and employer are covered by a regulated labour hire arrangement order that is in force.\n\nAbility to request information regarding protected rate of pay\n\n (2) If the employer reasonably considers that the employer does not have all of the information needed regarding what is the protected rate of pay for one or more regulated employees of the employer covered by the order, the employer may request, in writing, that the regulated host provide the employer with specified information needed.\n\n (3) The regulated host must comply with the request:\n\n (a) as soon as reasonably practicable; and\n\n (b) in any event, within such a period as would reasonably enable the employer to comply with its obligations under section 306F (protected rate of pay payable to employees if a regulated labour hire arrangement order is in force) in relation to the employees.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\nManner of complying with request\n\n (4) The regulated host may comply with the request by:\n\n (a) providing the employer with the information requested; or\n\n (b) providing information, for each relevant pay period of the employees, setting out the protected rate of pay for each employee for the period.","sortOrder":656},{"sectionNumber":"306J","sectionType":"section","heading":"Determination altering exemption period for short-term arrangements","content":"306J  Determination altering exemption period for short‑term arrangements\n\n (1) This section applies if:\n\n (a) a regulated labour hire arrangement order is in force that covers a regulated host, an employer and one or more regulated employees of the employer performing work for the regulated host; or\n\n (b) a regulated labour hire arrangement order has been made but is not yet in force that covers a regulated host, an employer and one or more regulated employees of the employer performing work for the regulated host; or\n\n (c) an application for a regulated labour hire arrangement order that would cover a regulated host, an employer and one or more regulated employees of the employer performing work for the regulated host has been made to the FWC under section 306E but has not been finally determined.\n\n (2) The FWC may determine that, in relation to the regulated host, the employer and work to be performed by one or more regulated employees of the employer:\n\n (a) there is no exemption period for the purposes of section 306G; or\n\n (b) a specified period of less than 3 months is the exemption period for the purposes of that section; or\n\n (c) a specified period of more than 3 months is the exemption period for the purposes of that section.\n\nNote: The exemption period is used in determining whether the exception to pay the protected rate of pay in the case of short‑term arrangements in subsection 306G(2) applies.","sortOrder":658},{"sectionNumber":"306K","sectionType":"section","heading":"Determination of recurring extended exemption period","content":"306K  Determination of recurring extended exemption period\n\n (1) This section applies if:\n\n (a) a regulated labour hire arrangement order is in force that covers a regulated host, one or more employers and one or more regulated employees performing work for the regulated host; or\n\n (b) a regulated labour hire arrangement order has been made but is not yet in force that covers a regulated host, one or more employers and one or more regulated employees performing work for the regulated host; or\n\n (c) an application for a regulated labour hire arrangement order that would cover a regulated host, one or more employers and one or more regulated employees performing work for the regulated host has been made to the FWC under section 306E but has not been finally determined.\n\n (2) The FWC may determine that a specified period of more than 3 months, starting on a specified day of the year in specified consecutive years, is a recurring extended exemption period for the regulated host in relation to a specified kind of work to which the regulated labour hire arrangement order relates.","sortOrder":659},{"sectionNumber":"306L","sectionType":"section","heading":"Making and effect of determinations under this Subdivision","content":"306L  Making and effect of determinations under this Subdivision\n\nWho may apply for determination\n\n (1) The FWC may make a determination under this Subdivision only on application by:\n\n (a) the regulated host, an employer covered by the regulated labour hire arrangement order or a regulated employee covered by the order who is performing or is to perform work for the regulated host; or\n\n (b) an organisation entitled to represent the industrial interests of any of those persons.\n\nTime for making determination\n\n (2) The FWC must decide whether or not to make the determination as quickly as possible after the application is made.\n\nRequirements for making determination\n\n (3) Before deciding whether or not to make the determination, the FWC must seek the views of any person or organisation that, apart from the applicant, could have applied for the determination under subsection (1).\n\n (4) The FWC may make the determination only if satisfied that there are exceptional circumstances that justify making it, having regard to:\n\n (a) whether the purpose of the proposed exemption period or recurring extended exemption period relates to satisfying a seasonal or short‑term need for workers; and\n\n (b) the industry in which the work is performed or is to be performed; and\n\n (c) the circumstances of:\n\n (i) the regulated host; and\n\n (ii) any relevant employers covered by the regulated labour hire arrangement order; and\n\n (d) the views (if any) of any persons or organisations mentioned in subsection (1); and\n\n (e) for a determination made for the purposes of paragraph 306J(2)(c)—the principle that the longer the period to be specified in the determination, the greater the justification required; and\n\n (f) for a determination that a period is a recurring extended exemption period for a regulated host for a kind of work—the principle that the longer the period to be specified in the determination, and the greater the number of recurrences of that period to be specified, the greater the justification required; and\n\n (g) any other matter the FWC considers relevant.\n\nWhen determination comes into force\n\n (5) The determination comes into force on the later of the day the regulated labour hire arrangement order comes into force, and the following:\n\n (a) for a determination under section 306J that there is no exemption period for the purposes of section 306G—the day it is made;\n\n (b) for a determination under section 306J that there is an exemption period of more than, or less than, 3 months for the purposes of section 306G—the day it is made or a later day specified in the determination;\n\n (c) for a determination under section 306K (which deals with recurring extended exemption periods)—the day it is made or a later day specified in the determination.","sortOrder":660},{"sectionNumber":"306M","sectionType":"section","heading":"Making an alternative protected rate of pay order","content":"306M  Making an alternative protected rate of pay order\n\nApplication of this section\n\n (1) This section applies if:\n\n (a) a regulated labour hire arrangement order is in force that covers a regulated host, an employer and a regulated employee of the employer performing work for the regulated host; or\n\n (b) a regulated labour hire arrangement order has been made but is not yet in force that covers a regulated host, an employer and a regulated employee of the employer performing work for the regulated host; or\n\n (c) an application for a regulated labour hire arrangement order that would cover a regulated host, an employer and a regulated employee of the employer performing work for the regulated host has been made to the FWC under section 306E but has not been finally determined.\n\nAlternative protected rate of pay order\n\n (2) The FWC may make an order (an alternative protected rate of pay order) specifying:\n\n (a) how the rate of pay at which the employer must pay the regulated employee in connection with the work is to be worked out; and\n\n (b) that the employer must pay the rate of pay worked out in that way to the regulated employee in connection with the work.\n\nRate of pay\n\n (3) The rate of pay for the purposes of paragraph (2)(a) must be the protected rate of pay for the regulated employee that would apply if the references in section 306F to the host employment instrument covered by the regulated labour hire arrangement order were instead references to a specified covered employment instrument that:\n\n (a) applies to a related body corporate of the regulated host and would apply to a person employed by the related body corporate to perform work of that kind; or\n\n (b) applies to the regulated host and would apply to a person employed by the regulated host to perform work of that kind in circumstances that do not apply in relation to the employee.\n\nWho may apply\n\n (4) The FWC may make an alternative protected rate of pay order only on application by the employee, the employer, the regulated host or an organisation entitled to represent the industrial interests of any of those persons.\n\nTime for making\n\n (5) The FWC must decide whether or not to make the order as quickly as possible after the application is made.\n\nCriteria for making etc.\n\n (6) The FWC must not make the order unless satisfied that:\n\n (a) it would be unreasonable for the requirement in section 306F, that the employer pay the regulated employee at no less than the protected rate of pay, to apply in connection with that work (including, for example, because the rate would be insufficient or would be excessive); and\n\n (b) there is a covered employment instrument of the kind referred to in paragraph (3)(a) or (b).\n\n (7) Before deciding whether to make the order, the FWC must seek the views of the following:\n\n (a) the employer;\n\n (b) the regulated host;\n\n (c) the employer to which a covered employment instrument to be specified in the order for the purposes of subsection (3) applies (if not the regulated host);\n\n (d) the employee;\n\n (e) employees to whom the covered employment instrument to be specified in the order for the purposes of subsection (3) applies;\n\n (f) organisations entitled to represent the industrial interests of any of the persons referred to in paragraphs (a) to (e).\n\n (8) In deciding whether to make the order, the FWC must have regard to:\n\n (a) whether the host employment instrument covered by the regulated labour hire arrangement order applies only to a particular class or group of employees; and\n\n (b) whether, in practice, the host employment instrument has ever applied to an employee at a classification, job level or grade that would be applicable to the regulated employee; and\n\n (c) the views (if any) of any persons or organisations mentioned in subsection (7);\n\n (d) the rate of pay that would be payable to the regulated employee in connection with the work if the order were made; and\n\n (e) any other matter the FWC considers relevant.\n\nException for short‑term arrangements\n\n (9) In making an order under this section, the FWC must ensure that, if an exception in section 306G would apply to the requirement to pay the regulated employee at no less than the protected rate of pay, the exception also applies in relation to the requirement to pay the employee at the rate worked out under the alternative protected rate of pay order.","sortOrder":662},{"sectionNumber":"306N","sectionType":"section","heading":"Effect of alternative protected rate of pay order","content":"306N  Effect of alternative protected rate of pay order\n\nWhen alternative protected rate of pay order comes into force\n\n (1) An alternative protected rate of pay order comes into force:\n\n (a) if the order is made before the regulated labour hire arrangement order to which the order relates comes into force:\n\n (i) on the day the regulated labour hire arrangement order comes into force; or\n\n (ii) on a later day specified in the alternative protected rate of pay order; or\n\n (b) otherwise—on the day the alternative protected rate of pay order is made, or on a later day specified in the order.\n\nEffect of alternative protected rate of pay order\n\n (2) If:\n\n (a) a regulated labour hire arrangement order is in force that covers a regulated host, an employer and work performed by a regulated employee of the employer; and\n\n (b) an alternative protected rate of pay order is made in relation to the regulated labour hire arrangement order;\n\nthen:\n\n (c) the alternative protected rate of pay order applies in relation to so much of the work as is performed during the period that the alternative protected rate of pay order is in force; and\n\n (d) during that period, the alternative protected rate of pay order has effect despite section 306F (protected rate of pay payable to employees if a regulated labour hire arrangement order is in force), and despite any provision of the following that provides for a lower rate of pay than that worked out in accordance with the order:\n\n (i) a fair work instrument that applies to the regulated employee;\n\n (ii) a covered employment instrument (other than a fair work instrument) that applies to the regulated employee;\n\n (iii) the regulated employee’s contract of employment.\n\nPerson must not contravene an alternative protected rate of pay order\n\n (3) A person must not contravene a term of an alternative protected rate of pay order.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).","sortOrder":663},{"sectionNumber":"306NA","sectionType":"section","heading":"Determining amounts of payments relating to termination of employment","content":"306NA  Determining amounts of payments relating to termination of employment\n\nApplication of this section\n\n (1) This section applies if:\n\n (a) a regulated employee’s employment is or is to be terminated; and\n\n (b) the employee is or has been covered by a regulated labour hire arrangement order.\n\nDetermining amounts of payments relating to termination of employment\n\n (2) Subject to subsection (5), if an amount that the employee’s employer is required to pay to the employee (or to a person on the employee’s behalf) in relation to the termination of the employment is to be determined wholly or partly on the basis of a rate of pay in relation to the employee, the rate of pay for the purposes of determining the amount is:\n\n (a) if the employee is covered by subsection (3) in relation to the amount—the applicable rate of pay that results from the operation of this Part; or\n\n (b) in any other case—the applicable rate of pay to which the employee is entitled apart from the operation of this Part.\n\n (3) This subsection covers the employee in relation to the amount if:\n\n (a) immediately before the termination of the employment occurs or is to occur, the employee is or will be covered by a regulated labour hire arrangement order in force in relation to work performed by the employee for a regulated host; and\n\n (b) the termination of the employment occurs or is to occur during a period in which the employee is performing work for the regulated host, including a period when the employee is taking paid or unpaid leave, or is absent, in connection with that work and the leave or absence is authorised:\n\n (i) by the employee’s employer; or\n\n (ii) by or under a term or condition of the employee’s employment; or\n\n (iii) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law; and\n\n (c) the rate of pay mentioned in paragraph (2)(a) is higher than the rate mentioned in paragraph (2)(b); and\n\n (d) unless the amount is a payment in lieu of notice of termination—the employee has not performed work for any other regulated host in relation to the employee’s employment with the employer.\n\n (4) If the performance of the work for the regulated host relates to a joint venture or common enterprise engaged in by the regulated host and one or more other persons, then for the purposes of paragraph (3)(d), disregard any work that is taken to be performed for those other persons because of the operation of paragraph 306D(2)(c).\n\nExcluded subject matters\n\n (5) If the employer is a national system employer only because of section 30D or 30N, nothing in this Part, including the determination of any rate of pay under or in accordance with this Part, affects any amount:\n\n (a) that the employer is required to pay to the employee (or to a person on the employee’s behalf) in relation to the termination of the employment; and\n\n (b) which relates to an excluded subject matter within the meaning of subsection 30A(1) or 30K(1).\n\nInteraction with fair work instruments etc.\n\n (6) This section applies despite:\n\n (a) a fair work instrument that applies to the employee; or\n\n (b) a covered employment instrument (other than a fair work instrument) that applies to the employee; or\n\n (c) the employee’s contract of employment.","sortOrder":665},{"sectionNumber":"306P","sectionType":"section","heading":"Disputes about the operation of this Part","content":"306P  Disputes about the operation of this Part\n\nWhen this Division applies to a dispute\n\n (1) This Division applies to a dispute about the operation of this Part if:\n\n (a) a regulated labour hire arrangement order is in force that covers a regulated host, an employer and a regulated employee of the employer performing work for the regulated host; or\n\n (b) a regulated labour hire arrangement order has been made but is not yet in force that covers a regulated host, an employer and a regulated employee of the employer performing work for the regulated host.\n\n (2) Without limiting subsection (1), this Division applies to a dispute about:\n\n (a) what the protected rate of pay for a regulated employee is; or\n\n (b) whether a regulated employee has been, or is being, paid less than the protected rate of pay for the employee.\n\nParties must attempt to resolve dispute at workplace level\n\n (3) In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level by discussions between the parties.\n\n (4) If discussions at the workplace level do not resolve the dispute, a party to the dispute may apply to the FWC to resolve the dispute.\n\nHow the FWC deals with dispute\n\n (5) If a party to the dispute makes an application under subsection (4):\n\n (a) the FWC must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances; and\n\n (b) the FWC may deal with the dispute by arbitration in accordance with section 306Q.\n\nNote: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate, including by mediation, conciliation, making a recommendation or expressing an opinion (see subsection 595(2)).\n\nRepresentatives\n\n (6) The employer, employee or regulated host may appoint a person or organisation that is entitled to represent the industrial interests of the employer, employee or regulated host to provide the employer, employee or regulated host (as the case may be) with support or representation for the purposes of:\n\n (a) resolving the dispute; or\n\n (b) the FWC dealing with the dispute.\n\nNote: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).\n\nJoinder of other employees to disputes\n\n (7) Without limiting section 609, the procedural rules may provide for the joinder, as parties to a dispute in relation to which an employee has made an application under subsection (4), of any other employees who have a dispute about the operation of this Part with the same regulated host or employer.","sortOrder":667},{"sectionNumber":"306Q","sectionType":"section","heading":"Dealing with disputes by arbitration","content":"306Q  Dealing with disputes by arbitration\n\n (1) The FWC may deal with the dispute by arbitration, including by making an order (an arbitrated protected rate of pay order) determining:\n\n (a) how the rate of pay at which the employer must pay the employee in connection with the work is to be worked out; and\n\n (b) that the employer must pay the rate of pay worked out in that way to the employee in connection with the work.\n\n (2) If the employer is a national system employer only because of section 30D or 30N, the rate of pay for the purposes of paragraph (1)(a) of this section must not include any amount that relates to an excluded subject matter within the meaning of subsection 30A(1) or 30K(1).\n\nNote: Sections 30D and 30N extend the meaning of national system employer.\n\n (3) The FWC must not make an arbitrated protected rate of pay order unless the FWC considers that it would be fair and reasonable to make the order.\n\n (4) If the parties have notified the FWC, in writing, that they agree to the FWC arbitrating the dispute, an arbitrated protected rate of pay order made in relation to the dispute may apply in relation to work performed at any time on or after the day the regulated labour hire arrangement order comes into force.\n\n (5) If the parties have not notified the FWC that they agree to the FWC arbitrating the dispute, an arbitrated protected rate of pay order made in relation to the dispute may apply only in relation to work performed on or after:\n\n (a) if the arbitrated protected rate of pay order is made before the regulated labour hire arrangement order to which the order relates comes into force—the day the regulated labour hire arrangement order comes into force; or\n\n (b) otherwise—the day the arbitrated protected rate of pay order is made.\n\nEffect of arbitrated protected rate of pay order\n\n (6) If the FWC makes an arbitrated protected rate of pay order in relation to the dispute, the order has effect, in relation to so much of the work as is performed during the period to which the order applies, despite the following:\n\n (a) section 306F (protected rate of pay payable to employees if a regulated labour hire arrangement order is in force);\n\n (b) any provision of the following that provides for a lower rate of pay than that worked out in accordance with the order:\n\n (i) a fair work instrument that applies to the employee;\n\n (ii) a covered employment instrument (other than a fair work instrument) that applies to the employee;\n\n (iii) the employee’s contract of employment.\n\n (7) A person must not contravene a term of an arbitrated protected rate of pay order.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (8) In making an order under this section, the FWC must ensure that, if an exception in section 306G would apply to the requirement to pay the regulated employee at no less than the protected rate of pay, the exception also applies in relation to the requirement to pay the employee at the rate worked out under the arbitrated protected rate of pay order.","sortOrder":668},{"sectionNumber":"306R","sectionType":"section","heading":"Application fees","content":"306R  Application fees\n\n (1) An application under subsection 306P(4) must be accompanied by any fee prescribed by the regulations.\n\n (2) The regulations may prescribe:\n\n (a) a fee for making an application to the FWC under that subsection; and\n\n (b) a method for indexing the fee; and\n\n (c) the circumstances in which all or part of the fee may be waived or refunded.","sortOrder":669},{"sectionNumber":"306S","sectionType":"section","heading":"Preventing making of regulated labour hire arrangement orders","content":"306S  Preventing making of regulated labour hire arrangement orders\n\n (1) A person contravenes this section if:\n\n (a) the person is an employer or a regulated host; and\n\n (b) the person, either alone or with one or more other persons:\n\n (i) enters into a scheme; or\n\n (ii) begins to carry out a scheme; or\n\n (iii) carries out a scheme; and\n\n (c) the person does so for the sole or dominant purpose of preventing the FWC from making a regulated labour hire arrangement order in relation to any person or persons (whether or not those persons are the same persons mentioned in paragraph (b)); and\n\n (d) as a result of that scheme or part of that scheme, the FWC is prevented from making the order.\n\nNote: This section is a civil remedy provision (see Part 4‑1).\n\n (2) In this section:\n\nscheme means:\n\n (a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; or\n\n (b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.","sortOrder":671},{"sectionNumber":"306SA","sectionType":"section","heading":"Avoidance of application of regulated labour hire arrangement orders","content":"306SA  Avoidance of application of regulated labour hire arrangement orders\n\n (1) A person contravenes this section if:\n\n (a) the person is an employer or a regulated host; and\n\n (b) the person, either alone or with one or more other persons:\n\n (i) enters into a scheme; or\n\n (ii) begins to carry out a scheme; or\n\n (iii) carries out a scheme; and\n\n (c) the person does so for the sole or dominant purpose of avoiding the application of a regulated labour hire arrangement order that has been made (whether or not the order is yet in force), in relation to any person or persons (whether or not those persons are the same persons mentioned in paragraph (b)); and\n\n (d) as a result of that scheme or part of that scheme, a person avoids the application of the regulated labour hire arrangement order.\n\nNote: This section is a civil remedy provision (see Part 4‑1).\n\n (2) In this section:\n\nscheme means:\n\n (a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; or\n\n (b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.","sortOrder":672},{"sectionNumber":"306T","sectionType":"section","heading":"Short-term arrangements—engaging other employees","content":"306T  Short‑term arrangements—engaging other employees\n\n  An employer covered by a regulated labour hire arrangement order contravenes this section if:\n\n (a) the employer is not required to pay a regulated employee at a rate determined under or in accordance with this Part because of the operation of subsection 306G(2) (including as it applies because of subsection 306M(9) or 306Q(8)); and\n\n (b) the employer engages another person to perform the same, or substantially the same, work as that performed by the employee for the regulated host; and\n\n (c) it could reasonably be concluded that the purpose, or one of the purposes, of engaging the other person is to achieve the result that the employer is not required to pay a regulated employee at a rate determined under or in accordance with this Part.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":673},{"sectionNumber":"306U","sectionType":"section","heading":"Short-term arrangements—entering into other labour hire agreements","content":"306U  Short‑term arrangements—entering into other labour hire agreements\n\n  A regulated host covered by a regulated labour hire arrangement order contravenes this section if:\n\n (a) an employer covered by the regulated labour hire arrangement order is not required to pay a regulated employee at a rate determined under or in accordance with this Part because of the operation of subsection 306G(2) (including as it applies because of subsection 306M(9) or 306Q(8)); and\n\n (b) the regulated host enters into an agreement that has the result that another person is to perform the same, or substantially the same, work as that performed by the regulated employee for the regulated host; and\n\n (c) it could reasonably be concluded that the purpose, or one of the purposes, of engaging the other person is to achieve the result that the employer is not required to pay a regulated employee at a rate determined under or in accordance with this Part.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":674},{"sectionNumber":"306V","sectionType":"section","heading":"Engaging independent contractors","content":"306V  Engaging independent contractors\n\n  An employer covered by a regulated labour hire arrangement order contravenes this section if:\n\n (a) the employer dismisses an employee who performs, or is to perform, work for a regulated host covered by the order; and\n\n (b) the employer engages another person as an independent contractor, under a contract for services, to perform that work, or work of that kind, for the regulated host; and\n\n (c) a result of the employer dismissing the employee and engaging the independent contractor is that the employer is not required to pay a person at a rate determined under or in accordance with this Part; and\n\n (d) it could reasonably be concluded that the employer dismissed the employee and engaged the independent contractor for the purpose, or purposes including the purpose, of achieving that result.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":675},{"sectionNumber":"306W","sectionType":"section","heading":"Guidelines","content":"306W  Guidelines\n\n (1) The FWC may make written guidelines in relation to the operation of this Part.\n\n (2) Guidelines made under subsection (1) are not a legislative instrument.\n\n (3) The FWC must ensure that guidelines under subsection (1) are in force:\n\n (a) by 1 November 2024; and\n\n (b) at all times on and after that day.","sortOrder":677},{"sectionNumber":"Part 2-8","sectionType":"part","heading":"Transfer of business","content":"Part 2‑8—Transfer of business","sortOrder":678},{"sectionNumber":"307","sectionType":"section","heading":"Guide to this Part","content":"307  Guide to this Part\n\nThis 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. (For a transfer of business from a non‑national system employer that is a State public sector employer to a national system employer, see Part 6‑3A.)\n\nDivision 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.\n\nDivision 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.\n\nDivision 3 provides for the FWC to make orders in relation to a transfer of business.","sortOrder":680},{"sectionNumber":"308","sectionType":"section","heading":"Meanings of employee and employer","content":"308  Meanings of employee and employer\n\n  In this Part, employee means a national system employee, and employer means a national system employer.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":681},{"sectionNumber":"309","sectionType":"section","heading":"Object of this Part","content":"309  Object of this Part\n\n  The object of this Part is to provide a balance between:\n\n (a) the protection of employees’ terms and conditions of employment under enterprise agreements, certain modern awards and certain other instruments; and\n\n (b) the interests of employers in running their enterprises efficiently;\n\nif there is a transfer of business from one employer to another employer.","sortOrder":682},{"sectionNumber":"310","sectionType":"section","heading":"Application of this Division","content":"310  Application of this Division\n\n  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.","sortOrder":684},{"sectionNumber":"311","sectionType":"section","heading":"When does a transfer of business occur","content":"311  When does a transfer of business occur\n\nMeanings of transfer of business, old employer, new employer and transferring work\n\n (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:\n\n (a) the employment of an employee of the old employer has terminated;\n\n (b) within 3 months after the termination, the employee becomes employed by the new employer;\n\n (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;\n\n (d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).\n\nMeaning of transferring employee\n\n (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.\n\nTransfer of assets from old employer to new employer\n\n (3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:\n\n (a) the old employer or an associated entity of the old employer; and\n\n (b) the new employer or an associated entity of the new employer;\n\nthe 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):\n\n (c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and\n\n (d) that relate to, or are used in connection with, the transferring work.\n\nOld employer outsources work to new employer\n\n (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.\n\nNew employer ceases to outsource work to old employer\n\n (5) There is a connection between the old employer and the new employer if:\n\n (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\n\n (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.\n\nNew employer is associated entity of old employer\n\n (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.","sortOrder":685},{"sectionNumber":"312","sectionType":"section","heading":"Instruments that may transfer","content":"312  Instruments that may transfer\n\nMeaning of transferable instrument\n\n (1) Each of the following is a transferable instrument:\n\n (a) an enterprise agreement that has been approved by the FWC;\n\n (b) a workplace determination;\n\n (c) a named employer award.\n\nMeaning of named employer award\n\n (2) Each of the following is a named employer award:\n\n (a) a modern award (including a modern enterprise award) that is expressed to cover one or more named employers;\n\n (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)).\n\nNote: Paragraph 168A(2)(b) deals with employers that carry on similar business activities under the same franchise.","sortOrder":686},{"sectionNumber":"313","sectionType":"section","heading":"Transferring employees and new employer covered by transferable instrument","content":"313  Transferring employees and new employer covered by transferable instrument\n\n (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:\n\n (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\n\n (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.\n\n (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.\n\n (3) This section has effect subject to any FWC order under subsection 318(1).","sortOrder":687},{"sectionNumber":"314","sectionType":"section","heading":"New non-transferring employees of new employer may be covered by transferable instrument","content":"314  New non‑transferring employees of new employer may be covered by transferable instrument\n\n (1) If:\n\n (a) a transferable instrument covers the new employer because of paragraph 313(1)(a); and\n\n (b) after the transferable instrument starts to cover the new employer, the new employer employs a non‑transferring employee; and\n\n (c) the non‑transferring employee performs the transferring work; and\n\n (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;\n\nthen the transferable instrument covers the new employer and the non‑transferring employee in relation to that work.\n\n (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.\n\n (3) This section has effect subject to any FWC order under subsection 319(1).","sortOrder":688},{"sectionNumber":"315","sectionType":"section","heading":"Organisations covered by transferable instrument","content":"315  Organisations covered by transferable instrument\n\nEmployer organisation covered by named employer award\n\n (1) If:\n\n (a) a named employer award covers the new employer because of paragraph 313(1)(a); and\n\n (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;\n\nthen the named employer award covers the employer organisation in relation to the new employer.\n\nEmployee organisation covered by named employer award\n\n (2) If:\n\n (a) a named employer award covers the new employer and a transferring employee because of paragraph 313(1)(a); and\n\n (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;\n\nthen the named employer award covers the employee organisation in relation to:\n\n (c) the transferring employee; and\n\n (d) any non‑transferring employee of the new employer who:\n\n (i) is covered by the named employer award because of a provision of this Part or an FWC order; and\n\n (ii) performs the same work as the transferring employee.\n\nEmployee organisation covered by enterprise agreement\n\n (3) To avoid doubt, if:\n\n (a) an enterprise agreement covers a transferring employee or a non‑transferring employee because of a provision of this Part or an FWC order; and\n\n (b) the enterprise agreement covered an employee organisation immediately before the termination of the transferring employee’s employment with the old employer;\n\nthen the enterprise agreement covers the employee organisation.","sortOrder":689},{"sectionNumber":"316","sectionType":"section","heading":"Transferring employees who are high income employees","content":"316  Transferring employees who are high income employees\n\n (1) This section applies if:\n\n (a) the old employer had given a guarantee of annual earnings for a guaranteed period to a transferring employee; and\n\n (b) the transferring employee was a high income employee immediately before the termination of the transferring employee’s employment with the old employer; and\n\n (c) some of the guaranteed period occurs after the time (the transfer time) the transferring employee becomes employed by the new employer; and\n\n (d) an enterprise agreement does not apply to the transferring employee in relation to the transferring work at the transfer time.\n\n (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.\n\n (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.\n\n (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.\n\n (5) If:\n\n (a) the transferring employee is entitled to non‑monetary benefits under the guarantee of annual earnings after the transfer time; and\n\n (b) it is not practicable for the new employer to provide those benefits to the transferring employee;\n\nthen 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.\n\n (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.","sortOrder":690},{"sectionNumber":"317","sectionType":"section","heading":"FWC may make orders in relation to a transfer of business","content":"317  FWC may make orders in relation to a transfer of business\n\n  This Division provides for the FWC to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.","sortOrder":692},{"sectionNumber":"318","sectionType":"section","heading":"Orders relating to instruments covering new employer and transferring employees","content":"318  Orders relating to instruments covering new employer and transferring employees\n\nOrders that the FWC may make\n\n (1) The FWC may make the following orders:\n\n (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;\n\n (b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.\n\nWho may apply for an order\n\n (2) The FWC may make the order only on application by any of the following:\n\n (a) the new employer or a person who is likely to be the new employer;\n\n (b) a transferring employee, or an employee who is likely to be a transferring employee;\n\n (c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;\n\n (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).\n\nMatters that the FWC must take into account\n\n (3) In deciding whether to make the order, the FWC must take into account the following:\n\n (a) the views of:\n\n (i) the new employer or a person who is likely to be the new employer; and\n\n (ii) the employees who would be affected by the order;\n\n (b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;\n\n (c) if the order relates to an enterprise agreement—the nominal expiry date of the agreement;\n\n (d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;\n\n (e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;\n\n (f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;\n\n (g) the public interest.\n\nRestriction on when order may come into operation\n\n (4) The order must not come into operation in relation to a particular transferring employee before the later of the following:\n\n (a) the time when the transferring employee becomes employed by the new employer;\n\n (b) the day on which the order is made.","sortOrder":693},{"sectionNumber":"319","sectionType":"section","heading":"Orders relating to instruments covering new employer and non-transferring employees","content":"319  Orders relating to instruments covering new employer and non‑transferring employees\n\nOrders that the FWC may make\n\n (1) The FWC may make the following orders:\n\n (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;\n\n (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;\n\n (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.\n\nNote: 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.\n\nWho may apply for an order\n\n (2) The FWC may make the order only on application by any of the following:\n\n (a) the new employer or a person who is likely to be the new employer;\n\n (b) a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer;\n\n (c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;\n\n (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).\n\nMatters that the FWC must take into account\n\n (3) In deciding whether to make the order, the FWC must take into account the following:\n\n (a) the views of:\n\n (i) the new employer or a person who is likely to be the new employer; and\n\n (ii) the employees who would be affected by the order;\n\n (b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;\n\n (c) if the order relates to an enterprise agreement—the nominal expiry date of the agreement;\n\n (d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;\n\n (e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;\n\n (f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;\n\n (g) the public interest.\n\nRestriction on when order may come into operation\n\n (4) The order must not come into operation in relation to a particular non‑transferring employee before the later of the following:\n\n (a) the time when the non‑transferring employee starts to perform the transferring work for the new employer;\n\n (b) the day on which the order is made.","sortOrder":694},{"sectionNumber":"320","sectionType":"section","heading":"Variation of transferable instruments","content":"320  Variation of transferable instruments\n\nApplication of this section\n\n (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.\n\nPower to vary transferable instrument\n\n (2) The FWC may vary the transferable instrument:\n\n (a) to remove terms that the FWC is satisfied are not, or will not be, capable of meaningful operation because of the transfer of business to the new employer; or\n\n (b) to remove an ambiguity or uncertainty about how a term of the instrument operates if:\n\n (i) the ambiguity or uncertainty has arisen, or will arise, because of the transfer of business to the new employer; and\n\n (ii) the FWC is satisfied that the variation will remove the ambiguity or uncertainty; or\n\n (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.\n\nWho may apply for a variation\n\n (3) The FWC may make the variation only on application by:\n\n (a) a person who is, or is likely to be, covered by the transferable instrument; or\n\n (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.\n\nMatters that the FWC must take into account\n\n (4) In deciding whether to make the variation, the FWC must take into account the following:\n\n (a) the views of:\n\n (i) the new employer or a person who is likely to be the new employer; and\n\n (ii) the employees who would be affected by the transferable instrument as varied;\n\n (b) whether any employees would be disadvantaged by the transferable instrument as varied in relation to their terms and conditions of employment;\n\n (c) if the transferable instrument is an enterprise agreement—the nominal expiry date of the agreement;\n\n (d) whether the transferable instrument, without the variation, would have a negative impact on the productivity of the new employer’s workplace;\n\n (e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument, without the variation;\n\n (f) the degree of business synergy between the transferable instrument, without the variation, and any workplace instrument that already covers the new employer;\n\n (g) the public interest.\n\nRestriction on when variation may come into operation\n\n (5) A variation of a transferable instrument under subsection (2) must not come into operation before the later of the following:\n\n (a) the time when the transferable instrument starts to cover the new employer;\n\n (b) the day on which the variation is made.","sortOrder":695},{"sectionNumber":"Part 2-9","sectionType":"part","heading":"Other terms and conditions of employment","content":"Part 2‑9—Other terms and conditions of employment","sortOrder":696},{"sectionNumber":"321","sectionType":"section","heading":"Guide to this Part","content":"321  Guide to this Part\n\nThis Part deals with other terms and conditions of employment.\n\nDivision 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.\n\nDivision 2 also makes it an offence for a national system employer to fail to pay certain amounts to, on behalf of, or for the benefit of, a national system employee.\n\nDivision 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.\n\nDivision 4 is about the disclosure of remuneration and other matters relevant to remuneration outcomes. Terms of contracts of employment, and other instruments, that purport to prohibit such disclosures are prohibited.\n\nDivision 5 is about fixed term contracts.\n\nA contract of employment must not include a term that provides the contract will terminate at the end of an identifiable period if:\n\n (a) the period is greater than 2 years; or\n\n (b) the contract can be renewed so that the employee is employed for more than 2 years; or\n\n (c) in certain circumstances, the employee is employed under consecutive contracts.\n\nHowever, such a term may be included in some circumstances, including where a modern award permits the term.\n\nThe Fair Work Ombudsman must prepare a Fixed Term Contract Information Statement, which must be given to certain current and prospective employees.\n\nDivision 6 is about generally allowing an employee to refuse contact or attempted contact from their employer (or from a third party where the contact or attempted contact relates to their work) outside the employee’s working hours. The FWC may deal with disputes between an employer and an employee about the right to disconnect, including by making orders to stop an employee from refusing contact or to stop an employer from taking certain actions.\n\nDivision 7 is about preserving employer‑funded paid parental leave if an employee’s child is stillborn or dies. The employee’s employer must not refuse to allow the employee to take that leave, or cancel that leave without a request from the employee. However, this does not apply if the terms and conditions of the employee’s employment make express provision relating to stillbirth or the death of a child.","sortOrder":698},{"sectionNumber":"322","sectionType":"section","heading":"Meanings of employee and employer","content":"322  Meanings of employee and employer\n\n  In this Part, employee means a national system employee, and employer means a national system employer.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":699},{"sectionNumber":"323","sectionType":"section","heading":"Method and frequency of payment","content":"323  Method and frequency of payment\n\n (1) An employer must pay an employee amounts payable to the employee in relation to the performance of work:\n\n (a) in full (except as provided by section 324); and\n\n (b) in money by one, or a combination, of the methods referred to in subsection (2); and\n\n (c) at least monthly.\n\nNote 1: This subsection is a civil remedy provision (see Part 4‑1).\n\nNote 2: Amounts referred to in this subsection include the following if they become payable during a relevant period:\n\n(a) incentive‑based payments and bonuses;\n\n(b) loadings;\n\n(c) monetary allowances;\n\n(d) overtime or penalty rates;\n\n(e) leave payments.\n\n (2) The methods are as follows:\n\n (a) cash;\n\n (b) cheque, money order, postal order or similar order, payable to the employee;\n\n (c) the use of an electronic funds transfer system to credit an account held by the employee;\n\n (d) a method authorised under a modern award or an enterprise agreement.\n\n (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.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).","sortOrder":702},{"sectionNumber":"324","sectionType":"section","heading":"Permitted deductions","content":"324  Permitted deductions\n\n (1) An employer may deduct an amount from an amount payable to an employee in accordance with subsection 323(1) if:\n\n (a) the deduction is authorised in writing by the employee and is principally for the employee’s benefit; or\n\n (b) the deduction is authorised by the employee in accordance with an enterprise agreement; or\n\n (c) the deduction is authorised by or under a modern award or an FWC order; or\n\n (d) the deduction is authorised by or under a law of the Commonwealth, a State or a Territory, or an order of a court.\n\nNote 1: A deduction in accordance with a salary sacrifice or other arrangement, under which an employee chooses to:\n\n(a) forgo an amount payable to the employee in relation to the performance of work; but\n\n(b) receive some other form of benefit or remuneration;\n\n will be permitted if it is made in accordance with this section and the other provisions of this Subdivision.\n\nNote 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.\n\n (1A) However, an employer must not deduct an amount under paragraph (1)(a) if the deduction is:\n\n (a) directly or indirectly for the benefit of the employer or a party related to the employer; and\n\n (b) for an amount that may be varied from time to time;\n\nunless the deduction, if it were a deduction referred to in subsection 326(1), would be a deduction made in circumstances prescribed under subsection 326(2) to be reasonable.\n\n (2) An authorisation for the purposes of paragraph (1)(a):\n\n (a) must specify:\n\n (i) for a single deduction—the amount of the deduction; or\n\n (ii) for multiple or ongoing deductions—whether the deductions are for a specified amount or amounts, or for amounts as varied from time to time; and\n\n (aa) must include any information prescribed by the regulations; and\n\n (b) may be withdrawn in writing by the employee at any time.\n\n (3) Any variation in a specified amount of a deduction must be authorised in writing by the employee.","sortOrder":703},{"sectionNumber":"325","sectionType":"section","heading":"Unreasonable requirements to spend or pay amount","content":"325  Unreasonable requirements to spend or pay amount\n\n (1) An employer must not directly or indirectly require an employee to spend, or pay to the employer or another person, an amount of the employee’s money or the whole or any part of an amount payable to the employee in relation to the performance of work, if:\n\n (a) the requirement is unreasonable in the circumstances; and\n\n (b) for a payment—the payment is directly or indirectly for the benefit of the employer or a party related to the employer.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (1A) An employer (the prospective employer) must not directly or indirectly require another person (the prospective employee) to spend, or pay to the prospective employer or any other person, an amount of the prospective employee’s money if:\n\n (a) the requirement is in connection with employment or potential employment of the prospective employee by the prospective employer; and\n\n (b) the requirement is unreasonable in the circumstances; and\n\n (c) the payment is directly or indirectly for the benefit of the prospective employer or a party related to the prospective employer.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) The regulations may prescribe circumstances in which a requirement referred to in subsection (1) or (1A) is or is not reasonable.","sortOrder":704},{"sectionNumber":"326","sectionType":"section","heading":"Certain terms have no effect","content":"326  Certain terms have no effect\n\nUnreasonable deductions for benefit of employer\n\n (1) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term 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, if the deduction is:\n\n (a) directly or indirectly for the benefit of the employer or a party related to the employer; and\n\n (b) unreasonable in the circumstances.\n\n (2) The regulations may prescribe circumstances in which a deduction referred to in subsection (1) is or is not reasonable.\n\nUnreasonable requirements to spend or pay an amount\n\n (3) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term:\n\n (a) permits, or has the effect of permitting, an employer to make a requirement that would contravene subsection 325(1); or\n\n (b) directly or indirectly requires an employee to spend or pay an amount, if the requirement would contravene subsection 325(1) if it had been made by an employer.\n\nDeductions or payments in relation to employees under 18\n\n (4) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term:\n\n (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\n\n (b) requires, or has the effect of requiring, an employee to make a payment to an employer or another person;\n\nif the employee is under 18 and the deduction or payment is not agreed to in writing by a parent or guardian of the employee.","sortOrder":705},{"sectionNumber":"327","sectionType":"section","heading":"Things given or provided, and amounts required to be spent or paid, in contravention of this Subdivision","content":"327  Things given or provided, and amounts required to be spent or paid, in contravention of this Subdivision\n\n  In proceedings for recovery of an amount payable to an employee in relation to the performance of work:\n\n (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\n\n (b) any amount that the employee has been required to spend or pay contrary to subsection 325(1), or in accordance with a term to which subsection 326(3) applies, is taken to be a deduction, from an amount payable to the employee, made by the employer otherwise than in accordance with section 324.","sortOrder":706},{"sectionNumber":"327A","sectionType":"section","heading":"Offence—failing to pay certain amounts as required","content":"327A  Offence—failing to pay certain amounts as required\n\n (1) An employer commits an offence if:\n\n (a) the employer is required to pay an amount (a required amount) to, on behalf of, or for the benefit of, an employee under:\n\n (i) this Act; or\n\n (ii) a fair work instrument; or\n\n (iii) a transitional instrument (as continued in existence by Schedule 3 to the Transitional Act); and\n\n (b) the required amount is not an amount covered by subsection (2); and\n\n (c) the employer engages in conduct; and\n\n (d) the conduct results in a failure to pay the required amount to, on behalf of, or for the benefit of, the employee in full on or before the day when the required amount is due for payment.\n\nNote 1: For the penalty for an offence against this subsection, see subsection (5).\n\nNote 2: A single payment to, on behalf of, or for the benefit of, an employee in relation to a particular period may comprise more than one required amount. For example, a single payment consisting of:\n\n(a) a required amount referable to wages earned during the period; and\n\n(b) a required amount referable to paid leave taken during the period.\n\n (2) For the purposes of paragraph (1)(b), an amount is covered by this subsection if:\n\n (a) either of the following apply:\n\n (i) the employee is a national system employee only because of section 30C or 30M (which extend the meaning of national system employee);\n\n (ii) the employer is a national system employer only because of section 30D or 30N (which extend the meaning of national system employer); and\n\n (b) the amount is:\n\n (i) a contribution payable to a superannuation fund for the benefit of the employee; or\n\n (ii) referable to the employee taking a period of long service leave; or\n\n (iii) referable to the employee taking a period of paid leave that the employee was entitled to take by reason of being a victim of crime; or\n\n (iv) referable to the employee taking a period of paid leave that the employee was entitled to take because the employee attended for service on a jury, or for emergency services duties.\n\nFault elements\n\n (3) For the purposes of subsection (1):\n\n (a) absolute liability applies to paragraphs (1)(a) and (b); and\n\n (b) the fault element for paragraphs (1)(c) and (d) is intention.\n\nNote 1: For absolute liability, see section 6.2 of the Criminal Code.\n\nNote 2: For intention, see section 5.2 of the Criminal Code.\n\nThings given or provided, and amounts required to be spent or paid, in contravention of Subdivision A\n\n (4) Section 327 applies for the purposes of determining whether a person commits an offence against subsection (1) of this section in the same way as it applies in proceedings for recovery of an amount payable to an employee in relation to the performance of work.\n\nPenalty—general\n\n (5) An offence against subsection (1) is punishable on conviction as follows:\n\n (a) for an individual—by a term of imprisonment of not more than 10 years or a fine of not more than the amount determined under subsection (6), or both;\n\n (b) for a body corporate—by a fine of not more than the amount determined under subsection (6).\n\nDetermining maximum fine\n\n (6) For the purposes of subsection (5), the amount is:\n\n (a) if the court can determine the underpayment amount for the offence—the greater of 3 times the underpayment amount and whichever of the following applies:\n\n (i) for an individual—5,000 penalty units;\n\n (ii) for a body corporate—25,000 penalty units; or\n\n (b) otherwise—the following amount:\n\n (i) for an individual—5,000 penalty units;\n\n (ii) for a body corporate—25,000 penalty units.\n\nUnderpayment amount\n\n (7) The underpayment amount for an offence committed by an employer against subsection (1) is the difference between:\n\n (a) the required amount mentioned in paragraph (1)(a); and\n\n (b) the amount (including a nil amount) the employer actually paid to, on behalf of, or for the benefit of, the employee on account of the required amount.\n\nPenalty for courses of conduct\n\n (8) If:\n\n (a) a person is found guilty of committing 2 or more offences (the aggregated offences) against subsection (1); and\n\n (b) the aggregated offences arose out of a course of conduct by the person;\n\nthen, subject to subsections (9) and (10), the person is taken for the purposes of subsections (5) to (7) to have been found guilty of only a single offence.\n\n (9) Paragraph (6)(a) applies in relation to the single offence if, and only if, the court can determine the underpayment amount for any of the aggregated offences.\n\n (10) The underpayment amount for the single offence is taken to be the sum of each of the underpayment amounts for the aggregated offences that the court can determine.","sortOrder":708},{"sectionNumber":"327B","sectionType":"section","heading":"The Voluntary Small Business Wage Compliance Code","content":"327B  The Voluntary Small Business Wage Compliance Code\n\n (1) The Minister may, by legislative instrument, declare a Voluntary Small Business Wage Compliance Code.\n\n (2) If the Fair Work Ombudsman is satisfied that a small business employer complied with the Voluntary Small Business Wage Compliance Code in relation to a failure by the employer to pay an amount to, on behalf of, or for the benefit of, an employee, the Fair Work Ombudsman must not:\n\n (a) refer any conduct that resulted in the failure to the Director of Public Prosecutions or the Australian Federal Police for action in relation to a possible offence against subsection 327A(1); or\n\n (b) enter into a cooperation agreement with the employer that covers any conduct that resulted in the failure.\n\n (3) The Fair Work Ombudsman must give the employer written notice of a decision under subsection (2).\n\n (4) Subsection (2) does not affect:\n\n (a) the power of an inspector to institute or continue civil proceedings in relation to the conduct; or\n\n (b) the power of the Fair Work Ombudsman to accept an enforceable undertaking under section 715 in relation to the conduct; or\n\n (c) the power of an inspector to give a notice under section 716 in relation to the conduct; or\n\n (d) any other power or function of the Fair Work Ombudsman or an inspector that is not mentioned in paragraph (2)(a) or (b) of this section.","sortOrder":709},{"sectionNumber":"327C","sectionType":"section","heading":"Commencing proceedings for certain offences against this Act","content":"327C  Commencing proceedings for certain offences against this Act\n\n (1) Proceedings for an offence against:\n\n (a) subsection 327A(1) (offence for failing to pay amounts as required); or\n\n (b) a related offence provision, to the extent that the related offence provision relates to an offence against subsection 327A(1);\n\nmay be commenced only by the Director of Public Prosecutions or the Australian Federal Police.\n\n (2) Despite anything in any other law, proceedings for an offence against a provision referred to in paragraph (1)(a) or (b) may be commenced at any time within 6 years after the commission of the offence.","sortOrder":710},{"sectionNumber":"328","sectionType":"section","heading":"Employer obligations in relation to guarantee of annual earnings","content":"328  Employer obligations in relation to guarantee of annual earnings\n\nEmployer must comply with guarantee\n\n (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:\n\n (a) is a high income employee of the employer; and\n\n (b) is covered by a modern award that is in operation.\n\nNote 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).\n\nNote 2: This subsection is a civil remedy provision (see Part 4‑1).\n\nEmployer must comply with guarantee for period before termination\n\n (2) If:\n\n (a) the employment of a high income employee is terminated before the end of the guaranteed period; and\n\n (b) either or both of the following apply:\n\n (i) the employer terminates the employment;\n\n (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\n\n (c) the employee is covered by a modern award that is in operation at the time of the termination;\n\nthe 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.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\nEmployer must give notice of consequences\n\n (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.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).","sortOrder":712},{"sectionNumber":"329","sectionType":"section","heading":"High income employee","content":"329  High income employee\n\n (1) A full‑time employee is a high income employee of an employer at a time if:\n\n (a) the employee has a guarantee of annual earnings for the guaranteed period; and\n\n (b) the time occurs during the period; and\n\n (c) the annual rate of the guarantee of annual earnings exceeds the high income threshold at that time.\n\n (2) An employee other than a full‑time employee is a high‑income employee of an employer at a time if:\n\n (a) the employee has a guarantee of annual earnings for the guaranteed period; and\n\n (b) the time occurs during the period; and\n\n (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.\n\n (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.","sortOrder":713},{"sectionNumber":"330","sectionType":"section","heading":"Guarantee of annual earnings and annual rate of guarantee","content":"330  Guarantee of annual earnings and annual rate of guarantee\n\n (1) An undertaking given by an employer to an employee is a guarantee of annual earnings if:\n\n (a) the employee is covered by a modern award that is in operation; and\n\n (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\n\n (c) the employee agrees to accept the undertaking, and agrees with the amount of the earnings; and\n\n (d) the undertaking and the employee’s agreement are given before the start of the period, and within 14 days after:\n\n (i) the day the employee is employed; or\n\n (ii) a day on which the employer and employee agree to vary the terms and conditions of the employee’s employment; and\n\n (e) an enterprise agreement does not apply to the employee’s employment at the start of the period.\n\n (2) However, if:\n\n (a) an employee is employed for a period shorter than 12 months; or\n\n (b) an employee will perform duties of a particular kind for a period shorter than 12 months;\n\nthe undertaking may be given for that shorter period.\n\n (3) The annual rate of the guarantee of annual earnings is the annual rate of the earnings covered by the undertaking.","sortOrder":714},{"sectionNumber":"331","sectionType":"section","heading":"Guaranteed period","content":"331  Guaranteed period\n\n  The guaranteed period for a guarantee of annual earnings is the period that:\n\n (a) starts at the start of the period of the undertaking that is the guarantee of annual earnings; and\n\n (b) ends at the earliest of the following:\n\n (i) the end of that period;\n\n (ii) an enterprise agreement starting to apply to the employment of the employee;\n\n (iii) the employer revoking the guarantee of annual earnings with the employee’s agreement.","sortOrder":715},{"sectionNumber":"332","sectionType":"section","heading":"Earnings","content":"332  Earnings\n\n (1) An employee’s earnings include:\n\n (a) the employee’s wages; and\n\n (b) amounts applied or dealt with in any way on the employee’s behalf or as the employee directs; and\n\n (c) the agreed money value of non‑monetary benefits; and\n\n (d) amounts or benefits prescribed by the regulations.\n\n (2) However, an employee’s earnings do not include the following:\n\n (a) payments the amount of which cannot be determined in advance;\n\n (b) reimbursements;\n\n (c) contributions to a superannuation fund to the extent that they are contributions to which subsection (4) applies;\n\n (d) amounts prescribed by the regulations.\n\nNote: Some examples of payments covered by paragraph (a) are commissions, incentive‑based payments and bonuses, and overtime (unless the overtime is guaranteed).\n\n (3) Non‑monetary benefits are benefits other than an entitlement to a payment of money:\n\n (a) to which the employee is entitled in return for the performance of work; and\n\n (b) for which a reasonable money value has been agreed by the employee and the employer;\n\nbut does not include a benefit prescribed by the regulations.\n\n (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:\n\n (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;\n\n (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 291‑175 of the Income Tax Assessment Act 1997) of the employee;\n\n (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.","sortOrder":716},{"sectionNumber":"333","sectionType":"section","heading":"High income threshold","content":"333  High income threshold\n\n (1) Subject to this section, the high income threshold is the amount prescribed by, or worked out in the manner prescribed by, the regulations.\n\n (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.\n\n (3) If:\n\n (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\n\n (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;\n\nthe high income threshold is the amount that it would be if the change had not occurred.","sortOrder":717},{"sectionNumber":"333A","sectionType":"section","heading":"Prospective employees","content":"333A  Prospective employees\n\n  If:\n\n (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\n\n (b) the other person subsequently becomes the employer’s or person’s employee; and\n\n (c) the undertaking relates to the work that the other person performs for the employer or person;\n\nthis 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.","sortOrder":718},{"sectionNumber":"333B","sectionType":"section","heading":"Employees not subject to pay secrecy","content":"333B  Employees not subject to pay secrecy\n\n (1) An employee may disclose, or not disclose, any of the following information to any other person:\n\n (a) the employee’s remuneration;\n\n (b) any terms and conditions of the employee’s employment that are reasonably necessary to determine remuneration outcomes.\n\nExample: A condition of an employee’s employment that may be reasonably necessary to determine remuneration outcomes includes the number of hours that the employee works.\n\n (2) An employee may ask any other employee (whether employed by the same employer or a different employer) about any of the following information:\n\n (a) the other employee’s remuneration;\n\n (b) any terms and conditions of the other employee’s employment that are reasonably necessary to determine remuneration outcomes.\n\n (3) For the avoidance of doubt:\n\n (a) each of the rights in subsections (1) and (2) is a workplace right within the meaning of Part 3‑1; and\n\n (b) a person is not prevented from exercising any of those workplace rights because the person, or another person, is no longer an employee of an employer.\n\nNote 1: The general protections provisions in Part 3‑1 also prohibit the taking of adverse action by an employer against an employee because of a workplace right of the employee under this Division.\n\nNote 2: See subsection 341(3) for the extension of workplace rights to prospective employees.","sortOrder":720},{"sectionNumber":"333C","sectionType":"section","heading":"Pay secrecy terms to have no effect","content":"333C  Pay secrecy terms to have no effect\n\n  A term of a fair work instrument or a contract of employment has no effect to the extent that the term would be inconsistent with subsection 333B(1) or (2) (about employee rights relating to pay secrecy).","sortOrder":721},{"sectionNumber":"333D","sectionType":"section","heading":"Prohibition on pay secrecy terms","content":"333D  Prohibition on pay secrecy terms\n\n  An employer contravenes this section if:\n\n (a) the employer enters into a contract of employment or other written agreement with an employee; and\n\n (b) the contract or agreement includes a term that is inconsistent with subsection 333B(1) or (2) (about employee rights relating to pay secrecy).\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":722},{"sectionNumber":"333E","sectionType":"section","heading":"Limitations","content":"333E  Limitations\n\n (1) A person contravenes this subsection if:\n\n (a) the person enters into a contract of employment with an employee; and\n\n (b) the contract includes a term that provides the contract will terminate at the end of an identifiable period (whether or not the contract also includes other terms that provide for circumstances in which it may be terminated before the end of that period); and\n\n (c) the employee is not a casual employee of the employer for whom the period referred to in paragraph (b) is identified by reference to the completion of the shift of work to which the contract relates; and\n\n (d) subsection (2), (3) or (4) applies.\n\nNote 1: This subsection is a civil remedy provision (see Part 4‑1).\n\nNote 2: A contract referred to in this subsection includes (and is not limited to) a contract of employment for a specified period of time, for a specified task or for the duration of a specified season.\n\nEmployment for more than 2 years\n\n (2) This subsection applies if the identifiable period is greater than 2 years.\n\nRenewable contracts\n\n (3) This subsection applies if:\n\n (a) the sum of the identifiable period and any other period for which the contract may be extended or renewed is greater than 2 years; or\n\n (b) the contract provides for an option or right to extend or renew the contract more than once.\n\nConsecutive contracts\n\n (4) This subsection applies if the contract comes into effect after another contract (the previous contract) of employment between the person and the employee in circumstances referred to in subsection (5).\n\n (5) The circumstances for the purposes of subsection (4) are:\n\n (a) the previous contract included a term that provided that the contract would terminate at the end of an identifiable period (whether or not the contract also includes other terms that provide for circumstances in which it may be terminated before the end of that period); and\n\n (b) the previous contract was for the employee to perform the same, or substantially similar, work for the person as the employee is required to perform under the contract referred to in paragraph (1)(a) (the current contract); and\n\n (c) there is substantial continuity of the employment relationship between the person and employee during the period between the previous contract terminating and the current contract coming into effect; and\n\n (d) any of the following apply:\n\n (i) the sum of the period for which the previous contract was in effect and the identifiable period referred to in paragraph (1)(b) for the current contract is greater than 2 years;\n\n (ii) the current contract contains an option for renewal or extension;\n\n (iia) the previous contract contained an option for extension that has been exercised;\n\n (iii) the previous contract came into effect after another contract (the initial contract) that satisfies the requirements of paragraphs (a) and (b) of this subsection and there was substantial continuity of the employment relationship between the person and the employee during the period between the initial contract terminating and the previous contract coming into effect.","sortOrder":725},{"sectionNumber":"333F","sectionType":"section","heading":"Exceptions to limitations","content":"333F  Exceptions to limitations\n\n (1) Subsection 333E(1) does not apply in relation to a contract of employment entered into by a person and an employee if:\n\n (a) the employee is engaged under the contract to perform only a distinct and identifiable task involving specialised skills; or\n\n (b) the employee is engaged under the contract in relation to a training arrangement; or\n\n (c) the employee is engaged under the contract to undertake essential work during a peak demand period; or\n\n (d) the employee is engaged under the contract to undertake work during emergency circumstances or during a temporary absence of another employee; or\n\n (e) in the year the contract is entered into the amount of the employee’s earnings under the contract is above the high income threshold for that year; or\n\n (f) the contract relates to a position for the performance of work that:\n\n (i) is funded in whole or in part by government funding or funding of a kind prescribed by the regulations for the purposes of this subparagraph; and\n\n (ii) the funding is payable for a period of more than 2 years; and\n\n (iii) there are no reasonable prospects that the funding will be renewed after the end of that period; or\n\n (g) the contract relates to a governance position that has a time limit under the governing rules of a corporation or association of persons; or\n\n (h) a modern award that covers the employee includes terms that permit any of the circumstances mentioned in subsections 333E(2) to (4) to occur; or\n\n (i) the contract is of a kind prescribed by the regulations for the purposes of this paragraph.\n\n (2) For the purposes of paragraph (1)(e), if under the terms of the contract either of the following apply:\n\n (a) the employee is required to work fewer hours than a full‑time employee for a year;\n\n (b) the employee is required to work for only part of a year;\n\nthe high income threshold for that year is taken, for the purposes of that paragraph, to be the amount, or the amount worked out using a method, prescribed by the regulations for the purposes of this subsection.\n\n (3) For the purposes of subsection (2), in determining whether an award/agreement free employee has worked fewer hours than a full‑time employee, regard may be had to the following:\n\n (a) the hours of work of any other full‑time employees or part‑time employees of the employer employed in the same position as (or in a position that is comparable to) the position of the employee;\n\n (b) the definition of ordinary hours of work in subsection 20(2).\n\nEvidential burden\n\n (4) If, in proceedings for a civil penalty order against a person for a contravention of subsection 333E(1), the person wishes to rely on an exception in this section, then the person bears an evidential burden in relation to that matter.","sortOrder":726},{"sectionNumber":"333G","sectionType":"section","heading":"Effect of entering prohibited fixed term contract","content":"333G  Effect of entering prohibited fixed term contract\n\n (1) If a person enters into a contract of employment with an employee in contravention of subsection 333E(1):\n\n (a) the term of the contract that provides that the contract will terminate at the end of an identifiable period is taken to have no effect; and\n\n (b) the contravention is taken not to affect the validity of any other term of the contract.\n\n (2) Subsection (1) of this section has effect for the purposes of all of the following:\n\n (a) this Act and any other law of the Commonwealth;\n\n (b) a law of a State or Territory;\n\n (c) any fair work instrument that applies to the employee;\n\n (d) a copied State instrument;\n\n (e) the employee’s contract of employment.\n\nNote 1: One effect of subsection (1) of this section is that Division 11 of Part 2‑2 (notice of termination and redundancy pay) may apply to the employee because the employee is not covered by paragraph 123(1)(a) (which deals with the application of that Division).\n\nNote 2: Another effect of subsection (1) of this section is that Part 3‑2 (unfair dismissal) may apply to the employee because the employee is not covered by paragraph 386(2)(a) (which affects the meaning of dismissed).","sortOrder":727},{"sectionNumber":"333H","sectionType":"section","heading":"Anti-avoidance","content":"333H  Anti‑avoidance\n\n (1) A person must not do any of the following in order to avoid any right or prohibition under this Division:\n\n (a) terminate an employee’s employment for a period;\n\n (b) delay re‑engaging an employee for a period;\n\n (ba) not re‑engage an employee and instead engage another person to perform the same, or substantially similar, work for the person as the employee had performed for the person;\n\n (c) change the nature of the work or tasks the employee is required to perform for the person;\n\n (d) otherwise alter an employment relationship.\n\nNote: The general protections provisions in Part 3‑1 also prohibit the taking of adverse action by an employer against an employee (which includes an employee on a fixed term contract) because of a workplace right of the employee under this Division.\n\n (2) For the purposes of subsection (1), a person takes action for a particular reason if the reasons for the action include that reason.","sortOrder":728},{"sectionNumber":"333J","sectionType":"section","heading":"Fixed Term Contract Information Statement","content":"333J  Fixed Term Contract Information Statement\n\n (1) The Fair Work Ombudsman must prepare a Fixed Term Contract Information Statement and publish the Statement in the Gazette.\n\n (2) The Statement must include information about:\n\n (a) Subdivision A of this Division (limitations on fixed term contracts); and\n\n (b) section 333L (disputes about the operation of this Division).","sortOrder":730},{"sectionNumber":"333K","sectionType":"section","heading":"Giving new employees the Fixed Term Contract Information Statement","content":"333K  Giving new employees the Fixed Term Contract Information Statement\n\n  If a person enters into a contract of employment that includes a term that provides the contract will terminate at the end of an identifiable period (whether or not the contract also includes other terms that provide for circumstances in which it may be terminated before the end of that period), the person must, before, or as soon as practicable after, the contract is entered into, give the employee the Fixed Term Contract Information Statement.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).","sortOrder":731},{"sectionNumber":"333L","sectionType":"section","heading":"Disputes about the operation of this Division","content":"333L  Disputes about the operation of this Division\n\nApplication of this section\n\n (1) This section applies to a dispute between an employer and employee about the operation of this Division.\n\nResolving disputes\n\n (2) In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level, by discussions between the parties.\n\nFWC may deal with disputes\n\n (3) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the FWC.\n\n (4) If a dispute is referred under subsection (3):\n\n (a) the FWC must deal with the dispute; and\n\n (b) if the parties notify the FWC that they agree to the FWC arbitrating the dispute—the FWC may deal with the dispute by arbitration.\n\nNote: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate, including by mediation, conciliation, making a recommendation or expressing an opinion (see subsection 595(2)).\n\nRepresentatives\n\n (5) The employer or employee to the dispute may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of:\n\n (a) resolving the dispute; or\n\n (b) referring the dispute to the FWC; or\n\n (c) the FWC dealing with the dispute.\n\nNote: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).","sortOrder":732},{"sectionNumber":"333M","sectionType":"section","heading":"Employee right to disconnect","content":"333M  Employee right to disconnect\n\n (1) An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable.\n\n (2) An employee may refuse to monitor, read or respond to contact, or attempted contact, from a third party if the contact or attempted contact relates to their work and is outside of the employee’s working hours unless the refusal is unreasonable.\n\n (3) Without limiting the matters that may be taken into account in determining whether a refusal is unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:\n\n (a) the reason for the contact or attempted contact;\n\n (b) how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;\n\n (c) the extent to which the employee is compensated:\n\n (i) to remain available to perform work during the period in which the contact or attempted contact is made; or\n\n (ii) for working additional hours outside of the employee’s ordinary hours of work;\n\n (d) the nature of the employee’s role and the employee’s level of responsibility;\n\n (e) the employee’s personal circumstances (including family or caring responsibilities).\n\nNote: For the purposes of paragraph (c), the extent to which an employee is compensated includes any non‑monetary compensation.\n\n (4) For the avoidance of doubt, each of the rights in subsections (1) and (2) is a workplace right within the meaning of Part 3‑1.\n\nNote: The general protections provisions in Part 3‑1 also prohibit the taking of adverse action by an employer against an employee because of a workplace right of the employee under this Division.\n\n (5) For the avoidance of doubt, an employee’s refusal to monitor, read or respond to contact, or attempted contact, from their employer, or from a third party if the contact or attempted contact relates to their work, will be unreasonable if the contact or attempted contact is required under a law of the Commonwealth, a State or a Territory.\n\n (6) For the avoidance of doubt, if:\n\n (a) an employee is covered by an enterprise agreement; and\n\n (b) the enterprise agreement includes a right to disconnect term that is more favourable to the employee than the rights in subsections (1) and (2);\n\nthe right to disconnect term in the agreement continues to apply to the employee.","sortOrder":735},{"sectionNumber":"333N","sectionType":"section","heading":"Disputes about the employee right to disconnect","content":"333N  Disputes about the employee right to disconnect\n\n (1) This section applies if:\n\n (a) there is a dispute between an employer and an employee because the employee has refused to monitor, read or respond to contact or attempted contact under subsection 333M(1) or (2) and:\n\n (i) the employer reasonably believes that the refusal is unreasonable; or\n\n (ii) the employer has asserted that the refusal is unreasonable and the employee reasonably believes the refusal is not unreasonable; or\n\n (b) there is another dispute between the employer and the employee about the operation of section 333M.\n\nWorkplace level discussions\n\n (2) In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level by discussions between the parties.\n\nApplication to FWC to deal with dispute\n\n (3) If discussions at the workplace level do not resolve the dispute, a party to the dispute may apply for the FWC to do either or both of the following:\n\n (a) make an order under section 333P (orders to stop refusing contact or to stop taking certain actions);\n\n (b) otherwise deal with the dispute.\n\nRepresentatives\n\n (4) The employer or employee to the dispute may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of:\n\n (a) resolving the dispute; or\n\n (b) applying to the FWC to make an order under section 333P or otherwise deal with the dispute; or\n\n (c) the FWC dealing with the dispute.\n\nNote: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).","sortOrder":737},{"sectionNumber":"333P","sectionType":"section","heading":"Orders to stop refusing contact or to stop taking certain actions","content":"333P  Orders to stop refusing contact or to stop taking certain actions\n\n (1) If an application made under subsection 333N(3) includes an application to make an order under this section and the FWC is satisfied that either or both of the following apply:\n\n (a) an employee has unreasonably refused to monitor, read or respond to contact or attempted contact for the purposes of subsection 333M(1) or (2) and there is a risk the employee will continue to do so;\n\n (b) an employee’s refusal to monitor, read or respond to contact or attempted contact for the purposes of subsection 333M(1) or (2) is not unreasonable and there is a risk that the employer will:\n\n (i) take disciplinary or other action against the employee because of the employer’s belief that the refusal is unreasonable; or\n\n (ii) continue to require the employee to monitor, read or respond to contact or attempted contact despite the employee’s refusal to do so;\n\nthen the FWC may make an order under subsection (2).\n\n (2) The FWC may make any order it considers appropriate (other than an order requiring the payment of a pecuniary amount):\n\n (a) if the FWC is satisfied that the circumstance set out in paragraph (1)(a) applies—to prevent the employee from continuing to unreasonably refuse to monitor, read or respond to contact or attempted contact; or\n\n (b) if the FWC is satisfied that the circumstance set out in subparagraph (1)(b)(i) applies—to prevent the employer from taking the action; or\n\n (c) if the FWC is satisfied that the circumstance set out in subparagraph (1)(b)(ii) applies—to prevent the employer from continuing to require the employee to monitor, read or respond to contact or attempted contact.\n\n (3) The FWC must:\n\n (a) start to deal with an application, to the extent that it consists of an application for an order under this section, within 14 days after the application is made; and\n\n (b) deal with the application as soon as is reasonably practicable after the FWC starts to deal with it.\n\n (4) Despite subsection (2), the FWC may dismiss an application made under subsection 333N(3), to the extent that it consists of an application for an order under this section, if the FWC considers that the application:\n\n (a) is frivolous or vexatious; or\n\n (b) might involve matters that relate to:\n\n (i) Australia’s defence; or\n\n (ii) Australia’s national security; or\n\n (iii) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or\n\n (iv) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.\n\nNote: For another power of the FWC to dismiss an application, see section 587.\n\n (5) If an employer considers an application made under subsection 333N(3) (the original application) to be frivolous or vexatious, the employer may apply to the FWC:\n\n (a) to have the original application dealt with expeditiously and efficiently; and\n\n (b) a decision on the original application communicated by the FWC to the parties to the dispute in a timely way.","sortOrder":739},{"sectionNumber":"333Q","sectionType":"section","heading":"Contravening an order","content":"333Q  Contravening an order\n\n  A person to whom an order under section 333P applies must not contravene a term of the order.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":740},{"sectionNumber":"333R","sectionType":"section","heading":"Actions under work health and safety laws permitted","content":"333R  Actions under work health and safety laws permitted\n\n  Section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws (within the meaning of that Act) do not apply in relation to an application made under subsection 333N(3) that includes an application for an order under section 333P.\n\nNote: Ordinarily, if a person makes an application under subsection 333N(3) for an order under section 333P in relation to particular conduct, then section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws would prohibit a proceeding from being commenced, or an application from being made or continued, under those laws in relation to the same conduct. This section removes that prohibition.","sortOrder":741},{"sectionNumber":"333S","sectionType":"section","heading":"This Subdivision is not to prejudice Australia’s defence, national security etc.","content":"333S  This Subdivision is not to prejudice Australia’s defence, national security etc.\n\n  Nothing in this Subdivision requires or permits a person to take, or to refrain from taking, any action if the taking of the action, or the refraining from taking the action, would be, or could reasonably be expected to be, prejudicial to:\n\n (a) Australia’s defence; or\n\n (b) Australia’s national security; or\n\n (c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or\n\n (d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.","sortOrder":742},{"sectionNumber":"333T","sectionType":"section","heading":"Declarations by the Director-General of Security","content":"333T  Declarations by the Director‑General of Security\n\n (1) Without limiting section 333S, the Director‑General of Security may, by legislative instrument, declare that all or specified provisions of this subdivision do not apply in relation to a person carrying out work for the Director‑General.\n\n (2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.","sortOrder":743},{"sectionNumber":"333U","sectionType":"section","heading":"Declarations by the Director-General of ASIS","content":"333U  Declarations by the Director‑General of ASIS\n\n (1) Without limiting section 333S, the Director‑General of the Australian Secret Intelligence Service may, by legislative instrument, declare that all or specified provisions of this Subdivision do not apply in relation to a person carrying out work for the Director‑General.\n\n (2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.","sortOrder":744},{"sectionNumber":"333V","sectionType":"section","heading":"Dealing with disputes in other ways","content":"333V  Dealing with disputes in other ways\n\n  If an application made under subsection 333N(3) for the FWC to deal with a dispute does not consist solely of an application for an order under section 333P:\n\n (a) the FWC must deal with the dispute; and\n\n (b) if the parties notify the FWC that they agree to the FWC arbitrating the dispute—the FWC may deal with the dispute by arbitration.\n\nNote: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate, including by mediation, conciliation, making a recommendation or expressing an opinion (see subsection 595(2)). See section 333P if the application also includes an application for an order under that section.","sortOrder":746},{"sectionNumber":"333W","sectionType":"section","heading":"Guidelines","content":"333W  Guidelines\n\n (1) The FWC must make written guidelines in relation to the operation of this Division.\n\n (2) Guidelines made under subsection (1) are not a legislative instrument.","sortOrder":748},{"sectionNumber":"333X","sectionType":"section","heading":"Employer-funded paid parental leave—preserved if child is stillborn or dies","content":"333X  Employer‑funded paid parental leave—preserved if child is stillborn or dies\n\nApplication of this section\n\n (1) This section applies if:\n\n (a) a child is stillborn or dies; and\n\n (b) an employee would have been entitled to leave, under the terms and conditions of the employee’s employment, if the child had not been stillborn or died; and\n\n (c) that leave is paid for by the employee’s employer and is associated with:\n\n (i) the birth of a child of the employee or the employee’s spouse or de facto partner; or\n\n (ii) the placement of a child with the employee for adoption.\n\nNote: For the definition of a stillborn child, see subsection 77A(2).\n\nEmployee must be allowed to take paid parental leave\n\n (2) The employee’s employer must not, because of the stillbirth or death:\n\n (a) refuse to allow the employee to take that leave; or\n\n (b) cancel any part of that leave without being requested by the employee to do so.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\nException—express provision for refusal or cancellation of leave, or for no entitlement to leave\n\n (3) Despite subsection (2), the employer may refuse or cancel that leave if, under the terms and conditions of the employee’s employment:\n\n (a) the employer is expressly allowed to refuse or cancel that leave because of stillbirth or the death of a child; or\n\n (b) the employee is expressly not entitled to that leave because of stillbirth or the death of a child.\n\n (4) However, subsection (3) does not apply if the terms and conditions are varied, after the commencement of this section, unilaterally by the employer to provide as mentioned in paragraph (3)(a) or (b).\n\nException—other leave that expressly addresses circumstance\n\n (5) Despite subsection (2), the employer may refuse or cancel that leave if, under the terms and conditions of the employee’s employment, the employee is entitled to other leave that expressly addresses stillbirth or the death of a child.\n\n (6) For the purposes of subsection (5), in working out whether the employee is entitled to other leave, disregard:\n\n (a) unpaid parental leave to which the employee is entitled under section 70 or under terms that have the same (or substantially the same) effect as that section; and\n\n (b) compassionate leave to which the employee is entitled under section 104 or under terms that have the same (or substantially the same) effect as that section.","sortOrder":750},{"sectionNumber":"Part 3-1","sectionType":"part","heading":"General protections","content":"Part 3‑1—General protections","sortOrder":751},{"sectionNumber":"334","sectionType":"section","heading":"Guide to this Part","content":"334  Guide to this Part\n\nThis Part provides general workplace protections.\n\nDivision 2 sets out the circumstances in which this Part applies.\n\nDivision 3 protects workplace rights, and the exercise of those rights.\n\nDivision 4 protects freedom of association, involvement in lawful industrial activities, and the exercise of workplace delegates’ rights.\n\nDivision 5 provides other protections, including protection from discrimination.\n\nDivision 6 deals with sham arrangements.\n\nDivision 7 sets out rules for the purposes of establishing contraventions of this Part.\n\nDivision 8 deals with compliance. In most cases, a general protections dispute that involves an alleged dismissal will be dealt with by a court only if the dispute has not been resolved by the FWC.\n\nDivision 9 deals with modifications of this Part.","sortOrder":753},{"sectionNumber":"335","sectionType":"section","heading":"Meanings of employee and employer","content":"335  Meanings of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":754},{"sectionNumber":"335A","sectionType":"section","heading":"Meaning of Commonwealth entity","content":"335A  Meaning of Commonwealth entity\n\n  In this Part, Commonwealth entity means:\n\n (a) the Commonwealth; or\n\n (b) a Commonwealth authority.","sortOrder":755},{"sectionNumber":"336","sectionType":"section","heading":"Objects of this Part","content":"336  Objects of this Part\n\n (1) The objects of this Part are as follows:\n\n (a) to protect workplace rights;\n\n (b) to protect freedom of association by ensuring that persons are:\n\n (i) free to become, or not become, members of industrial associations; and\n\n (ii) free to be represented, or not represented, by industrial associations; and\n\n (iii) free to participate, or not participate, in lawful industrial activities;\n\n (c) to provide protection from workplace discrimination;\n\n (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.\n\n (2) The protections referred to in subsection (1) are provided to a person (whether an employee, an employer or otherwise).","sortOrder":756},{"sectionNumber":"337","sectionType":"section","heading":"Application of this Part","content":"337  Application of this Part\n\n  This Part applies only to the extent provided by this Division.\n\nNote: Sections 30G and 30R extend the operation of this Part in a referring State.","sortOrder":758},{"sectionNumber":"338","sectionType":"section","heading":"Action to which this Part applies","content":"338  Action to which this Part applies\n\n (1) This Part applies to the following action:\n\n (a) action taken by a constitutionally‑covered entity;\n\n (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;\n\n (c) action that consists of advising, encouraging or inciting, or action taken with intent to coerce, a constitutionally‑covered entity:\n\n (i) to take, or not take, particular action in relation to another person; or\n\n (ii) to threaten to take, or not take, particular action in relation to another person;\n\n (d) action taken in a Territory or a Commonwealth place;\n\n (e) action taken by:\n\n (i) a trade and commerce employer; or\n\n (ii) a Territory employer;\n\n  that affects, is capable of affecting or is taken with intent to affect an employee of the employer;\n\n (f) action taken by an employee of:\n\n (i) a trade and commerce employer; or\n\n (ii) a Territory employer;\n\n  that affects, is capable of affecting or is taken with intent to affect the employee’s employer.\n\n (2) Each of the following is a constitutionally‑covered entity:\n\n (a) a constitutional corporation;\n\n (b) the Commonwealth;\n\n (c) a Commonwealth authority;\n\n (d) a body corporate incorporated in a Territory;\n\n (e) an organisation.\n\n (3) A trade and commerce employer is a national system employer within the meaning of paragraph 14(d).\n\n (4) A Territory employer is a national system employer within the meaning of paragraph 14(f).","sortOrder":759},{"sectionNumber":"338A","sectionType":"section","heading":"Meaning of independent contractor","content":"338A  Meaning of independent contractor\n\n  A reference in this Part to an independent contractor includes a reference to a regulated worker.\n\nNote: A regulated worker must be an individual: see section 15G and related definitions.","sortOrder":760},{"sectionNumber":"339","sectionType":"section","heading":"Additional effect of this Part","content":"339  Additional effect of this Part\n\n  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:\n\n (a) a reference to an employer in one or more provisions of this Part were a reference to a national system employer;\n\n (b) a reference to an employee in one or more provisions of this Part were a reference to a national system employee;\n\n (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;\n\n (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;\n\n (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;\n\n (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;\n\n (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;\n\n (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.","sortOrder":761},{"sectionNumber":"340","sectionType":"section","heading":"Protection","content":"340  Protection\n\n (1) A person must not take adverse action against another person:\n\n (a) because the other person:\n\n (i) has a workplace right; or\n\n (ii) has, or has not, exercised a workplace right; or\n\n (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or\n\n (b) to prevent the exercise of a workplace right by the other person.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (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.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).","sortOrder":763},{"sectionNumber":"341","sectionType":"section","heading":"Meaning of workplace right","content":"341  Meaning of workplace right\n\nMeaning of workplace right\n\n (1) A person has a workplace right if the person:\n\n (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\n\n (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or\n\n (c) is able to make a complaint or inquiry:\n\n (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or\n\n (ii) if the person is an employee—in relation to his or her employment.\n\nMeaning of process or proceedings under a workplace law or workplace instrument\n\n (2) Each of the following is a process or proceedings under a workplace law or workplace instrument:\n\n (a) a conference conducted or hearing held by the FWC;\n\n (b) court proceedings under a workplace law or workplace instrument;\n\n (c) protected industrial action;\n\n (d) a protected action ballot;\n\n (e) making, varying or terminating an enterprise agreement;\n\n (f) appointing, or terminating the appointment of, a bargaining representative;\n\n (g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;\n\n (h) agreeing to cash out paid annual leave or paid personal/carer’s leave;\n\n (i) making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);\n\n (ia) giving a notification, or receiving an offer or notice, under Division 4A of Part 2‑2 (which deals with casual employment);\n\n (j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;\n\n (k) any other process or proceedings under a workplace law or workplace instrument.\n\nProspective employees taken to have workplace rights\n\n (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.\n\nNote: 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.\n\nExceptions relating to prospective employees\n\n (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.\n\n (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 or 6‑3A (which deal with transfer of business).","sortOrder":764},{"sectionNumber":"342","sectionType":"section","heading":"Meaning of adverse action","content":"342  Meaning of adverse action\n\n (1) The following table sets out circumstances in which a person takes adverse action against another person.\n\n\n\n- Meaning of adverse action\n- Item Column 1Adverse action is taken by ... Column 2if ...\n- 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.\n- 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.\n- 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.\n- 3A a digital labour platform operator that has entered into a contract with an employee‑like worker for use of, or access to, a digital labour platform against the employee‑like worker the digital labour platform operator:(a) terminates the contract; or(b) injures the employee‑like worker in relation to the terms and conditions of the contract; or(c) alters the position of the employee‑like worker to the employee‑like worker’s prejudice; or(d) refuses to make use of, or agree to make use of, services offered by the employee‑like worker; or(e) refuses to provide to the employee‑like worker use of or access to the digital labour platform.\n- 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.\n- 4A a digital labour platform operator that proposes to enter into a contract with an employee‑like worker for use of, or access to, a digital labour platform against the employee‑like worker the digital labour platform operator:(a) refuses to agree to provide to the employee‑like worker use of, or access to, the digital labour platform; or(b) discriminates against the employee‑like worker in relation to the terms and conditions on which the digital labour platform operator agrees to provide to the employee‑like worker use of, or access to, the digital labour platform; or(c) refuses to make use of, or agree to make use of, services offered by the employee‑like worker.\n- 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.\n- 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.\n- 6A an employee‑like worker against a digital labour platform operator that has entered into a contract with the employee‑like worker for use of, or access to, a digital labour platform the employee‑like worker takes industrial action against the digital labour platform operator.\n- 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).\n- 8 an industrial association, or an officer or member of an industrial association, against an employee‑like worker the industrial association, or the officer or member of the industrial association, takes action that has the effect, directly or indirectly, of prejudicing the employee‑like worker in relation to a contract for use of, or access to, a digital labour platform.\n\n\n (2) Adverse action includes:\n\n (a) threatening to take action covered by the table in subsection (1); and\n\n (b) organising such action.\n\n (3) Adverse action does not include action that is authorised by or under:\n\n (a) this Act or any other law of the Commonwealth; or\n\n (b) a law of a State or Territory prescribed by the regulations.\n\n (4) Without limiting subsection (3), adverse action does not include the following:\n\n (a) an employer standing down an employee who is:\n\n (i) engaged in protected industrial action; and\n\n (ii) employed under a contract of employment that provides for the employer to stand down the employee in the circumstances;\n\n (b) discrimination against an employer in the circumstances mentioned in subsection 354(2A) or (2B).","sortOrder":765},{"sectionNumber":"343","sectionType":"section","heading":"Coercion","content":"343  Coercion\n\n (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:\n\n (a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or\n\n (b) exercise, or propose to exercise, a workplace right in a particular way.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) Subsection (1) does not apply to:\n\n (a) protected industrial action; or\n\n (b) discrimination against an employer in the circumstances mentioned in subsection 354(2A) or (2B).","sortOrder":766},{"sectionNumber":"344","sectionType":"section","heading":"Undue influence or pressure","content":"344  Undue influence or pressure\n\n  An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:\n\n (a) make, or not make, an agreement or arrangement under the National Employment Standards; or\n\n (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\n\n (c) agree to, or terminate, an individual flexibility arrangement; or\n\n (d) accept a guarantee of annual earnings; or\n\n (e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.\n\nNote 1: This section is a civil remedy provision (see Part 4‑1).\n\nNote 2: This section can apply to decisions whether to consent to performing work on keeping in touch days (see subsection 79A(3)).","sortOrder":767},{"sectionNumber":"345","sectionType":"section","heading":"Misrepresentations","content":"345  Misrepresentations\n\n (1) A person must not knowingly or recklessly make a false or misleading representation about:\n\n (a) the workplace rights of another person; or\n\n (b) the exercise, or the effect of the exercise, of a workplace right by another person.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.","sortOrder":768},{"sectionNumber":"346","sectionType":"section","heading":"Protection","content":"346  Protection\n\n  A person must not take adverse action against another person because the other person:\n\n (a) is or is not, or was or was not, an officer or member of an industrial association; or\n\n (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\n\n (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).\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":770},{"sectionNumber":"347","sectionType":"section","heading":"Meaning of engages in industrial activity","content":"347  Meaning of engages in industrial activity\n\n  A person engages in industrial activity if the person:\n\n (a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or\n\n (b) does, or does not:\n\n (i) become involved in establishing an industrial association; or\n\n (ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or\n\n (iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or\n\n (iv) comply with a lawful request made by, or requirement of, an industrial association; or\n\n (v) represent or advance the views, claims or interests of an industrial association; or\n\n (vi) pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or\n\n (vii) seek to be represented by an industrial association; or\n\n (c) organises or promotes an unlawful activity for, or on behalf of, an industrial association; or\n\n (d) encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or\n\n (e) complies with an unlawful request made by, or requirement of, an industrial association; or\n\n (f) takes part in industrial action; or\n\n (g) makes a payment:\n\n (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\n\n (ii) to which an employee is not entitled because of that Division.","sortOrder":771},{"sectionNumber":"348","sectionType":"section","heading":"Coercion","content":"348  Coercion\n\n  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.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":772},{"sectionNumber":"349","sectionType":"section","heading":"Misrepresentations","content":"349  Misrepresentations\n\n (1) A person must not knowingly or recklessly make a false or misleading representation about either of the following:\n\n (a) another person’s obligation to engage in industrial activity;\n\n (b) another person’s obligation to disclose whether he or she, or a third person:\n\n (i) is or is not, or was or was not, an officer or member of an industrial association; or\n\n (ii) is or is not engaging, or has or has not engaged, in industrial activity.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.","sortOrder":773},{"sectionNumber":"350","sectionType":"section","heading":"Inducements—membership action","content":"350  Inducements—membership action\n\n (1) An employer must not induce an employee to take, or propose to take, membership action.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (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.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2A) A regulated business must not induce a regulated contractor to take, or propose to take, membership action.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (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.","sortOrder":774},{"sectionNumber":"350A","sectionType":"section","heading":"Protection for workplace delegates","content":"350A  Protection for workplace delegates\n\n (1) The employer of a workplace delegate must not:\n\n (a) unreasonably fail or refuse to deal with the workplace delegate; or\n\n (b) knowingly or recklessly make a false or misleading representation to the workplace delegate; or\n\n (c) unreasonably hinder, obstruct or prevent the exercise of the rights of the workplace delegate under this Act or a fair work instrument.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) To avoid doubt, subsection (1) applies only in relation to the workplace delegate acting in that capacity.\n\n (3) The burden of proving that the conduct of the employer is not unreasonable as mentioned in subsection (1) lies on the employer.\n\nException—conduct required by law\n\n (4) Subsection (1) does not apply in relation to conduct required by or under a law of the Commonwealth or a State or a Territory.","sortOrder":775},{"sectionNumber":"350B","sectionType":"section","heading":"Protection for workplace delegates—regulated workers","content":"350B  Protection for workplace delegates—regulated workers\n\n (1) The associated regulated business for a workplace delegate who is a regulated worker must not:\n\n (a) unreasonably fail or refuse to deal with the workplace delegate; or\n\n (b) knowingly or recklessly make a false or misleading representation to the workplace delegate; or\n\n (c) unreasonably hinder, obstruct or prevent the exercise of the rights of the workplace delegate under this Act or a fair work instrument.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) To avoid doubt, subsection (1) applies only in relation to the workplace delegate acting in that capacity.\n\n (3) The burden of proving that the conduct of the associated regulated business is not unreasonable as mentioned in subsection (1) lies on the associated regulated business.\n\nException—conduct required by law\n\n (4) Subsection (1) does not apply in relation to conduct required by or under a law of the Commonwealth or a State or a Territory.\n\nMeaning of associated regulated business\n\n (5) The associated regulated business for a workplace delegate who is a regulated worker is the regulated business that:\n\n (a) engaged the workplace delegate under a services contract; or\n\n (b) arranged for, or facilitated entry into, the services contract under which the workplace delegate performs work.","sortOrder":776},{"sectionNumber":"350C","sectionType":"section","heading":"Workplace delegates and their rights","content":"350C  Workplace delegates and their rights\n\nMeaning of workplace delegate\n\n (1) A workplace delegate is a person appointed or elected, in accordance with the rules of an employee organisation, to be a delegate or representative (however described) for either or both of the following:\n\n (a) members of the organisation who work in a particular enterprise;\n\n (b) members of the organisation who perform work for, or that has been arranged or facilitated by, a particular regulated business.\n\nRights of workplace delegates\n\n (2) The workplace delegate is entitled to represent the industrial interests of those members, and any other persons eligible to be such members, including in disputes with the employer or regulated business concerned.\n\nNote: This section does not create any obligation on a person to be represented by a workplace delegate.\n\n (3) The workplace delegate is entitled to:\n\n (a) reasonable communication with those members, and any other persons eligible to be such members, in relation to their industrial interests; and\n\n (b) for the purpose of representing those interests:\n\n (i) in relation to employees—reasonable access to the workplace and workplace facilities where the enterprise concerned is being carried on; and\n\n (ii) in relation to regulated workers—reasonable access to the workplace facilities provided by the regulated business concerned; and\n\n (iii) if the workplace delegate is an employee—reasonable access to paid time, during normal working hours, for the purposes of related training, unless the workplace delegate is employed by a small business employer.\n\n (4) The employer of, or associated regulated business for, the workplace delegate is taken to have afforded the workplace delegate the rights mentioned in subsection (3) if the employer or regulated business has complied with the delegates’ rights term in the fair work instrument that applies to the workplace delegate.\n\n (5) Otherwise, in determining what is reasonable for the purposes of subsection (3), regard must be had to the following:\n\n (a) the size and nature of the enterprise or regulated business;\n\n (b) the resources of the employer concerned or the regulated business;\n\n (c) the facilities available at the enterprise or provided by the regulated business.","sortOrder":777},{"sectionNumber":"351","sectionType":"section","heading":"Discrimination","content":"351  Discrimination\n\n (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 orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) However, subsection (1) does not apply to action that is:\n\n (a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or\n\n (b) taken because of the inherent requirements of the particular position concerned; or\n\n (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:\n\n (i) in good faith; and\n\n (ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.\n\n (3) Each of the following is an anti‑discrimination law:\n\n (aa) the Age Discrimination Act 2004;\n\n (ab) the Disability Discrimination Act 1992;\n\n (ac) the Racial Discrimination Act 1975;\n\n (ad) the Sex Discrimination Act 1984;\n\n (a) the Anti‑Discrimination Act 1977 of New South Wales;\n\n (b) the Equal Opportunity Act 2010 of Victoria;\n\n (c) the Anti‑Discrimination Act 1991 of Queensland;\n\n (d) the Equal Opportunity Act 1984 of Western Australia;\n\n (e) the Equal Opportunity Act 1984 of South Australia;\n\n (f) the Anti‑Discrimination Act 1998 of Tasmania;\n\n (g) the Discrimination Act 1991 of the Australian Capital Territory;\n\n (h) the Anti‑Discrimination Act 1992 (NT).","sortOrder":779},{"sectionNumber":"352","sectionType":"section","heading":"Temporary absence—illness or injury","content":"352  Temporary absence—illness or injury\n\n  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.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":780},{"sectionNumber":"353","sectionType":"section","heading":"Bargaining services fees","content":"353  Bargaining services fees\n\n (1) An industrial association, or an officer or member of an industrial association, must not:\n\n (a) demand; or\n\n (b) purport to demand; or\n\n (c) do anything that would:\n\n (i) have the effect of demanding; or\n\n (ii) purport to have the effect of demanding;\n\npayment of a bargaining services fee.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) A bargaining services fee is a fee (however described) payable:\n\n (a) to an industrial association; or\n\n (b) to someone in lieu of an industrial association;\n\nwholly or partly for the provision, or purported provision, of bargaining services, but does not include membership fees.\n\n (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).\n\nException for fees payable under contract\n\n (4) Subsection (1) does not apply if the fee is payable to the industrial association under a contract for the provision of bargaining services.","sortOrder":781},{"sectionNumber":"354","sectionType":"section","heading":"Coverage by particular instruments","content":"354  Coverage by particular instruments\n\nDiscrimination against an employer\n\n (1) A person must not discriminate against an employer because:\n\n (a) employees of the employer are covered, or not covered, by:\n\n (i) provisions of the National Employment Standards; or\n\n (ii) a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or\n\n (iii) an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation; or\n\n (b) it is proposed that employees of the employer be covered, or not be covered, by:\n\n (i) a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or\n\n (ii) an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\nExceptions\n\n (2) Subsection (1) does not apply to protected industrial action.\n\n (2A) Paragraph (1)(a) does not apply if the discrimination:\n\n (a) is because employees of the employer:\n\n (i) are not covered by an enterprise agreement or a kind of enterprise agreement; or\n\n (ii) are covered by an enterprise agreement that does not cover an employee organisation; and\n\n (b) is by:\n\n (i) a Commonwealth entity; or\n\n (ii) a person acting as required or authorised under a contractual arrangement with a Commonwealth entity; or\n\n (iii) a person acting as required or authorised under a contractual arrangement in a Commonwealth contractual arrangement chain; and\n\n (c) is for the purposes of:\n\n (i) making or administering a grant of financial assistance; or\n\n (ii) procuring or providing goods or services; or\n\n (iii) entering into, or fulfilling the terms and conditions of, a contractual arrangement of a type determined under subsection (2C).\n\nNote: Commonwealth entity is defined in section 335A.\n\n (2B) Paragraph (1)(b) does not apply if the discrimination:\n\n (a) is because it is proposed that employees of the employer:\n\n (i) not be covered by an enterprise agreement or a kind of enterprise agreement; or\n\n (ii) be covered by an enterprise agreement that does not cover an employee organisation; and\n\n (b) is by:\n\n (i) a Commonwealth entity; or\n\n (ii) a person acting as required or authorised under a contractual arrangement with a Commonwealth entity; or\n\n (iii) a person acting as required or authorised under a contractual arrangement in a Commonwealth contractual arrangement chain; and\n\n (c) is for the purposes of:\n\n (i) making or administering a grant of financial assistance; or\n\n (ii) procuring or providing goods or services; or\n\n (iii) entering into, or fulfilling the terms and conditions of, a contractual arrangement of a type determined under subsection (2C).\n\nNote: Commonwealth entity is defined in section 335A.\n\nOther types of contractual arrangements\n\n (2C) The Minister may, by legislative instrument, determine a type of contractual arrangement for the purposes of subparagraphs (2A)(c)(iii) and (2B)(c)(iii).\n\n (2D) The Minister may, in writing, delegate the Minister’s power under subsection (2C) to another Minister.\n\nDiscrimination against a regulated business\n\n (3) A person must not discriminate against a regulated business because:\n\n (a) regulated workers in relation to the regulated business are covered, or not covered, by a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or\n\n (b) it is proposed that regulated workers in relation to the regulated business are covered, or not covered, by a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument).\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\nDefinitions\n\n (4) In this section:\n\nCommonwealth contractual arrangement chain means a chain or series of contractual arrangements:\n\n (a) under which the terms and conditions of the first contractual arrangement in the chain or series (the primary arrangement) are fulfilled, under another contractual arrangement, by a person who is not a party to the primary arrangement; and\n\n (b) in which at least one party to the primary arrangement is a Commonwealth entity.\n\nNote: Commonwealth entity is defined in section 335A.\n\ncontractual arrangement includes a deed, contract, undertaking or any other form of legally binding arrangement.","sortOrder":782},{"sectionNumber":"355","sectionType":"section","heading":"Coercion—allocation of duties etc. to particular person","content":"355  Coercion—allocation of duties etc. to particular person\n\n  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:\n\n (a) employ, or not employ, a particular person; or\n\n (b) engage, or not engage, a particular independent contractor; or\n\n (c) allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or\n\n (d) designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":783},{"sectionNumber":"356","sectionType":"section","heading":"Objectionable terms","content":"356  Objectionable terms\n\n  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.","sortOrder":784},{"sectionNumber":"357","sectionType":"section","heading":"Misrepresenting employment as independent contracting arrangement","content":"357  Misrepresenting employment as independent contracting arrangement\n\n (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.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) Subsection (1) does not apply if the employer proves that, when the representation was made, the employer reasonably believed that the contract was a contract for services.\n\n (3) In determining, for the purpose of subsection (2), whether the employer’s belief was reasonable:\n\n (a) regard must be had to the size and nature of the employer’s enterprise; and\n\n (b) regard may be had to any other relevant matters.","sortOrder":787},{"sectionNumber":"358","sectionType":"section","heading":"Dismissing to engage as independent contractor","content":"358  Dismissing to engage as independent contractor\n\n  An employer must not dismiss, or threaten to dismiss, an individual who:\n\n (a) is an employee of the employer; and\n\n (b) performs particular work for the employer;\n\nin order to engage the individual as an independent contractor to perform the same, or substantially the same, work under a contract for services.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":788},{"sectionNumber":"359","sectionType":"section","heading":"Misrepresentation to engage as independent contractor","content":"359  Misrepresentation to engage as independent contractor\n\n  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.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":789},{"sectionNumber":"359B","sectionType":"section","heading":"Dismissing to engage as casual employee","content":"359B  Dismissing to engage as casual employee\n\n  An employer must not dismiss, or threaten to dismiss, an individual who:\n\n (a) is an employee of the employer; and\n\n (b) performs particular work for the employer;\n\nin order to engage the individual as a casual employee to perform the same, or substantially the same, work.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":791},{"sectionNumber":"359C","sectionType":"section","heading":"Misrepresentation to engage as casual employee","content":"359C  Misrepresentation to engage as casual employee\n\n  A person (the employer) that employs, or has at any time employed, an individual to perform particular work other than as a casual employee must not make a statement that:\n\n (a) the employer knows is false; and\n\n (b) is made in order to persuade or influence the individual to enter into a contract for casual employment under which the individual will perform the same, or substantially the same, work for the employer.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":792},{"sectionNumber":"360","sectionType":"section","heading":"Multiple reasons for action","content":"360  Multiple reasons for action\n\n  For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.","sortOrder":794},{"sectionNumber":"361","sectionType":"section","heading":"Reason for action to be presumed unless proved otherwise","content":"361  Reason for action to be presumed unless proved otherwise\n\n (1) If:\n\n (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\n\n (b) taking that action for that reason or with that intent would constitute a contravention of this Part;\n\nit is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.\n\n (2) Subsection (1) does not apply in relation to orders for an interim injunction.","sortOrder":795},{"sectionNumber":"362","sectionType":"section","heading":"Advising, encouraging, inciting or coercing action","content":"362  Advising, encouraging, inciting or coercing action\n\n (1) If:\n\n (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\n\n (b) the action, if taken by the second person for the first person’s reason, would contravene a provision of this Part;\n\nthe first person is taken to have contravened the provision.\n\n (2) Subsection (1) does not limit section 550.","sortOrder":796},{"sectionNumber":"363","sectionType":"section","heading":"Actions of industrial associations","content":"363  Actions of industrial associations\n\n (1) For the purposes of this Part, each of the following is taken to be action of an industrial association:\n\n (a) action taken by the committee of management of the industrial association;\n\n (b) action taken by an officer or agent of the industrial association acting in that capacity;\n\n (c) action taken by a member, or group of members, of the industrial association if the action is authorised by:\n\n (i) the rules of the industrial association; or\n\n (ii) the committee of management of the industrial association; or\n\n (iii) an officer or agent of the industrial association acting in that capacity;\n\n (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;\n\n (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.\n\n (2) Paragraphs (1)(c) and (d) do not apply if:\n\n (a) the committee of management of the industrial association; or\n\n (b) a person authorised by the committee; or\n\n (c) an officer of the industrial association;\n\nhas taken all reasonable steps to prevent the action.\n\n (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:\n\n (a) that the action was taken by a person, or a group, referred to in paragraphs (1)(a) to (e); and\n\n (b) that the person, or a person in the group, had that state of mind.\n\n (4) Subsections (1) to (3) have effect despite subsections 793(1) and (2) (which deal with liabilities of bodies corporate).","sortOrder":797},{"sectionNumber":"364","sectionType":"section","heading":"Unincorporated industrial associations","content":"364  Unincorporated industrial associations\n\nPerson includes unincorporated industrial association\n\n (1) For the purposes of this Part, a reference to a person includes a reference to an unincorporated industrial association.\n\nLiability for contraventions by unincorporated industrial associations\n\n (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:\n\n (a) took, or took part in, the relevant action; and\n\n (b) did so with the relevant state of mind.","sortOrder":798},{"sectionNumber":"365","sectionType":"section","heading":"Application for the FWC to deal with a dismissal dispute","content":"365  Application for the FWC to deal with a dismissal dispute\n\n  If:\n\n (a) a person; or\n\n (b) an industrial association that is entitled to represent the industrial interests of a person;\n\nalleges that the person was dismissed in contravention of this Part, the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.","sortOrder":801},{"sectionNumber":"366","sectionType":"section","heading":"Time for application","content":"366  Time for application\n\n (1) An application under section 365 must be made:\n\n (a) within 21 days after the alleged dismissal took effect; or\n\n (b) within such further period as the FWC allows under subsection (2).\n\n (2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:\n\n (a) the reason for the delay; and\n\n (b) any action taken by the person to dispute the alleged dismissal; and\n\n (c) prejudice to the employer (including prejudice caused by the delay); and\n\n (d) the merits of the application; and\n\n (e) fairness as between the person and other persons in a like position.","sortOrder":802},{"sectionNumber":"367","sectionType":"section","heading":"Application fees","content":"367  Application fees\n\n (1) The application must be accompanied by any fee prescribed by the regulations.\n\n (2) The regulations may prescribe:\n\n (a) a fee for making an application to the FWC under section 365; and\n\n (b) a method for indexing the fee; and\n\n (c) the circumstances in which all or part of the fee may be waived or refunded.","sortOrder":803},{"sectionNumber":"368","sectionType":"section","heading":"Dealing with a dismissal dispute (other than by arbitration)","content":"368  Dealing with a dismissal dispute (other than by arbitration)\n\n (1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).\n\nNote: The FWC 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 the FWC might make is that an application be made under Part 3‑2 (which deals with unfair dismissal) in relation to the dispute.\n\n (1A) To avoid doubt, in order to commence dealing with the dispute (other than by arbitration) under this section, the FWC is not required to determine whether or not the person was dismissed.\n\n (2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).\n\nNote: For conferences, see section 592.\n\n (3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:\n\n (a) the FWC must issue a certificate to that effect; and\n\n (b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.\n\n (4) 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.","sortOrder":804},{"sectionNumber":"369","sectionType":"section","heading":"Dealing with a dismissal dispute by arbitration","content":"369  Dealing with a dismissal dispute by arbitration\n\n (1) This section applies if:\n\n (a) the FWC issues a certificate under paragraph 368(3)(a) in relation to the dispute; and\n\n (b) the parties notify the FWC that they agree to the FWC arbitrating the dispute; and\n\n (c) the notification:\n\n (i) is given to the FWC within 14 days after the day the certificate is issued, or within such period as the FWC allows on an application made during or after those 14 days; and\n\n (ii) complies with any requirements prescribed by the procedural rules; and\n\n (d) sections 726, 728, 729, 730, 731 and 732 do not apply.\n\nNote: Sections 726, 728, 729, 730, 731 and 732 prevent multiple applications or complaints of a kind referred to in those sections from being made in relation to the same dispute. A notification can only be made under this section where there is no such other application or complaint in relation to the dispute at the time the notification is made. Generally, once a notification is made no such application or complaint can be made in relation to the dispute (see section 727).\n\n (2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:\n\n (a) an order for reinstatement of the person;\n\n (b) an order for the payment of compensation to the person;\n\n (c) an order for payment of an amount to the person for remuneration lost;\n\n (d) an order to maintain the continuity of the person’s employment;\n\n (e) an order to maintain the period of the person’s continuous service with the employer.\n\n (3) A person to whom an order under subsection (2) applies must not contravene a term of the order.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).","sortOrder":805},{"sectionNumber":"370","sectionType":"section","heading":"Taking a dismissal dispute to court","content":"370  Taking a dismissal dispute to court\n\n  A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:\n\n (a) both of the following apply:\n\n (i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;\n\n (ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or\n\n (b) the general protections court application includes an application for an interim injunction.\n\nNote 1: Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see sections 727 and 728).\n\nNote 2: For the purposes of subparagraph (a)(ii), 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.","sortOrder":806},{"sectionNumber":"372","sectionType":"section","heading":"Application for the FWC to deal with a non-dismissal dispute","content":"372  Application for the FWC to deal with a non‑dismissal dispute\n\n  If:\n\n (a) a person alleges a contravention of this Part; and\n\n (b) the person is not entitled to apply to the FWC under section 365 for the FWC to deal with the dispute;\n\nthe person may apply to the FWC under this section for the FWC to deal with the dispute.","sortOrder":808},{"sectionNumber":"373","sectionType":"section","heading":"Application fees","content":"373  Application fees\n\n (1) The application must be accompanied by any fee prescribed by the regulations.\n\n (2) The regulations may prescribe:\n\n (a) a fee for making an application to the FWC under section 372; and\n\n (b) a method for indexing the fee; and\n\n (c) the circumstances in which all or part of the fee may be waived or refunded.","sortOrder":809},{"sectionNumber":"374","sectionType":"section","heading":"Conferences","content":"374  Conferences\n\n (1) If:\n\n (a) an application is made under section 372; and\n\n (b) the parties to the dispute agree to participate;\n\nthe FWC must conduct a conference to deal with the dispute.\n\nNote 1: For conferences, see section 592.\n\nNote 2: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).\n\n (2) Despite subsection 592(3), the FWC must conduct the conference in private.","sortOrder":810},{"sectionNumber":"375","sectionType":"section","heading":"Advice on general protections court application","content":"375  Advice on general protections court application\n\n  If the FWC 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.","sortOrder":811},{"sectionNumber":"375A","sectionType":"section","heading":"Appeal rights","content":"375A  Appeal rights\n\n (1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under subsection 369(2) (which is about arbitration of a dismissal dispute) unless the FWC considers that it is in the public interest to do so.\n\n (2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under subsection 369(2) 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.","sortOrder":813},{"sectionNumber":"375B","sectionType":"section","heading":"Costs orders against parties","content":"375B  Costs orders against parties\n\n (1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if:\n\n (a) an application for the FWC to deal with the dispute has been made under section 365; and\n\n (b) the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the dispute.\n\n (2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 377.\n\n (3) This section does not limit the FWC’s power to order costs under section 611.","sortOrder":814},{"sectionNumber":"376","sectionType":"section","heading":"Costs orders against lawyers and paid agents","content":"376  Costs orders against lawyers and paid agents\n\n (1) This section applies if:\n\n (a) an application for the FWC to deal with a dispute has been made under section 365 or 372; and\n\n (b) a person who is a party to the dispute has engaged a lawyer or paid agent (the representative) to represent the person in the dispute; and\n\n (c) under section 596, the person is required to seek the FWC’s permission to be represented by the representative.\n\n (2) The FWC may make an order for costs against the representative for costs incurred by the other party to the dispute if the FWC is satisfied that the representative caused those costs to be incurred because:\n\n (a) the representative encouraged the person to start, continue or respond to the dispute and it should have been reasonably apparent that the person had no reasonable prospect of success in the dispute; or\n\n (b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the dispute.\n\n (3) The FWC may make an order under this section only if the other party to the dispute has applied for it in accordance with section 377.\n\n (4) This section does not limit the FWC’s power to order costs under section 611.","sortOrder":815},{"sectionNumber":"377","sectionType":"section","heading":"Applications for costs orders","content":"377  Applications for costs orders\n\n  An application for an order for costs in relation to an application under section 365 or 372 must be made within 14 days after the FWC finishes dealing with the dispute.","sortOrder":816},{"sectionNumber":"377A","sectionType":"section","heading":"Schedule of costs","content":"377A  Schedule of costs\n\n (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 under section 611, 375B or 376 in relation to an application under section 365, including expenses arising from the representation of a party by a person or organisation other than on a legal professional basis.\n\n (2) If a schedule of costs is prescribed for the purposes of subsection (1), then, in awarding costs under section 611, 375B or 376 in relation to an application under section 365, the FWC:\n\n (a) is not limited to the items of expenditure appearing in the schedule; but\n\n (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.","sortOrder":817},{"sectionNumber":"378","sectionType":"section","heading":"Contravening costs orders","content":"378  Contravening costs orders\n\n  A person to whom an order for costs made under section 375B or 376 applies must not contravene a term of the order.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":818},{"sectionNumber":"378A","sectionType":"section","heading":"Minister may modify operation of this Part","content":"378A  Minister may modify operation of this Part\n\n  The Minister may, by legislative instrument, make a determination modifying the operation of a provision in this Part so that the provision does not apply to discrimination against an employer in the circumstances mentioned in subsection 354(2A) or (2B).","sortOrder":820},{"sectionNumber":"Part 3-2","sectionType":"part","heading":"Unfair dismissal","content":"Part 3‑2—Unfair dismissal","sortOrder":821},{"sectionNumber":"379","sectionType":"section","heading":"Guide to this Part","content":"379  Guide to this Part\n\nThis Part is about the unfair dismissal of national system employees, and the granting of remedies for unfair dismissal.\n\nDivision 2 sets out when a person is protected from unfair dismissal.\n\nDivision 3 sets out the elements that make up an unfair dismissal.\n\nDivision 4 sets out the remedies the FWC can grant for unfair dismissal.\n\nDivision 5 is about the procedural aspects of getting remedies for unfair dismissal.","sortOrder":823},{"sectionNumber":"380","sectionType":"section","heading":"Meanings of employee and employer","content":"380  Meanings of employee and employer\n\n  In this Part, employee means a national system employee, and employer means a national system employer.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":824},{"sectionNumber":"381","sectionType":"section","heading":"Object of this Part","content":"381  Object of this Part\n\n (1) The object of this Part is:\n\n (a) to establish a framework for dealing with unfair dismissal that balances:\n\n (i) the needs of business (including small business); and\n\n (ii) the needs of employees; and\n\n (b) to establish procedures for dealing with unfair dismissal that:\n\n (i) are quick, flexible and informal; and\n\n (ii) address the needs of employers and employees; and\n\n (c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.\n\n (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.\n\nNote: 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.","sortOrder":825},{"sectionNumber":"382","sectionType":"section","heading":"When a person is protected from unfair dismissal","content":"382  When a person is protected from unfair dismissal\n\n  A person is protected from unfair dismissal at a time if, at that time:\n\n (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\n\n (b) one or more of the following apply:\n\n (i) a modern award covers the person;\n\n (ii) an enterprise agreement applies to the person in relation to the employment;\n\n (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.","sortOrder":827},{"sectionNumber":"383","sectionType":"section","heading":"Meaning of minimum employment period","content":"383  Meaning of minimum employment period\n\n  The minimum employment period is:\n\n (a) if the employer is not a small business employer—6 months ending at the earlier of the following times:\n\n (i) the time when the person is given notice of the dismissal;\n\n (ii) immediately before the dismissal; or\n\n (b) if the employer is a small business employer—one year ending at that time.","sortOrder":828},{"sectionNumber":"384","sectionType":"section","heading":"Period of employment","content":"384  Period of employment\n\n (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.\n\n (2) However:\n\n (a) a period of service as a casual employee does not count towards the employee’s period of employment unless:\n\n (i) the employment as a casual employee was as a regular casual employee; and\n\n (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\n\n (b) if:\n\n (i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and\n\n (ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and\n\n (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;\n\n  the period of service with the old employer does not count towards the employee’s period of employment with the new employer.","sortOrder":829},{"sectionNumber":"385","sectionType":"section","heading":"What is an unfair dismissal","content":"385  What is an unfair dismissal\n\n  A person has been unfairly dismissed if the FWC is satisfied that:\n\n (a) the person has been dismissed; and\n\n (b) the dismissal was harsh, unjust or unreasonable; and\n\n (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and\n\n (d) the dismissal was not a case of genuine redundancy.\n\nNote: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.","sortOrder":831},{"sectionNumber":"386","sectionType":"section","heading":"Meaning of dismissed","content":"386  Meaning of dismissed\n\n (1) A person has been dismissed if:\n\n (a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or\n\n (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.\n\n (2) However, a person has not been dismissed if:\n\n (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\n\n (b) the person was an employee:\n\n (i) to whom a training arrangement applied; and\n\n (ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;\n\n  and the employment has terminated at the end of the training arrangement; or\n\n (c) the person was demoted in employment but:\n\n (i) the demotion does not involve a significant reduction in his or her remuneration or duties; and\n\n (ii) he or she remains employed with the employer that effected the demotion.\n\n (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.","sortOrder":832},{"sectionNumber":"387","sectionType":"section","heading":"Criteria for considering harshness etc.","content":"387  Criteria for considering harshness etc.\n\n  In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:\n\n (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\n\n (b) whether the person was notified of that reason; and\n\n (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and\n\n (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\n\n (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\n\n (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\n\n (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\n\n (h) any other matters that the FWC considers relevant.\n\nNote: For the purposes of paragraph (a), the following conduct can amount to a valid reason for the dismissal:\n\n(a) the person sexually harasses another person; and\n\n(b) the person does so in connection with the person’s employment.","sortOrder":833},{"sectionNumber":"388","sectionType":"section","heading":"The Small Business Fair Dismissal Code","content":"388  The Small Business Fair Dismissal Code\n\n (1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.\n\n (2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:\n\n (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\n\n (b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.","sortOrder":834},{"sectionNumber":"389","sectionType":"section","heading":"Meaning of genuine redundancy","content":"389  Meaning of genuine redundancy\n\n (1) A person’s dismissal was a case of genuine redundancy if:\n\n (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\n\n (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.\n\n (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:\n\n (a) the employer’s enterprise; or\n\n (b) the enterprise of an associated entity of the employer.","sortOrder":835},{"sectionNumber":"390","sectionType":"section","heading":"When the FWC may order remedy for unfair dismissal","content":"390  When the FWC may order remedy for unfair dismissal\n\n (1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:\n\n (a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and\n\n (b) the person has been unfairly dismissed (see Division 3).\n\n (2) The FWC may make the order only if the person has made an application under section 394.\n\n (3) The FWC must not order the payment of compensation to the person unless:\n\n (a) the FWC is satisfied that reinstatement of the person is inappropriate; and\n\n (b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.\n\nNote: Division 5 deals with procedural matters such as applications for remedies.","sortOrder":837},{"sectionNumber":"391","sectionType":"section","heading":"Remedy—reinstatement etc.","content":"391  Remedy—reinstatement etc.\n\nReinstatement\n\n (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:\n\n (a) reappointing the person to the position in which the person was employed immediately before the dismissal; or\n\n (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.\n\n (1A) If:\n\n (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\n\n (b) that position, or an equivalent position, is a position with an associated entity of the employer;\n\nthe order under subsection (1) may be an order to the associated entity to:\n\n (c) appoint the person to the position in which the person was employed immediately before the dismissal; or\n\n (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.\n\nOrder to maintain continuity\n\n (2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:\n\n (a) the continuity of the person’s employment;\n\n (b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.\n\nOrder to restore lost pay\n\n (3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC 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.\n\n (4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:\n\n (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\n\n (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.","sortOrder":838},{"sectionNumber":"392","sectionType":"section","heading":"Remedy—compensation","content":"392  Remedy—compensation\n\nCompensation\n\n (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.\n\nCriteria for deciding amounts\n\n (2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:\n\n (a) the effect of the order on the viability of the employer’s enterprise; and\n\n (b) the length of the person’s service with the employer; and\n\n (c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and\n\n (d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and\n\n (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\n\n (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\n\n (g) any other matter that the FWC considers relevant.\n\nMisconduct reduces amount\n\n (3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.\n\nShock, distress etc. disregarded\n\n (4) The amount ordered by the FWC 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.\n\nCompensation cap\n\n (5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:\n\n (a) the amount worked out under subsection (6); and\n\n (b) half the amount of the high income threshold immediately before the dismissal.\n\n (6) The amount is the total of the following amounts:\n\n (a) the total amount of remuneration:\n\n (i) received by the person; or\n\n (ii) to which the person was entitled;\n\n  (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and\n\n (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.","sortOrder":839},{"sectionNumber":"393","sectionType":"section","heading":"Monetary orders may be in instalments","content":"393  Monetary orders may be in instalments\n\n  To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.","sortOrder":840},{"sectionNumber":"394","sectionType":"section","heading":"Application for unfair dismissal remedy","content":"394  Application for unfair dismissal remedy\n\n (1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.\n\nNote 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.\n\nNote 2: For application fees, see section 395.\n\nNote 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.\n\n (2) The application must be made:\n\n (a) within 21 days after the dismissal took effect; or\n\n (b) within such further period as the FWC allows under subsection (3).\n\n (3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:\n\n (a) the reason for the delay; and\n\n (b) whether the person first became aware of the dismissal after it had taken effect; and\n\n (c) any action taken by the person to dispute the dismissal; and\n\n (d) prejudice to the employer (including prejudice caused by the delay); and\n\n (e) the merits of the application; and\n\n (f) fairness as between the person and other persons in a similar position.","sortOrder":842},{"sectionNumber":"395","sectionType":"section","heading":"Application fees","content":"395  Application fees\n\n (1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.\n\n (2) The regulations may prescribe:\n\n (a) a fee for making an application to the FWC under this Division; and\n\n (b) a method for indexing the fee; and\n\n (c) the circumstances in which all or part of the fee may be waived or refunded.","sortOrder":843},{"sectionNumber":"396","sectionType":"section","heading":"Initial matters to be considered before merits","content":"396  Initial matters to be considered before merits\n\n  The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:\n\n (a) whether the application was made within the period required in subsection 394(2);\n\n (b) whether the person was protected from unfair dismissal;\n\n (c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;\n\n (d) whether the dismissal was a case of genuine redundancy.","sortOrder":844},{"sectionNumber":"397","sectionType":"section","heading":"Matters involving contested facts","content":"397  Matters involving contested facts\n\n (1) The FWC 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.\n\n (2) However, the FWC may make a decision in relation to the matter without either conducting a conference or holding a hearing if:\n\n (a) it appears to the FWC that the matter can be adequately determined in the absence of the parties to the matter; and\n\n (b) the parties to the matter consent to the FWC making a decision in relation to the matter without conducting a conference or holding a hearing.","sortOrder":845},{"sectionNumber":"398","sectionType":"section","heading":"Conferences","content":"398  Conferences\n\n (1) This section applies in relation to a matter arising under this Part if the FWC conducts a conference in relation to the matter.\n\n (2) Despite subsection 592(3), the FWC must conduct the conference in private.\n\n (3) The FWC must take into account any difference in the circumstances of the parties to the matter in:\n\n (a) considering the application; and\n\n (b) informing itself in relation to the application.\n\n (4) The FWC must take into account the wishes of the parties to the matter as to the way in which the FWC:\n\n (a) considers the application; and\n\n (b) informs itself in relation to the application.","sortOrder":846},{"sectionNumber":"399","sectionType":"section","heading":"Hearings","content":"399  Hearings\n\n (1) The FWC must not hold a hearing in relation to a matter arising under this Part unless the FWC considers it appropriate to do so, taking into account:\n\n (a) the views of the parties to the matter; and\n\n (b) whether a hearing would be the most effective and efficient way to resolve the matter.\n\n (2) If the FWC 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.\n\n (3) The FWC 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.","sortOrder":847},{"sectionNumber":"399A","sectionType":"section","heading":"Dismissing applications","content":"399A  Dismissing applications\n\n (1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:\n\n (a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or\n\n (b) failed to comply with a direction or order of the FWC relating to the application; or\n\n (c) failed to discontinue the application after a settlement agreement has been concluded.\n\nNote 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.\n\nNote 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).\n\n (2) The FWC may exercise its power under subsection (1) on application by the employer.\n\n (3) This section does not limit when the FWC may dismiss an application.","sortOrder":848},{"sectionNumber":"400","sectionType":"section","heading":"Appeal rights","content":"400  Appeal rights\n\n (1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.\n\n (2) Despite subsection 604(1), an appeal from a decision made by the FWC 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.","sortOrder":849},{"sectionNumber":"400A","sectionType":"section","heading":"Costs orders against parties","content":"400A  Costs orders against parties\n\n (1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.\n\n (2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.\n\n (3) This section does not limit the FWC’s power to order costs under section 611.","sortOrder":850},{"sectionNumber":"401","sectionType":"section","heading":"Costs orders against lawyers and paid agents","content":"401  Costs orders against lawyers and paid agents\n\n (1) This section applies if:\n\n (a) an application for an unfair dismissal remedy has been made under section 394; and\n\n (b) a person who is a party to the matter has engaged a lawyer or paid agent (the representative) to represent the person in the matter; and\n\n (c) under section 596, the person is required to seek the FWC’s permission to be represented by the representative.\n\n (1A) The FWC may make an order for costs against the representative for costs incurred by the other party to the matter if the FWC is satisfied that the representative caused those costs to be incurred because:\n\n (a) the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or\n\n (b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.\n\n (2) The FWC may make an order under this section only if the other party to the matter has applied for it in accordance with section 402.\n\n (3) This section does not limit the FWC’s power to order costs under section 611.","sortOrder":851},{"sectionNumber":"402","sectionType":"section","heading":"Applications for costs orders","content":"402  Applications for costs orders\n\n  An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 400A or 401, must be made within 14 days after:\n\n (a) the FWC determines the matter; or\n\n (b) the matter is discontinued.","sortOrder":852},{"sectionNumber":"403","sectionType":"section","heading":"Schedule of costs","content":"403  Schedule of costs\n\n (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:\n\n (a) under section 611 in relation to a matter arising under this Part; or\n\n (b) under section 400A or 401;\n\nincluding expenses arising from the representation of a party by a person or organisation other than on a legal professional basis.\n\n (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 400A or 401, the FWC:\n\n (a) is not limited to the items of expenditure appearing in the schedule; but\n\n (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.","sortOrder":853},{"sectionNumber":"404","sectionType":"section","heading":"Security for costs","content":"404  Security for costs\n\n  The procedural rules may provide for the furnishing of security for the payment of costs in relation to matters arising under this Part.","sortOrder":854},{"sectionNumber":"405","sectionType":"section","heading":"Contravening orders under this Part","content":"405  Contravening orders under this Part\n\n  A person to whom an order under this Part applies must not contravene a term of the order.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":855},{"sectionNumber":"Part 3-3","sectionType":"part","heading":"Industrial action","content":"Part 3‑3—Industrial action","sortOrder":856},{"sectionNumber":"406","sectionType":"section","heading":"Guide to this Part","content":"406  Guide to this Part\n\nThis Part deals mainly with industrial action by national system employees and national system employers.\n\nDivision 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.\n\nDivision 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.\n\nDivision 4 provides for the FWC to make orders, in certain circumstances, that industrial action stop, not occur or not be organised for a specified period.\n\nDivision 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.\n\nDivision 6 provides for the FWC to make orders suspending or terminating protected industrial action for a proposed enterprise agreement in certain circumstances. If the FWC makes such an order, the action will no longer be protected industrial action.\n\nDivision 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.\n\nDivision 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.\n\nDivision 9 sets out restrictions about payments to employees relating to periods of industrial action.\n\nDivision 10 deals with the making of applications under this Part.","sortOrder":858},{"sectionNumber":"407","sectionType":"section","heading":"Meanings of employee and employer","content":"407  Meanings of employee and employer\n\n  In this Part, employee means a national system employee, and employer means a national system employer.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":859},{"sectionNumber":"408","sectionType":"section","heading":"Protected industrial action","content":"408  Protected industrial action\n\n  Industrial action is protected industrial action for a proposed enterprise agreement if it is one of the following:\n\n (a) employee claim action for the agreement (see section 409);\n\n (b) employee response action for the agreement (see section 410);\n\n (c) employer response action for the agreement (see section 411).","sortOrder":862},{"sectionNumber":"409","sectionType":"section","heading":"Employee claim action","content":"409  Employee claim action\n\nEmployee claim action\n\n (1) Employee claim action for a proposed enterprise agreement is industrial action that:\n\n (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\n\n (b) is organised or engaged in, against an employer that will be covered by the agreement, by:\n\n (i) a bargaining representative of an employee who will be covered by the agreement; or\n\n (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\n\n (c) meets the common requirements set out in Subdivision B; and\n\n (d) meets the additional requirements set out in this section.\n\nProtected action ballot is necessary\n\n (2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part).\n\nUnlawful terms\n\n (3) The industrial action must not be in support of, or to advance, claims to include unlawful terms in the agreement.\n\nIndustrial action must not be part of pattern bargaining\n\n (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.\n\nIndustrial action must not relate to a demarcation dispute etc.\n\n (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 FWC order that relates to a significant extent to a demarcation dispute.\n\nNotice requirements after suspension order must be met\n\n (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.\n\n (6A) Each bargaining representative who applied for a protected action ballot order for the protected action ballot for the industrial action must not have contravened any order made under section 448A (which is about mediation and conciliation conferences) that related to the protected action ballot order.\n\nOfficer of an employee organisation\n\n (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.","sortOrder":863},{"sectionNumber":"410","sectionType":"section","heading":"Employee response action","content":"410  Employee response action\n\nEmployee response action\n\n (1) Employee response action for a proposed enterprise agreement means industrial action that:\n\n (a) is organised or engaged in as a response to industrial action by an employer; and\n\n (b) is organised or engaged in, against an employer that will be covered by the agreement, by:\n\n (i) a bargaining representative of an employee who will be covered by the agreement; or\n\n (ii) an employee who will be covered by the agreement; and\n\n (c) meets the common requirements set out in Subdivision B; and\n\n (d) meets the additional requirements set out in this section.\n\nIndustrial action must not relate to a demarcation dispute etc.\n\n (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 FWC order that relates to a significant extent to a demarcation dispute.\n\nOfficer of an employee organisation\n\n (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.","sortOrder":864},{"sectionNumber":"411","sectionType":"section","heading":"Employer response action","content":"411  Employer response action\n\nEmployer response action\n\n (1) Employer response action for a proposed enterprise agreement means industrial action that:\n\n (a) is organised or engaged in as a response to industrial action by:\n\n (i) a bargaining representative of an employee who will be covered by the agreement; or\n\n (ii) an employee who will be covered by the agreement; and\n\n (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\n\n (c) meets the common requirements set out in Subdivision B; and\n\n (d) meets the additional requirements set out in this section.\n\nProtected action ballots\n\n (2) Subsection (3) applies if the industrial action is organised or engaged in by an employer in response to industrial action that is authorised by a protected action ballot.\n\n (3) The employer mentioned in subsection (2), and any bargaining representative of the employer for the proposed enterprise agreement, must not have contravened any order made under section 448A (which is about mediation and conciliation conferences) that related to the protected action ballot order for the protected action ballot.","sortOrder":865},{"sectionNumber":"412","sectionType":"section","heading":"Pattern bargaining","content":"412  Pattern bargaining\n\nPattern bargaining\n\n (1) A course of conduct by a person is pattern bargaining if:\n\n (a) the person is a bargaining representative for 2 or more proposed enterprise agreements; and\n\n (b) the course of conduct involves seeking common terms to be included in 2 or more of the agreements; and\n\n (c) the course of conduct relates to 2 or more employers.\n\nException—genuinely trying to reach an agreement\n\n (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.\n\n (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:\n\n (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;\n\n (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;\n\n (c) whether the bargaining representative is meeting the good faith bargaining requirements.\n\n (4) If a person seeks to rely on subsection (2), the person has the burden of proving that the subsection applies.\n\nGenuinely trying to reach an agreement\n\n (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.","sortOrder":866},{"sectionNumber":"413","sectionType":"section","heading":"Common requirements that apply for industrial action to be protected industrial action","content":"413  Common requirements that apply for industrial action to be protected industrial action\n\nCommon requirements\n\n (1) This section sets out the common requirements for industrial action to be protected industrial action for a proposed enterprise agreement.\n\nType of proposed enterprise agreement\n\n (2) The industrial action must not relate to a proposed enterprise agreement that is a greenfields agreement or a cooperative workplace agreement.\n\nGenuinely trying to reach an agreement\n\n (3) The following persons must be genuinely trying to reach an agreement:\n\n (a) if the person organising or engaging in the industrial action is a bargaining representative for the agreement—the bargaining representative;\n\n (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.\n\nNotice requirements\n\n (4) The notice requirements set out in section 414 must have been met in relation to the industrial action.\n\nCompliance with orders\n\n (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:\n\n (a) if the person organising or engaging in the industrial action is a bargaining representative for the agreement—the bargaining representative;\n\n (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.\n\nNo industrial action before an enterprise agreement etc. passes its nominal expiry date\n\n (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.\n\nNo suspension or termination order is in operation etc.\n\n (7) None of the following must be in operation:\n\n (a) an order under Division 6 of this Part suspending or terminating industrial action in relation to the agreement;\n\n (b) a Ministerial declaration under subsection 431(1) terminating industrial action in relation to the agreement;\n\n (c) an intractable bargaining declaration in relation to the agreement.","sortOrder":868},{"sectionNumber":"414","sectionType":"section","heading":"Notice requirements for industrial action","content":"414  Notice requirements for industrial action\n\nNotice requirements—employee claim action\n\n (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.\n\n (2) The period of notice must be at least:\n\n (a) subject to paragraph (b):\n\n (i) if subparagraph (ii) of this paragraph does not apply—3 working days; or\n\n (ii) if the proposed enterprise agreement is a multi‑enterprise agreement—120 hours; or\n\n (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.\n\nNote: For a proposed cooperative workplace agreement, see subsection 413(2).\n\nNotice of employee claim action not to be given until ballot results declared\n\n (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.\n\nNotice requirements—employee response action\n\n (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.\n\nNotice requirements—employer response action\n\n (5) Before an employer engages in employer response action for a proposed enterprise agreement, the employer must:\n\n (a) give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and\n\n (b) take all reasonable steps to notify the employees who will be covered by the agreement of the action.\n\nNotice requirements—content\n\n (6) A notice given under this section must specify the nature of the action and the day on which it will start.","sortOrder":869},{"sectionNumber":"415","sectionType":"section","heading":"Immunity provision","content":"415  Immunity provision\n\n (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:\n\n (a) personal injury; or\n\n (b) wilful or reckless destruction of, or damage to, property; or\n\n (c) the unlawful taking, keeping or use of property.\n\n (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.","sortOrder":871},{"sectionNumber":"416","sectionType":"section","heading":"Employer response action—employer may refuse to make payments to employees","content":"416  Employer response action—employer may refuse to make payments to employees\n\n  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.\n\nNote: 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).","sortOrder":872},{"sectionNumber":"416A","sectionType":"section","heading":"Employer response action does not affect continuity of employment","content":"416A  Employer response action does not affect continuity of employment\n\n  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.","sortOrder":873},{"sectionNumber":"417","sectionType":"section","heading":"Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.","content":"417  Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.\n\nNo industrial action\n\n (1) A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:\n\n (a) an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or\n\n (b) a workplace determination comes into operation until its nominal expiry date has passed;\n\nwhether or not the industrial action relates to a matter dealt with in the agreement or determination.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) The persons are:\n\n (a) an employer, employee, or employee organisation, who is covered by the agreement or determination; or\n\n (b) an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.\n\n (2A) If the person is an employer or employee covered by an enterprise agreement because of a variation approved or made by the FWC under section 216AB, 216BA, 216CB or 216DC, the reference in paragraph (1)(a) to the day the enterprise agreement is approved by the FWC is taken to be a reference to the day the variation starts to operate in accordance with section 216AF, 216BC, 216CE or 216DF (as the case may be).\n\nInjunctions and other orders\n\n (3) If a person contravenes subsection (1), the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may do either or both of the following:\n\n (a) grant an injunction under this subsection;\n\n (b) make any other order under subsection 545(1);\n\nthat the court considers necessary to stop, or remedy the effects of, the contravention.\n\n (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).\n\n (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).\n\nNote: Section 539 deals with applications for orders in relation to contraventions of civil remedy provisions.","sortOrder":875},{"sectionNumber":"418","sectionType":"section","heading":"FWC must order that industrial action by employees or employers stop etc.","content":"418  FWC must order that industrial action by employees or employers stop etc.\n\n (1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:\n\n (a) is happening; or\n\n (b) is threatened, impending or probable; or\n\n (c) is being organised;\n\nthe FWC 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.\n\nNote: For interim orders, see section 420.\n\n (2) The FWC may make the order:\n\n (a) on its own initiative; or\n\n (b) on application by either of the following:\n\n (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;\n\n (ii) an organisation of which a person referred to in subparagraph (i) is a member.\n\n (3) In making the order, the FWC does not have to specify the particular industrial action.\n\n (4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:\n\n (a) some or all of which has not been taken before the beginning of the stop period specified in the order; or\n\n (b) which has not ended before the beginning of that stop period; or\n\n (c) beyond that stop period;\n\nthe FWC 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.","sortOrder":877},{"sectionNumber":"419","sectionType":"section","heading":"FWC must order that industrial action by non-national system employees or non-national system employers stop etc.","content":"419  FWC must order that industrial action by non‑national system employees or non‑national system employers stop etc.\n\nStop orders etc.\n\n (1) If it appears to the FWC that industrial action by one or more non‑national system employees or non‑national system employers:\n\n (a) is:\n\n (i) happening; or\n\n (ii) threatened, impending or probable; or\n\n (iii) being organised; and\n\n (b) will, or would, be likely to have the effect of causing substantial loss or damage to the business of a constitutional corporation;\n\nthe FWC 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.\n\nNote: For interim orders, see section 420.\n\n (2) The FWC may make the order:\n\n (a) on its own initiative; or\n\n (b) on application by either of the following:\n\n (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;\n\n (ii) an organisation of which a person referred to in subparagraph (i) is a member.\n\n (3) In making the order, the FWC does not have to specify the particular industrial action.","sortOrder":878},{"sectionNumber":"420","sectionType":"section","heading":"Interim orders etc.","content":"420  Interim orders etc.\n\nApplication must be determined within 2 days\n\n (1) As far as practicable, the FWC must determine an application for an order under section 418 or 419 within 2 days after the application is made.\n\nInterim orders\n\n (2) If the FWC is unable to determine the application within that period, the FWC 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).\n\n (3) However, the FWC must not make the interim order if the FWC is satisfied that it would be contrary to the public interest to do so.\n\n (4) In making the interim order, the FWC does not have to specify the particular industrial action.\n\n (5) An interim order continues in operation until the application is determined.","sortOrder":879},{"sectionNumber":"421","sectionType":"section","heading":"Contravening an order etc.","content":"421  Contravening an order etc.\n\nContravening orders\n\n (1) A person to whom an order under section 418, 419 or 420 applies must not contravene a term of the order.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) However, a person is not required to comply with an order if:\n\n (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\n\n (b) the industrial action to which the order relates is, or would be, protected industrial action.\n\nInjunctions\n\n (3) The Federal Court or Federal Circuit and Family Court of Australia (Division 2) may grant an injunction, under this subsection, on such terms as the court considers appropriate if:\n\n (a) a person referred to in column 2 of item 15 of the table in subsection 539(2) has applied for the injunction; and\n\n (b) the court is satisfied that another person to whom the order applies has contravened, or proposes to contravene, a term of the order.\n\nNote: Section 539 deals with applications for orders in relation to contraventions of civil remedy provisions.\n\nNo other orders\n\n (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.","sortOrder":880},{"sectionNumber":"422","sectionType":"section","heading":"Injunction against industrial action if a bargaining representative is engaging in pattern bargaining","content":"422  Injunction against industrial action if a bargaining representative is engaging in pattern bargaining\n\n (1) The Federal Court or Federal Circuit and Family Court of Australia (Division 2) may grant an injunction on such terms as the court considers appropriate if:\n\n (a) a person has applied for the injunction; and\n\n (b) the requirement set out in subsection (2) is met.\n\n (2) The court is satisfied that:\n\n (a) employee claim action for a proposed enterprise agreement is being engaged in, or is threatened, impending or probable; and\n\n (b) a bargaining representative of an employee who will be covered by the agreement is engaging in pattern bargaining in relation to the agreement.","sortOrder":882},{"sectionNumber":"423","sectionType":"section","heading":"FWC may suspend or terminate protected industrial action—significant economic harm etc.","content":"423  FWC may suspend or terminate protected industrial action—significant economic harm etc.\n\nSuspension or termination of protected industrial action\n\n (1) The FWC 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.\n\nRequirement—significant economic harm\n\n (2) If the protected industrial action is employee claim action, the FWC must be satisfied that the action is causing, or is threatening to cause, significant economic harm to:\n\n (a) the employer, or any of the employers, that will be covered by the agreement; and\n\n (b) any of the employees who will be covered by the agreement.\n\n (3) If the protected industrial action is:\n\n (a) employee response action; or\n\n (b) employer response action;\n\nthe FWC 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.\n\n (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:\n\n (a) the source, nature and degree of harm suffered or likely to be suffered;\n\n (b) the likelihood that the harm will continue to be caused or will be caused;\n\n (c) the capacity of the person to bear the harm;\n\n (d) the views of the person and the bargaining representatives for the agreement;\n\n (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;\n\n (f) if the FWC is considering terminating the protected industrial action:\n\n (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\n\n (ii) whether there is no reasonable prospect of agreement being reached;\n\n (g) the objective of promoting and facilitating bargaining for the agreement.\n\nRequirement—harm is imminent\n\n (5) If the protected industrial action is threatening to cause significant economic harm as referred to in subsection (2) or (3), the FWC must be satisfied that the harm is imminent.\n\nRequirement—protracted action etc.\n\n (6) The FWC must be satisfied that:\n\n (a) the protected industrial action has been engaged in for a protracted period of time; and\n\n (b) the dispute will not be resolved in the reasonably foreseeable future.\n\nOrder may be made on own initiative or on application\n\n (7) The FWC may make the order:\n\n (a) on its own initiative; or\n\n (b) on application by any of the following:\n\n (i) a bargaining representative for the agreement;\n\n (ii) the Minister;\n\n (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;\n\n (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;\n\n (iii) a person prescribed by the regulations.","sortOrder":884},{"sectionNumber":"424","sectionType":"section","heading":"FWC must suspend or terminate protected industrial action—endangering life etc.","content":"424  FWC must suspend or terminate protected industrial action—endangering life etc.\n\nSuspension or termination of protected industrial action\n\n (1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:\n\n (a) is being engaged in; or\n\n (b) is threatened, impending or probable;\n\nif the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten:\n\n (c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or\n\n (d) to cause significant damage to the Australian economy or an important part of it.\n\n (2) The FWC may make the order:\n\n (a) on its own initiative; or\n\n (b) on application by any of the following:\n\n (i) a bargaining representative for the agreement;\n\n (ii) the Minister;\n\n (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;\n\n (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;\n\n (iii) a person prescribed by the regulations.\n\nApplication must be determined within 5 days\n\n (3) If an application for an order under this section is made, the FWC must, as far as practicable, determine the application within 5 days after it is made.\n\nInterim orders\n\n (4) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.\n\n (5) An interim order continues in operation until the application is determined.","sortOrder":885},{"sectionNumber":"425","sectionType":"section","heading":"FWC must suspend protected industrial action—cooling off","content":"425  FWC must suspend protected industrial action—cooling off\n\n (1) The FWC must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the FWC is satisfied that the suspension is appropriate taking into account the following matters:\n\n (a) whether the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue;\n\n (b) the duration of the protected industrial action;\n\n (c) whether the suspension would be contrary to the public interest or inconsistent with the objects of this Act;\n\n (d) any other matters that the FWC considers relevant.\n\n (2) The FWC may make the order only on application by:\n\n (a) a bargaining representative for the agreement; or\n\n (b) a person prescribed by the regulations.","sortOrder":886},{"sectionNumber":"426","sectionType":"section","heading":"FWC must suspend protected industrial action—significant harm to a third party","content":"426  FWC must suspend protected industrial action—significant harm to a third party\n\nSuspension of protected industrial action\n\n (1) The FWC 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.\n\nRequirement—adverse effect on employers or employees\n\n (2) The FWC must be satisfied that the protected industrial action is adversely affecting:\n\n (a) the employer, or any of the employers, that will be covered by the agreement; or\n\n (b) any of the employees who will be covered by the agreement.\n\nRequirement—significant harm to a third party\n\n (3) The FWC must be satisfied that the protected industrial action is threatening to cause significant harm to any person other than:\n\n (a) a bargaining representative for the agreement; or\n\n (b) an employee who will be covered by the agreement.\n\n (4) For the purposes of subsection (3), the FWC may take into account any matters it considers relevant including the extent to which the protected industrial action threatens to:\n\n (a) damage the ongoing viability of an enterprise carried on by the person; or\n\n (b) disrupt the supply of goods or services to an enterprise carried on by the person; or\n\n (c) reduce the person’s capacity to fulfil a contractual obligation; or\n\n (d) cause other economic loss to the person.\n\nRequirement—suspension is appropriate\n\n (5) The FWC must be satisfied that the suspension is appropriate taking into account the following:\n\n (a) whether the suspension would be contrary to the public interest or inconsistent with the objects of this Act;\n\n (b) any other matters that the FWC considers relevant.\n\nOrder may only be made on application by certain persons\n\n (6) The FWC may make the order only on application by:\n\n (a) an organisation, person or body directly affected by the protected industrial action other than:\n\n (i) a bargaining representative for the agreement; or\n\n (ii) an employee who will be covered by the agreement; or\n\n (b) the Minister; or\n\n (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\n\n (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\n\n (c) a person prescribed by the regulations.","sortOrder":887},{"sectionNumber":"427","sectionType":"section","heading":"FWC must specify the period of suspension","content":"427  FWC must specify the period of suspension\n\nApplication of this section\n\n (1) This section applies if the FWC is required or permitted by this Division to make an order suspending protected industrial action.\n\nSuspension period\n\n (2) The FWC must specify, in the order, the period for which the protected industrial action is suspended.\n\nNotice period\n\n (3) The FWC 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 the FWC is satisfied that there are exceptional circumstances justifying that longer period of notice.","sortOrder":888},{"sectionNumber":"428","sectionType":"section","heading":"Extension of a period of suspension","content":"428  Extension of a period of suspension\n\n (1) The FWC 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:\n\n (a) the person who applied, or a person who could have applied, for the suspension order, applies for the extension; and\n\n (b) the FWC has not previously made an order under this section in relation to the suspension order; and\n\n (c) the FWC is satisfied that the extension is appropriate taking into account any matters the FWC considers relevant including the matters specified in the provision under which the suspension order was made.\n\n (2) If the FWC is permitted to make an order under this section:\n\n (a) the FWC must specify, in the order, the period of extension; and\n\n (b) the FWC 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 the FWC is satisfied that there are exceptional circumstances justifying that longer period of notice.","sortOrder":889},{"sectionNumber":"429","sectionType":"section","heading":"Employee claim action without a further protected action ballot after a period of suspension etc.","content":"429  Employee claim action without a further protected action ballot after a period of suspension etc.\n\nApplication of this section\n\n (1) This section applies in relation to employee claim action for a proposed enterprise agreement if:\n\n (a) an order suspending the employee claim action has been made; and\n\n (b) a protected action ballot authorised the employee claim action:\n\n (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\n\n (ii) which had not ended before the beginning of the suspension period; or\n\n (iii) beyond the suspension period; and\n\n (c) the suspension period (including any extension under section 428) ends, or the order is revoked before the end of that period.\n\nFurther protected action ballot not required to engage in employee claim action\n\n (2) A person may engage in the employee claim action without another protected action ballot.\n\n (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.\n\n (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.","sortOrder":890},{"sectionNumber":"430","sectionType":"section","heading":"Notice of employee claim action engaged in after a period of suspension etc.","content":"430  Notice of employee claim action engaged in after a period of suspension etc.\n\n (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.\n\n (2) The period of notice must be at least:\n\n (a) 3 working days; or\n\n (b) if, under subsection 427(3) or paragraph 428(2)(b), the FWC 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.\n\n (3) The notice must state the nature of the employee claim action and the day on which it will start.","sortOrder":891},{"sectionNumber":"431","sectionType":"section","heading":"Ministerial declaration terminating industrial action","content":"431  Ministerial declaration terminating industrial action\n\n (1) The Minister may make a declaration, in writing, terminating protected industrial action for a proposed enterprise agreement if the Minister is satisfied that:\n\n (a) the industrial action is being engaged in, or is threatened, impending or probable; and\n\n (b) the industrial action is threatening, or would threaten:\n\n (i) to endanger the life, the personal safety or health, or the welfare, of the population or a part of it; or\n\n (ii) to cause significant damage to the Australian economy or an important part of it.\n\n (2) The declaration comes into operation on the day that it is made.\n\n (3) A declaration under subsection (1) is not a legislative instrument.","sortOrder":893},{"sectionNumber":"432","sectionType":"section","heading":"Informing people of declaration","content":"432  Informing people of declaration\n\n (1) This section applies if the Minister makes a declaration under subsection 431(1).\n\n (2) The declaration must be published in the Gazette.\n\n (3) The Minister must inform the FWC of the making of the declaration.\n\n (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:\n\n (a) of the making of the declaration; and\n\n (b) of the effect of Part 2‑5 (which deals with workplace determinations).","sortOrder":894},{"sectionNumber":"433","sectionType":"section","heading":"Ministerial directions to remove or reduce threat","content":"433  Ministerial directions to remove or reduce threat\n\n (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:\n\n (a) specified bargaining representatives for the agreement;\n\n (b) specified employees who will be covered by the agreement.\n\n (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).\n\n (3) A direction under subsection (1) is not a legislative instrument.","sortOrder":895},{"sectionNumber":"434","sectionType":"section","heading":"Contravening a Ministerial direction","content":"434  Contravening a Ministerial direction\n\n  A person to whom a direction under subsection 433(1) applies must not contravene the direction.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":896},{"sectionNumber":"435","sectionType":"section","heading":"Guide to this Division","content":"435  Guide to this Division\n\nThis 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.\n\nSubdivision B provides for the FWC 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.\n\nSubdivision C deals with the conduct of a protected action ballot.\n\nSubdivision D deals with the effect of a protected action ballot.\n\nSubdivision E deals with compliance matters in relation to a protected action ballot.\n\nSubdivision F deals with the liability for the costs of a protected action ballot.\n\nSubdivision G deals with records and other miscellaneous matters.","sortOrder":899},{"sectionNumber":"436","sectionType":"section","heading":"Object of this Division","content":"436  Object of this Division\n\n  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.\n\nNote: 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.","sortOrder":900},{"sectionNumber":"437","sectionType":"section","heading":"Application for a protected action ballot order","content":"437  Application for a protected action ballot order\n\nWho may apply for a protected action ballot order\n\n (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 the FWC 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.\n\n (2) Subsection (1) does not apply if the proposed enterprise agreement is:\n\n (a) a greenfields agreement; or\n\n (b) a cooperative workplace agreement.\n\n (2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.\n\nNote: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).\n\nMatters to be specified in application\n\n (3) The application must specify:\n\n (a) the group or groups of employees who are to be balloted; and\n\n (b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action; and\n\n (c) the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.\n\nNote: The protected action ballot agent for the ballot must be an eligible protected action ballot agent unless there are exceptional circumstances: see section 444.\n\n (5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:\n\n (a) will be covered by the proposed enterprise agreement; and\n\n (b) either:\n\n (i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or\n\n (ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.\n\nDocuments to accompany application\n\n (6) The application must be accompanied by any documents and other information prescribed by the regulations.","sortOrder":902},{"sectionNumber":"437A","sectionType":"section","heading":"Application for a protected action ballot order—multi-enterprise agreements","content":"437A  Application for a protected action ballot order—multi‑enterprise agreements\n\n (1) This section applies if:\n\n (a) an application is made under section 437 for a protected action ballot order in relation to a multi‑enterprise agreement; and\n\n (b) the group or groups of employees specified in the application under paragraph 437(3)(a) include employees of different employers.\n\nNote: An application cannot be made under section 437 in relation to a cooperative workplace agreement: see paragraph 437(2)(b).\n\n (2) This Subdivision (other than paragraph 440(b)) has effect as if the application were multiple applications, one in relation to each employer, with each application being identical apart from only specifying under paragraph 437(3)(a) the group or groups of employees mentioned in paragraph (1)(b) of this section to the extent that the group or groups consist of employees of the relevant employer.\n\nExample: A proposed multi‑enterprise agreement will cover 3 employers: A, B and C. An application for a protected action ballot order is made under section 437 and specifies the employees of A and B as the groups of employees who are to be balloted. Under subsection (2) of this section:\n\n(a) an application is taken to have been made specifying the employees of A; and\n\n(b) a separate application is taken to have been made specifying the employees of B.\n\n Subject to section 442, the FWC must deal with each of these 2 applications separately under section 443 and must make separate protected action ballot orders in relation to the employees of each employer (if the requirements of section 443 are satisfied in relation to the employer).","sortOrder":903},{"sectionNumber":"438","sectionType":"section","heading":"Restriction on when application may be made","content":"438  Restriction on when application may be made\n\n (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).\n\n (2) To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.","sortOrder":904},{"sectionNumber":"439","sectionType":"section","heading":"Joint applications","content":"439  Joint applications\n\n  Without limiting section 609, the procedural rules may provide for the following:\n\n (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;\n\n (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;\n\n (c) the withdrawal of one or more applicants from a joint application for a protected action ballot order.","sortOrder":905},{"sectionNumber":"440","sectionType":"section","heading":"Notice of application","content":"440  Notice of application\n\n  Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to:\n\n (a) the employer of the employees who are to be balloted; and\n\n (b) the person or entity that the application specifies as being the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.","sortOrder":906},{"sectionNumber":"441","sectionType":"section","heading":"Application to be determined within 2 days after it is made","content":"441  Application to be determined within 2 days after it is made\n\n (1) The FWC must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.\n\n (2) However, the FWC must not determine the application unless it is satisfied that each applicant has complied with section 440.","sortOrder":907},{"sectionNumber":"442","sectionType":"section","heading":"Dealing with multiple applications together","content":"442  Dealing with multiple applications together\n\n  The FWC may deal with 2 or more applications for a protected action ballot order at the same time if:\n\n (a) the applications relate to industrial action by:\n\n (i) employees of the same employer; or\n\n (ii) employees at the same workplace; and\n\n (b) the FWC is satisfied that dealing with the applications at the same time will not unreasonably delay the determination of any of the applications.","sortOrder":908},{"sectionNumber":"443","sectionType":"section","heading":"When the FWC must make a protected action ballot order","content":"443  When the FWC must make a protected action ballot order\n\n (1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:\n\n (a) an application has been made under section 437; and\n\n (b) the FWC 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.\n\n (2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).\n\n (3) A protected action ballot order must specify the following:\n\n (a) the name of each applicant for the order;\n\n (b) the group or groups of employees who are to be balloted;\n\n (c) the date by which voting in the protected action ballot closes;\n\n (d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action;\n\n (e) the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;\n\n (f) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.\n\n (3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.\n\n (5) If the FWC 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 or 120 hours (whichever is applicable), the protected action ballot order may specify a longer period of up to 7 working days.\n\nNote: 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.","sortOrder":909},{"sectionNumber":"444","sectionType":"section","heading":"Ballot agent and independent advisor","content":"444  Ballot agent and independent advisor\n\n (1) This section applies if the FWC must make a protected action ballot order under subsection 443(1).\n\nProtected action ballot agent\n\n (1A) The FWC must, in accordance with subsections (1B) to (1D) of this section, decide the person or entity that is to be the protected action ballot agent for the protected action ballot.\n\n (1B) The person or entity must be the person or entity specified in the application for the protected action ballot order as the person or entity the applicant wishes to be the protected action ballot agent, unless:\n\n (a) the person or entity specified in the application does not meet the requirements of subsection (1C) (unless subsection (1D) applies); or\n\n (b) the FWC is satisfied that there are exceptional circumstances that justify another person or entity being the protected action ballot agent.\n\n (1C) The person or entity must be an eligible protected action ballot agent.\n\n (1D) Subsection (1C) does not apply in relation to a person if the FWC is satisfied that:\n\n (a) there are exceptional circumstances that justify the ballot not being conducted by an eligible protected action ballot agent; and\n\n (b) the person is a fit and proper person to conduct the ballot; and\n\n (c) any other requirements prescribed by the regulations are met.\n\nNote: Other than the Australian Electoral Commission, an entity that is not a person cannot be the protected action ballot agent for a protected action ballot.\n\n (2) The regulations may prescribe:\n\n (a) conditions that a person must meet in order to satisfy the FWC, for the purposes of paragraph (1D)(b), that the person is a fit and proper person to conduct a protected action ballot; and\n\n (b) factors that the FWC must take into account in determining, for the purposes of paragraph (1D)(b), whether a person is a fit and proper person to conduct a protected action ballot.\n\nIndependent advisor\n\n (3) The FWC may decide that a person (the other person) is to be the independent advisor for a protected action ballot if:\n\n (a) the FWC has decided that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the ballot; and\n\n (b) the FWC considers it appropriate that there be an independent advisor for the ballot; and\n\n (c) the FWC is satisfied that:\n\n (i) the other person is sufficiently independent of each applicant for the protected action ballot order; and\n\n (ii) any other requirements prescribed by the regulations are met.","sortOrder":910},{"sectionNumber":"445","sectionType":"section","heading":"Notice of protected action ballot order","content":"445  Notice of protected action ballot order\n\n  As soon as practicable after making a protected action ballot order, the FWC must give a copy of the order to:\n\n (a) each applicant for the order; and\n\n (b) the employer of the employees who are to be balloted; and\n\n (c) the protected action ballot agent for the protected action ballot.","sortOrder":911},{"sectionNumber":"446","sectionType":"section","heading":"Protected action ballot order may require 2 or more protected action ballots to be held at the same time","content":"446  Protected action ballot order may require 2 or more protected action ballots to be held at the same time\n\n (1) This section applies if:\n\n (a) the FWC has made a protected action ballot order; and\n\n (b) the FWC proposes to make another protected action ballot order or orders; and\n\n (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.\n\n (2) The FWC 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 the FWC is satisfied:\n\n (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\n\n (b) that requiring the ballots to be held at the same time will not unreasonably delay either ballot.","sortOrder":912},{"sectionNumber":"447","sectionType":"section","heading":"Variation of protected action ballot order","content":"447  Variation of protected action ballot order\n\n (1) An applicant for a protected action ballot order may apply to the FWC to vary the order.\n\n (2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.\n\n (3) An application may be made under subsection (1) or (2):\n\n (a) at any time before the date by which voting in the protected action ballot closes; or\n\n (b) if the ballot has not been held before that date and the FWC consents—after that time.\n\n (4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.","sortOrder":913},{"sectionNumber":"448","sectionType":"section","heading":"Revocation of protected action ballot order","content":"448  Revocation of protected action ballot order\n\n (1) An applicant for a protected action ballot order may apply to the FWC, at any time before voting in the protected action ballot closes, to revoke the order.\n\n (2) If an application to revoke a protected action ballot order is made, the FWC must revoke the order.","sortOrder":914},{"sectionNumber":"448A","sectionType":"section","heading":"FWC must conduct conferences","content":"448A  FWC must conduct conferences\n\n (1) If the FWC has made a protected action ballot order in relation to a proposed enterprise agreement, the FWC must make an order directing the bargaining representatives for the agreement to attend a conference:\n\n (a) at a specified time or times during a specified period; and\n\n (b) at a specified place, or by specified means;\n\nfor the purposes of mediation or conciliation in relation to the agreement.\n\n (2) The specified period must end on or before the date specified in the protected action ballot order under paragraph 443(3)(c) as the day by which voting in the protected action ballot closes.\n\n (3) An FWC Member (other than an Expert Panel Member), or a delegate of the FWC, is responsible for conducting the conference.\n\n (4) The conference must be conducted in private.\n\n (5) At a conference, the FWC may:\n\n (a) mediate or conciliate; or\n\n (b) make a recommendation or express an opinion.\n\n (6) This section does not limit section 592 (which deals with conferences) or 595 (which deals with FWC’s power to deal with disputes).","sortOrder":916},{"sectionNumber":"449","sectionType":"section","heading":"Conduct of protected action ballot","content":"449  Conduct of protected action ballot\n\n (1) A protected action ballot must be conducted by the person or entity specified in the protected action ballot order as the protected action ballot agent for the ballot.\n\n (2) The protected action ballot agent must conduct the protected action ballot expeditiously and in accordance with the following:\n\n (a) the protected action ballot order;\n\n (b) the timetable for the ballot;\n\n (c) this Subdivision;\n\n (d) any directions given by the FWC;\n\n (e) any procedures prescribed by the regulations.","sortOrder":918},{"sectionNumber":"450","sectionType":"section","heading":"Directions for conduct of protected action ballot","content":"450  Directions for conduct of protected action ballot\n\n (1) This section applies if the protected action ballot agent is not the Australian Electoral Commission.\n\n (2) The FWC must give the protected action ballot agent written directions in relation to the following matters relating to the protected action ballot:\n\n (a) the development of a timetable;\n\n (b) the voting method, or methods, to be used (which cannot be a method involving a show of hands);\n\n (c) the compilation of the roll of voters;\n\n (d) the addition of names to, or removal of names from, the roll of voters;\n\n (e) any other matter in relation to the conduct of the ballot that the FWC considers appropriate.\n\nNote 1: For the purposes of paragraph (2)(b), examples of voting methods are attendance voting, electronic voting and postal voting.\n\nNote 2: A protected action ballot agent must not contravene a term of a direction given by the FWC in relation to a protected action ballot (see subsection 463(2)).\n\n (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.\n\nNote: Subsection 454(5) provides for the Australian Electoral Commission to vary the roll of voters on its own initiative.\n\n (4) To enable the roll of voters to be compiled, the FWC may direct, in writing, either or both of the following:\n\n (a) the employer of the employees who are to be balloted;\n\n (b) the applicant for the protected action ballot order;\n\nto give to the FWC or the protected action ballot agent:\n\n (c) the names of the employees included in the group or groups of employees specified in the protected action ballot order; and\n\n (d) any other information that it is reasonable for the FWC or the protected action ballot agent to require to assist in compiling the roll of voters.","sortOrder":919},{"sectionNumber":"451","sectionType":"section","heading":"Timetable for protected action ballot","content":"451  Timetable for protected action ballot\n\n (1) This section applies if:\n\n (a) the protected action ballot agent is the Australian Electoral Commission; or\n\n (b) the FWC has directed the protected action ballot agent to comply with this section.\n\nNote: If this section does not apply, the protected action ballot agent must comply with directions given by the FWC in relation to the matters dealt with by this section (see section 450).\n\n (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:\n\n (a) develop a timetable for the conduct of the protected action ballot; and\n\n (b) determine the voting method, or methods, to be used for the ballot (which cannot be a method involving a show of hands).\n\nNote: For the purposes of paragraph (2)(b), examples of voting methods are attendance voting, electronic voting and postal voting.","sortOrder":920},{"sectionNumber":"452","sectionType":"section","heading":"Compilation of roll of voters","content":"452  Compilation of roll of voters\n\n (1) This section applies if:\n\n (a) the protected action ballot agent is the Australian Electoral Commission; or\n\n (b) the FWC has directed the protected action ballot agent to comply with this section.\n\nNote: If this section does not apply, the protected action ballot agent must comply with directions given by the FWC in relation to the matters dealt with by this section (see section 450).\n\n (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.\n\n (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:\n\n (a) the names of the employees included in the group or groups of employees specified in the protected action ballot order; and\n\n (b) any other information that it is reasonable for the protected action ballot agent to require to assist in compiling the roll of voters.","sortOrder":921},{"sectionNumber":"453","sectionType":"section","heading":"Who is eligible to be included on the roll of voters","content":"453  Who is eligible to be included on the roll of voters\n\n  An employee is eligible to be included on the roll of voters for the protected action ballot only if:\n\n (a) the employee will be covered by the proposed enterprise agreement to which the ballot relates; and\n\n (b) the employee is included in a group of employees specified in the order and either:\n\n (i) is represented by a bargaining representative who was an applicant for the order; or\n\n (ii) is the bargaining representative for himself or herself but is a member of an employee organisation that was an applicant for the order.","sortOrder":922},{"sectionNumber":"454","sectionType":"section","heading":"Variation of roll of voters","content":"454  Variation of roll of voters\n\nVariation by protected action ballot agent on request\n\n (1) Subsections (2) to (4) apply if:\n\n (a) the protected action ballot agent is the Australian Electoral Commission; or\n\n (b) the FWC has directed the protected action ballot agent to comply with those subsections.\n\nNote: If subsections (2) to (4) do not apply, the protected action ballot agent must comply with directions given by the FWC in relation to the matters dealt with by those subsections (see section 450).\n\nAdding names to the roll of voters\n\n (2) The protected action ballot agent must include an employee’s name on the roll of voters for the protected action ballot if:\n\n (a) the protected action ballot agent is requested to do so by:\n\n (i) an applicant for the protected action ballot order; or\n\n (ii) the employee; or\n\n (iii) the employee’s employer; and\n\n (b) the protected action ballot agent is satisfied that the employee is eligible to be included on the roll of voters; and\n\n (c) the request is made before the end of the working day before the day on which voting in the ballot starts.\n\nRemoving names from the roll of voters\n\n (3) The protected action ballot agent must remove an employee’s name from the roll of voters for the protected action ballot if:\n\n (a) the protected action ballot agent is requested to do so by:\n\n (i) an applicant for the protected action ballot order; or\n\n (ii) the employee; or\n\n (iii) the employee’s employer; and\n\n (b) the protected action ballot agent is satisfied that the employee is not eligible to be included on the roll of voters; and\n\n (c) the request is made before the end of the working day before the day on which voting in the ballot starts.\n\n (4) The protected action ballot agent must remove a person’s name from the roll of voters for the protected action ballot if:\n\n (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\n\n (b) the protected action ballot agent is requested to do so by:\n\n (i) an applicant for the protected action ballot order; or\n\n (ii) the former employee; or\n\n (iii) the former employer; and\n\n (c) the request is made before the end of the working day before the day on which voting in the ballot starts.\n\nVariation by Australian Electoral Commission on its own initiative\n\n (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:\n\n (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\n\n (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\n\n (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.","sortOrder":923},{"sectionNumber":"455","sectionType":"section","heading":"Protected action ballot papers","content":"455  Protected action ballot papers\n\n (1) The ballot paper for the protected action ballot must:\n\n (a) if a form is prescribed by the regulations—be in that form; and\n\n (b) include any information prescribed by the regulations.\n\n (2) Ballot paper means:\n\n (a) for a voting method that is not an electronic voting method—a paper ballot paper; and\n\n (b) for an electronic voting method—an electronic ballot paper.","sortOrder":924},{"sectionNumber":"456","sectionType":"section","heading":"Who may vote in protected action ballot","content":"456  Who may vote in protected action ballot\n\n  An employee may vote in the protected action ballot only if the employee’s name is on the roll of voters for the ballot.","sortOrder":925},{"sectionNumber":"457","sectionType":"section","heading":"Results of protected action ballot","content":"457  Results of protected action ballot\n\n (1) As soon as practicable after voting in the protected action ballot closes, the protected action ballot agent must, in writing:\n\n (a) make a declaration of the results of the ballot; and\n\n (b) inform the following persons of the results:\n\n (i) each applicant for the protected action ballot order;\n\n (ii) the employer of the employees who were balloted;\n\n (iii) the FWC.\n\n (2) The FWC must publish the results of the protected action ballot, on its website or by any other means that the FWC considers appropriate, as soon as practicable after it is informed of them.","sortOrder":926},{"sectionNumber":"458","sectionType":"section","heading":"Report about conduct of protected action ballot","content":"458  Report about conduct of protected action ballot\n\nProtected action ballot conducted by the Australian Electoral Commission\n\n (1) If:\n\n (a) the protected action ballot agent is the Australian Electoral Commission; and\n\n (b) the Commission:\n\n (i) receives any complaints about the conduct of the protected action ballot; or\n\n (ii) becomes aware of any irregularities in relation to the conduct of the ballot;\n\nthe Commission must prepare a written report about the conduct of the ballot and give it to the FWC.\n\nProtected action ballot conducted by person other than the Australian Electoral Commission\n\n (2) If:\n\n (a) the protected action ballot agent is not the Australian Electoral Commission; and\n\n (b) the protected action ballot agent or the independent advisor (if any) for the protected action ballot:\n\n (i) receives any complaints about the conduct of the ballot; or\n\n (ii) becomes aware of any irregularities in relation to the conduct of the ballot;\n\nthe 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 the FWC.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (3) If:\n\n (a) the protected action ballot agent is not the Australian Electoral Commission; and\n\n (b) the FWC:\n\n (i) receives any complaints about the conduct of the protected action ballot; or\n\n (ii) becomes aware of any irregularities in relation to the conduct of the ballot;\n\nthe FWC 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 the FWC.\n\n (4) A report under subsection (2) or (3) must be prepared in accordance with the regulations.\n\nMeaning of conduct of a protected action ballot\n\n (5) Conduct of a protected action ballot includes, but is not limited to, the compilation of the roll of voters for the ballot.\n\nMeaning of irregularity in relation to the conduct of a protected action ballot\n\n (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.","sortOrder":927},{"sectionNumber":"459","sectionType":"section","heading":"Circumstances in which industrial action is authorised by protected action ballot","content":"459  Circumstances in which industrial action is authorised by protected action ballot\n\n (1) Industrial action by employees is authorised by a protected action ballot if:\n\n (a) the action was the subject of the ballot; and\n\n (b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and\n\n (c) more than 50% of the valid votes were votes approving the action; and\n\n (d) the action commences:\n\n (i) during the 30‑day period starting on the date of the declaration of the results of the ballot; or\n\n (ii) if the FWC has extended that period under subsection (3)—during the extended period.\n\nNote: 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.\n\n (2) If:\n\n (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\n\n (b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;\n\nthen 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).\n\n (3) The FWC may extend the 30‑day period referred to in subparagraph (1)(d)(i) by up to 30 days if:\n\n (a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and\n\n (b) the period has not previously been extended.","sortOrder":929},{"sectionNumber":"460","sectionType":"section","heading":"Immunity for persons who act in good faith on protected action ballot results","content":"460  Immunity for persons who act in good faith on protected action ballot results\n\n (1) This section applies if:\n\n (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\n\n (b) an organisation or a person, acting in good faith on the declared ballot results, organised or engaged in that industrial action; and\n\n (c) either:\n\n (i) it later becomes clear that that industrial action was not authorised by the ballot; or\n\n (ii) the decision to make the protected action ballot order is quashed or varied on appeal, or on review by the FWC, after the industrial action is organised or engaged in.\n\n (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:\n\n (a) personal injury; or\n\n (b) intentional or reckless destruction of, or damage to, property; or\n\n (c) the unlawful taking, keeping or use of property.\n\n (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.","sortOrder":930},{"sectionNumber":"461","sectionType":"section","heading":"Validity of protected action ballot etc. not affected by technical breaches","content":"461  Validity of protected action ballot etc. not affected by technical breaches\n\n  A technical breach of a provision of this Division does not affect the validity of any of the following:\n\n (a) a protected action ballot order;\n\n (b) an order, direction or decision of the FWC in relation to a protected action ballot order or a protected action ballot;\n\n (c) a direction or decision of the protected action ballot agent in relation to a protected action ballot order or a protected action ballot;\n\n (d) a protected action ballot;\n\n (e) the conduct of a protected action ballot;\n\n (f) the declaration of the results of a protected action ballot.","sortOrder":931},{"sectionNumber":"462","sectionType":"section","heading":"Interferences etc. with protected action ballot","content":"462  Interferences etc. with protected action ballot\n\nGeneral\n\n (1) A person (the first person) must not do any of the following in relation to a protected action ballot:\n\n (a) hinder or obstruct the holding of the ballot;\n\n (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;\n\n (c) threaten, offer or suggest, or use, cause or inflict, any violence, injury, punishment, damage, loss or disadvantage because of, or to induce:\n\n (i) any vote or omission to vote; or\n\n (ii) any support of, or opposition to, voting in a particular manner;\n\n (d) offer an advantage (whether financial or otherwise) to a person entitled to vote in the ballot because of or to induce:\n\n (i) any vote or omission to vote; or\n\n (ii) any support of, or opposition to, voting in a particular manner;\n\n (e) counsel or advise a person entitled to vote to refrain from voting;\n\n (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;\n\n (g) do an act that results in a ballot paper or envelope being destroyed, defaced, altered, taken or otherwise interfered with;\n\n (h) fraudulently put a paper ballot paper or other paper:\n\n (i) into a repository that serves to receive or hold paper ballot papers; or\n\n (ii) into the post;\n\n (ha) fraudulently deliver or send an electronic ballot paper or other document to a repository that serves to receive or hold electronic ballot papers;\n\n (i) fraudulently deliver or send a ballot paper or other paper to a person receiving ballot papers for the purposes of the ballot;\n\n (j) record a vote that the first person is not entitled to record;\n\n (k) record more than one vote;\n\n (l) forge a ballot paper or envelope, or utter a ballot paper or envelope that the first person knows to be forged;\n\n (m) provide a ballot paper without authority;\n\n (n) obtain or have possession of a ballot paper to which the first person is not entitled;\n\n (o) request, require or induce another person:\n\n (i) to show a ballot paper to the first person; or\n\n (ii) to permit the first person to see a ballot paper in such a manner that the first person can see the vote;\n\n  while the vote is being made, or after the vote has been made, on the ballot paper;\n\n (p) do an act that results in a repository that serves to receive or hold ballot papers being destroyed, taken, opened or otherwise interfered with.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\nMeaning of utter\n\n (2) A person is taken to utter a forged document if the person:\n\n (a) uses or deals with it; or\n\n (b) attempts to use or deal with it; or\n\n (c) attempts to induce another person to use, deal with, act upon, or accept it.\n\nObligations of person performing functions or exercising powers for the purposes of a protected action ballot\n\n (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.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).","sortOrder":933},{"sectionNumber":"463","sectionType":"section","heading":"Contravening a protected action ballot order etc.","content":"463  Contravening a protected action ballot order etc.\n\n (1) A person must not contravene:\n\n (a) a term of a protected action ballot order; or\n\n (b) a term of an order made by the FWC in relation to a protected action ballot order or a protected action ballot.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) A person must not contravene a direction given by the FWC, or a protected action ballot agent, in relation to a protected action ballot order or a protected action ballot.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (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.","sortOrder":934},{"sectionNumber":"464","sectionType":"section","heading":"Costs of protected action ballot conducted by the Australian Electoral Commission","content":"464  Costs of protected action ballot conducted by the Australian Electoral Commission\n\n (1) This section applies if the protected action ballot agent for a protected action ballot is the Australian Electoral Commission.\n\n (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.\n\n (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.","sortOrder":936},{"sectionNumber":"465","sectionType":"section","heading":"Costs of protected action ballot conducted by protected action ballot agent other than the Australian Electoral Commission","content":"465  Costs of protected action ballot conducted by protected action ballot agent other than the Australian Electoral Commission\n\n (1) This section applies if the protected action ballot agent for a protected action ballot is not the Australian Electoral Commission.\n\n (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.\n\n (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.\n\n (4) The costs of conducting a protected action ballot are:\n\n (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\n\n (b) otherwise—the amount the protected action ballot agent charges to the applicant or applicants in relation to the ballot.\n\n (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.","sortOrder":937},{"sectionNumber":"466","sectionType":"section","heading":"Costs of legal challenges","content":"466  Costs of legal challenges\n\n (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.\n\n (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.","sortOrder":938},{"sectionNumber":"Subdivision G","sectionType":"subdivision","heading":"Miscellaneous","content":"Subdivision G—Miscellaneous","sortOrder":939},{"sectionNumber":"467","sectionType":"section","heading":"Information about employees on roll of voters not to be disclosed","content":"467  Information about employees on roll of voters not to be disclosed\n\n (1) A person who:\n\n (a) is the protected action ballot agent for a protected action ballot (other than the Australian Electoral Commission); or\n\n (b) is the independent advisor for a protected action ballot; or\n\n (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;\n\nmust 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.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) Subsection (1) does not apply if:\n\n (a) the disclosure is made in the course of performing functions or exercising powers for the purposes of the protected action ballot; or\n\n (b) the disclosure is required or authorised by or under a law; or\n\n (c) the employee has consented, in writing, to the disclosure.\n\nNote 1: Personal information given to the FWC, the Australian Electoral Commission or another protected action ballot agent under this Division may be regulated under the Privacy Act 1988.\n\nNote 2: The President of the FWC may, in certain circumstances, disclose, or authorise the disclosure of, information acquired by the FWC or a member of the staff of the FWC, in the course of performing functions or exercising powers as the FWC (see section 655).","sortOrder":940},{"sectionNumber":"468","sectionType":"section","heading":"Records","content":"468  Records\n\n (1) The protected action ballot agent for a protected action ballot must keep the following ballot material:\n\n (a) the roll of voters for the ballot;\n\n (b) the ballot papers, envelopes and other documents and records relating to the ballot;\n\n (c) any other material prescribed by the regulations.\n\n (2) The ballot material must be kept for one year after the day on which the protected action ballot closed.\n\n (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.","sortOrder":941},{"sectionNumber":"468A","sectionType":"section","heading":"Eligible protected action ballot agents","content":"468A  Eligible protected action ballot agents\n\n (1) Each of the following is an eligible protected action ballot agent:\n\n (a) the Australian Electoral Commission;\n\n (b) a person approved by the FWC under subsection (2).\n\n (2) For the purposes of paragraph (1)(b), the FWC may, in writing, approve a person as an eligible protected action ballot agent if the FWC is satisfied that:\n\n (a) the person is a fit and proper person to be an eligible protected action ballot agent; and\n\n (b) any other requirements prescribed by the regulations are met.\n\n (3) The regulations may prescribe:\n\n (a) conditions that a person must meet in order to satisfy the FWC that the person is a fit and proper person to be an eligible protected action ballot agent; and\n\n (b) factors that the FWC must take into account in determining whether a person is a fit and proper person to be an eligible protected action ballot agent.\n\n (4) The FWC must, at least every 3 years after it approves a person as an eligible protected action ballot agent, consider whether the FWC remains satisfied that the person meets the requirements mentioned in subsection (2).\n\n (5) If, after considering the matter under subsection (4), the FWC is no longer satisfied that an eligible protected action ballot agent meets the requirements mentioned in subsection (2), the FWC must take:\n\n (a) any action prescribed by the regulations; and\n\n (b) any other action the FWC considers appropriate.","sortOrder":942},{"sectionNumber":"469","sectionType":"section","heading":"Regulations","content":"469  Regulations\n\n  The regulations may provide for the following matters:\n\n (b) the procedures to be followed in relation to the conduct of a protected action ballot;\n\n (c) the form and content of the ballot paper for a protected action ballot;\n\n (d) the qualifications, appointment, powers and duties of scrutineers for a protected action ballot;\n\n (e) the preparation of reports under subsection 458(2) or (3);\n\n (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.","sortOrder":943},{"sectionNumber":"470","sectionType":"section","heading":"Payments not to be made relating to certain periods of industrial action","content":"470  Payments not to be made relating to certain periods of industrial action\n\n (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.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) However, this section does not apply to a partial work ban.\n\nNote: For payments relating to periods of partial work bans, see section 471.\n\n (3) A partial work ban is industrial action that is not:\n\n (a) a failure or refusal by an employee to attend for work; or\n\n (b) a failure or refusal by an employee who attends for work to perform any work at all; or\n\n (c) an overtime ban.\n\n (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:\n\n (a) the employer requested or required the employee to work the period of overtime; and\n\n (b) the employee refused to work the period of overtime; and\n\n (c) the refusal was a contravention of the employee’s obligations under a modern award, enterprise agreement or contract of employment.\n\n (5) If:\n\n (a) the industrial action is, or includes, an overtime ban; and\n\n (b) this section applies in relation to a period of overtime to which the ban applies;\n\nthen 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.","sortOrder":946},{"sectionNumber":"471","sectionType":"section","heading":"Payments relating to partial work bans","content":"471  Payments relating to partial work bans\n\nEmployer gives notice of reduction in payments\n\n (1) If:\n\n (a) an employee engaged, or engages, in protected industrial action against an employer on a day; and\n\n (b) the industrial action is a partial work ban; and\n\n (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;\n\nthen 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).\n\n (2) The employee’s payments in relation to the industrial action period are reduced:\n\n (a) by the proportion specified in the notice; or\n\n (b) if the FWC has ordered a different proportion under section 472—by the proportion specified in the order;\n\nand the modern award, enterprise agreement or contract of employment that applies to the employee’s employment has effect accordingly.\n\n (3) The regulations may prescribe how the proportion referred to in paragraph (2)(a) is to be worked out.\n\nEmployer gives notice of non‑payment\n\n (4) If:\n\n (a) an employee engaged, or engages, in protected industrial action against an employer on a day; and\n\n (b) the industrial action is a partial work ban; and\n\n (c) the employer gives to the employee a written notice stating that, because of the ban:\n\n (i) the employee will not be entitled to any payments; and\n\n (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;\n\nthen the employee is not entitled to any payments in relation to the period (the industrial action period) referred to in subsection (5).\n\n (4A) If:\n\n (a) an employer has given an employee a notice under paragraph (4)(c); and\n\n (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;\n\nthen:\n\n (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\n\n (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.\n\nThe industrial action period\n\n (5) The industrial action period is the period:\n\n (a) starting at the later of:\n\n (i) the start of the first day on which the employee implemented the partial work ban; or\n\n (ii) the start of the next day, after the day on which the notice was given, on which the employee performs work; and\n\n (b) ending at the end of the day on which the ban ceases.\n\nForm and content of notice\n\n (6) The regulations may prescribe requirements relating to one or both of the following:\n\n (a) the form of a notice given under paragraph (1)(c) or (4)(c);\n\n (b) the content of such a notice.\n\nManner of giving notice\n\n (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:\n\n (a) has taken all reasonable steps to ensure that the employee, and the employee’s bargaining representative (if any), receives the notice; and\n\n (b) has complied with any requirements, relating to the giving of the notice, prescribed by the regulations.\n\nEmployer does not give notice\n\n (8) If:\n\n (a) an employee engaged, or engages, in protected industrial action against an employer on a day; and\n\n (b) the industrial action is a partial work ban; and\n\n (c) the employer does not give the employee a notice in accordance with paragraph (1)(c) or (4)(c);\n\nthen the employee’s payments for the day are not to be reduced because of the ban.","sortOrder":947},{"sectionNumber":"472","sectionType":"section","heading":"Orders by the FWC relating to certain partial work bans","content":"472  Orders by the FWC relating to certain partial work bans\n\n (1) The FWC may make an order varying the proportion by which an employee’s payments are reduced.\n\n (2) The FWC may make the order only if a person has applied for it under subsection (4).\n\n (3) In considering making such an order, the FWC must take into account:\n\n (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\n\n (b) fairness between the parties taking into consideration all the circumstances of the case.\n\n (4) An employee, or the employee’s bargaining representative, may apply to the FWC 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.","sortOrder":948},{"sectionNumber":"473","sectionType":"section","heading":"Accepting or seeking payments relating to periods of industrial action","content":"473  Accepting or seeking payments relating to periods of industrial action\n\n (1) An employee must not:\n\n (a) accept a payment from an employer if the employer would contravene section 470 by making the payment; or\n\n (b) ask the employer to make such a payment.\n\nNote 1: This subsection is a civil remedy provision (see Part 4‑1).\n\nNote 2: Acts of coercion, or misrepresentations, relating to such payments may also contravene section 348 or 349.\n\n (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.\n\nNote 1: This subsection is a civil remedy provision (see Part 4‑1).\n\nNote 2: Acts of coercion, or misrepresentations, relating to such payments may also contravene section 348 or 349.","sortOrder":949},{"sectionNumber":"474","sectionType":"section","heading":"Payments not to be made relating to certain periods of industrial action","content":"474  Payments not to be made relating to certain periods of industrial action\n\n (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:\n\n (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\n\n (b) otherwise—4 hours of that day.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (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:\n\n (a) the employer requested or required the employee to work the period of overtime; and\n\n (b) the employee refused to work the period of overtime; and\n\n (c) the refusal was a contravention of the employee’s obligations under a modern award, enterprise agreement or contract of employment.\n\nNote: 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.\n\n (2A) If:\n\n (a) the industrial action is, or includes, an overtime ban; and\n\n (b) this section applies in relation to a period of overtime to which the ban applies;\n\nthen, for the purposes of this section:\n\n (c) the total duration of the industrial action is, or includes, the period of overtime to which the ban applies; and\n\n (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.\n\n (3) If:\n\n (a) the industrial action is during a shift (or other period of work); and\n\n (b) the shift (or other period of work) occurs partly on one day and partly on the next day;\n\nthen, 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.\n\nExample: 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.\n\n (4) For the purposes of subsection (3), overtime is taken not to be a separate shift.","sortOrder":951},{"sectionNumber":"475","sectionType":"section","heading":"Accepting or seeking payments relating to periods of industrial action","content":"475  Accepting or seeking payments relating to periods of industrial action\n\n (1) An employee must not:\n\n (a) accept a payment from an employer if the employer would contravene section 474 by making the payment; or\n\n (b) ask the employer to make such a payment.\n\nNote 1: This subsection is a civil remedy provision (see Part 4‑1).\n\nNote 2: Acts of coercion, or misrepresentations, relating to such payments may also contravene section 348 or 349.\n\n (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.\n\nNote 1: This subsection is a civil remedy provision (see Part 4‑1).\n\nNote 2: Acts of coercion, or misrepresentations, relating to such payments may also contravene section 348 or 349.","sortOrder":952},{"sectionNumber":"476","sectionType":"section","heading":"Other responses to industrial action unaffected","content":"476  Other responses to industrial action unaffected\n\n  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.","sortOrder":954},{"sectionNumber":"477","sectionType":"section","heading":"Applications by bargaining representatives","content":"477  Applications by bargaining representatives\n\nApplication of this section\n\n (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.\n\nPersons who may make applications\n\n (2) If the agreement will cover more than one employer, the application may be made by 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.","sortOrder":956},{"sectionNumber":"Part 3-4","sectionType":"part","heading":"Right of entry","content":"Part 3‑4—Right of entry","sortOrder":957},{"sectionNumber":"478","sectionType":"section","heading":"Guide to this Part","content":"478  Guide to this Part\n\nThis 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.\n\nDivision 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 award workers. Division 2 also allows permit holders to enter premises to hold discussions with certain employees and TCF award workers. In exercising rights under Division 2, permit holders must comply with the requirements set out in the Division.\n\nDivision 3 sets out requirements for exercising rights under State or Territory OHS laws.\n\nDivision 4 prohibits certain action in relation to the operation of this Part.\n\nDivision 5 sets out powers of the FWC in relation to the operation of this Part.\n\nDivision 6 deals with entry permits, entry notices and certificates.\n\nDivision 7 deals with accommodation and transport arrangements in remote areas.","sortOrder":959},{"sectionNumber":"479","sectionType":"section","heading":"Meanings of employee and employer","content":"479  Meanings of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.","sortOrder":960},{"sectionNumber":"480","sectionType":"section","heading":"Object of this Part","content":"480  Object of this Part\n\n  The object of this Part is to establish a framework for officials of organisations to enter premises that balances:\n\n (a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:\n\n (i) this Act and fair work instruments; and\n\n (ii) State or Territory OHS laws; and\n\n (b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and\n\n (c) the right of occupiers of premises and employers to go about their business without undue inconvenience.","sortOrder":961},{"sectionNumber":"481","sectionType":"section","heading":"Entry to investigate suspected contravention","content":"481  Entry to investigate suspected contravention\n\n (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:\n\n (a) whose industrial interests the organisation is entitled to represent; and\n\n (b) who performs work on the premises.\n\nNote 1: Particulars of the suspected contravention must be specified in an entry notice or exemption certificate (see subsections 518(2) and 519(2)).\n\nNote 2: The FWC 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)).\n\nNote 3: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.\n\nNote 4: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision, or otherwise act in an improper manner (see sections 501 and 502).\n\n (2) The fair work instrument must apply or have applied to the member.\n\n (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.\n\nNote: 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).","sortOrder":964},{"sectionNumber":"482","sectionType":"section","heading":"Rights that may be exercised while on premises","content":"482  Rights that may be exercised while on premises\n\nRights that may be exercised while on premises\n\n (1) While on the premises, the permit holder may do the following:\n\n (a) inspect any work, process or object relevant to the suspected contravention;\n\n (b) interview any person about the suspected contravention:\n\n (i) who agrees to be interviewed; and\n\n (ii) whose industrial interests the permit holder’s organisation is entitled to represent;\n\n (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:\n\n (i) is kept on the premises; or\n\n (ii) is accessible from a computer that is kept on the premises.\n\nNote 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).\n\nNote 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.\n\n (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.\n\nMeaning of affected employer\n\n (2) A person is an affected employer, in relation to an entry onto premises under this Subdivision, if:\n\n (a) the person employs a member of the permit holder’s organisation whose industrial interests the organisation is entitled to represent; and\n\n (b) the member performs work on the premises; and\n\n (c) the suspected contravention relates to, or affects, the member.\n\nMeaning of non‑member record or document\n\n (2A) A non‑member record or document is a record or document that:\n\n (a) relates to the employment of a person who is not a member of the permit holder’s organisation; and\n\n (b) does not also substantially relate to the employment of a person who is a member of the permit holder’s organisation;\n\nbut 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.\n\nOccupier and affected employer must not contravene requirement\n\n (3) An occupier or affected employer must not contravene a requirement under paragraph (1)(c).\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).","sortOrder":965},{"sectionNumber":"483","sectionType":"section","heading":"Later access to record or document","content":"483  Later access to record or document\n\nLater access to record or document\n\n (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.\n\n (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.\n\nOther rules relating to notices\n\n (2) The day or days specified in the notice must not be earlier than 14 days after the notice is given.\n\n (3) The notice may be given:\n\n (a) while the permit holder is on the premises; or\n\n (b) within 5 days after the entry.\n\nAffected employer must not contravene requirement\n\n (4) An affected employer must not contravene a requirement under subsection (1).\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\nWhere record or document may be inspected or copied\n\n (5) The permit holder may inspect, and make copies of, the record or document at:\n\n (a) the premises; or\n\n (b) if another place is agreed upon by the permit holder and the affected employer—that other place.\n\nNote 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).\n\nNote 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.","sortOrder":966},{"sectionNumber":"483AA","sectionType":"section","heading":"Application to the FWC for access to non-member records","content":"483AA  Application to the FWC for access to non‑member records\n\n (1) The permit holder may apply to the FWC for an order allowing the permit holder to do either or both of the following:\n\n (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);\n\n (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).\n\n (2) The FWC may make the order if it is satisfied that the order is necessary to investigate the suspected contravention. Before doing so, the FWC must have regard to any conditions imposed on the permit holder’s entry permit.\n\n (3) If the FWC makes the order, this Subdivision has effect accordingly.\n\n (4) An application for an order under this section:\n\n (a) must be in accordance with the regulations; and\n\n (b) must set out the reason for the application.","sortOrder":967},{"sectionNumber":"483A","sectionType":"section","heading":"Entry to investigate suspected contravention relating to TCF award workers","content":"483A  Entry to investigate suspected contravention relating to TCF award workers\n\n (1) Subject to subsection (6), a permit holder may enter premises and exercise a right under section 483B or 483C for the purpose of investigating a suspected contravention of:\n\n (a) this Act, or a term of a fair work instrument, that relates to, or affects, a TCF award worker:\n\n (i) whose industrial interests the permit holder’s organisation is entitled to represent; and\n\n (ii) who performs work on the premises; or\n\n (b) a designated outworker term that is in an instrument that relates to TCF award workers whose industrial interests the permit holder’s organisation is entitled to represent.\n\nNote 1: 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)).\n\nNote 2: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.\n\nNote 3: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision, or otherwise act in an improper manner (see sections 501 and 502).\n\n (1A) A TCF award worker is:\n\n (a) an employee whose work is covered by a TCF award; or\n\n (b) an individual who, for the purpose of a contract for the provision of services, performs work that is covered by a TCF award.\n\n (2) The permit holder must reasonably suspect that the contravention has occurred, or is occurring.\n\n (3) The burden of proving that the suspicion is reasonable lies on the person asserting that fact.\n\n (4) Subsections (2) and (3) do not apply in relation to a designated outworker terms entry.\n\n (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.\n\n (6) Particular premises of a person cannot be entered under paragraph (1)(a) if:\n\n (a) the person is accredited (however described) by a person or body specified by name in the regulations; and\n\n (b) the accreditation is in writing and is in force; and\n\n (c) the premises are identified in the accreditation as being the principal place of business of the accredited person.\n\nNote: The fact that this subsection may result in certain premises not being able to be entered under paragraph (1)(a) for the purpose of investigating a particular suspected contravention does not:\n\n(a) prevent the premises being entered for that purpose under Subdivision A; or\n\n(b) prevent the premises being entered under paragraph (1)(b) of this section.\n\n (7) Before the Governor‑General makes a regulation specifying a particular person or body for the purposes of paragraph (6)(a), the Minister must be satisfied that the person or body:\n\n (a) has aims that are consistent with the objects of Part 6‑4A; and\n\n (b) has the endorsement of:\n\n (i) at least one employee organisation that is entitled to represent the industrial interests of TCF award workers; and\n\n (ii) at least one employer organisation that is entitled to represent the industrial interests of persons who employ or engage TCF award workers.","sortOrder":969},{"sectionNumber":"483B","sectionType":"section","heading":"Rights that may be exercised while on premises","content":"483B  Rights that may be exercised while on premises\n\nRights that may be exercised while on premises\n\n (1) While on the premises, the permit holder may do the following:\n\n (a) inspect any work, process or object relevant to the suspected contravention;\n\n (b) interview any person about the suspected contravention:\n\n (i) who agrees to be interviewed; and\n\n (ii) whose industrial interests the permit holder’s organisation is entitled to represent;\n\n (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:\n\n (i) is kept on the premises; or\n\n (ii) is accessible from a computer that is kept on the premises.\n\nNote 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).\n\nNote 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.\n\n (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.\n\nMeaning of affected employer\n\n (3) A person is an affected employer:\n\n (a) in relation to an entry onto premises under section 483A other than a designated outworker terms entry, if:\n\n (i) the person employs or engages a TCF award worker whose industrial interests the permit holder’s organisation is entitled to represent; and\n\n (ii) the TCF award worker performs work on the premises; and\n\n (iii) the suspected contravention relates to, or affects, the TCF award worker; or\n\n (b) in relation to a designated outworker terms entry under section 483A, if the person is covered by a TCF award.\n\nOccupier and affected employer must not contravene requirement\n\n (4) An occupier or affected employer must not contravene a requirement under paragraph (1)(c).\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).","sortOrder":970},{"sectionNumber":"483C","sectionType":"section","heading":"Later access to record or document","content":"483C  Later access to record or document\n\nLater access to record or document\n\n (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.\n\n (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.\n\nOther rules relating to notices\n\n (3) The day or days specified in the notice must not be earlier than 14 days after the notice is given.\n\n (4) The notice may be given:\n\n (a) while the permit holder is on the premises; or\n\n (b) within 5 days after the entry.\n\nOccupier and affected employer must not contravene requirement\n\n (5) An occupier or affected employer must not contravene a requirement under subsection (1).\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\nWhere record or document may be inspected or copied\n\n (6) The permit holder may inspect, and make copies of, the record or document at:\n\n (a) the premises; or\n\n (b) if another place is agreed upon by the permit holder and the occupier or affected employer—that other place.\n\nNote 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).\n\nNote 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.","sortOrder":971},{"sectionNumber":"483D","sectionType":"section","heading":"Entry onto other premises to access records and documents","content":"483D  Entry onto other premises to access records and documents\n\n (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:\n\n (a) are kept on the other premises; or\n\n (b) are accessible from a computer that is kept on the other premises.\n\nNote: Particulars of the suspected contravention must be specified in an entry notice (see subsection 518(2)).\n\nRights that may be exercised while on premises\n\n (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.\n\nNote 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).\n\nNote 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.\n\n (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.\n\nOccupier must not contravene requirement\n\n (4) An occupier must not contravene a requirement under subsection (2).\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).","sortOrder":972},{"sectionNumber":"483E","sectionType":"section","heading":"Later access to record or document—other premises","content":"483E  Later access to record or document—other premises\n\nLater access to record or document\n\n (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.\n\n (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.\n\nOther rules relating to notices\n\n (3) The day or days specified in the notice must not be earlier than 14 days after the notice is given.\n\n (4) The notice may be given:\n\n (a) while the permit holder is on the other premises; or\n\n (b) within 5 days after the entry.\n\nOccupier must not contravene requirement\n\n (5) An occupier must not contravene a requirement under subsection (1).\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\nWhere record or document may be inspected or copied\n\n (6) The permit holder may inspect, and make copies of, the record or document at:\n\n (a) the other premises; or\n\n (b) if another place is agreed upon by the permit holder and the occupier—that other place.\n\nNote 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).\n\nNote 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.","sortOrder":973},{"sectionNumber":"484","sectionType":"section","heading":"Entry to hold discussions","content":"484  Entry to hold discussions\n\n  A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:\n\n (a) who perform work on the premises; and\n\n (b) whose industrial interests the permit holder’s organisation is entitled to represent; and\n\n (c) who wish to participate in those discussions.\n\nNote 1: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.\n\nNote 2: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision, or otherwise act in an improper manner (see sections 501 and 502).\n\nNote 3: Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section.","sortOrder":975},{"sectionNumber":"486","sectionType":"section","heading":"Permit holder must not contravene this Subdivision","content":"486  Permit holder must not contravene this Subdivision\n\n  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.","sortOrder":977},{"sectionNumber":"487","sectionType":"section","heading":"Giving entry notice or exemption certificate","content":"487  Giving entry notice or exemption certificate\n\nEntry under Subdivision A or B\n\n (1) Unless the FWC has issued an exemption certificate for the entry, the permit holder must:\n\n (a) before entering premises under Subdivision A—give the occupier of the premises and any affected employer an entry notice for the entry; and\n\n (b) before entering premises under Subdivision B—give the occupier of the premises an entry notice for the entry.\n\n (2) An entry notice for an entry is a notice that complies with section 518.\n\n (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.\n\n (4) If the FWC 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:\n\n (a) the occupier of the premises or another person who apparently represents the occupier; and\n\n (b) any affected employer or another person who apparently represents the employer;\n\nif the occupier, employer or other person is present at the premises.\n\nEntry under Subdivision AA\n\n (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.","sortOrder":978},{"sectionNumber":"488","sectionType":"section","heading":"Contravening entry permit conditions","content":"488  Contravening entry permit conditions\n\n  The permit holder must not contravene a condition imposed on the entry permit.","sortOrder":979},{"sectionNumber":"489","sectionType":"section","heading":"Producing authority documents","content":"489  Producing authority documents\n\n (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:\n\n (a) on request; and\n\n (b) before making a requirement under:\n\n (i) paragraph 482(1)(c) or 483B(1)(c), or subsection 483D(2); or\n\n (ii) subsection 483(1), 483C(1) or 483E(1).\n\nNote: 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.\n\n (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.\n\n (3) Authority documents, for an entry under Subdivision A, AA or B, means:\n\n (a) the permit holder’s entry permit; and\n\n (b) either:\n\n (i) a copy of the entry notice for the entry; or\n\n (ii) if the FWC has issued an exemption certificate for the entry—the certificate.","sortOrder":980},{"sectionNumber":"490","sectionType":"section","heading":"When right may be exercised","content":"490  When right may be exercised\n\n (1) The permit holder may exercise a right under Subdivision A, AA or B only during working hours.\n\n (2) The permit holder may hold discussions under section 484 only during mealtimes or other breaks.\n\n (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.","sortOrder":981},{"sectionNumber":"491","sectionType":"section","heading":"Occupational health and safety requirements","content":"491  Occupational health and safety requirements\n\n  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.\n\nNote: The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)).","sortOrder":982},{"sectionNumber":"492","sectionType":"section","heading":"Location of interviews and discussions","content":"492  Location of interviews and discussions\n\n (1) The permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises.\n\n (2) Subsection (3) applies if the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to conduct an interview or hold discussions.\n\n (3) The permit holder may conduct the interview or hold the discussions in any room or area:\n\n (a) in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and\n\n (b) that is provided by the occupier for the purpose of taking meal or other breaks.\n\nNote 1: The permit holder may be subject to an order by the FWC under section 508 if rights under this section are misused.\n\nNote 2: A person must not intentionally hinder or obstruct a permit holder exercising rights under this section, or otherwise act in an improper manner (see section 502).","sortOrder":983},{"sectionNumber":"492A","sectionType":"section","heading":"Route to location of interview and discussions","content":"492A  Route to location of interview and discussions\n\n (1) The permit holder must comply with any reasonable request by the occupier of the premises to take a particular route to reach a room or area of the premises determined under section 492.\n\nNote: The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)).\n\n (2) A request under subsection (1) is not unreasonable only because the route is not that which the permit holder would have chosen.\n\n (3) The regulations may prescribe circumstances in which a request under subsection (1) is or is not reasonable.","sortOrder":984},{"sectionNumber":"493","sectionType":"section","heading":"Residential premises","content":"493  Residential premises\n\n  The permit holder must not enter any part of premises that is used mainly for residential purposes.","sortOrder":985},{"sectionNumber":"494","sectionType":"section","heading":"Official must be permit holder to exercise State or Territory OHS right","content":"494  Official must be permit holder to exercise State or Territory OHS right\n\nOfficial must be permit holder\n\n (1) An official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\nMeaning of State or Territory OHS right\n\n (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:\n\n (a) the premises are occupied or otherwise controlled by any of the following:\n\n (i) a constitutional corporation;\n\n (ii) a body corporate incorporated in a Territory;\n\n (iii) the Commonwealth;\n\n (iv) a Commonwealth authority; or\n\n (b) the premises are located in a Territory; or\n\n (c) the premises are, or are located in, a Commonwealth place; or\n\n (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:\n\n (i) a constitutional corporation;\n\n (ii) a body corporate incorporated in a Territory;\n\n (iii) the Commonwealth;\n\n (iv) a Commonwealth authority; or\n\n (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:\n\n (i) a constitutional corporation;\n\n (ii) a body corporate incorporated in a Territory;\n\n (iii) the Commonwealth;\n\n (iv) a Commonwealth authority; or\n\n (f) the exercise of the right will have a direct effect on any of the following in its capacity as an employer:\n\n (i) a constitutional corporation;\n\n (ii) a body corporate incorporated in a Territory;\n\n (iii) the Commonwealth;\n\n (iv) a Commonwealth authority; or\n\n (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:\n\n (i) a constitutional corporation;\n\n (ii) a body corporate incorporated in a Territory;\n\n (iii) the Commonwealth;\n\n (iv) a Commonwealth authority.\n\nMeaning of State or Territory OHS law\n\n (3) A State or Territory OHS law is a law of a State or a Territory prescribed by the regulations.\n\nAssisting health and safety representatives\n\n (4) Subsection (1), and sections 495 to 498, do not apply to an official of an organisation assisting a health and safety representative on request under a provision of a State or Territory OHS law equivalent to paragraph 68(2)(g) of the Work Health and Safety Act 2011.\n\n (5) However, sections 499 to 504 do apply in relation to the official:\n\n (a) whether or not the official is a permit holder; and\n\n (b) for the purposes of sections 499 to 502—if the official is not a permit holder, as if the official were a permit holder; and\n\n (c) as if giving the assistance to the health and safety representative were authorised by this Part, or were the exercise of rights under this Part (as the case requires); and\n\n (d) for the purposes of section 504—as if that section prohibited the use of information or a document obtained in giving the assistance other than for a purpose related to the exercise or performance of the powers or functions of the health and safety representative (subject to the exceptions set out in that section).","sortOrder":987},{"sectionNumber":"495","sectionType":"section","heading":"Giving notice of entry","content":"495  Giving notice of entry\n\n (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:\n\n (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\n\n (b) the notice is given at least 24 hours before exercising the right.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\nMeaning of affected employer\n\n (2) A person is an affected employer:\n\n (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\n\n (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.","sortOrder":988},{"sectionNumber":"496","sectionType":"section","heading":"Contravening entry permit conditions","content":"496  Contravening entry permit conditions\n\n  In exercising a State or Territory OHS right, a permit holder must not contravene a condition imposed on his or her entry permit.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":989},{"sectionNumber":"497","sectionType":"section","heading":"Producing entry permit","content":"497  Producing entry permit\n\n  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.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":990},{"sectionNumber":"498","sectionType":"section","heading":"When right may be exercised","content":"498  When right may be exercised\n\n  A permit holder may exercise a State or Territory OHS right only during working hours.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":991},{"sectionNumber":"499","sectionType":"section","heading":"Occupational health and safety requirements","content":"499  Occupational health and safety requirements\n\n  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.\n\nNote 1: This section is a civil remedy provision (see Part 4‑1).\n\nNote 2: The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)).","sortOrder":992},{"sectionNumber":"500","sectionType":"section","heading":"Permit holder must not hinder or obstruct","content":"500  Permit holder must not hinder or obstruct\n\n  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.\n\nNote 1: This section is a civil remedy provision (see Part 4‑1).\n\nNote 2: A permit holder, or the organisation to which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused.\n\nNote 3: A person must not intentionally hinder or obstruct a permit holder exercising rights under this Part, or otherwise act in an improper manner (see section 502).","sortOrder":994},{"sectionNumber":"501","sectionType":"section","heading":"Person must not refuse or delay entry","content":"501  Person must not refuse or delay entry\n\n  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.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":995},{"sectionNumber":"502","sectionType":"section","heading":"Person must not hinder or obstruct permit holder etc.","content":"502  Person must not hinder or obstruct permit holder etc.\n\n (1) A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part, or otherwise act in an improper manner..\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (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 conduct referred to in subsection (1).\n\n (3) Without limiting subsection (1), that subsection extends to conduct that occurs after an entry notice is given but before a permit holder enters premises.","sortOrder":996},{"sectionNumber":"503","sectionType":"section","heading":"Misrepresentations about things authorised by this Part","content":"503  Misrepresentations about things authorised by this Part\n\n (1) A person must not take action:\n\n (a) with the intention of giving the impression; or\n\n (b) reckless as to whether the impression is given;\n\nthat the doing of a thing is authorised by this Part if it is not so authorised.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.","sortOrder":997},{"sectionNumber":"504","sectionType":"section","heading":"Unauthorised use or disclosure of information or documents","content":"504  Unauthorised use or disclosure of information or documents\n\n  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:\n\n (a) the person reasonably believes that the use or disclosure is necessary to lessen or prevent:\n\n (i) a serious and imminent threat to an individual’s life, health or safety; or\n\n (ii) a serious threat to public health or public safety; or\n\n (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\n\n (c) the use or disclosure is required or authorised by or under law; or\n\n (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):\n\n (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;\n\n (ii) the enforcement of laws relating to the confiscation of the proceeds of crime;\n\n (iii) the protection of the public revenue;\n\n (iv) the prevention, detection, investigation or remedying of seriously improper conduct or prescribed conduct;\n\n (v) the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal; or\n\n (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.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":998},{"sectionNumber":"505","sectionType":"section","heading":"FWC may deal with a dispute about the operation of this Part","content":"505  FWC may deal with a dispute about the operation of this Part\n\n (1) The FWC may deal with a dispute about the operation of this Part, including a dispute about:\n\n (a) whether a request under section 491, 492A or 499 is reasonable; or\n\n (b) when a right of the kind referred to in section 490 may be exercised by a permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or\n\n (c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or\n\n (d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or\n\n (e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).\n\nNote 1: Sections 491 and 499 deal with requests for permit holders to comply with occupational health and safety requirements.\n\nNote 2: Section 492A deals with requests for a permit holder to take a particular route to a room or area in which an interview is to be conducted or discussions held.\n\nNote 3: Section 490 deals with when rights under Subdivision A, AA or B of Division 2 of this Part may be exercised.\n\nNote 4: Sections 521C and 521D deal with accommodation in and transport to remote areas for the purpose of exercising rights under this Part.\n\n (2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:\n\n (a) an order imposing conditions on an entry permit;\n\n (b) an order suspending an entry permit;\n\n (c) an order revoking an entry permit;\n\n (d) an order about the future issue of entry permits to one or more persons;\n\n (e) any other order it considers appropriate.\n\nNote: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).\n\n (3) The FWC may deal with the dispute:\n\n (a) on its own initiative; or\n\n (b) on application by any of the following to whom the dispute relates:\n\n (i) a permit holder;\n\n (ii) a permit holder’s organisation;\n\n (iii) an employer;\n\n (iv) an occupier of premises.\n\n (4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.\n\n (5) In dealing with the dispute, the FWC must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2, 3 or 7 of this Part, unless the dispute is about:\n\n (a) whether a request under section 491, 492A or 499 is reasonable; or\n\n (b) when a right of the kind referred to in section 490 may be exercised by the permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or\n\n (c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or\n\n (d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or\n\n (e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).","sortOrder":1001},{"sectionNumber":"505A","sectionType":"section","heading":"FWC may deal with a dispute about frequency of entry to hold discussions","content":"505A  FWC may deal with a dispute about frequency of entry to hold discussions\n\n (1) This section applies if:\n\n (a) a permit holder or permit holders of an organisation enter premises under section 484 for the purposes of holding discussions with one or more employees or TCF award workers; and\n\n (b) an employer of the employees or the TCF award workers, or occupier of the premises, disputes the frequency with which the permit holder or permit holders of the organisation enter the premises.\n\n (2) The FWC may deal with a dispute about the frequency with which a permit holder or permit holders of an organisation enter premises under section 484.\n\n (3) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:\n\n (a) an order imposing conditions on an entry permit;\n\n (b) an order suspending an entry permit;\n\n (c) an order revoking an entry permit;\n\n (d) an order about the future issue of entry permits to one or more persons;\n\n (e) any other order it considers appropriate.\n\nNote: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).\n\n (4) However, the FWC may only make an order under subsection (3) if the FWC is satisfied that the frequency of entry by the permit holder or permit holders of the organisation would require an unreasonable diversion of the occupier’s critical resources.\n\n (5) The FWC may deal with the dispute:\n\n (a) on its own initiative; or\n\n (b) on application by any of the following to whom the dispute relates:\n\n (i) a permit holder;\n\n (ii) a permit holder’s organisation;\n\n (iii) an employer;\n\n (iv) an occupier of premises.\n\n (6) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.","sortOrder":1002},{"sectionNumber":"506","sectionType":"section","heading":"Contravening order made to deal with dispute","content":"506  Contravening order made to deal with dispute\n\n  A person must not contravene a term of an order under subsection 505(2) or subsection 505A(3).\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":1003},{"sectionNumber":"507","sectionType":"section","heading":"FWC may take action against permit holder","content":"507  FWC may take action against permit holder\n\n (1) The FWC may, on application by an inspector or a person prescribed by the regulations, take the following action against a permit holder:\n\n (a) impose conditions on any entry permit issued to the permit holder;\n\n (b) suspend any entry permit issued to the permit holder;\n\n (c) revoke any entry permit issued to the permit holder.\n\n (2) In deciding whether to take action under subsection (1), the FWC must take into account the permit qualification matters.\n\nNote: For permit qualification matters, see subsection 513(1).","sortOrder":1005},{"sectionNumber":"508","sectionType":"section","heading":"FWC may restrict rights if organisation or official has misused rights","content":"508  FWC may restrict rights if organisation or official has misused rights\n\n (1) The FWC may restrict the rights that are exercisable under this Part by an organisation, or officials of an organisation, if the FWC is satisfied that the organisation, or an official of the organisation, has misused those rights.\n\nNote: Only a Vice President, Deputy President or Full Bench may take action under this subsection (see subsections 612(2) and 615(1)).\n\n (2) The action that the FWC may take under subsection (1) includes the following:\n\n (a) imposing conditions on entry permits;\n\n (b) suspending entry permits;\n\n (c) revoking entry permits;\n\n (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;\n\n (da) requiring, for a specified period, some or all of the exemption certificates that might be issued in relation to the organisation on the ground mentioned in subparagraph 519(1)(b)(ii) (suspected underpayment) to be issued subject to specified conditions;\n\n (e) banning, for a specified period, the issue of entry permits in relation to the organisation, either generally or to specified persons;\n\n (ea) banning, for a specified period, the issue of exemption certificates on the ground mentioned in subparagraph 519(1)(b)(ii) (suspected underpayment) in relation to the organisation, either generally or to specified permit holders;\n\n (f) making any order it considers appropriate.\n\n (3) The FWC may take action under subsection (1):\n\n (a) on its own initiative; or\n\n (b) on application by an inspector.\n\n (4) Without limiting subsection (1), an official misuses rights exercisable under this Part if:\n\n (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\n\n (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:\n\n (i) because the exercise of the right is excessive in the circumstances; or\n\n (ii) for some other reason.","sortOrder":1007},{"sectionNumber":"509","sectionType":"section","heading":"Contravening order made for misuse of rights","content":"509  Contravening order made for misuse of rights\n\n  A person must not contravene a term of an order under subsection 508(1).\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":1008},{"sectionNumber":"510","sectionType":"section","heading":"When the FWC must impose conditions on, revoke or suspend entry permits","content":"510  When the FWC must impose conditions on, revoke or suspend entry permits\n\nWhen the FWC must impose conditions on, revoke or suspend entry permits\n\n (1) The FWC must, under this subsection, impose conditions on, 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:\n\n (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);\n\n (b) the permit holder has contravened section 504 (which deals with unauthorised use or disclosure of information or documents);\n\n (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;\n\n (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;\n\n (e) a court, or other person or body, under a State or Territory industrial law:\n\n (i) cancelled or suspended a right of entry for industrial purposes that the permit holder had under that law; or\n\n (ii) disqualified the permit holder from exercising, or applying for, a right of entry for industrial purposes under that law;\n\n (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.\n\n (2) Despite subsection (1), the FWC is not required to suspend or revoke an entry permit under paragraph (1)(d) or (f) if the FWC is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.\n\n (3) Subsection (1) does not apply in relation to a circumstance referred to in a paragraph of that subsection if the FWC took the circumstance into account when taking action under that subsection on a previous occasion.\n\nMinimum suspension period\n\n (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:\n\n (a) if the FWC has not previously taken action under subsection (1) against the permit holder—3 months;\n\n (b) if the FWC has taken action under subsection (1) against the permit holder on only one occasion—12 months;\n\n (c) if the FWC has taken action under subsection (1) against the permit holder on more than one occasion—5 years.\n\nBanning issue of future entry permits if entry permit revoked or suspended\n\n (5) If the FWC revokes or suspends an entry permit 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).\n\n (6) The ban period must:\n\n (a) begin when the entry permit is revoked or suspended under subsection (1); and\n\n (b) be no shorter than the minimum suspension period.","sortOrder":1010},{"sectionNumber":"511","sectionType":"section","heading":"General rules for suspending entry permits","content":"511  General rules for suspending entry permits\n\n  If the FWC suspends an entry permit, the suspension:\n\n (a) must be for a specified period; and\n\n (b) does not prevent the revocation of, or the imposition of conditions on, the entry permit during the suspension period; and\n\n (c) does not alter the time at which the entry permit would otherwise expire.","sortOrder":1012},{"sectionNumber":"512","sectionType":"section","heading":"FWC may issue entry permits","content":"512  FWC may issue entry permits\n\n  The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.","sortOrder":1015},{"sectionNumber":"513","sectionType":"section","heading":"Considering application","content":"513  Considering application\n\n (1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:\n\n (a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;\n\n (b) whether the official has ever been convicted of an offence against an industrial law;\n\n (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:\n\n (i) entry onto premises; or\n\n (ii) fraud or dishonesty; or\n\n (iii) intentional use of violence against another person or intentional damage or destruction of property;\n\n (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;\n\n (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;\n\n (f) whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:\n\n (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\n\n (ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;\n\n (g) any other matters that the FWC considers relevant.\n\n (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, the FWC for the purpose of making a decision under this Part.\n\nNote: 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.","sortOrder":1016},{"sectionNumber":"514","sectionType":"section","heading":"When the FWC must not issue permit","content":"514  When the FWC must not issue permit\n\n  The FWC 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:\n\n (a) applies to the official’s exercise of; or\n\n (b) prevents the official from exercising or applying for;\n\na 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.","sortOrder":1017},{"sectionNumber":"515","sectionType":"section","heading":"Conditions on entry permit","content":"515  Conditions on entry permit\n\n (1) The FWC may impose conditions on an entry permit when it is issued.\n\n (2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.\n\n (3) The FWC 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).\n\n (4) If the FWC imposes a condition on an entry permit after it has been issued, the permit ceases to be in force until the FWC records the condition on the permit.\n\n (5) To avoid doubt, a permit holder does not contravene an FWC 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).","sortOrder":1018},{"sectionNumber":"516","sectionType":"section","heading":"Expiry of entry permit","content":"516  Expiry of entry permit\n\n (1) Unless it is revoked, an entry permit expires at the earlier of the following times:\n\n (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);\n\n (b) when the permit holder ceases to be an official of the organisation that applied for the permit.\n\n (2) The FWC may extend the period of 3 years referred to in paragraph (1)(a) by a specified period if:\n\n (a) the organisation that applied for the permit (the old permit) has applied for another entry permit for the permit holder; and\n\n (b) the application was made at least 1 month before the old permit would otherwise have expired under that paragraph; and\n\n (c) the FWC is satisfied that the old permit is likely to expire before the FWC determines the application.\n\n (3) The period specified must not be longer than the period that the FWC considers necessary for it to determine the application.\n\n (4) The FWC must not extend the period under subsection (2) if:\n\n (a) the FWC 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\n\n (b) the organisation or permit holder has not complied with the request or requirement; and\n\n (c) the FWC is satisfied that the organisation or permit holder does not have a reasonable excuse.","sortOrder":1019},{"sectionNumber":"517","sectionType":"section","heading":"Return of entry permits to the FWC","content":"517  Return of entry permits to the FWC\n\nWhen permit holder must return entry permit to the FWC\n\n (1) A permit holder must return an entry permit to the FWC within 7 days of any of the following things happening:\n\n (a) the permit is revoked or suspended;\n\n (b) conditions are imposed on the permit after it is issued;\n\n (c) the permit expires.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\nFWC to return entry permit to permit holder after suspension\n\n (2) After the end of a suspension period, the FWC must return the entry permit to the permit holder if:\n\n (a) the permit holder, or the permit holder’s organisation, applies to the FWC for the return of the entry permit; and\n\n (b) the entry permit has not expired.","sortOrder":1020},{"sectionNumber":"518","sectionType":"section","heading":"Entry notice requirements","content":"518  Entry notice requirements\n\nRequirements for all entry notices\n\n (1) An entry notice must specify the following:\n\n (a) the premises that are proposed to be entered;\n\n (b) the day of the entry;\n\n (c) the organisation of which the permit holder for the entry is an official.\n\nRequirements for entry notice for entry to investigate suspected contravention\n\n (2) An entry notice given for an entry under section 481, 483A or 483D must:\n\n (a) specify that section as the provision that authorises the entry; and\n\n (b) unless the entry is a designated outworker terms entry under section 483A—specify the particulars of the suspected contravention, or contraventions; and\n\n (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:\n\n (i) to whom the suspected contravention or contraventions relate; or\n\n (ii) who is affected by the suspected contravention or contraventions; and\n\n (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 award worker, who performs work on the premises, and:\n\n (i) to whom the suspected contravention or contraventions relate; or\n\n (ii) who is affected by the suspected contravention or contraventions; and\n\n (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 award workers; and\n\n (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 award worker:\n\n (i) to whom the suspected contravention or contraventions relate; or\n\n (ii) who is affected by the suspected contravention or contraventions; and\n\n (d) specify the provision of the organisation’s rules that entitles the organisation to represent the member or TCF award worker.\n\nRequirements for entry notice for entry to hold discussions\n\n (3) An entry notice given for an entry under section 484 (which deals with entry to hold discussions) must:\n\n (a) specify that section as the provision that authorises the entry; and\n\n (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 award worker who performs work on the premises; and\n\n (c) specify the provision of the organisation’s rules that entitles the organisation to represent the employee or TCF award worker.\n\nNote: See section 503 (which deals with misrepresentations about things authorised by this Part).","sortOrder":1022},{"sectionNumber":"519","sectionType":"section","heading":"Exemption certificates","content":"519  Exemption certificates\n\n (1) The FWC 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:\n\n (a) the organisation has applied for the certificate; and\n\n (b) either:\n\n (i) the FWC reasonably believes that advance notice of the entry given by an entry notice might result in the destruction, concealment or alteration of relevant evidence; or\n\n (ii) the FWC is satisfied that the suspected contravention, or contraventions, involve the underpayment of wages, or other monetary entitlements, of a member of the organisation whose industrial interests the organisation is entitled to represent and who performs work on the premises, and the FWC reasonably believes that advance notice of the entry given by an entry notice would hinder an effective investigation into the suspected contravention or contraventions.\n\n (2) An exemption certificate must specify the following:\n\n (a) the premises to which it relates;\n\n (b) the organisation to which it relates;\n\n (c) the day or days on which the entry may occur;\n\n (d) particulars of the suspected contravention, or contraventions, to which the entry relates;\n\n (da) if the exemption certificate is issued on the ground mentioned in subparagraph (1)(b)(ii) (suspected underpayment)—the names of any permit holders who may enter;\n\n (e) section 481 as the provision that authorises the entry.","sortOrder":1024},{"sectionNumber":"520","sectionType":"section","heading":"Affected member certificates","content":"520  Affected member certificates\n\n (1) The FWC must, on application by an organisation, issue a certificate (an affected member certificate) to the organisation if the FWC is satisfied that:\n\n (a) a member of the organisation performs work on particular premises; and\n\n (b) the organisation is entitled to represent the industrial interests of the member; and\n\n (c) a suspected contravention of a kind referred to in subsection 481(1) relates to, or affects, the member.\n\n (2) An affected member certificate must state the following:\n\n (a) the premises to which it relates;\n\n (b) the organisation to which it relates;\n\n (c) particulars of the suspected contravention, or contraventions, to which it relates;\n\n (d) that the FWC is satisfied of the matters referred to in paragraphs (1)(a), (b) and (c).\n\n (3) An affected member certificate must not reveal the identity of the member or members to whom it relates.","sortOrder":1026},{"sectionNumber":"521","sectionType":"section","heading":"Regulations dealing with instruments under this Part","content":"521  Regulations dealing with instruments under this Part\n\n  The regulations may provide for, and in relation to, the following:\n\n (a) the form of entry permits, entry notices, exemption certificates and affected member certificates;\n\n (b) additional information to be included on, or given with, entry permits, entry notices, exemption certificates and affected member certificates;\n\n (c) the manner in which entry permits, entry notices, exemption certificates and affected member certificates are to be given;\n\n (d) any other matter in relation to entry permits, entry notices, exemption certificates and affected member certificates.","sortOrder":1028},{"sectionNumber":"521A","sectionType":"section","heading":"Meaning of accommodation arrangement","content":"521A  Meaning of accommodation arrangement\n\n (1) If:\n\n (a) an occupier of premises enters into an arrangement with an organisation; and\n\n (b) under the terms of the arrangement, a permit holder is provided with accommodation for the purpose of assisting him or her to exercise rights under this Part;\n\nthe arrangement is an accommodation arrangement.\n\n (2) If:\n\n (a) an occupier of premises enters into an arrangement with a permit holder; and\n\n (b) under the terms of the arrangement, the permit holder is provided with accommodation for the purpose of assisting him or her to exercise rights under this Part;\n\nthe arrangement is an accommodation arrangement.","sortOrder":1030},{"sectionNumber":"521B","sectionType":"section","heading":"Meaning of transport arrangement","content":"521B  Meaning of transport arrangement\n\n (1) If:\n\n (a) an occupier of premises enters into an arrangement with an organisation; and\n\n (b) under the terms of the arrangement, a permit holder is provided with transport for the purpose of assisting him or her to exercise rights under this Part;\n\nthe arrangement is a transport arrangement.\n\n (2) If:\n\n (a) an occupier of premises enters into an arrangement with a permit holder; and\n\n (b) under the terms of the arrangement, the permit holder is provided with transport for the purpose of assisting him or her to exercise rights under this Part;\n\nthe arrangement is a transport arrangement.","sortOrder":1031},{"sectionNumber":"521C","sectionType":"section","heading":"Accommodation arrangements for remote areas","content":"521C  Accommodation arrangements for remote areas\n\nThis section applies only in remote areas\n\n (1) This section applies if rights under this Part are to be exercised by a permit holder on premises that are located in a place where accommodation is not reasonably available to the permit holder unless the occupier of the premises on which the rights are to be exercised provides the accommodation, or causes it to be provided.\n\nWhere parties cannot agree on an accommodation arrangement\n\n (2) If all of the following are satisfied:\n\n (a) to provide accommodation, or cause accommodation to be provided, to the permit holder would not cause the occupier undue inconvenience;\n\n (b) the permit holder, or the organisation of which the permit holder is an official, requests the occupier to provide, or cause to be provided, accommodation for the purpose of assisting the permit holder to exercise rights under this Part on the premises;\n\n (c) the request is made within a reasonable period before accommodation is required;\n\n (d) the permit holder, and the organisation of which the permit holder is an official, have been unable to enter into an accommodation arrangement with the occupier by consent;\n\nthe occupier must enter into an accommodation arrangement for the purpose of assisting the permit holder to exercise rights under this Part.\n\nNote: The FWC may deal with disputes about whether accommodation is reasonably available, whether providing accommodation or causing it to be provided would cause the occupier undue inconvenience and whether a request to provide accommodation is made within a reasonable period (see subsection 505(1)).\n\nCosts\n\n (3) If an accommodation arrangement is entered into under subsection (2), the occupier must not charge an organisation or a permit holder a fee for accommodation under the arrangement that is more than is necessary to cover the cost to the occupier of providing the accommodation, or causing it to be provided.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\nFWC’s powers if rights misused whilst in accommodation\n\n (4) For the purposes of this Part, the FWC may treat the conduct of the permit holder whilst in accommodation under an accommodation arrangement to which the occupier is a party, whether entered into under subsection (2) or by consent, as conduct engaged in as part of the exercise of rights by the permit holder under this Part.","sortOrder":1032},{"sectionNumber":"521D","sectionType":"section","heading":"Transport arrangements for remote areas","content":"521D  Transport arrangements for remote areas\n\nThis section applies only in remote areas\n\n (1) This section applies if rights under this Part are to be exercised by a permit holder on premises that are located in a place that is not reasonably accessible to the permit holder unless the occupier of the premises on which the rights are to be exercised provides transport, or causes it to be provided.\n\nWhere parties cannot agree on transport arrangement\n\n (2) If all of the following are satisfied:\n\n (a) to provide transport to the premises for the permit holder, or cause that transport to be provided, would not cause the occupier undue inconvenience;\n\n (b) the permit holder, or the organisation of which the permit holder is an official, requests the occupier to provide, or cause to be provided, transport to the premises for the purpose of assisting the permit holder to exercise rights under this Part;\n\n (c) the request is made within a reasonable period before transport is required;\n\n (d) the permit holder, and the organisation of which the permit holder is an official, have been unable to enter into a transport arrangement with the occupier by consent;\n\nthe occupier must enter into a transport arrangement for the purpose of assisting the permit holder to exercise rights under this Part.\n\nNote: The FWC may deal with disputes about whether premises are reasonably accessible, whether providing transport or causing it to be provided would cause the occupier undue inconvenience and whether a request to provide transport is made within a reasonable period (see subsection 505(1)).\n\nCosts\n\n (3) If a transport arrangement is entered into under subsection (2), the occupier must not charge an organisation or a permit holder a fee for transport under the arrangement that is more than is necessary to cover the cost to the occupier of providing the transport, or causing it to be provided.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\nFWC’s powers if rights misused whilst in transport\n\n (4) For the purposes of this Part, the FWC may treat the conduct of the permit holder whilst in transport under a transport arrangement to which the occupier is a party, whether entered into under subsection (2) or by consent, as conduct engaged in as part of the exercise of rights by the permit holder under this Part.","sortOrder":1033},{"sectionNumber":"Part 3-5","sectionType":"part","heading":"Stand down","content":"Part 3‑5—Stand down","sortOrder":1034},{"sectionNumber":"522","sectionType":"section","heading":"Guide to this Part","content":"522  Guide to this Part\n\nThis Part provides for a national system employer to stand down a national system employee without pay in certain circumstances.\n\nDivision 2 sets out the circumstances in which an employer may stand down an employee without pay.\n\nDivision 3 provides for the FWC to deal with disputes about the operation of this Part.","sortOrder":1036},{"sectionNumber":"523","sectionType":"section","heading":"Meanings of employee and employer","content":"523  Meanings of employee and employer\n\n  In this Part, employee means a national system employee, and employer means a national system employer.","sortOrder":1037},{"sectionNumber":"524","sectionType":"section","heading":"Employer may stand down employees in certain circumstances","content":"524  Employer may stand down employees in certain circumstances\n\n (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:\n\n (a) industrial action (other than industrial action organised or engaged in by the employer);\n\n (b) a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;\n\n (c) a stoppage of work for any cause for which the employer cannot reasonably be held responsible.\n\n (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:\n\n (a) an enterprise agreement, or a contract of employment, applies to the employer and the employee; and\n\n (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.\n\nNote 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.\n\nNote 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).\n\n (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.","sortOrder":1039},{"sectionNumber":"525","sectionType":"section","heading":"Employee not stood down during a period of authorised leave or absence","content":"525  Employee not stood down during a period of authorised leave or absence\n\n  An employee is not taken to be stood down under subsection 524(1) during a period when the employee:\n\n (a) is taking paid or unpaid leave that is authorised by the employer; or\n\n (b) is otherwise authorised to be absent from his or her employment.\n\nNote: 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).","sortOrder":1040},{"sectionNumber":"526","sectionType":"section","heading":"FWC may deal with a dispute about the operation of this Part","content":"526  FWC may deal with a dispute about the operation of this Part\n\n (1) The FWC may deal with a dispute about the operation of this Part.\n\n (2) The FWC may deal with the dispute by arbitration.\n\nNote: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).\n\n (3) The FWC may deal with the dispute only on application by any of the following:\n\n (a) an employee who has been, or is going to be, stood down under subsection 524(1) (or purportedly under subsection 524(1));\n\n (b) an employee in relation to whom the following requirements are satisfied:\n\n (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));\n\n (ii) the employee’s employer has authorised the leave;\n\n (c) an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (a) or (b);\n\n (d) an inspector.\n\n (4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.","sortOrder":1042},{"sectionNumber":"527","sectionType":"section","heading":"Contravening an FWC order dealing with a dispute about the operation of this Part","content":"527  Contravening an FWC order dealing with a dispute about the operation of this Part\n\n  A person must not contravene a term of an FWC order dealing with a dispute about the operation of this Part.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":1043},{"sectionNumber":"Part 3-5A","sectionType":"part","heading":"Prohibiting sexual harassment in connection with work","content":"Part 3‑5A—Prohibiting sexual harassment in connection with work","sortOrder":1044},{"sectionNumber":"527A","sectionType":"section","heading":"Guide to this Part","content":"527A  Guide to this Part\n\nThis Part makes it unlawful for a person to sexually harass another person, where:\n\n (a) the other person is a worker in a business or undertaking, seeking to become a worker in a particular business or undertaking, or conducting a business or undertaking; and\n\n (b) the harassment occurs in connection with the other person being a person of the relevant kind.\n\nPersons may be liable for acts contravening this Part that are performed by their employees or agents.\n\nApplications may be made to the FWC to deal with a dispute about an alleged contravention of this Part, including by making a stop sexual harassment order.\n\nIn most cases, a dispute about an alleged contravention of this Part will be dealt with by a court only if the dispute has not been resolved by the FWC.","sortOrder":1046},{"sectionNumber":"527B","sectionType":"section","heading":"Meaning of employee and employer","content":"527B  Meaning of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.","sortOrder":1047},{"sectionNumber":"527C","sectionType":"section","heading":"Object of this Part","content":"527C  Object of this Part\n\n  The object of this Part is to give effect, or further effect, to:\n\n (a) the Convention on the Elimination of All Forms of Discrimination Against Women, done at New York on 18 December 1979 ([1983] ATS 9); and\n\n (b) Articles 2 and 7 of the International Covenant on Economic, Social and Cultural Rights, done at New York on 16 December 1966 ([1976] ATS 5); and\n\n (c) the ILO Convention (No. 111) concerning Discrimination in Respect of Employment and Occupation, done at Geneva on 25 June 1958 ([1974] ATS 12); and\n\n (d) Article 7, and paragraphs (b) and (e) of Article 10, of the ILO Convention (No. 190) concerning Violence and Harassment, done at Geneva on 21 June 2019; and\n\n (e) the Violence and Harassment Recommendation, 2019 (Recommendation No. 206), which the General Conference of the ILO adopted on 21 June 2019;\n\nby prohibiting sexual harassment of workers, persons seeking to become workers and persons conducting businesses or undertakings, and providing remedies when that happens.\n\nNote 1: The Conventions mentioned in paragraphs (a) and (c) and the Covenant could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).\n\nNote 2: The Convention mentioned in paragraph (d) and the Recommendation could in 2022 be viewed on the ILO website (http://www.ilo.org).","sortOrder":1048},{"sectionNumber":"527CA","sectionType":"section","heading":"Concurrent operation of State and Territory laws","content":"527CA  Concurrent operation of State and Territory laws\n\n (1) This Part does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Part.\n\n (2) Without limiting subsection (1), this Part does not exclude or limit the concurrent operation of a law of a State or Territory to the extent that:\n\n (a) the law makes an act or omission:\n\n (i) an offence; or\n\n (ii) subject to a civil penalty; and\n\n (b) that (or any similar) act or omission constitutes a contravention of a civil remedy provision of this Part.\n\n (3) Without limiting subsection (1), this Part does not exclude or limit the concurrent operation of a law of a State or Territory to the extent that the law allows an application to be made to a person, court or body:\n\n (a) for an order or other direction (however described) to prevent a person from being sexually harassed; or\n\n (b) to deal with a dispute relating to an allegation that a person has been sexually harassed (whether or not by arbitration).\n\nFor this purpose, it is irrelevant whether:\n\n (c) sexual harassment has a different meaning for the purposes of the law to the meaning it has for the purposes of this Act; or\n\n (d) the law describes the conduct prevented, or to which the dispute relates, as sexual harassment.\n\nNote 1: An order made under this Part, or under Division 2 of Part 4‑1 in relation to a contravention of this Part, will prevail over any order or other direction made by a person, court or body under a law of a State or Territory, to the extent of any inconsistency.\n\nNote 2: Generally, section 734B prevents multiple applications or complaints under both this Act and State and Territory anti‑discrimination laws in relation to the same conduct.\n\n (4) Section 26 has effect subject to this section.","sortOrder":1049},{"sectionNumber":"527D","sectionType":"section","heading":"Prohibiting sexual harassment in connection with work","content":"527D  Prohibiting sexual harassment in connection with work\n\nProhibition\n\n (1) A person (the first person) must not sexually harass another person (the second person) who is:\n\n (a) a worker in a business or undertaking; or\n\n (b) seeking to become a worker in a particular business or undertaking; or\n\n (c) a person conducting a business or undertaking;\n\nif the harassment occurs in connection with the second person being a person of the kind mentioned in paragraph (a), (b) or (c).\n\nNote: This section is a civil remedy provision (see Part 4‑1).\n\nMeaning of worker\n\n (2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011.\n\nNote: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.\n\nWhen a person is a worker in a business or undertaking\n\n (3) For the purposes of this Act, if a person (the first person) is a worker because the first person carries out work for a person conducting a business or undertaking, the first person is a worker in the business or undertaking.\n\nOther expressions\n\n (4) Subject to subsections (2) and (3), an expression used in this section that is defined for the purposes of the Work Health and Safety Act 2011 has the same meaning in this section as it has in that Act.","sortOrder":1051},{"sectionNumber":"527E","sectionType":"section","heading":"Vicarious liability etc.","content":"527E  Vicarious liability etc.\n\nEmployees and agents\n\n (1) If an employee or agent of a person (the principal) does, in connection with the employment of the employee or with the duties of the agent as an agent, an act that contravenes subsection 527D(1), this Act applies in relation to the principal (subject to subsection (2)) as if the principal had also done the act.\n\n (2) Subsection (1) does not apply if the principal proves that the principal took all reasonable steps to prevent the employee or agent from doing acts that would contravene subsection 527D(1).\n\nDefence members\n\n (2A) If a person does an act that contravenes subsection 527D(1) in connection with the person’s service as a defence member (within the meaning of the Defence Force Discipline Act 1982), this Act applies in relation to the Commonwealth (subject to subsection (2B)) as if the Commonwealth had also done the act.\n\n (2B) Subsection (2A) does not apply if the Commonwealth proves that the Commonwealth took all reasonable steps to prevent the person from doing acts that would contravene subsection 527D(1).\n\nOther provisions not limited\n\n (3) Subsections (1) and (2A) do not limit section 550 or 793.","sortOrder":1052},{"sectionNumber":"527F","sectionType":"section","heading":"Application for the FWC to deal with a sexual harassment dispute","content":"527F  Application for the FWC to deal with a sexual harassment dispute\n\n (1) If a person (the aggrieved person) alleges they have been sexually harassed in contravention of Division 2 by one or more other persons (a respondent), a person referred to in subsection (2) may apply for the FWC to do either or both of the following to deal with the dispute:\n\n (a) make an order (a stop sexual harassment order) under section 527J;\n\n (b) otherwise deal with the dispute.\n\nNote 1: A person has limited ability to make a sexual harassment court application unless the FWC has dealt with the dispute as mentioned in paragraph (b) and is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful (see section 527T).\n\nNote 2: The FWC may allow an application to be amended if, for example, the applicant wishes the FWC to deal with the dispute in a way not initially applied for (see section 586).\n\n (2) The persons are as follows:\n\n (a) the aggrieved person;\n\n (b) an industrial association that is entitled to represent the industrial interests of the aggrieved person.\n\n (3) Despite paragraph (1)(a), a person referred to in subsection (2) cannot, except as provided by the regulations, apply for the FWC to make a stop sexual harassment order in relation to the dispute if the aggrieved person was a defence member (within the meaning of the Defence Force Discipline Act 1982) at the time the sexual harassment allegedly occurred.\n\n (4) Without limiting section 609, the procedural rules may provide for the following:\n\n (a) the making of applications under subsection (1) by:\n\n (i) 2 or more persons of the kind referred to in subsection (2) acting jointly; or\n\n (ii) a single industrial association that is entitled to represent the industrial interests of 2 or more aggrieved persons;\n\n  being applications made in relation to the same alleged contravention, or related alleged contraventions, of Division 2;\n\n (b) the joinder of the following as parties to the dispute:\n\n (i) one or more aggrieved persons in relation to alleged contraventions of Division 2;\n\n (ii) one or more industrial associations each of which is entitled to represent the industrial interests of one or more aggrieved persons in relation to alleged contraventions of Division 2;\n\n (iii) if an aggrieved person in relation to the dispute alleges the aggrieved person has been sexually harassed in contravention of Division 2, other than because of the operation of subsection 527E(1), by a person who is an employee or agent of another person (the principal)—the principal;\n\n (iv) if a party to the dispute alleges another party (the principal) has contravened Division 2 because of the operation of subsection 527E(1)—an employee or agent mentioned in that subsection in relation to the principal;\n\n (c) the withdrawal of persons as parties to the dispute;\n\n (d) the treatment of the dispute under this Act as if there were 2 or more different disputes (instead of a single dispute), with different parties to each of the disputes.","sortOrder":1055},{"sectionNumber":"527G","sectionType":"section","heading":"Time for application","content":"527G  Time for application\n\n  The FWC may dismiss an application that is made under section 527F more than 24 months after the contravention, or the last of the contraventions, of Division 2 is alleged to have occurred.\n\nNote: For another power of the FWC to dismiss an application under section 527F, see section 587.","sortOrder":1056},{"sectionNumber":"527H","sectionType":"section","heading":"Application fees","content":"527H  Application fees\n\n (1) An application to the FWC under section 527F must be accompanied by any fee prescribed by the regulations.\n\n (2) The regulations may prescribe:\n\n (a) a fee for making an application to the FWC under section 527F; and\n\n (b) a method for indexing the fee; and\n\n (c) the circumstances in which all or part of the fee may be waived or refunded.","sortOrder":1057},{"sectionNumber":"527J","sectionType":"section","heading":"Stop sexual harassment orders","content":"527J  Stop sexual harassment orders\n\n (1) If:\n\n (a) an application made under section 527F includes an application for a stop sexual harassment order; and\n\n (b) the FWC is satisfied that:\n\n (i) the aggrieved person has been sexually harassed in contravention of Division 2 by one or more persons; and\n\n (ii) there is a risk that the aggrieved person will continue to be sexually harassed in contravention of Division 2 by the person or persons;\n\nthen the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the aggrieved person from being sexually harassed in contravention of Division 2 by the person or persons.\n\n (2) The FWC must start to deal with the application, to the extent that it consists of an application for a stop sexual harassment order, within 14 days after the application is made.\n\nNote: For example, the FWC may start to inform itself of the matter under section 590, it may decide to conduct a conference under section 592, or it may decide to hold a hearing under section 593.\n\n (3) In considering the terms of a stop sexual harassment order, the FWC must take into account:\n\n (a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and\n\n (b) if the FWC is aware of any procedure available to the aggrieved person—that procedure; and\n\n (c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the aggrieved person to resolve grievances or disputes—those outcomes; and\n\n (d) any matters that the FWC considers relevant.\n\n (4) Despite subsection (2), the FWC may dismiss an application made under section 527F, to the extent that it consists of an application for a stop sexual harassment order, if the FWC considers that the application might involve matters that relate to:\n\n (a) Australia’s defence; or\n\n (b) Australia’s national security; or\n\n (c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or\n\n (d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.\n\nNote: For another power of the FWC to dismiss an application under section 527F, see section 587.","sortOrder":1059},{"sectionNumber":"527K","sectionType":"section","heading":"Contravening a stop sexual harassment order","content":"527K  Contravening a stop sexual harassment order\n\n  A person to whom a stop sexual harassment order applies must not contravene a term of the order.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":1060},{"sectionNumber":"527L","sectionType":"section","heading":"Actions under work health and safety laws permitted","content":"527L  Actions under work health and safety laws permitted\n\n  Section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws (within the meaning of that Act) do not apply in relation to an application made under section 527F that includes an application for a stop sexual harassment order.\n\nNote: Ordinarily, if a person makes an application under section 527F for a stop sexual harassment order in relation to particular conduct, then section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws would prohibit a proceeding from being commenced, or an application from being made or continued, under those laws in relation to the same conduct. This section removes that prohibition.","sortOrder":1061},{"sectionNumber":"527M","sectionType":"section","heading":"This Subdivision is not to prejudice Australia’s defence, national security etc.","content":"527M  This Subdivision is not to prejudice Australia’s defence, national security etc.\n\n  Nothing in this Subdivision requires or permits a person to take, or to refrain from taking, any action if the taking of the action, or the refraining from taking the action, would be, or could reasonably be expected to be, prejudicial to:\n\n (a) Australia’s defence; or\n\n (b) Australia’s national security; or\n\n (c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or\n\n (d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.","sortOrder":1062},{"sectionNumber":"527N","sectionType":"section","heading":"Declarations by the Chief of the Defence Force","content":"527N  Declarations by the Chief of the Defence Force\n\n (1) Without limiting section 527M, the Chief of the Defence Force may, by legislative instrument, declare that all or specified provisions of this Subdivision do not apply in relation to a specified activity.\n\n (2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.","sortOrder":1063},{"sectionNumber":"527P","sectionType":"section","heading":"Declarations by the Director-General of Security","content":"527P  Declarations by the Director‑General of Security\n\n (1) Without limiting section 527M, the Director‑General of Security may, by legislative instrument, declare that all or specified provisions of this Subdivision do not apply in relation to a person carrying out work for the Director‑General.\n\n (2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.","sortOrder":1064},{"sectionNumber":"527Q","sectionType":"section","heading":"Declarations by the Director-General of ASIS","content":"527Q  Declarations by the Director‑General of ASIS\n\n (1) Without limiting section 527M, the Director‑General of the Australian Secret Intelligence Service may, by legislative instrument, declare that all or specified provisions of this Subdivision do not apply in relation to a person carrying out work for the Director‑General.\n\n (2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.","sortOrder":1065},{"sectionNumber":"527R","sectionType":"section","heading":"Dealing with a sexual harassment dispute (other than by arbitration)","content":"527R  Dealing with a sexual harassment dispute (other than by arbitration)\n\n (1) If:\n\n (a) an application is made under section 527F for the FWC to deal with a dispute; and\n\n (b) the application does not consist solely of an application for a stop sexual harassment order;\n\nthen the FWC must deal with the dispute (other than by arbitration).\n\nNote: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).\n\n (2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).\n\nNote: For conferences, see section 592.\n\n (3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:\n\n (a) the FWC must issue a certificate to that effect; and\n\n (b) if the FWC considers, taking into account all the materials before it, that arbitration under section 527S, or a sexual harassment court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.","sortOrder":1067},{"sectionNumber":"527S","sectionType":"section","heading":"Dealing with a sexual harassment dispute by arbitration","content":"527S  Dealing with a sexual harassment dispute by arbitration\n\n (1) This section applies if:\n\n (a) the FWC issues a certificate under paragraph 527R(3)(a) in relation to a dispute; and\n\n (b) 2 or more of the parties (the notifying parties) jointly notify the FWC that they agree to the FWC arbitrating the dispute; and\n\n (c) the notifying parties include at least one party that is:\n\n (i) an aggrieved person in relation to the dispute; or\n\n (ii) an industrial association that is entitled to represent the industrial interests of a person who is an aggrieved person in relation to the dispute; and\n\n (d) the notifying parties include at least one party that is a respondent in relation to the dispute; and\n\n (e) the notification:\n\n (i) is given to the FWC within 60 days after the day the certificate is issued, or within such period as the FWC allows on an application made during or after those 60 days; and\n\n (ii) complies with any requirements prescribed by the procedural rules.\n\n (2) The FWC must:\n\n (a) remove as a party to the dispute a party that is not one of the notifying parties; and\n\n (b) notify a person who is removed under paragraph (a) of the removal.\n\n (3) After doing so, the FWC may deal with the dispute by arbitration, including by:\n\n (a) making one or more of the following orders:\n\n (i) an order for the payment of compensation to an aggrieved person in relation to the dispute;\n\n (ii) an order for payment of an amount to an aggrieved person in relation to the dispute for remuneration lost;\n\n (iii) an order requiring a person to perform any reasonable act, or carry out any reasonable course of conduct, to redress loss or damage suffered by an aggrieved person in relation to the dispute; and\n\n (b) expressing one or more of the following opinions:\n\n (i) an opinion that a respondent in relation to the dispute has sexually harassed one or more aggrieved persons in contravention of Division 2;\n\n (ii) an opinion that a respondent in relation to the dispute has contravened Division 2 because of the operation of subsection 527E(1);\n\n (iii) an opinion that it would be inappropriate for any further action to be taken in the matter.\n\n (4) A person to whom an order under paragraph (3)(a) applies must not contravene a term of the order.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).","sortOrder":1068},{"sectionNumber":"527T","sectionType":"section","heading":"Limitation on taking a sexual harassment dispute to court","content":"527T  Limitation on taking a sexual harassment dispute to court\n\n (1) A person who is entitled to apply under section 527F for the FWC to deal with a dispute (whether by making a stop sexual harassment order or otherwise) must not make a sexual harassment court application in relation to the dispute unless:\n\n (a) both of the following apply:\n\n (i) the FWC has issued a certificate under paragraph 527R(3)(a) in relation to the dispute;\n\n (ii) the sexual harassment court application is made within a period specified in subsection (3); or\n\n (b) the sexual harassment court application includes an application for an interim injunction.\n\nNote: Generally, if parties to the dispute notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 527S(1)), a sexual harassment court application cannot be made by a notifying party in relation to a contravention of Division 2 by another notifying party where the contravention is the subject of the dispute (see section 734A).\n\n (2) A sexual harassment court application is an application to a court under Division 2 of Part 4‑1 for orders in relation to a contravention of Division 2 of this Part.\n\n (3) For the purposes of subparagraph (1)(a)(ii), the following periods are specified:\n\n (a) 60 days after the day the certificate is issued;\n\n (b) if the person is removed under paragraph 527S(2)(a) as a party to the dispute—14 days after the person is given notice under paragraph 527S(2)(b) of the removal;\n\n (c) such period as the court allows on an application made during or after a period mentioned in paragraph (a) or (b) of this subsection.\n\nNote: For the purposes of paragraph (c), 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.","sortOrder":1069},{"sectionNumber":"Part 3-6","sectionType":"part","heading":"Other rights and responsibilities","content":"Part 3‑6—Other rights and responsibilities","sortOrder":1070},{"sectionNumber":"528","sectionType":"section","heading":"Guide to this Part","content":"528  Guide to this Part\n\nThis Part deals with other rights and responsibilities.\n\nDivision 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.\n\nSubdivision A of Division 2 deals with notifying the Chief Executive Officer of the Commonwealth Services Delivery Agency (Centrelink) about the proposed dismissals.\n\nSubdivision B of Division 2 provides for the FWC to make orders if the employer fails to notify and consult relevant industrial associations.\n\nSubdivision C of Division 2 provides that that Division does not apply in relation to certain employees.\n\nDivision 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.\n\nDivision 4 is about the obligations of national system employers in relation to advertising rates of pay.","sortOrder":1072},{"sectionNumber":"529","sectionType":"section","heading":"Meanings of employee and employer","content":"529  Meanings of employee and employer\n\n  In this Part, employee means a national system employee, and employer means a national system employer.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":1073},{"sectionNumber":"530","sectionType":"section","heading":"Employer to notify Centrelink of certain proposed dismissals","content":"530  Employer to notify Centrelink of certain proposed dismissals\n\n (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).\n\n (2) The notice must be in the form (if any) prescribed by the regulations and set out:\n\n (a) the reasons for the dismissals; and\n\n (b) the number and categories of employees likely to be affected; and\n\n (c) the time when, or the period over which, the employer intends to carry out the dismissals.\n\n (3) The notice must be given:\n\n (a) as soon as practicable after making the decision; and\n\n (b) before dismissing an employee in accordance with the decision.\n\n (4) The employer must not dismiss an employee in accordance with the decision unless the employer has complied with this section.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (5) The orders that may be made under subsection 545(1) in relation to a contravention of subsection (4) of this section:\n\n (a) include an order requiring the employer not to dismiss the employees in accordance with the decision, except as permitted by the order; but\n\n (b) do not include an order granting an injunction.","sortOrder":1076},{"sectionNumber":"531","sectionType":"section","heading":"FWC may make orders where failure to notify or consult registered employee associations about dismissals","content":"531  FWC may make orders where failure to notify or consult registered employee associations about dismissals\n\n (1) The FWC may make an order under subsection 532(1) if it is satisfied that:\n\n (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\n\n (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\n\n (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.\n\nNotifying relevant registered employee associations\n\n (2) An employer complies with this subsection if:\n\n (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:\n\n (i) the proposed dismissals and the reasons for them;\n\n (ii) the number and categories of employees likely to be affected;\n\n (iii) the time when, or the period over which, the employer intends to carry out the dismissals; and\n\n (b) the notice is given:\n\n (i) as soon as practicable after making the decision; and\n\n (ii) before dismissing an employee in accordance with the decision.\n\nConsulting relevant registered employee associations\n\n (3) An employer complies with this subsection if:\n\n (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:\n\n (i) measures to avert or minimise the proposed dismissals; and\n\n (ii) measures (such as finding alternative employment) to mitigate the adverse effects of the proposed dismissals; and\n\n (b) the opportunity is given:\n\n (i) as soon as practicable after making the decision; and\n\n (ii) before dismissing an employee in accordance with the decision.","sortOrder":1078},{"sectionNumber":"532","sectionType":"section","heading":"Orders that the FWC may make","content":"532  Orders that the FWC may make\n\n (1) The FWC may make whatever orders it considers appropriate, in the public interest, to put:\n\n (a) the employees; and\n\n (b) each registered employee association referred to in paragraph 531(2)(a) or (3)(a);\n\nin the same position (as nearly as can be done) as if the employer had complied with subsections 531(2) and (3).\n\n (2) The FWC must not, under subsection (1), make orders for any of the following:\n\n (a) reinstatement of an employee;\n\n (b) withdrawal of a notice of dismissal if the notice period has not expired;\n\n (c) payment of an amount in lieu of reinstatement;\n\n (d) payment of severance pay;\n\n (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;\n\n (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.","sortOrder":1079},{"sectionNumber":"533","sectionType":"section","heading":"Application for an FWC order","content":"533  Application for an FWC order\n\n  The FWC may make the order only on application by:\n\n (a) one of the employees; or\n\n (b) a registered employee association referred to in paragraph 531(2)(a) or (3)(a); or\n\n (c) any other registered employee association that is entitled to represent the industrial interests of one of the employees.","sortOrder":1080},{"sectionNumber":"534","sectionType":"section","heading":"Limits on scope of this Division","content":"534  Limits on scope of this Division\n\n (1) This Division does not apply in relation to any of the following employees:\n\n (a) an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;\n\n (b) an employee who is dismissed because of serious misconduct;\n\n (c) a casual employee;\n\n (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;\n\n (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);\n\n (f) a daily hire employee working in the meat industry in connection with the slaughter of livestock;\n\n (g) a weekly hire employee working in connection with the meat industry and whose dismissal is determined solely by seasonal factors;\n\n (h) an employee prescribed by the regulations as an employee in relation to whom this Division does not apply.\n\n (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.","sortOrder":1082},{"sectionNumber":"535","sectionType":"section","heading":"Employer obligations in relation to employee records","content":"535  Employer obligations in relation to employee records\n\n (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.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) The records must:\n\n (a) if a form is prescribed by the regulations—be in that form; and\n\n (b) include any information prescribed by the regulations.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (3) The regulations may provide for the inspection of those records.\n\nNote: If an employer fails to comply with subsection (1), (2) or (3), the employer may bear the burden of disproving allegations in proceedings relating to a contravention of certain civil remedy provisions: see section 557C.\n\n (4) An employer must not make or keep a record for the purposes of this section that the employer knows is false or misleading.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (5) Subsection (4) does not apply if the record is not false or misleading in a material particular.","sortOrder":1084},{"sectionNumber":"536","sectionType":"section","heading":"Employer obligations in relation to pay slips","content":"536  Employer obligations in relation to pay slips\n\n (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.\n\nNote 1: This subsection is a civil remedy provision (see Part 4‑1).\n\nNote 2: Section 80 of the Paid Parental Leave Act 2010 requires an employer to give information to an employee to whom the employer pays an instalment under that Act.\n\n (2) The pay slip must:\n\n (a) if a form is prescribed by the regulations—be in that form; and\n\n (b) include any information prescribed by the regulations; and\n\n (c) not include any information prescribed by the regulations in relation to paid family and domestic violence leave; and\n\n (d) comply with any requirements prescribed by the regulations in relation to the reporting of paid family and domestic violence leave.\n\nNote 1: This subsection is a civil remedy provision (see Part 4‑1).\n\nNote 2: If an employer fails to comply with subsection (1) or (2), the employer may bear the burden of disproving allegations in proceedings relating to a contravention of certain civil remedy provisions: see section 557C.\n\n (3) An employer must not give a pay slip for the purposes of this section that the employer knows is false or misleading.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (3A) A pay slip is not false or misleading merely because it complies with regulations made for the purposes of paragraph (2)(d).\n\n (4) Subsection (3) does not apply if the pay slip is not false or misleading in a material particular.","sortOrder":1085},{"sectionNumber":"536AA","sectionType":"section","heading":"Employer obligations in relation to advertising rates of pay","content":"536AA  Employer obligations in relation to advertising rates of pay\n\nEmployers must not advertise employment with rate of pay that contravenes this Act or a fair work instrument\n\n (1) An employer must not advertise, or cause to be advertised, that the employer is offering employment at a rate of pay that would contravene either of the following, if the advertised employment occurred:\n\n (a) this Act;\n\n (b) a fair work instrument.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\nAdvertisement of piecework must include any periodic rate of pay to which pieceworker is entitled\n\n (2) If:\n\n (a) an employer advertises, or causes to be advertised, that the employer is offering employment as a pieceworker; and\n\n (b) the employee would be entitled to a periodic rate of pay, if the advertised employment occurred;\n\nthe advertisement must:\n\n (c) specify that rate of pay (or a higher rate of pay); or\n\n (d) include a statement to the effect that a periodic rate of pay is payable in relation to the employment.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\nReasonable excuse\n\n (3) Subsections (1) and (2) do not apply if the employer has a reasonable excuse.","sortOrder":1087},{"sectionNumber":"Part 3-7","sectionType":"part","heading":"Corrupting benefits","content":"Part 3‑7—Corrupting benefits","sortOrder":1088},{"sectionNumber":"536A","sectionType":"section","heading":"Guide to this Part","content":"536A  Guide to this Part\n\nThis Part is about corrupting benefits provided to or in relation to organisations.\n\nDivision 2 prohibits benefits intended to influence an officer or employee of an organisation.\n\nDivision 3 prohibits national system employers providing cash or in kind payments to employee organisations and related persons, other than certain legitimate benefits specified in the Division.","sortOrder":1090},{"sectionNumber":"536B","sectionType":"section","heading":"Meanings of employee and employer","content":"536B  Meanings of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.","sortOrder":1091},{"sectionNumber":"536C","sectionType":"section","heading":"Concurrent operation of State and Territory laws","content":"536C  Concurrent operation of State and Territory laws\n\n (1) This Part does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Part.\n\n (2) Without limiting subsection (1), this Part does not exclude or limit the concurrent operation of a law of a State or Territory to the extent that:\n\n (a) the law makes an act or omission:\n\n (i) an offence; or\n\n (ii) subject to a civil penalty; and\n\n (b) that (or any similar) act or omission is also an offence against a provision of this Part.\n\n (3) Subsection (2) applies even if the law of the State or Territory does any one or more of the following, in relation to the offence or civil penalty:\n\n (a) provides for a penalty that differs from the penalty provided for in this Part;\n\n (b) provides for fault elements that differ from the fault elements applicable to the offence created by this Part;\n\n (c) provides for defences or exceptions that differ from the defences or exceptions applicable to the offence created by this Part.","sortOrder":1092},{"sectionNumber":"536CA","sectionType":"section","heading":"Dishonesty","content":"536CA  Dishonesty\n\n (1) For the purposes of this Part, dishonest means:\n\n (a) dishonest according to the standards of ordinary people; and\n\n (b) known by the defendant to be dishonest according to the standards of ordinary people.\n\n (2) In a prosecution for an offence against this Part, the determination of dishonesty is a matter for the trier of fact.","sortOrder":1093},{"sectionNumber":"536D","sectionType":"section","heading":"Giving, receiving or soliciting a corrupting benefit","content":"536D  Giving, receiving or soliciting a corrupting benefit\n\nGiving a corrupting benefit\n\n (1) A person (the defendant) commits an offence if:\n\n (a) the defendant dishonestly:\n\n (i) provides a benefit to another person; or\n\n (ii) causes a benefit to be provided to another person; or\n\n (iii) offers to provide, or promises to provide, a benefit to another person; or\n\n (iv) causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and\n\n (b) the defendant does so with the intention of influencing a registered organisations officer or employee (who may be the other person):\n\n (i) in the performance of his or her duties or functions as such an officer or employee; or\n\n (ii) in the exercise of his or her powers or performance of his or her functions under this Act or the Registered Organisations Act; or\n\n (iii) to give an advantage of any kind in connection with the relevant affairs, which would not be legitimately due, to the defendant, a spouse (within the meaning of the Registered Organisations Act) or associated entity of the defendant, or a person who has a prescribed connection with the defendant.\n\nPenalty:\n\n (a) for an individual—imprisonment for 10 years or 5,000 penalty units, or both; or\n\n (b) for a body corporate—25,000 penalty units.\n\nReceiving or soliciting a corrupting benefit\n\n (2) A person (the defendant) commits an offence if:\n\n (a) the defendant dishonestly:\n\n (i) requests (whether or not expressly and whether or not by threats); or\n\n (ii) receives or obtains; or\n\n (iii) agrees to receive or obtain;\n\n  a benefit from a person (the provider) for the defendant or another person; and\n\n (b) the defendant does so with the intention that, or the intention that the provider believes that, the receipt, or expectation of the receipt, of the benefit will influence a registered organisations officer or employee (who may be the defendant):\n\n (i) in the performance of his or her duties or functions as such an officer or employee; or\n\n (ii) in the exercise of his or her powers or performance of his or her functions under this Act or the Registered Organisations Act; or\n\n (iii) to give an advantage of any kind in connection with the relevant affairs, which would not be legitimately due, to the provider, a spouse (within the meaning of the Registered Organisations Act) or associated entity of the provider, or a person who has a prescribed connection with the provider.\n\nPenalty:\n\n (a) for an individual—imprisonment for 10 years or 5,000 penalty units, or both; or\n\n (b) for a body corporate—25,000 penalty units.\n\nNo need for actual influence etc.\n\n (3) For the purposes of paragraphs (1)(b) and (2)(b):\n\n (a) the defendant’s intention does not need to be in relation to a particular registered organisations officer or employee; and\n\n (b) the defendant’s intention does not need to be in relation to a registered organisations officer or employee performing or exercising duties, functions or powers in a particular way, or giving a particular advantage to a particular person; and\n\n (c) the provider mentioned in subsection (2) does not need to actually believe anything; and\n\n (d) it is not necessary that any person actually be influenced.\n\nGiving an advantage which would not be legitimately due\n\n (4) In a prosecution for an offence against subsection (1) or (2), the determination of whether an advantage would not be legitimately due is a matter for the trier of fact.\n\n (5) For the purposes of subparagraphs (1)(b)(iii) and (2)(b)(iii), an advantage may be given in any way, including by doing or not doing a thing, or causing or influencing another person to do or not do a thing.\n\n (6) In working out whether an advantage would not be legitimately due to a person, disregard:\n\n (a) whether the advantage might be, or be perceived to be, customary, necessary or required in the situation; and\n\n (b) the value of the advantage; and\n\n (c) any official tolerance of the advantage.\n\nMeaning of benefit in this section\n\n (7) In this section:\n\nbenefit includes any advantage and is not limited to property.","sortOrder":1095},{"sectionNumber":"536E","sectionType":"section","heading":"Meaning of registered organisations officer or employee","content":"536E  Meaning of registered organisations officer or employee\n\n  Each of the following is a registered organisations officer or employee:\n\n (a) an officer (within the meaning of the Registered Organisations Act) of an organisation or branch of an organisation;\n\n (b) an employee of an organisation or branch of an organisation.","sortOrder":1096},{"sectionNumber":"536F","sectionType":"section","heading":"Giving a cash or in kind payment","content":"536F  Giving a cash or in kind payment\n\nGiving a cash or in kind payment\n\n (1) A person (the defendant) commits an offence if:\n\n (a) the defendant is a national system employer other than an employee organisation; and\n\n (b) the defendant:\n\n (i) provides a cash or in kind payment to another person; or\n\n (ii) causes a cash or in kind payment to be provided to another person; or\n\n (iii) offers to provide, or promises to provide, a cash or in kind payment to another person; or\n\n (iv) causes an offer of the provision of a cash or in kind payment, or a promise of the provision of a cash or in kind payment, to be made to another person; and\n\n (c) the other person is an employee organisation or a prohibited beneficiary in relation to an employee organisation; and\n\n (d) the defendant, a spouse (within the meaning of the Registered Organisations Act) or associated entity of the defendant, or a person who has a prescribed connection with the defendant, employs a person who is, or is entitled to be, a member of the organisation and whose industrial interests the organisation is entitled to represent.\n\nPenalty:\n\n (a) for an individual—imprisonment for 2 years or 500 penalty units, or both; or\n\n (b) for a body corporate—2,500 penalty units.\n\n (3) Subsection (1) does not apply to the following cash or in kind payments:\n\n (a) a payment to the organisation:\n\n (i) made by deduction from the wages of an employee of the defendant who has agreed in writing to become a member of the organisation; and\n\n (ii) made for a membership fee payable by the employee;\n\n (b) a benefit provided and used for the sole or dominant purpose of benefiting the defendant’s employees, or the defendant’s former employees in relation to their former employment;\n\n (c) a gift or contribution deductible under section 30‑15 of the Income Tax Assessment Act 1997 and used in accordance with the law;\n\n (ca) a benefit of nominal value (meaning no more than 2 penalty units) associated with travel or hospitality during consultation, negotiation or bargaining;\n\n (cb) a benefit of nominal value (meaning no more than 2 penalty units) that is:\n\n (i) a token gift, an event invitation or a similar benefit; and\n\n (ii) given in accordance with common courteous practice among employers and organisations;\n\n (d) a payment made, at no more than market value, for goods or services supplied to the defendant in the ordinary course of the organisation’s business;\n\n (e) a payment made under or in accordance with a law of the Commonwealth, or a law of a State or Territory;\n\n (f) a benefit provided in accordance with an order, judgment or award of a court or tribunal, or in settlement of a matter before the FWC or a genuine legal dispute;\n\n (g) a non‑corrupting benefit prescribed by, or provided in circumstances prescribed by, the regulations.\n\nNote: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code).\n\nMeaning of cash or in kind payment\n\n (4) A cash or in kind payment is a benefit that is:\n\n (a) in cash or any other money form; or\n\n (b) goods or services; or\n\n (c) prescribed by the regulations for the purposes of this paragraph.\n\nMeaning of prohibited beneficiary\n\n (5) A person is a prohibited beneficiary in relation to an employee organisation if the person is any of the following:\n\n (a) an entity controlled by the organisation;\n\n (b) a registered organisations officer or employee in relation to the organisation;\n\n (c) a spouse of, or entity controlled by, such an officer or employee;\n\n (d) a person or entity to whom the organisation or a prohibited beneficiary of the organisation requests or directs the defendant to provide a cash or in kind payment;\n\n (e) a person who has a prescribed connection with the organisation or a prohibited beneficiary of the organisation.\n\n (6) In subsection (5), control, entity and spouse have the same meanings as in the Registered Organisations Act.\n\nMeaning of national system employer\n\n (7) Sections 30D and 30N do not apply to extend the meaning of national system employer in this section.","sortOrder":1098},{"sectionNumber":"536G","sectionType":"section","heading":"Receiving or soliciting a cash or in kind payment","content":"536G  Receiving or soliciting a cash or in kind payment\n\n (1) A person (the defendant) commits an offence if:\n\n (a) the defendant:\n\n (i) requests (whether or not expressly and whether or not by threats); or\n\n (ii) receives or obtains; or\n\n (iii) agrees to receive or obtain;\n\n  a cash or in kind payment from a person (the provider) for the defendant or another person; and\n\n (b) the defendant is an employee organisation or an officer (within the meaning of the Registered Organisations Act) or employee of an employee organisation; and\n\n (c) the provider is a national system employer other than an employee organisation; and\n\n (d) the provider, a spouse (within the meaning of the Registered Organisations Act) or associated entity of the provider, or a person who has a prescribed connection with the provider, employs a person who is, or is entitled to be, a member of the organisation and whose industrial interests the organisation is entitled to represent.\n\nPenalty:\n\n (a) for an individual—imprisonment for 2 years or 500 penalty units, or both; or\n\n (b) for a body corporate—2,500 penalty units.\n\n (2) Subsection (1) does not apply to a cash or in kind payment mentioned in subsection 536F(3).","sortOrder":1099},{"sectionNumber":"536H","sectionType":"section","heading":"Implied freedom of political communication","content":"536H  Implied freedom of political communication\n\n (1) This Division does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.\n\n (2) Subsection (1) does not limit the application of section 15A of the Acts Interpretation Act 1901.","sortOrder":1100},{"sectionNumber":"Part 3A-1","sectionType":"part","heading":"Core provisions for this Chapter","content":"Part 3A‑1—Core provisions for this Chapter","sortOrder":1101},{"sectionNumber":"536J","sectionType":"section","heading":"Guide to this Part","content":"536J  Guide to this Part\n\nThis Part is about the coverage and operation of the provisions of this Chapter.\n\nDivision 2 sets out when minimum standards orders, minimum standards guidelines and collective agreements cover regulated workers and regulated businesses.\n\nDivision 3 specifies the rules relating to the interaction of the provisions of this Chapter with State and Territory laws.\n\nDivision 3A deals with deferral and suspension of minimum standards orders by the Minister and deferral and suspension of road transport minimum standards orders by the FWC.\n\nDivision 3B deals with consultation before varying or revoking road transport minimum standards orders after deferral.\n\nDivision 3C deals with consultation before varying or revoking employee‑like worker minimum standards orders after deferral.","sortOrder":1103},{"sectionNumber":"536JA","sectionType":"section","heading":"Meaning of employee and employer","content":"536JA  Meaning of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.","sortOrder":1104},{"sectionNumber":"536JB","sectionType":"section","heading":"Contravening a minimum standards order","content":"536JB  Contravening a minimum standards order\n\n  A person must not contravene a term of a minimum standards order.\n\nNote 1: This section is a civil remedy provision (see Part 4‑1).\n\nNote 2: A person does not contravene a term of a minimum standards order unless the order applies to the person: see subsection 536JC(1).","sortOrder":1107},{"sectionNumber":"536JC","sectionType":"section","heading":"The significance of a minimum standards order applying to a person","content":"536JC  The significance of a minimum standards order applying to a person\n\n (1) A minimum standards order does not impose obligations on a person, and a person does not contravene a term of a minimum standards order, unless the order applies to the person.\n\n (2) A minimum standards order does not give a person an entitlement unless the order applies to the person.","sortOrder":1108},{"sectionNumber":"536JD","sectionType":"section","heading":"When a minimum standards order applies to a person","content":"536JD  When a minimum standards order applies to a person\n\nWhen a minimum standards order applies to a regulated worker\n\n (1) A minimum standards order applies to a regulated worker if:\n\n (a) the minimum standards order covers the regulated worker; and\n\n (b) the minimum standards order is in operation; and\n\n (c) no other provision of this Act provides, or has the effect, that the minimum standards order does not apply to the regulated worker.\n\nWhen an employee‑like minimum standards order applies to a digital labour platform operator\n\n (2) An employee‑like minimum standards order applies to a digital labour platform operator if:\n\n (a) the employee‑like minimum standards order covers the digital labour platform operator; and\n\n (b) the employee‑like minimum standards order covers employee‑like workers; and\n\n (c) the digital labour platform operator:\n\n (i) directly or indirectly engages, under services contracts, employee‑like workers covered by the employee‑like minimum standards order who perform work through or by means of a digital labour platform operated by the digital labour platform operator; or\n\n (ii) arranges or facilitates services contracts through or by means of a digital labour platform operated by the digital labour platform operator, under which work is performed by employee‑like workers covered by the employee‑like minimum standards order; and\n\n (d) the employee‑like minimum standards order is in operation; and\n\n (e) no other provision of this Act provides, or has the effect, that the employee‑like minimum standards order does not apply to the digital labour platform operator.\n\nWhen a road transport minimum standards order applies to a road transport business\n\n (3) A road transport minimum standards order applies to a road transport business if:\n\n (a) the road transport minimum standards order covers the road transport business; and\n\n (b) the road transport minimum standards order covers regulated road transport contractors; and\n\n (c) the road transport business receives the services under a services contract of a regulated road transport contractor covered by the road transport minimum standards order; and\n\n (d) the road transport minimum standards order is in operation; and\n\n (e) no other provision of this Act provides, or has the effect, that the road transport minimum standards order does not apply to the road transport business.\n\nMinimum standards order applies in relation to services contracts\n\n (4) A reference in this Act to a minimum standards order applying to a regulated worker is a reference to the order applying to the regulated worker in relation to a services contract.","sortOrder":1109},{"sectionNumber":"536JE","sectionType":"section","heading":"When a minimum standards order covers a regulated worker or a regulated business","content":"536JE  When a minimum standards order covers a regulated worker or a regulated business\n\n (1) A minimum standards order covers a regulated worker or a regulated business if the order is expressed to cover the regulated worker or the regulated business.\n\nEffect of other provisions of this Act, FWC orders or court orders on coverage\n\n (2) A minimum standards order also covers a regulated worker or a regulated business if any of the following provides, or has the effect, that the order covers the regulated worker or the regulated business:\n\n (a) a provision of this Act;\n\n (b) an FWC order made under a provision of this Act;\n\n (c) an order of a court.\n\n (3) Despite subsections (1) and (2), a minimum standards order does not cover a regulated worker or a regulated business if any of the following provides, or has the effect, that the order does not cover the regulated worker or the regulated business:\n\n (a) a provision of this Act;\n\n (b) an FWC order made under a provision of this Act;\n\n (c) an order of a court.\n\nMinimum standards orders that have ceased to operate\n\n (4) Despite subsections (1) and (2), a minimum standards order that has ceased to operate does not cover a regulated worker or a regulated business.","sortOrder":1110},{"sectionNumber":"536JF","sectionType":"section","heading":"When a minimum standards order is in operation","content":"536JF  When a minimum standards order is in operation\n\nWhen a minimum standards order comes into operation\n\n (1) A minimum standards order comes into operation on the day specified in the order.\n\n (2) The specified day must not be earlier than the day on which the minimum standards order is made.\n\n (2A) The specified day for an employee‑like worker minimum standards order must be a day that the FWC is satisfied will provide sufficient time for the FWC to undertake a reasonable period of consultation after the relevant notice of intent for the order was published, having regard to the unique nature of digital platform work.\n\n (3) The specified day for a road transport minimum standards order must not be earlier than 12 months after the relevant notice of intent for the order was published.\n\n (3A) Despite subsection (3), the specified day may be a day not earlier than 6 months after the relevant notice of intent for the order was published, if the FWC is satisfied that there are circumstances that urgently require specifying such a day.\n\nWhen a determination varying or revoking a minimum standards order comes into operation\n\n (4) A determination varying or revoking a minimum standards order comes into operation on the day specified in the determination.\n\n (5) The specified day must not be earlier than the day on which the determination is made.\n\nMinimum standards orders operate until revoked\n\n (6) A minimum standards order continues in operation until it is revoked.\n\n (6A) The relevant notice of intent for an employee‑like worker minimum standards order is the notice of intent published under subsection 536KAA(1) at the same time as the draft of the employee‑like worker minimum standards order is made.\n\n (7) The relevant notice of intent for a road transport minimum standards order is the notice of intent published under subsection 536KB(1) at the same time as the draft of the road transport minimum standards order is made.","sortOrder":1111},{"sectionNumber":"536JG","sectionType":"section","heading":"When minimum standards guidelines cover a regulated worker or a regulated business","content":"536JG  When minimum standards guidelines cover a regulated worker or a regulated business\n\n (1) Minimum standards guidelines cover a regulated worker or a regulated business if the guidelines are expressed to cover the regulated worker or the regulated business.\n\nEffect of other provisions of this Act, FWC orders or court orders on coverage\n\n (2) Minimum standards guidelines also cover a regulated worker or a regulated business if any of the following provides, or has the effect, that the guidelines cover the regulated worker or the regulated business:\n\n (a) a provision of this Act;\n\n (b) an FWC order made under a provision of this Act;\n\n (c) an order of a court.\n\n (3) Despite subsections (1) and (2), minimum standards guidelines do not cover a regulated worker or a regulated business if any of the following provides, or has the effect, that the guidelines do not cover the regulated worker or the regulated business:\n\n (a) a provision of this Act;\n\n (b) an FWC order made under a provision of this Act;\n\n (c) an order of a court.\n\nMinimum standards guidelines that have ceased to operate\n\n (4) Despite subsections (1) and (2), minimum standards guidelines that have ceased to operate do not cover a regulated worker or a regulated business.","sortOrder":1112},{"sectionNumber":"536JH","sectionType":"section","heading":"When minimum standards guidelines are in operation","content":"536JH  When minimum standards guidelines are in operation\n\nWhen minimum standards guidelines come into operation\n\n (1) Minimum standards guidelines come into operation on the day specified in the guidelines.\n\n (2) The specified day must not be earlier than the day on which the minimum standards guidelines are made.\n\nWhen a determination varying or revoking minimum standards guidelines comes into operation\n\n (3) A determination varying or revoking minimum standards guidelines comes into operation on the day specified in the determination.\n\n (4) The specified day must not be earlier than the day on which the determination is made.\n\nMinimum standards guidelines operate until revoked\n\n (5) Minimum standards guidelines continue in operation until they are revoked.","sortOrder":1113},{"sectionNumber":"536JJ","sectionType":"section","heading":"Contravening a collective agreement","content":"536JJ  Contravening a collective agreement\n\n  A person must not contravene a term of a collective agreement.\n\nNote 1: This section is a civil remedy provision (see Part 4‑1).\n\nNote 2: A person does not contravene a term of a collective agreement unless the agreement applies to the person: see section 536JK.","sortOrder":1115},{"sectionNumber":"536JK","sectionType":"section","heading":"The significance of a collective agreement applying to a person","content":"536JK  The significance of a collective agreement applying to a person\n\n (1) A collective agreement does not impose obligations on a person, and a person does not contravene a term of a collective agreement, unless the agreement applies to the person.\n\n (2) A collective agreement does not give a person an entitlement unless the agreement applies to the person.","sortOrder":1116},{"sectionNumber":"536JL","sectionType":"section","heading":"When a collective agreement applies to a person","content":"536JL  When a collective agreement applies to a person\n\nWhen a collective agreement applies to a regulated worker\n\n (1) A collective agreement applies to a regulated worker if:\n\n (a) the collective agreement covers the regulated worker; and\n\n (b) the collective agreement is in operation; and\n\n (c) no other provision of this Act provides, or has the effect, that the collective agreement does not apply to the regulated worker.\n\nWhen a collective agreement applies to a regulated business\n\n (2) A collective agreement applies to a regulated business if:\n\n (a) the collective agreement covers the regulated business; and\n\n (b) the collective agreement covers regulated workers; and\n\n (c) if the regulated business is a digital labour platform operator:\n\n (i) the digital labour platform operator directly or indirectly engages, under services contracts, employee‑like workers covered by the collective agreement who perform work through or by means of a digital labour platform operated by the digital platform operator; or\n\n (ii) the digital labour platform operator arranges or facilitates services contracts, through or by means of a digital labour platform operated by the digital platform operator, under which work is performed by employee‑like workers covered by the collective agreement; and\n\n (d) if the regulated business is a road transport business—the road transport business receives services under services contracts under which the regulated road transport contractors perform work; and\n\n (e) no other provision of this Act provides, or has the effect, that the collective agreement does not apply to the regulated business.\n\nCollective agreement applies in relation to services contracts\n\n (3) A reference in this Act to a collective agreement applying to a regulated worker is a reference to the collective agreement applying to the regulated worker in relation to a services contract.","sortOrder":1117},{"sectionNumber":"536JM","sectionType":"section","heading":"When a collective agreement covers a regulated worker, a regulated business or an organisation","content":"536JM  When a collective agreement covers a regulated worker, a regulated business or an organisation\n\n (1) A collective agreement covers a regulated worker, a regulated business or an organisation if the agreement is expressed to cover the regulated worker, the regulated business or the organisation.\n\nEffect of other provisions of this Act, FWC orders or court orders on coverage\n\n (2) A collective agreement also covers a regulated worker, a regulated business or an organisation if any of the following provides, or has the effect, that the agreement covers the regulated worker, the regulated business or the organisation:\n\n (a) a provision of this Act;\n\n (b) an FWC order made under a provision of this Act;\n\n (c) an order of a court.\n\n (3) Despite subsections (1) and (2), a collective agreement does not cover a regulated worker, a regulated business or an organisation if any of the following provides, or has the effect, that the agreement does not cover the regulated worker, the regulated business or the organisation:\n\n (a) a provision of this Act;\n\n (b) an FWC order made under a provision of this Act;\n\n (c) an order of a court.\n\nCollective agreements that have ceased to operate\n\n (4) Despite subsections (1) and (2), a collective agreement that has ceased to operate does not cover regulated worker, a regulated business or an organisation.","sortOrder":1118},{"sectionNumber":"536JN","sectionType":"section","heading":"When a collective agreement is in operation","content":"536JN  When a collective agreement is in operation\n\nWhen a collective agreement comes into operation\n\n (1) A collective agreement comes into operation:\n\n (a) on the day that is it is registered under subsection 536MS(1); or\n\n (b) if a later day is specified in the collective agreement—on that later day.\n\nWhen a collective agreement is terminated\n\n (2) A collective agreement is terminated:\n\n (a) at the end of the period of operation specified in the collective agreement as required by paragraph 536MS(3)(a); or\n\n (b) if an earlier day is specified in a termination notice in relation to the collective agreement that is registered under subsection 536MW(1)—on that day.\n\nCollective agreements operate until terminated\n\n (3) A collective agreement continues in operation until it is terminated.\n\n Interaction with minimum standards orders, etc.\n\n (4) A term of a collective agreement has no effect in relation to a regulated worker in respect of a matter to the extent that the term is detrimental to the regulated worker in any respect, when compared to a minimum standards order or a law of a State or Territory that applies to the regulated worker in relation to that matter.\n\nReferences to State and Territory laws\n\n (5) Without limiting any other provision of this Act, a reference in this section to a law of a State or Territory:\n\n (a) includes a reference to a regulation, rule or other instrument (however described) made pursuant to, or for the purposes of, a law of a State or Territory; and\n\n (b) is a reference to a law of a State or Territory as in force from time to time.","sortOrder":1119},{"sectionNumber":"536JP","sectionType":"section","heading":"Exclusion of certain State and Territory laws","content":"536JP  Exclusion of certain State and Territory laws\n\n (1) For the purposes of this Chapter, the rights, entitlements, obligations and liabilities of a regulated worker, a regulated business or a party to a services contract are not affected by a law of a State or Territory to the extent that the law would otherwise do one or more of the following:\n\n (a) take or deem the regulated business, regulated worker or party to be an employer or employee, or otherwise treat the regulated business, regulated worker or party as if the regulated business, regulated worker or party, as the case requires, were an employer or employee, for the purposes of a law that relates to one or more workplace relations matters (or provide a means for the regulated business, regulated worker or party to be so taken, deemed or treated);\n\n (b) confer or impose rights, entitlements, obligations or liabilities on the regulated business, regulated worker or party in relation to matters that, in an employment relationship, would be workplace relations matters (or provide a means for rights, entitlements, obligations or liabilities in relation to such matters to be conferred or imposed on the regulated business, regulated worker or party);\n\n (c) without limiting paragraphs (a) and (b)—expressly provide for a court, commission or tribunal to do any of the following in relation to a services contract on an unfairness ground:\n\n (i) make an order or determination (however described) setting aside, or declaring to be void or otherwise unenforceable, all or part of the services contract;\n\n (ii) make an order or determination (however described) amending or varying all or part of the services contract.\n\nNote 1: For the meaning of workplace relations matter, see section 536JQ.\n\nNote 2: For the meaning of unfairness ground, see section 536JR.\n\n (2) The rights, entitlements, obligations and liabilities of a regulated business, a regulated worker or a party to a services contract are not affected by a law of a State or Territory that is specified in regulations made for the purposes of this subsection, to the extent that the law is so specified.\n\n (3) Subsection (1) does not apply in relation to:\n\n (a) a law of a State or Territory, to the extent that the law deals with matters relating to outworkers (including entry of a representative of a trade union to premises for a purpose connected with outworkers), other than matters mentioned in paragraph (1)(c); or\n\n (b) any of the following laws:\n\n (i) Chapter 6 of the Industrial Relations Act 1996 (NSW) (and any other provision of that Act to the extent that it relates to, or has effect for the purposes of, a provision of Chapter 6);\n\n (ii) the Owner Drivers and Forestry Contractors Act 2005 (Vic.); or\n\n (c) a law of a State or Territory that is specified in regulations made for the purposes of this paragraph, to the extent that the law is so specified.\n\nNote: For interaction of these laws with minimum standards orders, see section 536JS.\n\n (4) To avoid doubt, subsection (2) has effect even if a law specified in regulations made under that subsection:\n\n (a) is a law referred to in paragraph (3)(a) or (3)(b); or\n\n (b) deals with matters that, because of subsection 536JQ(2), are not workplace relations matters.\n\n (5) Without limiting any other provision of this Act, a reference in this section to a law of a State or Territory:\n\n (a) includes a reference to a regulation, rule or other instrument (however described) made pursuant to, or for the purposes of, a law of a State or Territory; and\n\n (b) is a reference to a law of a State or Territory as in force from time to time.","sortOrder":1121},{"sectionNumber":"536JQ","sectionType":"section","heading":"What are workplace relations matters","content":"536JQ  What are workplace relations matters\n\n (1) Subject to subsection (2), for the purposes of this Chapter, workplace relations matter means any of the following matters:\n\n (a) remuneration, allowances or other amounts payable to employees;\n\n (b) leave entitlements of employees;\n\n (c) hours of work of employees;\n\n (d) enforcing or terminating contracts of employment;\n\n (e) making, enforcing or terminating agreements (not being contracts of employment) determining terms and conditions of employment;\n\n (f) disputes between employees and employers, or the resolution of such disputes;\n\n (g) industrial action by employees or employers;\n\n (h) any other matter that is substantially the same as a matter that relates to employees or employers and that is dealt with by or under:\n\n (i) this Act; or\n\n (ii) the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; or\n\n (iii) a State or Territory industrial law;\n\n  unless the matter is specified in regulations made for the purposes of this paragraph;\n\n (i) any other matter specified in regulations made for the purposes of this paragraph.\n\n (2) For the purposes of subsection (1), none of the following is a workplace relations matter:\n\n (a) prevention of discrimination or promotion of equal employment opportunity, but only if the State or Territory law concerned is neither a State or Territory industrial law nor contained in such a law;\n\n (b) superannuation;\n\n (c) workers’ compensation;\n\n (d) occupational health and safety;\n\n (e) child labour;\n\n (f) the observance of a public holiday, except the rate of payment of an employee for the public holiday;\n\n (g) deductions from wages or salaries;\n\n (h) industrial action affecting essential services;\n\n (i) attendance for service on a jury;\n\n (j) professional or trade regulation;\n\n (k) consumer protection;\n\n (l) taxation;\n\n (m) any other matter specified in regulations made for the purposes of this paragraph.","sortOrder":1122},{"sectionNumber":"536JR","sectionType":"section","heading":"What is an unfairness ground","content":"536JR  What is an unfairness ground\n\n (1) Subject to subsection (2), for the purposes of this Chapter, each of the following grounds is an unfairness ground in relation to a services contract:\n\n (a) the services contract is unfair;\n\n (b) the services contract is harsh or unreasonable;\n\n (c) the services contract is unjust;\n\n (d) the services contract is against the public interest;\n\n (e) the services contract is designed to, or does, avoid the provisions of:\n\n (i) this Act; or\n\n (ii) the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; or\n\n (iii) a State or Territory industrial law; or\n\n (iv) an award, agreement or other instrument made under a law referred to in subparagraph (i), (ii) or (iii);\n\n (f) the services contract provides for remuneration at a rate that is, or is likely to be, less than the rate of remuneration for an employee performing similar work;\n\n (g) any other ground that is substantially the same as a ground specified in any of paragraphs (a) to (f);\n\n (h) any other ground specified in regulations made for the purposes of this paragraph.\n\n (2) A ground specified in subsection (1) is not an unfairness ground in relation to a services contract to the extent that the ground relates to matters that, because of subsection 536JQ(2), are not workplace relations matters.","sortOrder":1123},{"sectionNumber":"536JS","sectionType":"section","heading":"Interaction of minimum standards orders with State and Territory laws","content":"536JS  Interaction of minimum standards orders with State and Territory laws\n\n (1) A minimum standards order prevails over a law of a State or Territory, to the extent of any inconsistency.\n\n (1A) It is the intent of the Parliament that, for an employee‑like worker or digital labour platform operator to whom an employee‑like worker minimum standards order applies in relation to a services contract, this Chapter applies to the exclusion of the laws described in subsection 536JP(3) to the extent that those laws would otherwise affect the rights, entitlements, obligations and liabilities of the employee‑like worker or digital labour platform operator in relation to the services contract.\n\n (2) Despite subsections (1) and (1A), a term of a minimum standards order applies subject to the following:\n\n (a) a law of a State or Territory specified in regulations made for the purposes of this paragraph, to the extent that the law is so specified;\n\n (b) a law of a State or Territory that provides for rights or remedies by reference to a law described in paragraph (a).\n\n (3) Without limiting any other provision of this Act, a reference in this section to a law of a State or Territory:\n\n (a) includes a reference to a regulation, rule or other instrument (however described) made pursuant to, or for the purposes of, a law of a State or Territory; and\n\n (b) is a reference to a law of a State or Territory as in force from time to time.","sortOrder":1124},{"sectionNumber":"536JT","sectionType":"section","heading":"Authorisation of conduct for the purposes of the Competition and Consumer Act 2010","content":"536JT  Authorisation of conduct for the purposes of the Competition and Consumer Act 2010\n\nConduct in accordance with order or collective agreement\n\n (1) For the purposes of subsection 51(1) of the Competition and Consumer Act 2010, and the Competition Code within the meaning of that Act, anything done in accordance with a minimum standards order, minimum standards guidelines or a collective agreement by a person or entity covered by the order, guidelines or agreement is specified in and specifically authorised by this Act.\n\nMaking a collective agreement\n\n (2) For the purposes of subsection 51(1) of the Competition and Consumer Act 2010, and the Competition Code within the meaning of that Act, making a collective agreement by a person or entity is specified in and specifically authorised by this Act.\n\nConduct in preparation for or incidental to making or applying for registration of a collective agreement\n\n (3) For the purposes of subsection 51(1) of the Competition and Consumer Act 2010, and the Competition Code within the meaning of that Act, anything done by a person or entity in preparation for, or incidental to, making, or applying for registration of, a collective agreement is specified in and specifically authorised by this Act.\n\nCertain conduct not protected\n\n (4) Despite subsections (1), (2) and (3), conduct referred to in those subsections is not specified in or specifically authorised by this Act if the conduct is:\n\n (a) making a contract or arrangement, or arriving at an understanding, that is or contains a cartel provision that satisfies the purpose condition in either paragraph 45AD(3)(a) or 45AD(3)(b) of the Competition and Consumer Act 2010 or the Competition Code within the meaning of that Act; or\n\n (b) boycott conduct within the meaning of subsection 87AA(2) of the Competition and Consumer Act 2010 or the Competition Code within the meaning of that Act; or\n\n (c) done in accordance with a term of a collective agreement, to the extent that the term has no effect because of subsection 536MX(1) or (2) of this Act (about matters in respect of which a collective agreement may not be made, or that are primarily of a commercial nature).","sortOrder":1125},{"sectionNumber":"Part 3A-2","sectionType":"part","heading":"Minimum standards for regulated workers","content":"Part 3A‑2—Minimum standards for regulated workers","sortOrder":1126},{"sectionNumber":"536JV","sectionType":"section","heading":"Guide to this Part","content":"536JV  Guide to this Part\n\nThis Part is about setting minimum standards for certain regulated workers, specifically, employee‑like workers and regulated road transport contractors.\n\nDivision 2 of this Part sets out the minimum standards objective to which the FWC must have regard when performing a function or exercising a power under this Part.\n\nDivision 3 empowers the FWC to make minimum standards orders for regulated workers, which set minimum standards to which they are entitled in relation to certain matters including payment terms and working time.\n\nDivision 4 empowers the FWC to make minimum standards guidelines for regulated workers.\n\nDivision 5 provides for regulations to be made in relation to internal review of certain decisions.","sortOrder":1128},{"sectionNumber":"536JW","sectionType":"section","heading":"Meaning of employee and employer","content":"536JW  Meaning of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.","sortOrder":1129},{"sectionNumber":"536JX","sectionType":"section","heading":"The minimum standards objective","content":"536JX  The minimum standards objective\n\n  In performing a function or exercising a power under this Part, the FWC must take into account the need for an appropriate safety net of minimum standards for regulated workers, having regard to the following:\n\n (a) the need for standards that:\n\n (i) are clear and simple; and\n\n (ii) are fair and relevant; and\n\n (iii) recognise the perspectives of regulated workers, including their skills, the value of the work they perform and their preferences about their working arrangements; and\n\n (iv) do not change the form of the engagement of regulated workers from independent contractor to employee; and\n\n (v) do not give preference to one business model or working arrangement over another; and\n\n (vi) are tailored to the relevant industry, occupation or sector and the relevant business models; and\n\n (vii) are tailored to the type of work, working arrangements and regulated worker preferences; and\n\n (viii) reflect the differences in the form of engagement of regulated workers as independent contractors to the form of engagement of employees; and\n\n (ix) have regard to the ability of regulated workers to perform work under services contracts for multiple businesses, and the fact that the work may be performed simultaneously;\n\n (b) in addition to the other matters provided for in this subsection, the need for standards that deal with minimum rates of pay that:\n\n (i) take into account costs necessarily incurred by regulated workers directly arising from the performance of a services contract; and\n\n (ii) take into account safety net minimum standards that apply to employees performing comparable work; and\n\n (iii) do not change the form of the engagement of regulated workers;\n\n (c) the need to avoid unreasonable adverse impacts upon the following:\n\n (i) sustainable competition among industry participants;\n\n (ii) business costs, regulatory burden, sustainability, innovation, productivity or viability;\n\n (iii) administrative and compliance costs for industry participants;\n\n (iv) the national economy;\n\n (v) persons or bodies that use or rely on the work performed by regulated workers, or the services received under services contracts for the performance of that work;\n\n (d) the need to consider other orders or instruments (however described) made under this Chapter and to avoid unnecessary overlap of such orders or instruments.\n\nThis is the minimum standards objective.","sortOrder":1131},{"sectionNumber":"536JY","sectionType":"section","heading":"Minimum standards orders","content":"536JY  Minimum standards orders\n\n (1) The FWC may make an order (a minimum standards order) that sets standards for:\n\n (a) employee‑like workers; or\n\n (b) regulated road transport contractors.\n\n (2) A minimum standards order for employee‑like workers is an employee‑like worker minimum standards order.\n\n (3) A minimum standards order for regulated road transport contractors is a road transport minimum standards order.\n\nNote: The FWC must be constituted by an Expert Panel for the purposes of making a road transport minimum standards order (see subsection 617(10B)).\n\n (4) The FWC may make a minimum standards order under this section:\n\n (a) on its own initiative; or\n\n (b) on application under subsection 536JZ(1).","sortOrder":1134},{"sectionNumber":"536JZ","sectionType":"section","heading":"Applications for minimum standards orders","content":"536JZ  Applications for minimum standards orders\n\n (1) Any of the following may apply to the FWC for the making of a minimum standards order:\n\n (a) an organisation that is entitled to represent the industrial interests of one or more regulated workers who would be covered by the proposed minimum standards order;\n\n (b) an organisation that is entitled to represent the industrial interests of one or more of the regulated businesses that would be covered by the proposed minimum standards order;\n\n (c) a regulated business that is included in a class of regulated businesses that would be covered by the proposed minimum standards order;\n\n (d) the Minister.\n\nNote: An Expert Panel can hear applications under this Act for the road transport industry together: see subsection 582(4).\n\nMatters to be specified in an application\n\n (2) An application under subsection (1) must specify whether it is an application for an employee‑like worker minimum standards order or a road transport minimum standards order.\n\n (3) An application for the making of a minimum standards order must specify the class of regulated workers to be covered by the order.\n\n (3A) An application for the making of a minimum standards order must specify the class of regulated businesses to be covered by the order.\n\n (4) Without limiting the way in which a class may be described for the purposes of subsection (3) or (3A), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.","sortOrder":1135},{"sectionNumber":"536K","sectionType":"section","heading":"Particular matters FWC must take into account in making a decision on an employee-like worker minimum standards order","content":"536K  Particular matters FWC must take into account in making a decision on an employee‑like worker minimum standards order\n\n (1) This section applies to a decision to make or vary, or not to make or vary, an employee‑like worker minimum standards order, other than a decision of the FWC to refuse to consider an application to make or vary such an order.\n\n (2) Before making a decision to which this section applies, the FWC must consider whether, on the whole, the persons included (or purportedly included) in the class of employee‑like workers to be covered by the order, or the order as proposed to be varied, are employee‑like workers.\n\n (3) If the FWC is not satisfied that, on the whole, the persons included (or purportedly included) in the class of employee‑like workers to be covered by the minimum standards order, or the order as proposed to be varied, are employee‑like workers, the FWC must decide to refuse to consider the application, or not to make or vary the order, as the case requires.\n\n (4) The FWC:\n\n (a) must not make or vary the employee‑like worker minimum standards order unless there has been genuine engagement with the parties to be covered; and\n\n (b) must not make or vary the employee‑like worker minimum standards order unless the consultation process set out in Subdivision BA has been followed; and\n\n (c) must have regard to choice and flexibility in working arrangements in making or varying the employee‑like worker minimum standards order.","sortOrder":1137},{"sectionNumber":"536KAA","sectionType":"section","heading":"FWC to prepare and publish a draft of an employee-like worker minimum standards order","content":"536KAA  FWC to prepare and publish a draft of an employee‑like worker minimum standards order\n\n (1) Before making an employee‑like worker minimum standards order, the FWC must:\n\n (a) publish a notice (a notice of intent) stating that the FWC proposes to make an employee‑like worker minimum standards order; and\n\n (b) publish a draft of the proposed employee‑like worker minimum standards order.\n\n (2) The FWC must publish the notice of intent and the draft of the employee‑like worker minimum standards order on the FWC’s website and by any other means the FWC considers appropriate.","sortOrder":1139},{"sectionNumber":"536KAB","sectionType":"section","heading":"Affected entities to have a reasonable opportunity to make submissions on a draft employee-like worker minimum standards order","content":"536KAB  Affected entities to have a reasonable opportunity to make submissions on a draft employee‑like worker minimum standards order\n\n (1) The FWC must ensure that affected entities have a reasonable opportunity to make written submissions to the FWC for its consideration in relation to the draft of an employee‑like worker minimum standards order published under subsection 536KAA(1)(b), having regard to the unique nature of digital platform work.\n\n (2) The FWC must publish submissions made to the FWC.\n\n (3) However, if a submission made by an entity includes information that is claimed by the entity to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive, the FWC:\n\n (a) may decide not to publish the information; and\n\n (b) may instead publish:\n\n (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\n\n (ii) if the FWC 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.\n\n (4) The publishing of material under subsections (2) and (3) must be on the FWC’s website and by any other means the FWC considers appropriate.\n\n (5) 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).\n\n (6) For the purposes of subsection (1), an affected entity, in relation to a draft employee‑like worker minimum standards order published under paragraph 536KAA(1)(b), is:\n\n (a)  a person or body likely to be affected by the making of an employee‑like worker minimum standards order based on the draft; or\n\n (b) a person or body prescribed by the regulations, or belonging to a class of persons or bodies prescribed by the regulations.","sortOrder":1140},{"sectionNumber":"536KAC","sectionType":"section","heading":"Hearings in relation to draft order","content":"536KAC  Hearings in relation to draft order\n\n  The FWC may, but is not required to, hold a hearing in relation to a draft employee‑like worker minimum standards order.","sortOrder":1141},{"sectionNumber":"536KAD","sectionType":"section","heading":"Finalising draft order","content":"536KAD  Finalising draft order\n\n (1) The FWC may make any changes it thinks appropriate to a draft employee‑like worker minimum standards order.\n\n (2) If changes made under subsection (1) are significant, the FWC must:\n\n (a) decide not to make the employee‑like worker minimum standards order based on the draft; and\n\n (b) publish a subsequent notice of intent under subsection 536KAA(1) in relation to the revised draft employee‑like worker minimum standards order, and publish the revised draft; and\n\n (c) follow the process set out in section 536KAB in relation to the revised draft employee‑like worker minimum standards order, with the period of consultation under that section to be a period that the FWC is satisfied is a reasonable period of consultation, having regard to the unique nature of digital platform work.","sortOrder":1142},{"sectionNumber":"536KAE","sectionType":"section","heading":"Decision not to make order based on the draft","content":"536KAE  Decision not to make order based on the draft\n\n  The FWC may decide that no employee‑like worker minimum standards order is to be made based on the draft. If the FWC does so, the FWC must publish notice of the decision on its website and by any other means the FWC considers appropriate.","sortOrder":1143},{"sectionNumber":"536KA","sectionType":"section","heading":"Particular matters FWC must take into account in making a decision on a road transport minimum standards order","content":"536KA  Particular matters FWC must take into account in making a decision on a road transport minimum standards order\n\n (1) This section applies if:\n\n (a) an application is made for a road transport minimum standards order under subsection 536JZ(1) or for a variation of a road transport minimum standards order under section 536KP; or\n\n (b) the FWC is considering making or varying a minimum standards order on its own initiative.\n\n (2) The FWC:\n\n (a) must not make or vary the road transport minimum standards order unless there has been genuine engagement with the parties to be covered; and\n\n (b) must not make or vary the road transport minimum standards order unless the Road Transport Advisory Group has been consulted; and\n\n (c) must not make or vary the road transport minimum standards order unless the consultation process set out in Subdivision D has been followed; and\n\n (d) must have regard to the commercial realities of the road transport industry; and\n\n (e) must be satisfied that making or varying the road transport minimum standards order will not unduly affect the viability and competitiveness of owner drivers or other similar persons.","sortOrder":1145},{"sectionNumber":"536KB","sectionType":"section","heading":"FWC to prepare and publish a draft of a road transport minimum standards order","content":"536KB  FWC to prepare and publish a draft of a road transport minimum standards order\n\n (1) Before making a road transport minimum standards order, the FWC must:\n\n (a) publish a notice (a notice of intent) stating that the FWC proposes to make a road transport minimum standards order; and\n\n (b) publish a draft of the proposed road transport minimum standards order.\n\n (2) The FWC must publish the notice of intent and the draft of the road transport minimum standards order on the FWC’s website and by any other means the FWC considers appropriate.","sortOrder":1147},{"sectionNumber":"536KC","sectionType":"section","heading":"Affected persons and bodies to have a reasonable opportunity to make and comment on a draft road transport minimum standards order","content":"536KC  Affected persons and bodies to have a reasonable opportunity to make and comment on a draft road transport minimum standards order\n\n (1) The FWC must ensure that affected entities have a reasonable opportunity to make written submissions to the FWC for its consideration in relation to the draft of a road transport minimum standards order published under subsection 536KB(2).\n\n (2) The FWC must publish submissions made to the FWC.\n\n (3) However, if a submission made by an entity includes information that is claimed by the entity to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive, the FWC:\n\n (a) may decide not to publish the information; and\n\n (b) may instead publish:\n\n (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\n\n (ii) if the FWC 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.\n\n (4) The publishing of material under subsections (2) and (3) must be on the FWC’s website and by any other means the FWC considers appropriate.\n\n (5) 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).\n\n (6) For the purposes of subsection (1), an affected entity, in relation to a draft road transport minimum standards order published under paragraph 536KB(1)(b) is:\n\n (a) a person or body likely to be affected by the making of a road transport minimum standards order based on the draft; or\n\n (b) a person or body prescribed by the regulations, or belonging to a class of persons or bodies prescribed by the regulations.","sortOrder":1148},{"sectionNumber":"536KD","sectionType":"section","heading":"Hearings in relation to draft order","content":"536KD  Hearings in relation to draft order\n\n  The FWC may, but is not required to, hold a hearing in relation to a draft road transport minimum standards order.","sortOrder":1149},{"sectionNumber":"536KE","sectionType":"section","heading":"Finalising draft order","content":"536KE  Finalising draft order\n\n (1) The FWC may make any changes it thinks appropriate to a draft road transport minimum standards order.\n\n (2) If changes made under subsection (1) are significant, the FWC must:\n\n (a) decide not to make the road transport minimum standards order based on the draft; and\n\n (b) publish a subsequent notice of intent under subsection 536KB(1) in relation to the revised draft road transport minimum standards order, and publish the revised draft; and\n\n (c) follow the process set out in section 536KC in relation to the revised draft road transport minimum standards order (with the period of consultation under that section to be no shorter than 12 months starting when the subsequent notice of intent and the revised draft required by paragraph (b) of this subsection were published).","sortOrder":1150},{"sectionNumber":"536KF","sectionType":"section","heading":"Decision not to make order based on the draft","content":"536KF  Decision not to make order based on the draft\n\n  The FWC may decide that no road transport minimum standards order is to be made based on the draft. If the FWC does so, the FWC must publish notice of the decision on its website and by any other means the FWC considers appropriate.","sortOrder":1151},{"sectionNumber":"536KG","sectionType":"section","heading":"Decisions on applications for minimum standards orders","content":"536KG  Decisions on applications for minimum standards orders\n\n (1) If an application for a minimum standards order is made to the FWC under subsection 536JZ(1), the FWC may decide to:\n\n (a) refuse to consider the application; or\n\n (b) make a minimum standards order; or\n\n (c) not make a minimum standards order; or\n\n (d) if the FWC considers it appropriate to do so, instead make minimum standards guidelines under section 536KR, as if the application had been an application under subsection 536KS(1) for minimum standards guidelines in relation to the regulated workers covered by the application under subsection 536JZ(1).\n\n (2) Without limiting subsection (1), the FWC may refuse to consider the application if it is not consistent with a direction of the President under section 582(4D) (prioritisation).","sortOrder":1153},{"sectionNumber":"536KH","sectionType":"section","heading":"Terms that must be included in an employee-like worker minimum standards order","content":"536KH  Terms that must be included in an employee‑like worker minimum standards order\n\nTerms relating to coverage\n\n (1) An employee‑like worker minimum standards order must include terms setting out in accordance with this section:\n\n (a) the digital platform work covered by the employee‑like worker minimum standards order; and\n\n (b) the digital labour platform operators covered by the employee‑like worker minimum standards order; and\n\n (c) the employee‑like workers covered by the employee‑like worker minimum standards order.\n\n (2) An employee‑like worker minimum standards order must be expressed to cover:\n\n (a) specified digital labour platform operators; and\n\n (b) specified employee‑like workers who:\n\n (i) are engaged through or by means of a digital labour platform operated by a digital platform operator covered by the employee‑like worker minimum standards order; or\n\n (ii) perform work under a contract arranged or facilitated through or by means of a digital labour platform operated by a digital platform operator covered by the employee‑like worker minimum standards order.\n\n (3) An employee‑like worker minimum standards order must specify the digital labour platform operators that are primarily responsible for providing the entitlements of specified employee‑like workers.\n\n (4) For the purposes of subsections (1), (2) and (3):\n\n (a) digital labour platform operators must be specified by inclusion in a specified class or specified classes; and\n\n (b) employee‑like workers must be specified by inclusion in a specified class or specified classes.\n\n (5) Without limiting the way in which a class may be described for the purposes of subsection (4), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.","sortOrder":1154},{"sectionNumber":"536KJ","sectionType":"section","heading":"Terms that must be included in a road transport minimum standards order","content":"536KJ  Terms that must be included in a road transport minimum standards order\n\nTerms relating to coverage\n\n (1) A road transport minimum standards order must include terms setting out in accordance with this section:\n\n (a) the work in the road transport industry covered by the road transport minimum standards order; and\n\n (b) the regulated road transport contractors covered by the road transport minimum standards order; and\n\n (c) the road transport businesses covered by the road transport minimum standards order.\n\n (2) A road transport minimum standards order must be expressed to cover:\n\n (a) specified road transport businesses; and\n\n (b) specified regulated road transport contractors.\n\n (3) For the purposes of subsection (2):\n\n (a) road transport businesses must be specified by inclusion in a specified class or specified classes; and\n\n (b) regulated road transport contractors must be specified by inclusion in a specified class or specified classes.\n\n (4) Without limiting the way in which a class may be described for the purposes of subsection (3), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.","sortOrder":1155},{"sectionNumber":"536KK","sectionType":"section","heading":"Term about settling disputes must be included in a minimum standards order","content":"536KK  Term about settling disputes must be included in a minimum standards order\n\n  A minimum standards order must include a term that provides a procedure for settling disputes about any matters arising under the order.","sortOrder":1156},{"sectionNumber":"536KL","sectionType":"section","heading":"Terms that may be included in a minimum standards order","content":"536KL  Terms that may be included in a minimum standards order\n\n (1) A minimum standards order may include terms about any of the following matters:\n\n (a) payment terms;\n\n (b) deductions;\n\n (d) record‑keeping in relation to matters covered by or required by this Act, or by an order or instrument made under this Act, being matters that concern regulated workers or regulated businesses;\n\n (e) insurance;\n\n (f) consultation;\n\n (g) representation;\n\n (h) delegates’ rights;\n\n (i) cost recovery.\n\n (2) The matters listed in subsection (1) do not limit the terms that may be included in a minimum standards order.","sortOrder":1157},{"sectionNumber":"536KM","sectionType":"section","heading":"Terms that must not be included in a minimum standards order","content":"536KM  Terms that must not be included in a minimum standards order\n\n (1) A minimum standards order must not include terms about any of the following matters:\n\n (a) overtime rates;\n\n (b) rostering arrangements;\n\n (c) matters that are primarily of a commercial nature that do not affect the terms and conditions of engagement of regulated workers covered by the minimum standards order;\n\n (d) a term that would change the form of the engagement or the status of regulated workers covered by the minimum standards order including, but not limited to, a term that deems a regulated worker to be an employee;\n\n (e) a matter relating to work health and safety that is otherwise comprehensively dealt with by a law of the Commonwealth, a State or a Territory;\n\n (f) a matter prescribed by the regulations, or belonging to a class of matter prescribed by the regulations for the purposes of this paragraph.\n\n (3) For the purposes of paragraph (1)(e):\n\n (a) the regulations may specify that a particular matter, or a matter included in a class of matters, is, or is not, dealt with comprehensively by a law of the Commonwealth, a State or a Territory; and\n\n (b) the regulations may prescribe one or more laws of the Commonwealth, a State or a Territory to which that paragraph does, or does not, apply.","sortOrder":1158},{"sectionNumber":"536KMA","sectionType":"section","heading":"Further terms that must not be included in an employee-like worker minimum standards order","content":"536KMA  Further terms that must not be included in an employee‑like worker minimum standards order\n\n (1) In addition to the matters in section 536KM, an employee‑like worker minimum standards order must not include terms about any of the following matters:\n\n (a) penalty rates for work performed at particular times or on particular days (including, but not limited to, loadings and shift allowances);\n\n (b) payment for:\n\n (i) time before the acceptance of an engagement on a digital labour platform; or\n\n (ii) time in between the completion of an engagement and the commencement of the next engagement on a digital labour platform;\n\n (c) minimum periods of engagement or a minimum payment referable to a period of minimum engagement.\n\n (2) Despite subsection (1), a term about a matter mentioned in subsection (1) may be included in an employee‑like worker minimum standards order if the FWC is satisfied that the inclusion of the term is appropriate, having regard to:\n\n (a) the type of work performed by the employee‑like workers covered by the employee‑like worker minimum standards order; and\n\n (b) the digital labour platform operators covered by the employee‑like worker minimum standards order.","sortOrder":1159},{"sectionNumber":"536KN","sectionType":"section","heading":"Further terms that must not be included in a road transport minimum standards order","content":"536KN  Further terms that must not be included in a road transport minimum standards order\n\n (1) In addition to the matters in section 536KM, a road transport minimum standards order must not include terms about any of the following matters:\n\n (a) a matter relating to road transport that is otherwise comprehensively dealt with:\n\n (i) by the Heavy Vehicle National Law as set out in the Schedule to the Heavy Vehicle National Law Act 2012 (Qld); or\n\n (ii) by another law of the Commonwealth, a State or a Territory;\n\n (b) a matter prescribed by the regulations, or belonging to a class of matter prescribed by the regulations.\n\n (2) For the purposes of paragraph (1)(a):\n\n (a) the regulations may specify that a particular matter, or a matter included in a class of matters, is, or is not, dealt with comprehensively by the Heavy Vehicle National Law as set out in the Schedule to the Heavy Vehicle National Law Act 2012 (Qld) or another law of the Commonwealth, a State or a Territory; and\n\n (b) the regulations may prescribe one or more laws of the Commonwealth, a State or a Territory to which subparagraph (1)(a)(ii) does, or does not, apply.","sortOrder":1160},{"sectionNumber":"536KO","sectionType":"section","heading":"Achieving the minimum standards objective","content":"536KO  Achieving the minimum standards objective\n\n  A minimum standards order 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 minimum standards objective.","sortOrder":1161},{"sectionNumber":"536KP","sectionType":"section","heading":"Applications to vary or revoke minimum standards orders","content":"536KP  Applications to vary or revoke minimum standards orders\n\n  Any of the following may apply to the FWC for a determination varying or revoking a minimum standards order:\n\n (a) an organisation that is entitled to represent, or another body that represents, the industrial interests of one or more regulated workers covered by the minimum standards order or who would be covered by the minimum standards order as proposed to be varied;\n\n (b) an organisation that is entitled to represent, or another body that represents, the industrial interests of one or more of the regulated businesses covered by the minimum standards order, or that would be covered by the minimum standards order as proposed to be varied;\n\n (c) a regulated business covered by the minimum standards order or that would be covered by the proposed minimum standards order as proposed to be varied;\n\n (ca) a national or State council or federation that is effectively representative of a significant number of organisations or bodies mentioned in paragraph (a) or (b);\n\n (d) the Minister.","sortOrder":1162},{"sectionNumber":"536KQ","sectionType":"section","heading":"FWC may vary or revoke minimum standards orders if consistent with the minimum standards objective","content":"536KQ  FWC may vary or revoke minimum standards orders if consistent with the minimum standards objective\n\n (1) The FWC may make a determination varying or revoking a minimum standards order if the FWC is satisfied that making the determination is consistent with the minimum standards objective.\n\nNote: In the case of a road transport minimum standards order, the FWC must also consider the road transport objective.\n\n (2) The FWC may make a determination varying a minimum standards order in such a way that not all of the elements of the variation sought in an application under section 536KP are implemented, including by refusing to make a variation to the extent that it would result in the order covering persons who are not regulated workers.\n\n (3) The FWC may make a determination varying a minimum standards order to remove an ambiguity or uncertainty or to correct an error.\n\n (4) The FWC may make a determination varying or revoking a minimum standards order:\n\n (a) on its own initiative; or\n\n (b) on application under section 536KP.\n\n (5) The FWC may also make a determination under subsection (1) varying or revoking a minimum standards order to give effect to a decision under paragraph 536KQS(2)(a) or (b) to vary or revoke the minimum standards order.\n\nNote: Subsection 536KQS(1) requires the FWC to consider whether to vary or revoke a minimum standards order after a deferral declaration, a deferral determination, a suspension declaration or a suspension determination is made in relation to the order.","sortOrder":1163},{"sectionNumber":"536KQA","sectionType":"section","heading":"Minister may make a declaration deferring the operation or application of a minimum standards order","content":"536KQA  Minister may make a declaration deferring the operation or application of a minimum standards order\n\n (1) If the Minister considers it is in the public interest to do so, the Minister may, by notifiable instrument, make a declaration (a deferral declaration) that defers:\n\n (a) the coming into operation of a minimum standards order; or\n\n (b) the application of:\n\n (i) all of the terms of a minimum standards order to a specified class or specified classes of persons; or\n\n (ii) specified terms of a minimum standards order to a specified class or specified classes of persons; or\n\n (iii) specified terms of a minimum standards order to all persons.\n\n (2) A deferral declaration made under paragraph (1)(a) is a full deferral declaration, and a deferral declaration made under paragraph (1)(b) is a part deferral declaration, in relation to the minimum standards order to which the deferral declaration relates.\n\n (3) A deferral declaration in relation to a minimum standards order:\n\n (a) comes into operation on the day on which it is made; and\n\n (b) ceases to be in operation on the day on which the FWC decides under subsection 536KQS(2) whether or not to vary or revoke the minimum standards order.\n\n (4) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.\n\n (5) The Secretary of the Department must publish a deferral declaration on the Department’s website as soon as practicable after the deferral declaration is made.","sortOrder":1166},{"sectionNumber":"536KQB","sectionType":"section","heading":"Limitations on making a deferral declaration","content":"536KQB  Limitations on making a deferral declaration\n\nNo deferral of minimum standards order that is in operation\n\n (1) The Minister must not make a deferral declaration in relation to a minimum standards order that has already come into operation.\n\nOnly one full deferral declaration is permitted etc.\n\n (2) The Minister:\n\n (a) may only make one full deferral declaration in relation to a particular minimum standards order; and\n\n (b) must not make a full deferral declaration in relation to a particular road transport minimum standards order if a deferral determination (whether a full deferral determination or a part deferral determination) has previously been made by the FWC in relation to the road transport minimum standards order.\n\nNote: The FWC may make deferral determinations in relation to road transport minimum standards orders under Subdivision B of this Division.\n\nMore than one part deferral declaration is permitted\n\n (3) Subject to subsection (4), the Minister may make more than one part deferral declaration in relation to a particular minimum standards order.\n\n (4) If more than one part deferral declaration or part deferral determination is made in relation to the same minimum standards order as permitted by subsection (3) of this section or subsection 536KQK(3), a later part deferral declaration must not have the effect of deferring, or purporting to defer, the application of a term or terms to any person:\n\n (a) to whom the terms already apply when the later part deferral declaration is made; or\n\n (b) in relation to whom the application of the terms has previously been deferred.","sortOrder":1167},{"sectionNumber":"536KQC","sectionType":"section","heading":"Operation of a minimum standards order during deferral","content":"536KQC  Operation of a minimum standards order during deferral\n\n  A minimum standards order:\n\n (a) is not in operation during any period when a full deferral declaration in relation to the minimum standards order is in operation; and\n\n (b) is in operation during any period when a part deferral declaration in relation to the minimum standards order is in operation.\n\nNote: Although a minimum standards order is in operation when a part deferral declaration is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.","sortOrder":1168},{"sectionNumber":"536KQD","sectionType":"section","heading":"Minister may make a declaration suspending a minimum standards order","content":"536KQD  Minister may make a declaration suspending a minimum standards order\n\n (1) If the Minister considers it is in the public interest to do so, the Minister may, by notifiable instrument, make a declaration (a suspension declaration):\n\n (a) suspending the operation of a minimum standards order; or\n\n (b) suspending the application of:\n\n (i) all of the terms of a minimum standards order to a specified class or specified classes of persons; or\n\n (ii) specified terms of a minimum standards order to a specified class or specified classes of persons; or\n\n (iii) specified terms of a minimum standards order to all persons.\n\n (2) A suspension declaration made under paragraph (1)(a) is a full suspension declaration, and a suspension declaration made under paragraph (1)(b) is a part suspension declaration, in relation to the minimum standards order to which the suspension declaration relates.\n\nSuspension declaration must specify period of suspension\n\n (3) A suspension declaration must specify the period of the suspension, which:\n\n (a) must not be longer than 12 months; and\n\n (b) must not start before the day on which the suspension declaration is made.\n\nWhen period of suspension ends\n\n (4) Subject to subsection (5), a period of suspension specified in a suspension declaration ends immediately after the end of the period specified in the suspension declaration under subsection (3).\n\n (5) If a period of suspension has not already ended under subsection (3) when the FWC makes a decision under subsection 536KQS(2) as to whether to vary or revoke the minimum standards order, the period of suspension ends on whichever of the following days is applicable:\n\n (a) if the FWC decides to vary or revoke the minimum standards order—on the day that the determination made under subsection 536KQ(1) varying or revoking the minimum standards order comes into operation, which must not be later than 12 months after the day on which the suspension declaration was made;\n\n (b) if the FWC decides not to vary or revoke the minimum standards order:\n\n (i) 7 days after the day on which the decision is made; or\n\n (ii) if a 7‑day period would result in the suspension lasting longer than 12 months—such shorter period as is specified in the decision, which must be a period that would result in the suspension lasting 12 months or less.\n\nClasses\n\n (6) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.\n\nOrders\n\n (7) If the Minister makes a suspension declaration, the FWC may make any orders it considers appropriate to ensure that no person is unfairly affected by the suspension.\n\nPublication\n\n (8) The Secretary of the Department must publish a suspension declaration on the Department’s website as soon as practicable after the suspension declaration is made.\n\nAccrued rights etc.\n\n (9) The making of a suspension declaration does not affect any right or liability that a person acquired, accrued or incurred before the suspension declaration is made.","sortOrder":1169},{"sectionNumber":"536KQE","sectionType":"section","heading":"Suspension declaration must be made within 12 months of certain dates","content":"536KQE  Suspension declaration must be made within 12 months of certain dates\n\nFull suspension declaration timing\n\n (1) A full suspension declaration in relation to a minimum standards order must be made within 12 months of the day on which the minimum standards order came into operation.\n\nPart suspension declaration timing\n\n (2) A part suspension declaration in relation to a minimum standards order must be made within 12 months of whichever of the following days is applicable:\n\n (a) if the part suspension declaration suspends the application of all of the terms of the minimum standards order to a specified class of persons—the day on which all of the terms of the minimum standards order first applied to the specified class of persons;\n\n (b) if the part suspension declaration suspends the application of all of the terms of the minimum standards order to 2 or more specified classes of persons—the day on which all of the terms of the minimum standards order first applied to at least one of the specified classes of persons (even if all of the terms of the order did not apply to all of the specified classes on that day);\n\n (c) if the part suspension declaration suspends the application of specified terms of the minimum standards order to a specified class of persons—the day on which the specified terms first applied to the specified class of persons;\n\n (d) if the part suspension declaration suspends the application of specified terms of the minimum standards order to 2 or more specified classes of persons—the day on which the specified terms of the minimum standards order first applied to at least one of the specified classes of persons (even if the order did not apply to all of the specified classes on that day);\n\n (e) if the part suspension declaration suspends the application of specified terms of the minimum standards order to all persons—the day on which the specified terms first applied to all persons.","sortOrder":1170},{"sectionNumber":"536KQF","sectionType":"section","heading":"Operation of a minimum standards order during suspension","content":"536KQF  Operation of a minimum standards order during suspension\n\n  A minimum standards order:\n\n (a) is not in operation during any period when a full suspension declaration in relation to the minimum standards order is in operation; and\n\n (b) is in operation during any period when a part suspension declaration in relation to the minimum standards order is in operation.\n\nNote: Although a minimum standards order is in operation during a period when a part suspension declaration is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.","sortOrder":1171},{"sectionNumber":"536KQG","sectionType":"section","heading":"Consultation requirements","content":"536KQG  Consultation requirements\n\n  The Minister is not required to consult any person or body before making a deferral declaration or a suspension declaration.","sortOrder":1172},{"sectionNumber":"536KQH","sectionType":"section","heading":"Applications for a deferral determination for a road transport minimum standards order","content":"536KQH  Applications for a deferral determination for a road transport minimum standards order\n\n (1) An application may be made to the FWC for a determination under subsection 536KQJ(1) (a deferral determination) in relation to a road transport minimum standards order.\n\n (2) An application may be made under subsection (1) by any of the following:\n\n (a) an organisation that is entitled to represent the industrial interests of one or more regulated road transport contractors covered by the road transport minimum standards order;\n\n (b) an organisation that is entitled to represent the industrial interests of one or more of the road transport businesses covered by the road transport minimum standards order;\n\n (c) a road transport business covered by the road transport minimum standards order.\n\nNote: An Expert Panel can hear applications under this Act for the road transport industry together: see subsection 582(4).\n\n (3) An application for a deferral determination must not be made in relation to a road transport minimum standards order that has already come into operation.\n\nNote: If the road transport minimum standards order concerned comes into operation before the FWC considers the application, the FWC may treat it as a suspension application, see subsection 536KQL(2).","sortOrder":1174},{"sectionNumber":"536KQJ","sectionType":"section","heading":"FWC may make a determination deferring the operation or application of a road transport minimum standards order","content":"536KQJ  FWC may make a determination deferring the operation or application of a road transport minimum standards order\n\n (1) The FWC may, on application under subsection 536KQH(1), make a deferral determination:\n\n (a) that defers the coming into operation of a road transport minimum standards order; or\n\n (b) that defers the application of:\n\n (i) all of the terms of a road transport minimum standards order to a specified class or specified classes of persons; or\n\n (ii) specified terms of a road transport minimum standards order to a specified class or specified classes of persons; or\n\n (iii) specified terms of a road transport minimum standards order to all persons.\n\n (2) A deferral determination made under paragraph (1)(a) is a full deferral determination, and a deferral determination made under paragraph (1)(b) is a part deferral determination, in relation to the road transport minimum standards order to which the deferral determination relates.\n\n (3) A deferral determination in relation to a road transport minimum standards order:\n\n (a) comes into operation on the day on which it is made; and\n\n (b) ceases to be in operation on the day on which the FWC decides under subsection 536KQS(2) whether or not to vary or revoke the road transport minimum standards order.\n\n (4) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector.","sortOrder":1175},{"sectionNumber":"536KQK","sectionType":"section","heading":"Limitations on making a deferral determination","content":"536KQK  Limitations on making a deferral determination\n\nNo deferral of road transport minimum standards order that is in operation\n\n (1) The FWC must not make a deferral determination in relation to a road transport minimum standards order that has already come into operation.\n\nOnly one full deferral determination is permitted etc.\n\n (2) The FWC:\n\n (a) may only make one full deferral determination in relation to a particular road transport minimum standards order; and\n\n (b) must not make a full deferral determination in relation to a particular road transport minimum standards order if a deferral declaration (whether a full deferral declaration or a part deferral declaration) has previously been made by the Minister in relation to the road transport minimum standards order.\n\nNote:  The Minister may make deferral declarations in relation to minimum standards orders under Subdivision A of this Division\n\nMore than one part deferral determination is permitted\n\n (3) Subject to subsection (4), the FWC may make more than one part deferral determination in relation to a particular road transport minimum standards order.\n\n (4) If more than one part deferral determination or part deferral declaration is made in relation to the same road transport minimum standards order as permitted by subsection (3) of this section or subsection 536KQB(3), a later part deferral determination must not have the effect of deferring, or purporting to defer, the application of a term to any person or class of persons:\n\n (a) to whom the term already applies when the later part deferral determination is made; or\n\n (b) in relation to whom the application of the terms has previously been deferred.","sortOrder":1176},{"sectionNumber":"536KQL","sectionType":"section","heading":"Decision on an application for a deferral determination in relation to a road transport minimum standards orders","content":"536KQL  Decision on an application for a deferral determination in relation to a road transport minimum standards orders\n\n (1) If an application for a deferral determination in relation to a road transport minimum standards order is made, the FWC must:\n\n (a) consider the application as soon as practicable; and\n\n (b) consult the Road Transport Advisory Group before making a decision on the application.\n\n (2) If the road transport minimum standards order concerned comes into operation before the FWC makes a decision on the application, the FWC may treat the application as if it were an application for a suspension determination.\n\n (3) The FWC may:\n\n (a) make the deferral determination under subsection 536KQJ(1); or\n\n (b) decide not to make the deferral determination.\n\n (4) The FWC must make the deferral determination if, and must not make the deferral determination unless, the FWC is satisfied that:\n\n (a) the applicant has provided significant new facts or evidence that was not available at the time the FWC decided to make the road transport minimum standards order; and\n\n (b) the significant new facts or evidence demonstrate that the road transport minimum standards order will not provide, or has not provided, an appropriate safety net of minimum standards for parties in the road transport industry, having regard to the minimum standards objective and the road transport objective.\n\n (5) In considering whether the FWC is satisfied as mentioned in subsection (4), the FWC may have regard to whether one or more previous applications for variation or revocation of the road transport minimum standards order concerned have previously been made.\n\n (6) The FWC must publish a deferral determination on the FWC’s website and by any other means the FWC considers appropriate as soon as practicable after making the determination.","sortOrder":1177},{"sectionNumber":"536KQM","sectionType":"section","heading":"Operation of a road transport minimum standards order during deferral","content":"536KQM  Operation of a road transport minimum standards order during deferral\n\n  A road transport minimum standards order:\n\n (a) is not in operation during any period when a full deferral determination in relation to the road transport minimum standards order is in operation; and\n\n (b) is in operation during any period when a part deferral determination is in operation in relation to the road transport minimum standards order.\n\nNote: Although a road transport minimum standards order is in operation during a period when a part deferral determination is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.","sortOrder":1178},{"sectionNumber":"536KQN","sectionType":"section","heading":"Applications for a suspension determination for a road transport minimum standards order","content":"536KQN  Applications for a suspension determination for a road transport minimum standards order\n\n (1) An application may be made to the FWC for a determination (a suspension determination) under subsection 536KQP(1) in relation to a road transport minimum standards order.\n\n (2) An application may be made under subsection (1) by any of the following:\n\n (a) an organisation that is entitled to represent the industrial interests of one or more regulated road transport contractors covered by the road transport minimum standards order;\n\n (b) an organisation that is entitled to represent the industrial interests of one or more of the road transport businesses covered by the road transport minimum standards order;\n\n (c) a road transport business covered by the road transport minimum standards order.\n\nNote: An Expert Panel can hear applications under this Act for the road transport industry together: see subsection 582(4).\n\nTiming of application for full suspension determination\n\n (3) An application for a full suspension determination in relation to a road transport minimum standards order must be made within 12 months of the day on which the order came into operation.\n\nTiming of application for part suspension determination\n\n (4) An application for a part suspension determination must be made within 12 months of whichever of the following days is applicable:\n\n (a) if the part suspension determination will suspend the application of all of the terms of the road transport minimum standards order to a specified class—the first day on which all of the terms of the road transport minimum standards order applied to the class of person;\n\n (b) if the part suspension determination will suspend the application of all of the terms of the road transport minimum standards order to 2 or more specified classes of persons—the day on which all of the terms of the road transport minimum standards order first applied to at least one of the specified classes of persons (even if all of the terms of the order did not apply to all of the specified classes on that day);\n\n (c) if the part suspension determination will suspend the application of specified terms of the road transport minimum standards order to a specified class of persons—the first day on which the specified terms applied to the specified class of persons;\n\n (d) if the part suspension determination will suspend the application of specified terms of the road transport minimum standards order to 2 or more specified classes of persons—the day on which the specified terms of the road transport minimum standards order first applied to at least one of the specified classes of persons (even if the order did not apply to all of the specified classes on that day);\n\n (e) if the part suspension determination will suspend the application of specified terms of the road transport minimum standards order to all persons—the first day on which the specified terms applied to all persons.","sortOrder":1179},{"sectionNumber":"536KQP","sectionType":"section","heading":"FWC may make a determination suspending a road transport minimum standards order","content":"536KQP  FWC may make a determination suspending a road transport minimum standards order\n\n (1) The FWC may, on application under subsection 536KQN(1), make a suspension determination:\n\n (a) suspending the operation of a road transport minimum standards order; or\n\n (b) suspending:\n\n (i) the application of a road transport minimum standards order to a specified class or specified classes of persons; or\n\n (ii) the application of specified terms of a road transport minimum standards order to a specified class or specified classes of persons; or\n\n (iii) the application of specified terms of road transport minimum standards order to all persons.\n\nNote 1: A person may also apply for a variation or revocation of a road transport minimum standards order under section 536KP.\n\nNote 2: Judicial review of decisions of the FWC is available—see paragraph 39B(1A)(c) of the Judiciary Act 1903.\n\n (2) A suspension determination made under paragraph (1)(a) is a full suspension determination, and a suspension determination made under paragraph (1)(b) is a part suspension determination, in relation to the road transport minimum standards order to which the suspension determination relates.\n\nSuspension determination must specify period of suspension\n\n (3) If the FWC makes a suspension determination in relation to a road transport minimum standards order, the suspension determination must specify the period for which the order is suspended, which:\n\n (a) must not be a period of more than 12 months; and\n\n (b) must not start before the day on which the determination is made.\n\nWhen period of suspension ends\n\n (4) Subject to subsection (5), a period of suspension specified in a suspension determination ends immediately after the end of the period specified in the suspension determination under subsection (3).\n\n (5) If the period of suspension has not already ended under subsection (4) when the FWC makes a decision under subsection 536KQS(2) as to whether to vary or revoke the road transport minimum standards order, the period of suspension ends on whichever of the following days is applicable:\n\n (a) if the FWC decides to vary or revoke the road transport minimum standards order—on the day that the determination made under subsection 536KQ(1) varying or revoking the minimum standards order comes into operation, which must not be later than 12 months after the day on which the suspension determination was made;\n\n (b) if the FWC decides not to vary or revoke the road transport minimum standards order:\n\n (i) 7 days after the day on which the decision is made; or\n\n (ii) if a 7‑day period would result in the suspension lasting longer than 12 months—such shorter period as is specified in the decision, which must be a period that would result in the suspension lasting 12 months or less.\n\nClasses\n\n (6) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector.","sortOrder":1180},{"sectionNumber":"536KQQ","sectionType":"section","heading":"Decision on an application for a suspension determination in relation to a road transport minimum standards orders","content":"536KQQ  Decision on an application for a suspension determination in relation to a road transport minimum standards orders\n\n (1) If an application for a suspension determination in relation to a road transport minimum standards order is made, the FWC must:\n\n (a) consider the application as soon as practicable; and\n\n (b) consult the Road Transport Advisory Group before making a decision on the application.\n\n (2) The FWC may:\n\n (a) make the suspension determination under subsection 536KQP(1); or\n\n (b) decide not to make the suspension determination.\n\n (3) The FWC must make the suspension determination if, and must not make the suspension determination unless, the FWC is satisfied that:\n\n (a) the applicant has provided significant new facts or evidence that was not available at the time the FWC decided to make the road transport minimum standards order; and\n\n (b) the significant new facts or evidence demonstrate that the road transport minimum standards order will not provide, or has not provided, an appropriate safety net of minimum standards for parties in the road transport industry, having regard to the minimum standards objective and the road transport objective.\n\n (4) In considering whether the FWC is satisfied as mentioned in subsection (3), the FWC may have regard to whether one or more previous applications for variation or revocation of the minimum standards order have previously been made.\n\n (5) If the FWC makes the suspension determination, the FWC may make any orders it considers appropriate to ensure that no person is unfairly affected by the suspension.\n\n (6) The FWC must publish a suspension determination on the FWC’s website and by any other means the FWC considers appropriate as soon as practicable after making the determination.\n\n (7) The making of a suspension determination does not affect any right or liability that a person acquired, accrued or incurred before the suspension determination is made.","sortOrder":1181},{"sectionNumber":"536KQR","sectionType":"section","heading":"Operation of a road transport minimum standards order during suspension","content":"536KQR  Operation of a road transport minimum standards order during suspension\n\n  A road transport minimum standards order:\n\n (a) is not in operation during any period when a full suspension determination in relation to the road transport minimum standards order is in operation; and\n\n (b) is in operation during any period when a part suspension determination is in operation in relation to the road transport minimum standards order.\n\nNote: Although a road transport minimum standards order is in operation during a period when a part deferral determination is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.","sortOrder":1182},{"sectionNumber":"536KQS","sectionType":"section","heading":"FWC must consider whether to vary or revoke a minimum standards order that has been deferred or suspended","content":"536KQS  FWC must consider whether to vary or revoke a minimum standards order that has been deferred or suspended\n\n (1) This section applies if:\n\n (a) the Minister makes a deferral declaration or a suspension declaration in relation to a minimum standards order; or\n\n (b) the FWC makes a deferral determination or a suspension determination in relation to a road transport minimum standards order.\n\n (2) The FWC must, as soon as practicable, consider whether or not to vary or revoke the minimum standards order. The FWC must:\n\n (a) vary the minimum standards order under subsection 536KQ(1); or\n\n (b) revoke the minimum standards order under subsection 536KQ(1); or\n\n (c) decide not to vary or revoke the minimum standards order.\n\nGeneral preconditions for variation or revocation\n\n (3) The FWC:\n\n (a) must not vary or revoke the minimum standards order unless there has been genuine engagement with the parties to be covered; and\n\n (b) in the case of a road transport minimum standards order—must not vary or revoke the road transport minimum standards order unless the Road Transport Advisory Group has been consulted; and\n\n (c) in the case of a road transport minimum standards order—must have regard to the commercial realities of the road transport industry; and\n\n (d) in the case of a road transport minimum standards order—must be satisfied that the variation or revocation of the minimum standards order will not unduly affect the viability and competitiveness of owner drivers or other similar persons; and\n\n (e) in the case of an employee‑like worker minimum standards order—must have regard to choice and flexibility in working arrangements.\n\nSpecial preconditions for variation or revocation: road transport minimum standards order\n\n (4) In addition to the matters mentioned in subsection (3), the FWC must not vary or revoke a road transport minimum standards order in relation to which a deferral declaration or a deferral determination has been made unless the FWC has followed the process set out in Division 3B of this Part in relation to the variation or revocation.\n\nSpecial preconditions for variation or revocation: employee‑like worker minimum standards order\n\n (5) In addition to the matters mentioned in subsection (3), the FWC must not vary or revoke an employee‑like worker minimum standards order in relation to which a deferral declaration or a deferral determination has been made unless the FWC has followed the process set out in Division 3C of this Part in relation to the variation or revocation.\n\nPublication requirements\n\n (6) The FWC must publish notice of the FWC’s decision under subsection (2) on the FWC’s website and by any other means the FWC considers appropriate.\n\nEnd of suspension period does not affect obligations under this section\n\n (7) The end of a period of suspension of a minimum standards order under subsection 536KQD(4) or (5) or 536KQP(4) or (5) does not affect the FWC’s obligation to consider whether or not to vary or revoke the minimum standards order.","sortOrder":1184},{"sectionNumber":"Division 3B","sectionType":"division","heading":"Consultation before varying or revoking road transport minimum standards order after deferral","content":"Division 3B—Consultation before varying or revoking road transport minimum standards order after deferral","sortOrder":1185},{"sectionNumber":"536KQT","sectionType":"section","heading":"FWC to prepare and publish a notice relating to proposed variation or revocation of a road transport minimum standards order","content":"536KQT  FWC to prepare and publish a notice relating to proposed variation or revocation of a road transport minimum standards order\n\n (1) Before deciding to vary or revoke a road transport minimum standards order in relation to which a deferral declaration or a deferral determination has been made, the FWC must:\n\n (a) publish a notice (a notice of intent) stating that the FWC proposes to vary or revoke the road transport minimum standards order; and\n\n (b) if the proposal is to vary the road transport minimum standards order—publish a draft of the road transport minimum standards order as proposed to be varied.\n\n (2) The FWC must publish the notice of intent and the draft of the road transport minimum standards order as proposed to be varied (if applicable) on the FWC’s website and by any other means the FWC considers appropriate as soon as practicable after making the determination.","sortOrder":1186},{"sectionNumber":"536KQU","sectionType":"section","heading":"Affected entities to have a reasonable opportunity to make submissions and comment on a proposed variation or revocation of a road transport minimum standards order","content":"536KQU  Affected entities to have a reasonable opportunity to make submissions and comment on a proposed variation or revocation of a road transport minimum standards order\n\n (1) The FWC must ensure that affected entities have a reasonable opportunity to make written submissions to the FWC for its consideration in relation to the proposed variation or revocation of a road transport minimum standards order in relation to which a notice of intent has been published under paragraph 536KQT(1)(a).\n\n (2) The FWC must publish submissions made to the FWC.\n\n (3) However, if a submission made by an entity includes information that is claimed by the entity to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive, the FWC:\n\n (a) may decide not to publish the information; and\n\n (b) may instead publish:\n\n (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\n\n (ii) if the FWC 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.\n\n (4) The publishing of material under subsections (2) and (3) must be on the FWC’s website and by any other means the FWC considers appropriate.\n\n (5) 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).\n\n (6) For the purposes of subsection (1), an affected entity, in relation to a proposed variation or revocation of a road transport minimum standards order in relation to which a notice of intent has been published under paragraph 536KQT(1)(a), is:\n\n (a)  a person or body likely to be affected by the proposed variation or revocation; or\n\n (b) a person or body prescribed by the regulations, or belonging to a class of persons or bodies prescribed by the regulations.\n\n (7) The FWC may, but is not required to, hold a hearing in relation to the following:\n\n (a) a draft road transport minimum standards order as proposed to be varied;\n\n (b) a proposed revocation of a road transport minimum standards order.","sortOrder":1187},{"sectionNumber":"536KQV","sectionType":"section","heading":"Finalising draft order","content":"536KQV  Finalising draft order\n\n (1) The FWC may make any changes it thinks appropriate to a draft road transport minimum standards order as proposed to be varied.\n\n (2) If changes proposed to be made under subsection (1) are significant, the FWC must:\n\n (a) decide not to vary the road transport minimum standards order based on the draft; and\n\n (b) publish a subsequent notice of intent under subsection 536KQT(1)(a) in relation to the revised draft road transport minimum standards order, and publish the revised draft; and\n\n (c) follow the process set out in section 536KQU in relation to the revised draft road transport minimum standards order (with the period of consultation under that section to be no shorter than 12 months starting when the subsequent notice of intent and the revised draft required by paragraph (b) of this subsection were published).","sortOrder":1188},{"sectionNumber":"Division 3C","sectionType":"division","heading":"Consultation process before varying or revoking employee-like worker minimum standards orders after deferral","content":"Division 3C—Consultation process before varying or revoking employee‑like worker minimum standards orders after deferral","sortOrder":1189},{"sectionNumber":"536KQW","sectionType":"section","heading":"FWC to prepare and publish a notice relating to a proposed variation or revocation of an employee-like worker minimum standards order","content":"536KQW  FWC to prepare and publish a notice relating to a proposed variation or revocation of an employee‑like worker minimum standards order\n\n (1) Before deciding to vary or revoke an employee‑like worker minimum standards order in relation to which a deferral declaration or a deferral determination has been made, the FWC must:\n\n (a) publish a notice (a notice of intent) stating that the FWC proposes to vary or revoke the employee‑like worker minimum standards order; and\n\n (b) if the proposal is to vary the employee‑like worker minimum standards order—publish a draft of the proposed employee‑like worker minimum standards order as proposed to be varied.\n\n (2) The FWC must publish the notice of intent and the draft of the employee‑like worker minimum standards order as proposed to be varied (if applicable) on the FWC’s website and by any other means the FWC considers appropriate.","sortOrder":1190},{"sectionNumber":"536KQX","sectionType":"section","heading":"Affected entities to have a reasonable opportunity to make submissions and comment on a proposed variation or revocation of an employee-like worker minimum standards order","content":"536KQX  Affected entities to have a reasonable opportunity to make submissions and comment on a proposed variation or revocation of an employee‑like worker minimum standards order\n\n (1) The FWC must ensure that affected entities have a reasonable opportunity to make written submissions to the FWC for its consideration in relation to the proposed variation or revocation of an employee‑like worker minimum standards order in relation to which a notice of intent has been published under paragraph 536KQW(1)(a), having regard to the unique nature of digital platform work.\n\n (2) The FWC must publish submissions made to the FWC.\n\n (3) However, if a submission made by an entity includes information that is claimed by the entity to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive, the FWC:\n\n (a) may decide not to publish the information; and\n\n (b) may instead publish:\n\n (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\n\n (ii) if the FWC 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.\n\n (4) The publishing of material under subsections (2) and (3) must be on the FWC’s website and by any other means the FWC considers appropriate.\n\n (5) 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).\n\n (6) For the purposes of subsection (1), an affected entity, in relation to a proposed variation or revocation of an employee‑like worker minimum standards order in relation to which a notice of intent has been published under paragraph 536KQW(1)(a), is:\n\n (a) a person or body likely to be affected by the proposed variation or revocation; or\n\n (b) a person or body prescribed by the regulations, or belonging to a class of persons or bodies prescribed by the regulations.\n\n (7) The FWC may, but is not required to, hold a hearing in relation to the following:\n\n (a) a draft employee‑like worker minimum standards order as proposed to be varied;\n\n (b) a proposed revocation of an employee‑like worker minimum standards order.","sortOrder":1191},{"sectionNumber":"536KQY","sectionType":"section","heading":"Finalising draft order","content":"536KQY  Finalising draft order\n\n (1) The FWC may make any changes it thinks appropriate to a draft employee‑like worker minimum standards order as proposed to be varied.\n\n (2) If changes proposed to be made under subsection (1) are significant, the FWC must:\n\n (a) decide not to vary the employee‑like worker minimum standards order based on the draft; and\n\n (b) publish a subsequent notice of intent under paragraph 536KQW(1)(a) in relation to the revised draft employee‑like worker minimum standards order, and publish the revised draft; and\n\n (c) follow the process set out in section 536KQX in relation to the revised draft employee‑like worker minimum standards order (with the period of consultation under that section to be a period that the FWC is satisfied is reasonable having regard to the unique nature of digital platform work).","sortOrder":1192},{"sectionNumber":"536KR","sectionType":"section","heading":"Minimum standards guidelines","content":"536KR  Minimum standards guidelines\n\n (1) The FWC may make minimum standards guidelines under this section that set standards for regulated workers performing work under a services contract.\n\n (2) Minimum standards guidelines for employee‑like workers are employee‑like worker guidelines.\n\n (3) Minimum standards guidelines for regulated road transport contractors are road transport guidelines.\n\n (4) The FWC may make minimum standards guidelines under this section:\n\n (a) on its own initiative; or\n\n (b) on application under section 536KS.","sortOrder":1194},{"sectionNumber":"536KS","sectionType":"section","heading":"Applications for minimum standards guidelines","content":"536KS  Applications for minimum standards guidelines\n\n (1) Any of the following may apply to the FWC for the making of minimum standards guidelines:\n\n (a) an organisation that is entitled to represent the industrial interests of one or more regulated workers who would be covered by the proposed minimum standards guidelines;\n\n (b) an organisation that is entitled to represent the industrial interests of one or more of the regulated businesses that would be covered by the proposed minimum standards guidelines;\n\n (c) a regulated business that is included in a class of regulated businesses that would be covered by the proposed minimum standards guidelines;\n\n (d) the Minister.\n\nMatters to be specified in an application\n\n (2) An application for the making of minimum standards guidelines must specify the class of regulated workers to be covered by the guidelines.\n\n (2A) An application for the making of minimum standards guidelines must specify the class of regulated businesses to be covered by the guidelines.\n\n (3) Without limiting the way in which a class may be described for the purposes of subsection (2) or (2A), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.","sortOrder":1195},{"sectionNumber":"536KT","sectionType":"section","heading":"Initial matter to be considered for employee-like worker minimum standards guidelines","content":"536KT  Initial matter to be considered for employee‑like worker minimum standards guidelines\n\n (1) This section applies to a decision to make or vary, or not to make or vary, employee‑like worker guidelines, other than a decision of the FWC to refuse to consider an application to make or vary such guidelines.\n\n (2) Before making a decision under section 536KU, the FWC must consider whether, on the whole, the persons included (or purportedly included) in the class of employee‑like workers to be covered by the minimum standards guidelines, or the guidelines as proposed to be varied, are employee‑like workers.\n\n (3) If the FWC is not satisfied that, on the whole, the persons included (or purportedly included) in the class of employee‑like workers to be covered by the minimum standards guidelines, or the guidelines as proposed to be varied, are employee‑like workers, the FWC must decide to refuse to consider the application, or not to make or vary the guidelines, as the case requires.","sortOrder":1196},{"sectionNumber":"536KU","sectionType":"section","heading":"Decisions on applications for minimum standards guidelines","content":"536KU  Decisions on applications for minimum standards guidelines\n\n (1) If an application for minimum standards guidelines is made to the FWC under subsection 536KS(1), the FWC may decide to:\n\n (a) refuse to consider the application; or\n\n (b) make minimum standards guidelines; or\n\n (c) not make minimum standards guidelines; or\n\n (d) if the FWC considers it appropriate to do so, instead make a minimum standards order under subsection 536JY(1) instead, as if the application had been an application under subsection 536JZ(1) for a minimum standards order in relation to the regulated workers covered by the application under subsection 536KS(1).\n\n (2) Without limiting subsection (1), the FWC may refuse to consider the application if it is not consistent with a direction of the President under subsection 582(4D) (prioritisation).","sortOrder":1197},{"sectionNumber":"536KV","sectionType":"section","heading":"Minimum standards guidelines not to be made if a minimum standards order is in operation","content":"536KV  Minimum standards guidelines not to be made if a minimum standards order is in operation\n\n  The FWC must not make minimum standards guidelines that cover the same regulated workers and the same regulated businesses in relation to the same matters as a minimum standards order that is in operation.","sortOrder":1198},{"sectionNumber":"536KW","sectionType":"section","heading":"Terms that must be included in minimum standards guidelines","content":"536KW  Terms that must be included in minimum standards guidelines\n\n  Minimum standards guidelines must include terms setting out the same matters in relation to minimum standards orders as set out in the following:\n\n (a) in the case of employee‑like worker guidelines—in section 536KH;\n\n (b) in the case of road transport guidelines—in section 536KJ.","sortOrder":1199},{"sectionNumber":"536KX","sectionType":"section","heading":"Terms that may be included in minimum standards guidelines","content":"536KX  Terms that may be included in minimum standards guidelines\n\n  Minimum standards guidelines may include terms about any of the matters that may be included in minimum standards orders under section 536KL.","sortOrder":1200},{"sectionNumber":"536KY","sectionType":"section","heading":"Terms that must not be included in minimum standards guidelines","content":"536KY  Terms that must not be included in minimum standards guidelines\n\n  Minimum standards guidelines must not include terms about any of the matters that must not be included in minimum standards orders as set out in the following:\n\n (a) in the case of employee‑like worker minimum standards orders and road transport minimum standards orders—in section 536KM;\n\n (aa) in the case of employee‑like worker minimum standards orders—in section 536KMA;\n\n (b) in the case of road transport minimum standards orders—in section 536KN.","sortOrder":1201},{"sectionNumber":"536KZ","sectionType":"section","heading":"FWC may vary or revoke minimum standards guidelines if consistent with the minimum standards objective and the road transport objective","content":"536KZ  FWC may vary or revoke minimum standards guidelines if consistent with the minimum standards objective and the road transport objective\n\n (1) The FWC may make a determination varying or revoking minimum standards guidelines if the FWC is satisfied that making the determination is consistent with:\n\n (a) the minimum standards objective; and\n\n (b) if the President considers that the determination might relate to the road transport industry—the road transport objective.\n\n (2) The FWC may make a determination varying minimum standards guidelines in such a way that not all of the elements of the variation sought in an application under section 536L are implemented, including by refusing to make a variation to the extent that it would result in the guidelines covering persons who are not regulated workers.\n\n (3) The FWC may make a determination varying minimum standards guidelines to remove an ambiguity or uncertainty or to correct an error.\n\n (4) The FWC may make a determination varying or revoking minimum standards guidelines:\n\n (a) on its own initiative; or\n\n (b) on application under section 536L.\n\n (5) If the FWC makes a minimum standards order that covers the same regulated workers and the same regulated businesses in relation to the same matters as minimum standards guidelines, the FWC must revoke the minimum standards guidelines with effect on and from the day on which the minimum standards order comes into operation.\n\n (6) If the FWC makes a minimum standards order that covers some or all of the same regulated workers and the same regulated businesses in relation to some or all of the same matters as minimum standards guidelines, the FWC must vary the minimum standards guidelines so that the guidelines do not cover the regulated workers, regulated businesses or matters covered by the order, with effect on and from the day on which the order comes into operation.","sortOrder":1202},{"sectionNumber":"536L","sectionType":"section","heading":"Applications to vary or revoke minimum standards guidelines","content":"536L  Applications to vary or revoke minimum standards guidelines\n\n  Any of the following may apply to the FWC for a determination varying or revoking minimum standards guidelines:\n\n (a) an organisation that is entitled to represent the industrial interests of one or more regulated workers covered by the minimum standards guidelines, or who would be covered by the minimum standards guidelines as proposed to be varied;\n\n (b) an organisation that is entitled to represent the industrial interests of one or more of the regulated businesses covered by the minimum standards guidelines, or that would be covered by the minimum standards guidelines as proposed to be varied;\n\n (c) a regulated business covered by the minimum standards guidelines, or that would be covered by the minimum standards order as proposed to be varied;\n\n (d) the Minister.","sortOrder":1203},{"sectionNumber":"Part 3A-3","sectionType":"part","heading":"Unfair deactivation or unfair termination of regulated workers","content":"Part 3A‑3—Unfair deactivation or unfair termination of regulated workers","sortOrder":1204},{"sectionNumber":"536LB","sectionType":"section","heading":"Guide to this Part","content":"536LB  Guide to this Part\n\nThis Part is about:\n\n (a) unfair deactivation from digital labour platforms of employee‑like workers; and\n\n (b) unfair termination of the services contracts of regulated road transport contractors.\n\nDivision 2 sets out when a person is protected from unfair deactivation or unfair termination.\n\nDivision 3 sets out the elements that make up unfair deactivation or unfair termination.\n\nDivision 4 sets out the remedies that the FWC can grant for unfair deactivation or unfair termination.\n\nDivision 5 is about the procedural aspects of getting remedies for unfair deactivation or unfair termination.","sortOrder":1206},{"sectionNumber":"536LC","sectionType":"section","heading":"Object of this Part","content":"536LC  Object of this Part\n\n (1) The object of this Part is:\n\n (a) to establish a framework for dealing with unfair deactivation of employee‑like workers, and unfair termination of regulated road transport contractors, that balances:\n\n (i) the needs of regulated businesses; and\n\n (ii) the needs of regulated workers; and\n\n (b) to establish procedures for dealing with unfair deactivation and unfair termination that:\n\n (i) are quick, flexible and informal; and\n\n (ii) address the needs of regulated businesses and regulated workers; and\n\n (c) to provide remedies if a deactivation or termination is found to be unfair, with an emphasis on reactivation or reinstatement, as the case requires.\n\n (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 regulated businesses and regulated workers concerned.\n\nNote: 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.","sortOrder":1207},{"sectionNumber":"536LD","sectionType":"section","heading":"When a person is protected from unfair deactivation","content":"536LD  When a person is protected from unfair deactivation\n\n  A person is protected from unfair deactivation at a time if, at that time:\n\n (a) the person is an employee‑like worker; and\n\n (b) the person:\n\n (i) performs work through or by means of a digital labour platform operated by a digital labour platform operator; or\n\n (ii) performs work under a services contract arranged or facilitated through or by means of a digital labour platform operated by a digital labour platform operator; and\n\n (c) the person has been performing work through or by means of that digital labour platform, or under a contract, or a series of contracts, arranged or facilitated through or by means of the digital labour platform, on a regular basis for a period of at least 6 months.","sortOrder":1209},{"sectionNumber":"536LE","sectionType":"section","heading":"When a person is protected from unfair termination","content":"536LE  When a person is protected from unfair termination\n\n  A person is protected from unfair termination at a time if, at that time:\n\n (a) the person is a regulated road transport contractor; and\n\n (b) a road transport business receives services under a services contract (whether or not the business is a party to the services contract) under which the person performs work in the road transport industry; and\n\n (c) the person has been performing work in the road transport industry under a services contract, or a series of services contracts, under which that road transport business receives services for a period of at least 6 months.","sortOrder":1210},{"sectionNumber":"536LF","sectionType":"section","heading":"What is an unfair deactivation","content":"536LF  What is an unfair deactivation\n\n  A person has been unfairly deactivated if the FWC is satisfied that:\n\n (a) the person has been deactivated from a digital labour platform; and\n\n (b) the deactivation was unfair; and\n\n (c) the deactivation was not consistent with the Digital Labour Platform Deactivation Code.","sortOrder":1213},{"sectionNumber":"536LG","sectionType":"section","heading":"Meaning of deactivated","content":"536LG  Meaning of deactivated\n\n  A person has been deactivated from a digital labour platform if:\n\n (a) the person performed digital platform work through or by means of the digital labour platform; and\n\n (b) the digital labour platform operator modified, suspended, or terminated the person’s access to the digital labour platform; and\n\n (c) the person is no longer able to perform work under an existing or prospective services contract, or the ability of the person to do so is so significantly altered that in effect the person is no longer able to perform such work.","sortOrder":1214},{"sectionNumber":"536LH","sectionType":"section","heading":"Criteria for considering whether a deactivation was unfair etc.","content":"536LH  Criteria for considering whether a deactivation was unfair etc.\n\n (1) In considering whether it is satisfied that a person’s deactivation was unfair, the FWC must take into account:\n\n (a) whether there was a valid reason for the deactivation related to the person’s capacity or conduct; and\n\n (b) whether any relevant processes specified in the Digital Labour Platform Deactivation Code were followed; and\n\n (c) any other matters that the FWC considers relevant.\n\n (2) Despite subsection (1) and any other provision of this Part, a deactivation that occurs because of serious misconduct of the person who was deactivated is not unfair.\n\n (3) Despite subsection (1) and any other provision of this Part, a deactivation of a person from a digital labour platform is not unfair if:\n\n (a) the deactivation is constituted by the modification or suspension of the person’s access to the digital labour platform for a period of not more than 7 business days; and\n\n (b) the FWC is satisfied that the digital labour platform operator concerned believes on reasonable grounds that one or more of the matters in subsection (4) is applicable.\n\n (4) For the purposes of subsection (3), the matters are as follows:\n\n (a) that the deactivation of the person is necessary to protect the health and safety of a user of the digital labour platform or member of the community;\n\n (b) that the person has engaged in fraudulent or dishonest conduct including, but not limited to, by misrepresenting or falsifying information provided to the digital labour platform operator;\n\n (c) that the person has not complied with licensing and accreditation requirements imposed by or under a law of the Commonwealth, a State or a Territory, whether:\n\n (i) the requirements relate to the licensing or accreditation of the person; or\n\n (ii) the requirements relate to the licensing or accreditation of the digital labour platform operator, and the person’s conduct causes, or may cause, the digital labour platform operator to breach the requirements;\n\n (d) that the deactivation of the person is necessary to enable the digital labour platform operator to do one or more of the following in relation to a matter specified in paragraph (a), (b) or (c):\n\n (i) conduct an investigation;\n\n (ii) refer the matter to a law enforcement agency (however described) for the purposes of conducting an investigation.","sortOrder":1215},{"sectionNumber":"536LJ","sectionType":"section","heading":"Minister to make a Digital Labour Platform Deactivation Code","content":"536LJ  Minister to make a Digital Labour Platform Deactivation Code\n\n (1) The Minister must, by legislative instrument, make code to be known as the Digital Labour Platform Deactivation Code.\n\n (2) Without limiting the matters covered by the Digital Labour Platform Deactivation Code, the code must deal with the following matters:\n\n (a) the circumstances in which work is performed on a regular basis;\n\n (b) matters that constitute or may constitute a valid reason for deactivation;\n\n (c) rights of response to deactivations;\n\n (d) the internal processes of digital labour platform operators in relation to deactivation;\n\n (e) communication between the employee‑like worker and the digital labour platform operator in relation to deactivation;\n\n (f) the accessibility in practice of the internal processes of digital labour platform operators in relation to deactivation;\n\n (g) the treatment of data relating to the work performed by employee‑like workers.\n\n (2A) Before the Minister makes a code under subsection (1), the Minister must be satisfied that there has been such public consultation in relation to the development of the code as the Minister considers appropriate.\n\n (2B) The Minister may, by legislative instrument, vary or revoke the Digital Labour Platform Deactivation Code.\n\n (2C) Before the Minister varies or revokes the Digital Labour Platform Deactivation Code under subsection (2B), the Minister must be satisfied that there has been such public consultation in relation to the variation or revocation as the Minister considers appropriate.\n\n (2D) Subsection (2C) does not apply in relation to a variation if the Minister considers the variation is minor or technical.\n\n (3) A person’s deactivation was consistent with the Digital Labour Platform Deactivation Code if, at the time of the deactivation, the digital labour platform operator complied with the Digital Labour Platform Deactivation Code in relation to the deactivation.","sortOrder":1216},{"sectionNumber":"536LK","sectionType":"section","heading":"What is an unfair termination","content":"536LK  What is an unfair termination\n\n  A person has been unfairly terminated if:\n\n (a) the person was performing work in the road transport industry; and\n\n (b) the person has been terminated; and\n\n (c) the termination was unfair; and\n\n (d) the termination was not consistent with the Road Transport Industry Termination Code.","sortOrder":1218},{"sectionNumber":"536LL","sectionType":"section","heading":"Meaning of terminated","content":"536LL  Meaning of terminated\n\n  A person has been terminated if:\n\n (a) the person performed work as a regulated road transport contractor under a services contract; and\n\n (b) a road transport business received services under the services contract; and\n\n (c) the services contract was terminated by, or as a result of conduct of, the road transport business.","sortOrder":1219},{"sectionNumber":"536LM","sectionType":"section","heading":"Criteria for considering whether a termination was unfair etc.","content":"536LM  Criteria for considering whether a termination was unfair etc.\n\n (1) In considering whether it is satisfied that a termination was unfair, the FWC must take into account:\n\n (a) whether there was a valid reason for the termination related to the person’s capacity or conduct; and\n\n (b) whether any relevant processes specified in the Road Transport Industry Termination Code were followed; and\n\n (c) any other matters that the FWC considers relevant.\n\n (2) Despite subsection (1) and any other provision of this Part, a termination that occurs because of serious misconduct of the person who was deactivated is not unfair.","sortOrder":1220},{"sectionNumber":"536LN","sectionType":"section","heading":"Minister to make Road Transport Industry Termination Code","content":"536LN  Minister to make Road Transport Industry Termination Code\n\n (1) The Minister may, by legislative instrument, make a code to be known as the Road Transport Industry Termination Code.\n\n (2) Without limiting the matters covered by the Road Transport Industry Termination Code, the code must deal with the following matters:\n\n (a) matters that constitute or may constitute a valid reason for termination;\n\n (b) rights of response to terminations;\n\n (c) the internal processes of road transport businesses in relation to a termination;\n\n (d) communication between the regulated road transport contractor and road transport business in relation to a termination.\n\n (3) A person’s termination was consistent with the Road Transport Industry Termination Code if, immediately before the time of the termination, or at the time the person was given notice of the termination (whichever happened first), the regulated road transport business that terminated the services contract concerned or as a result of whose conduct the services contract concerned was terminated, complied with the Road Transport Industry Termination Code.","sortOrder":1221},{"sectionNumber":"536LP","sectionType":"section","heading":"When the FWC may order remedy for unfair deactivation","content":"536LP  When the FWC may order remedy for unfair deactivation\n\n (1) Subject to subsection (3), the FWC may order a person’s reactivation if:\n\n (a) the FWC is satisfied that the person was protected from unfair deactivation (see section 536LD) at the time of being deactivated; and\n\n (b) the person has been unfairly deactivated (see Division 2).\n\n (2) The FWC may make the order only if the person has made an application under section 536LU.\n\n (3) The FWC must not order the payment of compensation to the person.\n\nNote: Division 5 deals with procedural matters such as applications for remedies.","sortOrder":1224},{"sectionNumber":"536LQ","sectionType":"section","heading":"Remedy—reactivation etc.","content":"536LQ  Remedy—reactivation etc.\n\nReactivation\n\n (1) An order for a person’s reactivation must be an order that the digital labour platform operator who operated the digital labour platform at the time of the deactivation take measures to restore the person to the position they would have been in but for the deactivation, including as follows:\n\n (a) if the person’s access to the digital labour platform was suspended—by removing the suspension;\n\n (b) if the person’s access to the digital labour platform was terminated—by reinstating the person’s access to the digital labour platform;\n\n (c) by modifying the person’s access to the digital labour platform so that the access is as it was before the person’s access to the digital labour platform was terminated or suspended.\n\n (2) If:\n\n (a) the digital labour platform (the original digital labour platform) from which the person was deactivated no longer exists; and\n\n (b) a similar digital labour platform (the second digital labour platform) is operated by an associated entity of the operator of the original digital labour platform;\n\nthe order under subsection (1) may be an order to the associated entity to provide access to the second digital labour platform on terms and conditions no less favourable than those immediately before the person’s access to the original digital labour platform was terminated or suspended.\n\nOrder to restore lost pay\n\n (3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the digital labour platform operator or the associated entity to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the deactivation.\n\n (4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:\n\n (a) the amount of any remuneration earned by the person from work of any kind during the period between the deactivation and the making of the order for reactivation; and\n\n (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 reactivation and the actual reactivation.","sortOrder":1225},{"sectionNumber":"536LR","sectionType":"section","heading":"When the FWC may order remedy for unfair termination","content":"536LR  When the FWC may order remedy for unfair termination\n\n (1) Subject to subsection (3), the FWC may order that a new contract be entered into, or the payment of compensation to a person, if:\n\n (a) the FWC is satisfied that the person was protected from unfair termination (see section 536LE) at the time of being terminated; and\n\n (b) the person has been unfairly terminated (see Division 3).\n\n (2) The FWC may make the order only if the person has made an application under section 536LU.\n\n (3) The FWC must not order the payment of compensation to the person unless:\n\n (a) the FWC is satisfied that entering into a new services contract would be inappropriate; and\n\n (b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.\n\nNote: Division 5 deals with procedural matters such as applications for remedies.","sortOrder":1227},{"sectionNumber":"536LS","sectionType":"section","heading":"Remedy—new contract, etc.","content":"536LS  Remedy—new contract, etc.\n\nReinstatement\n\n (1) An order for a new contract must be an order that the road transport business at the time of the termination enter into a new contract in the same terms as the services contract at the time of the termination or with such variations as the FWC considers appropriate.\n\n (2) If:\n\n (a) the road transport business at the time of the termination is no longer a road transport business; and\n\n (b) an associated entity of the road transport business is a road transport business;\n\nthe order under subsection (1) may be an order to the associated entity to enter into a new contract on terms and conditions no less favourable than the services contract immediately before the termination, with such variations as the FWC considers appropriate.\n\nOrder to restore lost pay\n\n (3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the road transport business to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the termination.\n\n (4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:\n\n (a) the amount of any remuneration earned by the person from work of any kind during the period between the termination and the making of the order that the road transport business enter into a new services contract with the person; and\n\n (b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order that the road transport business enter into a new services contract with the person and when the new services contract is entered into.","sortOrder":1228},{"sectionNumber":"536LT","sectionType":"section","heading":"Remedy—compensation","content":"536LT  Remedy—compensation\n\nCompensation\n\n (1) An order for the payment of compensation to a person must be an order that the road transport business at the time of the termination pay compensation to the person in lieu of entering into a new services contract.\n\nCriteria for deciding amounts\n\n (2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:\n\n (a) the effect of the order on the viability of the road transport business; and\n\n (b) the remuneration that the person would have received, or would have been likely to receive, if the person had not been terminated; and\n\n (c) the efforts of the person (if any) to mitigate the loss suffered because of the termination; and\n\n (d) the amount of any remuneration earned by the person from work of any kind during the period between the termination and the making of the order for compensation; and\n\n (e) 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\n\n (f) any other matter that the FWC considers relevant.\n\nMisconduct reduces amount\n\n (3) If the FWC is satisfied that misconduct of a person contributed to the road transport business’s decision to terminate the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.\n\nShock, distress etc. disregarded\n\n (4) The amount ordered by the FWC 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 termination.\n\nCompensation cap\n\n (5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:\n\n (a) the amount worked out under subsection (6); and\n\n (b) half the amount of the contractor high income threshold immediately before the termination.\n\n (6) The amount is the total amount of remuneration received by the person or to which the person was entitled (whichever is higher) for any period during which the person performed work under the services contract during the 26 weeks immediately before the termination.","sortOrder":1229},{"sectionNumber":"536LU","sectionType":"section","heading":"Application for unfair deactivation or unfair termination remedy","content":"536LU  Application for unfair deactivation or unfair termination remedy\n\n (1) A person who has been deactivated or terminated may apply to the FWC for an order under Division 4 granting a remedy.\n\nNote 1: Division 4 sets out when the FWC may order a remedy for unfair deactivation or unfair termination.\n\nNote 2: For application fees, see section 536LV.\n\nNote 3: Part 6‑1 may prevent an application being made under this Part in relation to a deactivation or termination if an application or complaint has been made in relation to the deactivation or termination other than under this Part.\n\n (2) A person must not make an application under subsection (1) unless 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 contractor high income threshold.\n\n (3) The application must be made:\n\n (a) within 21 days after the deactivation or termination took effect; or\n\n (b) within such further period as the FWC allows under subsection (4).\n\n (4) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:\n\n (a) the reason for the delay; and\n\n (b) whether the person first became aware of the deactivation or termination after it had taken effect; and\n\n (c) any action taken by the person to dispute the deactivation or termination; and\n\n (d) prejudice to the regulated business (including prejudice caused by the delay); and\n\n (e) the merits of the application; and\n\n (f) fairness as between the person and other regulated workers in a similar position; and\n\n (g) any processes specified in the Digital Labour Platform Deactivation Code or the Road Transport Industry Termination Code, as the case requires.","sortOrder":1231},{"sectionNumber":"536LV","sectionType":"section","heading":"Application fees","content":"536LV  Application fees\n\n (1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.\n\n (2) The regulations may prescribe:\n\n (a) a fee for making an application to the FWC under this Division; and\n\n (b) a method for indexing the fee; and\n\n (c) the circumstances in which all or part of the fee may be waived or refunded.","sortOrder":1232},{"sectionNumber":"536LW","sectionType":"section","heading":"Initial matters to be considered before merits","content":"536LW  Initial matters to be considered before merits\n\n  The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:\n\n (a) whether the application was made within the period required in subsection 536LU(3);\n\n (b) whether the person was protected from unfair deactivation or unfair termination, as the case requires;\n\n (c) whether the deactivation or termination was consistent with the Digital Labour Platform Deactivation Code or the Road Transport Industry Termination Code, as the case requires.","sortOrder":1233},{"sectionNumber":"536LX","sectionType":"section","heading":"Matters involving contested facts","content":"536LX  Matters involving contested facts\n\n (1) The FWC 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.\n\n (2) However, the FWC may make a decision in relation to the matter without either conducting a conference or holding a hearing if:\n\n (a) it appears to the FWC that the matter can be adequately determined in the absence of the parties to the matter; and\n\n (b) the parties to the matter consent to the FWC making a decision in relation to the matter without conducting a conference or holding a hearing.","sortOrder":1234},{"sectionNumber":"536LY","sectionType":"section","heading":"Conferences","content":"536LY  Conferences\n\n (1) This section applies in relation to a matter arising under this Part if the FWC conducts a conference in relation to the matter.\n\n (2) Despite subsection 592(3), the FWC must conduct the conference in private.\n\n (3) The FWC must take into account any difference in the circumstances of the parties to the matter in:\n\n (a) considering the application; and\n\n (b) informing itself in relation to the application.\n\n (4) The FWC must take into account the wishes of the parties to the matter as to the way in which the FWC:\n\n (a) considers the application; and\n\n (b) informs itself in relation to the application.","sortOrder":1235},{"sectionNumber":"536LZ","sectionType":"section","heading":"Hearings","content":"536LZ  Hearings\n\n (1) The FWC must not hold a hearing in relation to a matter arising under this Part unless the FWC considers it appropriate to do so, taking into account:\n\n (a) the views of the parties to the matter; and\n\n (b) whether a hearing would be the most effective and efficient way to resolve the matter.\n\n (2) If the FWC 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.\n\n (3) The FWC 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.","sortOrder":1236},{"sectionNumber":"536M","sectionType":"section","heading":"Dismissing applications","content":"536M  Dismissing applications\n\n (1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:\n\n (a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or\n\n (b) failed to comply with a direction or order of the FWC relating to the application; or\n\n (c) failed to discontinue the application after a settlement agreement has been concluded.\n\nNote 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.\n\nNote 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 536MB).\n\n (2) The FWC may exercise its power under subsection (1) on application by a regulated business.\n\n (3) This section does not limit when the FWC may dismiss an application.","sortOrder":1237},{"sectionNumber":"536MA","sectionType":"section","heading":"Appeal rights","content":"536MA  Appeal rights\n\n (1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.\n\n (2) Despite subsection 604(1), an appeal from a decision made by the FWC 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.","sortOrder":1238},{"sectionNumber":"536MB","sectionType":"section","heading":"Costs orders against parties","content":"536MB  Costs orders against parties\n\n (1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.\n\n (2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 536MD.\n\n (3) This section does not limit the FWC’s power to order costs under section 611.","sortOrder":1239},{"sectionNumber":"536MC","sectionType":"section","heading":"Costs orders against lawyers and paid agents","content":"536MC  Costs orders against lawyers and paid agents\n\n (1) This section applies if:\n\n (a) an application for an unfair deactivation or unfair termination remedy has been made under section 536LU; and\n\n (b) a person who is a party to the matter has engaged a lawyer or paid agent (the representative) to represent the person in the matter; and\n\n (c) under section 596, the person is required to seek the FWC’s permission to be represented by the representative.\n\n (2) The FWC may make an order for costs against the representative for costs incurred by the other party to the matter if the FWC is satisfied that the representative caused those costs to be incurred because:\n\n (a) the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or\n\n (b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.\n\n (3) The FWC may make an order under this section only if the other party to the matter has applied for it in accordance with section 536MD.\n\n (4) This section does not limit the FWC’s power to order costs under section 611.","sortOrder":1240},{"sectionNumber":"536MD","sectionType":"section","heading":"Applications for costs orders","content":"536MD  Applications for costs orders\n\n  An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 536MB or 536MC, must be made within 14 days after:\n\n (a) the FWC determines the matter; or\n\n (b) the matter is discontinued.","sortOrder":1241},{"sectionNumber":"536ME","sectionType":"section","heading":"Schedule of costs","content":"536ME  Schedule of costs\n\n (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:\n\n (a) under section 611 in relation to a matter arising under this Part; or\n\n (b) under section 536MB or 536MC;\n\nincluding expenses arising from the representation of a party by a person or organisation other than on a legal professional basis.\n\n (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 536MB or 536MC, the FWC:\n\n (a) is not limited to the items of expenditure appearing in the schedule; but\n\n (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.","sortOrder":1242},{"sectionNumber":"536MF","sectionType":"section","heading":"Security for costs","content":"536MF  Security for costs\n\n  The procedural rules may provide for the furnishing of security for the payment of costs in relation to matters arising under this Part.","sortOrder":1243},{"sectionNumber":"536MG","sectionType":"section","heading":"Contravening orders under this Part","content":"536MG  Contravening orders under this Part\n\n  A person to whom an order under this Part applies must not contravene a term of the order.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":1244},{"sectionNumber":"Part 3A-4","sectionType":"part","heading":"Collective agreements for regulated workers","content":"Part 3A‑4—Collective agreements for regulated workers","sortOrder":1245},{"sectionNumber":"536MH","sectionType":"section","heading":"Guide to this Part","content":"536MH  Guide to this Part\n\nThis Part is about collective agreements. A collective agreement is made between a regulated business, specifically a digital labour platform operator or a road transport business, and an organisation.\n\nA collective agreement provides terms and conditions for the regulated workers to whom it applies.\n\nDivision 2 deals with the making of collective agreements and provides for the giving of consultation notices, and for the notification of regulated workers.\n\nDivision 3 deals with the registration of collective agreements by the FWC.\n\nDivision 4 deals with the variation of collective agreements.\n\nDivision 5 deals with the termination of collective agreements.\n\nDivision 6 deals with terms of a collective agreement that are of no effect.","sortOrder":1247},{"sectionNumber":"536MJ","sectionType":"section","heading":"Object of this Part","content":"536MJ  Object of this Part\n\n  The object of this Part is to provide a simple, flexible and fair framework that enables collective agreements to be made by consent for:\n\n (a) employee‑like workers;\n\n (b) regulated road transport contractors.","sortOrder":1248},{"sectionNumber":"536MK","sectionType":"section","heading":"Making a collective agreement","content":"536MK  Making a collective agreement\n\n (1) This section provides for the making of an agreement (a collective agreement) between a regulated business and an organisation that is entitled to represent the industrial interests of one or more regulated workers.\n\nCollective agreement for employee‑like workers\n\n (2) A collective agreement may be made between a digital labour platform operator and an organisation that is entitled to represent the industrial interests of one or more employee‑like workers, in respect of the following:\n\n (a) the terms and conditions on which employee‑like workers covered by the collective agreement perform digital platform work:\n\n (i) under a services contract to which the digital labour platform operator is a party; or\n\n (ii) under a services contract arranged or facilitated through or by means of the digital labour platform operated by the digital labour platform operator;\n\n (b) how the collective agreement will operate.\n\nNote: For when a collective agreement covers a digital labour platform operator, an employee‑like worker or an organisation, see section 536JM.\n\nCollective agreement for regulated road transport contractors\n\n (3) A collective agreement may be made between a road transport business and an organisation that is entitled to represent the industrial interests of one or more regulated road transport contractors, in respect of the following:\n\n (a) the terms and conditions on which regulated road transport contractors covered by the collective agreement perform work under services contracts to which the road transport business is a party;\n\n (b) how the collective agreement will operate.\n\nNote: For when a collective agreement covers a road transport business, a regulated road transport contractor or an organisation, see section 536JM.\n\n (4) A collective agreement referred to in subsection (2) is an employee‑like worker collective agreement.\n\n (5) A collective agreement referred to in subsection (3) is a road transport collective agreement.","sortOrder":1250},{"sectionNumber":"536ML","sectionType":"section","heading":"Notice of consultation period for a proposed collective agreement","content":"536ML  Notice of consultation period for a proposed collective agreement\n\n (1) The following entities may initiate a consultation period for a proposed collective agreement by giving a notice under this section (a consultation notice for the agreement):\n\n (a) a regulated business that will be covered by the proposed collective agreement;\n\n (b) an organisation that is entitled to represent the industrial interests of one or more regulated workers who will be covered by the proposed collective agreement.\n\nGeneral matters to be specified in a consultation notice\n\n (2) A consultation notice for a proposed collective agreement must specify the following:\n\n (a) that the entity giving the notice (the notifying entity) proposes to try to make a collective agreement under this Part;\n\n (b) whichever of the following is applicable:\n\n (i) if the notifying entity is a regulated business—the name of the organisation to which the consultation notice is given;\n\n (ii) otherwise—the name of the organisation giving the consultation notice;\n\n (c) the matters that are to be dealt with by the proposed collective agreement;\n\n (d) the regulated business that will be covered by the proposed collective agreement;\n\n (e) the class of regulated workers who will be covered by the proposed collective agreement.","sortOrder":1251},{"sectionNumber":"536MM","sectionType":"section","heading":"Consultation notice to be given to FWC, etc.","content":"536MM  Consultation notice to be given to FWC, etc.\n\n (1) A consultation notice for a proposed collective agreement must be given on the same day:\n\n (a) to the FWC; and\n\n (b) to whichever of the following is applicable:\n\n (i) if the notifying entity is a regulated business—to an organisation that is entitled to represent the industrial interests of the regulated workers who will be covered by the proposed collective agreement;\n\n (ii) otherwise—to the regulated business that will be covered by the agreement.\n\n (2) The notifying entity for a consultation notice, and the entity to which the consultation notice is given, are the negotiating entities for the proposed collective agreement.\n\n (3) The FWC must publish a copy of the consultation notice on the FWC’s website.","sortOrder":1252},{"sectionNumber":"536MN","sectionType":"section","heading":"Notice to be given to regulated workers","content":"536MN  Notice to be given to regulated workers\n\n (1) After a consultation notice has been given for a proposed collective agreement, either negotiating entity for the agreement must, with the consent of the other negotiating entity, make reasonable efforts to give a notice under this section to whichever of the following is applicable:\n\n (a) for a proposed employee‑like worker collective agreement—each eligible employee‑like worker for the proposed collective agreement (see subsection (3));\n\n (b) for a proposed road transport collective agreement—each eligible regulated road transport contractor for the proposed collective agreement (see subsection (4)).\n\n (2) A notice given under subsection (1) must specify the following:\n\n (a) the regulated business that will be covered by the proposed collective agreement;\n\n (b) the class of regulated workers that will be covered by the proposed collective agreement, and that the regulated worker to whom the notice is given is included in that class;\n\n (c) the organisation that will sign the proposed collective agreement on behalf of the regulated workers;\n\n (d) the matters proposed to be dealt with in the proposed collective agreement.\n\n (3) For the purposes of this section, an eligible employee‑like worker for a proposed employee‑like worker collective agreement is an employee‑like worker who, at any time during the period of 28 days before the consultation notice was given, was performing work under a services contract:\n\n (a) through or by means of a digital labour platform operated by the digital labour platform operator that will be covered by the proposed collective agreement; or\n\n (b) arranged or facilitated through or by means of a digital labour platform operated by the digital labour platform operator that will be covered by the proposed collective agreement.\n\n (4) For the purposes of this section, an eligible regulated road transport contractor for a proposed road transport collective agreement is a regulated road transport contractor who, at any time during the period of 28 days before the consultation notice was given, was performing work under a services contract to which a road transport business that will be covered by the proposed collective agreement is a party.","sortOrder":1253},{"sectionNumber":"536MP","sectionType":"section","heading":"Application for the FWC to deal with a dispute","content":"536MP  Application for the FWC to deal with a dispute\n\n (1) If the negotiating entities for a proposed collective agreement are unable to resolve a dispute about the making of the agreement, either negotiating entity may apply to the FWC for the FWC to deal with the dispute.\n\n (2) If an application is made under subsection (1), the FWC must deal with the dispute (other than by arbitration).\n\nNote: For the purposes of this section, the FWC may deal with the dispute as it considers appropriate, including by mediation, conciliation, making a recommendation or expressing an opinion (see subsection 595(2)).\n\n (3) The FWC may dismiss an application under subsection (1) if the FWC is satisfied that there are no reasonable prospects of the negotiating entities for the proposed collective agreement making a collective agreement.\n\nNote: For another power of the FWC to dismiss an application, see section 587.","sortOrder":1254},{"sectionNumber":"536MQ","sectionType":"section","heading":"Negotiating entity may request that other negotiating entity sign a proposed collective agreement","content":"536MQ  Negotiating entity may request that other negotiating entity sign a proposed collective agreement\n\n (1) A negotiating entity for a proposed collective agreement may request the other negotiating entity for the agreement to sign the agreement.\n\n (2) A request under subsection (1) must not be made earlier than 30 days after the last day on which a notice was given to an employee‑like worker or a regulated road transport contractor, as the case requires, under subsection 536MN(1) in relation to the proposed collective agreement.\n\n (3) The collective agreement is made when both of the negotiating parties for the agreement sign the agreement.","sortOrder":1255},{"sectionNumber":"536MR","sectionType":"section","heading":"Application to the FWC to register a collective agreement","content":"536MR  Application to the FWC to register a collective agreement\n\n (1) If a collective agreement is made, a negotiating entity for the agreement that signed the agreement may, with the consent of the other negotiating entity for the agreement, apply to the FWC to register the agreement.\n\nMaterial to accompany the application\n\n (2) The application must be accompanied by a signed copy of the collective agreement, which must identify the following:\n\n (a) the regulated business covered by the collective agreement;\n\n (b) the organisation covered by the collective agreement;\n\n (c) the class of regulated workers covered by the collective agreement.\n\n (3) The application must be accompanied by a declaration signed by the regulated business and the organisation covered by the collective agreement, which must:\n\n (a) state that the regulated business and the organisation explained the terms of the agreement and their effect to the regulated workers covered by the agreement, and a description of the explanation; and\n\n (b) state that the regulated business or the organisation, as the case requires, made reasonable efforts to give a notice under paragraph 536MN(1)(a) or (b) to the regulated workers referred to in whichever of those paragraphs is applicable; and\n\n (c) state that none of the following were subject to any form of duress in relation to the making of the collective agreement:\n\n (i) the regulated business covered by the collective agreement;\n\n (ii) the organisation covered by the collective agreement;\n\n (iii) a regulated worker to whom a notice was given under paragraph 536MN(1)(a) or (b); and\n\n (e) if a minimum standards order is in operation that covers the same class of regulated workers as the collective agreement covers—specify:\n\n (i) the minimum standards order; and\n\n (ii) in relation to each matter dealt with by a term of the collective agreement that is also dealt with by a term of the minimum standards order—how the term of the collective agreement is more beneficial to the regulated workers covered by the collective agreement in relation to that matter than the term of the order in relation to that matter.\n\n (4) The application must be accompanied by any other declaration required by the procedural rules.","sortOrder":1257},{"sectionNumber":"536MS","sectionType":"section","heading":"FWC must register collective agreement","content":"536MS  FWC must register collective agreement\n\n (1) If an application for the registration of a collective agreement is made under subsection 536MR(1), the FWC must register the agreement if the requirements of section 536MR and subsections (2), (3) and (3A) of this section are met in relation to the agreement.\n\n (2) The FWC must be satisfied that the collective agreement includes a term that provides a procedure that requires or allows the FWC, or another person who is independent of the persons covered by the agreement, to settle disputes:\n\n (a) about any matters arising under the collective agreement; and\n\n (b) that allows for the representation of regulated workers covered by the collective agreement for the purposes of that procedure.\n\n (3) The FWC must be satisfied that the collective agreement includes the following:\n\n (a) a term that provides for its period of operation;\n\n (b) a term that provides for requirements in relation to terminating the collective agreement before the end of that period.\n\n (3A) The FWC must be satisfied that the operation of the agreement would not be contrary to the public interest, taking into account the object of this Part set out in section 536MJ.\n\n (4) The FWC must publish a copy of the collective agreement and the declaration referred to in subsection 536MR(3) on the FWC’s website.","sortOrder":1258},{"sectionNumber":"536MT","sectionType":"section","heading":"Application for variation of a collective agreement","content":"536MT  Application for variation of a collective agreement\n\n (1) The following may apply for a variation of a collective agreement that is in operation:\n\n (a) the regulated business covered by the collective agreement;\n\n (b) the organisation covered by the collective agreement.\n\nMaterial to accompany the application\n\n (2) The application must be accompanied by a signed copy of the collective agreement as proposed to be varied, which must identify the following:\n\n (a) the regulated business covered by the collective agreement;\n\n (b) the organisation covered by the collective agreement;\n\n (c) the class of regulated workers covered by the collective agreement as proposed to be varied.\n\n (3) The application must be accompanied by a declaration signed by the regulated business and the organisation covered by the collective agreement, which must:\n\n (a) state that the regulated business and the organisation explained the terms of the agreement and their effect to the regulated workers covered by the agreement as proposed to be varied, and a description of the explanation; and\n\n (b) if a minimum standards order is in operation that covers the same class of regulated workers as the collective agreement as proposed to be varied—specify:\n\n (i) the minimum standards order; and\n\n (ii) in relation to each matter dealt with by a term of the collective agreement as proposed to be varied that is also dealt with by a term of the minimum standards order—how the term of the collective agreement as proposed to be varied is more beneficial to the regulated workers covered by the collective agreement as proposed to be varied, in relation to that matter, than the term of the order in relation to that matter; and\n\n (c) that no regulated worker, regulated business or organisation covered by the collective agreement as proposed to be varied was subject to any form of duress in relation to the variation.\n\n (4) The application must be accompanied by any other declaration required by the procedural rules.","sortOrder":1260},{"sectionNumber":"536MU","sectionType":"section","heading":"FWC must vary collective agreement","content":"536MU  FWC must vary collective agreement\n\n (1) If an application for a variation of a collective agreement is made under subsection 536MT(1), the FWC must register the agreement as varied if the requirements of section 536MT and subsection (1A) of this section are met in relation to the variation.\n\n (1A) The FWC must be satisfied that variation of the agreement would not be contrary to the public interest, taking into account the object of this Part set out in section 536MJ.\n\n (2) The FWC must publish a copy of the collective agreement as varied and the declaration referred to in subsection 536MT(3) on the FWC’s website.\n\n (3) The variation comes into operation when the agreement as varied is registered.","sortOrder":1261},{"sectionNumber":"536MV","sectionType":"section","heading":"FWC must be notified of termination","content":"536MV  FWC must be notified of termination\n\n (1) This section applies if a collective agreement has been terminated in accordance with the process specified in the agreement for terminating the agreement before the end of its period of operation.\n\n (2) The regulated business or the organisation covered by the collective agreement must, with the consent of the other, notify the FWC of the termination on the date the agreement is terminated.\n\nDeclaration that must accompany application\n\n (3) The notice under subsection (2) must be accompanied by a declaration signed by the regulated business and the organisation covered by the collective agreement:\n\n (a) stating that the collective agreement has been terminated in accordance with the process; and\n\n (b) specifying the date of effect of the termination.\n\n (4) The notice must be accompanied by any other declaration required by the procedural rules.","sortOrder":1263},{"sectionNumber":"536MW","sectionType":"section","heading":"FWC must register termination notice","content":"536MW  FWC must register termination notice\n\n (1) If a notice is given to the FWC under subsection 536MV(2) in relation to a collective agreement, the FWC must register the termination by publishing a notice on the FWC’s website:\n\n (a) stating that the collective agreement has been terminated; and\n\n (b) specifying the date of effect of the termination specified in the declaration under paragraph 536MV(3)(b).\n\n (2) The collective agreement ceases to operate on the date of effect of the termination specified in the declaration under paragraph 536MV(3)(b).","sortOrder":1264},{"sectionNumber":"536MX","sectionType":"section","heading":"Terms of a collective agreement that are of no effect","content":"536MX  Terms of a collective agreement that are of no effect\n\n (1) A term of a collective agreement has no effect to the extent that it is a term about a matter other than a matter mentioned in subsection 536MK(2) or (3).\n\n (2) A term of a collective agreement has no effect to the extent that it deals with matters that are primarily of a commercial nature that do not affect the terms and conditions of engagement of regulated workers covered by the agreement.\n\n (3) However, if a collective agreement includes a term that has no effect because of subsection (1) or (2), the inclusion of the term does not prevent the agreement from being a collective agreement.","sortOrder":1266},{"sectionNumber":"Part 3A-5","sectionType":"part","heading":"Unfair contract terms of services contracts","content":"Part 3A‑5—Unfair contract terms of services contracts","sortOrder":1267},{"sectionNumber":"536MY","sectionType":"section","heading":"Guide to this Part","content":"536MY  Guide to this Part\n\nThis Part is about unfair contract terms of services contracts.\n\nIt provides a framework for dealing with unfair contract terms.","sortOrder":1269},{"sectionNumber":"536MZ","sectionType":"section","heading":"Meaning of employee and employer","content":"536MZ  Meaning of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.","sortOrder":1270},{"sectionNumber":"536N","sectionType":"section","heading":"Object of Part","content":"536N  Object of Part\n\n (1) The object of this Part is:\n\n (a) to establish a framework for dealing with unfair contract terms of services contracts that:\n\n (i) balances the needs of principals and the needs of independent contractors; and\n\n (ii) addresses the need for a level playing field between independent contractors and principals by creating disincentives to the inclusion of unfair contract terms in services contracts; and\n\n (iii) recognises and protects the freedom of independent contractors to enter into services contracts; and\n\n (b) to establish procedures for dealing with unfair contract terms that:\n\n (i) are quick, flexible and informal; and\n\n (ii) address the needs of principals and independent contractors; and\n\n (c) to provide appropriate remedies if a term of a services contract is found to be unfair.\n\n (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 principals and independent contractors concerned.\n\nNote: The expression “fair go all round” was used by Sheldon J in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.","sortOrder":1272},{"sectionNumber":"536NA","sectionType":"section","heading":"When the FWC may make an order in relation to an unfair contract term of a services contract","content":"536NA  When the FWC may make an order in relation to an unfair contract term of a services contract\n\n (1) The FWC may make an order under this Part in relation to a services contract if the FWC is satisfied that the services contract includes one or more unfair contract terms which, in an employment relationship, would relate to workplace relations matters.\n\n (2) The FWC may make the order only if a person has made an application under section 536ND in relation to the services contract.\n\n (3) The FWC must take into account fairness between the parties concerned in deciding whether to make an order under this Division, and the kind of order to make.","sortOrder":1274},{"sectionNumber":"536NB","sectionType":"section","heading":"Matters to be considered in deciding whether a term of a services contract is an unfair contract term","content":"536NB  Matters to be considered in deciding whether a term of a services contract is an unfair contract term\n\n (1) In determining whether a term of a services contract is an unfair contract term, the FWC may take into account the following matters:\n\n (a) the relative bargaining power of the parties to the services contract;\n\n (b) whether the services contract as a whole displays a significant imbalance between the rights and obligations of the parties;\n\n (c) whether the contract term under consideration is reasonably necessary to protect the legitimate interests of a party to the contract;\n\n (d) whether the contract term under consideration imposes a harsh, unjust or unreasonable requirement on a party to the contract;\n\n (e) whether the services contract as a whole provides for a total remuneration for performing work that is:\n\n (i) less than regulated workers performing the same or similar work would receive under a minimum standards order or minimum standards guidelines; or\n\n (ii) less than employees performing the same or similar work would receive;\n\n (f) any other matter the FWC considers relevant.\n\n (2) The matters in paragraphs (1)(b) to (f) are to be assessed as at the time the FWC considers the application.","sortOrder":1275},{"sectionNumber":"536NC","sectionType":"section","heading":"Remedy—order to set aside etc. contract","content":"536NC  Remedy—order to set aside etc. contract\n\n  The FWC may make an order under this section:\n\n (a) setting aside all or part of a services contract which, in an employment relationship, would relate to a workplace relations matter; or\n\n (b) amending or varying all or part of a services contract which, in an employment relationship, would relate to a workplace relations matter.","sortOrder":1276},{"sectionNumber":"536ND","sectionType":"section","heading":"Application for unfair contract term remedy","content":"536ND  Application for unfair contract term remedy\n\n (1) A person who is party to a services contract, or an organisation that represents the industrial interests of a person who is party to a services contract, may apply to the FWC for an order under Division 3 granting a remedy on the basis that the services contract contains a term that is unfair.\n\n (2) An application must not be made in relation to a services contract unless, in the year the application is made, 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 contractor high income threshold.\n\nNote: Division 3 sets out when the FWC may order a remedy for an unfair contract term.","sortOrder":1278},{"sectionNumber":"536NE","sectionType":"section","heading":"Application fees","content":"536NE  Application fees\n\n (1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.\n\n (2) The regulations may prescribe:\n\n (a) a fee for making an application to the FWC under this Division; and\n\n (b) a method for indexing the fee; and\n\n (c) the circumstances in which all or part of the fee may be waived or refunded.","sortOrder":1279},{"sectionNumber":"536NF","sectionType":"section","heading":"Conferences","content":"536NF  Conferences\n\n (1) This section applies in relation to a matter arising under this Part if the FWC conducts a conference in relation to the matter.\n\n (2) Despite subsection 592(3), the FWC must conduct the conference in private.\n\n (3) The FWC must take into account any difference in the circumstances of the parties to the matter in:\n\n (a) considering the application; and\n\n (b) informing itself in relation to the application.\n\n (4) The FWC must take into account the wishes of the parties to the matter as to the way in which the FWC:\n\n (a) considers the application; and\n\n (b) informs itself in relation to the application.","sortOrder":1280},{"sectionNumber":"536NG","sectionType":"section","heading":"Hearings","content":"536NG  Hearings\n\n (1) The FWC must not hold a hearing in relation to a matter arising under this Part unless the FWC considers it appropriate to do so, taking into account:\n\n (a) the views of the parties to the matter; and\n\n (b) whether a hearing would be the most effective and efficient way to resolve the matter.\n\n (2) If the FWC 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.\n\n (3) The FWC 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.","sortOrder":1281},{"sectionNumber":"536NH","sectionType":"section","heading":"Dismissing applications","content":"536NH  Dismissing applications\n\n (1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 3 if the FWC is satisfied that the applicant has unreasonably:\n\n (a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or\n\n (b) failed to comply with a direction or order of the FWC relating to the application; or\n\n (c) failed to discontinue the application after a settlement agreement has been concluded.\n\nNote: For another power of the FWC to dismiss applications for orders under Division 3, see section 587.\n\n (2) The FWC may exercise its power under subsection (1) on application by a party to the matter or an organisation entitled to represent the industrial interests of a party to the matter.\n\n (3) This section does not limit when the FWC may dismiss an application.","sortOrder":1282},{"sectionNumber":"536NJ","sectionType":"section","heading":"Appeal rights","content":"536NJ  Appeal rights\n\n (1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.\n\n (2) Despite subsection 604(1), an appeal from a decision made by the FWC 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.","sortOrder":1283},{"sectionNumber":"536NK","sectionType":"section","heading":"Contravening orders under this Part","content":"536NK  Contravening orders under this Part\n\n  A person must not contravene an order under this Part.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":1284},{"sectionNumber":"Part 3B-1","sectionType":"part","heading":"Core provisions for this Chapter","content":"Part 3B‑1—Core provisions for this Chapter","sortOrder":1285},{"sectionNumber":"536NL","sectionType":"section","heading":"Guide to this Part","content":"536NL  Guide to this Part\n\nThis Part is about the coverage and operation of the provisions of this Chapter.\n\nDivision 2 sets out when road transport contractual chain orders and road transport contractual chain guidelines cover persons in a road transport contractual chain.\n\nDivision 3 specifies the rules relating to the interaction of the provisions of this Chapter with State and Territory laws.","sortOrder":1287},{"sectionNumber":"536NM","sectionType":"section","heading":"Meaning of employee and employer","content":"536NM  Meaning of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.","sortOrder":1288},{"sectionNumber":"536NN","sectionType":"section","heading":"FWC to have regard to minimum standards objective","content":"536NN  FWC to have regard to minimum standards objective\n\n  The FWC must have regard to the minimum standards objective in performing a function or exercising a power under this Chapter.\n\nNote: The FWC must also have regard to the road transport objective as required by section 40D.","sortOrder":1289},{"sectionNumber":"536NP","sectionType":"section","heading":"Contravening a road transport contractual chain order","content":"536NP  Contravening a road transport contractual chain order\n\n  A person must not contravene a term of a road transport contractual chain order.\n\nNote 1: This section is a civil remedy provision (see Part 4‑1).\n\nNote 2: A person does not contravene a term of a road transport contractual chain order unless the order applies to the person: see subsection 536NQ(1).","sortOrder":1292},{"sectionNumber":"536NQ","sectionType":"section","heading":"The significance of a road transport contractual chain order applying to a person","content":"536NQ  The significance of a road transport contractual chain order applying to a person\n\n (1) A road transport contractual chain order does not impose obligations on a person, and a person does not contravene a term of a road transport contractual chain order, unless the order applies to the person.\n\n (2) A road transport contractual chain order does not give a person an entitlement unless the order applies to the person.","sortOrder":1293},{"sectionNumber":"536NR","sectionType":"section","heading":"When a road transport contractual chain order applies to a person","content":"536NR  When a road transport contractual chain order applies to a person\n\nWhen a road transport contractual chain order applies to a regulated road transport contractor or a road transport employee‑like worker\n\n (1) A road transport contractual chain order applies to a regulated road transport contractor or a road transport employee‑like worker in a road transport contractual chain if:\n\n (a) the road transport contractual chain order covers the regulated road transport contractor or road transport employee‑like worker; and\n\n (b) the road transport contractual chain order is in operation; and\n\n (c) no other provision of this Act provides, or has the effect, that the road transport contractual chain order does not apply to the regulated road transport contractor or road transport employee‑like worker.\n\nWhen a road transport contractual chain order applies to other persons in a road transport contractual chain\n\n (2) A road transport contractual chain order applies to a person in a road transport contractual chain, other than a regulated road transport contractor or a road transport employee‑like worker, if:\n\n (a) the road transport contractual chain order covers the person; and\n\n (b) a regulated road transport contractor or a road transport employee‑like worker to whom the road transport contractual chain order applies, or an employee, performs work for the person; and\n\n (c) the road transport contractual chain order is in operation; and\n\n (d) no other provision of this Act provides, or has the effect, that the road transport contractual chain order does not apply to the person.","sortOrder":1294},{"sectionNumber":"536NS","sectionType":"section","heading":"When a road transport contractual chain order covers a person in a road transport contractual chain","content":"536NS  When a road transport contractual chain order covers a person in a road transport contractual chain\n\n (1) A road transport contractual chain order covers a person in a road transport contractual chain if the order is expressed to cover the person.\n\nEffect of other provisions of this Act, FWC orders or court orders on coverage\n\n (2) A road transport contractual chain order also covers a person in a road transport contractual chain if any of the following provides, or has the effect, that the order covers the person:\n\n (a) a provision of this Act;\n\n (b) an FWC order made under a provision of this Act;\n\n (c) an order of a court.\n\n (3) Despite subsections (1) and (2), a road transport contractual chain order does not cover a person in a road transport contractual chain if any of the following provides, or has the effect, that the order does not cover the person:\n\n (a) a provision of this Act;\n\n (b) an FWC order made under a provision of this Act;\n\n (c) an order of a court.\n\nRoad transport contractual chain orders that have ceased to operate\n\n (4) Despite subsections (1) and (2), a road transport contractual chain order that has ceased to operate does not cover a person in a road transport contractual chain.","sortOrder":1295},{"sectionNumber":"536NT","sectionType":"section","heading":"When a road transport contractual chain order is in operation","content":"536NT  When a road transport contractual chain order is in operation\n\nWhen a road transport contractual chain order comes into operation\n\n (1) A road transport contractual chain order comes into operation on the day specified in the order.\n\n (2) The specified day must not be earlier than the day on which the road transport contractual chain order is made.\n\n (3) The specified day must not be earlier than 12 months after the relevant notice of intent for the order was published.\n\n (4) However, the FWC may reduce that 12‑month period to another period that the FWC considers is reasonable if:\n\n (a) the order is a time‑sensitive road transport contractual chain order; or\n\n (b) the FWC is satisfied that the circumstances urgently require it, and the period is at least 6 months after the relevant notice of intent for the order was published.\n\nWhen a determination varying or revoking a road transport contractual chain order comes into operation\n\n (5) A determination varying or revoking a road transport contractual chain order comes into operation on the day specified in the determination.\n\n (6) The specified day must not be earlier than the day on which the determination is made.\n\nRoad transport contractual chain orders operate until revoked\n\n (7) A road transport contractual chain order continues in operation until it is revoked.\n\nNotice of intent\n\n (8) The relevant notice of intent for a road transport contractual chain order is the notice of intent published under subsection 536PG(1) at the same time as the draft of the road transport contractual chain order was published.","sortOrder":1296},{"sectionNumber":"536NU","sectionType":"section","heading":"When road transport contractual chain guidelines cover a person in a road transport contractual chain","content":"536NU  When road transport contractual chain guidelines cover a person in a road transport contractual chain\n\n (1) Road transport contractual chain guidelines cover a person in a road transport contractual chain if the guidelines are expressed to cover the person.\n\nEffect of other provisions of this Act, FWC orders or court orders on coverage\n\n (2) Road transport contractual chain guidelines also cover a person in a road transport contractual chain if any of the following provides, or has the effect, that the guidelines cover the person:\n\n (a) a provision of this Act;\n\n (b) an FWC order made under a provision of this Act;\n\n (c) an order of a court.\n\n (3) Despite subsections (1) and (2), road transport contractual chain guidelines do not cover a person in a road transport contractual chain, if any of the following provides, or has the effect, that the guidelines do not cover the person:\n\n (a) a provision of this Act;\n\n (b) an FWC order made under a provision of this Act;\n\n (c) an order of a court.\n\nRoad transport contractual chain guidelines that have ceased to operate\n\n (4) Despite subsections (1) and (2), road transport contractual chain guidelines that have ceased to operate do not cover a person in a road transport contractual chain.","sortOrder":1297},{"sectionNumber":"536NV","sectionType":"section","heading":"When road transport contractual chain guidelines are in operation","content":"536NV  When road transport contractual chain guidelines are in operation\n\nWhen road transport contractual chain guidelines come into operation\n\n (1) Road transport contractual chain guidelines come into operation on the day specified in the guidelines.\n\n (2) The specified day must not be earlier than the day on which the road transport contractual chain guidelines are made.\n\nWhen a determination varying or revoking road transport contractual chain guidelines comes into operation\n\n (3) A determination varying or revoking road transport contractual chain guidelines comes into operation on the day specified in the determination.\n\n (4) The specified day must not be earlier than the day on which the determination is made.\n\nRoad transport contractual chain guidelines operate until revoked\n\n (5) Road transport contractual chain guidelines continue in operation until they are revoked.","sortOrder":1298},{"sectionNumber":"536NW","sectionType":"section","heading":"Exclusion of certain State and Territory laws","content":"536NW  Exclusion of certain State and Territory laws\n\n (1) For the purposes of this Chapter, the rights, entitlements, obligations and liabilities of a person in a road transport contractual chain are not affected by a law of a State or Territory to the extent that the law would otherwise do one or more of the following:\n\n (a) take or deem the person to be an employer or employee, or otherwise treat the person as if the person were an employer or employee, for the purposes of a law that relates to one or more workplace relations matters (or provide a means for the person to be so taken, deemed or treated);\n\n (b) confer or impose rights, entitlements, obligations or liabilities on the person in relation to matters that, in an employment relationship, would be workplace relations matters (or provide a means for rights, entitlements, obligations or liabilities in relation to such matters to be conferred or imposed on the person);\n\n (c) without limiting paragraphs (a) and (b)—expressly provide for a court, commission or tribunal to do any of the following in relation to a services contract on an unfairness ground:\n\n (i) make an order or determination (however described) setting aside, or declaring to be void or otherwise unenforceable, all or part of the services contract;\n\n (ii) make an order or determination (however described) amending or varying all or part of the services contract.\n\nNote 1: For the meaning of workplace relations matter, see section 536NX.\n\nNote 2: For the meaning of unfairness ground, see section 536NY.\n\n (2) The rights, entitlements, obligations and liabilities of a person in a road transport contractual chain are not affected by a law of a State or Territory that is specified in regulations made for the purposes of this subsection, to the extent that the law is so specified.\n\n (3) Subsection (1) does not apply in relation to:\n\n (a) a law of a State or Territory, to the extent that the law deals with matters relating to outworkers (including entry of a representative of a trade union to premises for a purpose connected with outworkers), other than matters mentioned in paragraph (1)(c); or\n\n (b) any of the following laws:\n\n (i) Chapter 6 of the Industrial Relations Act 1996 (NSW) (and any other provision of that Act to the extent that it relates to, or has effect for the purposes of, a provision of Chapter 6);\n\n (ii) the Owner Drivers and Forestry Contractors Act 2005 (Vic.); or\n\n (c) a law of a State or Territory that is specified in regulations made for the purposes of this paragraph, to the extent that the law is so specified.\n\n (4) To avoid doubt, subsection (2) has effect even if a law specified in regulations made for the purposes of that subsection:\n\n (a) is a law referred to in paragraph (3)(a) or (b); or\n\n (b) deals with matters that, because of section 536NX, are not workplace relations matters.\n\nReferences to State and Territory law\n\n (5) Without limiting any other provision of this Act, a reference in this section to a law of a State or Territory:\n\n (a) includes a reference to a regulation, rule or other instrument (however described) made pursuant to, or for the purposes of, a law of a State or Territory; and\n\n (b) is a reference to a law of a State or Territory as in force from time to time.","sortOrder":1300},{"sectionNumber":"536NX","sectionType":"section","heading":"What are workplace relations matters","content":"536NX  What are workplace relations matters\n\n  For the purposes of this Chapter, workplace relations matter has the same meaning as in section 536JQ.","sortOrder":1301},{"sectionNumber":"536NY","sectionType":"section","heading":"What is an unfairness ground","content":"536NY  What is an unfairness ground\n\n  For the purposes of this Chapter, an unfairness ground in relation to a services contract has the same meaning as in section 536JR.","sortOrder":1302},{"sectionNumber":"536NZ","sectionType":"section","heading":"Interaction of road transport contractual chain orders with State and Territory laws","content":"536NZ  Interaction of road transport contractual chain orders with State and Territory laws\n\n (1) A road transport contractual chain order prevails over a law of a State or Territory, to the extent of any inconsistency.\n\n (2) Despite subsection (1), a term of a road transport contractual chain order applies subject to the following:\n\n (a) a law of a State or Territory specified in regulations made for the purposes of this paragraph, to the extent that the law is so specified;\n\n (b) a law of a State or Territory that provides for rights or remedies by reference to a law described in paragraph (a).\n\nReferences to State and Territory law\n\n (3) Without limiting any other provision of this Act, a reference in this section to a law of a State or Territory:\n\n (a) includes a reference to a regulation, rule or other instrument (however described) made pursuant to, or for the purposes of, a law of a State or Territory; and\n\n (b) is a reference to a law of a State or Territory as in force from time to time.","sortOrder":1303},{"sectionNumber":"536P","sectionType":"section","heading":"Authorisation of conduct for the purposes of the Competition and Consumer Act 2010","content":"536P  Authorisation of conduct for the purposes of the Competition and Consumer Act 2010\n\nConduct in accordance with order or guidelines\n\n (1) For the purposes of subsection 51(1) of the Competition and Consumer Act 2010, and the Competition Code within the meaning of that Act, anything done in accordance with a road transport contractual chain order or road transport contractual chain guidelines by a person or entity covered by the order or guidelines is specified in and specifically authorised by this Act.\n\nCertain conduct not protected\n\n (2) Despite subsection (1), conduct referred to in that subsection is not specified in or specifically authorised by this Act if the conduct is:\n\n (a) making a contract or arrangement, or arriving at an understanding, that is or contains a cartel provision that satisfies the purpose condition in either paragraph 45AD(3)(a) or (b) of the Competition and Consumer Act 2010 or the Competition Code within the meaning of that Act; or\n\n (b) boycott conduct within the meaning of subsection 87AA(2) of the Competition and Consumer Act 2010 or the Competition Code within the meaning of that Act.","sortOrder":1304},{"sectionNumber":"Part 3B-2","sectionType":"part","heading":"Minimum standards for persons in a road transport contractual chain","content":"Part 3B‑2—Minimum standards for persons in a road transport contractual chain","sortOrder":1305},{"sectionNumber":"536PB","sectionType":"section","heading":"Guide to this Part","content":"536PB  Guide to this Part\n\nThis Part is about setting minimum standards for persons in a road transport contractual chain.\n\nDivision 2 empowers the FWC to make road transport contractual chain orders, which set minimum standards to which certain regulated road transport contractors, road transport employee‑like workers and other persons in a road transport contractual chain are entitled in relation to certain matters.\n\nNormally, a road transport contractual chain order cannot come into operation for at least 12 months after the notice of intent and draft order are issued (or at least 6 months if the circumstances urgently require it). This 12 or 6 month period starts again if the FWC makes significant changes to the draft order. However, in the event of time‑sensitive events or circumstances that negatively impact the road transport industry nationally, these consultation and commencement requirements may be shortened.\n\nDivisions 3 and 4 deal with deferral and suspension of road transport contractual chain orders.\n\nDivision 5 empowers the FWC to make road transport contractual chain guidelines for persons in a road transport contractual chain.","sortOrder":1307},{"sectionNumber":"536PC","sectionType":"section","heading":"Meaning of employee and employer","content":"536PC  Meaning of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.","sortOrder":1308},{"sectionNumber":"536PD","sectionType":"section","heading":"Road transport contractual chain orders","content":"536PD  Road transport contractual chain orders\n\n (1) The FWC may make an order (a road transport contractual chain order) that sets standards for regulated road transport contractors, road transport employee‑like workers and other persons in a road transport contractual chain.\n\nNote 1: The FWC must be constituted by an Expert Panel for the purposes of making a road transport contractual chain order (see subsection 617(10B)).\n\nNote 2: A time‑sensitive road transport contractual chain order is a road transport contractual chain order (see the definition of time‑sensitive road transport contractual chain order in section 12).\n\n (2) A road transport contractual chain order cannot confer rights or impose obligations on a person in the capacity of an employee.\n\n (3) The FWC may make a road transport contractual chain order under this section:\n\n (a) on its own initiative; or\n\n (b) on application under subsection 536PE(1).\n\n (4) The FWC must not make a road transport contractual chain order that covers road transport employee‑like workers unless the FWC considers it appropriate.","sortOrder":1311},{"sectionNumber":"536PE","sectionType":"section","heading":"Applications for road transport contractual chain orders","content":"536PE  Applications for road transport contractual chain orders\n\n (1) Any of the following may apply to the FWC for the making of a road transport contractual chain order:\n\n (a) an organisation that is entitled to represent the industrial interests of one or more persons in a road transport contractual chain;\n\n (b) a regulated business in a road transport contractual chain;\n\n (c) a person who is a primary party to the first contract or arrangement in a road transport contractual chain;\n\n (d) the Minister;\n\n (e) a person or body prescribed by the regulations.\n\nNote 1: An Expert Panel can hear applications under this Act for the road transport industry together: see subsection 582(4).\n\nNote 2: The Minister may determine that an application for a road transport contractual chain order is an emergency application in order to deal with a time‑sensitive event or circumstance, or series of events or circumstances, that is negatively impacting, or may negatively impact, the road transport industry nationally: see section 536PEA.\n\nMatters to be specified in an application\n\n (2) An application for the making of a road transport contractual chain order must specify the classes of persons in a road transport contractual chain to be covered by the order.\n\n (3) 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 a particular industry or sector, or part of an industry or sector, or particular kinds of work.","sortOrder":1312},{"sectionNumber":"536PEA","sectionType":"section","heading":"Emergency applications","content":"536PEA  Emergency applications\n\nWhen an application is an emergency application\n\n (1) An application for the making of a road transport contractual chain order, or an application for a determination varying or revoking a road transport contractual chain order, is an emergency application if the Minister makes a determination under subsection (3) that the application is an emergency application.\n\n (2) The application ceases to be an emergency application when the earlier of the following occurs:\n\n (a) the road transport contractual chain order comes into operation, or is varied or revoked, as a result of the application;\n\n (b) the period of 6 months starting on the day the Minister makes the determination ends.\n\nMinisterial determination\n\n (3) The Minister may determine, by notifiable instrument, that an application referred to in subsection (1) is an emergency application if, having regard to the matters in section 40D (the road transport objective), the Minister is satisfied that:\n\n (a) an event or circumstance, or series of events or circumstances, has occurred or is occurring; and\n\n (b) the event or circumstance, or series of events or circumstances, is currently having, or is likely to imminently have, a significant national negative impact on the road transport industry; and\n\n (c) it is in the public interest to make the determination.","sortOrder":1313},{"sectionNumber":"536PF","sectionType":"section","heading":"Particular matters FWC must take into account in making a decision on a road transport contractual chain order","content":"536PF  Particular matters FWC must take into account in making a decision on a road transport contractual chain order\n\n (1) This section applies if:\n\n (a) an application is made for a road transport contractual chain order under subsection 536PE(1) or for a variation of a road transport contractual chain order under section 536PS; or\n\n (b) the FWC is considering making or varying a road transport contractual chain order on its own initiative.\n\n (2) The FWC:\n\n (a) must not make or vary the road transport contractual chain order unless there has been genuine engagement with the parties to be covered; and\n\n (b) must not make or vary the road transport contractual chain order unless the Road Transport Advisory Group has been consulted; and\n\n (c) must not make or vary the road transport contractual chain order unless the consultation process set out in Subdivision C of this Division has been followed; and\n\n (d) in deciding whether to make or vary the road transport contractual chain order, must have regard to the commercial realities of the road transport industry, including commercial practices in relation to part load, mixed load, no load, multi‑leg and return trips; and\n\n (e) must not make or vary the road transport contractual chain order unless the FWC is satisfied that making or varying the road transport contractual chain order will not unduly affect the viability and competitiveness of road transport businesses, owner drivers or other similar persons; and\n\n (f) in deciding whether to make or vary the road transport contractual chain order, must take into account any current or proposed road transport contractual chain orders and any current or proposed minimum standards orders; and\n\n (g) must take reasonable steps to ensure that the coverage of the road transport contractual chain order is clear.\n\n (3) If paragraph (1)(a) applies and the application is an emergency application, a direction under subsection 582(4D) does not apply to the FWC when deciding whether to make or vary the road transport contractual chain order.","sortOrder":1315},{"sectionNumber":"536PG","sectionType":"section","heading":"FWC to prepare and publish a draft of a road transport contractual chain order","content":"536PG  FWC to prepare and publish a draft of a road transport contractual chain order\n\n (1) Before making a road transport contractual chain order, the FWC must:\n\n (a) publish a notice (a notice of intent) stating that the FWC proposes to make a road transport contractual chain order; and\n\n (b) publish a draft of the proposed road transport contractual chain order.\n\n (2) The FWC must publish the notice of intent and the draft of the road transport contractual chain order on the FWC’s website and by any other means the FWC considers appropriate.","sortOrder":1317},{"sectionNumber":"536PH","sectionType":"section","heading":"Affected entities to have a reasonable opportunity to make submissions on a draft road transport contractual chain order","content":"536PH  Affected entities to have a reasonable opportunity to make submissions on a draft road transport contractual chain order\n\n (1) The FWC must ensure that affected entities have a reasonable opportunity to make written submissions to the FWC for its consideration in relation to the draft of a road transport contractual chain order published under paragraph 536PG(1)(b).\n\n (1A) To avoid doubt, if the draft is of a time‑sensitive road transport contractual chain order, a short period to make written submissions may be a reasonable opportunity.\n\n (2) The FWC must publish submissions made to the FWC.\n\n (3) However, if a submission made by an entity includes information that is claimed by the entity to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive, the FWC:\n\n (a) may decide not to publish the information; and\n\n (b) may instead publish:\n\n (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\n\n (ii) if the FWC 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.\n\n (4) The publishing of material under subsections (2) and (3) must be on the FWC’s website and by any other means the FWC considers appropriate.\n\n (5) 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).\n\n (6) For the purposes of subsection (1), an affected entity, in relation to a draft road transport contractual chain order published under paragraph 536PG(1)(b), is:\n\n (a) a person or body likely to be affected by the making of a road transport contractual chain order based on the draft; or\n\n (b) a person or body prescribed by the regulations, or included in a class prescribed by the regulations.\n\n (7) The FWC may, but is not required to, hold a hearing in relation to a draft road transport contractual chain order.","sortOrder":1318},{"sectionNumber":"536PJ","sectionType":"section","heading":"Finalising draft order","content":"536PJ  Finalising draft order\n\n (1) The FWC may make any changes it thinks appropriate to a draft road transport contractual chain order.\n\n (2) If changes made under subsection (1) are significant, the FWC must:\n\n (a) decide not to make the road transport contractual chain order based on the draft; and\n\n (b) publish a subsequent notice of intent under paragraph 536PG(1)(a) in relation to the revised draft road transport contractual chain order, and publish the revised draft; and\n\n (c) follow the process set out in section 536PH (as affected by subsection (3) or (4) of this section) in relation to the revised draft road transport contractual chain order.\n\n (3) For the purposes of paragraph (2)(c), the period of consultation under section 536PH in relation to the revised draft road transport contractual chain order is to be the period of at least 12 months starting when the subsequent notice of intent and the revised draft required by paragraph (2)(b) of this section were published (the draft publication time).\n\n (4) However, the FWC may reduce that 12‑month period to another period that the FWC considers is reasonable if:\n\n (a) the order is a time‑sensitive road transport contractual chain order; or\n\n (b) the FWC is satisfied that the circumstances urgently require it, and the period is at least 6 months starting from the draft publication time.","sortOrder":1319},{"sectionNumber":"536PK","sectionType":"section","heading":"Decision not to make order based on the draft","content":"536PK  Decision not to make order based on the draft\n\n  The FWC may decide that no road transport contractual chain order is to be made based on the draft. If the FWC does so, the FWC must publish notice of the decision on its website and by any other means the FWC considers appropriate.","sortOrder":1320},{"sectionNumber":"536PL","sectionType":"section","heading":"Decisions on applications for road transport contractual chain orders","content":"536PL  Decisions on applications for road transport contractual chain orders\n\n (1) If an application for a road transport contractual chain order is made to the FWC under subsection 536PE(1), the FWC may decide to:\n\n (a) refuse to consider the application; or\n\n (b) make a road transport contractual chain order under subsection 536PD(1); or\n\n (c) not make a road transport contractual chain order; or\n\n (d) if the FWC considers it appropriate to do so, instead make road transport contractual chain guidelines under section 536QP, as if the application had been an application under subsection 536QQ(1) for road transport contractual chain guidelines in relation to the persons in a road transport contractual chain covered by the application under subsection 536PE(1).\n\n (2) Without limiting subsection (1), the FWC may refuse to consider the application if it is not consistent with a direction of the President under subsection 582(4D) (prioritisation).","sortOrder":1322},{"sectionNumber":"536PM","sectionType":"section","heading":"Terms that must be included in a road transport contractual chain order","content":"536PM  Terms that must be included in a road transport contractual chain order\n\nTerms relating to coverage\n\n (1) A road transport contractual chain order must include terms setting out in accordance with this section:\n\n (a) the work in the road transport industry covered by the road transport contractual chain order; and\n\n (b) the persons in a road transport contractual chain covered by the road transport contractual chain order.\n\n (2) A road transport contractual chain order must be expressed to cover persons in a road transport contractual chain, including specified regulated road transport contractors or road transport employee‑like workers.\n\n (3) For the purposes of subsection (2):\n\n (a) persons in a road transport contractual chain other than regulated road transport contractors or road transport employee‑like workers may be specified by name or by inclusion in a specified class or specified classes; and\n\n (b) regulated road transport contractors and road transport employee‑like workers must be specified by inclusion in a specified class or specified classes.\n\n (4) Without limiting the way in which a class may be described for the purposes of subsection (3), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.","sortOrder":1323},{"sectionNumber":"536PN","sectionType":"section","heading":"Road transport contractual chain order must include term about interaction with minimum standards orders","content":"536PN  Road transport contractual chain order must include term about interaction with minimum standards orders\n\n  A road transport contractual chain order must include a provision that specifies the extent to which it prevails over, or is subject to, a minimum standards order to the extent of any inconsistency, and the road transport contractual chain order and the minimum standards order have effect according to the provision included in the road transport contractual chain order.","sortOrder":1324},{"sectionNumber":"536PP","sectionType":"section","heading":"Term about settling disputes must be included in a road transport contractual chain order","content":"536PP  Term about settling disputes must be included in a road transport contractual chain order\n\n  A road transport contractual chain order must include a term that provides a procedure for settling disputes about any matters arising under the order.","sortOrder":1325},{"sectionNumber":"536PQ","sectionType":"section","heading":"Terms that may be included in a road transport contractual chain order","content":"536PQ  Terms that may be included in a road transport contractual chain order\n\n (1) A road transport contractual chain order, other than a time‑sensitive road transport contractual chain order, may also include terms about any of the following matters:\n\n (a) payment times;\n\n (b) fuel levies;\n\n (c) rate reviews;\n\n (d) termination, including one way termination for convenience;\n\n (e) cost recovery.\n\n (2) Subsection (1) does not limit the terms that may be included in a road transport contractual chain order that is not a time‑sensitive road transport contractual chain order.\n\n (3) The FWC must remove a term covered by this section that is included in a road transport contractual chain order if:\n\n (a) the FWC decides to vary the order as a result of an application for a determination varying or revoking the order that is an emergency application; and\n\n (b) the term does not relate to the event or circumstance, or series of events or circumstances, to which the emergency application relates.\n\nNote: For the event or circumstance, or series of events or circumstances, to which the emergency application relates: see subsection 536PEA(3).","sortOrder":1326},{"sectionNumber":"536PQA","sectionType":"section","heading":"Terms that must be included in a time-sensitive road transport contractual chain order","content":"536PQA  Terms that must be included in a time‑sensitive road transport contractual chain order\n\n (1) A time‑sensitive road transport contractual chain order must include one or more terms relating to the event or circumstance, or series of events or circumstances, to which the order relates.\n\nNote 1: For the event or circumstance, or series of events or circumstances, to which the order relates: see subsection 536PEA(3).\n\nNote 2: Time‑sensitive road transport contractual chain orders must also include the terms set out in sections 536PM, 536PN and 536PP.\n\n (2) Terms relating to the event or circumstance, or series of events or circumstances, to which the order relates may be about, but are not limited to, any of the following matters:\n\n (a) payment times;\n\n (b) fuel levies;\n\n (c) rate reviews;\n\n (d) termination, including one way termination for convenience;\n\n (e) cost recovery.\n\n (3) The FWC must include one or more terms covered by this section in a road transport contractual chain order if:\n\n (a) the order is not a time‑sensitive road transport contractual chain order at the time the order is made; and\n\n (b) the FWC decides to vary the order as a result of an application for a determination varying or revoking the order that is an emergency application; and\n\n (c) the term relates to the event or circumstance, or series of events or circumstances, to which the emergency application relates.\n\nNote: For the event or circumstance, or series of events or circumstances, to which the emergency application relates: see subsection 536PEA(3).","sortOrder":1327},{"sectionNumber":"536PR","sectionType":"section","heading":"Terms that must not be included in a road transport contractual chain order","content":"536PR  Terms that must not be included in a road transport contractual chain order\n\n (1) A road transport contractual chain order must not include terms about any of the following matters:\n\n (a) overtime rates;\n\n (b) rostering arrangements;\n\n (c) a term that would change the form of the engagement or the status of a regulated road transport contractor or a road transport employee‑like worker covered by the road transport contractual chain order including, but not limited to, a term that deems a regulated road transport contractor or a road transport employee‑like worker to be an employee;\n\n (d) a matter relating to work health and safety that is otherwise comprehensively dealt with by a law of the Commonwealth, a State or a Territory;\n\n (e) a matter prescribed by the regulations, or included in a class of matter prescribed by the regulations.\n\n (2) A road transport contractual chain order must not include terms about any of the following matters:\n\n (a) a matter relating to road transport that is otherwise comprehensively dealt with:\n\n (i) by the Heavy Vehicle National Law as set out in the Schedule to the Heavy Vehicle National Law Act 2012 (Qld); or\n\n (ii) by another law of the Commonwealth, a State or a Territory;\n\n (b) a matter prescribed by the regulations, or included in a class of matter prescribed by the regulations.\n\n (3) For the purposes of paragraph (1)(d):\n\n (a) the regulations may specify that a particular matter, or a matter included in a class of matters, is, or is not, dealt with comprehensively by a law of the Commonwealth, a State or a Territory; and\n\n (b) the regulations may prescribe one or more laws of the Commonwealth, a State or a Territory to which that paragraph does, or does not, apply.\n\n (4) For the purposes of paragraph (2)(a):\n\n (a) the regulations may specify that a particular matter, or a matter included in a class of matters, is, or is not, dealt with comprehensively by the Heavy Vehicle National Law as set out in the Schedule to the Heavy Vehicle National Law Act 2012 (Qld) or another law of the Commonwealth, a State or a Territory; and\n\n (b) the regulations may prescribe one or more laws of the Commonwealth, a State or a Territory to which subparagraph (2)(a)(ii) does, or does not, apply.","sortOrder":1328},{"sectionNumber":"536PS","sectionType":"section","heading":"Applications to vary or revoke road transport contractual chain orders","content":"536PS  Applications to vary or revoke road transport contractual chain orders\n\n  Any of the following may apply to the FWC for a determination varying or revoking a road transport contractual chain order:\n\n (a) an organisation that is entitled to represent the industrial interests of one or more of the persons in the road transport contractual chain to which the order relates or to whom the order as proposed to be varied would relate;\n\n (b) a regulated business in the road transport contractual chain to which the order relates or to which the order as proposed to be varied would relate;\n\n (c) a person who is a primary party to the first contract or arrangement in the road transport contractual chain to which the order relates;\n\n (d) the Minister;\n\n (e) a person or body prescribed by the regulations.\n\nNote: The Minister may determine that an application for a determination varying or revoking a road transport contractual chain order is an emergency application in order to deal with a time‑sensitive event or circumstance, or series of events or circumstances, that is negatively impacting, or may negatively impact, the road transport industry nationally: see section 536PEA.","sortOrder":1329},{"sectionNumber":"536PT","sectionType":"section","heading":"FWC may vary or revoke road transport contractual chain orders","content":"536PT  FWC may vary or revoke road transport contractual chain orders\n\n (1) The FWC may make a determination varying or revoking a road transport contractual chain order if the FWC is satisfied that making the determination is consistent with the minimum standards objective and the road transport objective.\n\nNote: When deciding to vary a road transport contractual chain order as a result of an emergency application, the FWC must include in the order, or remove from the order, certain terms: see subsections 536PQ(3) and 536PQA(3).\n\n (2) The FWC may make a determination varying a road transport contractual chain order in such a way that not all of the elements of the variation sought in an application under section 536PS are implemented, including by refusing to make a variation to the extent that it would result in the order covering persons who are not regulated road transport contractors or road transport employee‑like workers.\n\n (3) The FWC may make a determination varying a road transport contractual chain order to remove an ambiguity or uncertainty or to correct an error.\n\n (4) The FWC may make a determination varying or revoking a road transport contractual chain order:\n\n (a) on its own initiative; or\n\n (b) on application under section 536PS.\n\n (5) The FWC must not vary or revoke a road transport contractual chain order that covers road transport employee‑like workers, or in such a way that it would begin to cover or cease to cover road transport employee‑like workers, unless the FWC considers it appropriate.\n\n (6) The FWC may also make a determination under subsection (1) varying or revoking a road transport contractual chain order to give effect to a decision under paragraph 536QK(2)(a) or (b) to vary or revoke the road transport contractual chain order.\n\nNote: Subsection 536QK(2) requires the FWC to consider whether to vary or revoke a road transport contractual chain order after a deferral declaration, a deferral determination, a suspension declaration or a suspension determination is made in relation to the order.\n\n (7) A road transport contractual chain order that is not in operation can only be revoked or varied under the process set out in Divisions 3 and 4.","sortOrder":1330},{"sectionNumber":"536PU","sectionType":"section","heading":"Minister may make a declaration deferring the operation or application of a road transport contractual chain order","content":"536PU  Minister may make a declaration deferring the operation or application of a road transport contractual chain order\n\n (1) If the Minister considers it is in the public interest to do so, the Minister may, by notifiable instrument, make a declaration (a deferral declaration) that defers:\n\n (a) the coming into operation of a road transport contractual chain order; or\n\n (b) the application of:\n\n (i) all of the terms of a road transport contractual chain order to a specified class or specified classes of persons; or\n\n (ii) specified terms of a road transport contractual chain order to a specified class or specified classes of persons; or\n\n (iii) specified terms of a road transport contractual chain order to all persons.\n\n (2) A deferral declaration made under paragraph (1)(a) is a full deferral declaration, and a deferral declaration made under paragraph (1)(b) is a part deferral declaration, in relation to the road transport contractual chain order to which the deferral declaration relates.\n\n (3) A deferral declaration in relation to a road transport contractual chain order:\n\n (a) comes into operation on the day on which it is made; and\n\n (b) ceases to be in operation on the day on which the FWC decides under subsection 536QK(2) whether or not to vary or revoke the road transport contractual chain order.\n\n (4) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.\n\n (5) The Secretary of the Department must publish a deferral declaration on the Department’s website as soon as practicable after the deferral declaration is made.","sortOrder":1333},{"sectionNumber":"536PV","sectionType":"section","heading":"Limitations on making a deferral declaration","content":"536PV  Limitations on making a deferral declaration\n\nNo deferral of road transport contractual chain order that is in operation\n\n (1) The Minister must not make a deferral declaration in relation to a road transport contractual chain order that has already come into operation.\n\nOnly one full deferral declaration is permitted etc.\n\n (2) The Minister:\n\n (a) may only make one full deferral declaration in relation to a particular road transport contractual chain order; and\n\n (b) must not make a full deferral declaration in relation to a particular road transport contractual chain order if a deferral determination (whether a full deferral determination or a part deferral determination) has previously been made by the FWC in relation to the road transport contractual chain order.\n\nNote: The FWC may make deferral determinations in relation to road transport contractual chain orders under Subdivision B of this Division.\n\nMore than one part deferral declaration is permitted\n\n (3) Subject to subsection (4), the Minister may make more than one part deferral declaration in relation to a particular road transport contractual chain order.\n\n (4) If more than one part deferral declaration or part deferral determination is made in relation to the same road transport contractual chain order as permitted by subsection (3) of this section or subsection 536QC(3), a later part deferral declaration must not have the effect of deferring, or purporting to defer, the application of a term or terms to any person:\n\n (a) to whom the terms already apply when the later part deferral declaration is made; or\n\n (b) in relation to whom the application of the terms has previously been deferred.","sortOrder":1334},{"sectionNumber":"536PW","sectionType":"section","heading":"Operation of a road transport contractual chain order during deferral","content":"536PW  Operation of a road transport contractual chain order during deferral\n\n  A road transport contractual chain order:\n\n (a) is not in operation during any period when a full deferral declaration in relation to the road transport contractual chain order is in operation; and\n\n (b) is in operation during any period when a part deferral declaration in relation to the road transport contractual chain order is in operation.\n\nNote: Although a road transport contractual chain order is in operation when a part deferral declaration is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.","sortOrder":1335},{"sectionNumber":"536PX","sectionType":"section","heading":"Minister may make a declaration suspending a road transport contractual chain order","content":"536PX  Minister may make a declaration suspending a road transport contractual chain order\n\n (1) If the Minister considers it is in the public interest to do so, the Minister may, by notifiable instrument, make a declaration (a suspension declaration):\n\n (a) suspending the operation of a road transport contractual chain order; or\n\n (b) suspending the application of:\n\n (i) all of the terms of a road transport contractual chain order to a specified class or specified classes of persons; or\n\n (ii) specified terms of a road transport contractual chain order to a specified class or specified classes of persons; or\n\n (iii) specified terms of a road transport contractual chain order to all persons.\n\n (2) A suspension declaration made under paragraph (1)(a) is a full suspension declaration, and a suspension declaration made under paragraph (1)(b) is a part suspension declaration, in relation to the road transport contractual chain order to which the suspension declaration relates.\n\nSuspension declaration must specify period of suspension\n\n (3) A suspension declaration must specify the period of the suspension, which:\n\n (a) must not be a period that is longer than the relevant period for the order; and\n\n (b) must not start before the day on which the suspension declaration is made.\n\nWhen period of suspension ends\n\n (4) Subject to subsection (5), a period of suspension specified in a suspension declaration ends immediately after the end of the period specified in the suspension declaration under subsection (3).\n\n (5) If a period of suspension has not already ended under subsection (3) when the FWC makes a decision under subsection 536QK(2) as to whether to vary or revoke the road transport contractual chain order, the period of suspension ends on whichever of the following days is applicable:\n\n (a) if the FWC decides to vary or revoke the road transport contractual chain order—on the day that the determination made under subsection 536PT(1) varying or revoking the road transport contractual chain order comes into operation, which must not be later than the relevant period after the day on which the suspension declaration was made;\n\n (b) if the FWC decides not to vary or revoke the road transport contractual chain order:\n\n (i) 7 days after the day on which the decision is made; or\n\n (ii) if a 7‑day period would result in the suspension lasting longer than the relevant period—such shorter period as is specified in the decision, which must be a period that would result in the suspension lasting the relevant period or less.\n\nMeaning of relevant period\n\n (5A) The relevant period for a road transport contractual chain order is:\n\n (a) 12 months, unless paragraph (b) applies; and\n\n (b) for a time‑sensitive road transport contractual chain order—3 months.\n\nClasses\n\n (6) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.\n\nOrders\n\n (7) If the Minister makes a suspension declaration, the FWC may make any orders it considers appropriate to ensure that no person is unfairly affected by the suspension.\n\nPublication\n\n (8) The Secretary of the Department must publish a suspension declaration on the Department’s website as soon as practicable after the suspension declaration is made.\n\nAccrued rights, etc.\n\n (9) The making of a suspension declaration does not affect any right or liability that a person acquired, accrued or incurred before the suspension declaration is made.","sortOrder":1336},{"sectionNumber":"536PY","sectionType":"section","heading":"Suspension declaration must generally be made within 12 months of certain dates","content":"536PY  Suspension declaration must generally be made within 12 months of certain dates\n\nFull suspension declaration timing\n\n (1) A full suspension declaration in relation to a road transport contractual chain order must be made within the relevant period starting on the day on which the road transport contractual chain order came into operation.\n\nPart suspension declaration timing\n\n (2) A part suspension declaration in relation to a road transport contractual chain order must be made within the relevant period starting on whichever of the following days is applicable:\n\n (a) if the part suspension declaration suspends the application of all of the terms of the road transport contractual chain order to a specified class of persons—the day on which all of the terms of the road transport contractual chain order first applied to the specified class of persons;\n\n (b) if the part suspension declaration suspends the application of all of the terms of the road transport contractual chain order to 2 or more specified classes of persons—the day on which all of the terms of the road transport contractual chain order first applied to at least one of the specified classes of persons (even if all of the terms of the order did not apply to all of the specified classes on that day);\n\n (c) if the part suspension declaration suspends the application of specified terms of the road transport contractual chain order to a specified class of persons—the day on which the specified terms first applied to the specified class of persons;\n\n (d) if the part suspension declaration suspends the application of specified terms of the road transport contractual chain order to 2 or more specified classes of persons—the day on which the specified terms of the road transport contractual chain order first applied to at least one of the specified classes of persons (even if the order did not apply to all of the specified classes on that day);\n\n (e) if the part suspension declaration suspends the application of specified terms of the road transport contractual chain order to all persons—the day on which the specified terms first applied to all persons.\n\n (3) The relevant period for a road transport contractual chain order is:\n\n (a) 12 months, unless paragraph (b) applies; and\n\n (b) for a time‑sensitive road transport contractual chain order—3 months.","sortOrder":1337},{"sectionNumber":"536PZ","sectionType":"section","heading":"Operation of a road transport contractual chain order during suspension","content":"536PZ  Operation of a road transport contractual chain order during suspension\n\n  A road transport contractual chain order:\n\n (a) is not in operation during any period when a full suspension declaration in relation to the road transport contractual chain order is in operation; and\n\n (b) is in operation during any period when a part suspension declaration in relation to the road transport contractual chain order is in operation.\n\nNote: Although a road transport contractual chain order is in operation during a period when a part suspension declaration is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.","sortOrder":1338},{"sectionNumber":"536Q","sectionType":"section","heading":"Consultation requirements","content":"536Q  Consultation requirements\n\n  The Minister is not required to consult any person or body before making a deferral declaration or a suspension declaration.","sortOrder":1339},{"sectionNumber":"536QA","sectionType":"section","heading":"Applications for a deferral determination for a road transport contractual chain order","content":"536QA  Applications for a deferral determination for a road transport contractual chain order\n\n (1) An application may be made to the FWC for a determination under subsection 536QB(1) (a deferral determination) in relation to a road transport contractual chain order.\n\n (2) An application may be made under subsection (1) by any of the following:\n\n (a) an organisation that is entitled to represent the industrial interests of one or more persons in the road transport contractual chain;\n\n (b) a regulated business in the road transport contractual chain;\n\n (c) a person who is a primary party to the first contract or arrangement in the road transport contractual chain;\n\n (d) a person or body prescribed by the regulations.\n\nNote: An Expert Panel can hear applications under this Act for the road transport industry together: see subsection 582(4).\n\n (3) An application for a deferral determination must not be made in relation to a road transport contractual chain order that has already come into operation.\n\nNote: If the road transport contractual chain order concerned comes into operation before the FWC considers the application, the FWC may treat it as a suspension application: see subsection 536QD(2).","sortOrder":1341},{"sectionNumber":"536QB","sectionType":"section","heading":"FWC may make a determination deferring the operation or application of a road transport contractual chain order","content":"536QB  FWC may make a determination deferring the operation or application of a road transport contractual chain order\n\n (1) The FWC may, on application under subsection 536QA(1), make a deferral determination:\n\n (a) that defers the coming into operation of a road transport contractual chain order; or\n\n (b) that defers the application of:\n\n (i) all of the terms of a road transport contractual chain order to a specified class or specified classes of persons; or\n\n (ii) specified terms of a road transport contractual chain order to a specified class or specified classes of persons; or\n\n (iii) specified terms of a road transport contractual chain order to all persons.\n\n (2) A deferral determination made under paragraph (1)(a) is a full deferral determination, and a deferral determination made under paragraph (1)(b) is a part deferral determination, in relation to the road transport contractual chain order to which the deferral determination relates.\n\n (3) A deferral determination in relation to a road transport contractual chain order:\n\n (a) comes into operation on the day on which it is made; and\n\n (b) ceases to be in operation on the day on which the FWC decides under subsection 536QK(2) whether or not to vary or revoke the road transport contractual chain order.\n\n (4) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector.","sortOrder":1342},{"sectionNumber":"536QC","sectionType":"section","heading":"Limitations on making a deferral determination","content":"536QC  Limitations on making a deferral determination\n\nNo deferral of road transport contractual chain order that is in operation\n\n (1) The FWC must not make a deferral determination in relation to a road transport contractual chain order that has already come into operation.\n\nOnly one full deferral determination is permitted, etc.\n\n (2) The FWC:\n\n (a) may only make one full deferral determination in relation to a particular road transport contractual chain order; and\n\n (b) must not make a full deferral determination in relation to a particular road transport contractual chain order if a deferral declaration (whether a full deferral declaration or a part deferral declaration) has previously been made by the Minister in relation to the road transport contractual chain order.\n\nNote: The Minister may make deferral declarations in relation to road transport contractual chain orders under Subdivision A of this Division.\n\nMore than one part deferral determination is permitted\n\n (3) Subject to subsection (4), the FWC may make more than one part deferral determination in relation to a particular road transport contractual chain order.\n\n (4) If more than one part deferral determination or part deferral declaration is made in relation to the same road transport contractual chain order as permitted by subsection (3) of this section or subsection 536PV(3), a later part deferral determination must not have the effect of deferring, or purporting to defer, the application of a term to any person or class of persons:\n\n (a) to whom the term already applies when the later part deferral determination is made; or\n\n (b) in relation to whom the application of the terms has previously been deferred.","sortOrder":1343},{"sectionNumber":"536QD","sectionType":"section","heading":"Decision on an application for a deferral determination in relation to a road transport contractual chain order","content":"536QD  Decision on an application for a deferral determination in relation to a road transport contractual chain order\n\n (1) If an application for a deferral determination in relation to a road transport contractual chain order is made, the FWC must:\n\n (a) consider the application as soon as practicable; and\n\n (b) consult the Road Transport Advisory Group before making a decision on the application.\n\n (2) If the road transport contractual chain order concerned comes into operation before the FWC makes a decision on the application, the FWC may treat the application as if it were an application for a suspension determination.\n\n (3) The FWC may:\n\n (a) make the deferral determination under subsection 536QB(1); or\n\n (b) decide not to make the deferral determination.\n\n (4) The FWC must make the deferral determination if, and must not make the deferral determination unless, the FWC is satisfied that:\n\n (a) the applicant has provided significant new facts or evidence that was not available at the time the FWC decided to make the road transport contractual chain order; and\n\n (b) the significant new facts or evidence demonstrate that the road transport contractual chain order will not provide, or has not provided, an appropriate safety net of road transport contractual chain for parties in the road transport industry, having regard to the road transport contractual chain objective and the road transport objective.\n\n (5) In considering whether the FWC is satisfied as mentioned in subsection (4), the FWC may have regard to whether one or more previous applications for variation or revocation of the road transport contractual chain order concerned have previously been made.\n\n (6) The FWC must publish a deferral determination on the FWC’s website and by any other means the FWC considers appropriate as soon as practicable after making the determination.","sortOrder":1344},{"sectionNumber":"536QE","sectionType":"section","heading":"Operation of a road transport contractual chain order during deferral","content":"536QE  Operation of a road transport contractual chain order during deferral\n\n  A road transport contractual chain order:\n\n (a) is not in operation during any period when a full deferral determination in relation to the road transport contractual chain order is in operation; and\n\n (b) is in operation during any period when a part deferral determination is in operation in relation to the road transport contractual chain order.\n\nNote: Although a road transport contractual chain order is in operation during a period when a part deferral determination is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.","sortOrder":1345},{"sectionNumber":"536QF","sectionType":"section","heading":"Applications for a suspension determination for a road transport contractual chain order","content":"536QF  Applications for a suspension determination for a road transport contractual chain order\n\n (1) An application may be made to the FWC for a determination (a suspension determination) under subsection 536QG(1) in relation to a road transport contractual chain order.\n\n (2) An application may be made under subsection (1) by any of the following:\n\n (a) an organisation that is entitled to represent the industrial interests of one or more persons in the road transport contractual chain;\n\n (b) a regulated business in the road transport contractual chain;\n\n (c) a person who is a primary party to the first contract or arrangement in the road transport contractual chain;\n\n (d) a person or body prescribed by the regulations.\n\nNote: An Expert Panel can hear applications under this Act for the road transport industry together: see subsection 582(4).\n\nTiming of application for full suspension determination\n\n (3) An application for a full suspension determination in relation to a road transport contractual chain order must be made within 12 months of the day on which the order came into operation.\n\nTiming of application for part suspension determination\n\n (4) An application for a part suspension determination must be made within 12 months of whichever of the following days is applicable:\n\n (a) if the part suspension determination will suspend the application of all of the terms of the road transport contractual chain order to a specified class—the first day on which all of the terms of the road transport contractual chain order applied to the class of person;\n\n (b) if the part suspension determination will suspend the application of all of the terms of the road transport contractual chain order to 2 or more specified classes of persons—the day on which all of the terms of the road transport contractual chain order first applied to at least one of the specified classes of persons (even if all of the terms of the order did not apply to all of the specified classes on that day);\n\n (c) if the part suspension determination will suspend the application of specified terms of the road transport contractual chain order to a specified class of persons—the first day on which the specified terms applied to the specified class of persons;\n\n (d) if the part suspension determination will suspend the application of specified terms of the road transport contractual chain order to 2 or more specified classes of persons—the day on which the specified terms of the road transport contractual chain order first applied to at least one of the specified classes of persons (even if the order did not apply to all of the specified classes on that day);\n\n (e) if the part suspension determination will suspend the application of specified terms of the road transport contractual chain order to all persons—the first day on which the specified terms applied to all persons.","sortOrder":1346},{"sectionNumber":"536QG","sectionType":"section","heading":"FWC may make a determination suspending a road transport contractual chain order","content":"536QG  FWC may make a determination suspending a road transport contractual chain order\n\n (1) The FWC may, on application under subsection 536QF(1), make a suspension determination:\n\n (a) suspending the operation of a road transport contractual chain order; or\n\n (b) suspending:\n\n (i) the application of a road transport contractual chain order to a specified class or specified classes of persons; or\n\n (ii) the application of specified terms of a road transport contractual chain order to a specified class or specified classes of persons; or\n\n (iii) the application of specified terms of road transport contractual chain order to all persons.\n\nNote 1: A person may also apply under section 536PS for a variation or revocation of a road transport contractual chain order.\n\nNote 2: Judicial review of decisions of the FWC is available: see paragraph 39B(1A)(c) of the Judiciary Act 1903.\n\n (2) A suspension determination made under paragraph (1)(a) is a full suspension determination, and a suspension determination made under paragraph (1)(b) is a part suspension determination, in relation to the road transport contractual chain order to which the suspension determination relates.\n\nSuspension determination must specify period of suspension\n\n (3) If the FWC makes a suspension determination in relation to a road transport contractual chain order, the suspension determination must specify the period for which the order is suspended, which:\n\n (a) must not be a period that is longer than the relevant period for the order; and\n\n (b) must not start before the day on which the determination is made.\n\nWhen period of suspension ends\n\n (4) Subject to subsection (5), a period of suspension specified in a suspension determination ends immediately after the end of the period specified in the suspension determination under subsection (3).\n\n (5) If the period of suspension has not already ended under subsection (4) when the FWC makes a decision under subsection 536QK(2) as to whether to vary or revoke the road transport contractual chain order, the period of suspension ends on whichever of the following days is applicable:\n\n (a) if the FWC decides to vary or revoke the road transport contractual chain order—on the day that the determination made under subsection 536PT(1) varying or revoking the road transport contractual chain order comes into operation, which must not be later than the relevant period after the day on which the suspension determination was made;\n\n (b) if the FWC decides not to vary or revoke the road transport contractual chain order:\n\n (i) 7 days after the day on which the decision is made; or\n\n (ii) if a 7‑day period would result in the suspension lasting longer than the relevant period—such shorter period as is specified in the decision, which must be a period that would result in the suspension lasting the relevant period or less.\n\nMeaning of relevant period\n\n (5A) The relevant period for a road transport contractual chain order is:\n\n (a) 12 months, unless paragraph (b) applies; and\n\n (b) for a time‑sensitive road transport contractual chain order—3 months.\n\nClasses\n\n (6) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector.","sortOrder":1347},{"sectionNumber":"536QH","sectionType":"section","heading":"Decision on an application for a suspension determination in relation to a road transport contractual chain order","content":"536QH  Decision on an application for a suspension determination in relation to a road transport contractual chain order\n\n (1) If an application for a suspension determination in relation to a road transport contractual chain order is made, the FWC must:\n\n (a) consider the application as soon as practicable; and\n\n (b) consult the Road Transport Advisory Group before making a decision on the application.\n\n (2) The FWC may:\n\n (a) make the suspension determination under subsection 536QG(1); or\n\n (b) decide not to make the suspension determination.\n\n (3) The FWC must make the suspension determination if, and must not make the suspension determination unless, the FWC is satisfied that:\n\n (a) the applicant has provided significant new facts or evidence that was not available at the time the FWC decided to make the road transport contractual chain order; and\n\n (b) the significant new facts or evidence demonstrate that the road transport contractual chain order will not provide, or has not provided, an appropriate safety net of road transport contractual chain for parties in the road transport industry, having regard to the road transport contractual chain objective and the road transport objective.\n\n (4) In considering whether the FWC is satisfied as mentioned in subsection (3), the FWC may have regard to whether one or more previous applications for variation or revocation of the road transport contractual chain order have previously been made.\n\n (5) If the FWC makes the suspension determination, the FWC may make any orders it considers appropriate to ensure that no person is unfairly affected by the suspension.\n\n (6) The FWC must publish a suspension determination on the FWC’s website and by any other means the FWC considers appropriate as soon as practicable after making the determination.\n\n (7) The making of a suspension determination does not affect any right or liability that a person acquired, accrued or incurred before the suspension determination is made.","sortOrder":1348},{"sectionNumber":"536QJ","sectionType":"section","heading":"Operation of a road transport contractual chain order during suspension","content":"536QJ  Operation of a road transport contractual chain order during suspension\n\n  A road transport contractual chain order:\n\n (a) is not in operation during any period when a full suspension determination in relation to the road transport contractual chain order is in operation; and\n\n (b) is in operation during any period when a part suspension determination is in operation in relation to the road transport contractual chain order.\n\nNote: Although a road transport contractual chain order is in operation during a period when a part deferral determination is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.","sortOrder":1349},{"sectionNumber":"536QK","sectionType":"section","heading":"FWC must consider whether to vary or revoke a road transport contractual chain order that has been deferred or suspended","content":"536QK  FWC must consider whether to vary or revoke a road transport contractual chain order that has been deferred or suspended\n\n (1) This section applies if:\n\n (a) the Minister makes a deferral declaration or a suspension declaration in relation to a road transport contractual chain order; or\n\n (b) the FWC makes a deferral determination or a suspension determination in relation to a road transport contractual chain order.\n\n (2) The FWC must, as soon as practicable, consider whether or not to vary or revoke the road transport contractual chain order. The FWC must:\n\n (a) vary the road transport contractual chain order under subsection 536PT(1); or\n\n (b) revoke the road transport contractual chain order under subsection 536PT(1); or\n\n (c) decide not to vary or revoke the road transport contractual chain order.\n\nGeneral preconditions for variation or revocation\n\n (3) The FWC:\n\n (a) must not vary or revoke the road transport contractual chain order unless there has been genuine engagement with the parties to be covered; and\n\n (b) in the case of a road transport contractual chain order—must not vary or revoke the road transport contractual chain order unless the Road Transport Advisory Group has been consulted; and\n\n (c) in the case of a road transport contractual chain order—must have regard to the commercial realities of the road transport industry; and\n\n (d) in the case of a road transport contractual chain order—must be satisfied that the variation or revocation of the road transport contractual chain order will not unduly affect the viability and competitiveness of owner drivers or other similar persons; and\n\n (e) in the case of a road transport contractual chain order that covers road transport employee‑like workers—must have regard to choice and flexibility in working arrangements.\n\nSpecial preconditions for variation or revocation: road transport contractual chain order\n\n (4) In addition to the matters mentioned in subsection (3), the FWC must not vary or revoke a road transport contractual chain order in relation to which a deferral declaration or a deferral determination has been made unless the FWC has followed the process set out in Division 4 of this Part in relation to the variation or revocation.\n\nPublication requirements\n\n (5) The FWC must publish notice of the FWC’s decision under subsection (2) on the FWC’s website and by any other means the FWC considers appropriate.\n\nEnd of suspension period does not affect obligations under this section\n\n (6) The end of a period of suspension of a road transport contractual chain order under subsection 536PX(4) or 536QG(4) does not affect the FWC’s obligation to consider whether or not to vary or revoke the road transport contractual chain order.","sortOrder":1351},{"sectionNumber":"536QL","sectionType":"section","heading":"FWC to prepare and publish a notice relating to proposed variation or revocation of a road transport contractual chain order","content":"536QL  FWC to prepare and publish a notice relating to proposed variation or revocation of a road transport contractual chain order\n\n (1) Before deciding to vary or revoke a road transport contractual chain order in relation to which a deferral declaration or a deferral determination has been made, the FWC must:\n\n (a) publish a notice (a notice of intent) stating that the FWC proposes to vary or revoke the road transport contractual chain order; and\n\n (b) if the proposal is to vary the road transport contractual chain order—publish a draft of the road transport contractual chain order as proposed to be varied.\n\n (2) The FWC must publish the notice of intent and the draft of the road transport contractual chain order as proposed to be varied (if applicable) on the FWC’s website and by any other means the FWC considers appropriate as soon as practicable after making the determination.","sortOrder":1353},{"sectionNumber":"536QM","sectionType":"section","heading":"Affected entities to have a reasonable opportunity to make submissions and comment on a proposed variation or revocation of a road transport contractual chain order","content":"536QM  Affected entities to have a reasonable opportunity to make submissions and comment on a proposed variation or revocation of a road transport contractual chain order\n\n (1) The FWC must ensure that affected entities have a reasonable opportunity to make written submissions to the FWC for its consideration in relation to the proposed variation or revocation of a road transport contractual chain order in relation to which a notice of intent has been published under paragraph 536QL(1)(a).\n\n (1A) To avoid doubt, if the proposed variation or revocation is of a time‑sensitive road transport contractual chain order, a short period to make written submissions may be a reasonable opportunity.\n\n (2) The FWC must publish submissions made to the FWC.\n\n (3) However, if a submission made by an entity includes information that is claimed by the entity to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive, the FWC:\n\n (a) may decide not to publish the information; and\n\n (b) may instead publish:\n\n (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\n\n (ii) if the FWC 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.\n\n (4) The publishing of material under subsections (2) and (3) must be on the FWC’s website and by any other means the FWC considers appropriate.\n\n (5) 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).\n\n (6) For the purposes of subsection (1), an affected entity, in relation to a proposed variation or revocation of a road transport contractual chain order in relation to which a notice of intent has been published under paragraph 536QL(1)(a), is:\n\n (a) a person or body likely to be affected by the proposed variation or revocation; or\n\n (b) a person or body prescribed by the regulations, or belonging to a class of persons or bodies prescribed by the regulations.\n\n (7) The FWC may, but is not required to, hold a hearing in relation to the following:\n\n (a) a draft road transport contractual chain order as proposed to be varied;\n\n (b) a proposed revocation of a road transport contractual chain order.","sortOrder":1354},{"sectionNumber":"536QN","sectionType":"section","heading":"Finalising draft order","content":"536QN  Finalising draft order\n\n (1) The FWC may make any changes it thinks appropriate to a draft road transport contractual chain order as proposed to be varied.\n\n (2) If changes proposed to be made under subsection (1) are significant, the FWC must:\n\n (a) decide not to vary the road transport contractual chain order based on the draft; and\n\n (b) publish a subsequent notice of intent under paragraph 536QL(1)(a) in relation to the revised draft road transport contractual chain order, and publish the revised draft; and\n\n (c) follow the process set out in section 536QM (as affected by subsection (3) or (4) of this section) in relation to the revised draft road transport contractual chain order.\n\n (3) For the purposes of paragraph (2)(c), the period of consultation under section 536QM in relation to the revised draft road transport contractual chain order is to be the period of at least 12 months starting when the subsequent notice of intent and the revised draft required by paragraph (2)(b) of this section were published.\n\n (4) However, the FWC may reduce that 12‑month period to another period that the FWC considers is reasonable if the order is a time‑sensitive road transport contractual chain order.","sortOrder":1355},{"sectionNumber":"536QP","sectionType":"section","heading":"Road transport contractual chain guidelines","content":"536QP  Road transport contractual chain guidelines\n\n (1) The FWC may make guidelines under this section (road transport contractual chain guidelines) that set standards for regulated road transport contractors, road transport employee‑like workers and other persons in a road transport contractual chain.\n\n (2) The FWC may make road transport contractual chain guidelines under this section:\n\n (a) on its own initiative; or\n\n (b) on application under section 536QQ.","sortOrder":1357},{"sectionNumber":"536QQ","sectionType":"section","heading":"Applications for road transport contractual chain guidelines","content":"536QQ  Applications for road transport contractual chain guidelines\n\n (1) Any of the following may apply to the FWC for the making of road transport contractual chain guidelines:\n\n (a) an organisation that is entitled to represent the industrial interests of one or more of the persons that would be covered by the proposed road transport contractual chain guidelines;\n\n (b) a regulated business that would be covered by the proposed road transport contractual chain guidelines;\n\n (c) a person who is a primary party to the first contract or arrangement in a road transport contractual chain that would be covered by the proposed road transport contractual chain guidelines;\n\n (d) the Minister;\n\n (e) a person or body prescribed by the regulations.\n\nMatters to be specified in an application\n\n (2) An application for the making of road transport contractual chain guidelines must specify the class of persons in a road transport contractual chain to be covered by the guidelines.\n\n (3) 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 a particular industry or sector, or part of an industry or sector, or particular kinds of work.","sortOrder":1358},{"sectionNumber":"536QR","sectionType":"section","heading":"Decisions on applications for road transport contractual chain guidelines","content":"536QR  Decisions on applications for road transport contractual chain guidelines\n\n (1) If an application for road transport contractual chain guidelines is made to the FWC under subsection 536QQ(1), the FWC may decide to:\n\n (a) refuse to consider the application; or\n\n (b) make road transport contractual chain guidelines under subsection 536QP(1); or\n\n (c) not make road transport contractual chain guidelines; or\n\n (d) if the FWC considers it appropriate to do so, instead make a road transport contractual chain order under subsection 536PD(1), as if the application had been an application under subsection 536PE(1) for a road transport contractual chain order in relation to the persons covered by the application under subsection 536QQ(1).\n\n (2) Without limiting subsection (1), the FWC may refuse to consider the application if it is not consistent with a direction of the President under subsection 582(4D) (prioritisation).","sortOrder":1359},{"sectionNumber":"536QS","sectionType":"section","heading":"Road transport contractual chain guidelines not to be made if a road transport contractual chain order is in operation","content":"536QS  Road transport contractual chain guidelines not to be made if a road transport contractual chain order is in operation\n\n  The FWC must not make road transport contractual chain guidelines that cover the same persons in a road transport contractual chain in relation to the same matters as a road transport contractual chain order that is in operation.","sortOrder":1360},{"sectionNumber":"536QT","sectionType":"section","heading":"Terms that must be included in road transport contractual chain guidelines","content":"536QT  Terms that must be included in road transport contractual chain guidelines\n\n  Road transport contractual chain guidelines must include terms setting out the same matters in relation to road transport contractual chain orders as set out in section 536PM.","sortOrder":1361},{"sectionNumber":"536QU","sectionType":"section","heading":"Terms that may be included in road transport contractual chain guidelines","content":"536QU  Terms that may be included in road transport contractual chain guidelines\n\n  Road transport contractual chain guidelines may include terms about any of the matters that may be included in road transport contractual chain orders under section 536PQ.","sortOrder":1362},{"sectionNumber":"536QV","sectionType":"section","heading":"Terms that must not be included in road transport contractual chain guidelines","content":"536QV  Terms that must not be included in road transport contractual chain guidelines\n\n  Road transport contractual chain guidelines must not include terms about any of the matters that must not be included in road transport contractual chain orders as set out in section 536PR.","sortOrder":1363},{"sectionNumber":"536QW","sectionType":"section","heading":"FWC may vary or revoke road transport contractual chain guidelines","content":"536QW  FWC may vary or revoke road transport contractual chain guidelines\n\n (1) The FWC may make a determination varying or revoking road transport contractual chain guidelines if the FWC is satisfied that making the determination is consistent with the road transport objective and the minimum standards objective.\n\n (2) The FWC may make a determination varying road transport contractual chain guidelines in such a way that not all of the elements of the variation sought in an application under section 536QX are implemented, including by refusing to make a variation to the extent that it would result in the guidelines covering persons who are not in a road transport contractual chain.\n\n (3) The FWC may make a determination varying road transport contractual chain guidelines to remove an ambiguity or uncertainty or to correct an error.\n\n (4) The FWC may make a determination varying or revoking road transport contractual chain guidelines:\n\n (a) on its own initiative; or\n\n (b) on application under section 536QX.\n\n (5) If the FWC makes a road transport contractual chain order that covers the same persons in a road transport contractual chain in relation to the same matters as road transport contractual chain guidelines, the FWC must revoke the road transport contractual chain guidelines with effect on and from the day on which the road transport contractual chain order comes into operation.\n\n (6) If the FWC makes a road transport contractual chain order that covers some or all of the same persons in a road transport contractual chain in relation to some or all of the same matters as road transport contractual chain guidelines, the FWC must vary the road transport contractual chain guidelines so that the guidelines do not cover the persons or matters covered by the order, with effect on and from the day on which the order comes into operation.","sortOrder":1364},{"sectionNumber":"536QX","sectionType":"section","heading":"Applications to vary or revoke road transport contractual chain guidelines","content":"536QX  Applications to vary or revoke road transport contractual chain guidelines\n\n  Any of the following may apply to the FWC for a determination varying or revoking road transport contractual chain guidelines:\n\n (a) an organisation that is entitled to represent the industrial interests of one or more of the persons covered by the road transport contractual chain guidelines, or that would be covered by the road transport contractual chain guidelines as proposed to be varied;\n\n (b) a regulated business covered by the road transport contractual chain guidelines, or that would be covered by the road transport contractual chain guidelines as proposed to be varied;\n\n (c) a person who is a primary party to the first contract or arrangement in a road transport contractual chain covered by the road transport contractual chain guidelines, or that would be covered by the road transport contractual chain guidelines as proposed to be varied;\n\n (d) the Minister;\n\n (e) a person or body prescribed by the regulations.","sortOrder":1365},{"sectionNumber":"Part 4-1","sectionType":"part","heading":"Civil remedies","content":"Part 4‑1—Civil remedies","sortOrder":1366},{"sectionNumber":"537","sectionType":"section","heading":"Guide to this Part","content":"537  Guide to this Part\n\nThis 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.\n\nSubdivision 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).\n\nSubdivision B of Division 2 sets out the orders that can be made by the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory Court in relation to a contravention of a civil remedy provision.\n\nDivision 3 sets out when proceedings relating to a contravention of a civil remedy provision may be dealt with as small claims proceedings.\n\nDivision 4 deals with general provisions relating to civil remedies, including rules about evidence and procedure.\n\nDivision 4A imposes obligations on responsible franchisor entities in relation to certain contraventions of civil remedy provisions by franchisee entities and on holding companies in relation to certain contraventions of civil remedy provisions by subsidiaries.\n\nDivision 5 deals with unclaimed money.","sortOrder":1368},{"sectionNumber":"538","sectionType":"section","heading":"Meanings of employee and employer","content":"538  Meanings of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":1369},{"sectionNumber":"539","sectionType":"section","heading":"Applications for orders in relation to contraventions of civil remedy provisions","content":"539  Applications for orders in relation to contraventions of civil remedy provisions\n\n (1) A provision referred to in column 1 of an item in the table in subsection (2) is a civil remedy provision.\n\n (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.\n\nNote 1: Civil remedy provisions within a single Part may be grouped together in a single item of the table.\n\nNote 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)).\n\nNote 3: The regulations may also prescribe persons for the purposes of an item in column 2 of the table (see subsection 540(8)).\n\nNote 3A: The penalties referred to in column 4 of the table are adjusted for bodies corporate and for contraventions associated with underpayment amounts (see section 546).\n\nNote 4: See section 557A in relation to a serious contravention of a civil remedy provision.\n\n\n\n- Standing, jurisdiction and maximum penalties\n- Item Column 1 Civil remedy provision Column 2 Persons Column 3 Courts Column 4 Maximum penalty\n- Part 2‑1—Core provisions\n- 1 44 (a) an employee;(b) an employee organisation;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court for a serious contravention—600 penalty units; orotherwise—60 penalty units\n- 2 45 (other than in relation to a contravention or proposed contravention of an outworker term) (a) an employee;(b) an employer;(c) an employee organisation;(d) an employer organisation;(e) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court for a serious contravention—600 penalty units; orotherwise—60 penalty units\n- 3 45 (in relation to a contravention or proposed contravention of an outworker term) (a) an outworker;(b) an employer;(c) an outworker entity;(d) an employee organisation;(e) an employer organisation;(f) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court for a serious contravention—600 penalty units; orotherwise—60 penalty units\n- 4 50 (other than in relation to a contravention or proposed contravention of a term that would be an outworker term if it were included in a modern award) (a) an employee;(b) an employer;(c) an employee organisation to which the enterprise agreement concerned applies;(d) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court for a serious contravention—600 penalty units; orotherwise—60 penalty units\n- 5 50 (in relation to a contravention or proposed contravention of a term that would be an outworker term if it were included in a modern award) (a) an employee;(b) an employer;(c) an employee organisation;(d) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court for a serious contravention—600 penalty units; orotherwise—60 penalty units\n- Part 2‑2—The National Employment Standards\n- 5AA 65C(6) (a) an employee;(b) an employee organisation;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- 5AAA 66MA(8) (a) an employee;(b) an employee organisation;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 300 penalty units\n- 5AB 76C(7) (a) an employee;(b) an employee organisation;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- Part 2‑4—Enterprise agreements\n- 5AC 177A(3) (a) an employee;(b) a bargaining representative for the proposed enterprise agreement;(c) an inspector;(d) the General Manager;(e) the administrator of a scheme determined under subsection 323B(1) of the Registered Organisations Act (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 600 penalty units\n- 5A 179(1)179(5) (a) an employee;(b) a bargaining representative for the proposed enterprise agreement;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- 5B 180(4A)180(4B)180(4C) (a) an employee;(b) a bargaining representative for the proposed enterprise agreement;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- 5C 226A(6) (a) an employee;(b) an employee organisation to which the enterprise agreement applied immediately before the termination of the agreement;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court for a serious contravention—600 penalty units; orotherwise—60 penalty units\n- 6 233 (a) an employee who the proposed enterprise agreement will cover;(b) a bargaining representative for the proposed enterprise agreement;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- Part 2‑5—Workplace determinations\n- 7 280 (a) an employee;(b) an employer;(c) an employee organisation to which the workplace determination concerned applies;(d) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court for a serious contravention—600 penalty units; orotherwise—60 penalty units\n- Part 2‑6—Minimum wages\n- 8 293 (a) an employee;(b) an employee organisation;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court for a serious contravention—600 penalty units; orotherwise—60 penalty units\n- Part 2‑7—Equal remuneration\n- 9 305 (a) an employee;(b) an employee organisation;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court for a serious contravention—600 penalty units; orotherwise—60 penalty units\n- Part 2‑7A—Regulated labour hire arrangement orders\n- 9A 306EC(1)306ED(2)306ED(4)306EE(2)306EE(3)306F(2)306H(3)306N(3)306Q(7)306S(1)306SA(1)306T306U306V (a) an employee;(b) an employee organisation;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court for a serious contravention—600 penalty units; orotherwise—60 penalty units\n- Part 2‑9—Other terms and conditions of employment\n- 10 323(1) 323(3) 325(1) 328(1) 328(2) 328(3) (a) an employee;(b) an employee organisation;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court for a serious contravention—600 penalty units; orotherwise—60 penalty units\n- 10A 325(1A) (a) a prospective employee;(b) an employee;(c) an employee organisation;(d) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court for a serious contravention—600 penalty units; orotherwise—60 penalty units\n- 10B 333D (a) a prospective employee;(b) an employee;(c) an employee organisation;(d) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court for a serious contravention—600 penalty units; orotherwise—60 penalty units\n- 10C 333E (a) a prospective employee;(b) an employee;(c) an employee organisation;(d) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court for a serious contravention—600 penalty units; orotherwise—60 penalty units\n- 10D 333K (a) a prospective employee;(b) an employee;(c) an employee organisation;(d) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court for a serious contravention—600 penalty units; orotherwise—60 penalty units\n- 10E 333Q (a) a person affected by the contravention;(b) an industrial association;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- 10F 333X(2) (a) an employee;(b) an employee organisation;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court for a serious contravention—600 penalty units; orotherwise—60 penalty units\n- Part 3‑1—General protections\n- 11 340(1) 340(2) 343(1) 344 345(1) 346 348 349(1) 350(1) 350(2) 350(2A) 350A(1) 350B(1) 351(1) 352 353(1) 354(1) 354(3) 355 369(3) (a) a person affected by the contravention;(b) an industrial association;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 60 penalty units\n- 11A 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 Circuit and Family Court of Australia (Division 2) 60 penalty units\n- 11B 359B 359C (a) a person affected by the contravention;(b) an industrial association;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 300 penalty units\n- 12 378 (a) a person to whom the costs are payable;(b) an industrial association;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 60 penalty units\n- Part 3‑2—Unfair dismissal\n- 13 405 (a) a person affected by the contravention;(b) an employee organisation;(c) an employer organisation;(d) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- Part 3‑3—Industrial action\n- 14 417(1) (a) an employee;(b) an employer;(c) an employee organisation covered by the enterprise agreement or workplace determination concerned;(d) a person affected by the industrial action;(e) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 60 penalty units\n- 15 421(1) (a) a person affected by the contravention;(b) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 60 penalty units\n- 16 434 an inspector the Federal Court 60 penalty units\n- 17 458(2) (a) an employee;(b) an employer;(c) an applicant for the protected action ballot order;(d) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 30 penalty units\n- 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 (unless the protected action ballot agent is the Australian Electoral Commission);(da) if the protected action ballot agent is the Australian Electoral Commission—the Electoral Commissioner;(e) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 30 penalty units\n- 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 (unless the protected action ballot agent is the Australian Electoral Commission);(da) if the protected action ballot agent is the Australian Electoral Commission—the Electoral Commissioner;(e) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 60 penalty units\n- 20 467(1) (a) an employee;(b) an employer;(c) an applicant for the protected action ballot order;(d) the protected action ballot agent (unless the protected action ballot agent is the Australian Electoral Commission);(da) if the protected action ballot agent is the Australian Electoral Commission—the Electoral Commissioner;(e) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 30 penalty units\n- 21 470(1) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 60 penalty units\n- 22 473(1) 473(2) (a) an employer;(b) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 60 penalty units\n- 23 474(1) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 60 penalty units\n- 24 475(1) 475(2) (a) an employer;(b) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 60 penalty units\n- Part 3‑4—Right of entry\n- 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) (a) a person affected by the contravention;(b) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 60 penalty units\n- 25A 503(1) (a) a person affected by the contravention;(b) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) for a contravention by a removed person—600 penalty units; orotherwise—60 penalty units\n- 25B 504506509521C(3)521D(3) (a) a person affected by the contravention;(b) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 60 penalty units\n- 26 517(1) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 60 penalty units\n- Part 3‑5—Stand down\n- 27 527 (a) an employee;(b) an employee organisation;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- Part 3‑5A—Prohibiting sexual harassment in connection with work\n- 27A 527D(1) (a) a person affected by the contravention;(b) an industrial association;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2); 60 penalty units\n- 27B 527K (a) a person affected by the contravention;(b) an industrial association;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- 27C 527S(4) a person affected by the contravention; (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2); 60 penalty units\n- Part 3‑6—Other rights and responsibilities\n- 28 530(4) (a) an employee;(b) a registered employee association;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 30 penalty units\n- 29 535(1) 535(2) 535(4) 536(1) 536(2) 536(3) (a) an employee;(b) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court for a serious contravention—600 penalty units; orotherwise—60 penalty units\n- 29AA 536AA(1)536AA(2) (a) an employee organisation;(b) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 60 penalty units\n- Part 3A‑2—Minimum standards for regulated workers\n- 29AB 536JB (a) a regulated worker covered by the relevant minimum standards order;(b) a regulated business covered by the relevant minimum standards order;(c) an organisation;(d) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court for a serious contravention—600 penalty units; orotherwise—60 penalty units\n- Part 3A‑3—Unfair deactivation and unfair termination\n- 29AC 536MG (a) a party to the relevant services contract;(b) a digital labour platform operator that arranged or facilitated entry into the relevant services contract;(c) an organisation;(d) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- Part 3A‑4—Collective agreements\n- 29AD 536JJ (a) a regulated worker covered by the collective agreement;(b) a regulated business covered by the collective agreement;(c) an organisation (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court for a serious contravention—600 penalty units; orotherwise—60 penalty units\n- Part 3A‑5—Unfair contract terms of services contracts\n- 29AE 536NK (a) a party to the relevant services contract;(b) an organisation;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- Part 3B‑2—Minimum standards for persons in a road transport contractual chain\n- 29AF 536NP (a) a person (the first person) covered by the relevant road transport contractual chain order;(b) an organisation entitled to represent the interests of the first person;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- Part 4‑1—Civil remedies\n- 29A 558B(1)558B(2) (a) an employee;(b) an employee organisation;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 60 penalty units\n- Part 5‑1—The Fair Work Commission\n- 30 611(3) (a) a person to whom the costs are payable;(b) an employee organisation;(c) an employer organisation;(d) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- Part 5‑2—Office of the Fair Work Ombudsman\n- 30A 707A(1) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- 31 711(3) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 30 penalty units\n- 32 712(3) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- 32A 712B(1) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 600 penalty units\n- 33 716(5) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- 33A 718A(1) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- Part 6‑3—Extension of National Employment Standards entitlements\n- 34 745 760 (a) an employee;(b) a registered employee association;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- 34AAA 757BA (a) an employee;(b) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court for a serious contravention—600 penalty units; orotherwise—60 penalty units\n- 34AA 757C (a) an employee;(b) a registered employee association;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- Part 6‑3A—Transfer of business from a State public sector employer\n- 34A 768AG (a) the transferring employee;(b) an employer;(c) an employee organisation;(d) an employer organisation;(e) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- 34B 768BT (a) the transferring employee;(b) an employer;(c) an employee organisation;(d) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n- Part 6‑4—Additional provisions relating to termination of employment\n- 35 772(1) 777(3) (a) a person affected by the contravention;(b) an industrial association;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 60 penalty units\n- 36 782 (a) a person to whom the costs are payable;(b) an industrial association;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 60 penalty units\n- 37 785(4) (a) an employee;(b) a registered employee association;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2) 30 penalty units\n- Part 6‑4B—Workers bullied at work\n- 38 789FG (a) a person affected by the contravention;(b) an industrial association;(c) an inspector (a) the Federal Court;(b) the Federal Circuit and Family Court of Australia (Division 2);(c) an eligible State or Territory court 60 penalty units\n\n\n (3) The regulations may provide that a provision set out in the regulations is a civil remedy provision.\n\n (4) If the regulations make provision as mentioned in subsection (3):\n\n (a) the regulations must set out:\n\n (i) the persons who would be referred to in column 2; and\n\n (ii) the courts that would be referred to in column 3; and\n\n (iii) the maximum penalty that would be referred to in column 4;\n\n  of the table in subsection (2) if there were an item for the civil remedy provision in the table; and\n\n (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.\n\nNote: See section 798 for limits on the penalties that may be set out in the regulations.","sortOrder":1372},{"sectionNumber":"540","sectionType":"section","heading":"Limitations on who may apply for orders etc.","content":"540  Limitations on who may apply for orders etc.\n\nEmployees, employers, outworkers and outworker entities\n\n (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:\n\n (a) an employee;\n\n (aa) a prospective employee;\n\n (b) an employer;\n\n (c) an outworker;\n\n (d) an outworker entity.\n\nEmployee organisations and registered employee associations\n\n (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:\n\n (a) the employee is affected by the contravention, or will be affected by the proposed contravention; and\n\n (b) the organisation or association is entitled to represent the industrial interests of the employee.\n\n (3) However, subsection (2) does not apply in relation to:\n\n (a) items 4, 7 and 14 in the table in subsection 539(2); or\n\n (b) a contravention or proposed contravention of:\n\n (i) an outworker term in a modern award; or\n\n (ii) a term in an enterprise agreement that would be an outworker term if it were included in a modern award.\n\n (4) An employee organisation may apply for an order under this Division, in relation to a contravention or proposed contravention of:\n\n (a) an outworker term in a modern award; or\n\n (b) a term in an enterprise agreement that would be an outworker term if it were included in a modern award;\n\nonly if the employee organisation is entitled to represent the industrial interests of an outworker to whom the term relates.\n\nEmployer organisations\n\n (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.\n\nIndustrial associations\n\n (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:\n\n (a) the industrial association is affected by the contravention, or will be affected by the proposed contravention; or\n\n (b) if the contravention is in relation to a person:\n\n (i) the person is affected by the contravention, or will be affected by the proposed contravention; and\n\n (ii) the industrial association is entitled to represent the industrial interests of the person.\n\n (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).\n\nRegulated workers and regulated businesses\n\n (7A) 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:\n\n (a) a regulated worker;\n\n (b) a regulated business.\n\nParties to services contracts\n\n (7B) A person who is a party to a services contract to which an order under Division 4 of Part 3A‑5 relates 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.\n\nPersons in a road transport contractual chain\n\n (7C) A person in a road transport contractual chain may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if:\n\n (a) the person is affected by the contravention, or will be affected by the proposed contravention; and\n\n (b) the person is a party to a contract with another person covered by the relevant road transport contractual chain order, being a person who is alleged to have committed the contravention.\n\nRegulations\n\n (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.","sortOrder":1373},{"sectionNumber":"541","sectionType":"section","heading":"Applications for orders in relation to safety net contractual entitlements","content":"541  Applications for orders in relation to safety net contractual entitlements\n\n (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.\n\n (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.\n\n (3) The provisions and terms are the following:\n\n (a) a provision of the National Employment Standards;\n\n (b) a term of a modern award;\n\n (c) a term of an enterprise agreement;\n\n (d) a term of a workplace determination;\n\n (e) a term of a national minimum wage order;\n\n (f) a term of an equal remuneration order.","sortOrder":1374},{"sectionNumber":"542","sectionType":"section","heading":"Entitlements under contracts","content":"542  Entitlements under contracts\n\n (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.\n\n (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.","sortOrder":1375},{"sectionNumber":"543","sectionType":"section","heading":"Applications for orders in relation to statutory entitlements derived from contracts","content":"543  Applications for orders in relation to statutory entitlements derived from contracts\n\n  A national system employer or a national system employee may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) to enforce an entitlement of the employer or employee arising under subsection 542(1).","sortOrder":1376},{"sectionNumber":"544","sectionType":"section","heading":"Time limit on applications","content":"544  Time limit on applications\n\n  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:\n\n (a) a civil remedy provision;\n\n (b) a safety net contractual entitlement;\n\n (c) an entitlement arising under subsection 542(1).\n\nNote 1: This section does not apply in relation to general protections court applications, sexual harassment court applications or unlawful termination court applications (see subparagraphs 370(a)(ii), 527T(1)(a)(ii) and 778(a)(ii)).\n\nNote 2: For time limits on orders relating to underpayments, see subsection 545(5).","sortOrder":1377},{"sectionNumber":"545","sectionType":"section","heading":"Orders that can be made by particular courts","content":"545  Orders that can be made by particular courts\n\nFederal Court and Federal Circuit and Family Court of Australia (Division 2)\n\n (1) The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) 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.\n\nNote 1: For the court’s power to make pecuniary penalty orders, see section 546.\n\nNote 2: For limitations on orders in relation to costs, see section 570.\n\nNote 3: The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) may grant injunctions in relation to industrial action under subsections 417(3) and 421(3).\n\nNote 4: There are limitations on orders that can be made in relation to contraventions of subsection 463(1) or (2) (which deals with protected action ballot orders) (see subsection 463(3)).\n\n (2) Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make include the following:\n\n (a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;\n\n (b) an order awarding compensation for loss that a person has suffered because of the contravention;\n\n (c) an order for reinstatement of a person;\n\n (d) an order requiring a person to comply, either wholly or partly, with a notice (other than an infringement notice) given to the person by an inspector or the Fair Work Ombudsman.\n\nEligible State or Territory courts\n\n (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:\n\n (a) the employer was required to pay the amount under this Act or a fair work instrument; and\n\n (b) the employer has contravened a civil remedy provision by failing to pay the amount.\n\nNote 1: For the court’s power to make pecuniary penalty orders, see section 546.\n\nNote 2: For limitations on orders in relation to costs, see section 570.\n\n (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:\n\n (a) the outworker entity was required to pay the amount under a modern award; and\n\n (b) the outworker entity has contravened a civil remedy provision by failing to pay the amount.\n\nNote 1: For the court’s power to make pecuniary penalty orders, see section 546.\n\nNote 2: For limitations on orders in relation to costs, see section 570.\n\nWhen orders may be made\n\n (4) A court may make an order under this section:\n\n (a) on its own initiative, during proceedings before the court; or\n\n (b) on application.\n\nTime limit for orders in relation to underpayments\n\n (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.","sortOrder":1379},{"sectionNumber":"545A","sectionType":"section","heading":"Orders relating to casual loading amounts","content":"545A  Orders relating to casual loading amounts\n\n (1) This section applies if:\n\n (a) a person is employed by an employer in circumstances where the employment is described as casual employment; and\n\n (b) the employer pays the person an identifiable amount (the loading amount) paid to compensate the person for not having one or more relevant entitlements during a period (the employment period); and\n\n (c) during the employment period, the person was not a casual employee; and\n\n (d) the person (or another person for the benefit of the person) makes a claim to be paid an amount for one or more of the relevant entitlements with respect to the employment period.\n\nNote: For the purposes of paragraph (d), another person making a claim for the benefit of the person could include an inspector or an employee organisation.\n\n (2) When making any orders in relation to the claim, a court must reduce (but not below nil) any amount payable by the employer to the person for the relevant entitlements (the claim amount) by an amount equal to the loading amount.\n\nNote: If the claim is below a certain amount, the person may choose to use the small claims procedure: see section 548.\n\n (3) Despite subsection (2), the court may reduce the claim amount by an amount equal to a proportion (which may be nil) of the loading amount the court considers appropriate, having regard only to:\n\n (a) if a term of the fair work instrument or contract of employment under which the loading amount is paid specifies the relevant entitlements the loading amount is compensating for and specifies the proportion of the loading amount attributable to each such entitlement—that term (including those proportions); or\n\n (b) if a term of the fair work instrument or contract of employment under which the loading amount is paid specifies the relevant entitlements the loading amount is compensating for but does not specify the proportion of the loading amount attributable to each such entitlement—that term and what would be an appropriate proportion of the loading amount attributable to each of those entitlements in all the circumstances; or\n\n (c) if paragraph (a) or (b) does not apply—the entitlements referred to in subsection (4) and what would be an appropriate proportion of the loading amount attributable to each of those entitlements in all the circumstances.\n\n (4) A reference in this section to a relevant entitlement is a reference to an entitlement under the National Employment Standards, a fair work instrument or a contract of employment to any of the following:\n\n (a) paid annual leave;\n\n (b) paid personal/carer’s leave;\n\n (c) paid compassionate leave;\n\n (d) payment for absence on a public holiday;\n\n (e) payment in lieu of notice of termination;\n\n (f) redundancy pay.\n\n (5) To avoid doubt, an entitlement referred to in subsection (4) includes any such entitlement that has accrued but is untaken.","sortOrder":1380},{"sectionNumber":"546","sectionType":"section","heading":"Pecuniary penalty orders","content":"546  Pecuniary penalty orders\n\n (1) The Federal Court, the Federal Circuit and Family Court of Australia (Division 2) 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.\n\nNote 1: 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)).\n\nNote 2: Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of an enterprise agreement only because of the retrospective effect of an amendment made under paragraph 227B(3)(b) (see subsection 227E(2)).\n\nDetermining amount of pecuniary penalty\n\n (2) Subject to this section, the pecuniary penalty must not be more than:\n\n (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\n\n (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).\n\n (2A) Despite paragraph (2)(b) and subsection (2AA), if:\n\n (a) the civil remedy provision is a selected civil remedy provision; and\n\n (b) the person is a body corporate; and\n\n (c) when the application for the order is made, the person is not a small business employer; and\n\n (d) the contravention is associated with an underpayment amount; and\n\n (e) the application specifies that the applicant wants the maximum penalty to be calculated based on a multiple of the underpayment amount; and\n\n (f) the person is not taken to have contravened the civil remedy provision under section 550 (person involved in a contravention);\n\nthe pecuniary penalty must not be more than the greater of the following:\n\n (g) the amount worked out in accordance with subsection (2AA);\n\n (h) 3 times the underpayment amount.\n\nNote: For when contravention of a civil remedy provision is associated with an underpayment amount, see section 546A.\n\n (2AA) Despite paragraph (2)(b), if:\n\n (a) the civil remedy provision is a selected civil remedy provision; and\n\n (b) the person is a body corporate; and\n\n (c) when the application for the order is made, the person is not a small business employer;\n\nthe pecuniary penalty must not be more than 5 times the amount worked out in accordance with paragraph (2)(b).\n\nPayment of penalty\n\n (3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to:\n\n (a) the Commonwealth; or\n\n (b) a particular organisation; or\n\n (c) a particular person.\n\nRecovery of penalty\n\n (4) The pecuniary penalty may be recovered as a debt due to the person to whom the penalty is payable.\n\nNo limitation on orders\n\n (5) To avoid doubt, a court may make a pecuniary penalty order in addition to one or more orders under section 545.","sortOrder":1381},{"sectionNumber":"546A","sectionType":"section","heading":"Underpayment amounts associated with contravention of civil remedy provisions","content":"546A  Underpayment amounts associated with contravention of civil remedy provisions\n\n (1) A contravention of a civil remedy provision is associated with an underpayment amount if:\n\n (a) an employer is required to pay an amount (a required amount) to, on behalf of, or for the benefit of, an employee under this Act, a fair work instrument or a transitional instrument (as continued in existence by Schedule 3 to the Transitional Act); and\n\n (b) the employer engages in conduct; and\n\n (c) the conduct results in a failure to pay the required amount to, on behalf of, or for the benefit of, the employee in full on or before the day when the required amount is due for payment; and\n\n (d) the failure is related to the contravention.\n\n (2) The underpayment amount the contravention is associated with is, to the extent it can be determined by the court, the difference between:\n\n (a) the required amount mentioned in paragraph (1)(a); and\n\n (b) the amount (including a nil amount) the employer actually paid to, on behalf of, or for the benefit of, the employee on account of the required amount.","sortOrder":1382},{"sectionNumber":"547","sectionType":"section","heading":"Interest up to judgment","content":"547  Interest up to judgment\n\n (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.\n\n (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.\n\n (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.","sortOrder":1383},{"sectionNumber":"548","sectionType":"section","heading":"Plaintiffs may choose small claims procedure","content":"548  Plaintiffs may choose small claims procedure\n\n (1) Proceedings are to be dealt with as small claims proceedings under this section if:\n\n (a) a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit and Family Court of Australia (Division 2); and\n\n (b) the order relates to an amount referred to in subsection (1A); and\n\n (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.\n\n (1A) The amounts are as follows:\n\n (a) an amount that an employer was required to pay to, or on behalf of, an employee:\n\n (i) under this Act or a fair work instrument; or\n\n (ii) because of a safety net contractual entitlement; or\n\n (iii) because of an entitlement of the employee arising under subsection 542(1);\n\n (b) an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.\n\n (1B) Proceedings are also to be dealt with as small claims proceedings under this section if:\n\n (a) a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit and Family Court of Australia (Division 2) in connection with a dispute relating to one or more of the following matters:\n\n (v) whether a person has contravened subsection 333E(1) (limitations on fixed term contracts);\n\n (vi) whether subsection 333G(1) (effect of entering prohibited fixed term contract) applies in relation to a contract; and\n\n (b) the person applying for the order 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.\n\n (1C) Proceedings are also to be dealt with as small claims proceedings under this section if:\n\n (a) a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit and Family Court of Australia (Division 2) in connection with a dispute; and\n\n (b) the dispute relates to whether a person was a casual employee of an employer when the person commenced employment with that employer; and\n\n (c) the person applying for the order indicates, in a manner prescribed by the regulations or by the rules of the court, that the person wants the small claims procedure to apply to the proceedings.\n\nNote: Orders that a court may make under Division 2 in relation to small claims proceedings under this subsection may include a declaration that the employee was a casual employee, a part‑time employee or a full‑time employee when the employee commenced employment with the employer.\n\nLimits on award\n\n (2) In small claims proceedings, the court may not award more than:\n\n (a) $100,000; or\n\n (b) if a higher amount is prescribed by the regulations—that higher amount.\n\n (2A) Interest awarded under section 547 does not count towards the maximum amount that the court may award under subsection (2) of this section.\n\nProcedure\n\n (3) In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:\n\n (a) in an informal manner; and\n\n (b) without regard to legal forms and technicalities.\n\n (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.\n\nLegal representation\n\n (5) A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court.\n\n (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.\n\n (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.\n\nRepresentation by an industrial association\n\n (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.\n\n (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.\n\nCosts for filing fees paid in relation to the proceedings\n\n (10) If the court makes an order (the small claims order) mentioned in subsection (1) against a party to small claims proceedings, the court may make an order as to costs against the party for any filing fees paid to the court by the party that applied for the small claims order.\n\n (11) Subsection (10) applies despite section 570.","sortOrder":1385},{"sectionNumber":"549","sectionType":"section","heading":"Contravening a civil remedy provision is not an offence","content":"549  Contravening a civil remedy provision is not an offence\n\n  A contravention of a civil remedy provision is not an offence.","sortOrder":1387},{"sectionNumber":"550","sectionType":"section","heading":"Involvement in contravention treated in same way as actual contravention","content":"550  Involvement in contravention treated in same way as actual contravention\n\n (1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.\n\nNote: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).\n\n (2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:\n\n (a) has aided, abetted, counselled or procured the contravention; or\n\n (b) has induced the contravention, whether by threats or promises or otherwise; or\n\n (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or\n\n (d) has conspired with others to effect the contravention.","sortOrder":1388},{"sectionNumber":"551","sectionType":"section","heading":"Civil evidence and procedure rules for proceedings relating to civil remedy provisions","content":"551  Civil evidence and procedure rules for proceedings relating to civil remedy provisions\n\n  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.","sortOrder":1389},{"sectionNumber":"552","sectionType":"section","heading":"Civil proceedings after criminal proceedings","content":"552  Civil proceedings after criminal proceedings\n\n  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.","sortOrder":1390},{"sectionNumber":"553","sectionType":"section","heading":"Criminal proceedings during civil proceedings","content":"553  Criminal proceedings during civil proceedings\n\n (1) Proceedings for a pecuniary penalty order against a person for a contravention of a civil remedy provision are stayed if:\n\n (a) criminal proceedings are commenced or have already commenced against the person for an offence; and\n\n (b) the offence is constituted by conduct that is substantially the same as the conduct in relation to which the order would be made.\n\n (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.","sortOrder":1391},{"sectionNumber":"554","sectionType":"section","heading":"Criminal proceedings after civil proceedings","content":"554  Criminal proceedings after civil proceedings\n\n  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.","sortOrder":1392},{"sectionNumber":"555","sectionType":"section","heading":"Evidence given in proceedings for pecuniary penalty not admissible in criminal proceedings","content":"555  Evidence given in proceedings for pecuniary penalty not admissible in criminal proceedings\n\n (1) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:\n\n (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\n\n (b) the conduct alleged to constitute the offence is substantially the same as the conduct in relation to which the order was sought.\n\n (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.","sortOrder":1393},{"sectionNumber":"556","sectionType":"section","heading":"Civil double jeopardy","content":"556  Civil double jeopardy\n\n  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.\n\nNote: 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)).","sortOrder":1394},{"sectionNumber":"557","sectionType":"section","heading":"Course of conduct","content":"557  Course of conduct\n\n (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:\n\n (a) the contraventions are committed by the same person; and\n\n (b) the contraventions arose out of a course of conduct by the person.\n\n (2) The civil remedy provisions are the following:\n\n (a) section 44 (which deals with contraventions of the National Employment Standards);\n\n (b) section 45 (which deals with contraventions of modern awards);\n\n (c) section 50 (which deals with contraventions of enterprise agreements);\n\n (d) section 280 (which deals with contraventions of workplace determinations);\n\n (e) section 293 (which deals with contraventions of national minimum wage orders);\n\n (f) section 305 (which deals with contraventions of equal remuneration orders);\n\n (fa) subsection 306F(2) (which deals with the protected rate of pay payable to employees covered by a regulated labour hire arrangement order);\n\n (fb) subsection 306H(3) (which deals with the obligations of regulated hosts covered by a regulated labour hire arrangement order);\n\n (fc) subsection 306N(3) (which deals with the contravention of alternative protected rate of pay orders);\n\n (fd) subsection 306Q(7) (which deals with the contravention of arbitrated protected rate of pay orders);\n\n (g) subsection 323(1) (which deals with methods and frequency of payment);\n\n (h) subsection 323(3) (which deals with methods of payment specified in modern awards or enterprise agreements);\n\n (i) subsection 325(1) (which deals with unreasonable requirements on employees to spend or pay amounts);\n\n (ia) subsection 325(1A) (which deals with unreasonable requirements on prospective employees to spend or pay amounts);\n\n (j) subsection 417(1) (which deals with industrial action before the nominal expiry date of an enterprise agreement etc.);\n\n (k) subsection 421(1) (which deals with contraventions of orders in relation to industrial action);\n\n (l) section 434 (which deals with contraventions of Ministerial directions in relation to industrial action);\n\n (la) subsection 527D(1) (which deals with sexual harassment in connection with work);\n\n (m) subsection 530(4) (which deals with notifying Centrelink of certain proposed dismissals);\n\n (n) subsections 535(1), (2) and (4) (which deal with employer obligations in relation to employee records);\n\n (o) subsections 536(1), (2) and (3) (which deal with employer obligations in relation to pay slips);\n\n (oa) subsections 536AA(1) and (2) (which deal with employer obligations in relation to advertising rates of pay);\n\n (ob) section 536JB (which deals with contraventions of minimum standards orders);\n\n (oc) section 536JJ (which deals with contraventions of collective agreements);\n\n (od) section 536NK (which deals with contraventions of orders under Division 4 of Part 3A‑5);\n\n (oe) section 536NP (which deals with contraventions of road transport contractual chain orders);\n\n (p) section 745 (which deals with contraventions of the extended parental leave provisions);\n\n (paa) section 757BA (which deals with employer obligations in relation to pay slips relating to paid leave to which the person is entitled because of section 757B);\n\n (pa) section 757C (which deals with contraventions of the extended paid family and domestic violence leave provisions);\n\n (q) section 760 (which deals with contraventions of the extended notice of termination provisions);\n\n (r) subsection 785(4) (which deals with notifying Centrelink of certain proposed terminations);\n\n (s) any other civil remedy provisions prescribed by the regulations.\n\n (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.","sortOrder":1395},{"sectionNumber":"557A","sectionType":"section","heading":"Serious contravention of civil remedy provisions","content":"557A  Serious contravention of civil remedy provisions\n\n (1) A contravention of a civil remedy provision by a person is a serious contravention if:\n\n (a) the person knowingly contravened the provision; or\n\n (b) the person was reckless as to whether the contravention would occur.\n\nNote: For the liability of bodies corporate for serious contraventions, see section 557B.\n\nExample: Generally, subsection 323(1) requires an employer to pay an employee the full amount payable to the employee in relation to the performance of work.\n\n A contravention of subsection 323(1) is a serious contravention if the employer knowingly does not pay the employee in full or is reckless as to whether the failure would occur. It does not matter if the employer does not know the exact amount of the underpayment.\n\n (2) For the purposes of subsection (1), a person is reckless as to whether a contravention would occur if:\n\n (a) the person is aware of a substantial risk that the contravention would occur; and\n\n (b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.\n\nInvolvement in a serious contravention\n\n (5A) A person (the involved person) who is involved in a contravention of a civil remedy provision by another person (the principal) commits a serious contravention of the provision only if:\n\n (a) the principal’s contravention was a serious contravention; and\n\n (b) the involved person knew that the principal’s contravention was a serious contravention.\n\nApplication for a serious contravention order and alternative orders\n\n (6) If a person is applying for an order in relation to a serious contravention of a civil remedy provision, the person’s application under subsection 539(2) must specify the relevant serious contravention.\n\n (7) If, in proceedings for an order in relation to a serious contravention of a civil remedy provision, the court:\n\n (a) is not satisfied that the person has committed a serious contravention against that provision; and\n\n (b) is satisfied that the person has contravened that provision;\n\nthe court may make a pecuniary penalty order against the person not for the serious contravention but for the contravention of that provision.","sortOrder":1396},{"sectionNumber":"557B","sectionType":"section","heading":"Liability of bodies corporate for serious contravention","content":"557B  Liability of bodies corporate for serious contravention\n\n (1) For the purposes of subsection 557A(1), a body corporate knowingly contravenes a civil remedy provision if the body corporate expressly, tacitly or impliedly authorised the contravention.\n\n (2) This section does not limit section 793.","sortOrder":1397},{"sectionNumber":"557C","sectionType":"section","heading":"Presumption where records not provided","content":"557C  Presumption where records not provided\n\n (1) If:\n\n (a) in proceedings relating to a contravention by an employer of a civil remedy provision referred to in subsection (3), an applicant makes an allegation in relation to a matter; and\n\n (b) the employer was required:\n\n (i) by subsection 535(1) or (2) to make and keep a record; or\n\n (ii) by regulations made for the purposes of subsection 535(3) to make available for inspection a record; or\n\n (iii) by subsection 536(1) or (2) to give a pay slip;\n\n  in relation to the matter; and\n\n (c) the employer failed to comply with the requirement;\n\nthe employer has the burden of disproving the allegation.\n\n (2) Subsection (1) does not apply if the employer provides a reasonable excuse as to why there has not been compliance with subsection 557C(1)(b).\n\n (3) The civil remedy provisions are the following:\n\n (a) section 44 (which deals with contraventions of the National Employment Standards);\n\n (b) section 45 (which deals with contraventions of modern awards);\n\n (c) section 50 (which deals with contraventions of enterprise agreements);\n\n (d) section 280 (which deals with contraventions of workplace determinations);\n\n (e) section 293 (which deals with contraventions of national minimum wage orders);\n\n (f) section 305 (which deals with contraventions of equal remuneration orders);\n\n (g) subsection 323(1) (which deals with methods and frequency of payment);\n\n (h) subsection 323(3) (which deals with methods of payment specified in modern awards or enterprise agreements);\n\n (i) subsection 325(1) (which deals with unreasonable requirements to spend or pay amounts);\n\n (j) any other civil remedy provisions prescribed by the regulations.","sortOrder":1398},{"sectionNumber":"558","sectionType":"section","heading":"Regulations dealing with infringement notices","content":"558  Regulations dealing with infringement notices\n\n (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.\n\n (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.","sortOrder":1399},{"sectionNumber":"558A","sectionType":"section","heading":"Meaning of franchisee entity and responsible franchisor entity","content":"558A  Meaning of franchisee entity and responsible franchisor entity\n\n (1) A person is a franchisee entity of a franchise if:\n\n (a) the person is a franchisee (including a subfranchisee) in relation to the franchise; and\n\n (b) the business conducted by the person under the franchise is substantially or materially associated with intellectual property relating to the franchise.\n\n (2) A person is a responsible franchisor entity for a franchisee entity of a franchise if:\n\n (a) the person is a franchisor (including a subfranchisor) in relation to the franchise; and\n\n (b) the person has a significant degree of influence or control over the franchisee entity’s affairs.","sortOrder":1401},{"sectionNumber":"558B","sectionType":"section","heading":"Responsibility of responsible franchisor entities and holding companies for certain contraventions","content":"558B  Responsibility of responsible franchisor entities and holding companies for certain contraventions\n\nResponsible franchisor entities\n\n (1) A person contravenes this subsection if:\n\n (a) an employer who is a franchisee entity of a franchise contravenes a civil remedy provision referred to in subsection (7); and\n\n (b) the person is a responsible franchisor entity for the franchisee entity; and\n\n (c) the contravention by the franchisee entity occurs in the franchisee entity’s capacity as a franchisee entity; and\n\n (d) either:\n\n (i) the responsible franchisor entity or an officer (within the meaning of the Corporations Act 2001) of the responsible franchisor entity knew or could reasonably be expected to have known that the contravention by the franchisee entity would occur; or\n\n (ii) at the time of the contravention by the franchisee entity, the responsible franchisor entity or an officer (within the meaning of the Corporations Act 2001) of the responsible franchisor entity knew or could reasonably be expected to have known that a contravention by the franchisee entity of the same or a similar character was likely to occur.\n\nNote: This subsection is a civil remedy provision (see this Part).\n\nHolding companies\n\n (2) A person contravenes this subsection if:\n\n (a) the person is a body corporate; and\n\n (b) a subsidiary (within the meaning of the Corporations Act 2001) of the body corporate who is an employer contravenes a civil remedy provision referred to in subsection (7); and\n\n (c) either:\n\n (i) the body corporate or an officer (within the meaning of the Corporations Act 2001) of the body corporate knew or could reasonably be expected to have known that the contravention by the subsidiary would occur; or\n\n (ii) at the time of the contravention by the subsidiary, the body corporate or an officer (within the meaning of the Corporations Act 2001) of the body corporate knew or could reasonably be expected to have known that a contravention by the subsidiary of the same or a similar character was likely to occur.\n\nNote: This subsection is a civil remedy provision (see this Part).\n\nReasonable steps to prevent a contravention of the same or a similar character\n\n (3) A person does not contravene subsection (1) or (2) if, as at the time of the contravention referred to in paragraph (1)(a) or (2)(b), the person had taken reasonable steps to prevent a contravention by the franchisee entity or subsidiary of the same or a similar character.\n\n (4) For the purposes of subsection (3), in determining whether a person took reasonable steps to prevent a contravention by a franchisee entity or subsidiary (the contravening employer) of the same or a similar character, a court may have regard to all relevant matters, including the following:\n\n (a) the size and resources of the franchise or body corporate (as the case may be);\n\n (b) the extent to which the person had the ability to influence or control the contravening employer’s conduct in relation to the contravention referred to in paragraph (1)(a) or (2)(b) or a contravention of the same or a similar character;\n\n (c) any action the person took directed towards ensuring that the contravening employer had a reasonable knowledge and understanding of the requirements under the applicable provisions referred to in subsection (7);\n\n (d) the person’s arrangements (if any) for assessing the contravening employer’s compliance with the applicable provisions referred to in subsection (7);\n\n (e) the person’s arrangements (if any) for receiving and addressing possible complaints about alleged underpayments or other alleged contraventions of this Act within:\n\n (i) the franchise; or\n\n (ii) the body corporate or any subsidiary (within the meaning of the Corporations Act 2001) of the body corporate;\n\n  as the case may be;\n\n (f) the extent to which the person’s arrangements (whether legal or otherwise) with the contravening employer encourage or require the contravening employer to comply with this Act or any other workplace law.\n\n (5) Subsection (4) does not limit subsection (3).\n\nCivil proceedings in relation to contravention by franchisee entity or subsidiary not required\n\n (6) To avoid doubt, a reference in paragraph (1)(a) or (2)(b) to a contravention by a franchisee entity or subsidiary includes any contravention whether or not an order has been sought or made against the franchisee entity or subsidiary under Division 2 for the contravention.\n\nRelevant civil remedy provisions\n\n (7) The civil remedy provisions are the following:\n\n (a) section 44 (which deals with contraventions of the National Employment Standards);\n\n (b) section 45 (which deals with contraventions of modern awards);\n\n (c) section 50 (which deals with contraventions of enterprise agreements);\n\n (d) section 280 (which deals with contraventions of workplace determinations);\n\n (e) section 293 (which deals with contraventions of national minimum wage orders);\n\n (f) section 305 (which deals with contraventions of equal remuneration orders);\n\n (g) subsection 323(1) (which deals with methods and frequency of payment);\n\n (h) subsection 323(3) (which deals with methods of payment specified in modern awards or enterprise agreements);\n\n (i) subsection 325(1) (which deals with unreasonable requirements on employees to spend or pay amounts);\n\n (ia) subsection 325(1A) (which deals with unreasonable requirements on prospective employees to spend or pay amounts);\n\n (j) subsection 328(1), (2) or (3) (which deal with employer obligations in relation to guarantees of annual earnings);\n\n (k) subsection 357(1) (which deals with misrepresenting employment as an independent contracting arrangement);\n\n (l) section 358 (which deals with dismissing an employee to engage as an independent contractor);\n\n (m) section 359 (which deals with misrepresentations to engage an individual as an independent contractor);\n\n (n) subsection 535(1), (2) or (4) (which deal with employer obligations in relation to employee records);\n\n (o) subsection 536(1), (2) or (3) (which deal with employer obligations in relation to pay slips).","sortOrder":1402},{"sectionNumber":"558C","sectionType":"section","heading":"Right of responsible franchisor entity or holding company to recover","content":"558C  Right of responsible franchisor entity or holding company to recover\n\n (1) This section applies if:\n\n (a) a person pays an amount to, or on behalf of, an employee pursuant to an order under subsection 545(1) relating to a contravention by the person of subsection 558B(1) or (2) in relation to a franchisee entity or subsidiary (the contravening employer); and\n\n (b) the person has not otherwise recovered from the contravening employer an amount (the recoverable amount) equal to the amount paid by the person.\n\n (2) The person may commence proceedings against the contravening employer for payment to the person of so much of the recoverable amount as has not been recovered.\n\n (3) The proceedings may be commenced in:\n\n (a) the Federal Court; or\n\n (b) the Federal Circuit and Family Court of Australia (Division 2); or\n\n (c) an eligible State or Territory court.\n\n (4) The court may make an order requiring the contravening employer to pay the person the recoverable amount (or so much of it as has not been recovered from the contravening employer), if the court is satisfied that this section applies as referred to in subsection (1).\n\n (5) 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.\n\n (6) Without limiting subsection (5), in determining the amount of interest, the court must take into account the period between the day when the amount referred to in paragraph (1)(a) was paid by the person and the day when the order is made.\n\n (7) Proceedings cannot be commenced under this section more than 6 years after the time when the person paid the amount referred to in paragraph (1)(a).","sortOrder":1403},{"sectionNumber":"559","sectionType":"section","heading":"Unclaimed money","content":"559  Unclaimed money\n\nPayment to the Commonwealth\n\n (1) An employer may pay an amount to the Commonwealth if:\n\n (a) the employer was required to pay the amount to an employee under this Act or a fair work instrument; and\n\n (b) the employee has left the employment of the employer without having been paid the amount; and\n\n (c) the employer is unable to pay the amount to the employee because the employer does not know the employee’s whereabouts.\n\nDischarge of employer\n\n (2) Payment of the amount to the Commonwealth is a sufficient discharge to the employer, as against the employee, for the amount paid.\n\nPayment where money later claimed\n\n (3) The Fair Work Ombudsman, on behalf of the Commonwealth, must pay an amount to a person if:\n\n (a) the amount has been paid to the Commonwealth under this section; and\n\n (b) the person has made a claim for the amount in accordance with the form prescribed by the regulations; and\n\n (c) the Fair Work Ombudsman is satisfied that the person is entitled to the amount.\n\nInterest\n\n (3A) If:\n\n (a) an amount is paid to a person under subsection (3) at a particular time; and\n\n (b) the amount is at least $100; and\n\n (c) the amount is attributable to an amount that was paid to the Commonwealth under subsection (1) more than 6 months before that time;\n\nthe Fair Work Ombudsman, on behalf of the Commonwealth, must also pay to the person the amount of interest (if any) worked out in accordance with an instrument under subsection (3B).\n\n (3B) The Minister may make an instrument for the purposes of subsection (3A).\n\n (3C) An instrument under subsection (3B) may involve different rates of interest for different periods over which the interest accrues. For this purpose, rate includes a nil rate.\n\n (3D) An instrument made under subsection (3B) is a legislative instrument.\n\nAppropriation of Consolidated Revenue Fund\n\n (4) The Consolidated Revenue Fund is appropriated for the purposes of subsection (3).","sortOrder":1405},{"sectionNumber":"Part 4-2","sectionType":"part","heading":"Jurisdiction and powers of courts","content":"Part 4‑2—Jurisdiction and powers of courts","sortOrder":1406},{"sectionNumber":"560","sectionType":"section","heading":"Guide to this Part","content":"560  Guide to this Part\n\nThis Part is about the jurisdiction and powers of the courts in relation to matters arising under this Act.\n\nDivisions 2 and 3 confer jurisdiction on the Federal Court and the Federal Circuit and Family Court of Australia (Division 2). That jurisdiction is generally required to be exercised in the Fair Work Divisions of those courts.\n\nDivision 4 deals with intervention, costs, limitation on imprisonment, and regulations, in relation to proceedings in the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) and, in some cases, a court of a State or Territory.","sortOrder":1408},{"sectionNumber":"561","sectionType":"section","heading":"Meanings of employee and employer","content":"561  Meanings of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":1409},{"sectionNumber":"562","sectionType":"section","heading":"Conferring jurisdiction on the Federal Court","content":"562  Conferring jurisdiction on the Federal Court\n\n  Jurisdiction is conferred on the Federal Court in relation to any matter (whether civil or criminal) arising under this Act.","sortOrder":1411},{"sectionNumber":"563","sectionType":"section","heading":"Exercising jurisdiction in the Fair Work Division of the Federal Court","content":"563  Exercising jurisdiction in the Fair Work Division of the Federal Court\n\n  The jurisdiction conferred on the Federal Court under section 562 is to be exercised in the Fair Work Division of the Federal Court if:\n\n (a) an application is made to the Federal Court under this Act; or\n\n (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\n\n (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\n\n (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\n\n (e) a prosecution is instituted in the Federal Court under this Act; or\n\n (f) an appeal is instituted in the Federal Court from a judgment of the Federal Circuit and Family Court of Australia (Division 2) or a court of a State or Territory in a matter arising under this Act; or\n\n (g) proceedings in relation to a matter arising under this Act are transferred to the Federal Court from the Federal Circuit and Family Court of Australia (Division 2); or\n\n (h) the Federal Circuit and Family Court of Australia (Division 2) 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\n\n (i) the President refers, under section 608 of this Act, a question of law to the Federal Court; or\n\n (j) the High Court remits a matter arising under this Act to the Federal Court.","sortOrder":1412},{"sectionNumber":"564","sectionType":"section","heading":"No limitation on Federal Court’s powers","content":"564  No limitation on Federal Court’s powers\n\n  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.","sortOrder":1413},{"sectionNumber":"565","sectionType":"section","heading":"Appeals from eligible State or Territory courts","content":"565  Appeals from eligible State or Territory courts\n\nAppeals from original decisions of eligible State or Territory courts\n\n (1) An appeal lies to the Federal Court from a decision of an eligible State or Territory court exercising jurisdiction under this Act.\n\n (1A) No appeal lies from a decision of an eligible State or Territory court exercising jurisdiction under this Act, except:\n\n (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\n\n (b) in any case—an appeal as provided for by subsection (1).\n\nAppeals from appellate decisions of eligible State or Territory courts\n\n (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:\n\n (a) was a decision of that court or another eligible State or Territory court of the same State or Territory; and\n\n (b) was made in the exercise of jurisdiction under this Act.\n\n (1C) No appeal lies from a decision to which subsection (1B) applies, except an appeal as provided for by that subsection.\n\nLeave to appeal not required\n\n (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).","sortOrder":1414},{"sectionNumber":"566","sectionType":"section","heading":"Conferring jurisdiction on the Federal Circuit and Family Court of Australia (Division 2)","content":"566  Conferring jurisdiction on the Federal Circuit and Family Court of Australia (Division 2)\n\n  Jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in relation to any civil matter arising under this Act.","sortOrder":1416},{"sectionNumber":"567","sectionType":"section","heading":"Exercising jurisdiction in the Fair Work Division of the Federal Circuit and Family Court of Australia (Division 2)","content":"567  Exercising jurisdiction in the Fair Work Division of the Federal Circuit and Family Court of Australia (Division 2)\n\n  Jurisdiction conferred on the Federal Circuit and Family Court of Australia (Division 2) under section 566 is to be exercised in the Fair Work Division of the Court if:\n\n (a) an application is made to the Court under this Act; or\n\n (b) an injunction is sought under section 140 of the Federal Circuit and Family Court of Australia Act 2021 in relation to a matter arising under this Act; or\n\n (c) a declaration is sought under section 141 of the Federal Circuit and Family Court of Australia Act 2021 in relation to a matter arising under this Act; or\n\n (d) proceedings in relation to a matter arising under this Act are transferred to the Federal Circuit and Family Court of Australia (Division 2) from the Federal Court; or\n\n (e) the High Court remits a matter arising under this Act to the Federal Circuit and Family Court of Australia (Division 2).","sortOrder":1417},{"sectionNumber":"568","sectionType":"section","heading":"No limitation on powers of the Federal Circuit and Family Court of Australia (Division 2)","content":"568  No limitation on powers of the Federal Circuit and Family Court of Australia (Division 2)\n\n  To avoid doubt, nothing in this Act limits the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 139, 140 or 141 of the Federal Circuit and Family Court of Australia Act 2021.","sortOrder":1418},{"sectionNumber":"569","sectionType":"section","heading":"Minister’s entitlement to intervene","content":"569  Minister’s entitlement to intervene\n\n (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.\n\n (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.\n\n (3) Despite section 570, a court may make an order as to costs against the Commonwealth if:\n\n (a) the Minister intervenes under subsection (1); or\n\n (b) the Minister institutes an appeal from a judgment as referred to in subsection (2).","sortOrder":1420},{"sectionNumber":"569A","sectionType":"section","heading":"State or Territory Minister’s entitlement to intervene","content":"569A  State or Territory Minister’s entitlement to intervene\n\n (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.\n\n (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.\n\n (3) Despite section 570, a court may make an order as to costs against a State or Territory if:\n\n (a) the Minister of a State or Territory who has responsibility for workplace relations matters intervenes under subsection (1); or\n\n (b) he or she institutes an appeal from a judgment as referred to in subsection (2).","sortOrder":1421},{"sectionNumber":"570","sectionType":"section","heading":"Costs only if proceedings instituted vexatiously etc.","content":"570  Costs only if proceedings instituted vexatiously etc.\n\n (1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.\n\nNote: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.\n\n (2) The party may be ordered to pay the costs only if:\n\n (a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or\n\n (b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or\n\n (c) the court is satisfied of both of the following:\n\n (i) the party unreasonably refused to participate in a matter before the FWC;\n\n (ii) the matter arose from the same facts as the proceedings.","sortOrder":1422},{"sectionNumber":"571","sectionType":"section","heading":"No imprisonment for failure to pay pecuniary penalty","content":"571  No imprisonment for failure to pay pecuniary penalty\n\n (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.\n\n (2) This section applies despite any other law of the Commonwealth, a State or a Territory.","sortOrder":1423},{"sectionNumber":"572","sectionType":"section","heading":"Regulations dealing with matters relating to court proceedings","content":"572  Regulations dealing with matters relating to court proceedings\n\n  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.","sortOrder":1424},{"sectionNumber":"Part 5-1","sectionType":"part","heading":"The Fair Work Commission","content":"Part 5‑1—The Fair Work Commission","sortOrder":1425},{"sectionNumber":"573","sectionType":"section","heading":"Guide to this Part","content":"573  Guide to this Part\n\nThis Part is about the Fair Work Commission.\n\nDivision 2 establishes and confers functions on the FWC. The FWC consists of the President, Vice Presidents, Deputy Presidents, Commissioners and Expert Panel Members. Division 2 also confers functions on the President.\n\nDivision 3 deals with the conduct of matters before the FWC (such as applications, representation by lawyers, the FWC’s decisions and appeals).\n\nDivision 4 deals with the organisation of the FWC, who may perform functions of the FWC and delegation of the FWC’s functions and powers. Certain functions must be performed by a Full Bench or an Expert Panel.\n\nDivision 5 deals with the appointment, terms and conditions of FWC Members.\n\nDivision 6 deals with cooperation with the States.\n\nDivision 7 deals with the FWC’s seal. It also deals with other powers and functions of the President and the General Manager (including in relation to annual reports, reports on making enterprise agreements, arrangements with certain courts, and disclosing information obtained by the FWC).\n\nDivision 8 is about the General Manager of the FWC (whose function is to assist the President), staff of the FWC and others assisting the FWC.\n\nDivision 9 contains offences in relation to the FWC.","sortOrder":1427},{"sectionNumber":"574","sectionType":"section","heading":"Meanings of employee and employer","content":"574  Meanings of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":1428},{"sectionNumber":"575","sectionType":"section","heading":"Establishment of the Fair Work Commission","content":"575  Establishment of the Fair Work Commission\n\n (1) The body known immediately before the commencement of this subsection as Fair Work Australia is continued in existence as the Fair Work Commission.\n\nNote: See also subsection 25B(1) of the Acts Interpretation Act 1901.\n\n (2) The Fair Work Commission consists of:\n\n (a) the President; and\n\n (aa) 2 Vice Presidents; and\n\n (b) such number of Deputy Presidents as, from time to time, hold office under this Act; and\n\n (c) such number of Commissioners as, from time to time, hold office under this Act; and\n\n (d) such number of Expert Panel Members as, from time to time, hold office under this Act.\n\nNote: The Fair Work Commission also has a General Manager and staff (see Division 8).","sortOrder":1431},{"sectionNumber":"576","sectionType":"section","heading":"Functions of the FWC","content":"576  Functions of the FWC\n\n (1) The FWC has the functions conferred by this Act in relation to the following subject matters:\n\n (a) the National Employment Standards (Part 2‑2);\n\n (b) modern awards (Part 2‑3);\n\n (c) enterprise agreements (Part 2‑4);\n\n (d) workplace determinations (Part 2‑5);\n\n (e) minimum wages (Part 2‑6);\n\n (f) equal remuneration (Part 2‑7);\n\n (fa) regulated labour hire arrangement orders (Part 2‑7A);\n\n (g) transfer of business (Part 2‑8);\n\n (ga) other terms and conditions of employment (Part 2‑9);\n\n (h) general protections (Part 3‑1);\n\n (i) unfair dismissal (Part 3‑2);\n\n (j) industrial action (Part 3‑3);\n\n (k) right of entry (Part 3‑4);\n\n (l) stand down (Part 3‑5);\n\n (la) prohibiting sexual harassment in connection with work (Part 3‑5A);\n\n (m) other rights and responsibilities (Part 3‑6);\n\n (ma) minimum standards for regulated workers (Part 3A‑2);\n\n (mb) unfair deactivation or unfair termination of regulated workers (Part 3A‑3);\n\n (mc) collective agreements for regulated workers (Part 3A‑4);\n\n (md) unfair contract terms of services contracts (Part 3A‑5);\n\n (me) minimum standards for persons in a road transport contractual chain (Part 3B‑2);\n\n (n) the extension of the National Employment Standards entitlements (Part 6‑3);\n\n (na) transfer of business from a State public sector employer (Part 6‑3A);\n\n (o) unlawful termination protections (Part 6‑4);\n\n (p) special provisions about TCF outworkers (Part 6‑4A);\n\n (q) workers bullied at work (Part 6‑4B);\n\n (r) Coronavirus economic response (Part 6‑4C).\n\n (2) The FWC also has the following functions:\n\n (aa) promoting cooperative and productive workplace relations and preventing disputes;\n\n (ab) promoting good faith bargaining and the making of enterprise agreements;\n\n (a) dealing with disputes as referred to in section 595;\n\n (b) providing assistance and advice about its functions and activities;\n\n (c) providing administrative support in accordance with an arrangement under section 650 or 653A;\n\n (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 169 of the Federal Circuit and Family Court of Australia Act 2021, have been referred by the Fair Work Division of the Federal Court or Federal Circuit and Family Court of Australia (Division 2) to the FWC for mediation;\n\n (d) any other function conferred on the FWC by a law of the Commonwealth.\n\nNote: Section 13 of the Registered Organisations Act confers an additional function on the FWC.","sortOrder":1432},{"sectionNumber":"577","sectionType":"section","heading":"Performance of functions etc. by the FWC","content":"577  Performance of functions etc. by the FWC\n\n (1) The FWC must perform its functions and exercise its powers in a manner that:\n\n (a) is fair and just; and\n\n (b) is quick, informal and avoids unnecessary technicalities; and\n\n (c) is open and transparent; and\n\n (d) promotes harmonious and cooperative workplace relations.\n\nNote: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).\n\n (2) In performing its functions under paragraph 576(2)(b), the FWC must have regard to:\n\n (a) the need for guidelines and other materials to be available in multiple languages; and\n\n (b) the need for community outreach in multiple languages.","sortOrder":1433},{"sectionNumber":"578","sectionType":"section","heading":"Matters the FWC must take into account in performing functions etc.","content":"578  Matters the FWC must take into account in performing functions etc.\n\n  In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:\n\n (a) the objects of this Act, and any objects of the part of this Act; and\n\n (b) equity, good conscience and the merits of the matter; and\n\n (c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.","sortOrder":1434},{"sectionNumber":"579","sectionType":"section","heading":"FWC has privileges and immunities of the Crown","content":"579  FWC has privileges and immunities of the Crown\n\n  The FWC has the privileges and immunities of the Crown in right of the Commonwealth.","sortOrder":1435},{"sectionNumber":"580","sectionType":"section","heading":"Protection of FWC Members","content":"580  Protection of FWC Members\n\n  An FWC Member has, in performing his or her functions or exercising his or her powers as an FWC Member, the same protection and immunity as a Justice of the High Court.\n\nNote: See also section 584B (which deals with protection of persons involved in handling etc. complaints about FWC Members).","sortOrder":1436},{"sectionNumber":"581","sectionType":"section","heading":"Functions of the President","content":"581  Functions of the President\n\n  The President is responsible for ensuring that the FWC performs its functions and exercises its powers in a manner that:\n\n (a) is efficient; and\n\n (b) adequately serves the needs of employers and employees throughout Australia; and\n\n (c) adequately serves the needs of persons covered by Chapter 3A; and\n\n (d) adequately serves the needs of persons covered by Chapter 3B.\n\nNote: 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).","sortOrder":1438},{"sectionNumber":"581A","sectionType":"section","heading":"Dealing with a complaint about an FWC Member","content":"581A  Dealing with a complaint about an FWC Member\n\n (1) Without limiting section 581 (which deals with the functions of the President), the President may:\n\n (a) deal, in accordance with subsection (2) of this section, with a complaint about the performance by another FWC Member of his or her duties; and\n\n (b) take any measures that the President believes are reasonably necessary to maintain public confidence in the FWC, including (but not limited to) temporarily restricting the duties of the FWC Member.\n\nNote 1: The complaint is a complaint about an FWC Member (see section 12).\n\nNote 2: The Minister may also handle complaints about FWC Members (see section 641A).\n\n (2) The President may deal with a complaint about an FWC Member referred to in paragraph (1)(a) by doing either or both of the following:\n\n (a) deciding whether or not to handle the complaint and then doing one of the following:\n\n (i) dismissing the complaint;\n\n (ii) handling the complaint if the President has a relevant belief in relation to the complaint;\n\n (iii) arranging for any other person to assist the President to handle the complaint if the President has a relevant belief in relation to the complaint;\n\n (b) arranging for any other complaint handlers to decide whether or not to handle the complaint and then to do one of the following:\n\n (i) dismiss the complaint;\n\n (ii) handle the complaint if each of the complaint handlers has a relevant belief in relation to the complaint.\n\nNote 1: A complaint handler (other than the President) may handle a complaint by referring it to the President. The President may then do either or both of the things referred to in paragraph (2)(a) or (b) in respect of the complaint.\n\nNote 2: For protections for persons involved in relation to handling a complaint about an FWC Member, see section 584B.\n\nAuthorisation of persons or bodies\n\n (3) The President may authorise, in writing, a person or a body to do one or more of the following in relation to a complaint about an FWC Member referred to in paragraph (1)(a) (whether in relation to a specific complaint or generally):\n\n (a) assist the President to handle the complaint or complaints;\n\n (b) decide whether or not to handle the complaint or complaints;\n\n (c) dismiss the complaint or complaints;\n\n (d) handle the complaint or complaints.\n\nReferral to Minister\n\n (4) The President must refer a complaint about an FWC Member referred to in paragraph (1)(a) to the Minister if, after the complaint has been handled in accordance with subsection (2), the President is satisfied that:\n\n (a) one or more of the circumstances that gave rise to the complaint have been substantiated; and\n\n (b) each House of the Parliament should consider whether to present to the Governor‑General an address praying for the termination of the appointment of the FWC Member.\n\nNote: The appointment of an FWC Member may be terminated under section 641 if each House of the Parliament presents such an address to the Governor‑General.\n\n (5) The Minister must consider whether each House of the Parliament should consider the matter referred to in paragraph (4)(b).","sortOrder":1439},{"sectionNumber":"581B","sectionType":"section","heading":"Code of Conduct","content":"581B  Code of Conduct\n\n (1) After consulting the other FWC Members, the President may determine a Code of Conduct for FWC Members.\n\n (2) Subsection (1) does not limit section 582 (which deals with directions by the President).\n\n (3) The Code of Conduct must be published on the FWC’s website or by any other means that the President considers appropriate.\n\n (4) A determination under subsection (1) is not a legislative instrument.","sortOrder":1440},{"sectionNumber":"582","sectionType":"section","heading":"Directions by the President","content":"582  Directions by the President\n\nThe President may give directions\n\n (1) The President may give directions under subsection (2) as to the manner in which the FWC is to perform its functions, exercise its powers or deal with matters.\n\n (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:\n\n (a) an FWC Member;\n\n (b) a Full Bench;\n\n (c) an Expert Panel;\n\n (d) the General Manager.\n\n (3) The direction must not relate to a decision by the FWC.\n\n (4) Without limiting subsection (2), the direction may be a direction of the following kind:\n\n (aa) a direction about the conduct of 4 yearly reviews of default fund terms of modern awards under Division 4A of Part 2‑3;\n\n (ab) a direction about the exercise of modern award powers in accordance with Division 5 of Part 2‑3;\n\n (ac) a direction about the exercise of powers under Part 3A‑2 (which deals with minimum standards for regulated workers);\n\n (ad) a direction about the exercise of powers under Part 3B‑2 (which deals with road transport contractual chains);\n\n (b) a direction about the conduct of annual wage reviews;\n\n (c) a direction that 2 or more matters be dealt with jointly by one or more single FWC Members, one or more Full Benches or one or more Expert Panels;\n\n (d) a direction about the transfer between FWC Members (including a transfer between Full Benches) of one or more matters being dealt with by the FWC;\n\n (e) a direction that a single FWC Member perform a function or exercise a power in relation to the variation of a modern award.\n\n (4A) If:\n\n (a) the President gives a direction that 2 or more matters be dealt with jointly; and\n\n (b) at least one of the matters:\n\n (i) must be dealt with by an Expert Panel constituted to deal with a matter that relates to the road transport industry (see subsection 617(10B); or\n\n (ii) is a matter that the President considers might relate to the road transport industry and has directed be dealt with by an Expert Panel constituted for the purpose (see subsection 617(10D);\n\nthe direction that the matters be dealt with jointly must require that all the matters be dealt with by an Expert Panel constituted to deal with a matter that relates to the road transport industry.\n\nNote: For the constitution of an Expert Panel for that purpose, see subsection 620(1E).\n\n (4B) Subsection (4A) does not limit the power of the President to direct that other matters be dealt jointly with by an Expert Panel.\n\n (4C) The President may give a direction that an FWC member deal with a matter that the President considers might relate to the road transport industry, if the FWC member has knowledge of, or experience in, the road transport industry, whether or not the President considers that the matter might relate to another industry or sector.\n\n (4D) In addition to giving a direction of a general nature under subsection (2), the President must give a direction as to how the FWC is to prioritise its work under Parts 3A‑2 and 3B‑2 including, but not limited to, prioritising types of orders under those Parts and specified cohorts of workers.\n\n (4E) The FWC must publish a direction under subsection (4D) on the FWC’s website, or by any other means that the FWC considers appropriate, as soon as reasonably practicable after the President gives the direction.\n\nPersons must comply with the President’s directions\n\n (5) A person to whom a direction is given must comply with the direction.\n\nNote: For directions to the General Manager, see section 658.\n\nDirection is not a legislative instrument\n\n (6) If a direction is in writing, the direction is not a legislative instrument.","sortOrder":1441},{"sectionNumber":"583","sectionType":"section","heading":"President not subject to direction","content":"583  President not subject to direction\n\n  The President is not subject to direction by or on behalf of the Commonwealth.","sortOrder":1442},{"sectionNumber":"584","sectionType":"section","heading":"Delegation of functions and powers of the President","content":"584  Delegation of functions and powers of the President\n\n (1) The President may, in writing, delegate to a Vice President or a Deputy President all or any of the President’s functions or powers, other than under:\n\n (aa) paragraph 581A(1)(b) (which deals with taking measures to maintain public confidence in the FWC); or\n\n (a) section 620 (which deals with the constitution and decision‑making of an Expert Panel); or\n\n (b) section 625 (which deals with the delegation of functions and powers of the FWC).\n\n (2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the President.\n\nNote: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.","sortOrder":1443},{"sectionNumber":"584B","sectionType":"section","heading":"Protection of persons involved in handling etc. complaints about FWC Members","content":"584B  Protection of persons involved in handling etc. complaints about FWC Members\n\n (1) A person who is exercising powers or performing functions under or for the purposes of paragraph 581A(1)(a), subsections 581A(2) to (5), or section 641A, in relation to a complaint about an FWC Member, or assisting in exercising those powers or performing those functions, has the same protection and immunity as a Justice of the High Court.\n\n (2) A witness requested to attend, or appearing, before a complaint handler or any other person, in relation to a complaint about an FWC Member, has the same protection, and is subject to the same liabilities in proceedings, as a witness in a case tried by the High Court.\n\n (3) A lawyer assisting, or appearing on behalf of a person before, a complaint handler or any other person, in relation to a complaint about an FWC Member, has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.","sortOrder":1445},{"sectionNumber":"585","sectionType":"section","heading":"Applications in accordance with procedural rules","content":"585  Applications in accordance with procedural rules\n\n  An application to the FWC must be in accordance with the procedural rules (if any) relating to applications of that kind.\n\nNote 1: Certain provisions might impose additional requirements in relation to particular kinds of applications (see for example subsection 185(2)).\n\nNote 2: The FWC may, under section 587, dismiss an application that is not made in accordance with the procedural rules.","sortOrder":1448},{"sectionNumber":"586","sectionType":"section","heading":"Correcting and amending applications and documents etc.","content":"586  Correcting and amending applications and documents etc.\n\n  The FWC may:\n\n (a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or\n\n (b) waive an irregularity in the form or manner in which an application is made to the FWC.","sortOrder":1449},{"sectionNumber":"587","sectionType":"section","heading":"Dismissing applications","content":"587  Dismissing applications\n\n (1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:\n\n (a) the application is not made in accordance with this Act; or\n\n (b) the application is frivolous or vexatious; or\n\n (c) the application has no reasonable prospects of success.\n\nNote: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.\n\n (2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:\n\n (a) is frivolous or vexatious; or\n\n (b) has no reasonable prospects of success.\n\n (3) The FWC may dismiss an application:\n\n (a) on its own initiative; or\n\n (b) on application.","sortOrder":1450},{"sectionNumber":"587A","sectionType":"section","heading":"Orders about further applications after dismissal","content":"587A  Orders about further applications after dismissal\n\n (1) If the FWC dismisses an application (the substantive application) under paragraph 587(1)(b) or (c), the FWC may order that the applicant must not make a further application to the FWC of a kind specified in the order without the permission of the FWC, given by the President, a Vice President or Deputy President.\n\nNote: The FWC must be constituted by a Full Bench to give an order under subsection (1) (see subsection 616(4C)).\n\n (2) The FWC must not make an order under subsection (1) unless:\n\n (a) the applicant has been given a reasonable opportunity to make submissions to the FWC in relation to whether the order should be made; and\n\n (b) the FWC has taken into account any submissions received.\n\n (3) The FWC may make an order under subsection (1):\n\n (a) on its own initiative; or\n\n (b) on application by a party to a matter dealt with by the substantive application.\n\n (4) An order under subsection (1) has effect despite any other provision of this Act or any other Act.\n\n (5) An application made in contravention of an order under subsection (1) has no effect.\n\n (6) A decision to refuse to permit a further application as mentioned in subsection (1) must not be appealed under section 604.","sortOrder":1451},{"sectionNumber":"588","sectionType":"section","heading":"Discontinuing applications","content":"588  Discontinuing applications\n\n  A person who has applied to the FWC may discontinue the application:\n\n (a) in accordance with the procedural rules (if any); and\n\n (b) whether or not the matter has been settled.","sortOrder":1452},{"sectionNumber":"589","sectionType":"section","heading":"Procedural and interim decisions","content":"589  Procedural and interim decisions\n\n (1) The FWC may make decisions as to how, when and where a matter is to be dealt with.\n\n (2) The FWC may make an interim decision in relation to a matter before it.\n\n (3) The FWC may make a decision under this section:\n\n (a) on its own initiative; or\n\n (b) on application.\n\n (4) This section does not limit the FWC’s power to make decisions.","sortOrder":1454},{"sectionNumber":"590","sectionType":"section","heading":"Powers of the FWC to inform itself","content":"590  Powers of the FWC to inform itself\n\n (1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.\n\n (2) Without limiting subsection (1), the FWC may inform itself in the following ways:\n\n (a) by requiring a person to attend before the FWC;\n\n (b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;\n\n (c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;\n\n (d) by taking evidence under oath or affirmation in accordance with the regulations (if any);\n\n (e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;\n\n (f) by conducting inquiries;\n\n (g) by undertaking or commissioning research;\n\n (h) by conducting a conference (see section 592);\n\n (i) by holding a hearing (see section 593).","sortOrder":1455},{"sectionNumber":"591","sectionType":"section","heading":"FWC not bound by rules of evidence and procedure","content":"591  FWC not bound by rules of evidence and procedure\n\n  The FWC is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not the FWC holds a hearing in relation to the matter).","sortOrder":1456},{"sectionNumber":"592","sectionType":"section","heading":"Conferences","content":"592  Conferences\n\n (1) For the purpose of performing a function or exercising a power of the FWC (other than a function or power under Part 2‑6), the FWC may direct a person to attend a conference at a specified time and place.\n\nNote: Part 2‑6 deals with minimum wages. For the conduct of annual wage reviews, see Subdivision B of Division 3 of Part 2‑6.\n\n (2) An FWC Member (other than an Expert Panel Member), or a delegate of the FWC, is responsible for conducting the conference.\n\n (3) The conference must be conducted in private, unless the person responsible for conducting the conference directs that it be conducted in public.\n\nNote: This subsection does not apply in relation to conferences conducted in relation to unfair dismissal, general protection or sexual harassment matters (see sections 368, 374, 398, 527R and 776).\n\n (4) At a conference, the FWC may:\n\n (a) mediate or conciliate; or\n\n (b) make a recommendation or express an opinion.\n\n (5) Subsection (4) does not limit what the FWC may do at a conference.","sortOrder":1457},{"sectionNumber":"593","sectionType":"section","heading":"Hearings","content":"593  Hearings\n\n (1) The FWC is not required to hold a hearing in performing functions or exercising powers, except as provided by this Act.\n\n (2) If the FWC holds a hearing in relation to a matter, the hearing must be held in public, except as provided by subsection (3).\n\nConfidential evidence in hearings\n\n (3) The FWC may make the following orders in relation to a hearing that the FWC holds if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:\n\n (a) orders that all or part of the hearing is to be held in private;\n\n (b) orders about who may be present at the hearing;\n\n (c) orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing;\n\n (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:\n\n (i) evidence given in the hearing;\n\n (ii) matters contained in documents before the FWC in relation to the hearing.\n\n (4) Subsection (3) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).","sortOrder":1458},{"sectionNumber":"594","sectionType":"section","heading":"Confidential evidence","content":"594  Confidential evidence\n\n (1) The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:\n\n (a) evidence given to the FWC in relation to the matter;\n\n (b) the names and addresses of persons making submissions to the FWC in relation to the matter;\n\n (c) matters contained in documents lodged with the FWC or received in evidence by the FWC in relation to the matter;\n\n (d) the whole or any part of its decisions or reasons in relation to the matter.\n\n (2) Subsection (1) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).","sortOrder":1459},{"sectionNumber":"595","sectionType":"section","heading":"FWC’s power to deal with disputes","content":"595  FWC’s power to deal with disputes\n\n (1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.\n\n (2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:\n\n (a) by mediation or conciliation;\n\n (b) by making a recommendation or expressing an opinion.\n\n (3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.\n\nExample: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).\n\n (4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.\n\nExample: The FWC could direct a person to attend a conference under section 592.\n\n (5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.","sortOrder":1460},{"sectionNumber":"596","sectionType":"section","heading":"Representation by lawyers and paid agents","content":"596  Representation by lawyers and paid agents\n\n (1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.\n\n (2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:\n\n (a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or\n\n (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\n\n (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.\n\nNote: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:\n\n(a) where a person is from a non‑English speaking background or has difficulty reading or writing;\n\n(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.\n\n (3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2‑3 or 2‑6 (which deal with modern awards and minimum wages).\n\n (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:\n\n (a) is an employee or officer of the person; or\n\n (b) is an employee or officer of:\n\n (i) an organisation; or\n\n (ii) an association of employers that is not registered under the Registered Organisations Act; or\n\n (iii) a peak council; or\n\n (iv) a bargaining representative;\n\n  that is representing the person; or\n\n (c) is a bargaining representative.","sortOrder":1462},{"sectionNumber":"597","sectionType":"section","heading":"Minister’s entitlement to make submissions","content":"597  Minister’s entitlement to make submissions\n\n (1) The Minister is entitled to make a submission for consideration in relation to a matter before the FWC if:\n\n (a) the matter is before a Full Bench and it is in the public interest for the Minister to make a submission; or\n\n (b) the matter involves public sector employment.\n\n (2) Subsection (1) applies whether or not the FWC holds a hearing in relation to the matter.","sortOrder":1463},{"sectionNumber":"597A","sectionType":"section","heading":"State or Territory Minister’s entitlement to make submissions","content":"597A  State or Territory Minister’s entitlement to make submissions\n\n (1) The Minister of a State or Territory who has responsibility for workplace relations matters is entitled to make a submission for consideration in relation to a matter before the FWC if:\n\n (a) the matter is before a Full Bench; and\n\n (b) it is in the public interest of the State or Territory for the Minister of the State or Territory to make a submission.\n\n (2) Subsection (1) applies whether or not the FWC holds a hearing in relation to the matter.","sortOrder":1464},{"sectionNumber":"598","sectionType":"section","heading":"Decisions of the FWC","content":"598  Decisions of the FWC\n\n (1) A reference in this Part to a decision of the FWC includes any decision of the FWC however described. However, to avoid doubt, a reference to a decision of the FWC does not include a statement under section 188B (which deals with principles on genuine agreement to enterprise agreements) or an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC’s power to deal with disputes).\n\nNote: Examples of decisions that the FWC makes include making modern awards, approving or refusing to approve enterprise agreements, decisions as to how, when and where a matter is to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals.\n\n (2) If the FWC makes a decision that makes or varies an instrument, a reference in this Part to a decision of the FWC includes the FWC’s decision to make or vary the instrument in the particular terms decided.\n\n (3) A decision of the FWC that is described as an order must be made by order.\n\nNote: An example of a decision that is described as an order is a bargaining order.\n\n (4) A decision of the FWC that is not described as an order may be made by order.","sortOrder":1466},{"sectionNumber":"599","sectionType":"section","heading":"FWC not required to decide an application in terms applied for","content":"599  FWC not required to decide an application in terms applied for\n\n  Except as provided by this Act, the FWC is not required to make a decision in relation to an application in the terms applied for.","sortOrder":1467},{"sectionNumber":"600","sectionType":"section","heading":"Determining matters in the absence of a person","content":"600  Determining matters in the absence of a person\n\n  The FWC may determine a matter before it in the absence of a person who has been required to attend before it.","sortOrder":1468},{"sectionNumber":"601","sectionType":"section","heading":"Writing and publication requirements for the FWC’s decisions","content":"601  Writing and publication requirements for the FWC’s decisions\n\n (1) The following decisions of the FWC must be in writing:\n\n (a) a decision of the FWC made under a Part of this Act other than this Part;\n\n (b) an interim decision that relates to a decision to be made under a Part of this Act other than this Part;\n\n (c) a decision in relation to an appeal or review.\n\nNote: For appeals and reviews, see sections 604 and 605.\n\n (2) The FWC may give written reasons for any decision that it makes.\n\n (3) A decision, and reasons, that are in writing must be expressed in plain English and be easy to understand in structure and content.\n\n (4) The FWC must publish the following, on its website or by any other means that the FWC considers appropriate:\n\n (a) a decision that is required to be in writing and any written reasons that the FWC gives in relation to such a decision;\n\n (b) an enterprise agreement that has been approved by the FWC under Part 2‑4.\n\nThe FWC must do so as soon as practicable after making the decision or approving the agreement.\n\n (5) Subsection (4) does not apply to any of the following decisions or reasons in relation to such decisions:\n\n (a) a decision to issue, or refuse to issue, a certificate under paragraph 368(3)(a) or 527R(3)(a);\n\n (c) a decision to issue an entry permit under section 512;\n\n (d) a decision to impose conditions on an entry permit under section 515;\n\n (e) a decision to issue, or refuse to issue, an exemption certificate under section 519;\n\n (f) a decision to issue, or refuse to issue, an affected member certificate under section 520;\n\n (g) a decision or reasons in relation to which an order is in operation under paragraph 594(1)(d).\n\n (6) Subsections (1) and (4) do not limit the FWC’s power to put decisions in writing or publish decisions.","sortOrder":1469},{"sectionNumber":"602","sectionType":"section","heading":"Correcting obvious errors etc. in relation to the FWC’s decisions","content":"602  Correcting obvious errors etc. in relation to the FWC’s decisions\n\n (1) The FWC may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the FWC (other than an error, defect or irregularity in a modern award, national minimum wage order, minimum standards order, minimum standards guidelines, road transport contractual chain orders or road transport contractual chain guidelines).\n\nNote 1: If the FWC makes a decision to make an instrument, the FWC may correct etc. the instrument under this section (see subsection 598(2)).\n\nNote 2: The FWC corrects modern awards and national minimum wage orders under sections 160 and 296.\n\nNote 3: The FWC corrects minimum standards orders and minimum standards guidelines under subsections 536KQ(3) and 536KZ(3) respectively, and corrects road transport contractual chain orders and road transport contractual chain guidelines under subsections 536PT(3) and 536QW(3) respectively.\n\n (2) The FWC may correct or amend the error, defect or irregularity:\n\n (a) on its own initiative; or\n\n (b) on application.","sortOrder":1470},{"sectionNumber":"602A","sectionType":"section","heading":"Validation of approval of enterprise agreement","content":"602A  Validation of approval of enterprise agreement\n\n (1) If:\n\n (a) after an enterprise agreement was made:\n\n (i) an application for the approval of a draft of the enterprise agreement was erroneously made to the FWC; and\n\n (ii) the FWC approved the draft of the agreement; and\n\n (b) the FWC is satisfied that, assuming that the application had been an application for the approval of the enterprise agreement that was made, the FWC would have approved the enterprise agreement that was made;\n\nthe FWC may determine in writing that the approval is as valid and effective, and is taken to have been as valid and effective, as it would have been if:\n\n (c) the application had been an application for the approval of the enterprise agreement that was made instead of an application for the approval of the draft of the agreement; and\n\n (d) the requirements set out in subsection 185(2) or section 185A (whichever is applicable) had been met in relation to the application; and\n\n (e) the approval had been an approval of the enterprise agreement that was made instead of an approval of the draft of the agreement.\n\n (2) The FWC may make a determination under subsection (1):\n\n (a) on its own initiative; or\n\n (b) on application.\n\n (3) If the FWC makes a determination under subsection (1) in relation to an enterprise agreement that was made, the FWC must:\n\n (a) publish the agreement on the FWC’s website or by any other means that the FWC considers appropriate; and\n\n (b) do so as soon as practicable after making the determination.","sortOrder":1471},{"sectionNumber":"602B","sectionType":"section","heading":"Validation of approval of variation of enterprise agreement","content":"602B  Validation of approval of variation of enterprise agreement\n\n (1) If:\n\n (a) after a variation of an enterprise agreement was made:\n\n (i) an application for the approval of a draft of the variation was erroneously made to the FWC; and\n\n (ii) the FWC approved the draft of the variation; and\n\n (b) the FWC is satisfied that, assuming that the application had been an application for the approval of the variation that was made, the FWC would have approved the variation that was made;\n\nthe FWC may determine in writing that the approval is as valid and effective, and is taken to have been as valid and effective, as it would have been if:\n\n (c) the application had been an application for the approval of the variation that was made instead of an application for the approval of the draft of the variation; and\n\n (d) the requirements set out in subsection 210(2) had been met in relation to the application; and\n\n (e) the approval had been an approval of the variation that was made instead of an approval of the draft of the variation.\n\n (2) The FWC may make a determination under subsection (1):\n\n (a) on its own initiative; or\n\n (b) on application.","sortOrder":1472},{"sectionNumber":"603","sectionType":"section","heading":"Varying and revoking the FWC’s decisions","content":"603  Varying and revoking the FWC’s decisions\n\n (1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).\n\nNote: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).\n\n (2) The FWC may vary or revoke a decision under this section:\n\n (a) on its own initiative; or\n\n (b) on application by:\n\n (i) a person who is affected by the decision; or\n\n (ii) if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision.\n\n (3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:\n\n (a) a decision under Part 2‑3 (which deals with modern awards);\n\n (b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2‑4 (which deal with enterprise agreements);\n\n (c) a decision under Part 2‑5 (which deals with workplace determinations);\n\n (d) a decision under Part 2‑6 (which deals with minimum wages);\n\n (e) a decision under Division 3 of Part 2‑8 (which deals with transfer of business);\n\n (f) a decision under Division 8 of Part 3‑3 (which deals with protected action ballots);\n\n (g) a decision under section 472 (which deals with partial work bans);\n\n (ga) a decision under Part 3A‑2 (which deals with minimum standards orders);\n\n (gb) a decision under Part 3A‑4 (which deals with collective agreements);\n\n (gc) a decision under Part 3B‑2 (which deals with road transport contractual chain orders);\n\n (h) a decision that is prescribed by the regulations.\n\nNote: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).","sortOrder":1473},{"sectionNumber":"604","sectionType":"section","heading":"Appeal of decisions","content":"604  Appeal of decisions\n\n (1) A person who is aggrieved by a decision:\n\n (a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or\n\n (b) made under the Registered Organisations Act by the General Manager (including a delegate of the General Manager);\n\nmay appeal the decision, with the permission of the FWC.\n\n (2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.\n\nNote: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400) or for an unfair deactivation or an unfair termination (see section 536MA).\n\n (3) A person may appeal the decision by applying to the FWC.","sortOrder":1475},{"sectionNumber":"605","sectionType":"section","heading":"Minister’s entitlement to apply for review of a decision","content":"605  Minister’s entitlement to apply for review of a decision\n\n (1) The Minister may apply to the FWC for a review to be conducted by the FWC of a decision made by the FWC (other than a decision of a Full Bench or an Expert Panel) if the Minister believes that the decision is contrary to the public interest.\n\n (2) Without limiting when the FWC may conduct a review, the FWC must conduct a review of the decision if the FWC is satisfied that it is in the public interest to conduct the review.\n\nNote: The FWC must be constituted by a Full Bench to decide whether to conduct a review, and to conduct the review (see section 614).\n\n (3) In conducting a review:\n\n (a) the FWC must take such steps as it considers appropriate to ensure that each person with an interest in the review is made aware of the review; and\n\n (b) the Minister is entitled to make submissions for consideration in the review.\n\n (4) Nothing in this section affects any right of appeal or any power of the FWC under section 604 or 607. A review of a decision and an appeal of the decision may be dealt with together if the FWC considers it appropriate.","sortOrder":1476},{"sectionNumber":"606","sectionType":"section","heading":"Staying decisions that are appealed or reviewed","content":"606  Staying decisions that are appealed or reviewed\n\n (1) If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.\n\n (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:\n\n (a) the Full Bench; or\n\n (b) the President; or\n\n (c) a Vice President; or\n\n (d) a Deputy President.\n\n (3) This section does not apply in relation to a decision to make a protected action ballot order.","sortOrder":1477},{"sectionNumber":"607","sectionType":"section","heading":"Process for appealing or reviewing decisions","content":"607  Process for appealing or reviewing decisions\n\n (1) An appeal from, or a review of, a decision of the FWC or the General Manager may be heard or conducted without holding a hearing only if:\n\n (a) it appears to the FWC that the appeal or review can be adequately determined without persons making oral submissions for consideration in the appeal or review; and\n\n (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.\n\n (2) The FWC may:\n\n (a) admit further evidence; and\n\n (b) take into account any other information or evidence.\n\n (3) The FWC may do any of the following in relation to the appeal or review:\n\n (a) confirm, quash or vary the decision;\n\n (b) make a further decision in relation to the matter that is the subject of the appeal or review;\n\n (c) refer the matter that is the subject of the appeal or review to an FWC Member (other than an Expert Panel Member) and:\n\n (i) require the FWC Member to deal with the subject matter of the decision; or\n\n (ii) require the FWC Member to act in accordance with the directions of the FWC.","sortOrder":1478},{"sectionNumber":"608","sectionType":"section","heading":"Referring questions of law to the Federal Court","content":"608  Referring questions of law to the Federal Court\n\n (1) The President may refer a question of law arising in a matter before the FWC for the opinion of the Federal Court.\n\n (2) A question of law referred under subsection (1) must be determined by the Full Court of the Federal Court.\n\n (3) The FWC may make a decision in relation to the matter even if the Federal Court is determining the question of law, except if the question is whether the FWC may exercise powers in relation to the matter.\n\n (4) Once the Federal Court has determined the question, the FWC may only make a decision in relation to the matter that is not inconsistent with the opinion of the Federal Court (if the FWC has not already done so).\n\n (5) However, if the FWC has made a decision in relation to the matter that is inconsistent with the opinion of the Federal Court, the FWC must vary the decision in such a way as to make it consistent with the opinion of the Federal Court.","sortOrder":1479},{"sectionNumber":"609","sectionType":"section","heading":"Procedural rules","content":"609  Procedural rules\n\n (1) After consulting the other FWC Members, the President may, by legislative instrument, make procedural rules in relation to:\n\n (a) the practice and procedure to be followed by the FWC; or\n\n (b) the conduct of business in relation to matters allowed or required to be dealt with by the FWC.\n\n (2) Without limiting subsection (1), the procedural rules may provide for the following:\n\n (a) the requirements for making an application to the FWC;\n\n (b) the circumstances in which a lawyer or paid agent may make an application or submission to the FWC on behalf of a person who is entitled to make the application or submission;\n\n (c) the form and manner in which, and the time within which, submissions may or must be made to the FWC;\n\n (d) the procedural requirements for making decisions of the FWC;\n\n (e) the form and manner in which the FWC gives directions and notifies persons of things;\n\n (ea) the requirements for making a notification to the FWC;\n\n (f) who is notified by the FWC of things;\n\n (g) the manner in which conferences are to be conducted in relation to applications made under Part 3‑1, 3‑2, 3‑5A or Part 6‑4 (which deal with general protections, unfair dismissal, prohibiting sexual harassment in connection with work and unlawful termination).\n\n (3) To avoid doubt, subsection (1) includes the power to make procedural rules in relation to any functions conferred on the FWC by any other law of the Commonwealth.","sortOrder":1481},{"sectionNumber":"610","sectionType":"section","heading":"Regulations dealing with any FWC matters","content":"610  Regulations dealing with any FWC matters\n\n  The regulations may provide for any matter that the procedural rules may provide for.\n\nNote: Regulations made under this section prevail over procedural rules (see subsection 796(2)).","sortOrder":1482},{"sectionNumber":"611","sectionType":"section","heading":"Costs","content":"611  Costs\n\n (1) A person must bear the person’s own costs in relation to a matter before the FWC.\n\n (2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:\n\n (a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or\n\n (b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.\n\nNote: The FWC can also order costs under sections 376, 400A, 401 and 780.\n\n (3) A person to whom an order for costs applies must not contravene a term of the order.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).","sortOrder":1483},{"sectionNumber":"612","sectionType":"section","heading":"FWC’s functions etc. may generally be performed by single FWC Member","content":"612  FWC’s functions etc. may generally be performed by single FWC Member\n\n (1) A function or power of the FWC may be performed or exercised by a single FWC Member (other than an Expert Panel Member), as directed by the President, except as provided by this Subdivision.\n\nNote: The President gives directions under section 582.\n\n (2) Action taken under subsection 508(1) (which deals with misuse of rights under Part 3‑4) must be taken by a Vice President or a Deputy President, except as provided by section 615.\n\n (3) This section does not limit the power of the President to delegate a function or power of the FWC under section 625.","sortOrder":1486},{"sectionNumber":"613","sectionType":"section","heading":"Appeal of decisions","content":"613  Appeal of decisions\n\n (1) A Full Bench must (except as provided by subsection (2)):\n\n (a) decide under section 604 whether to grant permission to appeal a decision; and\n\n (b) if the Full Bench decides to grant the permission—hear the appeal in accordance with section 607.\n\nNote: For the constitution of a Full Bench, see section 618.\n\n (2) The President, a Vice President or a Deputy President directed by the President, may:\n\n (a) decide under section 604 whether to grant permission to appeal:\n\n (i) a decision of a delegate under subsection 625(2); or\n\n (ii) a decision of the General Manager (including a delegate of the General Manager) under the Registered Organisations Act; and\n\n (b) if the President, the Vice President or the Deputy President (as the case may be) grants the permission—hear the appeal in accordance with section 607.\n\nNote: The President gives directions under section 582.","sortOrder":1487},{"sectionNumber":"614","sectionType":"section","heading":"Review of decisions by a Full Bench","content":"614  Review of decisions by a Full Bench\n\n  A Full Bench must:\n\n (a) decide under section 605 whether to conduct a review of a decision; and\n\n (b) if the Full Bench decides to conduct the review—conduct the review in accordance with section 607.\n\nNote: For the constitution of a Full Bench, see section 618.","sortOrder":1488},{"sectionNumber":"615","sectionType":"section","heading":"The President may direct a Full Bench to perform function etc.","content":"615  The President may direct a Full Bench to perform function etc.\n\n (1) A function or power of the FWC may be performed or exercised by a Full Bench if the President so directs.\n\nNote: The President gives directions under section 582.\n\n (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.\n\n (3) To avoid doubt, a reference in this section to a Full Bench includes a reference to more than one Full Bench.\n\nNote: For the constitution of a Full Bench, see section 618.","sortOrder":1489},{"sectionNumber":"615A","sectionType":"section","heading":"When the President must direct a Full Bench to perform function etc.","content":"615A  When the President must direct a Full Bench to perform function etc.\n\nFull Benches—directions on application\n\n (1) The President must direct a Full Bench to perform a function or exercise a power in relation to a matter if:\n\n (a) an application is made under subsection (2); and\n\n (b) the President is satisfied that it is in the public interest to do so.\n\nNote: The President gives directions under section 582.\n\n (2) For the purposes of paragraph (1)(a), the following persons may apply to the FWC to have a Full Bench perform a function or exercise a power in relation to a matter:\n\n (a) a person who has made, or will make, submissions for consideration in the matter;\n\n (b) the Minister.\n\nFull Benches—directions for certain terminations of enterprise agreements\n\n (3) The President must direct a Full Bench to perform a function or exercise a power in relation to a matter arising under section 226 in relation to an application for the termination of an enterprise agreement if:\n\n (a) the President has given a direction to an FWC Member to perform the function or exercise the power; and\n\n (b) the FWC Member is satisfied that any of the following persons covered by the agreement oppose the termination:\n\n (i) an employee;\n\n (ii) an employer;\n\n (iii) an employee organisation.\n\n (4) Subsection (3) does not apply if the FWC Member is satisfied that the enterprise agreement does not, and is not likely to, cover any employees.\n\n (5) Subsection (3) does not prevent a power that may be delegated under subsection 625(1) from being exercised by a single FWC Member or a person to whom the power has been delegated.\n\nNote: The powers that may be delegated under subsection 625(1) include:\n\n(a) the FWC’s power to inform itself as it considers appropriate under section 590 (other than the FWC’s power to hold a hearing); and\n\n(b) the FWC’s power to conduct a conference in accordance with section 592.","sortOrder":1490},{"sectionNumber":"615B","sectionType":"section","heading":"Transfer to a Full Bench from an FWC Member","content":"615B  Transfer to a Full Bench from an FWC Member\n\n (1) This section applies if:\n\n (a) the President gives a direction referred to in section 615 or 615A that a function be performed or a power be exercised by a Full Bench; and\n\n (b) before the President gave the direction, the President had given a direction (the earlier direction) to an FWC Member to perform the function or exercise the power.\n\n (2) The President is taken to have revoked the earlier direction.\n\n (3) The Full Bench must, when performing the function or exercising the power, take into account:\n\n (a) everything that occurred before the FWC; and\n\n (b) everything that the FWC did;\n\nin relation to the matter before the Full Bench began to perform the function or exercise the power.","sortOrder":1491},{"sectionNumber":"615C","sectionType":"section","heading":"Transfer to the President from an FWC Member or a Full Bench","content":"615C  Transfer to the President from an FWC Member or a Full Bench\n\n (1) This section applies if:\n\n (a) the President decides to perform a function or exercise a power; and\n\n (b) before the President made that decision, the President had given a direction (the earlier direction) that the function be performed or the power be exercised by a Full Bench or an FWC Member.\n\n (2) The President is taken to have revoked the earlier direction.\n\n (3) The President must, when performing the function or exercising the power, take into account:\n\n (a) everything that occurred before the FWC; and\n\n (b) everything that the FWC did;\n\nin relation to the matter before the President began to perform the function or exercise the power.","sortOrder":1492},{"sectionNumber":"616","sectionType":"section","heading":"FWC’s functions etc. that must be performed by a Full Bench","content":"616  FWC’s functions etc. that must be performed by a Full Bench\n\nModern awards\n\n (1) Subject to subsections 617(8) and (10B), a modern award must be made under Part 2‑3 by a Full Bench.\n\nNote: Subsection 617(8) relates to modern awards that must be made by an Expert Panel.\n\n (2A) A 4 yearly review of default fund terms of modern awards must be conducted under Division 4A of Part 2‑3 by a Full Bench.\n\n (3A) A determination that varies a default fund term of a modern award made in a 4 yearly review conducted under Division 4A of Part 2‑3 must be made by a Full Bench.\n\nNote: A determination that varies a default fund term of a modern award may be made by a single FWC Member under Division 5 of Part 2‑3.\n\n (3B) Subject to subsections 617(8) and (10B), a determination that revokes a modern award under Division 5 of Part 2‑3 must be made by a Full Bench.\n\nNote: Subsection 617(8) relates to determinations that must be made by an Expert Panel.\n\n (3C) Subject to subsection (3D) of this section and subsections 617(6), (8), (9), (10B) and (11), a determination that varies a modern award under Division 5 of Part 2‑3 (other than a determination varying the default fund term of a modern award under section 159A) must be made by a Full Bench.\n\nNote: Subsections 617(6), (8), (9), (10B) and (11) relate to determinations that must be made by an Expert Panel.\n\n (3D) Subject to subsections 617(6), (8), (9), (10B) and (11), the President may direct a single FWC Member to perform a function or exercise a power:\n\n (a) under section 159, 160 or 161 (varying a modern award); or\n\n (b) in relation to any other variation under section 157 that the President considers appropriate of:\n\n (i) a modern award; or\n\n (ii) if 2 or more modern awards relate to the same industry or occupation—those awards.\n\nNote 1: The President may give directions as to the manner in which the FWC is to perform its functions or exercise its powers (see section 582).\n\nNote 2: Subsections 617(6), (8), (9), (10B) and (11) relate to determinations and modern awards that must be made by an Expert Panel.\n\nWorkplace determinations\n\n (4) A workplace determination must be made under Part 2‑5 by a Full Bench.\n\nModel term determinations\n\n (4A) A determination of any of the following model terms must be made by a Full Bench:\n\n (a) a model flexibility term for enterprise agreements, under subsection 202(5);\n\n (b) a model consultation term for enterprise agreements, under subsection 205(3);\n\n (c) a model term for enterprise agreements about dealing with disputes, under subsection 737(1);\n\n (d) a model term for copied State instruments about dealing with disputes, under subsection 768BK(1A).\n\nMinimum standards orders\n\n (4B) Subject to subsections 582(4A) and 617(10D), the following must be made under Chapter 3A by a Full Bench:\n\n (a) an employee‑like worker minimum standards order;\n\n (b) a determination under subsection 536KQ(1) varying or revoking an employee‑like worker minimum standards order;\n\n (c) employee‑like worker minimum standards guidelines;\n\n (d) a determination under subsection 536KZ(1) varying or revoking employee‑like worker minimum standards guidelines.\n\nNote 1: A determination under subsection 536KQ(3) or 536KZ(3) (which deal with minor technical variations) does not need to be made by a Full Bench.\n\nNote 2: Subsection 617(10D) provides for the President to direct that certain matters relating to the road transport industry be dealt with by an Expert Panel for the road transport industry.\n\nFurther applications after application has been dismissed\n\n (4C) An order under subsection 587A(1) about further applications following the dismissal of an application must be made by a Full Bench.\n\nFull Benches\n\n (5) To avoid doubt, a reference in this section to a Full Bench includes a reference to more than one Full Bench.\n\nNote: For the constitution of a Full Bench, see section 618.","sortOrder":1493},{"sectionNumber":"617","sectionType":"section","heading":"FWC’s functions etc. that must be performed by an Expert Panel","content":"617  FWC’s functions etc. that must be performed by an Expert Panel\n\nExpert Panel for annual wage reviews\n\n (1) An annual wage review must be conducted under Part 2‑6 by an Expert Panel constituted for the purposes of the review.\n\nNote: For the constitution of an Expert Panel for the purposes of an annual wage review, see subsection 620(1).\n\n (2) A national minimum wage order, or a determination, made in an annual wage review must be made by an Expert Panel constituted for the purposes of the review.\n\n (3) A determination that varies a national minimum wage order must be made under Part 2‑6 by an Expert Panel constituted for the purposes of the review.\n\nExpert Panel for 4 yearly review of default fund terms\n\n (4) In a 4 yearly review of default fund terms of modern awards, the following must be made by an Expert Panel constituted for the purposes of the review:\n\n (a) the Default Superannuation List;\n\n (b) a determination under section 156E on an application to have a standard MySuper product included on the Default Superannuation List;\n\n (c) the Schedule of Approved Employer MySuper Products;\n\n (d) a determination under section 156P on an application made in the standard application period to have an employer MySuper product included on the Schedule of Approved Employer MySuper Products.\n\nNote: For the constitution of an Expert Panel for those purposes, see subsection 620(1A).\n\nExpert Panel for amending the Schedule of Approved Employer MySuper Products\n\n (5) If an application is made in the interim application period to have an employer MySuper product included on the Schedule of Approved Employer MySuper Products, the following must be made by an Expert Panel constituted for the purposes of determining the application:\n\n (a) a determination under section 156P on the application;\n\n (b) if the determination is to include the product on the schedule—an amendment of the schedule to specify the product.\n\nNote: For the constitution of an Expert Panel for those purposes, see subsection 620(1A).\n\nExpert Panel for pay equity\n\n (6) If the President considers that substantive gender pay equity matters might require the making of a determination under subsection 157(2) (other than a determination that the President considers might relate to the Care and Community Sector), the determination must be made by an Expert Panel constituted for the purpose of deciding whether to make the determination.\n\nNote: For the constitution of an Expert Panel for that purpose, see subsection 620(1B).\n\n (7) An equal remuneration order made under section 302 (other than an equal remuneration order that the President considers might relate to the Care and Community Sector) must be made by an Expert Panel constituted for the purpose of deciding whether to make the equal remuneration order.\n\nNote: For the constitution of an Expert Panel for that purpose, see subsection 620(1B).\n\nExpert Panel for the Care and Community Sector\n\n (8) A determination or modern award made under subsection 157(1) that the President considers might relate to the Care and Community Sector must be made by an Expert Panel constituted for the purpose of deciding whether to make the determination or modern award.\n\nNote: For the constitution of an Expert Panel for that purpose, see subsection 620(1C).\n\nExpert Panel for pay equity in the Care and Community Sector\n\n (9) A determination made under subsection 157(2) that the President considers might relate to the Care and Community Sector must be made by an Expert Panel constituted for the purpose of deciding whether to make the determination.\n\nNote: For the constitution of an Expert Panel for that purpose, see subsection 620(1D).\n\n (10) An equal remuneration order made under section 302 that the President considers might relate to the Care and Community Sector must be made by an Expert Panel constituted for the purpose of deciding whether to make the equal remuneration order.\n\nNote: For the constitution of an Expert Panel for that purpose, see subsection 620(1D).\n\nPresident’s considerations\n\n (10A) For the purposes of subsections (6), (7), (8), (9) and (10), if the President considers that an equal remuneration order, determination or modern award might relate to the Care and Community Sector, it does not matter if the President considers that the equal remuneration order, determination or modern award might also relate to another sector.\n\nExpert Panel for road transport industry\n\n (10B) The following must be made by an Expert Panel constituted for that purpose:\n\n (a) a modern award made under Part 2‑3 that the President considers might relate to the road transport industry;\n\n (b) a determination made under subsection 157(1) varying or revoking a modern award that the President considers might relate to the road transport industry;\n\n (c) a road transport minimum standards order made under paragraph 536JY(1)(b) or a determination made under subsection 536KQ(1) varying or revoking a road transport minimum standards order;\n\n (ca) a deferral determination made under subsection 536KQJ(1) in relation to a road transport minimum standards order;\n\n (cb) a suspension determination made under subsection 536KQP(1) in relation to a road transport minimum standards order;\n\n (cc) a determination made under subsection 536KQ(1) varying or revoking a road transport minimum standards order to give effect to a decision to vary or revoke the minimum standards order under paragraph 536KQS(2)(a) or (b);\n\n (cd) a decision made under paragraph 536KQS(2)(a), (b) or (c) as to whether or not to vary or revoke a road transport minimum standards order;\n\n (d) road transport guidelines made under subsection 536KR(1) or a determination made under subsection 536KZ(1) varying or revoking road transport guidelines;\n\n (da) a road transport contractual chain order made under section 536PD or a determination made under 536PT varying or revoking a road transport contractual chain order;\n\n (db) road transport contractual chain guidelines made under section 536QP or a determination made under section 536QW varying or revoking road transport contractual chain guidelines;\n\n (dc) a deferral determination made under subsection 536QB(1) in relation to a road transport contractual chain order;\n\n (dd) a suspension determination made under subsection 536QG(1) in relation to a road transport contractual chain order;\n\n (de) a determination made under subsection 536PT(1) varying or revoking a road transport contractual chain order to give effect to a decision to vary or revoke the road transport contractual chain order under paragraph 536QK(2)(a) or (b);\n\n (df) a decision made under paragraph 536QK(2)(a), (b) or (c) as to whether or not to vary or revoke a road transport contractual chain order;\n\n (e) such other instruments as are prescribed that the President considers might relate to the road transport industry.\n\nNote 1: For the constitution of an Expert Panel for that purpose, see subsection 620(1E).\n\nNote 2: The road transport objective is relevant to the functions of an Expert Panel referred to in this subsection, see section 40D.\n\nPresident’s considerations\n\n (10C) For the purposes of subsection (10B), if the President considers that a determination or a modern award, or a prescribed instrument, might relate to the road transport industry, it does not matter if the President considers that the determination or modern award or prescribed instrument might relate to another industry or sector.\n\n (10D) The President may direct that the following matters be dealt with by an Expert Panel constituted for the purpose:\n\n (a) an employee‑like worker minimum standards order or a determination varying or revoking an employee‑like worker minimum standards order, if the President considers that the order might relate to the road transport industry or sector;\n\n (b) employee‑like guidelines or a determination varying or revoking employee‑like guidelines, if the President considers that the guidelines might relate to the road transport industry;\n\n (c) any other prescribed instrument or matter that the President considers might relate to the road transport industry;\n\nwhether or not the President considers that the matter might also relate to another industry or sector.\n\nNote: For the constitution of an Expert Panel for that purpose, see subsection 620(1E).\n\nOther variations of modern awards\n\n (11) The President may direct an Expert Panel constituted for the purpose of performing a function or exercising a power under section 159, 160 or 161 (about variations of modern awards) to perform the function or exercise the power.\n\nNote: For the constitution of an Expert Panel for that purpose, see subsection 620(1B), (1C) or (1D).","sortOrder":1494},{"sectionNumber":"617AA","sectionType":"section","heading":"Full Bench and Expert Panel with identical membership","content":"617AA  Full Bench and Expert Panel with identical membership\n\n (1) This section applies if a Full Bench and an Expert Panel consist of the same FWC Members.\n\n (2) In performing its functions or exercising its powers, the Full Bench is not limited by:\n\n (a) the functions or powers of the Expert Panel; or\n\n (b) the purposes for which the Expert Panel was constituted.\n\n (3) In performing its functions or exercising its powers, the Expert Panel is not limited by the functions or powers of the Full Bench.\n\n (4) Without limiting subsection (2) or (3), a reference in this section to performing a function or exercising a power includes a reference to the following:\n\n (a) making a determination or modern award under subsection 157(1);\n\n (b) making a determination under subsection 157(2);\n\n (c) making an equal remuneration order under section 302;\n\n (d) performing a function or exercising a power under section 159, 160 or 161 (about variations of modern awards);\n\n (e) performing a function or exercising a power under Chapter 3A;\n\n (f) dealing with a matter that the President considers might relate to the road transport industry.\n\n (5) This section is enacted for the avoidance of doubt.","sortOrder":1495},{"sectionNumber":"617A","sectionType":"section","heading":"President may direct investigations and reports","content":"617A  President may direct investigations and reports\n\n (1) The President may give a direction under section 582 requiring that a matter that is relevant to the function of an Expert Panel constituted under subsection 620(1B), (1C), (1D) or (1E) be investigated, and that a report about the matter be prepared.\n\nNote: Matters that may be relevant include gender pay equity, equal remuneration, the road transport industry, and the Care and Community Sector, in Australia.\n\n (2) The direction may be given to:\n\n (a) an Expert Panel; or\n\n (b) an Expert Panel Member; or\n\n (c) a Commissioner; or\n\n (d) a Full Bench that includes one or more Expert Panel Members.","sortOrder":1496},{"sectionNumber":"617B","sectionType":"section","heading":"Research must be published","content":"617B  Research must be published\n\n (1) If the President gives a direction under section 617A requiring a matter to be investigated, and a report about the matter to be prepared, the FWC must publish the report so that submissions can be made addressing issues covered by the report.\n\n (2) The publication may be on the FWC’s website or by any other means that the FWC considers appropriate.","sortOrder":1497},{"sectionNumber":"618","sectionType":"section","heading":"Constitution and decision-making of a Full Bench","content":"618  Constitution and decision‑making of a Full Bench\n\nConstitution of a Full Bench\n\n (1) A Full Bench constituted under this section consists of at least 3 FWC Members, including at least one FWC Member who is the President, a Vice President or a Deputy President.\n\nNote: An Expert Panel Member might form part of a Full Bench.\n\n (2) The President may determine which FWC Members form part of a Full Bench.\n\nMaking decisions\n\n (3) A decision of a majority of the FWC Members on the Full Bench prevails.\n\n (4) However, if there is no majority, the decision of the FWC Member who has seniority under section 619 prevails.","sortOrder":1499},{"sectionNumber":"619","sectionType":"section","heading":"Seniority of FWC Members","content":"619  Seniority of FWC Members\n\n (1) While the FWC is constituted by a Full Bench, the FWC Members on the Full Bench have seniority according to the following order:\n\n (a) the President;\n\n (aa) the Vice Presidents, according to the days on which their appointments as Vice Presidents took effect;\n\n (ab) if 2 appointments as Vice Presidents took effect on the same day—the Vice Presidents, according to the precedence assigned to them in their instruments of appointment;\n\n (b) the Deputy Presidents, according to the days on which their appointments as Deputy Presidents took effect;\n\n (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.\n\n (2) The FWC Member on a Full Bench who has seniority under this section is responsible for managing the Full Bench in performing functions and exercising powers of the FWC.\n\nNote: The FWC Member who has seniority also has a deciding vote if there is no majority (see subsection 618(4)).","sortOrder":1500},{"sectionNumber":"620","sectionType":"section","heading":"Constitution and decision-making of an Expert Panel","content":"620  Constitution and decision‑making of an Expert Panel\n\nConstitution of an Expert Panel for annual wage reviews\n\n (1) An Expert Panel constituted under this subsection for the purpose of an annual wage review conducted under Part 2‑6 consists of 7 FWC Members (except as provided by section 622), and must include:\n\n (a) the President; and\n\n (b) 3 Expert Panel Members who have knowledge of, or experience in, one or more of the following fields:\n\n (i) workplace relations;\n\n (ii) economics;\n\n (iii) social policy;\n\n (iv) business, industry or commerce.\n\nConstitution of an Expert Panel for 4 yearly reviews of default fund terms etc.\n\n (1A) An Expert Panel constituted under this subsection for a purpose referred to in subsection 617(4) or (5) consists of 7 FWC Members (except as provided by section 622), and must include:\n\n (a) the President, or a Vice President or Deputy President appointed by the President to be the Chair of the Panel; and\n\n (b) 3 Expert Panel Members who have knowledge of, or experience in, one or more of the following fields:\n\n (i) finance;\n\n (ii) investment management;\n\n (iii) superannuation.\n\nConstitution of Expert Panel for pay equity\n\n (1B) An Expert Panel constituted under this subsection for a purpose referred to in subsection 617(6), (7) or (11) or section 617A must include (except as provided by section 622):\n\n (a) the President, or a Vice President or Deputy President appointed by the President to be the Chair of the Panel; and\n\n (b) at least 2 Expert Panel Members or other FWC Members who have knowledge of, or experience in, one or both of the following fields:\n\n (i) gender pay equity;\n\n (ii) anti‑discrimination; and\n\n (c) subject to subsection (2A), such number (if any) of other FWC Members as the President considers appropriate.\n\nConstitution of Expert Panel for the Care and Community Sector\n\n (1C) An Expert Panel constituted under this subsection for a purpose referred to in subsection 617(8) or (11) or section 617A must include (except as provided by section 622):\n\n (a) the President, or a Vice President or Deputy President appointed by the President to be the Chair of the Panel; and\n\n (b) at least 2 Expert Panel Members or other FWC Members who have knowledge of, or experience in, the Care and Community Sector; and\n\n (c) subject to subsection (2A), such number (if any) of other FWC Members as the President considers appropriate.\n\nConstitution of Expert Panel for pay equity in the Care and Community Sector\n\n (1D) An Expert Panel constituted under this subsection for a purpose referred to in subsection 617(9), (10) or (11) or section 617A must include (except as provided by section 622):\n\n (a) the President, or a Vice President or Deputy President appointed by the President to be the Chair of the Panel; and\n\n (b) at least one Expert Panel Member or other FWC Member who has knowledge of, or experience in, one or both of the following fields:\n\n (i) gender pay equity;\n\n (ii) anti‑discrimination; and\n\n (c) at least one Expert Panel Member or other FWC Member who has knowledge of, or experience in, the Care and Community Sector; and\n\n (d) subject to subsection (2A), such number (if any) of other FWC Members as the President considers appropriate.\n\nConstitution of Expert Panel for the road transport industry\n\n (1E) An Expert Panel constituted under this subsection for a purpose referred to in subsection 617(10B) or (10D) must include (except as provided by section 622):\n\n (a) the President, or a Vice President or Deputy President appointed by the President to be the Chair of the Panel; and\n\n (b) at least one Expert Panel Member or other FWC Member who has knowledge of, or experience in, the road transport industry; and\n\n (c) subject to subsection (2A), such number (if any) of other FWC Members as the President considers appropriate.\n\nAdditional requirement relating to the constitution of an Expert Panel for deferral or suspension of road transport minimum standards orders\n\n (1F) If an Expert Panel is constituted under subsection (1E) for a purpose referred to in paragraph 617(10B)(ca), (cb), (cc) or (cd) in relation to a road transport minimum standards order (which deal with deferral and suspension), a majority of the members of the Expert Panel must not be members of the Expert Panel that made the road transport minimum standards order concerned.\n\nAdditional requirement relating to the constitution of an Expert Panel for deferral or suspension of road transport contractual chain orders\n\n (1G) If an Expert Panel is constituted under subsection (1E) for a purpose referred to in paragraph 617(10B)(dc), (dd), (de) or (df) in relation to a road transport contractual chain order (which deal with deferral and suspension), a majority of the members of the Expert Panel must not be members of the Expert Panel that made the road transport chain order concerned.\n\nPresident to choose FWC Members\n\n (2) The President may determine which FWC Members form part of an Expert Panel.\n\nExpert Panels to consist of majority of qualified FWC Members\n\n (2A) The President must ensure that an Expert Panel constituted under subsection (1B), (1C), (1D) or (1E) consists of a majority of FWC Members who have the knowledge or experience required under paragraph 620(1B)(b), paragraph (1C)(b), paragraphs (1D)(b) and (c) or paragraph (1E)(b) (as the case may be).\n\nManaging Expert Panels\n\n (3) The following person is responsible for managing an Expert Panel in performing the functions and exercising the powers referred to in section 617:\n\n (a) if paragraph (b) does not apply—the President;\n\n (b) if the President has appointed a person to be the Chair of the Expert Panel under paragraph 620(1A)(a), (1B)(a), (1C)(a) or (1D)(a)—the Chair.\n\nMaking decisions\n\n (4) A decision of the majority of the FWC Members of an Expert Panel prevails.\n\n (5) However, if there is no majority, the decision of:\n\n (a) if paragraph (b) does not apply—the President; or\n\n (b) if the President has appointed a person to be the Chair of the Expert Panel under paragraph 620(1A)(a), (1B)(a), (1C)(a) or (1D)(a)—the Chair;\n\nprevails.","sortOrder":1501},{"sectionNumber":"621","sectionType":"section","heading":"Reconstitution of the FWC when single FWC Member becomes unavailable","content":"621  Reconstitution of the FWC when single FWC Member becomes unavailable\n\n (1) This section applies if:\n\n (a) an FWC Member is dealing with a matter (other than by forming part of a Full Bench or an Expert Panel in relation to a matter); and\n\n (b) the FWC Member becomes unavailable to continue dealing with the matter before the matter is completely dealt with.\n\n (2) The President must direct another FWC Member to constitute the FWC for the purposes of dealing with the matter.\n\nNote: The new FWC Member must take into account everything that happened before the FWC Member began to deal with the matter (see section 623).","sortOrder":1502},{"sectionNumber":"622","sectionType":"section","heading":"Reconstitution of the FWC when FWC Member of a Full Bench or an Expert Panel becomes unavailable","content":"622  Reconstitution of the FWC when FWC Member of a Full Bench or an Expert Panel becomes unavailable\n\n (1) This section applies if:\n\n (a) an FWC Member (the unavailable member) forms part of a Full Bench or an Expert Panel in relation to a matter; and\n\n (b) the FWC Member becomes unavailable to continue dealing with the matter before the matter is completely dealt with.\n\n (2) The Full Bench or the Expert Panel may continue to deal with the matter without the unavailable member if the Full Bench or the Expert Panel consists of the following:\n\n (a) for an Expert Panel other than an Expert Panel referred to in paragraph (aa)—the President and at least 2 Expert Panel Members;\n\n (aa) for an Expert Panel constituted under subsection 620(1B), (1C), (1D) or (1E)—at least 3 FWC Members, of whom:\n\n (i) at least one FWC Member is the President, a Vice President or a Deputy President; and\n\n (ii) a majority of the FWC Members have the knowledge or experience required under paragraph 620(1B)(b), paragraph (1C)(b), paragraphs (1D)(b) and (c) or paragraph (1E)(b) (as the case may be);\n\n (b) for a Full Bench—at least 3 FWC Members, including at least one FWC Member who is the President, a Vice President or a Deputy President.\n\n (3) Otherwise, the President must direct another FWC Member to form part of the Full Bench or the Expert Panel. After the President does so, the Full Bench or the Expert Panel may continue to deal with the matter without the unavailable member.\n\nNote: The new FWC Member must take into account everything that happened before the FWC Member began to deal with the matter (see section 623).\n\n (4) For the purposes of subsection (3), if the President is directing an FWC member to form part of an Expert Panel constituted under subsection 620(1B), (1C), (1D) or (1E), the President must give preference to directing an FWC member that has the knowledge or experience required under paragraph 620(1B)(b), paragraph (1C)(b), paragraphs (1D)(b) and (c) or paragraph (1E)(b) (as the case may be).","sortOrder":1503},{"sectionNumber":"623","sectionType":"section","heading":"When new FWC Members begin to deal with matters","content":"623  When new FWC Members begin to deal with matters\n\n  If an FWC Member begins to deal with a matter under section 621 or 622, the FWC Member must take into account everything that occurred before the FWC, and everything that the FWC did, in relation to the matter before the FWC Member began to deal with the matter.","sortOrder":1504},{"sectionNumber":"624","sectionType":"section","heading":"FWC’s decisions not invalid when improperly constituted","content":"624  FWC’s decisions not invalid when improperly constituted\n\n  A decision of the FWC is not invalid merely because it was made by a Full Bench, or an Expert Panel, constituted otherwise than as provided by this Division.\n\nNote: If the FWC makes a decision to make an instrument while constituted otherwise than as provided by this Division, the instrument is not invalid (see subsection 598(2)).","sortOrder":1505},{"sectionNumber":"625","sectionType":"section","heading":"Delegation by the President of functions and powers of the FWC","content":"625  Delegation by the President of functions and powers of the FWC\n\n (1) The President may, in writing, delegate all or any of the following powers of the FWC to the General Manager or a member of the staff of the FWC:\n\n (a) correcting or amending applications and documents, or waiving irregularities, under section 586;\n\n (b) informing itself as it considers appropriate under section 590 (other than the FWC’s power to hold a hearing);\n\n (c) conducting a conference in accordance with section 592;\n\n (d) correcting or amending obvious errors, defects or irregularities under section 602.\n\n (2) The President may, in writing, delegate all or any of the following functions or powers of the FWC to a person referred to in subsection (3):\n\n (a) publishing varied modern awards under section 168;\n\n (b) publishing submissions under section 289;\n\n (c) publishing research under section 291;\n\n (d) publishing varied wage rates under section 292;\n\n (da) publishing the results of a protected action ballot under section 457;\n\n (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;\n\n (g) the functions and powers of the FWC under Division 6 of Part 3‑4 (which deals with entry permits, entry notices and certificates);\n\n (h) publishing enterprise agreements under paragraph 601(4)(b);\n\n (i) any function or power prescribed by the regulations.\n\n (3) The people to whom a delegation may be given under subsection (2) are any of the following:\n\n (a) the General Manager;\n\n (b) a member of the staff of the FWC who is an SES employee or acting SES employee;\n\n (c) a member of the staff of the FWC who is in a class of employees prescribed by the regulations.\n\n (3A) The President may, in writing, delegate all or any of the functions or powers of the FWC under subsection 368(3) (unresolved dismissal disputes) or subsection 776(3) (unresolved unlawful termination disputes) to any of the following people:\n\n (a) a member of the staff of the FWC who is an SES employee or acting SES employee;\n\n (b) a member of the staff of the FWC who is an APS employee who holds or performs duties of an APS 6 position, or an equivalent or higher position.\n\n (4) In performing functions or exercising powers under a delegation under subsection (1), (2) or (3A), the delegate must comply with any directions of the President.\n\nNote: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.","sortOrder":1507},{"sectionNumber":"626","sectionType":"section","heading":"Appointment of FWC Members","content":"626  Appointment of FWC Members\n\n (1) An FWC Member is to be appointed by the Governor‑General by written instrument.\n\n (2) The instrument of appointment must specify whether the FWC Member is the President, a Vice President, a Deputy President, a Commissioner or an Expert Panel Member.\n\n (3) The instrument of appointment must assign a precedence to the FWC Member if:\n\n (a) the FWC Member and one other FWC Member are appointed as Vice Presidents on the same day; or\n\n (b) the FWC Member and one or more other FWC Members are appointed as Deputy Presidents on the same day.\n\nNote: Precedence is relevant to the seniority of Vice Presidents and Deputy Presidents (see paragraphs 619(1)(ab) and (c)).\n\n (4) The same person must not hold, at the same time, an appointment as both:\n\n (a) an Expert Panel Member; and\n\n (b) the President, a Vice President, a Deputy President or a Commissioner.","sortOrder":1510},{"sectionNumber":"627","sectionType":"section","heading":"Qualifications for appointment of FWC Members","content":"627  Qualifications for appointment of FWC Members\n\nPresident and Vice Presidents\n\n (1) Before the Governor‑General appoints a person as the President or a Vice President, the Minister must be satisfied that the person:\n\n (a) is or has been a Judge of a court created by the Parliament; or\n\n (b) is qualified for appointment because the person has knowledge of, or experience in, one or more of the following fields:\n\n (i) workplace relations;\n\n (ii) law;\n\n (iii) business, industry or commerce.\n\n (1A) Paragraph (1)(a) does not apply to a person who is a Judge of the Federal Circuit and Family Court of Australia (Division 2).\n\nDeputy Presidents\n\n (2) Before the Governor‑General appoints a person as a Deputy President, the Minister must be satisfied that the person:\n\n (a) either:\n\n (i) is or has been a Judge of a court created by the Parliament; or\n\n (ii) has been a Judge of a court of a State or Territory; or\n\n (b) has a high level of experience in the field of workplace relations, including a high level of experience that has been acquired:\n\n (i) through legal practice; or\n\n (ii) in the service of a peak council or another association representing the interests of employers or employees; or\n\n (iii) in the service of government or an authority of government; or\n\n (iv) in academia.\n\n (2A) Subparagraph (2)(a)(i) does not apply to a person who is a Judge of the Federal Circuit and Family Court of Australia (Division 2).\n\nCommissioners\n\n (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:\n\n (a) workplace relations;\n\n (b) law;\n\n (c) business, industry or commerce.\n\nExpert Panel Members\n\n (4) Before the Governor‑General appoints a person as an Expert 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:\n\n (a) workplace relations;\n\n (b) economics;\n\n (c) social policy;\n\n (d) business, industry or commerce;\n\n (e) finance;\n\n (f) investment management;\n\n (g) superannuation;\n\n (h) gender pay equity;\n\n (i) anti‑discrimination;\n\n (j) the Care and Community Sector;\n\n (k) the road transport industry.","sortOrder":1511},{"sectionNumber":"628","sectionType":"section","heading":"Basis of appointment of FWC Members","content":"628  Basis of appointment of FWC Members\n\nPresident, Vice Presidents, Deputy Presidents and Commissioners\n\n (1) The President, a Vice President, a Deputy President or a Commissioner holds office on a full‑time basis.\n\n (2) A Deputy President or a Commissioner may perform his or her duties on a part‑time basis, with the President’s approval.\n\nExpert Panel Members\n\n (3) An Expert Panel Member holds office on a part‑time basis.","sortOrder":1512},{"sectionNumber":"629","sectionType":"section","heading":"Period of appointment of FWC Members","content":"629  Period of appointment of FWC Members\n\nPresident, Vice Presidents, Deputy Presidents and Commissioners\n\n (1) The President, a Vice President, a Deputy President or a Commissioner holds office until the earliest of the following:\n\n (a) he or she attains the age of 65 years;\n\n (b) he or she resigns or the appointment is terminated under this Part.\n\nMembers of a prescribed State industrial authority\n\n (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.\n\nNote: A member of a prescribed State industrial authority may hold office as a Deputy President or Commissioner (see section 631).\n\n (3) If a person is so appointed, the person holds office as Deputy President or Commissioner until the earliest of the following:\n\n (a) the specified period ends;\n\n (b) the person ceases to be a member of the prescribed State industrial authority;\n\n (c) the person resigns or the appointment is terminated under this Part.\n\nExpert Panel Members\n\n (4) An Expert Panel Member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.\n\nNote: An Expert Panel Member is eligible for reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).","sortOrder":1513},{"sectionNumber":"629A","sectionType":"section","heading":"Status of the President","content":"629A  Status of the President\n\n  The President has the same status as a Judge of the Federal Court.","sortOrder":1515},{"sectionNumber":"630","sectionType":"section","heading":"Appointment of a Judge not to affect tenure etc.","content":"630  Appointment of a Judge not to affect tenure etc.\n\n (1) The appointment of a Judge of a court created by the Parliament as an FWC Member, or service by such a Judge as an FWC Member, does not affect:\n\n (a) the Judge’s tenure of office as a Judge; or\n\n (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.\n\n (2) For all purposes, the Judge’s service as the FWC Member is taken to be service as a Judge.","sortOrder":1516},{"sectionNumber":"631","sectionType":"section","heading":"Dual federal and State appointments of Deputy Presidents or Commissioners","content":"631  Dual federal and State appointments of Deputy Presidents or Commissioners\n\n (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.\n\n (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.\n\nNote 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).\n\nNote 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.\n\n (3) Subsections (1) and (2) have effect subject to any law of the relevant State.","sortOrder":1517},{"sectionNumber":"632","sectionType":"section","heading":"Dual federal and Territory appointments of Deputy Presidents or Commissioners","content":"632  Dual federal and Territory appointments of Deputy Presidents or Commissioners\n\n  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:\n\n (a) an office as a member of a Commonwealth or Territory tribunal prescribed by the regulations (other than a court);\n\n (b) an office under a Commonwealth or Territory law.","sortOrder":1518},{"sectionNumber":"633","sectionType":"section","heading":"Outside work of FWC Members","content":"633  Outside work of FWC Members\n\nVice Presidents, Deputy Presidents and Commissioners\n\n (1) A Vice President, Deputy President or Commissioner (whether performing duties on a full‑time or part‑time basis) must not engage in paid work outside the duties of his or her office without the President’s approval.\n\n (2) However, the President’s approval is not required if the paid work is an office or appointment in the Defence Force.\n\nExpert Panel Members\n\n (3) An Expert Panel Member must not engage in any paid work that, in the President’s opinion, conflicts or may conflict with the proper performance of his or her duties.","sortOrder":1519},{"sectionNumber":"634","sectionType":"section","heading":"Oath or affirmation of office","content":"634  Oath or affirmation of office\n\n  Before beginning to discharge the duties of his or her office, an FWC Member must take an oath or affirmation in accordance with the regulations.","sortOrder":1520},{"sectionNumber":"635","sectionType":"section","heading":"Remuneration of the President","content":"635  Remuneration of the President\n\nRemuneration if the President is not a Judge\n\n (1) The President (other than a President who is a Judge of a court created by the Parliament) is to be paid:\n\n (a) salary at an annual rate equal to the annual rate of salary payable to the Chief Justice of the Federal Court; and\n\n (b) such travelling allowances as are determined from time to time by the Remuneration Tribunal; and\n\n (c) such other allowances as are prescribed by the regulations.\n\nRemuneration if the President is a Judge\n\n (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).\n\n (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).\n\nAdditional amount\n\n (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.","sortOrder":1521},{"sectionNumber":"636","sectionType":"section","heading":"Application of Judges’ Pensions Act to the President","content":"636  Application of Judges’ Pensions Act to the President\n\n (1) The Judges’ Pensions Act 1968 does not apply to the President if:\n\n (a) immediately before being appointed as the President, he or she was one of the following (a public sector superannuation scheme member):\n\n (i) an eligible employee for the purposes of the Superannuation Act 1976;\n\n (ii) a member of the superannuation scheme established by deed under the Superannuation Act 1990;\n\n (iii) an ordinary employer‑sponsored member of PSSAP (within the meaning of the Superannuation Act 2005); and\n\n (b) he or she does not make an election under subsection (2).\n\n (2) The President may elect to cease to be a public sector superannuation scheme member.\n\n (3) The election must be made:\n\n (a) within 3 months of the President’s appointment; and\n\n (b) by written notice to the Minister.\n\n (4) If the President makes the election:\n\n (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\n\n (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.","sortOrder":1522},{"sectionNumber":"637","sectionType":"section","heading":"Remuneration of FWC Members other than the President","content":"637  Remuneration of FWC Members other than the President\n\nRemuneration if an FWC Member is not a Judge\n\n (1) An FWC Member (other than an FWC Member who is a Judge of a court created by the Parliament) is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the FWC Member is to be paid the remuneration that is prescribed by the regulations.\n\n (2) An FWC Member is to be paid the allowances that are prescribed by the regulations.\n\n (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).\n\n (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).\n\nRemuneration if an FWC Member is a Judge\n\n (5) An FWC Member who is a Judge (other than the Chief Justice of the Federal Court) of a court created by the Parliament is to be paid an additional allowance, in accordance with subsection (6), if the salary payable to the person as a Judge is less than the salary that would be payable to the person as an FWC Member under subsection (1).\n\n (6) The amount of the allowance is the difference between the Judge’s salary and the salary that is payable to the FWC Member under subsection (1).\n\nSection does not apply to the President\n\n (7) This section does not apply to the President.","sortOrder":1523},{"sectionNumber":"638","sectionType":"section","heading":"Remuneration of Deputy Presidents or Commissioners performing duties on a part-time basis","content":"638  Remuneration of Deputy Presidents or Commissioners performing duties on a part‑time basis\n\n (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.\n\n (2) The agreed proportion may be varied by a written agreement between the President and the part‑time member.\n\n (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.\n\n (4) The allowances that are to be paid to the part‑time member under section 637 are not affected by this section.","sortOrder":1524},{"sectionNumber":"639","sectionType":"section","heading":"Leave of absence of FWC Members other than the President","content":"639  Leave of absence of FWC Members other than the President\n\n (1) An FWC Member has the recreation leave entitlements that are determined by the Remuneration Tribunal.\n\n (2) The President may grant an FWC Member leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise as the President determines.\n\n (3) In making a determination in accordance with this section, the Remuneration Tribunal and the President must take into account:\n\n (a) any past employment of the FWC Member in the service of a State or an authority of a State; or\n\n (b) any past service of the FWC Member as a member of an authority of a State.\n\n (4) This section does not apply to the President.","sortOrder":1525},{"sectionNumber":"640","sectionType":"section","heading":"Disclosure of interests by FWC Members other than the President","content":"640  Disclosure of interests by FWC Members other than the President\n\n (1) This section applies if:\n\n (a) an FWC Member (other than the President) is dealing, or will deal, with a matter; and\n\n (b) the FWC Member has or acquires any interest (the potential conflict), pecuniary or otherwise, that conflicts or could conflict with the proper performance of the FWC Member’s functions in relation to the matter.\n\n (2) The FWC Member must disclose the potential conflict to:\n\n (a) a person who has made, or will make, a submission for consideration in the matter; and\n\n (b) a person who the FWC Member considers is likely to make a submission for consideration in the matter; and\n\n (c) the President.\n\n (4) The President must give a direction to the FWC Member not to deal, or to no longer deal, with the matter if:\n\n (a) the President becomes aware that an FWC Member has a potential conflict in relation to a matter (whether or not because of a disclosure under subsection (2)); and\n\n (b) the President considers that the FWC Member should not deal, or should no longer deal, with the matter.","sortOrder":1526},{"sectionNumber":"641","sectionType":"section","heading":"Termination of appointment on grounds of misbehaviour or incapacity","content":"641  Termination of appointment on grounds of misbehaviour or incapacity\n\n  The Governor‑General may terminate the appointment of an FWC Member if an address praying for the termination, on one of the following grounds, is presented to the Governor‑General by each House of the Parliament in the same session:\n\n (a) proved misbehaviour;\n\n (b) the FWC Member is unable to perform the duties of his or her office because of physical or mental incapacity.","sortOrder":1527},{"sectionNumber":"641A","sectionType":"section","heading":"Minister may handle complaints about FWC Members","content":"641A  Minister may handle complaints about FWC Members\n\n  The Minister may handle a complaint about the performance by an FWC Member of his or her duties:\n\n (a) for the purpose of considering whether each House of the Parliament should consider whether to present to the Governor‑General an address praying for the termination of the appointment of the FWC Member; and\n\n (b) for the purpose of considering whether to advise the Governor‑General to suspend the FWC Member.\n\nNote 1: The appointment of an FWC Member may be terminated under section 641 if each House of the Parliament presents such an address to the Governor‑General.\n\nNote 2: The FWC Member may be suspended under section 642.\n\nNote 3: The complaint is a complaint about an FWC Member (see section 12).\n\nNote 4: For protections for persons involved in relation to handling a complaint about an FWC Member, see section 584B.","sortOrder":1528},{"sectionNumber":"641B","sectionType":"section","heading":"Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012","content":"641B  Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012\n\n (1) The object of this section is to modify the application of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (the JMIPC Act) so as to allow a Commission to be established by the Houses of Parliament to investigate and report on alleged misbehaviour or incapacity of an FWC Member, so the Houses can be well‑informed to consider whether to pray for:\n\n (a) the termination of the FWC Member’s appointment under section 641; or\n\n (b) the removal of the FWC Member from office under section 82 or 86 of the WR Act (within the meaning of the Transitional Act), as those sections continue to apply because of the operation of item 2 of Schedule 18 to the Transitional Act.\n\n (2) The JMIPC Act applies, in addition to its general application, as if a provision of that Act referred to in an item in column 1 of the following table were amended as specified in column 2 of the item.\n\n\n\n- Modified application of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012\n- Item Column 1Provision of the JMIPC Act Column 2Amendment\n- 1 Subsection 3(1) Omit “a Commonwealth judicial officer”, substitute “an FWC Member”.\n- 2 Subsection 3(1) Omit all the words after “whether to”, substitute:“pray for:(a) for a non‑transitioned FWC Member—the termination of the FWC Member’s appointment under section 641 of the FW Act; or(b) for a transitioned FWC Member—the removal of the FWC Member from office under section 82 or 86 of the WR Act (as those sections continue to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act).”.\n- 3 Paragraph 3(2)(b) Omit “removal of a Commonwealth judicial officer under paragraph 72(ii) of the Constitution”, substitute “termination of appointment or removal from office of an FWC Member under the relevant provisions referred to in subsection (1)”.\n- 4 Section 4 Omit “a Commonwealth judicial officer (that is, a High Court judge or a judge of the Federal Court of Australia, the Federal Circuit and Family Court of Australia (Division 1) or the Federal Circuit and Family Court of Australia (Division 2))”, substitute “an FWC Member”.\n- 5 Section 4 Omit “removal of the judicial officer, the judicial officer may be removed by the Governor‑General in Council in accordance with paragraph 72(ii) of the Constitution”, substitute “termination of appointment or removal from office of the FWC Member, the FWC Member’s appointment may be terminated, or the FWC Member may be removed from office, by the Governor‑General in Council under the applicable provisions of the FW Act or the WR Act”.\n- 6 Section 7 Insert:FW Act means the Fair Work Act 2009.FWC Member has the same meaning as in the FW Act and includes a transitioned FWC Member.FW Transitional Act means the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.\n- 7 Section 7 (definition of incapacity) Omit the definition (including the note), substitute:incapacity:(a) in relation to the termination of appointment of a non‑transitioned FWC Member under section 641 of the FW Act—has the same meaning as in that section; and(b) in relation to the removal of a transitioned FWC Member from office under section 82 of the WR Act (as that section continues to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act)—has the same meaning as in that section; and(c) in relation to the removal of a transitioned FWC Member from office under section 86 of the WR Act (as that section continues to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act)—has the same meaning as in that section; and(d) in relation to the termination of appointment of a member of the Commission under section 73 of this Act—has its ordinary meaning.\n- 8 Section 7 (definition of misbehaviour) Omit the definition (including the note), substitute:misbehaviour:(a) in relation to the termination of appointment of a non‑transitioned FWC Member under section 641 of the FW Act—has the same meaning as in that section; and(b) in relation to the removal of a transitioned FWC Member from office under section 82 of the WR Act (as that section continues to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act)—has the same meaning as in that section; and(c) in relation to the removal of a transitioned FWC Member from office under section 86 of the WR Act (as that section continues to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act)—has the same meaning as in that section; and(d) in relation to the termination of appointment of a member of the Commission under section 73 of this Act—has its ordinary meaning.\n- 9 Section 7 Insert:non‑transitioned FWC Member means an FWC Member who is not a transitioned FWC Member.\n- 10 Section 7 (definition of proved) Omit the definition, substitute:proved:(a) in relation to the termination of appointment of a non‑transitioned FWC Member for misbehaviour under paragraph 641(a) of the FW Act—has the same meaning as in that paragraph; and(b) in relation to the termination of appointment of a non‑transitioned FWC Member for incapacity under paragraph 641(b) of the FW Act—means the grounds referred to in that paragraph are established; and(c) in relation to the removal of a transitioned FWC Member from office for misbehaviour or incapacity under section 82 of the WR Act (as that section continues to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act)—has the same meaning as in that section; and(d) in relation to the removal of a transitioned FWC Member from office for misbehaviour or incapacity under section 86 of the WR Act (as that section continues to apply because of the operation of item 2 of Schedule 18 to the FW Transitional Act)—has the same meaning as in that section.\n- 11 Section 7 Insert:transitioned FWC Member means a person who is taken to be appointed as an FWA Member under item 1 of Schedule 18 to the FW Transitional Act.WR Act has the same meaning as in the FW Transitional Act.WR Act repeal day has the same meaning as in the FW Transitional Act.\n- 12 Section 8 Omit “a Commonwealth judicial officer”, substitute “an FWC Member”.\n- 13 Section 8 Omit “removal of the judicial officer, the judicial officer may be removed by the Governor‑General in Council in accordance with paragraph 72(ii) of the Constitution”, substitute “termination of appointment or removal from office of the FWC Member, the FWC Member’s appointment may be terminated, or the FWC Member may be removed from office, by the Governor‑General in Council under the applicable provisions of the FW Act or the WR Act”.\n- 14 Subsection 9(1) Omit “Commonwealth judicial officer”, substitute “FWC Member”.\n- 15 Subsection 9(1) (note 2) Omit “Commonwealth judicial officer”, substitute “FWC Member”.\n- 16 Paragraph 16(1)(b) Omit “a Commonwealth judicial officer”, substitute “an FWC Member”.\n- 17 Subsection 19(6) After paragraph 19(6)(c), insert:(ca) an investigation into a complaint about an FWC Member; and\n- 18 Subsection 20(2) Omit “a Commonwealth judicial officer”, substitute “an FWC Member”.\n- 19 Subsection 20(2) Omit “the Commonwealth judicial officer” (wherever occurring), substitute “the FWC Member”.\n- 20 Section 21 Omit “a Commonwealth judicial officer” (wherever occurring), substitute “an FWC Member”.\n- 21 Paragraph 23(3)(a) Omit “Commonwealth judicial officer to whom the investigation relates to perform his or her duties as such an officer”, substitute “FWC Member to whom the investigation relates to perform his or her duties as an FWC Member”.\n- 22 Paragraph 23(3)(b) and subparagraph 23(3)(c)(i) Omit “judiciary”, substitute “Fair Work Commission”.\n- 23 Subparagraph 23(3)(c)(ii) Omit “Commonwealth judicial officer”, substitute “FWC Member”.\n- 24 Subsection 24(4) (heading) Omit “Commonwealth judicial officer”, substitute “FWC Member”.\n- 25 Subsections 24(4) and (5) Omit “Commonwealth judicial officer” (wherever occurring), substitute “FWC Member”.\n- 26 Paragraph 24(7)(c) Omit “Commonwealth judicial officer”, substitute “FWC Member”.\n- 27 Subdivision D of Division 2 of Part 3 (heading) Omit “Commonwealth judicial officer”, substitute “FWC Member”.\n- 28 Section 45 (heading) Omit “Commonwealth judicial officer”, substitute “FWC Member”.\n- 29 Subsections 45(1) and 46(2) Omit “Commonwealth judicial officer”, substitute “FWC Member”.","sortOrder":1529},{"sectionNumber":"642","sectionType":"section","heading":"Suspension on grounds of misbehaviour or incapacity","content":"642  Suspension on grounds of misbehaviour or incapacity\n\nGovernor‑General may suspend an FWC Member\n\n (1) The Governor‑General may suspend an FWC Member (other than the President) from office:\n\n (a) for misbehaviour; or\n\n (b) if the FWC Member is unable to perform the duties of his or her office because of physical or mental incapacity.\n\nStatement of grounds\n\n (2) The Minister must cause to be tabled in each House of Parliament, within 7 sitting days of that House after the suspension, a statement identifying the FWC Member and setting out the ground of the suspension.\n\nResolution by a House of Parliament\n\n (3) A House of the Parliament may, within 15 sitting days of that House after the day on which the statement has been tabled in it, declare by resolution that the appointment of the FWC Member should be terminated.\n\nSuspension terminates\n\n (4) If a House does not pass a resolution in that way, the suspension terminates.\n\nAppointment to be terminated\n\n (5) If each House of the Parliament passes a resolution in that way, the Governor‑General must terminate the appointment of the FWC Member.\n\nSuspension not to affect entitlements\n\n (6) The suspension of an FWC Member under this section does not affect any entitlement of the FWC Member to be paid remuneration, and allowances, in accordance with this Act.","sortOrder":1530},{"sectionNumber":"643","sectionType":"section","heading":"Termination of appointment for bankruptcy, etc.","content":"643  Termination of appointment for bankruptcy, etc.\n\n  The Governor‑General must terminate the appointment of an FWC Member (other than the President) if:\n\n (a) the FWC Member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors, or makes an assignment of his or her remuneration for the benefit of his or her creditors; or\n\n (b) the FWC Member is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months.","sortOrder":1531},{"sectionNumber":"644","sectionType":"section","heading":"Termination of appointment for outside work","content":"644  Termination of appointment for outside work\n\nVice Presidents, Deputy Presidents and Commissioners\n\n (1) The Governor‑General must terminate the appointment of a Vice President, Deputy President or Commissioner if the Vice President, Deputy President or Commissioner engages, except with the President’s approval, in paid work outside the duties of his or her office (see subsection 633(1)).\n\nExpert Panel Members\n\n (2) The Governor‑General must terminate the appointment of an Expert Panel Member if the Expert Panel Member engages in paid work that, in the President’s opinion, conflicts or may conflict with the proper performance of his or her duties (see subsection 633(3)).","sortOrder":1532},{"sectionNumber":"645","sectionType":"section","heading":"Resignation of FWC Members","content":"645  Resignation of FWC Members\n\n (1) An FWC Member may resign his or her appointment by giving the Governor‑General a written resignation.\n\n (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.","sortOrder":1533},{"sectionNumber":"646","sectionType":"section","heading":"Other terms and conditions of FWC Members","content":"646  Other terms and conditions of FWC Members\n\n  An FWC Member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor‑General.","sortOrder":1534},{"sectionNumber":"647","sectionType":"section","heading":"Appointment of acting President and Vice President","content":"647  Appointment of acting President and Vice President\n\nAppointment by Governor‑General\n\n (1) The Governor‑General may, by written instrument, appoint a Vice President to act as the President:\n\n (a) during a vacancy in the office of the President (whether or not an appointment has previously been made to the office); or\n\n (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.\n\nNote: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.\n\n (1A) The Governor‑General may, by written instrument, appoint a Deputy President to act as a Vice President:\n\n (a) during a vacancy in the office of a Vice President (whether or not an appointment has previously been made to the office); or\n\n (b) during any period, or during all periods, when a Vice President is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.\n\nNote: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.\n\nNo invalidity\n\n (2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:\n\n (a) the occasion for the appointment had not arisen; or\n\n (b) there was a defect or irregularity in connection with the appointment; or\n\n (c) the appointment had ceased to have effect; or\n\n (d) the occasion for the person to act had not arisen or had ceased.\n\nNot disqualified\n\n (3) A person is not disqualified from being appointed under subsection (1) or (1A) merely because the person is over 65.","sortOrder":1535},{"sectionNumber":"648","sectionType":"section","heading":"Appointment of acting Deputy Presidents and Commissioners","content":"648  Appointment of acting Deputy Presidents and Commissioners\n\nAppointment by Governor‑General\n\n (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).\n\nNote: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.\n\n (1A) The Governor‑General may, by written instrument, appoint a person who is qualified for appointment as a Commissioner to act as a Commissioner for a specified period (including a period that exceeds 12 months).\n\nNote: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.\n\n (2) Before the Governor‑General appoints a person under subsection (1) or (1A), the Minister must be satisfied that the appointment is necessary to enable the FWC to perform its functions effectively.\n\nNo invalidity\n\n (3) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:\n\n (a) the occasion for the appointment had not arisen; or\n\n (b) there was a defect or irregularity in connection with the appointment; or\n\n (c) the appointment had ceased to have effect; or\n\n (d) the occasion for the person to act had not arisen or had ceased.\n\nNot disqualified\n\n (4) A person is not disqualified from being appointed under subsection (1) or (1A) merely because the person is over 65.","sortOrder":1536},{"sectionNumber":"649","sectionType":"section","heading":"President to cooperate with prescribed State industrial authorities","content":"649  President to cooperate with prescribed State industrial authorities\n\n (1) The President must perform his or her functions, and exercise his or her powers, in a manner that facilitates and encourages cooperation between the FWC and prescribed State industrial authorities.\n\n (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.","sortOrder":1538},{"sectionNumber":"650","sectionType":"section","heading":"Provision of administrative support","content":"650  Provision of administrative support\n\n  The President may make a written arrangement with a prescribed State industrial authority for:\n\n (a) the FWC to provide administrative support to the authority; or\n\n (b) the authority to provide administrative support to the FWC.","sortOrder":1539},{"sectionNumber":"651","sectionType":"section","heading":"Seals","content":"651  Seals\n\nSeal of the FWC\n\n (1) The FWC must have a seal on which are inscribed the words “The Seal of the Fair Work Commission”.\n\nDuplicate seals\n\n (2) There are to be such duplicates of the seal of the FWC as the President directs.\n\nNote: The President gives directions under section 582.\n\n (3) A document to which a duplicate seal of the FWC is affixed is taken to have the seal of the FWC affixed to it.\n\nCustody and use of the seal of the FWC and duplicate seals\n\n (4) The seal of the FWC, and the duplicates of that seal, are to be kept in such custody as the President directs and must not be used except as authorised by the President.\n\nNote: The President gives directions under section 582.\n\nJudicial notice of the seal of the FWC\n\n (5) All courts, judges and persons acting judicially must:\n\n (a) take judicial notice of the imprint of the seal of the FWC appearing on a document; and\n\n (b) presume that the document was duly sealed.","sortOrder":1541},{"sectionNumber":"652","sectionType":"section","heading":"Annual report","content":"652  Annual report\n\n (1) The President must, as soon as practicable after the end of each financial year, prepare a report on the operations of the FWC during that year.\n\nNote 1: See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.\n\nNote 2: The report prepared by the General Manager and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 may be included in the report prepared under this section. Section 329D of the Registered Organisations Act sets out additional requirements for the General Manager’s report.\n\n (1A) A report prepared after the end of a financial year must be given to the Minister by 15 October in the next financial year for presentation to the Parliament.\n\n (2) To avoid doubt, subsection (1) does not require or authorise the disclosure of information for the purposes of the Privacy Act 1988.","sortOrder":1542},{"sectionNumber":"653","sectionType":"section","heading":"Reports about making enterprise agreements, individual flexibility arrangements etc.","content":"653  Reports about making enterprise agreements, individual flexibility arrangements etc.\n\nReview and research\n\n (1) The General Manager must:\n\n (a) review the developments, in Australia, in making enterprise agreements; and\n\n (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\n\n (c) conduct research into the operation of the provisions of the National Employment Standards relating to:\n\n (i) requests for flexible working arrangements under subsection 65(1); and\n\n (ii) requests for extensions of unpaid parental leave under subsection 76(1); and\n\n (d) conduct research into:\n\n (i) the circumstances in which employees make such requests; and\n\n (ii) the outcome of such requests; and\n\n (iii) the circumstances in which such requests are refused.\n\n (1A) The review and research must be conducted in relation to each of the following periods:\n\n (a) the 3 year period that starts when this section commences;\n\n (b) each later 3 year period.\n\n (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:\n\n (a) women;\n\n (b) part‑time employees;\n\n (c) persons from a non‑English speaking background;\n\n (d) mature age persons;\n\n (e) young persons;\n\n (f) any other persons prescribed by the regulations.\n\nReport\n\n (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.\n\n (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.\n\n (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.","sortOrder":1543},{"sectionNumber":"653A","sectionType":"section","heading":"Arrangements with the Federal Court and the Federal Circuit and Family Court of Australia (Division 2)","content":"653A  Arrangements with the Federal Court and the Federal Circuit and Family Court of Australia (Division 2)\n\n  The General Manager may make a written arrangement with the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for the FWC to provide administrative support to the Fair Work Division of the Court.","sortOrder":1544},{"sectionNumber":"654","sectionType":"section","heading":"President must provide certain information etc. to the Minister and Fair Work Ombudsman","content":"654  President must provide certain information etc. to the Minister and Fair Work Ombudsman\n\n (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.\n\n (2) The regulations may prescribe:\n\n (a) information that is publicly available, or derived from information that is publicly available, relating to:\n\n (i) a decision of the FWC; or\n\n (ii) a notice, notification or application given or made to the FWC; and\n\n (b) a decision of the FWC that is publicly available.","sortOrder":1545},{"sectionNumber":"655","sectionType":"section","heading":"Disclosure of information by the FWC","content":"655  Disclosure of information by the FWC\n\nInformation to which this section applies\n\n (1) This section applies to the following information:\n\n (a) information acquired by the FWC, or a member of the staff of the FWC, in the course of performing functions or exercising powers as the FWC;\n\n (b) information acquired by a person in the course of assisting the FWC under section 672, or in the course of performing functions, or exercising powers, as a consultant under section 673.\n\nDisclosure that is necessary or appropriate, or likely to assist administration or enforcement\n\n (2) The President may disclose, or authorise the disclosure of, the information if the President reasonably believes:\n\n (a) that it is necessary or appropriate to do so in the course of performing functions, or exercising powers, of the FWC; or\n\n (b) that the disclosure is likely to assist in the administration or enforcement of a law of the Commonwealth, a State or a Territory.","sortOrder":1546},{"sectionNumber":"656","sectionType":"section","heading":"Establishment","content":"656  Establishment\n\n  There is to be a General Manager of the Fair Work Commission.","sortOrder":1549},{"sectionNumber":"657","sectionType":"section","heading":"Functions and powers of the General Manager","content":"657  Functions and powers of the General Manager\n\n (1) The General Manager is to assist the President in ensuring that the FWC performs its functions and exercises its powers.\n\n (1A) The General Manager also has the following functions:\n\n (a) any function conferred on him or her by a fair work instrument;\n\n (b) any function conferred on him or her by a law of the Commonwealth.\n\nNote 1: Sections 653 and 653A confer additional functions and powers on the General Manager.\n\nNote 2: Section 329A of the Registered Organisations Act confers additional functions on the General Manager.\n\n (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.","sortOrder":1550},{"sectionNumber":"658","sectionType":"section","heading":"Directions from the President","content":"658  Directions from the President\n\n  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:\n\n (a) compliance with the direction would be inconsistent with the General Manager’s performance of functions or exercise of powers under the Public Governance, Performance and Accountability Act 2013 in relation to the FWC; or\n\n (b) the direction relates to the General Manager’s performance of functions or exercise of powers under the Public Service Act 1999 in relation to the FWC; or\n\n (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; or\n\n (d) the direction relates to the General Manager’s performance of functions or exercise of powers under the Registered Organisations Act.","sortOrder":1551},{"sectionNumber":"659","sectionType":"section","heading":"General Manager not otherwise subject to direction","content":"659  General Manager not otherwise subject to direction\n\n  Except as provided by this or any other Act, the General Manager is not subject to direction by or on behalf of the Commonwealth.","sortOrder":1552},{"sectionNumber":"660","sectionType":"section","heading":"Appointment of the General Manager","content":"660  Appointment of the General Manager\n\n (1) The General Manager is to be appointed by the Governor‑General by written instrument on the nomination of the President.\n\n (2) The General Manager holds office on a full‑time basis.\n\n (3) The General Manager holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.\n\nNote: The General Manager is eligible for reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).","sortOrder":1554},{"sectionNumber":"661","sectionType":"section","heading":"Remuneration of the General Manager","content":"661  Remuneration of the General Manager\n\n (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.\n\n (2) The General Manager is to be paid the allowances that are prescribed by the regulations.\n\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.","sortOrder":1555},{"sectionNumber":"662","sectionType":"section","heading":"Leave of absence of the General Manager","content":"662  Leave of absence of the General Manager\n\n (1) The General Manager has the recreation leave entitlements that are determined by the Remuneration Tribunal.\n\n (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.","sortOrder":1556},{"sectionNumber":"663","sectionType":"section","heading":"Outside work of the General Manager","content":"663  Outside work of the General Manager\n\n  The General Manager must not engage in paid work outside the duties of his or her office without the President’s approval.","sortOrder":1557},{"sectionNumber":"664","sectionType":"section","heading":"Disclosure of interests to the President","content":"664  Disclosure of interests to the President\n\n (1) The General Manager must give written notice to the President of all material personal interests that the General Manager has or acquires that relate to the affairs of the FWC.\n\n (2) Section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) does not apply to the General Manager.","sortOrder":1558},{"sectionNumber":"665","sectionType":"section","heading":"Resignation of the General Manager","content":"665  Resignation of the General Manager\n\n (1) The General Manager may resign his or her appointment by giving the Governor‑General a written resignation.\n\n (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.","sortOrder":1559},{"sectionNumber":"666","sectionType":"section","heading":"Termination of appointment of the General Manager","content":"666  Termination of appointment of the General Manager\n\n (1) The Governor‑General may terminate the appointment of the General Manager:\n\n (a) for misbehaviour; or\n\n (b) if the General Manager is unable to perform the duties of his or her office because of physical or mental incapacity.\n\n (2) The Governor‑General must terminate the appointment of the General Manager if:\n\n (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\n\n (b) the General Manager is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or\n\n (c) the General Manager engages, except with the President’s approval, in paid work outside the duties of his or her office (see section 663); or\n\n (d) the General Manager fails, without reasonable excuse, to comply with section 664 (which deals with disclosure of interests to the President).","sortOrder":1560},{"sectionNumber":"667","sectionType":"section","heading":"Other terms and conditions of the General Manager","content":"667  Other terms and conditions of the General Manager\n\n  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.","sortOrder":1561},{"sectionNumber":"668","sectionType":"section","heading":"Appointment of acting General Manager","content":"668  Appointment of acting General Manager\n\n (1) The Minister may, by written instrument, appoint a person who is nominated by the President to act as the General Manager:\n\n (a) during a vacancy in the office of the General Manager (whether or not an appointment has previously been made to the office); or\n\n (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.\n\nNote: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.\n\n (2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:\n\n (a) the occasion for the appointment had not arisen; or\n\n (b) there was a defect or irregularity in connection with the appointment; or\n\n (c) the appointment had ceased to have effect; or\n\n (d) the occasion to act had not arisen or had ceased.","sortOrder":1562},{"sectionNumber":"669","sectionType":"section","heading":"Minister to consult the President","content":"669  Minister to consult the President\n\n  The Minister must consult the President before terms and conditions are determined under section 667.","sortOrder":1563},{"sectionNumber":"670","sectionType":"section","heading":"Staff","content":"670  Staff\n\n (1) The staff of the FWC must be persons engaged under the Public Service Act 1999.\n\n (2) For the purposes of the Public Service Act 1999:\n\n (a) the General Manager and the staff of the FWC together constitute a Statutory Agency; and\n\n (b) the General Manager is the Head of that Statutory Agency.","sortOrder":1565},{"sectionNumber":"671","sectionType":"section","heading":"Delegation by General Manager to staff","content":"671  Delegation by General Manager to staff\n\n (1) The General Manager may, in writing, delegate all or any of his or her functions or powers to:\n\n (a) a member of the staff of the FWC who is an SES employee or acting SES employee; or\n\n (b) a member of the staff of the FWC who is in a class of employees prescribed by the regulations.\n\n (2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the General Manager.\n\nNote: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.","sortOrder":1566},{"sectionNumber":"672","sectionType":"section","heading":"Persons assisting the FWC","content":"672  Persons assisting the FWC\n\n  The FWC may also be assisted:\n\n (a) by employees of Agencies (within the meaning of the Public Service Act 1999); or\n\n (b) by officers and employees of a State or Territory; or\n\n (c) by officers and employees of authorities of the Commonwealth, a State or a Territory;\n\nwhose services are made available to the FWC in connection with the performance of any of its functions.","sortOrder":1567},{"sectionNumber":"673","sectionType":"section","heading":"Consultants","content":"673  Consultants\n\n  The General Manager may engage persons having suitable qualifications and experience as consultants to the FWC.","sortOrder":1568},{"sectionNumber":"673A","sectionType":"section","heading":"Application of the finance law","content":"673A  Application of the finance law\n\n  For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):\n\n (a) the following group of persons is a listed entity:\n\n (i) the General Manager;\n\n (ii) the staff of the FWC referred to in section 670;\n\n (iii) persons whose services are made available to the FWC under section 672;\n\n (iv) consultants engaged under section 673; and\n\n (b) the listed entity is to be known as the Fair Work Commission; and\n\n (c) the General Manager is the accountable authority of the listed entity; and\n\n (d) the persons referred to in paragraph (a) are officials of the listed entity; and\n\n (e) the purposes of the listed entity include the functions of the General Manager referred to in section 657.","sortOrder":1570},{"sectionNumber":"674","sectionType":"section","heading":"Offences in relation to the FWC","content":"674  Offences in relation to the FWC\n\nInsulting or disturbing an FWC Member\n\n (1) A person commits an offence if:\n\n (a) the person engages in conduct; and\n\n (b) the person’s conduct insults or disturbs an FWC Member in the performance of functions, or the exercise of powers, as an FWC Member.\n\nPenalty: Imprisonment for 12 months.\n\nUsing insulting language\n\n (2) A person commits an offence if:\n\n (a) the person uses insulting language towards another person; and\n\n (b) the person is reckless as to whether the language is insulting; and\n\n (c) the other person is an FWC Member performing functions, or exercising powers, as an FWC Member.\n\nPenalty: Imprisonment for 12 months.\n\nInterrupting matters before the FWC\n\n (3) A person commits an offence if:\n\n (a) the person engages in conduct; and\n\n (b) the person’s conduct interrupts a matter before the FWC.\n\nPenalty: Imprisonment for 12 months.\n\nCreating or continuing a disturbance\n\n (4) A person commits an offence if:\n\n (a) the person engages in conduct; and\n\n (b) the person’s conduct creates, or contributes to creating or continuing, a disturbance; and\n\n (c) the disturbance is in or near a place where the FWC is dealing with a matter.\n\nPenalty: Imprisonment for 12 months.\n\nImproper influence of FWC Members etc.\n\n (5) A person commits an offence if:\n\n (a) the person uses words (whether by writing or speech) that are intended to improperly influence another person; and\n\n (b) the other person is an FWC Member or a person attending before the FWC.\n\nPenalty: Imprisonment for 12 months.\n\nDelegates of the FWC\n\n (6) A reference in subsections (1) to (5) to the FWC or an FWC Member includes a delegate of the FWC.\n\nAdversely affecting public confidence in the FWC\n\n (7) A person commits an offence if:\n\n (a) the person publishes a statement; and\n\n (b) the statement implies or states that an FWC Member (whether identified or not) has engaged in misconduct in relation to the performance of functions, or the exercise of powers, as an FWC Member; and\n\n (c) the FWC Member has not engaged in that misconduct; and\n\n (d) the publication is likely to have a significant adverse effect on public confidence that the FWC is properly performing its functions and exercising its powers.\n\nPenalty: 12 months imprisonment.\n\nNote 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.\n\nNote 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.","sortOrder":1572},{"sectionNumber":"675","sectionType":"section","heading":"Contravening an FWC order","content":"675  Contravening an FWC order\n\n (1) A person commits an offence if:\n\n (a) the FWC has made an order under this Act; and\n\n (b) either of the following applies:\n\n (i) the order applies to the person;\n\n (ii) a term of the order applies to the person; and\n\n (c) the person engages in conduct; and\n\n (d) the conduct contravenes:\n\n (i) a term of the order referred to in subparagraph (b)(i); or\n\n (ii) the term referred to in subparagraph (b)(ii).\n\n (2) However, subsection (1) does not apply to the following orders:\n\n (aa) an order under subsection 65C(1) (which deals with arbitration of disputes relating to requests for flexible working arrangements);\n\n (ab) an order under subsection 76C(1) (which deals with the extension of periods of unpaid parental leave);\n\n (ac) an order under subsection 66MA(1) (which deals with casual employment);\n\n (a) an order under Part 2‑3 (which deals with modern awards);\n\n (aaa) an order under subsection 177A(7) (certificate to be a bargaining representative);\n\n (b) a bargaining order;\n\n (c) a scope order;\n\n (d) an order under Part 2‑6 (which deals with minimum wages);\n\n (e) an equal remuneration order;\n\n (f) an order under Part 2‑8 (which deals with transfer of business);\n\n (fa) an order under Division 6 of Part 2‑9 (which deals with the employee right to disconnect);\n\n (g) an order under Division 6 of Part 3‑3 (which deals with the suspension or termination of protected industrial action);\n\n (h) a protected action ballot order, or an order in relation to a protected action ballot order or a protected action ballot;\n\n (i) an order under Part 3‑5 (which deals with stand down);\n\n (ia) an order under Part 3‑5A (which deals with sexual harassment in connection with work);\n\n (ib) an order under subsection 587A(1) (which deals with further applications after dismissal);\n\n (j) an order under Part 6‑4B (which deals with workers bullied at work);\n\n (k) an order under Part 6‑4C (which deals with the Coronavirus economic response);\n\n (l) a minimum standards order;\n\n (m) a road transport contractual chain order.\n\nPenalty: Imprisonment for 12 months.\n\n (3) Strict liability applies to paragraphs (1)(a) and (b).\n\nNote: For strict liability, see section 6.1 of the Criminal Code.","sortOrder":1573},{"sectionNumber":"676","sectionType":"section","heading":"Intimidation etc.","content":"676  Intimidation etc.\n\n  A person commits an offence if:\n\n (a) the person threatens, intimidates, coerces or prejudices another person; and\n\n (b) the person does so because the other person has given, or proposes to give, information or documents to the FWC.\n\nPenalty: Imprisonment for 12 months.\n\nNote: 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 the FWC (see section 343).","sortOrder":1574},{"sectionNumber":"677","sectionType":"section","heading":"Offences in relation to attending before the FWC","content":"677  Offences in relation to attending before the FWC\n\nRequired to attend\n\n (1) A person commits an offence if:\n\n (a) the person has been required to attend before the FWC; and\n\n (b) the person fails to attend as required.\n\nPenalty: Imprisonment for 6 months.\n\nOath or affirmation\n\n (2) A person commits an offence if:\n\n (a) the person attends before the FWC; and\n\n (b) the FWC requires the person to take an oath or make an affirmation; and\n\n (c) the person refuses or fails to be sworn or to make an affirmation as required.\n\nPenalty: Imprisonment for 6 months.\n\nQuestions or documents\n\n (3) A person commits an offence if:\n\n (a) the person attends before the FWC; and\n\n (b) the FWC requires the person to answer a question or produce a document; and\n\n (c) the person refuses or fails to answer the question or produce the document.\n\nPenalty: Imprisonment for 6 months.\n\nReasonable excuse\n\n (4) Subsection (1), (2) or (3) does not apply if the person has a reasonable excuse.\n\nNote: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).\n\n (5) A reference in this section to the FWC or an FWC Member includes a delegate of the FWC.","sortOrder":1575},{"sectionNumber":"678","sectionType":"section","heading":"False or misleading evidence","content":"678  False or misleading evidence\n\nGiving false or misleading evidence\n\n (1) A person (the witness) commits an offence if:\n\n (a) the witness gives sworn or affirmed evidence; and\n\n (b) the witness gives the evidence as a witness:\n\n (i) in a matter before the FWC; or\n\n (ii) before a person taking evidence on behalf of the FWC for use in a matter that the witness will start by application to the FWC; and\n\n (c) the evidence is false or misleading.\n\nPenalty: Imprisonment for 12 months.\n\nNote: 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).\n\nInducing or coercing another person to give false or misleading evidence\n\n (2) A person (the offender) commits an offence if:\n\n (a) another person (the witness) has been, or will be, required to appear as a witness in a matter before the FWC (whether the person is to appear before the FWC or a delegate of the FWC); and\n\n (b) the offender induces, threatens or intimidates the witness to give false or misleading evidence in the matter.\n\nPenalty: Imprisonment for 12 months.","sortOrder":1576},{"sectionNumber":"Part 5-2","sectionType":"part","heading":"Office of the Fair Work Ombudsman","content":"Part 5‑2—Office of the Fair Work Ombudsman","sortOrder":1577},{"sectionNumber":"679","sectionType":"section","heading":"Guide to this Part","content":"679  Guide to this Part\n\nThis Part is about the Office of the Fair Work Ombudsman.\n\nDivision 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.\n\nDivision 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.\n\nThe 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.","sortOrder":1579},{"sectionNumber":"680","sectionType":"section","heading":"Meanings of employee and employer","content":"680  Meanings of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":1580},{"sectionNumber":"681","sectionType":"section","heading":"Establishment","content":"681  Establishment\n\n  There is to be a Fair Work Ombudsman.","sortOrder":1583},{"sectionNumber":"682","sectionType":"section","heading":"Functions of the Fair Work Ombudsman","content":"682  Functions of the Fair Work Ombudsman\n\n (1) The Fair Work Ombudsman has the following functions:\n\n (a) to promote:\n\n (i) harmonious, productive and cooperative workplace relations; and\n\n (ii) compliance with this Act and fair work instruments;\n\n  including by providing education, assistance and advice to employees, employers, regulated workers, regulated businesses, persons in a road transport contractual chain, outworkers, outworker entities and organisations and producing best practice guides to workplace relations or workplace practices;\n\n (b) to monitor compliance with this Act and fair work instruments;\n\n (c) to inquire into, and investigate, any conduct or practice that may be contrary to this Act, a related offence provision, a fair work instrument or a safety net contractual entitlement;\n\n (d) to commence proceedings in a court, or to make applications to the FWC, to enforce this Act, fair work instruments and safety net contractual entitlements;\n\n (da) to publish a compliance and enforcement policy, including guidelines relating to the circumstances in which the Fair Work Ombudsman will, or will not:\n\n (i) accept or consider accepting undertakings under section 715; or\n\n (ii) enter or consider entering into cooperation agreements under section 717B;\n\n (e) to refer matters to relevant authorities;\n\n (f) to represent employees, regulated workers, or outworkers who are, or may become, a party to proceedings in a court, or a party to a matter before the FWC, under this Act or a fair work instrument, if the Fair Work Ombudsman considers that representing the employees, regulated workers, or outworkers will promote compliance with this Act or the fair work instrument;\n\n (g) any other functions conferred on the Fair Work Ombudsman by any Act.\n\nNote 1: The Fair Work Ombudsman also has the functions of an inspector (see section 701).\n\nNote 2: In performing functions under paragraph (a), the Fair Work Ombudsman might, for example, produce a best practice guide to achieving productivity through bargaining.\n\n (1A) In performing functions under paragraph (1)(a), the Fair Work Ombudsman must have regard to:\n\n (a) the need for guidelines and other materials to be available in multiple languages; and\n\n (b) the need for community outreach in multiple languages.\n\n (2) The Fair Work Ombudsman must consult with the FWC in producing guidance material that relates to the functions of the FWC.\n\n (3) Before publishing a compliance and enforcement policy under paragraph (1)(da), the Fair Work Ombudsman must consult with the National Workplace Relations Consultative Council about the guidelines referred to in that paragraph.\n\n (3) The Fair Work Ombudsman has the functions of:\n\n (a) providing education, assistance and advice to regulated workers, regulated businesses and organisations, and persons in a road transport contractual chain, in relation to minimum standards guidelines and road transport contractual chain guidelines; and\n\n (b) producing best practice guides in relation to minimum standards guidelines and road transport contractual chain guidelines.","sortOrder":1584},{"sectionNumber":"683","sectionType":"section","heading":"Delegation by the Fair Work Ombudsman","content":"683  Delegation by the Fair Work Ombudsman\n\n (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 (subject to subsections (1A) and (1B)).\n\n (1A) The Fair Work Ombudsman must not delegate his or her functions or powers as an inspector.\n\n (1B) The Fair Work Ombudsman may delegate to a member of the staff of the Office of the Fair Work Ombudsman who is an SES employee or an acting SES employee:\n\n (a) the power under subsection 712AA(1) to apply for the issue of an FWO notice; and\n\n (b) the power under subsection 712AD(1) to give an FWO notice; and\n\n (c) the power under subsections 712AD(3) and (4) to give notice of a later time.\n\nNote: SES employee and acting SES employee are defined in the Acts Interpretation Act 1901.\n\n (2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Fair Work Ombudsman.","sortOrder":1585},{"sectionNumber":"684","sectionType":"section","heading":"Directions from the Minister","content":"684  Directions from the Minister\n\n (1) The Minister may, by legislative instrument, give written directions to the Fair Work Ombudsman about the performance of his or her functions.\n\nNote: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the direction (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).\n\n (2) The direction must be of a general nature only.\n\n (3) The Fair Work Ombudsman must comply with the direction.\n\n (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.","sortOrder":1586},{"sectionNumber":"685","sectionType":"section","heading":"Minister may require reports","content":"685  Minister may require reports\n\n (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.\n\nNote: A report must not include information relating to an individual’s affairs (see section 714A).\n\n (2) The Fair Work Ombudsman must comply with the direction.\n\n (3) The direction, or the report (if made in writing), is not a legislative instrument.","sortOrder":1587},{"sectionNumber":"686","sectionType":"section","heading":"Annual report","content":"686  Annual report\n\n  To avoid doubt, the requirement on the Fair Work Ombudsman to give an annual report to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 does not require or authorise the disclosure of information for the purposes of the Privacy Act 1988.\n\nNote: An annual report must not include information relating to an individual’s affairs (see section 714A).","sortOrder":1588},{"sectionNumber":"687","sectionType":"section","heading":"Appointment of the Fair Work Ombudsman","content":"687  Appointment of the Fair Work Ombudsman\n\n (1) The Fair Work Ombudsman is to be appointed by the Governor‑General by written instrument.\n\n (2) Before the Governor‑General appoints a person as the Fair Work Ombudsman, the Minister must be satisfied that the person:\n\n (a) has suitable qualifications or experience; and\n\n (b) is of good character.\n\n (3) The Fair Work Ombudsman holds office on a full‑time basis.\n\n (4) The Fair Work Ombudsman holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.\n\nNote: The Fair Work Ombudsman is eligible for reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).","sortOrder":1590},{"sectionNumber":"688","sectionType":"section","heading":"Remuneration of the Fair Work Ombudsman","content":"688  Remuneration of the Fair Work Ombudsman\n\n (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.\n\n (2) The Fair Work Ombudsman is to be paid the allowances that are prescribed by the regulations.\n\n (3) This section has effect subject to the Remuneration Tribunal Act 1973.","sortOrder":1591},{"sectionNumber":"689","sectionType":"section","heading":"Leave of absence of the Fair Work Ombudsman","content":"689  Leave of absence of the Fair Work Ombudsman\n\n (1) The Fair Work Ombudsman has the recreation leave entitlements that are determined by the Remuneration Tribunal.\n\n (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.","sortOrder":1592},{"sectionNumber":"690","sectionType":"section","heading":"Outside work of the Fair Work Ombudsman","content":"690  Outside work of the Fair Work Ombudsman\n\n  The Fair Work Ombudsman must not engage in paid work outside the duties of his or her office without the Minister’s approval.","sortOrder":1593},{"sectionNumber":"692","sectionType":"section","heading":"Resignation of the Fair Work Ombudsman","content":"692  Resignation of the Fair Work Ombudsman\n\n (1) The Fair Work Ombudsman may resign his or her appointment by giving the Governor‑General a written resignation.\n\n (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.","sortOrder":1594},{"sectionNumber":"693","sectionType":"section","heading":"Termination of appointment of the Fair Work Ombudsman","content":"693  Termination of appointment of the Fair Work Ombudsman\n\n (1) The Governor‑General may terminate the appointment of the Fair Work Ombudsman:\n\n (a) for misbehaviour; or\n\n (b) if the Fair Work Ombudsman is unable to perform the duties of his or her office because of physical or mental incapacity.\n\n (2) The Governor‑General must terminate the appointment of the Fair Work Ombudsman if:\n\n (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\n\n (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\n\n (c) the Fair Work Ombudsman engages, except with the Minister’s approval, in paid work outside the duties of his or her office (see section 690); or\n\n (d) the Fair Work Ombudsman fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.","sortOrder":1595},{"sectionNumber":"694","sectionType":"section","heading":"Other terms and conditions of the Fair Work Ombudsman","content":"694  Other terms and conditions of the Fair Work Ombudsman\n\n  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.","sortOrder":1596},{"sectionNumber":"695","sectionType":"section","heading":"Appointment of acting Fair Work Ombudsman","content":"695  Appointment of acting Fair Work Ombudsman\n\n (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:\n\n (a) during a vacancy in the office of Fair Work Ombudsman (whether or not an appointment has previously been made to the office); or\n\n (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.\n\nNote: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.\n\n (2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:\n\n (a) the occasion for the appointment had not arisen; or\n\n (b) there was a defect or irregularity in connection with the appointment; or\n\n (c) the appointment had ceased to have effect; or\n\n (d) the occasion to act had not arisen or had ceased.","sortOrder":1597},{"sectionNumber":"696","sectionType":"section","heading":"Establishment of the Office of the Fair Work Ombudsman","content":"696  Establishment of the Office of the Fair Work Ombudsman\n\n (1) The Office of the Fair Work Ombudsman is established by this section.\n\n (2) The Office of the Fair Work Ombudsman consists of:\n\n (a) the Fair Work Ombudsman; and\n\n (b) the staff of the Office of the Fair Work Ombudsman; and\n\n (c) the inspectors appointed under section 700.\n\n (3) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):\n\n (a) the Office of the Fair Work Ombudsman is a listed entity; and\n\n (b) the Fair Work Ombudsman is the accountable authority of the Office of the Fair Work Ombudsman; and\n\n (c) the following persons are officials of the Office of the Fair Work Ombudsman:\n\n (i) the Fair Work Ombudsman;\n\n (ii) the staff of the Office of the Fair Work Ombudsman;\n\n (iii) the inspectors appointed under section 700;\n\n (iv) persons whose services are made available to the Fair Work Ombudsman under section 698;\n\n (v) consultants engaged under section 699; and\n\n (d) the purposes of the Office of the Fair Work Ombudsman include:\n\n (i) the functions of the Fair Work Ombudsman referred to in section 682; and\n\n (ii) the functions of inspectors under Subdivision D.","sortOrder":1600},{"sectionNumber":"697","sectionType":"section","heading":"Staff","content":"697  Staff\n\n (1) The staff of the Office of the Fair Work Ombudsman must be persons engaged under the Public Service Act 1999.\n\n (2) For the purposes of the Public Service Act 1999:\n\n (a) the Fair Work Ombudsman and the staff of the Office of the Fair Work Ombudsman together constitute a Statutory Agency; and\n\n (b) the Fair Work Ombudsman is the Head of that Statutory Agency.","sortOrder":1602},{"sectionNumber":"698","sectionType":"section","heading":"Persons assisting the Fair Work Ombudsman","content":"698  Persons assisting the Fair Work Ombudsman\n\n  The Fair Work Ombudsman may also be assisted:\n\n (a) by employees of Agencies (within the meaning of the Public Service Act 1999); or\n\n (b) by officers and employees of a State or Territory; or\n\n (c) by officers and employees of authorities of the Commonwealth, a State or a Territory;\n\nwhose services are made available to the Fair Work Ombudsman in connection with the performance of any of his or her functions.\n\nNote: For example, State or Territory employees could be made available to assist the Fair Work Ombudsman in providing education in a particular region.","sortOrder":1603},{"sectionNumber":"699","sectionType":"section","heading":"Consultants","content":"699  Consultants\n\n  The Fair Work Ombudsman may engage persons having suitable qualifications and experience as consultants to the Office of the Fair Work Ombudsman.","sortOrder":1604},{"sectionNumber":"700","sectionType":"section","heading":"Appointment of Fair Work Inspectors","content":"700  Appointment of Fair Work Inspectors\n\n (1) The Fair Work Ombudsman may, in writing, appoint as a Fair Work Inspector:\n\n (a) a person who has been appointed, or who is employed, by the Commonwealth; or\n\n (b) a person who is employed by a State or Territory.\n\n (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.\n\n (3) A Fair Work Inspector is appointed for the period specified in the instrument of appointment. The period must not exceed 4 years.\n\nNote: A Fair Work Inspector is eligible for reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).","sortOrder":1606},{"sectionNumber":"701","sectionType":"section","heading":"Fair Work Ombudsman is a Fair Work Inspector","content":"701  Fair Work Ombudsman is a Fair Work Inspector\n\n  The Fair Work Ombudsman is a Fair Work Inspector by force of this section.","sortOrder":1607},{"sectionNumber":"702","sectionType":"section","heading":"Identity cards","content":"702  Identity cards\n\n (1) The Fair Work Ombudsman must issue an identity card to an inspector appointed under section 700.\n\n (2) The Minister must issue an identity card to the Fair Work Ombudsman.\n\nForm of identity card\n\n (3) The identity card must:\n\n (a) be in the form approved by the Fair Work Ombudsman; and\n\n (b) contain a recent photograph of the inspector.\n\nInspector must carry card\n\n (4) An inspector must carry the identity card at all times when performing functions or exercising powers as an inspector.\n\nOffence\n\n (5) A person commits an offence if:\n\n (a) the person ceases to be an inspector; and\n\n (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).\n\nPenalty: 1 penalty unit.\n\n (6) Subsection (5) is an offence of strict liability.\n\nNote: For strict liability, see section 6.1 of the Criminal Code.\n\nDefence—card lost or destroyed\n\n (7) Subsection (5) does not apply if the identity card was lost or destroyed.\n\nNote: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).","sortOrder":1608},{"sectionNumber":"703","sectionType":"section","heading":"Conditions and restrictions on functions and powers","content":"703  Conditions and restrictions on functions and powers\n\n (1) 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.\n\n (2) To avoid doubt, the power to apply for the issue of an FWO notice under section 712AA and the power to give an FWO notice under section 712AD are not compliance powers.","sortOrder":1610},{"sectionNumber":"704","sectionType":"section","heading":"General directions by the Fair Work Ombudsman","content":"704  General directions by the Fair Work Ombudsman\n\n (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.\n\n (2) The direction must be of a general nature only, and cannot relate to a particular case.\n\n (3) An inspector must comply with the direction.","sortOrder":1611},{"sectionNumber":"705","sectionType":"section","heading":"Particular directions by the Fair Work Ombudsman","content":"705  Particular directions by the Fair Work Ombudsman\n\n (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.\n\n (2) The inspector must comply with the direction.\n\n (3) If a direction is in writing, the direction is not a legislative instrument.","sortOrder":1612},{"sectionNumber":"706","sectionType":"section","heading":"Purpose for which powers of inspectors may be exercised","content":"706  Purpose for which powers of inspectors may be exercised\n\n (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):\n\n (a) determining whether this Act, a related offence provision or a fair work instrument is being, or has been, complied with;\n\n (b) subject to subsection (2), determining whether a safety net contractual entitlement is being, or has been, contravened by a person;\n\n (c) the purposes of a provision of the regulations that confers functions or powers on inspectors;\n\n (d) the purposes of a provision of another Act that confers functions or powers on inspectors.\n\nNote: 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.\n\n (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:\n\n (a) a provision of the National Employment Standards;\n\n (b) a term of a modern award;\n\n (c) a term of an enterprise agreement;\n\n (d) a term of a workplace determination;\n\n (e) a term of a national minimum wage order;\n\n (f) a term of an equal remuneration order.","sortOrder":1613},{"sectionNumber":"707","sectionType":"section","heading":"When powers of inspectors may be exercised","content":"707  When powers of inspectors may be exercised\n\n  An inspector may exercise compliance powers:\n\n (a) at any time during working hours; or\n\n (b) at any other time, if the inspector reasonably believes that it is necessary to do so for compliance purposes.","sortOrder":1614},{"sectionNumber":"707A","sectionType":"section","heading":"Hindering or obstructing the Fair Work Ombudsman and inspectors etc.","content":"707A  Hindering or obstructing the Fair Work Ombudsman and inspectors etc.\n\n (1) A person must not intentionally hinder or obstruct:\n\n (a) the Fair Work Ombudsman or an inspector in the performance of his or her functions or the exercise of his or her powers as the Fair Work Ombudsman or an inspector; or\n\n (b) an assistant referred to in section 710 assisting an inspector on premises; or\n\n (c) a member of the staff of the Office of the Fair Work Ombudsman in the performance of his or her functions or the exercise of his or her powers in relation to an FWO notice.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) Subsection (1) does not apply if:\n\n (a) the person has a reasonable excuse; or\n\n (b) if the Fair Work Ombudsman or inspector referred to in paragraph (1)(a) or (b) (as the case requires) was required to show his or her identity card to the person under subsection 708(3) or paragraph 711(3)(b)—the Fair Work Ombudsman or inspector:\n\n (i) failed to do so; or\n\n (ii) failed to tell the person of the effect of this section.\n\n (3) A reference in subsection (1) to the Fair Work Ombudsman includes a reference to a delegate of the Fair Work Ombudsman.","sortOrder":1615},{"sectionNumber":"Subdivision DA","sectionType":"subdivision","heading":"Power to enter premises","content":"Subdivision DA—Power to enter premises","sortOrder":1616},{"sectionNumber":"708","sectionType":"section","heading":"Power of inspectors to enter premises","content":"708  Power of inspectors to enter premises\n\n (1) An inspector may, without force:\n\n (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\n\n (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.\n\n (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.\n\n (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.","sortOrder":1617},{"sectionNumber":"709","sectionType":"section","heading":"Powers of inspectors while on premises","content":"709  Powers of inspectors while on premises\n\n  The inspector may exercise one or more of the following powers while on the premises:\n\n (a) inspect any work, process or object;\n\n (b) interview any person;\n\n (c) require a person to tell the inspector who has custody of, or access to, a record or document;\n\n (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;\n\n (e) inspect, and make copies of, any record or document that:\n\n (i) is kept on the premises; or\n\n (ii) is accessible from a computer that is kept on the premises;\n\n (f) take samples of any goods or substances in accordance with any procedures prescribed by the regulations.\n\nNote: See also sections 713, 713A and 714 (which deal with self‑incrimination and produced documents etc.).","sortOrder":1618},{"sectionNumber":"710","sectionType":"section","heading":"Persons assisting inspectors","content":"710  Persons assisting inspectors\n\n (1) A person (the assistant) may accompany the inspector onto the premises to assist the inspector if the Fair Work Ombudsman is satisfied that:\n\n (a) the assistance is necessary and reasonable; and\n\n (b) the assistant has suitable qualifications and experience to properly assist the inspector.\n\n (2) The assistant:\n\n (a) may do such things on the premises as the inspector requires to assist the inspector to exercise compliance powers; but\n\n (b) must not do anything that the inspector does not have power to do.\n\n (3) Anything done by the assistant is taken for all purposes to have been done by the inspector.","sortOrder":1619},{"sectionNumber":"Subdivision DB","sectionType":"subdivision","heading":"Powers to ask questions and require records and documents","content":"Subdivision DB—Powers to ask questions and require records and documents","sortOrder":1620},{"sectionNumber":"711","sectionType":"section","heading":"Power to ask for person’s name and address","content":"711  Power to ask for person’s name and address\n\n (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 this Act.\n\n (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.\n\n (3) A person must comply with a requirement under subsection (1) or (2) if:\n\n (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\n\n (b) the inspector shows his or her identity card to the person.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (4) Subsection (3) does not apply if the person has a reasonable excuse.","sortOrder":1621},{"sectionNumber":"712","sectionType":"section","heading":"Power to require persons to produce records or documents","content":"712  Power to require persons to produce records or documents\n\n (1) An inspector may require a person, by notice, to produce a record or document to the inspector.\n\n (2) The notice must:\n\n (a) be in writing; and\n\n (b) be served on the person; and\n\n (c) require the person to produce the record or document at a specified place within a specified period of at least 14 days.\n\nThe notice may be served by sending the notice to the person’s fax number.\n\n (3) A person who is served with a notice to produce must not fail to comply with the notice.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (4) Subsection (3) does not apply if the person has a reasonable excuse.","sortOrder":1622},{"sectionNumber":"712A","sectionType":"section","heading":"Minister may nominate ART President or Deputy President to issue FWO notices","content":"712A  Minister may nominate ART President or Deputy President to issue FWO notices\n\n (1) The Minister may, by writing, nominate an ART President or Deputy President to issue written notices (FWO notices) under section 712AB.\n\n (2) The Minister may nominate an ART President or Deputy President who is a Judge to issue FWO notices under section 712AB only if the Judge has consented, by writing, to the nomination.\n\n (3) A nomination ceases to have effect if:\n\n (a) the nominated ART President or Deputy President ceases to be an ART President or Deputy President; or\n\n (b) the Minister, by writing, withdraws the nomination.\n\n (4) A nominated ART President or Deputy President has, in performing a function of or connected with issuing an FWO notice under this Subdivision, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.","sortOrder":1623},{"sectionNumber":"712AA","sectionType":"section","heading":"Fair Work Ombudsman may apply to nominated ART President or Deputy President for FWO notice","content":"712AA  Fair Work Ombudsman may apply to nominated ART President or Deputy President for FWO notice\n\nGeneral requirements\n\n (1) The Fair Work Ombudsman may apply, in writing, to a nominated ART President or Deputy President for the issue of an FWO notice referred to in subsection (2) if the Fair Work Ombudsman believes on reasonable grounds that a person:\n\n (a) has information or documents relevant to an investigation by an inspector into a suspected contravention of a provision of this Act, a related offence provision, a fair work instrument or a safety net contractual entitlement that relates, directly or indirectly, to:\n\n (i) the underpayment of wages, or other monetary entitlements, of employees; or\n\n (ii) the unreasonable deduction of amounts from amounts owed to employees; or\n\n (iii) the placing of unreasonable requirements on employees to spend or pay amounts paid, or payable, to employees; or\n\n (iv) the unfair dismissal of an employee; or\n\n (v) the bullying of a worker at work; or\n\n (va) the sexual harassment of a person who is a worker in a business or undertaking, seeking to become a worker in a particular business or undertaking, or conducting a business or undertaking; or\n\n (vi) the unlawful discrimination of a person in relation to employment; or\n\n (vii) a contravention of a provision of the National Employment Standards; or\n\n (viia) the underpayment of monetary entitlements under a minimum standards order or a road transport contractual chain order; or\n\n (viib) the unfair deactivation of an employee‑like worker or the unfair termination of a regulated road transport contractor; or\n\n (viii) the coercion of an employee by an employer; and\n\n (b) is capable of giving evidence that is relevant to such an investigation.\n\n (2) The FWO notice may require the person:\n\n (a) to give information to the Fair Work Ombudsman, or a specified member of the staff of the Office of the Fair Work Ombudsman; or\n\n (b) to produce documents to the Fair Work Ombudsman, or a specified member of the staff of the Office of the Fair Work Ombudsman; or\n\n (c) to attend before the Fair Work Ombudsman, or a specified member of the staff of the Office of the Fair Work Ombudsman who is an SES employee or an acting SES employee, and answer questions relevant to the investigation.\n\nForm and content of application\n\n (3) An application for an FWO notice must:\n\n (a) if a form is prescribed by the regulations—be in that form; and\n\n (b) include any information prescribed by the regulations.\n\n (4) An application for an FWO notice must not relate to more than one person, but may relate to more than one investigation.\n\nApplication must be accompanied by affidavit\n\n (5) An application for an FWO notice must be accompanied by an affidavit by the Fair Work Ombudsman including the following:\n\n (a) the name of the person to whom the application relates;\n\n (b) details of the investigation (or investigations) to which the application relates;\n\n (c) the grounds on which the Fair Work Ombudsman believes the person has information or documents, or is capable of giving evidence, relevant to the investigation (or investigations) referred to in paragraph (b);\n\n (d) details of other methods used to attempt to obtain the information, documents or evidence;\n\n (e) the number (if any) of previous applications for an FWO notice that the Fair Work Ombudsman has made in relation to the person in respect of the investigation (or investigations) referred to in paragraph (b);\n\n (f) information about whether the Fair Work Ombudsman has made, or expects to make, any other applications for an FWO notice in relation to the investigation (or investigations) referred to in paragraph (b) and, if so, the persons to whom those applications relate.\n\nFurther information\n\n (6) A nominated ART President or Deputy President to whom an application for an FWO notice is made may request the Fair Work Ombudsman to give the ART President or Deputy President further information in relation to the application.\n\n (7) If a request for further information is made under subsection (6), the Fair Work Ombudsman must give the further information in writing as soon as practicable after receiving the request.","sortOrder":1624},{"sectionNumber":"712AB","sectionType":"section","heading":"Issue of FWO notice","content":"712AB  Issue of FWO notice\n\n (1) A nominated ART President or Deputy President to whom an application for an FWO notice has been made must issue the FWO notice if the ART President or Deputy President is satisfied of the following:\n\n (a) that an inspector has commenced the investigation (or investigations) to which the application relates;\n\n (b) that there are reasonable grounds to believe that the person to whom the application relates has information or documents, or is capable of giving evidence, relevant to the investigation (or investigations);\n\n (c) that any other method of obtaining the information, documents or evidence:\n\n (i) has been attempted and has been unsuccessful; or\n\n (ii) is not appropriate;\n\n (d) that the information, documents or evidence would be likely to be of assistance in the investigation (or investigations);\n\n (e) that, having regard to all the circumstances, it would be appropriate to issue the FWO notice;\n\n (f) any other matter prescribed by the regulations.\n\n (2) A nominated ART President or Deputy President must not issue an FWO notice except in the circumstances referred to in subsection (1).\n\n (3) An FWO notice must not be issued in relation to more than one person, but may be issued in relation to more than one investigation.\n\n (4) If:\n\n (a) an application for an FWO notice is made in relation to more than one investigation; and\n\n (b) the nominated ART President or Deputy President to whom the application is made is not satisfied of the matters referred to in subsection (1) in relation to each of those investigations;\n\nthe nominated ART President or Deputy President must issue the FWO notice in relation to the investigation (or investigations) in relation to which the nominated ART President or Deputy President is satisfied of the matters referred to in subsection (1).","sortOrder":1625},{"sectionNumber":"712AC","sectionType":"section","heading":"Form and content of FWO notice","content":"712AC  Form and content of FWO notice\n\n  An FWO notice must:\n\n (a) if a form is prescribed by the regulations—be in that form; and\n\n (b) if the notice requires a person to give information under paragraph 712AA(2)(a)—specify the time by which, and the manner and form in which, the information is to be given; and\n\n (c) if the notice requires a person to produce documents under paragraph 712AA(2)(b)—specify the time by which, and the manner in which, the documents are to be produced; and\n\n (d) if the notice requires a person to attend to answer questions relevant to an investigation—specify the time and place for the attendance; and\n\n (e) be signed by the nominated ART President or Deputy President who issued it; and\n\n (f) include any other information prescribed by the regulations.","sortOrder":1626},{"sectionNumber":"712AD","sectionType":"section","heading":"Fair Work Ombudsman may give FWO notice to person in relation to whom it is issued and vary time for compliance","content":"712AD  Fair Work Ombudsman may give FWO notice to person in relation to whom it is issued and vary time for compliance\n\nFair Work Ombudsman may give FWO notice to person in relation to whom it is issued\n\n (1) If a nominated ART President or Deputy President issues an FWO notice, the Fair Work Ombudsman may give the notice to the person in relation to whom it is issued.\n\n (2) If an FWO notice is not given to the person in relation to whom it is issued within 3 months after the day on which it was issued, the notice ceases to have effect at the end of that period.\n\nVariation of time for compliance with FWO notice\n\n (3) If:\n\n (a) the Fair Work Ombudsman gives an FWO notice to a person under subsection (1); and\n\n (b) the time specified in the notice under paragraph 712AC(b), (c) or (d) is not at least 14 days after the notice is given to the person;\n\nthe Fair Work Ombudsman must, at the same time as the FWO notice is given to the person, also give notice to the person of a time later than the time specified in the notice.\n\n (4) The Fair Work Ombudsman may, at any time after giving an FWO notice to the person in relation to whom it is issued, give notice to the person of a time later than the time:\n\n (a) specified in the notice under paragraph 712AC(b), (c) or (d); or\n\n (b) notified under subsection (3).\n\n (5) A later time notified under subsection (3) or (4) must be at least 14 days after the FWO notice is given to the person.\n\n (6) If the person is notified of a later time under subsection (3) or (4), the FWO notice has effect as if the later time (or the latest of those times) were the time specified in the FWO notice.","sortOrder":1627},{"sectionNumber":"712AE","sectionType":"section","heading":"Conduct of examination","content":"712AE  Conduct of examination\n\nLegal representation\n\n (1) A person attending before the Fair Work Ombudsman, or a member of the staff mentioned in paragraph 712AA(2)(c), may be represented by a lawyer if the person chooses.\n\nOath or affirmation\n\n (2) The Fair Work Ombudsman, or a member of the staff mentioned in paragraph 712AA(2)(c), may require the information or answers to be verified by, or given on, oath or affirmation, and either orally or in writing. For that purpose, the Fair Work Ombudsman, or any member of the staff of the Office of the Fair Work Ombudsman, may administer the oath or affirmation.\n\n (3) The oath or affirmation is an oath or affirmation that the information or answers are or will be true.","sortOrder":1628},{"sectionNumber":"712B","sectionType":"section","heading":"Requirement to comply with FWO notice","content":"712B  Requirement to comply with FWO notice\n\n (1) A person who has been given an FWO notice must do the following (as applicable):\n\n (a) give information or produce a document in accordance with the notice;\n\n (b) attend to answer questions in accordance with the notice;\n\n (c) take an oath or make an affirmation when required to do so under subsection 712AE(2);\n\n (d) answer questions relevant to the investigation while attending as required by the FWO notice.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) Subsection (1) does not apply to the extent that the person is not capable of complying with the requirement.","sortOrder":1629},{"sectionNumber":"712C","sectionType":"section","heading":"Payment for expenses incurred in attending as required by an FWO notice","content":"712C  Payment for expenses incurred in attending as required by an FWO notice\n\n (1) A person who attends as required by an FWO notice is (subject to subsection (2)) entitled to be paid fees and allowances, fixed by or calculated in accordance with the regulations, for reasonable expenses (including legal expenses) incurred by the person in so attending.\n\n (2) The person is not entitled to be paid for expenses under this section unless the person:\n\n (a) applies, in writing, to the Fair Work Ombudsman for payment of the expenses within 3 months after the attendance; and\n\n (b) provides to the Fair Work Ombudsman sufficient evidence to establish that the person incurred the expenses.\n\n (3) An application under paragraph (2)(a) must:\n\n (a) if a form is prescribed by the regulations—be in that form; and\n\n (b) include any information prescribed by the regulations.","sortOrder":1630},{"sectionNumber":"712D","sectionType":"section","heading":"Protection from liability relating to FWO notices","content":"712D  Protection from liability relating to FWO notices\n\n  A person who, in good faith, gives information, produces a record or document, or answers a question, when required to do so under an FWO notice is not liable to:\n\n (a) any proceedings for contravening any other law because of that conduct; or\n\n (b) civil proceedings for loss, damage or injury of any kind suffered by another person because of that conduct.","sortOrder":1631},{"sectionNumber":"712E","sectionType":"section","heading":"Fair Work Ombudsman must notify Commonwealth Ombudsman of issue of FWO notice","content":"712E  Fair Work Ombudsman must notify Commonwealth Ombudsman of issue of FWO notice\n\n (1) As soon as practicable after an FWO notice has been issued, the Fair Work Ombudsman must:\n\n (a) notify the Commonwealth Ombudsman that the FWO notice has been issued; and\n\n (b) give the Commonwealth Ombudsman a copy of:\n\n (i) the FWO notice; and\n\n (ii) the affidavit that accompanied the application for the FWO notice; and\n\n (iii) any other information in relation to the FWO notice that was given to the nominated ART President or Deputy President who issued the notice.\n\n (2) If notice under subsection 712AD(3) or (4) is given to a person, the Fair Work Ombudsman must notify the Commonwealth Ombudsman as soon as practicable after giving notice.","sortOrder":1632},{"sectionNumber":"712F","sectionType":"section","heading":"Review and report by Commonwealth Ombudsman","content":"712F  Review and report by Commonwealth Ombudsman\n\nFair Work Ombudsman to give report etc. to Commonwealth Ombudsman\n\n (1) As soon as practicable after an examination of a person under paragraph 712AA(2)(c) is completed, the Fair Work Ombudsman must give the Commonwealth Ombudsman:\n\n (a) a report about the examination; and\n\n (b) a video recording of the examination; and\n\n (c) a transcript of the examination.\n\n (2) The report under paragraph (1)(a) must include:\n\n (a) a copy of the FWO notice under which the examination was conducted; and\n\n (b) the following information:\n\n (i) the time and place at which the examination was conducted;\n\n (ii) the name of each person who was present at the examination;\n\n (iii) any other information prescribed by the rules.\n\nReview of exercise of powers under this Subdivision\n\n (3) The Commonwealth Ombudsman:\n\n (a) must review the exercise of powers under this Subdivision by the Fair Work Ombudsman and any member of the staff of the Office of the Fair Work Ombudsman; and\n\n (b) may do anything incidental or conducive to the performance of that function.\n\n (4) The Commonwealth Ombudsman’s powers under the Ombudsman Act 1976 extend to a review by the Ombudsman under this section as if the review were an investigation by the Ombudsman under that Act.\n\n (5) The exercise of those powers in relation to a review by the Ombudsman under this section is taken, for all purposes, to be an exercise of powers under the Ombudsman Act 1976.\n\nCommonwealth Ombudsman to report to Parliament\n\n (6) As soon as practicable after the end of each quarter of each financial year, the Commonwealth Ombudsman must prepare and present to the Parliament a report about examinations conducted during that quarter. The report must include the results of reviews conducted under this section during that quarter.\n\n (7) The Commonwealth Ombudsman may prepare and present to the Parliament any other reports about the results of reviews conducted under this section the Commonwealth Ombudsman considers appropriate.","sortOrder":1633},{"sectionNumber":"Subdivision DC","sectionType":"subdivision","heading":"Other rules relating to answers, records and documents","content":"Subdivision DC—Other rules relating to answers, records and documents","sortOrder":1634},{"sectionNumber":"713","sectionType":"section","heading":"Self-incrimination etc.","content":"713  Self‑incrimination etc.\n\nExcuses that are not available\n\n (1) A person is not excused from giving information, producing a record or document, or answering a question, under paragraph 709(d) or subsection 712(1), or under an FWO notice, on the ground that to do so might tend to incriminate the person or otherwise expose the person to a penalty or other liability.\n\nUse/derivative use indemnity in relation to requirement under paragraph 709(d) or subsection 712(1)\n\n (2) In the case of an individual who produces a record or document, under paragraph 709(d) or subsection 712(1), none of the following:\n\n (a) the record or document produced;\n\n (b) producing the record or document;\n\n (c) any information, document or thing obtained as a direct or indirect consequence of producing the record or document;\n\nis admissible in evidence against the individual in criminal proceedings, other than:\n\n (d) proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act (false or misleading information or documents); and\n\n (e) proceedings for an offence against section 149.1 of the Criminal Code that relates to this Act (obstruction of Commonwealth officials).\n\nUse indemnity in relation to FWO notices\n\n (3) In the case of an individual who gives information, produces a record or document, or answers a question, under an FWO notice, any information or answer given, or record or document produced, is not admissible in evidence against the individual in proceedings, other than:\n\n (a) proceedings for a contravention of section 712B or 718A (requirement to comply with FWO notice and false or misleading information or documents); and\n\n (b) proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act (false or misleading information or documents); and\n\n (c) proceedings for an offence against section 149.1 of the Criminal Code that relates to this Act (obstruction of Commonwealth officials).\n\nEmployee records and pay slips\n\n (4) Subsections (2) and (3) do not apply to:\n\n (a) an employee record in relation to an employee that is made under section 535; or\n\n (b) a copy of a pay slip created in relation to an employee.","sortOrder":1635},{"sectionNumber":"713A","sectionType":"section","heading":"Certain records and documents are inadmissible","content":"713A  Certain records and documents are inadmissible\n\n (1) The following are not admissible in evidence in criminal proceedings against an individual:\n\n (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;\n\n (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).\n\n (2) Subsection (1) does not apply to:\n\n (a) an employee record in relation to an employee that is made under section 535; or\n\n (b) a copy of a pay slip created in relation to an employee.","sortOrder":1636},{"sectionNumber":"713AA","sectionType":"section","heading":"Legal professional privilege","content":"713AA  Legal professional privilege\n\n  Nothing in this Part requires a person to produce a document that would disclose information that is the subject of legal professional privilege.","sortOrder":1637},{"sectionNumber":"714","sectionType":"section","heading":"Power to keep records or documents","content":"714  Power to keep records or documents\n\n (1) If a record or document is produced to the Fair Work Ombudsman, an inspector or any other person in accordance with this Subdivision, he or she may:\n\n (a) inspect, and make copies of, the record or document; and\n\n (b) keep the record or document for such period as is necessary.\n\n (2) While the Fair Work Ombudsman, an inspector or any other person keeps a record or document, he or she must allow the following persons to inspect, or make copies of, the record or document at all reasonable times:\n\n (a) the person who produced the record or document;\n\n (b) any person otherwise entitled to possession of the record or document;\n\n (c) a person authorised by the person referred to in paragraph (b).","sortOrder":1638},{"sectionNumber":"714A","sectionType":"section","heading":"Reports not to include information relating to an individual’s affairs","content":"714A  Reports not to include information relating to an individual’s affairs\n\n (1) Information relating to the affairs of an individual must not be included in a report under section 685 (which allows the Minister to require reports) or in a report referred to in section 686 (which deals with annual reports) if:\n\n (a) the individual is named, or otherwise specifically identified, in the report as the individual to whom the information relates; or\n\n (b) it is reasonably likely that people generally (other than people to whom the individual has disclosed information relating to the individual’s affairs) would be able to work out the identity of the individual to whom the information relates.\n\n (2) For the purposes of applying paragraph (1)(b) to information relating to a particular individual’s affairs, the context in which the information appears, and information that is otherwise publicly available, must be taken into account (as well as any other relevant matter).","sortOrder":1639},{"sectionNumber":"Subdivision DD","sectionType":"subdivision","heading":"Enforceable undertakings and compliance notices","content":"Subdivision DD—Enforceable undertakings and compliance notices","sortOrder":1640},{"sectionNumber":"715","sectionType":"section","heading":"Enforceable undertakings relating to contraventions of civil remedy provisions","content":"715  Enforceable undertakings relating to contraventions of civil remedy provisions\n\nApplication of this section\n\n (1) This section applies if the Fair Work Ombudsman reasonably believes that a person has contravened a civil remedy provision.\n\nAccepting an undertaking\n\n (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).\n\nWithdrawing or varying an undertaking\n\n (3) The person may withdraw or vary the undertaking at any time, but only with the Fair Work Ombudsman’s consent.\n\nRelationship with orders in relation to contraventions of civil remedy provisions\n\n (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.\n\nNote: A person other than an inspector who is otherwise entitled to apply for an order in relation to the contravention may do so.\n\nRelationship with compliance notices\n\n (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.\n\nEnforcement of undertakings\n\n (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 Circuit and Family Court of Australia (Division 2) or an eligible State or Territory Court for an order under subsection (7).\n\n (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:\n\n (a) an order directing the person to comply with the term of the undertaking;\n\n (b) an order awarding compensation for loss that a person has suffered because of the contravention;\n\n (c) any other order that the court considers appropriate.","sortOrder":1641},{"sectionNumber":"716","sectionType":"section","heading":"Compliance notices","content":"716  Compliance notices\n\nApplication of this section\n\n (1) This section applies if an inspector reasonably believes that a person has contravened one or more of the following:\n\n (a) a provision of the National Employment Standards;\n\n (b) a term of a modern award;\n\n (c) a term of an enterprise agreement;\n\n (d) a term of a workplace determination;\n\n (e) a term of a national minimum wage order;\n\n (f) a term of an equal remuneration order;\n\n (fa) subsection 536AA(1) or (2) (which deal with employer obligations in relation to advertising rates of pay);\n\n (fb) a term of a minimum standards order;\n\n (fc) a term of a road transport contractual chain order;\n\n (g) a provision of Part 6‑4C (which deals with the Coronavirus economic response);\n\n (h) a jobkeeper enabling direction (within the meaning of Part 6‑4C);\n\n (i) a provision of an agreement authorised by Part 6‑4C.\n\nGiving a notice\n\n (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:\n\n (a) take specified action to remedy the direct effects of the contravention referred to in subsection (1) (including to calculate and pay the amount of any underpayment);\n\n (b) produce reasonable evidence of the person’s compliance with the notice.\n\n (3) The notice must also:\n\n (a) set out the name of the person to whom the notice is given; and\n\n (b) set out the name of the inspector who gave the notice; and\n\n (c) set out brief details of the contravention; and\n\n (d) explain that a failure to comply with the notice may contravene a civil remedy provision; and\n\n (e) explain that the person may apply to the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory Court for a review of the notice on either or both of the following grounds:\n\n (i) the person has not committed a contravention set out in the notice;\n\n (ii) the notice does not comply with subsection (2) or this subsection; and\n\n (f) set out any other matters prescribed by the regulations.\n\nRelationship with enforceable undertakings\n\n (4) An inspector must not give a person a notice in relation to a contravention if:\n\n (a) the person has given an undertaking under section 715 in relation to the contravention; and\n\n (b) the undertaking has not been withdrawn.\n\nRelationship with civil remedy provisions\n\n (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:\n\n (a) the inspector has given the person a notice in relation to the contravention; and\n\n (b) either of the following subparagraphs applies:\n\n (i) the notice has not been withdrawn, and the person has complied with the notice;\n\n (ii) the person has made an application under section 717 in relation to the notice that has not been completely dealt with.\n\nNote: A person other than an inspector who is otherwise entitled to apply for an order in relation to the contravention may do so.\n\n (4B) A person who complies with a notice in relation to a contravention of a civil remedy provision is not taken:\n\n (a) to have admitted to contravening the provision; or\n\n (b) to have been found to have contravened the provision.\n\nPerson must not fail to comply with notice\n\n (5) A person must not fail to comply with a notice given under this section.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (6) Subsection (5) does not apply if the person has a reasonable excuse.","sortOrder":1642},{"sectionNumber":"717","sectionType":"section","heading":"Review of compliance notices","content":"717  Review of compliance notices\n\n (1) A person who has been given a notice under section 716 may apply to the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory Court for a review of the notice on either or both of the following grounds:\n\n (a) the person has not committed a contravention set out in the notice;\n\n (b) the notice does not comply with subsection 716(2) or (3).\n\n (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.\n\n (3) The court may confirm, cancel or vary the notice after reviewing it.","sortOrder":1643},{"sectionNumber":"Subdivision DE","sectionType":"subdivision","heading":"Cooperation agreements","content":"Subdivision DE—Cooperation agreements","sortOrder":1644},{"sectionNumber":"717A","sectionType":"section","heading":"Effect of cooperation agreement","content":"717A  Effect of cooperation agreement\n\n (1) While a cooperation agreement is in force between the Fair Work Ombudsman and a person, the Fair Work Ombudsman must not refer conduct engaged in by the person that is covered by the agreement to the Director of Public Prosecutions or the Australian Federal Police for action in relation to a possible offence.\n\nNote: See subsection 717B(1) for the definition of cooperation agreement.\n\n (2) Subsection (1) does not prevent:\n\n (a) an inspector instituting or continuing civil proceedings in relation to the conduct; or\n\n (b) conduct engaged in by any other person from being referred to the Director of Public Prosecutions or the Australian Federal Police for action in relation to a possible offence.","sortOrder":1645},{"sectionNumber":"717B","sectionType":"section","heading":"Entry into cooperation agreement","content":"717B  Entry into cooperation agreement\n\n (1) The Fair Work Ombudsman may enter into a written agreement (a cooperation agreement) with a person covering specified conduct engaged in by the person that the person has reported to the Fair Work Ombudsman as amounting to the possible commission by the person of an offence, or at least the physical elements of an offence, against either or both of the following:\n\n (a) subsection 327A(1) (failing to pay amounts as required);\n\n (b) a related offence provision, to the extent that the offence created by the provision relates to an offence against subsection 327A(1).\n\n (2) The Fair Work Ombudsman must have regard to the following matters in deciding whether to enter into a cooperation agreement with a person in relation to conduct:\n\n (a) whether in the Fair Work Ombudsman’s view the person has made a voluntary, frank and complete disclosure of the conduct, and the nature and level of detail of the disclosure;\n\n (b) whether in the Fair Work Ombudsman’s view the person has cooperated with the Fair Work Ombudsman in relation to the conduct;\n\n (c) the Fair Work Ombudsman’s assessment of the person’s commitment to continued cooperation in relation to the conduct, including by way of providing the Fair Work Ombudsman with comprehensive information to enable the effectiveness of the person’s actions and approach to remedying the effects of the conduct to be assessed;\n\n (d) the nature and gravity of the conduct;\n\n (e) the circumstances in which the conduct occurred;\n\n (f) the person’s history of compliance with this Act;\n\n (g) any other matters prescribed by the regulations.\n\n (3) The regulations may prescribe matters in relation to the content of cooperation agreements.","sortOrder":1646},{"sectionNumber":"717C","sectionType":"section","heading":"When a cooperation agreement is in force","content":"717C  When a cooperation agreement is in force\n\n  A cooperation agreement is in force:\n\n (a) from the time it is entered into or any later time specified in the agreement; and\n\n (b) until the earliest of the following:\n\n (i) the Fair Work Ombudsman terminates the agreement in accordance with section 717D;\n\n (ii) the person withdraws from the agreement in accordance with section 717E;\n\n (iii) the expiry date (if any) specified in the agreement.","sortOrder":1647},{"sectionNumber":"717D","sectionType":"section","heading":"Termination of cooperation agreement by Fair Work Ombudsman","content":"717D  Termination of cooperation agreement by Fair Work Ombudsman\n\n (1) The Fair Work Ombudsman may terminate a cooperation agreement with a person at any time, by written notice to the person, if the Fair Work Ombudsman is satisfied that any of the following grounds exist:\n\n (a) the person has contravened a term of the agreement;\n\n (b) the person has, in relation to the agreement, given information or produced a document to the Fair Work Ombudsman, an inspector, or a person referred to in subsection 712AA(2) that:\n\n (i) is false or misleading; or\n\n (ii) for information—omits any matter or thing without which the information is misleading;\n\n  whether the person gave the information or produced the document before the agreement was entered into or since;\n\n (c) any other ground prescribed by the regulations.\n\n (2) If the Fair Work Ombudsman is satisfied that a ground exists for terminating a cooperation agreement with a person, the Fair Work Ombudsman may, instead of terminating the agreement, apply to the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory Court for an order under subsection (3).\n\n (3) If the court is satisfied that the ground exists, the court may make one or more of the following orders:\n\n (a) an order directing the person to comply with a term of the cooperation agreement, or to give or produce correct and complete information or documents;\n\n (b) an order awarding compensation for loss that a person has suffered because of matters constituting the ground for terminating the agreement;\n\n (c) any other order that the court considers appropriate.","sortOrder":1648},{"sectionNumber":"717E","sectionType":"section","heading":"Withdrawal from cooperation agreement","content":"717E  Withdrawal from cooperation agreement\n\n  A person that is party to a cooperation agreement with the Fair Work Ombudsman may withdraw from the agreement, but only with the consent of the Fair Work Ombudsman.","sortOrder":1649},{"sectionNumber":"717F","sectionType":"section","heading":"Variation of cooperation agreement","content":"717F  Variation of cooperation agreement\n\n  The parties to a cooperation agreement may vary the agreement, by mutual consent and in writing.","sortOrder":1650},{"sectionNumber":"717G","sectionType":"section","heading":"Relationship with other powers","content":"717G  Relationship with other powers\n\n (1) Whether a cooperation agreement is in force in relation to particular conduct does not affect:\n\n (a) the power of the Fair Work Ombudsman to accept an enforceable undertaking under section 715 in relation to the conduct; or\n\n (b) the power of an inspector to give a notice under section 716 in relation to the conduct; or\n\n (c) any other power or function of the Fair Work Ombudsman or an inspector that is not mentioned in subsection 717A(1).\n\n (2) However:\n\n (a) an enforceable undertaking has no effect to the extent that it is inconsistent with a cooperation agreement; and\n\n (b) a compliance notice has no effect to the extent that an action specified in the notice is inconsistent with a cooperation agreement.\n\nThis subsection has effect regardless of whether the undertaking or notice was given before or after the cooperation agreement comes into force.","sortOrder":1651},{"sectionNumber":"718","sectionType":"section","heading":"Disclosure of information by the Office of the Fair Work Ombudsman","content":"718  Disclosure of information by the Office of the Fair Work Ombudsman\n\nInformation to which this section applies\n\n (1) This section applies to the following information:\n\n (a) information acquired by the Fair Work Ombudsman in the course of performing functions, or exercising powers, as the Fair Work Ombudsman;\n\n (b) information acquired by an inspector in the course of performing functions, or exercising powers, as an inspector;\n\n (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;\n\n (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;\n\n (e) information acquired by a person in the course of assisting an inspector under section 710.\n\nDisclosure that is necessary or appropriate, or likely to assist administration or enforcement\n\n (2) The Fair Work Ombudsman may disclose, or authorise the disclosure of, the information if the Fair Work Ombudsman reasonably believes:\n\n (a) that it is necessary or appropriate to do so in the course of performing functions, or exercising powers, under this Act; or\n\n (b) that the disclosure is likely to assist in the administration or enforcement of a law of the Commonwealth, a State or a Territory.\n\nDisclosure to the Minister\n\n (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.\n\nDisclosure to the Department\n\n (4) The Fair Work Ombudsman may disclose, or authorise the disclosure of, the information to:\n\n (a) the Secretary of the Department; or\n\n (b) an SES employee, or an APS employee, in the Department;\n\nfor 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.","sortOrder":1653},{"sectionNumber":"718A","sectionType":"section","heading":"False or misleading information or documents","content":"718A  False or misleading information or documents\n\n (1) A person must not give information or produce a document to the Fair Work Ombudsman, an inspector, or a person referred to in subsection 712AA(2), (the official) exercising powers or performing functions under, or in connection with, a law of the Commonwealth if the person knows, or is reckless as to whether, the information or the document:\n\n (a) is false or misleading; or\n\n (b) for information—omits any matter or thing without which the information is misleading.\n\nNote 1: This subsection is a civil remedy provision (see Part 4‑1).\n\nNote 2: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.\n\n (2) Subsection (1) does not apply as a result of paragraph (1)(a) if the information or the document is not false or misleading in a material particular.\n\n (3) Subsection (1) does not apply as a result of paragraph (1)(b) if the information did not omit any matter or thing without which the information is misleading in a material particular.\n\n (4) Subsection (1) does not apply to a person who produces a document if the document is accompanied by a written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate:\n\n (a) stating that the document is, to the knowledge of the person, false or misleading in a material particular; and\n\n (b) setting out, or referring to, the material particular in which the document is, to the knowledge of the person, false or misleading.\n\n (5) Subsection (1) does not apply if, before the information was given or the document was produced by a person to the official, the official did not take reasonable steps to inform the person that the person may be liable to a civil remedy for contravening subsection (1).\n\n (6) For the purposes of subsection (5), it is sufficient if the following form of words is used:\n\n  “You may be liable to a civil remedy for giving false or misleading information or producing false or misleading documents”.","sortOrder":1655},{"sectionNumber":"Part 6-1","sectionType":"part","heading":"Multiple actions","content":"Part 6‑1—Multiple actions","sortOrder":1656},{"sectionNumber":"719","sectionType":"section","heading":"Guide to this Part","content":"719  Guide to this Part\n\nThis Part provides rules relating to applications for remedies under this Act.\n\nDivision 2 prevents certain applications where other remedies are available.\n\nDivision 3 prevents multiple applications or complaints in relation to the same conduct.","sortOrder":1658},{"sectionNumber":"720","sectionType":"section","heading":"Meanings of employee and employer","content":"720  Meanings of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":1659},{"sectionNumber":"721","sectionType":"section","heading":"Equal remuneration applications","content":"721  Equal remuneration applications\n\n (1) The FWC must not deal with an application for an equal remuneration order if the FWC is satisfied that there is available to the employees to whom the order will apply, an adequate alternative remedy that:\n\n (a) exists under a law of the Commonwealth (other than Part 2‑7) or a law of a State or Territory; and\n\n (b) will ensure equal remuneration for work of equal or comparable value for those employees.\n\n (2) A remedy that:\n\n (a) exists under a law of the Commonwealth, a State or a Territory relating to discrimination in relation to employment; and\n\n (b) consists solely of compensation for past actions;\n\nis not an adequate alternative remedy for the purposes of this section.","sortOrder":1661},{"sectionNumber":"722","sectionType":"section","heading":"Notification and consultation requirements applications","content":"722  Notification and consultation requirements applications\n\n  The FWC must not make an order under subsection 532(1) or 787(1) if the FWC is satisfied that there is available to the applicant, or to the employees represented by the applicant, an alternative remedy that:\n\n (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\n\n (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).\n\nNote: 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).","sortOrder":1662},{"sectionNumber":"723","sectionType":"section","heading":"Unlawful termination applications","content":"723  Unlawful termination applications\n\n  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.","sortOrder":1663},{"sectionNumber":"724","sectionType":"section","heading":"Equal remuneration applications","content":"724  Equal remuneration applications\n\n (1) The FWC must not deal with an application for an equal remuneration order in relation to an employee if proceedings for an alternative remedy:\n\n (a) to ensure equal remuneration for work of equal or comparable value for the employee; or\n\n (b) against unequal remuneration for work of equal or comparable value for the employee;\n\nhave commenced under a law of the Commonwealth (other than Part 2‑7) or a law of a State or Territory.\n\n (2) Subsection (1) does not prevent the FWC from dealing with the application if the proceedings for the alternative remedy:\n\n (a) have been discontinued by the party who commenced the proceedings; or\n\n (b) have failed for want of jurisdiction.\n\n (3) If an application has been made to the FWC 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:\n\n (a) to ensure equal remuneration for work of equal or comparable value for the employee; or\n\n (b) against unequal remuneration for work of equal or comparable value for the employee.\n\n (4) Subsection (3) does not prevent a person from commencing proceedings for an alternative remedy if:\n\n (a) the applicant has discontinued the application for the equal remuneration order; or\n\n (b) the application has failed for want of jurisdiction.\n\n (5) A remedy that:\n\n (a) exists under a law of the Commonwealth, a State or a Territory relating to discrimination in relation to employment; and\n\n (b) consists solely of compensation for past actions;\n\nis not an alternative remedy for the purposes of this section.","sortOrder":1666},{"sectionNumber":"725","sectionType":"section","heading":"General rule","content":"725  General rule\n\n  A person who has been dismissed, or allegedly 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, or alleged dismissal, if any other of those sections applies.","sortOrder":1668},{"sectionNumber":"726","sectionType":"section","heading":"Dismissal remedy bargaining order applications","content":"726  Dismissal remedy bargaining order applications\n\n (1) This section applies if:\n\n (a) a dismissal remedy bargaining order application has been made by, or on behalf of, the person in relation to the dismissal; and\n\n (b) the application has not:\n\n (i) been withdrawn by the person who made the application; or\n\n (ii) failed for want of jurisdiction.\n\n (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).","sortOrder":1669},{"sectionNumber":"727","sectionType":"section","heading":"General protections FWC applications","content":"727  General protections FWC applications\n\n (1) This section applies if:\n\n (a) a general protections FWC application has been made by, or on behalf of, the person in relation to the alleged dismissal; and\n\n (b) the application has not:\n\n (i) been withdrawn by the person who made the application; or\n\n (ii) failed for want of jurisdiction; or\n\n (iii) resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).\n\n (1A) This section also applies if:\n\n (a) a general protections FWC application has been made by, or on behalf of, the person in relation to the alleged dismissal; and\n\n (b) the application has not:\n\n (i) been withdrawn by the person who made the application; or\n\n (ii) failed for want of jurisdiction; and\n\n (c) a certificate in relation to the dispute has been issued by the FWC under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and\n\n (d) a notification of the parties’ agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 369(1)(b) and (c).\n\n (2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to an alleged dismissal.","sortOrder":1670},{"sectionNumber":"728","sectionType":"section","heading":"General protections court applications","content":"728  General protections court applications\n\n  This section applies if:\n\n (a) a general protections court application has been made by, or on behalf of, the person in relation to the dismissal; and\n\n (b) the application has not:\n\n (i) been withdrawn by the person who made the application; or\n\n (ii) failed for want of jurisdiction.","sortOrder":1671},{"sectionNumber":"729","sectionType":"section","heading":"Unfair dismissal applications","content":"729  Unfair dismissal applications\n\n (1) This section applies if:\n\n (a) an unfair dismissal application has been made by the person in relation to the dismissal; and\n\n (b) the application has not:\n\n (i) been withdrawn by the person who made the application; or\n\n (ii) failed for want of jurisdiction; or\n\n (iii) failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.\n\n (2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.","sortOrder":1672},{"sectionNumber":"730","sectionType":"section","heading":"Unlawful termination FWC applications","content":"730  Unlawful termination FWC applications\n\n (1) This section applies if:\n\n (a) an unlawful termination FWC application has been made by, or on behalf of, the person in relation to the alleged dismissal; and\n\n (b) the application has not:\n\n (i) been withdrawn by the person who made the application; or\n\n (ii) failed for want of jurisdiction; or\n\n (iii) resulted in the issue of a certificate under paragraph 776(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).\n\n (1A) This section also applies if:\n\n (a) an unlawful termination FWC application has been made by, or on behalf of, the person in relation to the alleged dismissal; and\n\n (b) the application has not:\n\n (i) been withdrawn by the person who made the application; or\n\n (ii) failed for want of jurisdiction; and\n\n (c) a certificate in relation to the dispute has been issued by the FWC under paragraph 776(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and\n\n (d) a notification of the parties’ agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 777(1)(b) and (c).\n\n (2) An unlawful termination FWC application is an application under section 773 for the FWC to deal with a dispute that relates to an alleged dismissal.","sortOrder":1673},{"sectionNumber":"731","sectionType":"section","heading":"Unlawful termination court applications","content":"731  Unlawful termination court applications\n\n  This section applies if:\n\n (a) an unlawful termination court application has been made by, or on behalf of, the person in relation to the dismissal; and\n\n (b) the application has not:\n\n (i) been withdrawn by the person who made the application; or\n\n (ii) failed for want of jurisdiction.","sortOrder":1674},{"sectionNumber":"732","sectionType":"section","heading":"Applications and complaints under other laws","content":"732  Applications and complaints under other laws\n\n (1) This section applies if:\n\n (a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and\n\n (b) the application or complaint has not:\n\n (i) been withdrawn by the person who made the application; or\n\n (ii) failed for want of jurisdiction.\n\n (2) An application or complaint under another law is an application or complaint made under:\n\n (a) a law of the Commonwealth (other than this Act); or\n\n (b) a law of a State or Territory.\n\n (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.","sortOrder":1675},{"sectionNumber":"733","sectionType":"section","heading":"Dismissal does not include failure to provide benefits","content":"733  Dismissal does not include failure to provide benefits\n\n  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.","sortOrder":1676},{"sectionNumber":"734","sectionType":"section","heading":"General rule","content":"734  General rule\n\n (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:\n\n (a) an application or complaint under an anti‑discrimination law or the Australian Human Rights Commission Act 1986 has been made by, or on behalf of, the person in relation to the conduct; and\n\n (b) the application or complaint has not:\n\n (i) been withdrawn by the person who made the application; or\n\n (ii) failed for want of jurisdiction.\n\n (2) A person must not make an application or complaint under an anti‑discrimination law or the Australian Human Rights Commission Act 1986 in relation to conduct that does not involve the dismissal of the person if:\n\n (a) a general protections court application has been made by, or on behalf of, the person in relation to the conduct; and\n\n (b) the application has not:\n\n (i) been withdrawn by the person who made the application; or\n\n (ii) failed for want of jurisdiction.","sortOrder":1678},{"sectionNumber":"734A","sectionType":"section","heading":"Sexual harassment court applications—interaction with sexual harassment FWC applications","content":"734A  Sexual harassment court applications—interaction with sexual harassment FWC applications\n\n (1) A person (the first person) who alleges they have been sexually harassed in contravention of Division 2 of Part 3‑5A by another person (the second person) must not (subject to subsection (2)) make a sexual harassment court application in relation to particular conduct if:\n\n (a) a sexual harassment FWC application has been made by, or on behalf of, the first person in relation to the conduct; and\n\n (b) a certificate in relation to the dispute has been issued by the FWC under paragraph 527R(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and\n\n (c) 2 or more of the parties (the notifying parties) have jointly notified the FWC as mentioned in paragraph 527S(1)(b) that they agree to the FWC arbitrating the dispute; and\n\n (d) paragraphs 527S(1)(c), (d) and (e) apply in relation to the notification; and\n\n (e) the notifying parties include both the first person and the second person.\n\n (2) Subsection (1) does not apply in relation to a sexual harassment court application that includes an application for an interim injunction.\n\n (3) A sexual harassment FWC application is an application under section 527F for the FWC to deal with a dispute that relates to a contravention of Division 2 of Part 3‑5A.","sortOrder":1680},{"sectionNumber":"734B","sectionType":"section","heading":"Sexual harassment FWC applications and sexual harassment court applications—interaction with anti-discrimination laws","content":"734B  Sexual harassment FWC applications and sexual harassment court applications—interaction with anti‑discrimination laws\n\n (1) A person who alleges they have been sexually harassed in contravention of Division 2 of Part 3‑5A must not make either of the following applications:\n\n (a) a sexual harassment FWC application (other than an application that consists solely of an application for a stop sexual harassment order);\n\n (b) a sexual harassment court application;\n\nin relation to particular conduct if:\n\n (c) an application or complaint under an anti‑discrimination law or the Australian Human Rights Commission Act 1986 has been made by, or on behalf of, the person in relation to the conduct; and\n\n (d) the application or complaint has not:\n\n (i) been withdrawn by the person who made the application; or\n\n (ii) failed for want of jurisdiction.\n\n (2) A person who alleges they have been sexually harassed in contravention of Division 2 of Part 3‑5A must not make an application or complaint under an anti‑discrimination law or the Australian Human Rights Commission Act 1986 in relation to particular conduct if:\n\n (a) either of the following applications has been made by, or on behalf of, the person in relation to the conduct:\n\n (i) a sexual harassment FWC application (other than an application that consists solely of an application for a stop sexual harassment order);\n\n (ii) a sexual harassment court application; and\n\n (b) the application referred to in paragraph (a) has not:\n\n (i) been withdrawn by the person who made the application; or\n\n (ii) failed for want of jurisdiction.","sortOrder":1681},{"sectionNumber":"734BA","sectionType":"section","heading":"Limitation on applications for remedy for unfair deactivation—other proceedings in progress","content":"734BA  Limitation on applications for remedy for unfair deactivation—other proceedings in progress\n\n (1) An application under Division 5 of Part 3A‑3 (unfair deactivation or unfair termination of regulated workers) in relation to deactivation of a person from a digital labour platform must not be made if other deactivation proceedings have been commenced in relation to the person and the digital labour platform, unless the other deactivation proceedings:\n\n (a) have been discontinued by the person who commenced them; or\n\n (b) have failed for want of jurisdiction.\n\n (2) If an application under Division 5 of Part 3A‑3 has been made in relation to deactivation of a person (the relevant worker) from a digital labour platform, a person must not commence other deactivation proceedings in relation to the relevant worker and the digital labour platform unless:\n\n (a) the application has been discontinued by the person who made it; or\n\n (b) the proceedings in relation to the application have failed for want of jurisdiction.\n\n (3) In this section:\n\nother deactivation proceedings means proceedings (if any) specified in regulations made for the purposes of this definition.","sortOrder":1683},{"sectionNumber":"734BB","sectionType":"section","heading":"Limitation on applications for remedy for unfair termination—other proceedings in progress","content":"734BB  Limitation on applications for remedy for unfair termination—other proceedings in progress\n\n (1) An application under Division 5 of Part 3A‑3 (unfair deactivation or unfair termination of regulated workers) in relation to termination of a services contract must not be made if other termination proceedings have been commenced in relation to the services contract, unless the other termination proceedings:\n\n (a) have been discontinued by the person who commenced them; or\n\n (b) have failed for want of jurisdiction.\n\n (2) A person must not commence other termination proceedings in relation to a services contract if an application under Division 5 of Part 3A‑3 has been made in relation to termination of the services contract unless:\n\n (a) the application has been discontinued by the person who made it; or\n\n (b) the proceedings in relation to the application have failed for want of jurisdiction.\n\n (3) In this section:\n\nother termination proceedings means proceedings (if any) specified in regulations made for the purposes of this definition.","sortOrder":1684},{"sectionNumber":"734C","sectionType":"section","heading":"Limitation on applications for review of services contracts—other proceedings in progress","content":"734C  Limitation on applications for review of services contracts—other proceedings in progress\n\n (1) An application to review a services contract under Division 4 of Part 3A‑5 (unfair contract terms) must not be made if other review proceedings have been commenced in relation to the services contract, unless the other review proceedings:\n\n (a) have been discontinued by the person who commenced them; or\n\n (b) have failed for want of jurisdiction.\n\n (2) A person must not commence other review proceedings in relation to a services contract if an application to review the contract has been made under Division 4 of Part 3A‑5, unless:\n\n (a) the application has been discontinued by the person who made it; or\n\n (b) the proceedings in relation to the application have failed for want of jurisdiction.\n\n (3) In this section:\n\nother review proceedings means:\n\n (a) proceedings under a provision of a law of a State or Territory that makes provision as mentioned in paragraph 536JP(1)(c) and is not affected by the exclusion provisions; or;\n\n (b) proceedings in relation to a services contract under a provision of a law of the Commonwealth, or of a State or Territory, that is specified in regulations made for the purposes of this paragraph.","sortOrder":1686},{"sectionNumber":"Part 6-2","sectionType":"part","heading":"Dealing with disputes","content":"Part 6‑2—Dealing with disputes","sortOrder":1687},{"sectionNumber":"735","sectionType":"section","heading":"Guide to this Part","content":"735  Guide to this Part\n\nThis Part is about dealing with disputes between national system employees and their employers, regulated workers and regulated businesses, and persons in a road transport contractual chain.\n\nDivision 2 deals with the powers of the FWC and other persons to deal with a dispute if a modern award, enterprise agreement, instrument made under Chapter 3A or 3B or contract of employment includes a term that provides for the FWC or the person to deal with the dispute.","sortOrder":1689},{"sectionNumber":"736","sectionType":"section","heading":"Meanings of employee and employer","content":"736  Meanings of employee and employer\n\n  In this Part, employee means a national system employee, and employer means a national system employer.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":1690},{"sectionNumber":"737","sectionType":"section","heading":"Model term about dealing with disputes","content":"737  Model term about dealing with disputes\n\n (1) The FWC must determine a model term for dealing with disputes for enterprise agreements.\n\n (2) In determining the model term, the FWC must:\n\n (a) ensure that the model term is consistent with the requirements set out in subsection 186(6); and\n\n (b) take into account the following matters:\n\n (i) whether the model term is broadly consistent with comparable terms in modern awards;\n\n (ii) best practice workplace relations as determined by the FWC;\n\n (iii) whether all persons and bodies have had a reasonable opportunity to be heard and make submissions to the FWC for consideration in determining the model term;\n\n (iv) the operation of subsections 739(3), (4), (5) and (6) and 740(3) and (4);\n\n (v) the object of this Act (see section 3);\n\n (vi) any other matters the FWC considers relevant.\n\nNote 1: The FWC must be constituted by a Full Bench to make the model term dealing with disputes (see subsection 616(4A)).\n\nNote 2: For the variation of a determination, see subsection 33(3) of the Acts Interpretation Act 1901.\n\n (3) A determination under subsection (1) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.","sortOrder":1693},{"sectionNumber":"738","sectionType":"section","heading":"Application of this Division","content":"738  Application of this Division\n\n  This Division applies if:\n\n (a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or\n\n (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\n\n (ba) a minimum standards order includes a term that provides a procedure for dealing with disputes; or\n\n (bb) a collective agreement includes a term that provides a procedure for dealing with disputes; or\n\n (bc) a road transport contractual chain order includes a term that provides a procedure for dealing with disputes; or\n\n (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\n\n (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.","sortOrder":1695},{"sectionNumber":"739","sectionType":"section","heading":"Disputes dealt with by the FWC","content":"739  Disputes dealt with by the FWC\n\n (1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.\n\n (3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.\n\n (4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.\n\nNote: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).\n\n (5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.\n\n (6) The FWC may deal with a dispute only on application by a party to the dispute.","sortOrder":1696},{"sectionNumber":"740","sectionType":"section","heading":"Dispute dealt with by persons other than the FWC","content":"740  Dispute dealt with by persons other than the FWC\n\n (1) This section applies if a term referred to in section 738 requires or allows a person other than the FWC to deal with a dispute.\n\n (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.\n\n (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.","sortOrder":1697},{"sectionNumber":"Part 6-3","sectionType":"part","heading":"Extension of National Employment Standards entitlements","content":"Part 6‑3—Extension of National Employment Standards entitlements","sortOrder":1698},{"sectionNumber":"741","sectionType":"section","heading":"Guide to this Part","content":"741  Guide to this Part\n\nThis Part contains Divisions that extend some National Employment Standards entitlements to non‑national system employees.\n\nDivision 2 extends the entitlements to unpaid parental leave, and related entitlements.\n\nDivision 2A extends the entitlements to paid family and domestic violence leave.\n\nDivision 3 extends the entitlements to notice of termination or payment in lieu of notice.","sortOrder":1700},{"sectionNumber":"742","sectionType":"section","heading":"Meanings of employee and employer","content":"742  Meanings of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.","sortOrder":1701},{"sectionNumber":"743","sectionType":"section","heading":"Object of this Division","content":"743  Object of this Division\n\n  The object of this Division is to give effect, or further effect, to:\n\n (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\n\n (b) the Workers with Family Responsibilities Recommendation, 1981 (Recommendation No. R165) which the General Conference of the ILO adopted on 23 June 1981;\n\nby 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:\n\n (c) to prepare for, enter, participate in or advance in economic activity; and\n\n (d) to reconcile their employment and family responsibilities.\n\nNote 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).\n\nNote 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).","sortOrder":1704},{"sectionNumber":"744","sectionType":"section","heading":"Extending the entitlement to unpaid parental leave and related entitlements","content":"744  Extending the entitlement to unpaid parental leave and related entitlements\n\nExtension of Division 5 of Part 2‑2 and related provisions\n\n (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:\n\n (a) any reference in the provisions to a national system employee also included a reference to a non‑national system employee; and\n\n (b) any reference in the provisions to a national system employer also included a reference to a non‑national system employer.\n\nNote 1: Division 5 of Part 2‑2 provides for unpaid parental leave and related entitlements.\n\nNote 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.\n\n (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):\n\n (a) the provisions of Divisions 2 and 13 of Part 2‑2;\n\n (b) any other provisions of this Act prescribed by the regulations;\n\n (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.\n\nModifications are set out in Subdivision B\n\n (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.\n\nRegulations made for the purpose of provisions\n\n (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.","sortOrder":1705},{"sectionNumber":"745","sectionType":"section","heading":"Contravening the extended parental leave provisions","content":"745  Contravening the extended parental leave provisions\n\n  A non‑national system employer must not contravene the extended parental leave provisions.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":1706},{"sectionNumber":"746","sectionType":"section","heading":"References to the National Employment Standards include extended parental leave provisions","content":"746  References to the National Employment Standards include extended parental leave provisions\n\n  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.","sortOrder":1707},{"sectionNumber":"747","sectionType":"section","heading":"State and Territory laws that are not excluded","content":"747  State and Territory laws that are not excluded\n\n  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:\n\n (a) apply to non‑national system employees; and\n\n (b) provide entitlements for those employees that are more beneficial than the entitlements under the extended parental leave provisions.","sortOrder":1708},{"sectionNumber":"748","sectionType":"section","heading":"Non-national system employees are not award/agreement free employees","content":"748  Non‑national system employees are not award/agreement free employees\n\n  A non‑national system employee is not an award/agreement free employee for the purpose of the extended parental leave provisions.","sortOrder":1710},{"sectionNumber":"749","sectionType":"section","heading":"Modification of meaning of base rate of pay for pieceworkers","content":"749  Modification of meaning of base rate of pay for pieceworkers\n\n  Section 16 has effect as if the following paragraph were added at the end of subsection 16(2):\n\n (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.","sortOrder":1711},{"sectionNumber":"750","sectionType":"section","heading":"Modification of meaning of full rate of pay for pieceworkers","content":"750  Modification of meaning of full rate of pay for pieceworkers\n\n  Section 18 has effect as if the following paragraph were added at the end of subsection 18(2):\n\n (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.","sortOrder":1712},{"sectionNumber":"751","sectionType":"section","heading":"Modification of meaning of ordinary hours of work—if determined by State industrial instrument","content":"751  Modification of meaning of ordinary hours of work—if determined by State industrial instrument\n\n  Section 20 has effect as if the following subsection were inserted before subsection 20(1):\n\n (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.","sortOrder":1713},{"sectionNumber":"752","sectionType":"section","heading":"Modification of meaning of ordinary hours of work—if not determined by State industrial instrument","content":"752  Modification of meaning of ordinary hours of work—if not determined by State industrial instrument\n\n  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:\n\n (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;\n\n (b) no State industrial instrument applies to the employee.","sortOrder":1714},{"sectionNumber":"753","sectionType":"section","heading":"Modification of meaning of ordinary hours of work—regulations may prescribe usual weekly hours","content":"753  Modification of meaning of ordinary hours of work—regulations may prescribe usual weekly hours\n\n  Section 20 has effect as if the following subsection were added at the end:\n\n (5) For a non‑national system employee:\n\n (a) who is not a full‑time employee; and\n\n (b) who does not have usual weekly hours of work; and\n\n (c) to whom either of the following subparagraphs applies:\n\n (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;\n\n (ii) no State industrial instrument applies to the employee;\n\nthe 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.","sortOrder":1715},{"sectionNumber":"754","sectionType":"section","heading":"Modification of meaning of pieceworker","content":"754  Modification of meaning of pieceworker\n\n  Section 21 has effect as if the following paragraph were added at the end of subsection 21(1):\n\n (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.","sortOrder":1716},{"sectionNumber":"755","sectionType":"section","heading":"Modification of provision about interaction with paid leave","content":"755  Modification of provision about interaction with paid leave\n\n  Section 79 applies as if subsections 79(2) and (3) were omitted.","sortOrder":1717},{"sectionNumber":"756","sectionType":"section","heading":"Modification of provision about relationship between National Employment Standards and agreements","content":"756  Modification of provision about relationship between National Employment Standards and agreements\n\n  Section 128 has effect as if references to an award/agreement free employee also included references to a non‑national system employee.","sortOrder":1718},{"sectionNumber":"757","sectionType":"section","heading":"Modification of power to make regulations","content":"757  Modification of power to make regulations\n\n  Section 129 has effect as if the following subsection were added at the end:\n\n (2) The regulations may:\n\n (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\n\n (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.","sortOrder":1719},{"sectionNumber":"757A","sectionType":"section","heading":"Object of this Division","content":"757A  Object of this Division\n\n  The object of this Division is to give effect, or further effect, to:\n\n (a) paragraph (f) of Article 10 of the ILO Convention (No. 190) concerning Violence and Harassment, done at Geneva on 21 June 2019; and\n\n (b) the Violence and Harassment Recommendation, 2019 (Recommendation No. 206), which the General Conference of the ILO adopted on 21 June 2019;\n\nby providing employees with an entitlement to paid family and domestic violence leave that will help mitigate the impact of domestic violence in the world of work.\n\nNote: The Convention and the Recommendation could in 2022 be viewed on the ILO website (http://www.ilo.org).","sortOrder":1722},{"sectionNumber":"757B","sectionType":"section","heading":"Extending the entitlement to paid family and domestic violence leave","content":"757B  Extending the entitlement to paid family and domestic violence leave\n\nExtension to non‑national system employees\n\n (1) The provisions of Subdivision CA of Division 7 of Part 2‑2, and the related provisions identified in subsection (3), apply in relation to a non‑national system employee as if:\n\n (a) any reference in the provisions to a national system employee also included a reference to a non‑national system employee; and\n\n (b) any reference in the provisions to a national system employer also included a reference to a non‑national system employer.\n\nNote 1: Subdivision CA of Division 7 of Part 2‑2 provides for paid family and domestic violence leave.\n\nNote 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.\n\nExtension to sections 30C and 30M national system employees for victims of crime leave\n\n (2) To the extent that a person would not be entitled to leave under Subdivision CA of Division 7 of Part 2‑2 because of subsection 106D(3), the provisions of Subdivision CA of Division 7 of Part 2‑2, and the related provisions identified in subsection (3), apply in relation to the person, and the person’s employer, as if subsection 106D(3) were omitted.\n\nNote: Subsection 106D(3) has the effect that a person who is a national system employee only because of section 30C or 30M is not entitled to leave under the Subdivision to the extent that the leave would constitute leave for victims of crime.\n\nRelated provisions\n\n (3) The related provisions are the following, so far as they apply in relation to Subdivision CA of Division 7 of Part 2‑2 as it applies because of subsections (1) and (2):\n\n (a) Subdivision D of Division 7 of Part 2‑2;\n\n (b) Divisions 2 and 13 of Part 2‑2;\n\n (c) sections 89 and 98;\n\n (d) any other provisions of this Act prescribed by the regulations;\n\n (e) any provisions of this Act that define expressions that are used (directly or indirectly) in provisions of Subdivision CA of Division 7 of Part 2‑2, or in provisions referred to in paragraph (a), (b), (c) or (d) of this subsection.\n\nExtended paid family and domestic violence leave provisions\n\n (4) The extended paid family and domestic violence leave provisions are the provisions of Subdivision CA of Division 7 of Part 2‑2, and the related provisions identified in subsection (3) of this section, as they apply because of this section.\n\nModifications are set out in Subdivision B of this Division\n\n (4A) The extended paid family and domestic violence leave provisions have effect subject to the modifications provided for in Subdivision B.\n\nRegulations made for the purpose of provisions\n\n (5) Subsections (1) and (2) also apply to any regulations made for the purpose of a provision to which those subsections apply, other than a provision that is modified by Subdivision B.","sortOrder":1723},{"sectionNumber":"757BA","sectionType":"section","heading":"Employer obligations in relation to pay slips","content":"757BA  Employer obligations in relation to pay slips\n\n  If an employer gives a person a pay slip relating to paid leave to which the person is entitled because of section 757B, the employer:\n\n (a) must not include on the pay slip any information prescribed by regulations made for the purposes of paragraph 536(2)(c); and\n\n (b) must comply with any requirements prescribed by regulations made for the purposes of paragraph 536(2)(d).\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":1724},{"sectionNumber":"757C","sectionType":"section","heading":"Contravening the extended paid family and domestic violence leave provisions","content":"757C  Contravening the extended paid family and domestic violence leave provisions\n\n  An employer must not contravene the extended paid family and domestic violence leave provisions.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":1725},{"sectionNumber":"757D","sectionType":"section","heading":"References to the National Employment Standards include extended paid family and domestic violence leave provisions","content":"757D  References to the National Employment Standards include extended paid family and domestic violence leave provisions\n\n  A reference in this Act, or another law of the Commonwealth, to the National Employment Standards includes a reference to the extended paid family and domestic violence leave provisions.","sortOrder":1726},{"sectionNumber":"757E","sectionType":"section","heading":"State and Territory laws that are not excluded","content":"757E  State and Territory laws that are not excluded\n\n  This Act is not intended to apply to the exclusion of laws of a State or Territory that provide employee entitlements in relation to family and domestic violence, to the extent that those laws:\n\n (a) apply to non‑national system employees; and\n\n (b) provide entitlements for those employees that are more beneficial than the entitlements under the extended paid family and domestic violence leave provisions.","sortOrder":1727},{"sectionNumber":"757F","sectionType":"section","heading":"Non-national system employees are not award/agreement free employees","content":"757F  Non‑national system employees are not award/agreement free employees\n\n  A non‑national system employee is not an award/agreement free employee for the purpose of the extended paid family and domestic violence leave provisions.","sortOrder":1729},{"sectionNumber":"757G","sectionType":"section","heading":"Modification of meaning of full rate of pay for pieceworkers","content":"757G  Modification of meaning of full rate of pay for pieceworkers\n\n  Section 18 has effect as if the following paragraph were added at the end of subsection 18(2):\n\n (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 paid family and domestic violence leave provisions.","sortOrder":1730},{"sectionNumber":"757H","sectionType":"section","heading":"Modification of meaning of pieceworker","content":"757H  Modification of meaning of pieceworker\n\n  Section 21 has effect as if the following paragraph were added at the end of subsection 21(1):\n\n (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 paid family and domestic violence leave provisions.","sortOrder":1731},{"sectionNumber":"757J","sectionType":"section","heading":"Modification of provision about relationship between National Employment Standards and agreements","content":"757J  Modification of provision about relationship between National Employment Standards and agreements\n\n  Section 128 has effect as if references to an award/agreement free employee also included references to a non‑national system employee.","sortOrder":1732},{"sectionNumber":"757K","sectionType":"section","heading":"Modification of power to make regulations","content":"757K  Modification of power to make regulations\n\n  Section 129 has effect as if the following subsection were added at the end:\n\n (2) The regulations may:\n\n (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 paid family and domestic violence leave provision; and\n\n (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 paid family and domestic violence leave provision.","sortOrder":1733},{"sectionNumber":"758","sectionType":"section","heading":"Object of this Division","content":"758  Object of this Division\n\n  The object of this Division is to give effect, or further effect, to:\n\n (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\n\n (b) the Termination of Employment Recommendation, 1982 (Recommendation No. R166) which the General Conference of the ILO adopted on 22 June 1982.\n\nNote 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).\n\nNote 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).","sortOrder":1736},{"sectionNumber":"759","sectionType":"section","heading":"Extending entitlement to notice of termination or payment in lieu of notice","content":"759  Extending entitlement to notice of termination or payment in lieu of notice\n\nExtension of Subdivision A of Division 11 of Part 2‑2 and related provisions\n\n (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:\n\n (a) any reference in the provisions to a national system employee also included a reference to a non‑national system employee; and\n\n (b) any reference in the provisions to a national system employer also included a reference to a non‑national system employer.\n\nNote 1: Subdivision A of Division 11 of Part 2‑2 provides for notice of termination or payment in lieu of notice.\n\nNote 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.\n\n (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):\n\n (a) the provisions of Division 2, Subdivision C of Division 11, and Division 13, of Part 2‑2;\n\n (b) any other provisions of this Act prescribed by the regulations;\n\n (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.\n\nModifications are set out in Subdivision B\n\n (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.\n\nRegulations made for the purpose of provisions\n\n (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.","sortOrder":1737},{"sectionNumber":"760","sectionType":"section","heading":"Contravening the extended notice of termination provisions","content":"760  Contravening the extended notice of termination provisions\n\n  A non‑national system employer must not contravene the extended notice of termination provisions.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":1738},{"sectionNumber":"761","sectionType":"section","heading":"References to the National Employment Standards include extended notice of termination provisions","content":"761  References to the National Employment Standards include extended notice of termination provisions\n\n  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.","sortOrder":1739},{"sectionNumber":"762","sectionType":"section","heading":"State and Territory laws that are not excluded","content":"762  State and Territory laws that are not excluded\n\n  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:\n\n (a) apply to non‑national system employees; and\n\n (b) provide entitlements for those employees that are more beneficial than the entitlements under the extended notice of termination provisions.","sortOrder":1740},{"sectionNumber":"763","sectionType":"section","heading":"Non-national system employees are not award/agreement free employees","content":"763  Non‑national system employees are not award/agreement free employees\n\n  A non‑national system employee is not an award/agreement free employee for the purpose of the extended notice of termination provisions.","sortOrder":1742},{"sectionNumber":"764","sectionType":"section","heading":"Modification of meaning of full rate of pay for pieceworkers","content":"764  Modification of meaning of full rate of pay for pieceworkers\n\n  Section 18 has effect as if the following paragraph were added at the end of subsection 18(2):\n\n (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.","sortOrder":1743},{"sectionNumber":"765","sectionType":"section","heading":"Modification of meaning of pieceworker","content":"765  Modification of meaning of pieceworker\n\n  Section 21 has effect as if the following paragraph were added at the end of subsection 21(1):\n\n (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.","sortOrder":1744},{"sectionNumber":"766","sectionType":"section","heading":"Modification of provision about notice of termination by employee","content":"766  Modification of provision about notice of termination by employee\n\n  Section 118 has effect as if the following subsection were added at the end:\n\n (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.","sortOrder":1745},{"sectionNumber":"767","sectionType":"section","heading":"Modification of provision about relationship between National Employment Standards and agreements","content":"767  Modification of provision about relationship between National Employment Standards and agreements\n\n  Section 128 has effect as if references to an award/agreement free employee also included references to a non‑national system employee.","sortOrder":1746},{"sectionNumber":"768","sectionType":"section","heading":"Modification of power to make regulations","content":"768  Modification of power to make regulations\n\n  Section 129 has effect as if the following subsection were added at the end:\n\n (2) The regulations may:\n\n (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\n\n (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.","sortOrder":1747},{"sectionNumber":"Part 6-3A","sectionType":"part","heading":"Transfer of business from a State public sector employer","content":"Part 6‑3A—Transfer of business from a State public sector employer","sortOrder":1748},{"sectionNumber":"768AA","sectionType":"section","heading":"Guide to this Part","content":"768AA  Guide to this Part\n\nThis Part provides for the transfer of certain terms and conditions of employment when there is a transfer of business from a non‑national system employer that is a State public sector employer (called “the old State employer”) to a national system employer (called “the new employer”).\n\nA transfer of business involves the transfer of employment of one or more employees of the old State employer to the new employer. Each of those employees is a “transferring employee”.\n\nIf there is a transfer of business, then this Part provides for certain terms and conditions of employment with the old State employer to be transferred to the employment of the transferring employee with the new employer.\n\nThis Part achieves the transfer of those terms and conditions by creating a new instrument—a “copied State instrument”—for each transferring employee. The new instrument is a federal instrument and is enforceable under this Act.","sortOrder":1750},{"sectionNumber":"768AB","sectionType":"section","heading":"Meanings of employee and employer","content":"768AB  Meanings of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.","sortOrder":1751},{"sectionNumber":"768AC","sectionType":"section","heading":"What this Division is about","content":"768AC  What this Division is about\n\nThis Division sets out when there is a transfer of business from the old State employer to the new employer.","sortOrder":1753},{"sectionNumber":"768AD","sectionType":"section","heading":"When does a transfer of business occur?","content":"768AD  When does a transfer of business occur?\n\nWhen there is a transfer of business\n\n (1) There is a transfer of business from a non‑national system employer that is a State public sector employer of a State (the old State employer) to a national system employer (the new employer) if the following requirements are satisfied:\n\n (a) the employment of a person who is a State public sector employee of the old State employer has terminated;\n\n (b) within 3 months after the termination, the person becomes employed by the new employer;\n\n (c) the work (the transferring work) the person performs for the new employer is the same, or substantially the same, as the work the person performed for the old State employer;\n\n (d) there is a connection between the old State employer and the new employer as described in subsection (2), (3) or (4).\n\nTransfer of assets from old State employer to new employer\n\n (2) There is a connection between the old State employer and the new employer if, in accordance with an arrangement between:\n\n (a) the old State employer or an associated entity of the old State employer; and\n\n (b) the new employer or an associated entity of the new employer;\n\nthe 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):\n\n (c) that the old State employer, or the associated entity of the old State employer, owned or had the beneficial use of; and\n\n (d) that relate to, or are used in connection with, the transferring work.\n\nOld State employer outsources work to new employer\n\n (3) There is a connection between the old State 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 State employer, or an associated entity of the old State employer, has outsourced the transferring work to the new employer or an associated entity of the new employer.\n\nNew employer is an associated entity of old employer\n\n (4) There is a connection between the old State employer and the new employer if the new employer is an associated entity of the old State employer when the transferring employee becomes employed by the new employer.","sortOrder":1754},{"sectionNumber":"768AE","sectionType":"section","heading":"Meaning of transferring employee, termination time and re-employment time","content":"768AE  Meaning of transferring employee, termination time and re‑employment time\n\n (1) The person referred to in paragraph 768AD(1)(a) is a transferring employee in relation to the transfer of business.\n\n (2) The termination time of a transferring employee is the start of the day the employment of the employee is terminated by the old State employer.\n\n (3) The re‑employment time of a transferring employee is the start of the day the employee becomes employed by the new employer.","sortOrder":1755},{"sectionNumber":"768AF","sectionType":"section","heading":"What this Division is about","content":"768AF  What this Division is about\n\nIf there is a transfer of business, then this Division provides for certain terms and conditions of a transferring employee’s employment with the old State employer to be transferred to the employment with the new employer.\n\nThe transfer of those terms and conditions is achieved by creating a new instrument—called a “copied State instrument”—for the transferring employee. The new instrument is a federal instrument that is enforceable under this Act.\n\nThere are 2 types of copied State instruments—a copied State award and a copied State employment agreement.\n\nA copied State award copies the terms of a State award that covered the transferring employee and the old State employer immediately before the termination of the employee’s employment with the old State employer.\n\nA copied State employment agreement copies the terms of a State employment agreement that covered the transferring employee and the old State employer immediately before the termination of the employee’s employment with the old State employer.","sortOrder":1758},{"sectionNumber":"768AG","sectionType":"section","heading":"Contravening a copied State instrument","content":"768AG  Contravening a copied State instrument\n\n  A person must not contravene a term of a copied State instrument for a transferring employee that applies to the person.\n\nNote 1: This section is a civil remedy provision (see Part 4‑1).\n\nNote 2: For when a copied State instrument for a transferring employee applies to a person, see section 768AM.","sortOrder":1760},{"sectionNumber":"768AH","sectionType":"section","heading":"What is a copied State instrument?","content":"768AH  What is a copied State instrument?\n\n  A copied State instrument for a transferring employee is the following:\n\n (a) a copied State award for the employee;\n\n (b) a copied State employment agreement for the employee.","sortOrder":1761},{"sectionNumber":"768AI","sectionType":"section","heading":"What is a copied State award?","content":"768AI  What is a copied State award?\n\n (1) If, immediately before the termination time of a transferring employee:\n\n (a) a State award (the original State award) was in operation under the State industrial law of the State; and\n\n (b) the original State award covered (however described in the original State award or a relevant law of the State) the old State employer and the transferring employee (whether or not the original State award also covered other persons);\n\nthen a copied State award for the transferring employee is taken to come into operation immediately after the termination time.\n\nNote 1: Even though a copied State award comes into operation in relation to the transferring employee, it will not be enforceable by the employee or another person (for example, the new employer) unless and until it applies to the employee or other person. In particular, it will not apply to the employee or new employer before the employee becomes employed by the new employer. For when the copied State award applies to a person, see section 768AM.\n\nNote 2: A copied State employment agreement for the transferring employee may also come into operation immediately after the termination time, see subsection 768AK(1). If it does, then the State’s interaction rules that were in force immediately before the termination time apply for the purposes of working out the interaction between the copied State award and the copied State employment agreement (see item 11 of Schedule 3A to the Transitional Act as that item applies in a modified way because of section 768BY).\n\n (2) The copied State award is taken to include the same terms as were in the original State award immediately before the termination time.\n\nNote: The State’s instrument content rules that were in force immediately before the termination time apply to the copied State award (see item 10 of Schedule 3A to the Transitional Act as that item applies in a modified way because of section 768BY).\n\n (3) If the terms of the original State award were affected by an order, a decision or a determination of a State industrial body or a court of the State that was in operation immediately before the termination time, the terms of the copied State award are taken to be similarly affected by the terms of that order, decision or determination.","sortOrder":1762},{"sectionNumber":"768AJ","sectionType":"section","heading":"What is a State award?","content":"768AJ  What is a State award?\n\n (1) A State award is an instrument in relation to which the following conditions are satisfied:\n\n (a) the instrument regulates terms and conditions of employment;\n\n (b) the instrument was made under a State industrial law by a State industrial body;\n\n (c) the instrument is referred to in that law as an award.\n\n (2) However, the regulations may provide that an instrument of a specified kind:\n\n (a) is a State award; or\n\n (b) is not a State award.","sortOrder":1763},{"sectionNumber":"768AK","sectionType":"section","heading":"What is a copied State employment agreement?","content":"768AK  What is a copied State employment agreement?\n\n (1) If, immediately before the termination time of a transferring employee:\n\n (a) a State employment agreement (the original State agreement) was in operation under a State industrial law of the State; and\n\n (b) the original State agreement covered (however described in the original State agreement or a relevant law of the State) the old State employer and the transferring employee (whether or not the original State agreement also covered other persons);\n\nthen a copied State employment agreement for the transferring employee is taken to come into operation immediately after the termination time.\n\nNote 1: Even though a copied State employment agreement comes into operation for the transferring employee, it will not be enforceable by the employee or another person (for example, the new employer) unless and until it applies to the employee or other person. In particular, it will not apply to the employee or new employer before the employee becomes employed by the new employer. For when the copied State employment agreement applies to a person, see section 768AM.\n\nNote 2: A copied State award for the transferring employee may also come into operation immediately after the termination time, see subsection 768AI(1). If it does, then the State’s interaction rules that were in force immediately before the termination time apply for the purposes of working out the interaction between the copied State employment agreement and the copied State award (see item 11 of Schedule 3A to the Transitional Act as that item applies in a modified way because of section 768BY).\n\n (2) The copied State employment agreement is taken to include the same terms as were in the original State agreement immediately before the termination time.\n\nNote: The State’s instrument content rules that were in force immediately before the termination time apply to the copied State employment agreement (see item 10 of Schedule 3A to the Transitional Act as that item applies in a modified way because of section 768BY).\n\n (3) If the terms of the original State employment agreement were affected by an order, a decision or a determination of a State industrial body or a court of the State that was in operation immediately before the termination time, the terms of the copied State employment agreement are taken to be similarly affected by the terms of that order, decision or determination.\n\n (4) If the original State agreement is a collective State employment agreement, the copied State employment agreement is a copied State collective employment agreement.\n\n (5) If the original State agreement is an individual State employment agreement, the copied State employment agreement is a copied State individual employment agreement.","sortOrder":1764},{"sectionNumber":"768AL","sectionType":"section","heading":"What is a State employment agreement?","content":"768AL  What is a State employment agreement?\n\n (1) A State employment agreement is:\n\n (a) an agreement in relation to which the following conditions are satisfied:\n\n (i) the agreement is between a non‑national system employer and one or more of the employees of the employer, or between a non‑national system employer and an association of employees registered under a State industrial law;\n\n (ii) the agreement determines terms and conditions of employment of one or more employees of the employer;\n\n (iii) the agreement was made under a State industrial law; or\n\n (b) a determination in relation to which the following conditions are satisfied:\n\n (i) the determination determines terms and conditions of employment;\n\n (ii) the determination was made under a State industrial law by a State industrial body;\n\n (iii) the determination was made in a situation in which parties who were negotiating for the making of an agreement of a kind described in paragraph (a) had not been able to reach an agreement;\n\n (iv) the purpose of the determination was to resolve the matters that were at issue in those negotiations.\n\n (2) However, the regulations may provide that an instrument of a specified kind:\n\n (a) is a State employment agreement; or\n\n (b) is not a State employment agreement.\n\n (3) A State employment agreement is a State collective employment agreement unless:\n\n (a) it is an agreement of a kind that, under the relevant State industrial law, could only be entered into by a single employee and a single employer; or\n\n (b) the agreement is of a kind prescribed by the regulations.\n\n (4) A State employment agreement referred to in paragraph (3)(a) or (b) is a State individual employment agreement.","sortOrder":1765},{"sectionNumber":"768AM","sectionType":"section","heading":"When does a copied State instrument apply to a person?","content":"768AM  When does a copied State instrument apply to a person?\n\nTransferring employee and organisations\n\n (1) A copied State instrument for a transferring employee applies to the transferring employee or an organisation if:\n\n (a) the instrument covers the employee or organisation; and\n\n (b) the instrument is in operation; and\n\n (c) no other provision of this Act provides, or has the effect, that the instrument does not apply to the employee or organisation; and\n\n (d) immediately before the employee’s termination time, the employee or organisation would have been:\n\n (i) required by the law of the State to comply with terms of the original State award or original State agreement for the instrument; or\n\n (ii) entitled under the law of the State to enforce terms of the original State award or original State agreement for the instrument.\n\nNew employer and other employers\n\n (2) A copied State instrument for a transferring employee applies to an employer (whether the new employer or another employer) if:\n\n (a) the instrument covers the employer; and\n\n (b) the instrument is in operation; and\n\n (c) no other provision of this Act provides, or has the effect, that the instrument does not apply to the employer; and\n\n (d) immediately before the employee’s termination time, the old State employer would have been:\n\n (i) required by the law of the State to comply with terms of the original State award or original State agreement for the instrument; or\n\n (ii) entitled under the law of the State to enforce terms of the original State award or original State agreement for the instrument.\n\nNote: This subsection may operate in relation to an employer that is not the new employer in the situation where there has been a later transfer of business by the new employer (see Part 2‑8).\n\nOther circumstances when instrument applies\n\n (3) A copied State instrument for a transferring employee also applies to a person if an FWC order made under a provision of this Act provides, or has the effect, that the instrument applies to the person.\n\nInstrument only applies in relation to transferring work\n\n (4) A reference in this Act to a copied State instrument for a transferring employee applying to the employee is a reference to the instrument applying to the employee in relation to the transferring work of the employee.","sortOrder":1766},{"sectionNumber":"768AN","sectionType":"section","heading":"When does a copied State instrument cover a person?","content":"768AN  When does a copied State instrument cover a person?\n\nTransferring employee and new employer\n\n (1) A copied State instrument for a transferring employee covers the employee and the new employer in relation to the transferring work from the employee’s re‑employment time.\n\nEmployee organisation\n\n (2) A copied State instrument for a transferring employee covers an employee organisation in relation to the employee if:\n\n (a) the instrument covers the employee because of subsection (1); and\n\n (b) immediately before the employee’s termination time, the original State award or original State agreement for the instrument covered (however described in the original State award or original State agreement or in a relevant law of the State) the organisation in relation to the employee.\n\nEmployer organisation\n\n (3) A copied State instrument for a transferring employee covers an employer organisation in relation to the new employer if:\n\n (a) the instrument covers the new employer because of subsection (1); and\n\n (b) immediately before the employee’s termination time, the original State award or original State agreement for the instrument covered (however described in the original State award or original State agreement or in a relevant law of the State) the organisation in relation to the old State employer.\n\nOther circumstances when a person is covered\n\n (4) A copied State instrument for a transferring employee also covers a person if any of the following provides, or has the effect, that the instrument covers the person:\n\n (a) a provision of this Act or of the Registered Organisations Act;\n\n (b) an FWC order made under a provision of this Act;\n\n (c) an order of a court.\n\nExample: The FWC may make a consolidation order specifying that the instrument covers a person specified in the order (see subsections 768BE(1) and 768BH(1)).\n\nCircumstances when a person is not covered\n\n (5) Despite subsections (1), (2), (3) and (4), a copied State instrument for a transferring employee does not cover a person if any of the following provides, or has the effect, that the instrument does not cover the person:\n\n (a) a provision of this Act;\n\n (b) an FWC order made under a provision of this Act;\n\n (c) an order of a court.\n\nExample: If, after the transferring employee’s re‑employment time, an enterprise agreement starts to cover the employee, subsection 768AU(2) provides that a copied State instrument for the employee ceases to cover the employee.\n\n (6) Despite subsections (1), (2), (3) and (4), a copied State instrument for a transferring employee that has ceased to operate does not cover a person.\n\nCovered only in relation to transferring work\n\n (7) A reference to a copied State instrument for a transferring employee covering the employee is a reference to the instrument covering the employee in relation to the transferring work of the employee.","sortOrder":1767},{"sectionNumber":"768AO","sectionType":"section","heading":"When is a copied State instrument in operation?","content":"768AO  When is a copied State instrument in operation?\n\nWhen instrument comes into operation\n\n (1) A copied State instrument for a transferring employee comes into operation immediately after the employee’s termination time.\n\nWhen copied State award ceases to operate\n\n (2) A copied State award for a transferring employee ceases to operate at the following time:\n\n (a) unless paragraph (b) applies—the end of the period (the default period) that is 5 years or such longer period as is prescribed by the regulations, starting on the day the employee’s termination time occurred;\n\n (b) if the regulations allow the FWC to make an order to extend the period of operation of a copied State award for a transferring employee and, in accordance with those regulations, the FWC makes an order that the award operates for a period that is longer than the default period—the end of that period.\n\n (3) The regulations may:\n\n (a) prescribe circumstances in which the FWC may make an order for the purposes of paragraph (2)(b); and\n\n (b) prescribe a maximum period that the order may specify; and\n\n (c) otherwise make provision in relation to the making of the order.\n\nWhen copied State agreement ceases to operate\n\n (4) A copied State employment agreement for a transferring employee ceases to operate when it is terminated, which may happen before or after the nominal expiry date of the agreement.\n\nNote 1: See section 768AY for how the copied State employment agreement can be terminated.\n\nNote 2: If, after the transferring employee’s re‑employment time with the new employer, an enterprise agreement is made that covers the employee and the new employer, then the copied State employment agreement will cease to cover the employee and the new employer and will never cover them again, see section 768AU.\n\n (5) The nominal expiry date of a copied State employment agreement for a transferring employee is:\n\n (a) the day the original State agreement would nominally have expired under the State industrial law of the State; or\n\n (b) if that day falls after the end of 4 years beginning on the day the employee’s termination time occurs—the last day of that 4‑year period.\n\nOnce instrument ceases operation, can never operate again\n\n (6) A copied State instrument for a transferring employee that has ceased to operate can never operate again.","sortOrder":1768},{"sectionNumber":"768AP","sectionType":"section","heading":"What this Division is about","content":"768AP  What this Division is about\n\nThis Division provides for how copied State instruments interact with the National Employment Standards, modern awards and enterprise agreements.","sortOrder":1771},{"sectionNumber":"768AQ","sectionType":"section","heading":"Interaction between the NES and a copied State instrument","content":"768AQ  Interaction between the NES and a copied State instrument\n\n  To the extent that a term of a copied State instrument for a transferring employee is detrimental to the employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards, the term of the instrument is of no effect.","sortOrder":1773},{"sectionNumber":"768AR","sectionType":"section","heading":"Provisions of the NES that allow instruments to contain particular kinds of terms","content":"768AR  Provisions of the NES that allow instruments to contain particular kinds of terms\n\nApplication of particular provisions of the NES\n\n (1) The following provisions have effect, on and after the re‑employment time of a transferring employee, as if a reference to a modern award or an enterprise agreement included a reference to a copied State instrument for the transferring employee:\n\n (a) section 63 (which allows terms dealing with averaging of hours of work);\n\n (b) section 93 (which allows terms dealing with cashing out and taking paid annual leave);\n\n (c) section 101 (which allows terms dealing with cashing out paid personal/carer’s leave);\n\n (d) subsection 107(5) (which allows terms dealing with evidence requirements for paid personal/carer’s leave etc.);\n\n (e) subsection 115(3) (which allows terms dealing with substitution of public holidays);\n\n (f) section 118 (which allows terms dealing with an employee giving notice to terminate his or her employment);\n\n (g) subsections 121(2) and (3) (which allow terms specifying situations in which the redundancy pay entitlement under section 119 does not apply);\n\n (h) section 126 (which allows terms providing for school‑based apprentices and trainees to be paid loadings in lieu).\n\nTerms about paid annual leave and personal/carer’s leave\n\n (2) If a copied State instrument for a transferring employee:\n\n (a) includes terms referred to in subsection 93(1) but the terms do not include the requirements referred to in subsection 93(2); or\n\n (b) includes terms referred to in subsection 101(1) but the terms do not include the requirements referred to in subsection 101(2);\n\nthen the instrument is taken to include terms that include the requirements.\n\nShiftworker annual leave entitlement\n\n (3) If a copied State instrument for a transferring employee applies to the employee, then subsections 87(3) to (5) have effect, on and after the employee’s re‑employment time, in the same way as they apply to an award/agreement free employee.\n\nNote: If the transferring employee qualifies for the shiftworker annual leave entitlement under those subsections, the employee will be entitled to 5 (rather than 4) weeks of paid annual leave.","sortOrder":1774},{"sectionNumber":"768AS","sectionType":"section","heading":"Modern awards and copied State awards","content":"768AS  Modern awards and copied State awards\n\n (1) While a copied State award for a transferring employee:\n\n (a) covers the employee, or an employer (whether the new employer or another national system employer) or other person in relation to the employee; and\n\n (b) is in operation;\n\na modern award does not cover the employee, or the employer or other person in relation to the employee.\n\nNote 1: When the copied State award for a transferring employee ceases to cover the employee, a modern award will start to cover the employee, or an employer or other person in relation to the employee.\n\nNote 2: This subsection may operate in relation to an employer that is not the new employer in the situation where there has been a later transfer of business by the new employer (see Part 2‑8).\n\n (2) Subsection (1) does not apply for the purposes of section 193 (which is about the better off overall test for enterprise agreements).\n\nNote: For the purposes of determining whether an enterprise agreement that covers a transferring employee passes the better off overall test, subsection (2) allows the enterprise agreement to be compared against a modern award that covers the employee.\n\n (3) This section has effect subject to any FWC order about coverage under subsection 768BA(1).","sortOrder":1776},{"sectionNumber":"768AT","sectionType":"section","heading":"Modern awards and copied State employment agreements","content":"768AT  Modern awards and copied State employment agreements\n\nCopied State collective employment agreements\n\n (1) If a copied State collective employment agreement for a transferring employee and a modern award both apply:\n\n (a) to the employee; or\n\n (b) to an employer (whether the new employer or another national system employer) or another person in relation to the employee;\n\nthen the copied State collective employment agreement for the employee prevails over the modern award, to the extent of any inconsistency.\n\nNote 1: This subsection has effect subject to item 17 of Schedule 9 to the Transitional Act as that item applies in a modified way because of section 768BY. That item, as modified, requires that the base rate of pay under the copied State employment agreement must not be less than the modern award rate.\n\nNote 2: This subsection may operate in relation to an employer that is not the new employer in the situation where there has been a later transfer of business by the new employer (see Part 2‑8).\n\nCopied State individual employment agreements\n\n (2) While a copied State individual employment agreement for a transferring employee applies:\n\n (a) to the employee; or\n\n (b) to an employer (whether the new employer or another national system employer) or another person in relation to the employee;\n\na modern award does not apply to the employee, or to the employer or other person in relation to the employee.\n\nNote 1: However, a modern award can cover the transferring employee while the copied State individual employment agreement applies.\n\nNote 2: This subsection has effect subject to item 17 of Schedule 9 to the Transitional Act as that item applies in a modified way because of section 768BY. That item, as modified, requires that the base rate of pay under the copied State employment agreement must not be less than the modern award rate.\n\nNote 3: This subsection may operate in relation to an employer that is not the new employer in the situation where there has been a later transfer of business by the new employer (see Part 2‑8).\n\nFWC coverage orders\n\n (3) This section has effect subject to any FWC order about coverage under subsection 768BA(1).","sortOrder":1777},{"sectionNumber":"768AU","sectionType":"section","heading":"Enterprise agreements and copied State instruments","content":"768AU  Enterprise agreements and copied State instruments\n\n (1) While a copied State instrument for a transferring employee covers the employee and the new employer in relation to the transferring work, an enterprise agreement that covers the new employer at the employee’s re‑employment time does not cover the employee in relation to that work.\n\nNote 1: The fact that a copied State collective employment agreement for a transferring employee covers the employee does not prevent the employee and the new employer from replacing that agreement at any time with an enterprise agreement, regardless of whether the employee’s copied State collective employment agreement has passed its nominal expiry date.\n\nNote 2: Industrial action must not be taken before the nominal expiry date of a copied State collective employment agreement for a transferring employee (see item 4 of Schedule 13 to the Transitional Act as that item applies in a modified way because of section 768BY).\n\n (2) However, if after the re‑employment time, another enterprise agreement starts to cover the employee and the new employer in relation to the transferring work, then the copied State instrument for the employee ceases to cover the employee and the new employer and can never cover them again.\n\n (3) This section has effect subject to any FWC order about coverage under subsection 768BA(1).","sortOrder":1779},{"sectionNumber":"768AV","sectionType":"section","heading":"What this Division is about","content":"768AV  What this Division is about\n\nThis Division sets out when a copied State instrument may be varied or terminated.","sortOrder":1782},{"sectionNumber":"768AW","sectionType":"section","heading":"Variation in limited circumstances","content":"768AW  Variation in limited circumstances\n\n  A copied State instrument for a transferring employee cannot be varied except under:\n\n (a) section 768AX; or\n\n (b) item 20 of Schedule 3A to the Transitional Act (which deals with variation of discriminatory instruments) as that item has effect because of section 768BY; or\n\n (c) item 20 of Schedule 9 to the Transitional Act (which deals with variation of instruments in annual wage reviews) as that item has effect because of section 768BY; or\n\n (d) Division 4 of Part 3 of Schedule 11 to the Transitional Act (which deals with transfer of business) as that Division has effect because of section 768BY.","sortOrder":1784},{"sectionNumber":"768AX","sectionType":"section","heading":"Variation of copied State instruments","content":"768AX  Variation of copied State instruments\n\nApplication of this section\n\n (1A) This section applies if there is, or is likely to be, a transfer of business.\n\nVariations that may be made\n\n (1) The FWC may vary a copied State instrument for a transferring employee:\n\n (a) to remove terms that the FWC is satisfied are not, or will not be, capable of meaningful operation or to vary those terms so that they are capable of meaningful operation; or\n\n (b) to remove an ambiguity or uncertainty in the instrument; or\n\n (c) to enable the instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise; or\n\n (d) to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, or to make the instrument operate effectively with the National Employment Standards; or\n\n (e) if the instrument is a copied State employment agreement—to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or\n\n (f) to remove terms that are inconsistent with Part 3‑1 (which deals with general protections), or to vary terms to make them consistent with that Part.\n\nNote: Paragraph (d) does not affect a term of the copied State instrument that is permitted by a provision of the National Employment Standards as the provision has effect under section 768AR.\n\nWho may apply for a variation\n\n (2) The FWC may make a variation under subsection (1):\n\n (a) on its own initiative; or\n\n (b) on application by a person who is, or is likely to be, covered by the copied State instrument; or\n\n (c) on application by an employee organisation that is entitled to represent the industrial interests of an employee who is, or is likely to be, covered by the copied State instrument.\n\nNote: The copied State instrument for the transferring employee may also cover another transferring employee or a non‑transferring employee if a consolidation order is made.\n\nMatters that the FWC must take into account\n\n (3) In deciding whether to make a variation under subsection (1), the FWC must take into account the following:\n\n (a) the views of:\n\n (i) the employees who would be affected by the copied State instrument as varied; and\n\n (ii) the new employer or a person who is likely to be the new employer;\n\n (b) whether any employees would be disadvantaged by the copied State instrument as varied in relation to their terms and conditions of employment;\n\n (c) if the copied State instrument is a copied State employment agreement—the nominal expiry date of the agreement;\n\n (d) whether the copied State instrument, without the variation, would have a negative impact on the productivity of the new employer’s workplace;\n\n (e) whether the new employer would incur significant economic disadvantage as a result of the copied State instrument, without the variation;\n\n (f) the degree of business synergy between the copied State instrument, without the variation, and any workplace instrument that already covers the new employer;\n\n (g) the public interest.\n\nVariation relating to the NES\n\n (4) If there is a dispute about the making of a variation for the purposes of paragraph (1)(d), the FWC may compare the entitlements that are in dispute:\n\n (a) on a “line‑by‑line” basis, comparing individual terms; or\n\n (b) on a “like‑by‑like” basis, comparing entitlements according to particular subject areas; or\n\n (c) using any combination of the above approaches the FWC sees fit.\n\n (5) The regulations may make provisions that apply to determining, for the purposes of paragraph (1)(d), whether terms of a copied State instrument for a transferring employee are, or are not, detrimental in any respect when compared to entitlements under the National Employment Standards.\n\nWhen variation may be made\n\n (6) A variation may be made under subsection (1) in relation to a copied State instrument of a transferring employee:\n\n (a) before the copied State instrument comes into operation, if it is likely that the instrument will come into operation; and\n\n (b) before the employee is a transferring employee, if it is likely that the employee will become a transferring employee.\n\nRestriction on when variation may come into operation\n\n (7) A variation under subsection (1) operates from the day specified in the variation, which may be a day before the variation is made.","sortOrder":1785},{"sectionNumber":"768AY","sectionType":"section","heading":"Termination in limited circumstances","content":"768AY  Termination in limited circumstances\n\n (1) A copied State instrument for a transferring employee cannot be terminated except under items 22, 23, 24, 25 and 26 of Schedule 3A to the Transitional Act (which deal with termination of State employment agreements) as those items have effect because of section 768BY.\n\n (2) A copied State instrument for a transferring employee that has been terminated ceases to operate and can never operate again.\n\nNote: A copied State instrument that does not operate cannot cover a person (see subsection 768AN(6)).","sortOrder":1787},{"sectionNumber":"768AZ","sectionType":"section","heading":"What this Division is about","content":"768AZ  What this Division is about\n\nThis Division allows the FWC to make an order that a copied State instrument for a transferring employee does not, or will not, cover the employee and that an enterprise agreement or named employer award that covers the new employer covers, or will cover, the employee instead.\n\nIt also allows the FWC to make an order that a copied State instrument for a transferring employee does not, or will not, cover an employee organisation but instead covers, or will cover, another employee organisation.","sortOrder":1790},{"sectionNumber":"768AZA","sectionType":"section","heading":"Orders in relation to a transfer of business","content":"768AZA  Orders in relation to a transfer of business\n\n (1) This Division provides for orders to be made if there is, or is likely to be, a transfer of business.\n\n (2) An order may be made under this Division in relation to a copied State instrument of a transferring employee:\n\n (a) before the copied State instrument comes into operation, if it is likely that the instrument will come into operation; and\n\n (b) before the employee is a transferring employee, if it is likely that the employee will become a transferring employee.","sortOrder":1791},{"sectionNumber":"768BA","sectionType":"section","heading":"FWC orders about coverage for transferring employees","content":"768BA  FWC orders about coverage for transferring employees\n\nOrders that the FWC may make\n\n (1) The FWC may make the following orders:\n\n (a) an order that a copied State instrument for a transferring employee that would, or would be likely to, cover the transferring employee and the new employer because of subsection 768AN(1) does not, or will not, cover the transferring employee and the new employer;\n\n (b) an order that an enterprise agreement or named employer award that covers the new employer at the transferring employee’s re‑employment time covers, or will cover, the transferring employee.\n\nWho may apply for an order\n\n (2) The FWC may make an order under subsection (1):\n\n (a) on its own initiative; or\n\n (b) on application by any of the following:\n\n (i) a transferring employee or an employee who is likely to be a transferring employee;\n\n (ii) the new employer or a person who is likely to be the new employer;\n\n (iii) an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i);\n\n (iv) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement.\n\nMatters that the FWC must take into account\n\n (3) In deciding whether to make an order under subsection (1), the FWC must take into account the following:\n\n (a) the views of:\n\n (i) the employees who would be affected by the order; and\n\n (ii) the new employer or a person who is likely to be the new employer;\n\n (b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;\n\n (c) if the order relates to a copied State employment agreement or an enterprise agreement—the nominal expiry date of the agreement;\n\n (d) whether the copied State instrument would have a negative impact on the productivity of the new employer’s workplace;\n\n (e) whether the new employer would incur significant economic disadvantage as a result of the copied State instrument covering the new employer;\n\n (f) the degree of business synergy between the copied State instrument and any workplace instrument that already covers the new employer;\n\n (g) the public interest.\n\nRestriction on when order may come into operation\n\n (4) An order under subsection (1) must not come into operation in relation to a particular transferring employee before the later of the following:\n\n (a) the transferring employee’s re‑employment time;\n\n (b) the day on which the order is made.","sortOrder":1793},{"sectionNumber":"768BB","sectionType":"section","heading":"FWC orders about coverage for employee organisations","content":"768BB  FWC orders about coverage for employee organisations\n\n (1) The FWC may make an order that:\n\n (a) a copied State instrument for a transferring employee that would, or would be likely to, cover an employee organisation (the first employee organisation) in relation to the transferring employee because of subsection 768AN(2) does not, or will not, cover the organisation; and\n\n (b) another employee organisation (the second employee organisation) is, or will be, covered by the copied State instrument in relation to the employee.\n\n (2) When making an order under subsection (1), the FWC must consider whether the second employee organisation is a federal counterpart (within the meaning of section 9A of the Registered Organisations Act) of the first employee organisation.\n\n (3) The regulations may:\n\n (a) prescribe circumstances in which the FWC may make an order for the purposes of subsection (1); and\n\n (b) otherwise make provision in relation to the making of the order.\n\n (4) An order under subsection (1) must be made in accordance with any regulations that are made for the purposes of subsection (3).","sortOrder":1794},{"sectionNumber":"768BC","sectionType":"section","heading":"What this Division is about","content":"768BC  What this Division is about\n\nThis Division allows the FWC to consolidate the various workplace instruments that may apply in the new employer’s workplace. It achieves this by allowing the FWC to make an order that a copied State instrument for a particular transferring employee is also a copied State instrument for one or more other transferring employees or non‑transferring employees.\n\nSubdivision B deals with consolidating copied State instruments for transferring employees. Under that Subdivision, the FWC may make an order that the copied State instrument for a transferring employee (“employee A”) is also the copied State instrument for one or more other transferring employees. If the FWC makes a consolidation order for those other transferring employees, then this Act is modified so that the copied State instrument for employee A is also the copied State instrument for those other transferring employees (see section 768BF).\n\nSubdivision C deals with non‑transferring employees. Under that Subdivision, the FWC may make an order that the copied State instrument for employee A (who is a transferring employee) is also the copied State instrument for one or more non‑transferring employees. If the FWC makes a consolidation order for those non‑transferring employees, then this Act is modified so that the copied State instrument for employee A is also the copied State instrument for those non‑transferring employees (see section 768BI).","sortOrder":1797},{"sectionNumber":"768BCA","sectionType":"section","heading":"Orders in relation to a transfer of business","content":"768BCA  Orders in relation to a transfer of business\n\n (1) This Division provides for orders to be made if there is, or is likely to be, a transfer of business.\n\n (2) An order may be made under this Division in relation to a copied State instrument of a transferring employee:\n\n (a) before the copied State instrument comes into operation, if it is likely that the instrument will come into operation; and\n\n (b) before the employee is a transferring employee, if it is likely that the employee will become a transferring employee.","sortOrder":1798},{"sectionNumber":"768BD","sectionType":"section","heading":"Consolidation orders in relation to transferring employees","content":"768BD  Consolidation orders in relation to transferring employees\n\nConsolidation order\n\n (1) The FWC may make an order (a consolidation order) that a copied State instrument for a transferring employee (employee A) is also a copied State instrument for one or more other transferring employees.\n\nWho may apply for order\n\n (2) The FWC may make a consolidation order under subsection (1):\n\n (a) on its own initiative; or\n\n (b) on application by any of the following:\n\n (i) a transferring employee, or an employee who is likely to be a transferring employee;\n\n (ii) the new employer or a person who is likely to be the new employer;\n\n (iii) an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i).\n\nMatters that the FWC must take into account\n\n (3) In deciding whether to make a consolidation order under subsection (1), the FWC must take into account the following:\n\n (a) the views of:\n\n (i) the employees who would be affected by the order; and\n\n (ii) the new employer or a person who is likely to be the new employer;\n\n (b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;\n\n (c) if the order relates to a copied State employment agreement—the nominal expiry date of the agreement;\n\n (d) whether the copied State instrument for employee A would have a negative impact on the productivity of the new employer’s workplace;\n\n (e) whether the new employer would incur significant economic disadvantage if the order were not made;\n\n (f) the degree of business synergy between the copied State instrument for employee A and any workplace instrument that already covers the new employer;\n\n (g) the public interest.\n\nRestriction on when order may come into operation\n\n (4) A consolidation order under subsection (1) must not come into operation in relation to a particular transferring employee (other than employee A) before the later of the following:\n\n (a) the transferring employee’s re‑employment time;\n\n (b) the day on which the order is made.","sortOrder":1800},{"sectionNumber":"768BE","sectionType":"section","heading":"Consolidation order to deal with application and coverage","content":"768BE  Consolidation order to deal with application and coverage\n\n (1) A consolidation order under subsection 768BD(1) must specify when the copied State instrument for employee A applies to, and covers:\n\n (a) another transferring employee; and\n\n (b) the new employer in relation to the other transferring employee; and\n\n (c) an employee organisation in relation to the other transferring employee;\n\nwhich must not be before the other transferring employee’s re‑employment time.\n\n (2) Once the consolidation order comes into operation in relation to the other transferring employee, the copied State instrument for the other transferring employee ceases to operate.","sortOrder":1801},{"sectionNumber":"768BF","sectionType":"section","heading":"Effect of this Act after a consolidation order is made","content":"768BF  Effect of this Act after a consolidation order is made\n\n  If the FWC makes a consolidation order under subsection 768BD(1), then this Act has effect in relation to a particular transferring employee (other than employee A), from the time the order comes into operation in relation to that employee, as if a reference in relation to that employee to the copied State instrument for that employee were a reference to the copied State instrument for employee A.","sortOrder":1802},{"sectionNumber":"768BG","sectionType":"section","heading":"Consolidation orders in relation to non-transferring employees","content":"768BG  Consolidation orders in relation to non‑transferring employees\n\nConsolidation order\n\n (1) The FWC may make an order (a consolidation order) that a copied State instrument for a transferring employee (employee A) also is, or will be, a copied State instrument for one or more non‑transferring employees who perform, or are likely to perform, the transferring work.\n\nNon‑transferring employees\n\n (2) A non‑transferring employee of a new employer is a national system employee of the new employer who is not a transferring employee.\n\nWho may apply for order\n\n (3) The FWC may make a consolidation order under subsection (1):\n\n (a) on its own initiative; or\n\n (b) on application by any of the following:\n\n (i) a non‑transferring employee who performs, or is likely to perform, the transferring work;\n\n (ii) the new employer or a person who is likely to be the new employer;\n\n (iii) an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i);\n\n (iv) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement.\n\nMatters that the FWC must take into account\n\n (4) In deciding whether to make a consolidation order under subsection (1), the FWC must take into account the following:\n\n (a) the views of:\n\n (i) the employees who would be affected by the order; and\n\n (ii) the new employer or a person who is likely to be the new employer;\n\n (b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;\n\n (c) if the order relates to a copied State employment agreement or an enterprise agreement—the nominal expiry date of the agreement;\n\n (d) whether the copied State instrument for employee A would have a negative impact on the productivity of the new employer’s workplace;\n\n (e) whether the new employer would incur significant economic disadvantage if the order were not made;\n\n (f) the degree of business synergy between the copied State instrument for employee A and any workplace instrument that already covers the new employer;\n\n (g) the public interest.\n\nRestriction on when order may come into operation\n\n (5) A consolidation order under subsection (1) must not come into operation in relation to a particular non‑transferring employee before the later of the following:\n\n (a) the time when the non‑transferring employee starts to perform the transferring work for the new employer;\n\n (b) the day on which the order is made.","sortOrder":1804},{"sectionNumber":"768BH","sectionType":"section","heading":"Consolidation order to deal with application and coverage","content":"768BH  Consolidation order to deal with application and coverage\n\n (1) A consolidation order under subsection 768BG(1) must specify when the copied State instrument for employee A applies to, and covers:\n\n (a) a non‑transferring employee; and\n\n (b) the new employer in relation to the non‑transferring employee; and\n\n (c) an employee organisation in relation to the non‑transferring employee;\n\nin relation to the transferring work.\n\n (2) If an enterprise agreement covers the non‑transferring employee and the new employer, the order must also specify that the agreement does not cover:\n\n (a) the non‑transferring employee; or\n\n (b) the new employer in relation to the non‑transferring employee; or\n\n (c) an employee organisation in relation to the non‑transferring employee;\n\nin relation to that work.","sortOrder":1805},{"sectionNumber":"768BI","sectionType":"section","heading":"Effect of this Act after a consolidation order is made","content":"768BI  Effect of this Act after a consolidation order is made\n\n  If the FWC makes a consolidation order under subsection 768BG(1), then this Act has effect in relation to a particular non‑transferring employee, from the time the order comes into operation in relation to that employee, as if:\n\n (a) the copied State instrument for employee A were also the copied State instrument for that employee; and\n\n (b) that employee were a transferring employee in relation to that copied State instrument.","sortOrder":1806},{"sectionNumber":"768BJ","sectionType":"section","heading":"What this Division is about","content":"768BJ  What this Division is about\n\nThis Division has a collection of special rules for copied State instruments for transferring employees.\n\nSubdivision B deals with the case where a copied State instrument for a transferring employee does not have a term about settling disputes about matters arising under the instrument. In that case, the model term prescribed by the regulations is taken to be a term of the instrument.\n\nSubdivision C is about working out service and entitlements of a transferring employee. This is particularly relevant for working out the employee’s entitlements under the National Employment Standards and the copied State instrument for the employee.\n\nSubdivision D deals with the case where a copied State award for a transferring employee ceases to operate and the employee suffers a reduction in take home pay. That Subdivision allows the FWC to make a take‑home pay order to compensate the employee.\n\nSubdivision E modifies particular provisions of this Act in relation to copied State instruments.\n\nSubdivision F modifies particular provisions of the Transitional Act in relation to copied State instruments.\n\nSubdivision G modifies particular provisions of the Registered Organisations Act in relation to copied State instruments.","sortOrder":1809},{"sectionNumber":"768BK","sectionType":"section","heading":"Where no term dealing with disputes","content":"768BK  Where no term dealing with disputes\n\nModel term required\n\n (1) If a copied State instrument for a transferring employee does not include a term that provides a procedure for settling disputes about matters arising under the instrument, then the instrument is taken to include the model term that is determined under subsection (1A) for settling disputes about matters arising under a copied State instrument for a transferring employee.\n\nNote: This section deals with the situation where the original State award or original State agreement for the copied State instrument did not include a term about settling disputes about matters arising under the award or agreement.\n\nModel term determined by FWC\n\n (1A) The FWC must determine a model term for the purposes of subsection (1).\n\n (2) For the purposes of subsection (1A), the model term determined for a copied State award for a transferring employee may be the same or different from the model term determined for a copied State employment agreement for a transferring employee.\n\n (3) In determining the model term, the FWC must take into account the following matters:\n\n (a) whether the model term is broadly consistent with comparable terms in modern awards;\n\n (b) best practice workplace relations as determined by the FWC;\n\n (c) whether all persons and bodies have had a reasonable opportunity to be heard and make submissions to the FWC for consideration in determining the model term;\n\n (d) the operation of subsections 739(3), (4), (5) and (6) and 740(3) and (4);\n\n (e) the object of this Act (see section 3);\n\n (f) any other matters the FWC considers relevant.\n\nNote 1: The FWC must be constituted by a Full Bench to make the model term for settling disputes (see subsection 616(4A)).\n\nNote 2: For the variation of a determination, see subsection 33(3) of the Acts Interpretation Act 1901.\n\n (4) A determination under subsection (1A) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.","sortOrder":1811},{"sectionNumber":"768BL","sectionType":"section","heading":"Service for the purposes of this Act","content":"768BL  Service for the purposes of this Act\n\nGeneral rule\n\n (1) Service of a transferring employee with the old State employer that occurred before the employee’s termination time also counts as service of the employee with the new employer for the purposes of this Act (including for the purposes of determining the employee’s entitlements under the National Employment Standards) after the employee’s re‑employment time.\n\nGap between termination time and re‑employment time\n\n (2) If there is a period of time between the employee’s termination time with the old State employer and the employee’s re‑employment time with the new employer, then that period:\n\n (a) does not break the employee’s continuous service with the new employer (taking account of the effect of subsection (1)); but\n\n (b) does not count towards the length of the employee’s continuous service with the new employer.","sortOrder":1813},{"sectionNumber":"768BM","sectionType":"section","heading":"NES—working out non-accruing entitlements","content":"768BM  NES—working out non‑accruing entitlements\n\nApplication of this section\n\n (1) This section applies for the purposes of determining the entitlements of a transferring employee under the National Employment Standards, other than entitlements to:\n\n (a) paid annual leave; or\n\n (b) paid personal/carer’s leave.\n\nNote: For entitlements to paid annual leave and paid personal/carer’s leave under the National Employment Standards, see section 768BN.\n\nNo double entitlement\n\n (2) If, before or after the employee’s termination time, the employee has the benefit of an entitlement, the amount of which is calculated by reference to a period of service, then subsection 768BL(1) does not result in that period of service with the old State employer being counted again when calculating the employee’s entitlements of that kind under the National Employment Standards.\n\n (3) To avoid doubt, subsection (2) does not require the employee to serve any initial qualifying period of service for long service leave again.\n\nLimitation on application of general rule to redundancy pay\n\n (4) If the terms and conditions of employment that applied to the employee’s employment by the old State employer immediately before the employee’s termination time did not provide for an entitlement to redundancy pay, then subsection 768BL(1) does not apply in relation to the employee and the new employer for the purposes of Subdivision B of Division 11 of Part 2‑2 (which deals with redundancy pay).\n\n (5) If a State industrial body could have made an order giving the employee an entitlement to redundancy pay (however described), had the employee’s employment been terminated for redundancy (however described) before the employee’s termination time, then:\n\n (a) the terms and conditions of the employee’s employment referred to in subsection (4) are taken to have provided for an entitlement to redundancy pay; and\n\n (b) paragraph 121(1)(b) does not apply in relation to the employee during the 12 months starting at the employee’s re‑employment time.\n\nNote: Because of paragraph (b), the employee may therefore be entitled to redundancy pay under section 119 if the employee’s employment is terminated by the new employer during the 12‑month period starting at the employee’s termination time, even if the new employer is a small business employer.","sortOrder":1814},{"sectionNumber":"768BN","sectionType":"section","heading":"NES—working out accruing entitlements","content":"768BN  NES—working out accruing entitlements\n\nApplication of this section\n\n (1) This section applies for the purposes of determining the entitlements of a transferring employee under the National Employment Standards to:\n\n (a) paid annual leave; or\n\n (b) paid personal/carer’s leave;\n\nif the employee had, immediately before the employee’s termination time, an accrued entitlement to an amount of:\n\n (c) paid annual leave (however described); or\n\n (d) paid personal or carer’s leave (however described).\n\nNote: For other entitlements under the National Employment Standards, see section 768BM.\n\nLeave accrued for purposes of the NES\n\n (2) The provisions of the National Employment Standards relating to:\n\n (a) taking that kind of leave (including rates of pay while taking leave); or\n\n (b) cashing‑out that kind of leave;\n\napply as a minimum standard to the accrued leave, after the employee’s re‑employment time, as if it had accrued under the National Employment Standards.\n\nNo double entitlement\n\n (3) However, if before or after the employee’s termination time, the old State employer paid the employee an amount in relation to some or all of the accrued leave, then for the purposes of subsection (2), the amount of accrued leave is reduced accordingly.\n\nWorking out whether leave accrued\n\n (4) For the purposes of subsection (1), it does not matter whether the entitlement to leave accrued under:\n\n (a) the original State award or original State agreement for the copied State instrument for the employee; or\n\n (b) a State industrial law of the State.","sortOrder":1815},{"sectionNumber":"768BO","sectionType":"section","heading":"Copied State instrument—service","content":"768BO  Copied State instrument—service\n\nGeneral rule\n\n (1) Service of a transferring employee with the old State employer that:\n\n (a) occurred before the employee’s termination time; and\n\n (b) counted for the purposes of the application to the employee of the original State award or original State agreement for the copied State instrument for the employee;\n\nalso counts as service of the employee with the new employer for the purposes of the application to the employee of the copied State instrument after the employee’s re‑employment time.\n\nGap between termination time and re‑employment time\n\n (2) If there is a period of time between the employee’s termination time with the old State employer and the employee’s re‑employment time with the new employer, then that period:\n\n (a) does not break the employee’s continuous service with the new employer (taking account of the effect of subsection (1)); but\n\n (b) does not count towards the length of the employee’s continuous service with the new employer.\n\nEffect of consolidation order\n\n (3) If the FWC makes a consolidation order under subsection 768BD(1), then, despite section 768BF, the original State award or original State agreement referred to in paragraph (1)(b) of this section is the original State award or original State agreement for the copied State instrument for the employee before the consolidation order was made.","sortOrder":1816},{"sectionNumber":"768BP","sectionType":"section","heading":"Copied State instrument—working out non-accruing entitlements","content":"768BP  Copied State instrument—working out non‑accruing entitlements\n\nApplication of this section\n\n (1) This section applies for the purposes of determining the entitlements of a transferring employee under a copied State instrument for the employee, other than entitlements to:\n\n (a) annual leave (however described); or\n\n (b) personal leave or carer’s leave (however described).\n\nNote: For entitlements to annual leave or personal leave or carer’s leave under the copied State instrument, see section 768BQ.\n\nNo double entitlement\n\n (2) If, before or after the employee’s termination time, the employee has the benefit of an entitlement, the amount of which is calculated by reference to a period of service, then subsection 768BO(1) does not result in that period of service with the old State employer being counted again when calculating the employee’s entitlements of that kind under the copied State instrument for the employee.\n\n (3) To avoid doubt, subsection (2) does not require the employee to serve any initial qualifying period of service for long service leave again.","sortOrder":1817},{"sectionNumber":"768BQ","sectionType":"section","heading":"Copied State instrument—working out accruing entitlements","content":"768BQ  Copied State instrument—working out accruing entitlements\n\nApplication of this section\n\n (1) This section applies for the purposes of determining the entitlements of a transferring employee under the copied State instrument for the employee to:\n\n (a) annual leave (however described); or\n\n (b) personal leave or carer’s leave (however described).\n\nNote: For other entitlements under the copied State instrument, see section 768BP.\n\nLeave accrued for purposes of the instrument\n\n (2) If the employee had, immediately before the employee’s termination time, an accrued entitlement to an amount of:\n\n (a) annual leave (however described); or\n\n (b) personal leave or carer’s leave (however described);\n\nthen the accrued leave is taken to have accrued under the copied State instrument for the employee.\n\nNo double entitlement\n\n (3) However, if before or after the employee’s termination time, the old State employer paid the employee an amount in relation to some or all of the accrued leave, then for the purposes of subsection (2), the amount of accrued leave is reduced accordingly.\n\nWorking out whether leave accrued\n\n (4) For the purposes of subsection (2), it does not matter whether the leave accrued under:\n\n (a) the original State award or original State agreement for the copied State instrument; or\n\n (b) a State industrial law of the State.","sortOrder":1818},{"sectionNumber":"768BR","sectionType":"section","heading":"Cessation not intended to result in reduction in take-home pay","content":"768BR  Cessation not intended to result in reduction in take‑home pay\n\n (1) If a copied State award for a transferring employee ceases to operate because of subsection 768AO(2), the cessation is not intended to result in a reduction in the take‑home pay of the employee.\n\n (2) A transferring employee’s take‑home pay is the pay the employee actually receives:\n\n (a) including wages and incentive‑based payments, and additional amounts such as allowances and overtime; but\n\n (b) disregarding the effect of any deductions that are made as permitted by section 324.\n\nNote: Deductions permitted by section 324 may (for example) include deductions under salary sacrificing arrangements.\n\n (3) A transferring employee suffers a reduction in take‑home pay if, and only if:\n\n (a) when the copied State award for the employee ceases to operate because of subsection 768AO(2), the employee becomes a person to whom a modern award applies; and\n\n (b) the employee is employed in the same position as (or a position that is comparable to) the position he or she was employed in immediately before the cessation of the copied State award; and\n\n (c) the amount of the employee’s take‑home pay for working particular hours or for a particular quantity of work after the cessation of the copied State award is less than what would have been the employee’s take‑home pay for those hours or that quantity of work immediately before the cessation; and\n\n (d) that reduction in the employee’s take‑home pay is attributable to the cessation of the copied State award.","sortOrder":1820},{"sectionNumber":"768BS","sectionType":"section","heading":"Orders remedying reductions in take-home pay","content":"768BS  Orders remedying reductions in take‑home pay\n\n (1) If the FWC is satisfied that a transferring employee to whom a modern award applies has suffered a reduction in take‑home pay, the FWC may make any order (a take‑home pay order) requiring, or relating to, the payment of an amount or amounts to the employee that the FWC considers appropriate to remedy the situation.\n\n (2) The FWC may make a take‑home pay order:\n\n (a) on its own initiative; or\n\n (b) on application by either of the following:\n\n (i) a transferring employee who has suffered a reduction in take‑home pay;\n\n (ii) an organisation that is entitled to represent the industrial interests of the employee.\n\n (3) The FWC must not make a take‑home pay order if:\n\n (a) the FWC considers that the reduction in take‑home pay is minor or insignificant; or\n\n (b) the FWC is satisfied that the employee has been adequately compensated in other ways for the reduction.\n\n (4) The FWC must ensure that a take‑home pay order is expressed so that:\n\n (a) it does not apply to a transferring employee unless the employee has actually suffered a reduction in take‑home pay; and\n\n (b) if the take‑home pay payable to the employee under the modern award increases after the order is made, there is a corresponding reduction in any amount payable to the employee under the order.\n\n (5) If the FWC is satisfied that an application for a take‑home pay order has already been made in relation to a transferring employee, the FWC may dismiss any later application that is made under these provisions in relation to the same employee.","sortOrder":1821},{"sectionNumber":"768BT","sectionType":"section","heading":"Contravening a take-home pay order","content":"768BT  Contravening a take‑home pay order\n\n  A person must not contravene a term of a take‑home pay order that applies to the person.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":1822},{"sectionNumber":"768BU","sectionType":"section","heading":"How long a take-home pay order continues to apply","content":"768BU  How long a take‑home pay order continues to apply\n\n  A take‑home pay order made in relation to a transferring employee to whom a particular modern award applies continues to apply in relation to the employee (subject to the terms of the order) for so long as the modern award continues to cover the employee.\n\nNote: It does not matter if the modern award stops applying to the employee because an enterprise agreement starts to apply.","sortOrder":1823},{"sectionNumber":"768BV","sectionType":"section","heading":"Interaction of take-home pay orders with modern awards and enterprise agreements","content":"768BV  Interaction of take‑home pay orders with modern awards and enterprise agreements\n\n  A term of a modern award or an enterprise agreement has no effect in relation to a transferring employee to the extent that it is less beneficial to the employee than a term of a take‑home pay order that applies to the employee.","sortOrder":1824},{"sectionNumber":"768BW","sectionType":"section","heading":"Application of this Act to take-home pay orders","content":"768BW  Application of this Act to take‑home pay orders\n\n  This Act applies as if the following provisions included a reference to a take‑home pay order:\n\n (a) subsection 675(2) (which is about FWC orders);\n\n (b) subsection 706(2) (which is about powers of inspectors).","sortOrder":1825},{"sectionNumber":"768BX","sectionType":"section","heading":"Modification of this Act for copied State instruments","content":"768BX  Modification of this Act for copied State instruments\n\n  This Act has effect in relation to a transferring employee on and after the employee’s re‑employment time as if a reference in a provision referred to in column 1 to a term referred to in column 2 included a reference to the term referred to in column 3.\n\n\n\n- Modification of this Act for copied State instruments\n- Item Column 1Provision of this Act Column 2Current term Column 3New term\n- 1 Division 2 of Part 2‑9 (payment of wages) modern award copied State award for the transferring employee\n- 2 Division 2 of Part 2‑9 (payment of wages) enterprise agreement copied State employment agreement for the transferring employee\n- 3 Division 3 of Part 2‑9 (guarantee of annual earnings) modern award copied State award for the transferring employee\n- 4 Division 3 of Part 2‑9 (guarantee of annual earnings) enterprise agreement copied State employment agreement for the transferring employee\n- 5 Part 3‑2 (unfair dismissal) modern award copied State award for the transferring employee\n- 6 Part 3‑2 (unfair dismissal) enterprise agreement copied State employment agreement for the transferring employee\n- 7 Division 9 of Part 3‑3 (payments relating to periods of industrial action) modern award copied State award for the transferring employee\n- 8 Division 9 of Part 3‑3 (payments relating to periods of industrial action) enterprise agreement copied State employment agreement for the transferring employee\n- 9 subsection 481(1) (right of entry) fair work instrument copied State instrument for the transferring employee\n- 10 subsection 524(2) (stand down) enterprise agreement copied State instrument for the transferring employee\n- 11 Part 4‑1 (compliance) fair work instrument copied State instrument for the transferring employee\n- 12 section 657 (General Manager) fair work instrument copied State instrument for the transferring employee\n- 13 Part 5‑2 (Fair Work Ombudsman) fair work instrument copied State instrument for the transferring employee\n- 14 Part 5‑2 (Fair Work Ombudsman) modern award copied State award for the transferring employee\n- 15 Part 5‑2 (Fair Work Ombudsman) enterprise agreement copied State employment agreement for the transferring employee\n- 16 Part 6‑2 (dealing with disputes) modern award copied State award for the transferring employee\n- 17 Part 6‑2 (dealing with disputes) enterprise agreement copied State employment agreement for the transferring employee\n- 18 Part 6‑2 (dealing with disputes) fair work instrument copied State instrument for the transferring employee","sortOrder":1827},{"sectionNumber":"768BY","sectionType":"section","heading":"Modification of the Transitional Act for copied State instruments","content":"768BY  Modification of the Transitional Act for copied State instruments\n\n (1) Each relevant transitional provision (see subsection (2)) has effect in relation to a transferring employee as if a reference to a term referred to in column 1 were a reference to the term referred to in column 2. The provision has effect from the time specified in column 3 of the table in subsection (2).\n\n\n\n- Modification of the Transitional Act and regulations for copied State instruments\n- Item Column 1Current term Column 2New term\n- 1 Division 2B State instrument copied State instrument for the transferring employee\n- 2 Division 2B State award copied State award for the transferring employee\n- 3 Division 2B State award applying (within the meaning of the Transitional Act) to a person copied State award for the transferring employee applying (within the meaning of this Act) to a person\n- 4 Division 2B State award covering (within the meaning of the Transitional Act) a person copied State award for the transferring employee covering (within the meaning of this Act) a person\n- 5 Division 2B State employment agreement copied State employment agreement for the transferring employee\n- 6 collective Division 2B State employment agreement copied State collective employment agreement for the transferring employee\n- 7 individual Division 2B State employment agreement copied State individual employment agreement for the transferring employee\n- 8 Division 2B State employment agreement applying (within the meaning of the Transitional Act) to a person copied State employment agreement for the transferring employee applying (within the meaning of this Act) to a person\n- 9 Division 2B State employment agreement covering (within the meaning of the Transitional Act) a person copied State employment agreement for the transferring employee covering (within the meaning of this Act) a person\n- 10 nominal expiry date of a Division 2B State employment agreement nominal expiry date of a copied State employment agreement for the transferring employee\n- 11 Division 2B referral commencement transferring employee’s termination time\n- 12 Division 2B State reference employee transferring employee\n- 13 Division 2B referring State the State of the old State employer\n- 14 source State the State of the old State employer\n\n\n (2) For the purposes of subsection (1), the relevant transitional provisions are:\n\n (a) the provisions of the Transitional Act that are listed in column 1; and\n\n (b) the regulations made for the purposes of those provisions.\n\n\n\n- Modification of the Transitional Act and regulations for copied State instruments\n- Item Column 1Relevant transitional provision Column 2Which is about Column 3Relevant time\n- 1 item 10 of Schedule 3A instrument content rules the transferring employee’s termination time\n- 2 item 11 of Schedule 3A instrument interaction rules the transferring employee’s termination time\n- 3 item 13 (other than note 1 and note 2) of Schedule 3A references to State industrial bodies the transferring employee’s termination time\n- 4 item 17 of Schedule 3A no loss of accrued rights etc. when instrument terminates the transferring employee’s re‑employment time\n- 5 item 20 of Schedule 3A variation of discriminatory instruments the transferring employee’s termination time\n- 6 item 22 of Schedule 3A collective agreements–termination by agreement the transferring employee’s re‑employment time\n- 7 item 23 of Schedule 3A collective agreements–termination by the FWC the transferring employee’s re‑employment time\n- 8 item 24 of Schedule 3A individual agreements–termination by agreement the transferring employee’s re‑employment time\n- 9 item 25 of Schedule 3A individual agreements–termination conditional on enterprise agreement the transferring employee’s re‑employment time\n- 10 item 26 of Schedule 3A individual agreements–unilateral termination by the FWC the transferring employee’s re‑employment time\n- 11 item 47 of Schedule 3A employee not award/agreement free the transferring employee’s re‑employment time\n- 12 item 48 of Schedule 3A calculating an employee’s ordinary hours of work the transferring employee’s re‑employment time\n- 13 items 19, 20 and 21 of Schedule 4 interaction with the NES the transferring employee’s re‑employment time\n- 14 Part 5 of Schedule 9 base rates of pay the transferring employee’s re‑employment time\n- 15 Division 4 of Part 3 of Schedule 11 transfer of business the transferring employee’s re‑employment time\n- 16 item 4 of Schedule 12 general protections the transferring employee’s termination time\n- 17 items 2, 3, 4 and 17 of Schedule 13 industrial action the transferring employee’s re‑employment time\n- 18 item 4B of Schedule 16 (as that item relates to subitems 25(6) and (7) of Schedule 3A) and item 16 of Schedule 16 (as that item relates to item 4B of Schedule 16) compliance relating to conditional terminations of individual employment agreements the transferring employee’s re‑employment time\n- 19 items 12 and 13 of Schedule 16 and item 16 of Schedule 16 (as that item relates to those items) compliance relating to non‑disclosure obligations the transferring employee’s re‑employment time","sortOrder":1829},{"sectionNumber":"768BZ","sectionType":"section","heading":"Modification of the Registered Organisations Act for copied State instruments","content":"768BZ  Modification of the Registered Organisations Act for copied State instruments\n\n (1) The Registered Organisations Act has effect in relation to a transferring employee on and after the employee’s termination time as if:\n\n (a) a reference in that Act to a modern award included a reference to a copied State award for the employee; and\n\n (b) a reference in that Act to an enterprise agreement included a reference to a copied State employment agreement for the employee.\n\n (2) The regulations may deal with other matters relating to how the Registered Organisations Act applies in relation to a transferring employee.","sortOrder":1831},{"sectionNumber":"768CA","sectionType":"section","heading":"Regulations","content":"768CA  Regulations\n\n (1) The regulations may:\n\n (a) make provision in relation to the transition from State awards and State employment agreements to copied State instruments; and\n\n (b) make provision in relation to the transition from copied State instruments to modern awards and enterprise agreements; and\n\n (c) deal with how this Act applies in relation to copied State instruments for transferring employees; and\n\n (d) provide that provisions of this Act or the Transitional Act apply in relation to transferring employees or new employers with specified modifications; and\n\n (e) otherwise make provision relating to how provisions of this Act or the Transitional Act apply in relation to transferring employees or new employers; and\n\n (f) make provision in relation to non‑transferring employees of the new employer; and\n\n (g) provide that provisions of this Act or the Transitional Act apply in relation to the non‑transferring employees with specified modifications; and\n\n (h) make other provision in relation to the matters dealt with in this Part.\n\n (2) Without limiting subsection (1), the regulations may:\n\n (a) modify provisions of this Act or the Transitional Act, or provide for the application (with or without modifications) of provisions of this Act or the Transitional Act to matters to which they would otherwise not apply; and\n\n (b) provide differently for the purposes of different provisions, or in relation to different situations.\n\n (3) However, this section does not allow regulations to:\n\n (a) modify a provision so as to impose an obligation which, if contravened, constitutes an offence; or\n\n (b) include new provisions that create offences.\n\n (4) The provisions of this Part (including this section) that provide for regulations to deal with matters do not limit each other.","sortOrder":1833},{"sectionNumber":"Part 6-4","sectionType":"part","heading":"Additional provisions relating to termination of employment","content":"Part 6‑4—Additional provisions relating to termination of employment","sortOrder":1834},{"sectionNumber":"769","sectionType":"section","heading":"Guide to this Part","content":"769  Guide to this Part\n\nThis Part contains provisions to give effect, or further effect, to certain international agreements relating to discrimination and termination of employment.\n\nDivision 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 alleged termination of an employee’s employment will be dealt with by a court only if the dispute has not been resolved by the FWC.\n\nDivision 3 sets out notification and consultation requirements in relation to certain terminations of employment.","sortOrder":1836},{"sectionNumber":"770","sectionType":"section","heading":"Meanings of employee and employer","content":"770  Meanings of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.","sortOrder":1837},{"sectionNumber":"771","sectionType":"section","heading":"Object of this Division","content":"771  Object of this Division\n\n  The object of this Division is to give effect, or further effect, to:\n\n (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\n\n (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\n\n (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\n\n (d) the Termination of Employment Recommendation, 1982 (Recommendation No. R166) which the General Conference of the ILO adopted on 22 June 1982; and\n\n (e) the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and\n\n (f) article 26 of the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); and\n\n (g) paragraph 2 of article 2, and articles 6 and 7, of the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5).\n\nNote 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).\n\nNote 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).","sortOrder":1839},{"sectionNumber":"772","sectionType":"section","heading":"Employment not to be terminated on certain grounds","content":"772  Employment not to be terminated on certain grounds\n\n (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:\n\n (a) temporary absence from work because of illness or injury of a kind prescribed by the regulations;\n\n (b) trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours;\n\n (c) non‑membership of a trade union;\n\n (d) seeking office as, or acting or having acted in the capacity of, a representative of employees;\n\n (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;\n\n (f) race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin;\n\n (g) absence from work during parental leave;\n\n (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.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (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:\n\n (a) the reason is based on the inherent requirements of the particular position concerned; or\n\n (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:\n\n (i) in good faith; and\n\n (ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.\n\n (3) To avoid doubt, if:\n\n (a) an employer terminates an employee’s employment; and\n\n (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\n\n (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 parental leave;\n\nthe 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 parental leave.\n\n (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.","sortOrder":1840},{"sectionNumber":"773","sectionType":"section","heading":"Application for the FWC to deal with a dispute","content":"773  Application for the FWC to deal with a dispute\n\n  If:\n\n (a) an employee; or\n\n (b) an industrial association that is entitled to represent the industrial interests of an employee;\n\nalleges that the employee’s employment was terminated in contravention of subsection 772(1), the employee, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.","sortOrder":1841},{"sectionNumber":"774","sectionType":"section","heading":"Time for application","content":"774  Time for application\n\n (1) An application under section 773 must be made:\n\n (a) within 21 days after the alleged termination took effect; or\n\n (b) within such further period as the FWC allows under subsection (2).\n\n (2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:\n\n (a) the reason for the delay; and\n\n (b) any action taken by the employee to dispute the alleged termination; and\n\n (c) prejudice to the employer (including prejudice caused by the delay); and\n\n (d) the merits of the application; and\n\n (e) fairness as between the person and other persons in a like position.","sortOrder":1842},{"sectionNumber":"775","sectionType":"section","heading":"Application fees","content":"775  Application fees\n\n (1) The application must be accompanied by any fee prescribed by the regulations.\n\n (2) The regulations may prescribe:\n\n (a) a fee for making an application to the FWC under section 773; and\n\n (b) a method for indexing the fee; and\n\n (c) the circumstances in which all or part of the fee may be waived or refunded.","sortOrder":1843},{"sectionNumber":"776","sectionType":"section","heading":"Dealing with a dispute (other than by arbitration)","content":"776  Dealing with a dispute (other than by arbitration)\n\n (1) If an application is made under section 773, the FWC must deal with the dispute (other than by arbitration).\n\nNote: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).\n\n (1A) To avoid doubt, in order to commence dealing with the dispute (other than by arbitration) under this section, the FWC is not required to determine whether or not the employer terminated the employee’s employment.\n\n (2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).\n\nNote: For conferences, see section 592.\n\n (3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:\n\n (a) the FWC must issue a certificate to that effect; and\n\n (b) if the FWC considers, taking into account all the materials before it, that arbitration under section 777, or an unlawful termination court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.\n\n (4) 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).","sortOrder":1844},{"sectionNumber":"777","sectionType":"section","heading":"Dealing with a dispute by arbitration","content":"777  Dealing with a dispute by arbitration\n\n (1) This section applies if:\n\n (a) the FWC issues a certificate under paragraph 776(3)(a) in relation to the dispute; and\n\n (b) the parties notify the FWC that they agree to the FWC arbitrating the dispute; and\n\n (c) the notification:\n\n (i) is given to the FWC within 14 days after the day the certificate is issued, or within such period as the FWC allows on an application made during or after those 14 days; and\n\n (ii) complies with any requirements prescribed by the procedural rules; and\n\n (d) sections 726, 727, 728, 729, 731 and 732 do not apply.\n\nNote: Sections 726, 727, 728, 729, 731 and 732 prevent multiple applications or complaints of a kind referred to in those sections from being made in relation to the same dispute. A notification can only be made under this section where there is no such other application or complaint in relation to the dispute at the time the notification is made. Generally, once a notification is made no such application or complaint can be made in relation to the dispute (see section 730).\n\n (2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:\n\n (a) an order for reinstatement of the employee;\n\n (b) an order for the payment of compensation to the employee;\n\n (c) an order for payment of an amount to the employee for remuneration lost;\n\n (d) an order to maintain the continuity of the employee’s employment;\n\n (e) an order to maintain the period of the employee’s continuous service with the employer.\n\n (3) A person to whom an order under subsection (2) applies must not contravene a term of the order.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).","sortOrder":1845},{"sectionNumber":"778","sectionType":"section","heading":"Taking a dispute to court","content":"778  Taking a dispute to court\n\n  A person who is entitled to apply under section 773 for the FWC to deal with a dispute must not make an unlawful termination court application in relation to the dispute unless:\n\n (a) both of the following apply:\n\n (i) the FWC has issued a certificate under paragraph 776(3)(a) in relation to the dispute;\n\n (ii) the unlawful termination court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or\n\n (b) the unlawful termination court application includes an application for an interim injunction.\n\nNote 1: Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 777(1)), an unlawful termination court application cannot be made in relation to the dispute (see sections 730 and 731).\n\nNote 2: For the purposes of subparagraph (a)(ii), 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.","sortOrder":1846},{"sectionNumber":"779","sectionType":"section","heading":"Appeal rights","content":"779  Appeal rights\n\n (1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under subsection 777(2) (which is about arbitration of a dispute) unless the FWC considers that it is in the public interest to do so.\n\n (2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under subsection 777(2) 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.","sortOrder":1847},{"sectionNumber":"779A","sectionType":"section","heading":"Costs orders against parties","content":"779A  Costs orders against parties\n\n (1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if:\n\n (a) an application for the FWC to deal with the dispute has been made under section 773; and\n\n (b) the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the dispute.\n\n (2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 781.\n\n (3) This section does not limit the FWC’s power to order costs under section 611.","sortOrder":1848},{"sectionNumber":"780","sectionType":"section","heading":"Costs orders against lawyers and paid agents","content":"780  Costs orders against lawyers and paid agents\n\n (1) This section applies if:\n\n (a) an application for the FWC to deal with a dispute has been made under section 773; and\n\n (b) a person who is a party to the dispute has engaged a lawyer or paid agent (the representative) to represent the person in the dispute; and\n\n (c) under section 596, the person is required to seek the FWC’s permission to be represented by the representative.\n\n (2) The FWC may make an order for costs against the representative for costs incurred by the other party to the dispute if the FWC is satisfied that the representative caused those costs to be incurred because:\n\n (a) the representative encouraged the person to start, continue or respond to the dispute and it should have been reasonably apparent that the person had no reasonable prospect of success in the dispute; or\n\n (b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the dispute.\n\n (3) The FWC may make an order under this section only if the other party to the dispute has applied for it in accordance with section 781.\n\n (4) This section does not limit the FWC’s power to order costs under section 611.","sortOrder":1849},{"sectionNumber":"781","sectionType":"section","heading":"Applications for costs orders","content":"781  Applications for costs orders\n\n  An application for an order for costs in relation to an application under section 773 must be made within 14 days after the FWC finishes dealing with the dispute.","sortOrder":1850},{"sectionNumber":"781A","sectionType":"section","heading":"Schedule of costs","content":"781A  Schedule of costs\n\n (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 under section 611, 779A or 780 in relation to an application under section 773, including expenses arising from the representation of a party by a person or organisation other than on a legal professional basis.\n\n (2) If a schedule of costs is prescribed for the purposes of subsection (1), then, in awarding costs under section 611, 779A or 780 in relation to an application under section 773, the FWC:\n\n (a) is not limited to the items of expenditure appearing in the schedule; but\n\n (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.","sortOrder":1851},{"sectionNumber":"782","sectionType":"section","heading":"Contravening costs orders","content":"782  Contravening costs orders\n\n  A person to whom an order for costs made under section 779A or 780 applies must not contravene a term of the order.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":1852},{"sectionNumber":"783","sectionType":"section","heading":"Reason for action to be presumed unless proved otherwise","content":"783  Reason for action to be presumed unless proved otherwise\n\n (1) If:\n\n (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\n\n (b) taking that action for that reason would constitute a contravention of subsection 772(1);\n\nit is presumed that the action was, or is being, taken for that reason, unless the person proves otherwise.\n\n (2) Subsection (1) does not apply in relation to orders for an interim injunction.","sortOrder":1853},{"sectionNumber":"784","sectionType":"section","heading":"Object of this Division","content":"784  Object of this Division\n\n  The object of this Division is to give effect, or further effect, to:\n\n (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\n\n (b) the Termination of Employment Recommendation, 1982 (Recommendation No. R166) which the General Conference of the ILO adopted on 22 June 1982.\n\nNote 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).\n\nNote 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).","sortOrder":1856},{"sectionNumber":"785","sectionType":"section","heading":"Employer to notify Centrelink of certain proposed terminations","content":"785  Employer to notify Centrelink of certain proposed terminations\n\n (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).\n\n (2) The notice must be in the form (if any) prescribed by the regulations and set out:\n\n (a) the reasons for the terminations; and\n\n (b) the number and categories of employees likely to be affected; and\n\n (c) the time when, or the period over which, the employer intends to carry out the terminations.\n\n (3) The notice must be given:\n\n (a) as soon as practicable after making the decision; and\n\n (b) before terminating an employee’s employment in accordance with the decision.\n\n (4) The employer must not terminate an employee’s employment in accordance with the decision unless the employer has complied with this section.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (5) The orders that may be made under subsection 545(1) in relation to a contravention of subsection (4) of this section:\n\n (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\n\n (b) do not include an order granting an injunction.","sortOrder":1858},{"sectionNumber":"786","sectionType":"section","heading":"FWC may make orders where failure to notify or consult registered employee associations about terminations","content":"786  FWC may make orders where failure to notify or consult registered employee associations about terminations\n\n (1) The FWC may make an order under subsection 787(1) if it is satisfied that:\n\n (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\n\n (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\n\n (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.\n\nNotifying relevant registered employee associations\n\n (2) An employer complies with this subsection if:\n\n (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:\n\n (i) the proposed terminations and the reasons for them;\n\n (ii) the number and categories of employees likely to be affected;\n\n (iii) the time when, or the period over which, the employer intends to carry out the terminations; and\n\n (b) the notice is given:\n\n (i) as soon as practicable after making the decision; and\n\n (ii) before terminating an employee’s employment in accordance with the decision.\n\nConsulting relevant registered employee associations\n\n (3) An employer complies with this subsection if:\n\n (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:\n\n (i) measures to avert or minimise the proposed terminations; and\n\n (ii) measures (such as finding alternative employment) to mitigate the adverse effects of the proposed terminations; and\n\n (b) the opportunity is given:\n\n (i) as soon as practicable after making the decision; and\n\n (ii) before terminating an employee’s employment in accordance with the decision.","sortOrder":1860},{"sectionNumber":"787","sectionType":"section","heading":"Orders that the FWC may make","content":"787  Orders that the FWC may make\n\n (1) The FWC may make whatever orders it considers appropriate, in the public interest, to put:\n\n (a) the employees; and\n\n (b) each registered employee association referred to in paragraph 786(2)(a) or (3)(a);\n\nin the same position (as nearly as can be done) as if the employer had complied with subsections 786(2) and (3).\n\n (2) The FWC must not, under subsection (1), make orders for any of the following:\n\n (a) reinstatement of an employee;\n\n (b) withdrawal of a notice of termination if the notice period has not expired;\n\n (c) payment of an amount in lieu of reinstatement;\n\n (d) payment of severance pay;\n\n (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;\n\n (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.","sortOrder":1861},{"sectionNumber":"788","sectionType":"section","heading":"Application to the FWC for order","content":"788  Application to the FWC for order\n\n  The FWC may make the order only on application by:\n\n (a) one of the employees; or\n\n (b) a registered employee association referred to in paragraph 786(2)(a) or (3)(a); or\n\n (c) any other registered employee association that is entitled to represent the industrial interests of one of the employees.","sortOrder":1862},{"sectionNumber":"789","sectionType":"section","heading":"Limits on scope of this Division","content":"789  Limits on scope of this Division\n\n (1) This Division does not apply in relation to any of the following employees:\n\n (a) an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;\n\n (b) an employee whose employment is terminated because of serious misconduct;\n\n (c) a casual employee;\n\n (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;\n\n (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);\n\n (f) a daily hire employee working in the meat industry in connection with the slaughter of livestock;\n\n (g) a weekly hire employee working in connection with the meat industry and whose termination of employment is determined solely by seasonal factors;\n\n (h) an employee prescribed by the regulations as an employee in relation to whom this Division does not apply.\n\n (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.","sortOrder":1864},{"sectionNumber":"Part 6-4A","sectionType":"part","heading":"Special provisions about TCF outworkers","content":"Part 6‑4A—Special provisions about TCF outworkers","sortOrder":1865},{"sectionNumber":"789AA","sectionType":"section","heading":"Guide to this Part","content":"789AA  Guide to this Part\n\nThis Part contains special provisions about TCF outworkers.\n\nDivision 2 provides for TCF contract outworkers to be taken to be employees in certain circumstances for the purposes of most of the provisions of this Act.\n\nDivision 3 provides for TCF outworkers (whether employees or contractors) to recover unpaid remuneration from entities that are indirectly responsible for work done by the outworkers.\n\nDivision 4 allows the regulations to prescribe a code dealing with standards of conduct and practice relating to TCF outwork.\n\nDivision 5 contains miscellaneous provisions.","sortOrder":1867},{"sectionNumber":"789AB","sectionType":"section","heading":"Meanings of employee and employer","content":"789AB  Meanings of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.","sortOrder":1868},{"sectionNumber":"789AC","sectionType":"section","heading":"Objects of this Part","content":"789AC  Objects of this Part\n\n  The objects of this Part are to eliminate exploitation of outworkers in the textile, clothing and footwear industry, and to ensure that those outworkers are employed or engaged under secure, safe and fair systems of work, by:\n\n (a) providing nationally consistent rights and protections for those outworkers, regardless of whether they are employees or contractors; and\n\n (b) establishing an effective mechanism by which those outworkers can recover amounts owing to them in relation to their work from other parties in a supply chain; and\n\n (c) providing for a code dealing with standards of conduct and practice to be complied with by parties in a supply chain.","sortOrder":1869},{"sectionNumber":"789BA","sectionType":"section","heading":"Provisions covered by this Division","content":"789BA  Provisions covered by this Division\n\n (1) This Division covers the provisions of this Act, other than the following provisions (and other than regulations made for the purposes of the following provisions):\n\n (a) Division 1, and this Division, of this Part;\n\n (b) Divisions 2A and 2B of Part 1‑3 (application of this Act in referring States);\n\n (c) Part 3‑4 (right of entry);\n\n (d) Part 3‑5 (stand down);\n\n (e) Part 6‑3 (extension of National Employment Standards entitlements);\n\n (ea) Part 6‑3A (transfer of business from a State public sector employer);\n\n (f) Part 6‑4 (additional provisions relating to termination of employment);\n\n (g) Part 1 of Schedule 1.\n\n (2) Provisions of this Act that are not covered by this Division are to be interpreted disregarding the effect of this Division in relation to other provisions of this Act.\n\nNote: For example, references to national system employees and national system employers, in provisions of this Act that are not covered by this Division, are to be interpreted disregarding the effect of this Division in relation to the definitions of those expressions in sections 13 and 14.\n\n (3) References in provisions that are covered by this Division to matters dealt with in, or occurring under, provisions of this Act that are not covered by this Division (the excluded provisions) are to be interpreted having regard to the fact that this Division does not apply for the purposes of the excluded provisions.","sortOrder":1871},{"sectionNumber":"789BB","sectionType":"section","heading":"TCF contract outworkers taken to be employees in certain circumstances","content":"789BB  TCF contract outworkers taken to be employees in certain circumstances\n\n (1) For the purposes of the provisions covered by this Division:\n\n (a) a TCF contract outworker is taken to be an employee (within the ordinary meaning of that expression), and to be a national system employee, in relation to particular TCF work performed by the outworker, if:\n\n (i) the work is performed directly or indirectly for a Commonwealth outworker entity; and\n\n (ii) if the entity is a constitutional corporation—the work is performed for the purposes of a business undertaking of the corporation; and\n\n (b) the person (whether a Commonwealth outworker entity referred to in subparagraph (a)(i) or another person) that engages the outworker is taken to be the employer (within the ordinary meaning of that expression), and to be a national system employer, of the outworker in relation to the TCF work.\n\nNote 1: See section 17A for when TCF work is performed directly or indirectly for a person.\n\nNote 2: See also section 789BC, which allows regulations to deal with matters relating to TCF contract outworkers who are taken by this section to be employees.\n\n (2) A TCF contract outworker is a TCF outworker who performs work other than as an employee.\n\n (3) In interpreting any of the following for the purposes of the provisions covered by this Division:\n\n (a) provisions of this Act;\n\n (b) any instrument that is relevant to the relationship between the TCF contract outworker and the person referred to in paragraph (1)(b);\n\nan interpretation that is consistent with the objective stated in subsection (4) is to be preferred to an interpretation that is not consistent with that objective.\n\n (4) The objective is that a TCF contract outworker who is taken to be an employee in relation to TCF work should have the same rights and obligations in relation to the work as an employee would have if he or she were employed by the person referred to in paragraph (1)(b) to do the work.\n\n (5) This section has effect subject to regulations made for the purposes of section 789BC.","sortOrder":1872},{"sectionNumber":"789BC","sectionType":"section","heading":"Regulations relating to TCF outworkers who are taken to be employees","content":"789BC  Regulations relating to TCF outworkers who are taken to be employees\n\n (1) For the purpose of furthering the objective stated in subsection 789BB(4), the regulations may do either or both of the following in relation to TCF outworkers (deemed employees) who are taken by section 789BB to be employees of other persons (deemed employers) in relation to TCF work:\n\n (a) provide that provisions covered by this Division apply in relation to deemed employees and deemed employers with specified modifications;\n\n (b) otherwise make provision relating to how provisions covered by this Division apply in relation to deemed employees and deemed employers.\n\n (2) Regulations made for the purposes of subsection (1) may provide differently:\n\n (a) for the purposes of different provisions; or\n\n (b) in relation to different situations.\n\n (3) This section does not allow regulations to:\n\n (a) modify a provision that creates an offence, or that imposes an obligation which, if contravened, constitutes an offence; or\n\n (b) include new provisions that create offences.","sortOrder":1873},{"sectionNumber":"789CA","sectionType":"section","heading":"When this Division applies","content":"789CA  When this Division applies\n\nOutworker not paid for TCF work in certain circumstances\n\n (1) This Division applies if:\n\n (a) a TCF outworker performs TCF work for a person (the responsible person):\n\n (i) as an employee of the responsible person; or\n\n (ii) under a contract for the provision of services to the responsible person; and\n\n (b) the responsible person does not pay an amount (the unpaid amount) that is payable, in relation to the TCF work, by the responsible person:\n\n (i) to the outworker; or\n\n (ii) to another person, for the benefit of the outworker;\n\n  on or before the day when the amount is due for payment; and\n\n (c) the unpaid amount is payable under:\n\n (i) a contract; or\n\n (ii) this Act, or an instrument made under or in accordance with this Act; or\n\n (iii) another law of the Commonwealth; or\n\n (iv) a transitional instrument as continued in existence by Schedule 3 to the Transitional Act; or\n\n (v) a State or Territory industrial law, or a State industrial instrument.\n\nNote: For the purpose of this Division, the effect of Division 2 must be taken into account in determining whether a TCF outworker performs work as a national system employee of a national system employer.\n\n (2) Without limiting paragraph (1)(b), the unpaid amount may (subject to paragraph (1)(c)) be an amount of any of the following kinds that relates to (or is attributable to) the TCF work:\n\n (a) an amount payable by way of remuneration or commission;\n\n (b) an amount payable in respect of leave;\n\n (c) an amount payable by way of contributions to a superannuation fund;\n\n (d) an amount payable by way of reimbursement for expenses incurred.\n\nMeaning of indirectly responsible entity\n\n (3) Subject to subsections (4) and (5), a person is an indirectly responsible entity in relation to the TCF work if:\n\n (a) the person is a Commonwealth outworker entity; and\n\n (b) the TCF work was performed indirectly:\n\n (i) for the entity; and\n\n (ii) if the entity is a constitutional corporation—for the purposes of a business undertaking of the corporation.\n\nNote: See section 17A for when TCF work is performed indirectly for a person.\n\nExtent of liability of indirectly responsible entity\n\n (4) If subsection (3) is satisfied in relation to a Commonwealth outworker entity and part only of the TCF work:\n\n (a) the entity is an indirectly responsible entity in relation to that part of the TCF work; and\n\n (b) for the purposes of applying this Division in relation to the entity and that part of the TCF work, the unpaid amount is so much only of the amount referred to in paragraph (1)(b) as is attributable to that part of the TCF work.\n\nRetailer of goods not an indirectly responsible entity in certain circumstances\n\n (5) If:\n\n (a) a Commonwealth outworker entity, as a retailer, sells goods produced by the TCF work; and\n\n (b) the entity does not have any right to supervise or otherwise control the performance of the work before the goods are delivered to the entity;\n\nthe entity is not an indirectly responsible entity in relation to the TCF work.","sortOrder":1875},{"sectionNumber":"789CB","sectionType":"section","heading":"Liability of indirectly responsible entity for unpaid amount","content":"789CB  Liability of indirectly responsible entity for unpaid amount\n\n (1) Each indirectly responsible entity (or the indirectly responsible entity, if there is only one) is liable to pay the unpaid amount.\n\n (3) If there are 2 or more indirectly responsible entities, those entities are jointly and severally liable for the payment of the unpaid amount.\n\n (4) Subject to subsection 789CE(1A), this section does not affect the liability of the responsible person to pay the unpaid amount.","sortOrder":1876},{"sectionNumber":"789CC","sectionType":"section","heading":"Demand for payment from an apparent indirectly responsible entity","content":"789CC  Demand for payment from an apparent indirectly responsible entity\n\n (1) The TCF outworker, or a person acting on behalf of the outworker, may give an apparent indirectly responsible entity a written demand for payment of the amount that the outworker reasonably believes the entity is liable for under section 789CB.\n\n (2) An entity is an apparent indirectly responsible entity in relation to the TCF work if the TCF outworker reasonably believes that the entity is an indirectly responsible entity in relation to the TCF work.\n\n (3) The demand must:\n\n (a) specify the amount, and identify the responsible person; and\n\n (b) include particulars of the TCF work to which the amount relates, and why the amount is payable by the entity to which the demand is given; and\n\n (c) state that if the specified amount is not paid by a specified time, proceedings may be commenced against the entity under section 789CD.\n\n (4) The time specified for the purpose of paragraph (3)(c) must not be less than 14 days after the demand is given to the entity.","sortOrder":1877},{"sectionNumber":"789CD","sectionType":"section","heading":"Court order for entity to pay amount demanded","content":"789CD  Court order for entity to pay amount demanded\n\n (1) If:\n\n (a) in accordance with section 789CC, an apparent indirectly responsible entity has been given a demand for payment of a specified amount; and\n\n (b) the amount has not been paid in full by the time specified in the demand;\n\na person or organisation specified in subsection (2) (the applicant) may commence proceedings for an order requiring the entity to pay the specified amount.\n\n (2) The proceedings may be commenced:\n\n (a) by the TCF outworker; or\n\n (b) on the TCF outworker’s behalf, by:\n\n (i) an organisation that is entitled to represent the industrial interests of the outworker; or\n\n (ii) an inspector.\n\n (3) The proceedings may be commenced in:\n\n (a) the Federal Court; or\n\n (b) the Federal Circuit and Family Court of Australia (Division 2); or\n\n (c) an eligible State or Territory court.\n\n (4) Subject only to subsections (5) and (6), the court may make an order requiring the entity to pay, to the outworker or to another person on the outworker’s behalf, the specified amount (or so much of that amount as the applicant alleges is still owing).\n\n (5) The court must not make an order under subsection (4) if the entity satisfies the court that the entity is not liable under section 789CB to pay any of the specified amount.\n\n (6) If the entity satisfies the court that the amount of the entity’s liability under section 789CB is less than the specified amount (or is less than so much of that amount as the applicant alleges is still owing), the court must not make an order under subsection (4) requiring the entity to pay more than that lesser amount.\n\n (7) 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.\n\n (8) Without limiting subsection (7), in determining the amount of interest, the court must take into account the period between the day when the unpaid amount was due for payment by the responsible person and the day when the order is made.\n\n (9) Proceedings cannot be commenced under this section more than 6 years after the time when the unpaid amount became due for payment by the responsible person.","sortOrder":1878},{"sectionNumber":"789CE","sectionType":"section","heading":"Effect of payment by entity (including entity’s right to recover from responsible person)","content":"789CE  Effect of payment by entity (including entity’s right to recover from responsible person)\n\n (1) This section applies if an entity pays an amount in discharge of a liability of the entity under section 789CB, or pursuant to an order under section 789CD.\n\n (1A) The payment discharges the liability of the responsible person for the unpaid amount, to the extent of the payment. This does not affect any right that the entity has to recover an equivalent amount from the responsible person (under this section or otherwise) or from another person, or to be otherwise indemnified in relation to the making of the payment.\n\n (2) The entity may, in accordance with this section, recover from the responsible person an amount (the recoverable amount) equal to the sum of:\n\n (a) the amount paid by the entity as mentioned in subsection (1); and\n\n (b) any interest paid by the entity in relation to that amount pursuant to an order under section 789CD.\n\n (3) The entity may recover the recoverable amount:\n\n (a) by offsetting it against any amount that the entity owes to the responsible person; or\n\n (b) by action against the responsible person under subsection (4).\n\n (4) The entity may commence proceedings against the responsible person for payment to the entity of the recoverable amount. The proceedings may be commenced in:\n\n (a) the Federal Court; or\n\n (b) the Federal Circuit and Family Court of Australia (Division 2); or\n\n (c) an eligible State or Territory court.\n\n (5) The court may make an order requiring the responsible person to pay the entity the recoverable amount (or so much of it as is still owing) if the court is satisfied that:\n\n (a) this section applies as mentioned in subsection (1); and\n\n (b) the entity has not otherwise recovered the recoverable amount in full from the responsible person.\n\n (6) 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.\n\n (7) Without limiting subsection (6), in determining the amount of interest, the court must take into account the period between the day when the recoverable amount was paid by the entity and the day when the order is made.\n\n (8) Proceedings cannot be commenced under this section more than 6 years after the time when the entity paid the recoverable amount.","sortOrder":1879},{"sectionNumber":"789CF","sectionType":"section","heading":"Division does not limit other liabilities or rights","content":"789CF  Division does not limit other liabilities or rights\n\n  Nothing in this Division limits any other liability or right in respect of the entitlement of the TCF outworker to the unpaid amount (or to have the unpaid amount paid to another person for the outworker’s benefit).","sortOrder":1880},{"sectionNumber":"789DA","sectionType":"section","heading":"Regulations may provide for a code","content":"789DA  Regulations may provide for a code\n\n  For the purpose of furthering the objects of this Part, the regulations may prescribe a code (the TCF outwork code) dealing with standards of conduct and practice to be complied with in relation to any of the following:\n\n (a) the employment or engagement of TCF outworkers;\n\n (b) arranging for TCF work to be performed, if the work:\n\n (i) is to be performed by TCF outworkers; or\n\n (ii) is of a kind that is often performed by TCF outworkers;\n\n (c) the sale of goods produced by TCF work.\n\nNote 1: In situations where there is a chain or series of arrangements for the supply or production of goods, the TCF outwork code may (subject to section 789DC) impose obligations on any persons that are parties to arrangements in that chain or series.\n\nNote 2: References in other provisions to “this Act” include the code, because the code is in the regulations and is therefore within the definition of this Act in section 12.","sortOrder":1882},{"sectionNumber":"789DB","sectionType":"section","heading":"Matters that may be dealt with in TCF outwork code","content":"789DB  Matters that may be dealt with in TCF outwork code\n\n (1) The matters that may be dealt with in the TCF outwork code include (but are not limited to) the following:\n\n (a) record keeping requirements;\n\n (b) reporting on compliance with record keeping requirements, or with other requirements of the code;\n\n (c) general matters relating to the operation and administration of the code.\n\n (2) The TCF outwork code must not specify wages or other entitlements for TCF outworkers.","sortOrder":1883},{"sectionNumber":"789DC","sectionType":"section","heading":"Persons on whom obligations may be imposed by TCF outwork code","content":"789DC  Persons on whom obligations may be imposed by TCF outwork code\n\n (1) The TCF outwork code may only impose obligations on a person if one or more of subsections (2) to (5) applies to the person.\n\nNote: See also subsection (6), which limits the matters in relation to which obligations may be imposed.\n\n (2) This subsection applies to a person if the person is a national system employer that employs TCF outworkers.\n\nNote: For the purpose of this Division, the effect of Division 2 must be taken into account in determining whether a person is a national system employer that employs TCF outworkers.\n\n (3) This subsection applies to a person if:\n\n (a) the person is a Commonwealth outworker entity; and\n\n (b) the person arranges for TCF work to be performed (directly or indirectly):\n\n (i) for the person; and\n\n (ii) if the person is a constitutional corporation—for the purposes of a business undertaking of the corporation; and\n\n (c) the work:\n\n (i) is to be performed by TCF outworkers; or\n\n (ii) is of a kind often performed by TCF outworkers.\n\nNote: See section 17A for when a person arranges for TCF work to be performed directly or indirectly for the person.\n\n (4) This subsection applies to a person if:\n\n (a) the person arranges for TCF work to be performed; and\n\n (b) the work:\n\n (i) is to be performed by TCF outworkers; or\n\n (ii) is of a kind often performed by TCF outworkers; and\n\n (c) the work is to be performed indirectly:\n\n (i) for another person, being a Commonwealth outworker entity; and\n\n (ii) if that Commonwealth outworker entity is a constitutional corporation—for the purposes of a business undertaking of that corporation.\n\n (5) This subsection applies to a person if the person is a constitutional corporation that sells goods produced by TCF work.\n\n (6) The capacity for the TCF outwork code to impose obligations on a person is subject to the following limitations:\n\n (a) the obligations that may be imposed on a person because subsection (2) applies to the person are limited to obligations relating to the person’s employment of TCF outworkers;\n\n (b) the obligations that may be imposed on a person because subsection (3) applies to the person are limited to obligations relating to TCF work (or an arrangement for TCF work) because of which that subsection applies to the person;\n\n (c) the obligations that may be imposed on a person because subsection (4) applies to the person are limited to obligations relating to TCF work (or an arrangement for TCF work) because of which that subsection applies to the person;\n\n (d) the obligations that may be imposed on a person because subsection (5) applies to the person are limited to obligations relating to the person being a seller of goods as referred to in that subsection.","sortOrder":1884},{"sectionNumber":"789DD","sectionType":"section","heading":"Other general matters relating to content of TCF outwork code","content":"789DD  Other general matters relating to content of TCF outwork code\n\n (1) The TCF outwork code may be expressed to apply in relation to:\n\n (a) all persons covered by section 789DC, or specified classes of those persons; and\n\n (b) all TCF work, or specified classes of TCF work.\n\nNote: A class of person or TCF work may (for example) be identified by reference to a particular sector of the textile, clothing or footwear industry.\n\n (2) The TCF outwork code may provide differently for:\n\n (a) different classes of persons covered by section 789DC; or\n\n (b) different classes of TCF work; or\n\n (c) different situations.","sortOrder":1885},{"sectionNumber":"789DE","sectionType":"section","heading":"Relationship between the TCF outwork code and other instruments","content":"789DE  Relationship between the TCF outwork code and other instruments\n\n (1) A TCF award prevails over the TCF outwork code, to the extent of any inconsistency.\n\n (2) The TCF outwork code prevails over any of the following, to the extent of any inconsistency:\n\n (a) an enterprise agreement;\n\n (b) a workplace determination;\n\n (c) an agreement‑based transitional instrument, as continued in existence by Schedule 3 to the Transitional Act.\n\n (3) Subject to subsection (5), the TCF outwork code may:\n\n (a) make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time; or\n\n (b) make provision to the effect that compliance with a specified term of an instrument or other writing as in force or existing from time to time is taken to satisfy a particular requirement of the code.\n\n (4) The kinds of instrument or other writing by reference to which the TCF outwork code may make provision as mentioned in subsection (3) include (but are not limited to) the following:\n\n (a) a TCF award;\n\n (b) a code (however described), dealing with matters relating to outworkers, that is made under a law of a State or Territory.\n\n (5) The TCF outwork code cannot make provision as mentioned in subsection (3) by reference to any of the following:\n\n (a) an enterprise agreement;\n\n (b) a workplace determination;\n\n (c) an agreement‑based transitional instrument, as continued in existence by Schedule 3 to the Transitional Act.\n\n (6) Subsections (3) and (4) have effect despite subsection 14(2) of the Legislation Act 2003.","sortOrder":1886},{"sectionNumber":"789EA","sectionType":"section","heading":"Part not intended to exclude or limit State or Territory laws relating to outworkers","content":"789EA  Part not intended to exclude or limit State or Territory laws relating to outworkers\n\n (1) This Part is not intended to exclude or limit the operation of a law of a State or Territory (or an instrument made under a law of a State or Territory), to the extent that the law (or instrument) relates to outworkers and is capable of operating concurrently with this Part.\n\n (2) A reference in subsection (1) to this Part includes a reference to any regulations made for the purposes of this Part.","sortOrder":1888},{"sectionNumber":"Part 6-4B","sectionType":"part","heading":"Workers bullied at work","content":"Part 6‑4B—Workers bullied at work","sortOrder":1889},{"sectionNumber":"789FA","sectionType":"section","heading":"Guide to this Part","content":"789FA  Guide to this Part\n\nThis Part allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying.","sortOrder":1891},{"sectionNumber":"789FB","sectionType":"section","heading":"Meanings of employee and employer","content":"789FB  Meanings of employee and employer\n\n  In this Part, employee and employer have their ordinary meanings.","sortOrder":1892},{"sectionNumber":"789FC","sectionType":"section","heading":"Application for an FWC order to stop bullying","content":"789FC  Application for an FWC order to stop bullying\n\n (1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.\n\n (2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.\n\nNote: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.\n\n (3) The application must be accompanied by any fee prescribed by the regulations.\n\n (4) The regulations may prescribe:\n\n (a) a fee for making an application to the FWC under this section; and\n\n (b) a method for indexing the fee; and\n\n (c) the circumstances in which all or part of the fee may be waived or refunded.","sortOrder":1894},{"sectionNumber":"789FD","sectionType":"section","heading":"When is a worker bullied at work?","content":"789FD  When is a worker bullied at work?\n\n (1) A worker is bullied at work if:\n\n (a) while the worker is at work in a constitutionally‑covered business:\n\n (i) an individual; or\n\n (ii) a group of individuals;\n\n  repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and\n\n (b) that behaviour creates a risk to health and safety.\n\n (2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.\n\n (3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:\n\n (a) the person is:\n\n (i) a constitutional corporation; or\n\n (ii) the Commonwealth; or\n\n (iii) a Commonwealth authority; or\n\n (iv) a body corporate incorporated in a Territory; or\n\n (b) the business or undertaking is conducted principally in a Territory or Commonwealth place;\n\nthen the business or undertaking is a constitutionally‑covered business.","sortOrder":1895},{"sectionNumber":"789FE","sectionType":"section","heading":"FWC to deal with applications promptly","content":"789FE  FWC to deal with applications promptly\n\n (1) The FWC must start to deal with an application under section 789FC within 14 days after the application is made.\n\nNote: For example, the FWC may start to inform itself of the matter under section 590, it may decide to conduct a conference under section 592, or it may decide to hold a hearing under section 593.\n\n (2) However, the FWC may dismiss an application under section 789FC if the FWC considers that the application might involve matters that relate to:\n\n (a) Australia’s defence; or\n\n (b) Australia’s national security; or\n\n (c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or\n\n (d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.\n\nNote: For another power of the FWC to dismiss applications under section 789FC, see section 587.","sortOrder":1896},{"sectionNumber":"789FF","sectionType":"section","heading":"FWC may make orders to stop bullying","content":"789FF  FWC may make orders to stop bullying\n\n (1) If:\n\n (a) a worker has made an application under section 789FC; and\n\n (b) the FWC is satisfied that:\n\n (i) the worker has been bullied at work by an individual or a group of individuals; and\n\n (ii) there is a risk that the worker will continue to be bullied at work by the individual or group;\n\nthen the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.\n\n (2) In considering the terms of an order, the FWC must take into account:\n\n (a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and\n\n (b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and\n\n (c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and\n\n (d) any matters that the FWC considers relevant.","sortOrder":1897},{"sectionNumber":"789FG","sectionType":"section","heading":"Contravening an order to stop bullying","content":"789FG  Contravening an order to stop bullying\n\n  A person to whom an order under section 789FF applies must not contravene a term of the order.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":1898},{"sectionNumber":"789FH","sectionType":"section","heading":"Actions under work health and safety laws permitted","content":"789FH  Actions under work health and safety laws permitted\n\n  Section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws (within the meaning of that Act) do not apply in relation to an application under section 789FC.\n\nNote: Ordinarily, if a worker makes an application under section 789FC for an FWC order to stop the worker from being bullied at work, then section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws would prohibit a proceeding from being commenced, or an application from being made or continued, under those laws in relation to the bullying. This section removes that prohibition.","sortOrder":1899},{"sectionNumber":"789FI","sectionType":"section","heading":"This Part is not to prejudice Australia’s defence, national security etc.","content":"789FI  This Part is not to prejudice Australia’s defence, national security etc.\n\n  Nothing in this Part requires or permits a person to take, or to refrain from taking, any action if the taking of the action, or the refraining from taking the action, would be, or could reasonably be expected to be, prejudicial to:\n\n (a) Australia’s defence; or\n\n (b) Australia’s national security; or\n\n (c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or\n\n (d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.","sortOrder":1900},{"sectionNumber":"789FJ","sectionType":"section","heading":"Declarations by the Chief of the Defence Force","content":"789FJ  Declarations by the Chief of the Defence Force\n\n (1) Without limiting section 789FI, the Chief of the Defence Force may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a specified activity.\n\n (2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.","sortOrder":1901},{"sectionNumber":"789FK","sectionType":"section","heading":"Declarations by the Director-General of Security","content":"789FK  Declarations by the Director‑General of Security\n\n (1) Without limiting section 789FI, the Director‑General of Security may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a person carrying out work for the Director‑General.\n\n (2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.","sortOrder":1902},{"sectionNumber":"789FL","sectionType":"section","heading":"Declarations by the Director-General of ASIS","content":"789FL  Declarations by the Director‑General of ASIS\n\n (1) Without limiting section 789FI, the Director‑General of the Australian Secret Intelligence Service may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a person carrying out work for the Director‑General.\n\n (2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.","sortOrder":1903},{"sectionNumber":"Part 6-4C","sectionType":"part","heading":"Coronavirus economic response","content":"Part 6‑4C—Coronavirus economic response","sortOrder":1904},{"sectionNumber":"789GC","sectionType":"section","heading":"Definitions","content":"789GC  Definitions\n\n  In this Part:\n\n10% decline in turnover certificate has the meaning given by section 789GCD.\n\n10% decline in turnover test means the test set out in section 789GCB.\n\ncurrent GST turnover has the same meaning as in the jobkeeper payment rules.\n\ndecline in turnover test has the same meaning as in the jobkeeper payment rules.\n\ndesignated employment provision means:\n\n (a) a provision of this Act (other than a provision of this Part or a provision mentioned in section 789GZ); or\n\n (b) a provision of:\n\n (i) a fair work instrument; or\n\n (ii) a contract of employment; or\n\n (iii) a transitional instrument (within the meaning of item 2 of Schedule 3 to the Transitional Act).\n\ndesignated quarter applicable to a time has the meaning given by section 789GCC.\n\neligible financial service provider means:\n\n (b) a registered tax agent or BAS agent; or\n\n (c) a qualified accountant.\n\nemployee means a national system employee.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).\n\nemployer means a national system employer.\n\nfortnight means a 14‑day period beginning on a Monday.\n\nhourly rate of pay guarantee has the meaning given by section 789GDB.\n\njobkeeper enabling direction means a direction authorised by repealed section 789GDC, 789GE, 789GF, 789GJA, 789GJB or 789GJC.\n\njobkeeper payment means a payment that:\n\n (a) is payable by the Commonwealth in accordance with the jobkeeper payment rules; and\n\n (b) is known as jobkeeper payment.\n\njobkeeper payment rules means rules made under the Coronavirus Economic Response Package (Payments and Benefits) Act 2020.\n\nlicence includes:\n\n (a) registration; and\n\n (b) permit.\n\nminimum payment guarantee has the meaning given by section 789GDA.\n\nqualified accountant has the same meaning as in the Corporations Act 2001.\n\nqualifies for the jobkeeper scheme has the meaning given by section 789GCA.\n\nquarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December.\n\nregistered tax agent or BAS agent has the same meaning as in the Tax Agent Services Act 2009.\n\nwage condition means the wage condition set out in the jobkeeper payment rules.","sortOrder":1906},{"sectionNumber":"789GCA","sectionType":"section","heading":"When employer qualifies for the jobkeeper scheme","content":"789GCA  When employer qualifies for the jobkeeper scheme\n\n  For the purposes of this Part, an employer qualifies for the jobkeeper scheme at a time if, under the jobkeeper payment rules, the employer qualifies for the jobkeeper scheme for the fortnight in which the time occurs.","sortOrder":1907},{"sectionNumber":"789GCB","sectionType":"section","heading":"10% decline in turnover test","content":"789GCB  10% decline in turnover test\n\n (1) For the purposes of this Part, an employer satisfies the 10% decline in turnover test for a quarter if the employer would satisfy the decline in turnover test at a time in the quarter if:\n\n (a) the turnover test period were the quarter, instead of the period determined under paragraph 8(7)(a) or (aa) of the jobkeeper payment rules; and\n\n (b) instead of projected GST turnover, current GST turnover were used (including in subsection 8A(3) of the jobkeeper payment rules, and in applying an alternative decline in turnover test determined under subsection 8(6) of the jobkeeper payment rules); and\n\n (c) the specified percentage for the employer was 10%, instead of the percentage worked out under subsection 8(2) of the jobkeeper payment rules; and\n\n (d) the decline in turnover test was subject to such modifications (if any) as are prescribed by the regulations.\n\n (2) The regulations must not prescribe modifications for the purposes of paragraph (1)(d) unless:\n\n (a) the jobkeeper payment rules are amended after the commencement of this section; and\n\n (b) the modifications relate to those amendments.","sortOrder":1908},{"sectionNumber":"789GCC","sectionType":"section","heading":"Designated quarter","content":"789GCC  Designated quarter\n\n  For the purposes of this Part, the designated quarter applicable to a time is set out in the table.\n\n\n\n- Designated quarter applicable to a time\n- Item If the time occurs: the designated quarter applicable to the time is the quarter ending on:\n- 1 before 28 October 2020 30 June 2020\n- 2 during the period:(a) beginning at the start of 28 October 2020; and(b) ending at the end of 27 February 2021 30 September 2020\n- 3 on or after 28 February 2021 31 December 2020","sortOrder":1909},{"sectionNumber":"789GCD","sectionType":"section","heading":"10% decline in turnover certificate","content":"789GCD  10% decline in turnover certificate\n\n (1) An eligible financial service provider may issue a written certificate that:\n\n (a) relates to a specified employer; and\n\n (b) confirms that the employer satisfied the 10% decline in turnover test for the designated quarter applicable to a specified time.\n\n (2) However, an eligible financial service provider is not entitled to issue a certificate under subsection (1) in relation to an employer if the eligible financial service provider is:\n\n (a) a director or employee of the employer; or\n\n (b) an associated entity of the employer; or\n\n (c) a director or employee of an associated entity of the employer.\n\n (3) A certificate under subsection (1) is to be known as a 10% decline in turnover certificate that covers the employer specified in the certificate for the designated quarter applicable to the time specified in the certificate.\n\n (4) If:\n\n (a) an employer is a small business employer; and\n\n (b) an individual who:\n\n (i) is, or is authorised by, the employer; and\n\n (ii) has knowledge of the financial affairs of the employer;\n\n  makes a statutory declaration to the effect that the employer satisfied the 10% decline in turnover test for the designated quarter applicable to a specified time;\n\nthe statutory declaration is taken to be a 10% decline in turnover certificate that covers the employer for the designated quarter applicable to the time specified in the statutory declaration.\n\nNote: For small business employer, see section 23.","sortOrder":1910},{"sectionNumber":"789GR","sectionType":"section","heading":"Service","content":"789GR  Service\n\n (1) For the purposes of this Act, if an employee is subject to a jobkeeper enabling direction during a period, that period counts as service.\n\n (2)  Subsection (1) has effect in addition to section 22.","sortOrder":1912},{"sectionNumber":"789GS","sectionType":"section","heading":"Accrual rules","content":"789GS  Accrual rules\n\n (1) If a jobkeeper enabling direction under repealed section 789GDC or 789GJA (jobkeeper enabling stand down) applies to an employee, the employee accrues leave entitlements as if the direction had not been given.\n\n (2) If a jobkeeper enabling direction under repealed section 789GDC or 789GJA (jobkeeper enabling stand down) applies to an employee, the following are to be calculated as if the direction had not been given:\n\n (a) redundancy pay;\n\n (b) payment in lieu of notice of termination.\n\n (3) If an employee takes paid annual leave in accordance with an agreement under repealed subsection 789GJ(2), the employee accrues leave entitlements as if the agreement had not been made.\n\n (4) If an employee takes paid annual leave in accordance with an agreement under repealed subsection 789GJ(2), the following are to be calculated as if the agreement had not been made:\n\n (a) redundancy pay;\n\n (b) payment in lieu of notice of termination.","sortOrder":1914},{"sectionNumber":"789GV","sectionType":"section","heading":"FWC may deal with a dispute about the operation of this Part","content":"789GV  FWC may deal with a dispute about the operation of this Part\n\n (1) The FWC may deal with a dispute about the operation of this Part.\n\n (2) The FWC may deal with a dispute by arbitration.\n\nNote: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).\n\n (3) The FWC may deal with a dispute only on application by any of the following:\n\n (a) an employee;\n\n (b) an employer;\n\n (c) an employee organisation;\n\n (d) an employer organisation.\n\n (4) The FWC may make any of the following orders:\n\n (a) an order that the FWC considers desirable to give effect to a jobkeeper enabling direction;\n\n (b) an order setting aside a jobkeeper enabling direction;\n\n (c) an order:\n\n (i) setting aside a jobkeeper enabling direction; and\n\n (ii) substituting a different jobkeeper enabling direction;\n\n (d) any other order that the FWC considers appropriate.\n\n (5) The FWC must not make an order under paragraph (4)(a) or (c) on or after 29 March 2021.\n\n (6) An order made by the FWC under paragraph (4)(a) ceases to have effect at the start of 29 March 2021.\n\n (7) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.","sortOrder":1916},{"sectionNumber":"789GW","sectionType":"section","heading":"Contravening an FWC order dealing with a dispute about the operation of this Part","content":"789GW  Contravening an FWC order dealing with a dispute about the operation of this Part\n\n  A person must not contravene a term of an FWC order dealing with a dispute about the operation of this Part.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":1917},{"sectionNumber":"789GXA","sectionType":"section","heading":"Misuse of jobkeeper enabling direction","content":"789GXA  Misuse of jobkeeper enabling direction\n\n  An employer must not purport to give a jobkeeper enabling direction if:\n\n (a) the direction is not authorised by this Part; and\n\n (b) the employer knows that the direction is not authorised by this Part.\n\nNote: This section is a civil remedy provision (see Part 4‑1).","sortOrder":1919},{"sectionNumber":"789GXB","sectionType":"section","heading":"10% decline in turnover test—prohibited conduct","content":"789GXB  10% decline in turnover test—prohibited conduct\n\n (1) An employer must not purport to give a jobkeeper enabling direction under section 789GJA, 789GJB or 789GJC if, at the time when the direction was given:\n\n (a) the employer did not satisfy the 10% decline in turnover test for the designated quarter applicable to that time; and\n\n (b) the employer knew that, or was reckless as to whether, the employer did not satisfy the 10% decline in turnover test for the designated quarter applicable to that time.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) An employer must not purport to give a request under subsection 789GJD(1) if, at the time when the request was given:\n\n (a) the employer did not satisfy the 10% decline in turnover test for the designated quarter applicable to that time; and\n\n (b) the employer knew that, or was reckless as to whether, the employer did not satisfy the 10% decline in turnover test for the designated quarter applicable to that time.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (3) An employer must not give information to an eligible financial service provider if:\n\n (a) the information is given in connection with the issue of a 10% decline in turnover certificate that covers the employer for the designated quarter applicable to a particular time; and\n\n (b) the information:\n\n (i) is false or misleading; or\n\n (ii) omits any matter or thing without which the information is misleading; and\n\n (c) the employer knows that the information:\n\n (i) is false or misleading; or\n\n (ii) omits any matter or thing without which the information is misleading.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).","sortOrder":1920},{"sectionNumber":"789GXC","sectionType":"section","heading":"False statutory declaration","content":"789GXC  False statutory declaration\n\n (1) A person must not make a false statement in a statutory declaration covered by subsection 789GCD(3) if the person knows that the statement is false.\n\nNote: This subsection is a civil remedy provision (see Part 4‑1).\n\n (2) The following laws:\n\n (a) a law of the Commonwealth, other than:\n\n (i) subsection (1) of this section; or\n\n (ii) the remaining provisions of this Act so far as they relate to subsection (1) of this section;\n\n (b) a law of a State or Territory;\n\ndo not apply to making a false statement in a statutory declaration covered by subsection 789GCD(3).","sortOrder":1921},{"sectionNumber":"789GXD","sectionType":"section","heading":"Federal Court may terminate a jobkeeper enabling direction if employer does not satisfy the 10% decline in turnover test","content":"789GXD  Federal Court may terminate a jobkeeper enabling direction if employer does not satisfy the 10% decline in turnover test\n\n  If:\n\n (a) a jobkeeper enabling direction given by an employer to an employee of the employer under section 789GJA, 789GJB or 789GJC is in force at a particular time; and\n\n (b) the Federal Court is satisfied that the employer did not satisfy the 10% decline in turnover test for the designated quarter applicable to that time;\n\nthe Federal Court may, on application made by:\n\n (c) the employee; or\n\n (d) an employee organisation; or\n\n (e) an inspector;\n\nmake either or both of the following orders:\n\n (f) an order terminating the direction;\n\n (g) any other order that the court considers appropriate.","sortOrder":1922},{"sectionNumber":"789GXE","sectionType":"section","heading":"Federal Court may terminate a subsection 789GJD(2) agreement if employer does not satisfy the 10% decline in turnover test","content":"789GXE  Federal Court may terminate a subsection 789GJD(2) agreement if employer does not satisfy the 10% decline in turnover test\n\n  If:\n\n (a) an agreement made by an employer and an employee of the employer under subsection 789GJD(2) is in force at a particular time; and\n\n (b) the Federal Court is satisfied that the employer did not satisfy the 10% decline in turnover test for the designated quarter applicable to that time;\n\nthe Federal Court may, on application made by:\n\n (c) the employee; or\n\n (d) an employee organisation; or\n\n (e) an inspector;\n\nmake either or both of the following orders:\n\n (f) an order terminating the agreement;\n\n (g) any other order that the court considers appropriate.","sortOrder":1923},{"sectionNumber":"789GY","sectionType":"section","heading":"Protection of workplace rights","content":"789GY  Protection of workplace rights\n\n  For the avoidance of doubt, each of the following is a workplace right within the meaning of Part 3‑1:\n\n (a) the benefit that an employee of an employer has or derives because of an obligation of the employer under repealed section 789GD to satisfy the wage condition;\n\n (b) agreeing, or not agreeing, to perform duties:\n\n (i) on different days; or\n\n (ii) at different times;\n\n  in accordance with repealed subsection 789GG(2) or 789GJD(2);\n\n (c) agreeing, or not agreeing, to take paid annual leave in compliance with a request under repealed subsection 789GJ(1);\n\n (d) agreeing, or not agreeing, to take paid annual leave in accordance with repealed subsection 789GJ(2);\n\n (e) making a request under repealed section 789GU (secondary employment, training etc.).","sortOrder":1924},{"sectionNumber":"789GZ","sectionType":"section","heading":"Relationship with other laws etc.","content":"789GZ  Relationship with other laws etc.\n\n (1) This Part will at all times operate subject to the following:\n\n (a) Division 2 of Part 2‑9 (payment of wages etc.);\n\n (b) Part 3‑1 (general protections);\n\n (c) Part 3‑2 (unfair dismissal);\n\n (d) section 772 (employment not to be terminated on certain grounds);\n\n (e) an anti‑discrimination law;\n\n (f) a law of the Commonwealth, a State or a Territory, so far as the law deals with health and safety obligations of employers or employees;\n\n (g) a law of the Commonwealth, a State or a Territory, so far as the law deals with workers’ compensation.\n\n (2) This Part has effect subject to a person’s right to be represented, or collectively represented, by an employee organisation or employer organisation.","sortOrder":1925},{"sectionNumber":"789GZA","sectionType":"section","heading":"Redundancy","content":"789GZA  Redundancy\n\n  The giving of a jobkeeper enabling direction does not amount to a redundancy.","sortOrder":1926},{"sectionNumber":"789GZB","sectionType":"section","heading":"Review of this Part","content":"789GZB  Review of this Part\n\n (1) The Minister must cause an independent review to be conducted of the operation of this Part.\n\n (2) The review must start on or before:\n\n (a) 28 July 2020; or\n\n (b) if a later day is specified in the regulations—that later day.\n\n (3) The persons who conduct the review must:\n\n (a) complete the review; and\n\n (b) give the Minister a written report of the review;\n\non or before:\n\n (c) 8 September 2020; or\n\n (d) if a later day is specified in the regulations—that later day.\n\n (4) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 5 sitting days of that House after the report is given to the Minister.","sortOrder":1928},{"sectionNumber":"Part 6-4D","sectionType":"part","heading":"The National Construction Industry Forum","content":"Part 6‑4D—The National Construction Industry Forum","sortOrder":1929},{"sectionNumber":"789GZC","sectionType":"section","heading":"Establishment","content":"789GZC  Establishment\n\n  The National Construction Industry Forum is established by this section.","sortOrder":1930},{"sectionNumber":"789GZD","sectionType":"section","heading":"Function of the Forum","content":"789GZD  Function of the Forum\n\n (1) The function of the National Construction Industry Forum is to provide advice to the Government in relation to work in the building and construction industry.\n\n (2) The matters in relation to which the Forum may provide advice include, but are not limited to, the following:\n\n (a) workplace relations;\n\n (b) skills and training;\n\n (c) safety;\n\n (d) productivity;\n\n (e) diversity and gender equity;\n\n (f) industry culture.\n\n (3) Matters for advice may be:\n\n (a) raised by the Government; or\n\n (b) agreed between the members of the Forum.","sortOrder":1931},{"sectionNumber":"789GZE","sectionType":"section","heading":"Membership","content":"789GZE  Membership\n\n (1) The members of the National Construction Industry Forum are:\n\n (a) the Minister; and\n\n (b) the Infrastructure Minister; and\n\n (c) the Minister responsible for the building and construction industry, excluding workplace relations; and\n\n (ca) the Minister responsible for skills and vocational education; and\n\n (d) the members appointed by the Minister.\n\n (2) The Minister must appoint:\n\n (a) one or more members who have experience representing employees in the building and construction industry; and\n\n (b) an equal number of members who have experience representing employers in the building and construction industry, including at least one member who has experience representing contractors in the building and construction industry, and one member with experience in small to medium sized enterprises in the residential building sector.\n\n (3) The Minister may appoint any other person.","sortOrder":1932},{"sectionNumber":"789GZF","sectionType":"section","heading":"Appointment by the Minister","content":"789GZF  Appointment by the Minister\n\n  A member of the National Construction Industry Forum appointed by the Minister:\n\n (a) is to be appointed by written instrument; and\n\n (b) holds office:\n\n (i) on a part‑time basis; and\n\n (ii) for the period specified in the instrument, which must not exceed 3 years.\n\nNote: A member is eligible for reappointment (see section 33AA of the Acts Interpretation Act 1901).","sortOrder":1933},{"sectionNumber":"789GZG","sectionType":"section","heading":"Chair of the Forum","content":"789GZG  Chair of the Forum\n\n (1) The Minister is the Chair of the National Construction Industry Forum.\n\n (2) If the Minister is unable to preside at a meeting, or considers it appropriate for any other reason, the Minister may nominate another Minister to preside at the meeting.","sortOrder":1934},{"sectionNumber":"789GZH","sectionType":"section","heading":"Meetings","content":"789GZH  Meetings\n\n (1) The Chair of the National Construction Industry Forum must convene at least 2 meetings of the Forum in each calendar year.\n\n (2) One meeting must be held in the first 6 months of the year and another must be held in the second 6 months of the year.\n\n (3) Otherwise, the timing of meetings is to be determined by the Chair in consultation with the members.\n\n (4) The procedure to be followed at a meeting is to be determined by the Chair in consultation with the members.","sortOrder":1935},{"sectionNumber":"789GZJ","sectionType":"section","heading":"Confidentiality","content":"789GZJ  Confidentiality\n\n (1) The views expressed at meetings of the National Construction Industry Forum are to be kept confidential.\n\n (2) However, this does not prevent members from:\n\n (a) reporting to the persons, bodies or organisations they represent; or\n\n (b) making announcements the members agree are in the public interest.\n\n (3) Within 14 working days of a meeting, the National Construction Industry Forum must publish on the Department’s website a public communique.","sortOrder":1936},{"sectionNumber":"789GZK","sectionType":"section","heading":"Substitute members","content":"789GZK  Substitute members\n\n (1) If a member of the National Construction Industry Forum is unable to be present at a meeting, the member may nominate a person to attend the meeting in the member’s place.\n\n (2) If the Chair agrees, the person may attend the meeting in the place of the member.\n\n (3) A person attending a meeting in the place of a member has all the rights and responsibilities of the member at, and in relation to, the meeting.\n\nNote: For example, a substitute member must comply with the confidentiality requirement in section 789GZJ.","sortOrder":1937},{"sectionNumber":"789GZL","sectionType":"section","heading":"Invited participants","content":"789GZL  Invited participants\n\n (1) The Chair may, after consulting the members of the National Construction Industry Forum, invite a person, body or organisation to participate in a meeting.\n\n (2) The Chair may terminate the invitation at any time, including during a meeting.\n\n (3) The participation of a person in a meeting does not make the person a member.\n\n (4) A person invited to participate in a meeting:\n\n (a) is entitled to payment of travel allowance as if the person were a member; and\n\n (b) must comply with subsection 789GZJ(1) (confidentiality).","sortOrder":1938},{"sectionNumber":"789GZM","sectionType":"section","heading":"Remuneration","content":"789GZM  Remuneration\n\n (1) A member of the National Construction Industry Forum is not entitled to be paid remuneration or allowances, other than travel allowance in accordance with subsection (2).\n\n (2) A member who is not a Minister or a member of the Parliament is entitled to be paid travel allowance at the rate prescribed by the regulations.\n\n (2A) Regulations made for the purposes of subsection (2) may prescribe a rate by reference to the rate of travel allowance that is payable to a particular class of office holders under a determination of the Remuneration Tribunal as in force at a particular time, or as in force from time to time.\n\nNote: This subsection is not intended to be an exhaustive statement of the ways in which a rate could be prescribed.\n\n (3) To avoid doubt, this section does not affect any entitlements of a Minister or a member of the Parliament under the Parliamentary Business Resources Act 2017.","sortOrder":1939},{"sectionNumber":"789GZN","sectionType":"section","heading":"Resignation","content":"789GZN  Resignation\n\n (1) A member of the National Construction Industry Forum appointed by the Minister may resign the member’s appointment by giving the Minister a written resignation.\n\n (2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.","sortOrder":1940},{"sectionNumber":"789GZP","sectionType":"section","heading":"Disclosure of interests","content":"789GZP  Disclosure of interests\n\n (1) A member of the National Construction Industry Forum who has a material personal interest that relates to a matter being considered by the Forum must disclose the interest to the Chair.\n\n (2) The member must not participate in any part of a meeting during which the matter is dealt with.","sortOrder":1941},{"sectionNumber":"789GZQ","sectionType":"section","heading":"Termination of appointment","content":"789GZQ  Termination of appointment\n\n  The Minister may terminate the appointment of a member of the National Construction Industry Forum appointed by the Minister:\n\n (a) for misbehaviour; or\n\n (b) if the member is unable to perform the duties of the member’s office because of physical or mental incapacity; or\n\n (c) if the member:\n\n (i) becomes bankrupt; or\n\n (ii) takes steps to take the benefit of any law for the relief of bankrupt or insolvent debtors; or\n\n (iii) compounds with one or more of the member’s creditors; or\n\n (iv) makes an assignment of the member’s remuneration for the benefit of one or more of the member’s creditors; or\n\n (d) for a member appointed because the member held a particular position or qualification, or represented a particular group—if the member no longer holds the position or qualification, or represents that group; or\n\n (e) the member fails, without reasonable excuse, to comply with section 789GZJ (confidentiality) or section 789GZP (disclosure of interests); or\n\n (f) if the member is absent, except on leave of absence granted by the Minister, from 3 consecutive meetings of the Forum.","sortOrder":1942},{"sectionNumber":"Part 6-4E","sectionType":"part","heading":"Extension of anti-discrimination rules","content":"Part 6‑4E—Extension of anti‑discrimination rules","sortOrder":1943},{"sectionNumber":"789HA","sectionType":"section","heading":"Constitutional basis of this Division","content":"789HA  Constitutional basis of this Division\n\n  This Division relies on the Commonwealth’s legislative powers under paragraph 51(xxix) (external affairs) of the Constitution as it relates to giving effect to Australia’s obligations under:\n\n (a) the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and\n\n (b) article 26 of the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); and\n\n (c) paragraph 2 of article 2, and articles 6 and 7, of the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5).\n\nNote: The Conventions and the Covenant could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).","sortOrder":1945},{"sectionNumber":"789HB","sectionType":"section","heading":"Extension of anti-discrimination rules","content":"789HB  Extension of anti‑discrimination rules\n\n (1) Subsection (3) applies for the purposes of the operation of the provisions identified in subsection (2) in relation to breastfeeding, gender identity or intersex status.\n\n (2) The provisions are as follows:\n\n (a) section 153;\n\n (b) section 172A;\n\n (c) section 195;\n\n (d) section 351.\n\n (3) In applying sections 30H and 30S in relation to that operation of the provisions identified in subsection (2), assume that:\n\n (a) the matter to which that operation of those provisions relates is not an excluded subject matter for the purposes of:\n\n (i) the State’s referral law mentioned in sections 30H and 30S; and\n\n (ii) Divisions 2A and 2B of Part 1‑3; and\n\n (b) the referral of that matter by that referral law results in the Parliament of the Commonwealth having sufficient legislative power for those provisions (to the extent of that operation) to have effect.","sortOrder":1946},{"sectionNumber":"789HC","sectionType":"section","heading":"Constitutional basis of this Division","content":"789HC  Constitutional basis of this Division\n\n  This Division relies on the Commonwealth’s legislative powers under paragraph 51(xxix) (external affairs) of the Constitution as it relates to giving effect to Australia’s obligations under:\n\n (a) the ILO Convention (No. 111) concerning Discrimination in respect of Employment and Occupation, done at Geneva on 25 June 1958; and\n\n (b) the ILO Convention (No. 190) concerning the elimination of violence and harassment in the world of work, done at Geneva on 21 June 2019.\n\nNote: The Conventions could in 2023 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).","sortOrder":1948},{"sectionNumber":"789HD","sectionType":"section","heading":"Extension of anti-discrimination rules","content":"789HD  Extension of anti‑discrimination rules\n\n (1) Subsection (3) applies for the purposes of the operation of the provisions identified in subsection (2) in relation to family and domestic violence.\n\n (2) The provisions are as follows:\n\n (a) section 153;\n\n (b) section 172A;\n\n (c) section 195;\n\n (d) section 351.\n\n (3) In applying sections 30H and 30S in relation to that operation of the provisions identified in subsection (2), assume that:\n\n (a) the matter to which that operation of those provisions relates is not an excluded subject matter for the purposes of:\n\n (i) the State’s referral law mentioned in sections 30H and 30S; and\n\n (ii) Divisions 2A and 2B of Part 1‑3; and\n\n (b) the referral of that matter by that referral law results in the Parliament of the Commonwealth having sufficient legislative power for those provisions (to the extent of that operation) to have effect.","sortOrder":1949},{"sectionNumber":"Part 6-5","sectionType":"part","heading":"Miscellaneous","content":"Part 6‑5—Miscellaneous","sortOrder":1950},{"sectionNumber":"790","sectionType":"section","heading":"Guide to this Part","content":"790  Guide to this Part\n\nThis Part deals with miscellaneous matters such as delegations and regulations.","sortOrder":1952},{"sectionNumber":"791","sectionType":"section","heading":"Meanings of employee and employer","content":"791  Meanings of employee and employer\n\n  In this Part, employee means a national system employee, and employer means a national system employer.\n\nNote: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).","sortOrder":1953},{"sectionNumber":"792","sectionType":"section","heading":"Delegation by Minister","content":"792  Delegation by Minister\n\n (1) The Minister may, in writing, delegate all or any of his or her functions or powers under this Act (except under section 32A, subsection 354(2C) or section 378A) to:\n\n (a) the Secretary of the Department; or\n\n (b) an SES employee, or acting SES employee, in the Department.\n\n (2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Minister.\n\nNote: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.","sortOrder":1955},{"sectionNumber":"793","sectionType":"section","heading":"Liability of bodies corporate","content":"793  Liability of bodies corporate\n\nConduct of a body corporate\n\n (1) Any conduct engaged in on behalf of a body corporate:\n\n (a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or\n\n (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;\n\nis taken, for the purposes of this Act (subject to subsection (3A)) and the procedural rules, to have been engaged in also by the body.\n\nState of mind of a body corporate\n\n (2) If, for the purposes of this Act (subject to subsection (3A)) 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:\n\n (a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and\n\n (b) that the person had that state of mind.\n\nMeaning of state of mind\n\n (3) The state of mind of a person includes:\n\n (a) the knowledge, intention, opinion, belief or purpose of the person; and\n\n (b) the person’s reasons for the intention, opinion, belief or purpose.\n\nException—offence relating to failure to pay amounts\n\n (3A) Subsections (1) and (2) do not apply for the purposes of:\n\n (a) subsection 327A(1) (offence for failing to pay amounts as required); or\n\n (b) a related offence provision, to the extent that the related offence provision relates to an offence against subsection 327A(1).\n\nDisapplication of Part 2.5 of the Criminal Code\n\n (4) Part 2.5 of Chapter 2 of the Criminal Code does not apply to an offence against this Act, other than an offence against a provision referred to in paragraph (3A)(a) or (b) of this section.\n\nNote: Part 2.5 of the Criminal Code deals with corporate criminal responsibility.\n\n (5) In this section, employee has its ordinary meaning.","sortOrder":1956},{"sectionNumber":"794","sectionType":"section","heading":"Signature on behalf of body corporate","content":"794  Signature on behalf of body corporate\n\n  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.","sortOrder":1957},{"sectionNumber":"794A","sectionType":"section","heading":"Liability of Australian governments under civil remedy provisions","content":"794A  Liability of Australian governments under civil remedy provisions\n\nScope\n\n (1) This section applies for the purposes of applying a civil remedy provision, or any other provision of this Act in so far as it relates to a civil remedy provision, in relation to an Australian government.\n\n (2) Each of the following is an Australian government:\n\n (a) the Commonwealth;\n\n (b) a State;\n\n (c) the Australian Capital Territory;\n\n (d) the Northern Territory.\n\nConduct of Australian governments\n\n (3) Any conduct engaged in on behalf of an Australian government by an officer, employee or agent (an official) of the government within the scope of the official’s actual or apparent authority is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the government.\n\nState of mind of Australian governments\n\n (4) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of an Australian government in relation to particular conduct, it is enough to show:\n\n (a) that the conduct was engaged in by an official of the government; and\n\n (b) that the official had that state of mind.\n\nNote: For state of mind, see subsection 793(3).\n\nDetermining penalty amounts for Australian governments\n\n (5) If an Australian government contravenes a civil remedy provision, the pecuniary penalty that government may be ordered to pay under a pecuniary penalty order is the penalty applicable to a body corporate.\n\nModifications\n\n (6) This section applies in relation to an Australian government subject to any modifications prescribed by the regulations.\n\nMeaning of employee\n\n (7) In this section, employee has its ordinary meaning.","sortOrder":1958},{"sectionNumber":"794B","sectionType":"section","heading":"Liability of the Commonwealth for certain offences","content":"794B  Liability of the Commonwealth for certain offences\n\n (1) Part 2.5 of the Criminal Code applies in relation to the Commonwealth, for the purposes of an offence against:\n\n (a) subsection 327A(1) (offence for failing to pay amounts as required) of this Act; or\n\n (b) a related offence provision, to the extent that the related offence provision relates to an offence against subsection 327A(1) of this Act;\n\nin the same way as that Part applies in relation to a body corporate.\n\n (2) It so applies:\n\n (a) as if sections 12.4 and 12.5 of the Criminal Code were omitted; and\n\n (b) with the following modifications:\n\n (i) the modifications set out in the following table (subject to subparagraph (iii));\n\n (ii) such other modifications as are made necessary by the fact that criminal liability is being imposed on a body politic rather than a body corporate (subject to subparagraph (iii));\n\n (iii) any modifications prescribed by the regulations.\n\n\n\n- Application of Part 2.5 of the Criminal Code to the Commonwealth\n- Item Part 2.5 of the Criminal Code applies as if a reference to … were a reference to …\n- 1 a body corporate’s board of directors the governing body of the agency of the Commonwealth (the relevant agency) whose officer, employee or agent engaged in conduct constituting a physical element of the offence\n- 2 a high managerial agent of a body corporate a person who is an officer, employee or agent of the Commonwealth with duties of such responsibility that the person’s conduct may fairly be assumed to represent the policy of the relevant agency\n- 3 the corporate culture of a body corporate one or more attitudes, policies, rules, courses of conduct or practices existing within the relevant agency or a part of the relevant agency\n\n\n\n\nDetermining penalty amounts for the Commonwealth\n\n (3) If the Commonwealth is guilty of an offence against a provision mentioned in paragraph (1)(a) or (b), the penalty to be imposed on the Commonwealth is the penalty applicable to a body corporate.\n\nMeaning of employee\n\n (4) In this section, employee has its ordinary meaning.\n\nMeaning of governing body\n\n (5) The governing body of an agency of the Commonwealth is the body, or group of members of the agency, with primary responsibility for the governance of the agency.","sortOrder":1959},{"sectionNumber":"794C","sectionType":"section","heading":"Responsible agencies for Australian governments","content":"794C  Responsible agencies for Australian governments\n\n (1) If proceedings are brought against:\n\n (a) an Australian government in relation to a contravention of a civil remedy provision of this Act; or\n\n (b) the Commonwealth for an offence against:\n\n (i) subsection 327A(1) (offence for failing to pay amounts as required); or\n\n (ii) a related offence provision, to the extent that the related offence provision relates to an offence against subsection 327A(1);\n\nthe responsible agency in relation to the contravention, or the commission of the offence, may be specified in any document initiating, or relating to, the proceedings.\n\n (2) The responsible agency in relation to the contravention, or the commission of the offence, is entitled to act in the proceedings and, subject to any relevant rules of court, the procedural rights and obligations of:\n\n (a) if paragraph (1)(a) applies—the Australian government as the respondent in the proceedings; or\n\n (b) if paragraph (1)(b) applies—the Commonwealth as the accused in the proceedings;\n\nare conferred or imposed on the responsible agency.\n\n (3) With the court’s leave, the following person may change the responsible agency during the proceedings:\n\n (a) if paragraph (1)(a) applies—the person bringing the proceedings;\n\n (b) if paragraph (1)(b) applies—the person prosecuting the offence.\n\n (4) The responsible agency in relation to a contravention of a civil remedy provision by an Australian government, or the commission of an offence by the Commonwealth, is:\n\n (a) for a contravention of a civil remedy provision by an Australian government—the agency of that government whose officer, employee or agent engaged in conduct constituting the contravention; or\n\n (b) for the commission of an offence by the Commonwealth—the agency of the Commonwealth whose officer, employee or agent engaged in conduct constituting a physical element of the offence; or\n\n (c) if the agency referred to in paragraph (a) or (b) has ceased to exist—the agency of the Australian government or the Commonwealth (as the case requires) that is the successor of that agency; or\n\n (d) if there is no responsible agency under whichever of paragraph (a) or (b) applies, or paragraph (c)—the agency of the Australian government or the Commonwealth (as the case requires) that the court declares to be the responsible agency.\n\n (5) This section applies in relation to:\n\n (a) an Australian government in relation to a contravention of a civil remedy provision; and\n\n (b) the Commonwealth in relation to the commission of an offence;\n\nsubject to any modifications that are prescribed by the regulations.","sortOrder":1960},{"sectionNumber":"794D","sectionType":"section","heading":"Liability of the Commonwealth to pay civil and criminal penalties","content":"794D  Liability of the Commonwealth to pay civil and criminal penalties\n\n (1) This section applies if:\n\n (a) the Commonwealth contravenes a civil remedy provision and a court makes a pecuniary penalty order that the Commonwealth pay all or part of a pecuniary penalty to itself; or\n\n (b) the Commonwealth is given an infringement notice under the regulations in relation to an alleged contravention of a civil remedy provision; or\n\n (c) the Commonwealth is convicted of an offence against either of the following provisions and the court imposes a pecuniary penalty on the Commonwealth in respect of the offence:\n\n (i) subsection 327A(1) (offence for failing to pay amounts as required);\n\n (ii) a related offence provision, to the extent that the related offence provision relates to an offence against subsection 327A(1).\n\n (2) While the Commonwealth is not liable to pay a pecuniary penalty to itself, it is the Parliament’s intention that the Commonwealth should be notionally liable to pay such a penalty.\n\n (3) The Finance Minister may give such written directions as are necessary or convenient for carrying out or giving effect to subsection (2) and, in particular, may give directions in relation to the transfer of money from an account operated by the responsible agency under section 794C for the contravention or for the commission of the offence to another account operated by the Commonwealth.\n\n (4) Directions under subsection (3) have effect, and must be complied with, despite any other Commonwealth law.","sortOrder":1961},{"sectionNumber":"795","sectionType":"section","heading":"Public sector employer to act through employing authority","content":"795  Public sector employer to act through employing authority\n\nEmployer to act through employing authority\n\n (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.\n\nActs done by or to employing authority\n\n (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).\n\nApplication of subsections (1) and (2)\n\n (3) Subsections (1) and (2) apply despite any other law of the Commonwealth, a State or a Territory.\n\nMeaning of public sector employment\n\n (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):\n\n (a) under the Public Service Act 1999 or the Parliamentary Service Act 1999; or\n\n (b) by or in the service of a Commonwealth authority; or\n\n (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\n\n (d) by or in the service of:\n\n (i) an enactment authority as defined by section 3 of the A.C.T. Self‑Government (Consequential Provisions) Act 1988; or\n\n (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;\n\n  other than an authority or body prescribed by the regulations; or\n\n (e) under a law of the Northern Territory relating to the Public Service of the Northern Territory; or\n\n (f) by or in the service of a Northern Territory authority; or\n\n (g) by or in the service of a person prescribed by the regulations; or\n\n (h) under a law prescribed by the regulations.\n\n (5) However, public sector employment does not include:\n\n (a) employment of, or service by, a person prescribed by the regulations; or\n\n (b) employment or service under a law prescribed by the regulations.\n\nThis subsection does not apply for the purposes of section 40.\n\nNote: Section 40 deals with the interaction between fair work instruments and public sector employment laws.\n\nMeaning of employing authority\n\n (6) An employing authority of an employee is the person prescribed by the regulations as the employee’s employing authority.","sortOrder":1962},{"sectionNumber":"795A","sectionType":"section","heading":"The Schedules","content":"795A  The Schedules\n\n  The Schedules have effect.\n\nNote: The Schedules contain application, transitional and saving provisions relating to amendments of this Act.","sortOrder":1963},{"sectionNumber":"796","sectionType":"section","heading":"Regulations—general","content":"796  Regulations—general\n\n (1) The Governor‑General may make regulations prescribing matters:\n\n (a) required or permitted by this Act to be prescribed; or\n\n (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n\n (2) Regulations made under this Act prevail over procedural rules made under this Act, to the extent of any inconsistency.","sortOrder":1964},{"sectionNumber":"796A","sectionType":"section","heading":"Regulations conferring functions","content":"796A  Regulations conferring functions\n\n  The regulations may confer functions on the following:\n\n (a) the FWC;\n\n (b) the General Manager.","sortOrder":1965},{"sectionNumber":"797","sectionType":"section","heading":"Regulations dealing with offences","content":"797  Regulations dealing with offences\n\n (1) The regulations may provide for offences against the regulations.\n\n (2) The penalties for offences must not be more than 20 penalty units.","sortOrder":1966},{"sectionNumber":"798","sectionType":"section","heading":"Regulations dealing with civil penalties","content":"798  Regulations dealing with civil penalties\n\n (1) The regulations may provide for civil penalties for contravention of the regulations.\n\n (2) The penalties for contravention must not be more than:\n\n (a) 20 penalty units for an individual; or\n\n (b) 100 penalty units for a body corporate.","sortOrder":1967},{"sectionNumber":"799","sectionType":"section","heading":"Regulations dealing with infringement notices","content":"799  Regulations dealing with infringement notices\n\nInfringement notices for offences\n\n (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.\n\n (2) The penalty must not exceed one‑fifth of the maximum penalty prescribed by the regulations for that offence.","sortOrder":1968},{"sectionNumber":"800","sectionType":"section","heading":"Regulations dealing with exhibiting fair work instruments","content":"800  Regulations dealing with exhibiting fair work instruments\n\n  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.","sortOrder":1969},{"sectionNumber":"Schedule 1","sectionType":"schedule","heading":"Application, saving and transitional provisions relating to amendments of this Act","content":"Schedule 1—Application, saving and transitional provisions relating to amendments of this Act\n\nNote: See section 795A.","sortOrder":1970},{"sectionNumber":"Sch 1 Part 1","sectionType":"part","heading":"Amendments made by the Fair Work Amendment (Textile, Clothing and Footwear Industry) Act 2012","content":"Part 1—Amendments made by the Fair Work Amendment (Textile, Clothing and Footwear Industry) Act 2012","sortOrder":1971},{"sectionNumber":"Sch 1 s 1","sectionType":"section","heading":"Definitions","content":"1  Definitions\n\n  In this Part:\n\namended Act means this Act as amended by the amending Act.\n\namending Act means the Fair Work Amendment (Textile, Clothing and Footwear Industry) Act 2012.\n\ncommencement means the commencement of this Part.\n\ndeemed employee means a TCF contract outworker who is taken by section 789BB of the amended Act to be an employee.\n\ndeemed employer means a person who is taken by section 789BB of the amended Act to be the employer of a deemed employee.","sortOrder":1972},{"sectionNumber":"Sch 1 s 2","sectionType":"section","heading":"Section 789BB of amended Act applies to contracts entered into after commencement","content":"2  Section 789BB of amended Act applies to contracts entered into after commencement\n\n (1) Section 789BB of the amended Act applies in relation to particular TCF work performed by a TCF contract outworker only if the contract for the provision of services, for the purpose of which the outworker performs the work, is entered into after commencement.\n\n (2) Subclause (1) does not prevent regulations made for the purposes of section 789BC of the amended Act, or clause 7 of this Part, from dealing with the effect, in relation to a person who is taken by section 789BB of the amended Act to be an employee, of matters that occurred before commencement.","sortOrder":1973},{"sectionNumber":"Sch 1 s 3","sectionType":"section","heading":"Effect on TCF contract outworker’s entitlements","content":"3  Effect on TCF contract outworker’s entitlements\n\nAccrued entitlements not affected\n\n (1) The amendments made by the amending Act do not affect any entitlement that a TCF contract outworker had accrued before commencement.\n\nEffect of modern award term requiring National Employment Standards to be applied to TCF contract outworker\n\n (2) To avoid doubt, if:\n\n (a) a term of a modern award requires the principal of a TCF contract outworker to apply the National Employment Standards to the outworker as if the outworker were an employee; and\n\n (b) because of Division 2 of Part 6‑4A of the amended Act, the outworker is taken to be an employee (being a national system employee) of the principal for the purposes of Part 2‑2 of the amended Act (the National Employment Standards);\n\nthen, to the extent that the term gives the outworker an entitlement that is the same as an entitlement (the NES entitlement) of the outworker (as a national system employee) under the National Employment Standards, the term operates in parallel with the outworker’s NES entitlement, but not so as to give the outworker a double benefit.","sortOrder":1974},{"sectionNumber":"Sch 1 s 4","sectionType":"section","heading":"Fair work instruments etc. made before commencement","content":"4  Fair work instruments etc. made before commencement\n\n (1) This clause applies in relation to:\n\n (a) a fair work instrument made before commencement; or\n\n (b) a transitional instrument as continued in existence by Schedule 3 to the Transitional Act.\n\n (2) A reference in the instrument to an employee or an employer does not include a deemed employee or a deemed employer, unless the instrument is, after commencement, varied to make it clear that the reference is intended to include a deemed employee or deemed employer.\n\n (3) This clause is not to be taken to confer a power to vary the instrument.","sortOrder":1975},{"sectionNumber":"Sch 1 s 5","sectionType":"section","heading":"Application of Division 3 of Part 6-4A of amended Act","content":"5  Application of Division 3 of Part 6‑4A of amended Act\n\n  For the purposes of Division 3 of Part 6‑4A of the amended Act, an entity is not an indirectly responsible entity in relation to particular TCF work if the arrangement to which the entity is a party, being the arrangement because of which the work can be regarded as being performed indirectly for the entity, was entered into before commencement.","sortOrder":1976},{"sectionNumber":"Sch 1 s 6","sectionType":"section","heading":"Application of subsection 203(2A) of amended Act","content":"6  Application of subsection 203(2A) of amended Act\n\n  Subsection 203(2A) of the amended Act applies in relation to enterprise agreements made after commencement.","sortOrder":1977},{"sectionNumber":"Sch 1 s 7","sectionType":"section","heading":"Regulations dealing with various matters","content":"7  Regulations dealing with various matters\n\nApplication, saving and transitional\n\n (1) The regulations may make provisions dealing with matters of an application, saving or transitional nature relating to the amendments made by the amending Act.\n\n (2) The provisions of this Part have effect subject to any regulations that are made for the purpose of subclause (1).\n\nApplication to TCF outworkers of provisions of the Transitional Act\n\n (3) The regulations may make provisions dealing with how the Transitional Act applies in relation to TCF outworkers.\n\n (4) Without limiting subclause (3), regulations made for the purposes of that subclause may:\n\n (a) provide that the Transitional Act applies with specified modifications; or\n\n (b) otherwise make provision relating to how provisions of that Act apply.\n\nRetrospective application of regulations\n\n (5) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to regulations made for the purposes of subclause (1) or (3) of this clause.","sortOrder":1978},{"sectionNumber":"Sch 1 Part 2","sectionType":"part","heading":"Amendments made by the Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Act 2012","content":"Part 2—Amendments made by the Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Act 2012","sortOrder":1979},{"sectionNumber":"Sch 1 s 8","sectionType":"section","heading":"Definitions","content":"8  Definitions\n\n  In this Part:\n\namended Act means this Act as amended by the Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Act 2012.","sortOrder":1980},{"sectionNumber":"Sch 1 s 9","sectionType":"section","heading":"Application of sections 149A and 155A of amended Act","content":"9  Application of sections 149A and 155A of amended Act\n\n  Sections 149A and 155A of the amended Act apply in relation to a modern award that is in operation on or after 1 January 2014, whether or not the award was made before that day.","sortOrder":1981},{"sectionNumber":"Sch 1 s 10","sectionType":"section","heading":"FWC to vary certain modern awards","content":"10  FWC to vary certain modern awards\n\n (1) This clause applies in relation to a modern award if the award:\n\n (a) is made before 1 January 2014; and\n\n (b) is in operation on that day; and\n\n (c) immediately before that day, does not include a term (the relevant term) of the kind mentioned in section 149A of the amended Act.\n\n (2) The FWC must, by 31 December 2013, make a determination varying the modern award to include the relevant term.\n\n (3) A determination made under subclause (2) comes into operation on (and takes effect from) 1 January 2014.\n\n (4) Section 168 applies to a determination made under subclause (2) as if it were a determination made under Part 2‑3.","sortOrder":1982},{"sectionNumber":"Sch 1 s 11","sectionType":"section","heading":"FWC to update text of certain modern awards","content":"11  FWC to update text of certain modern awards\n\n (1) This clause applies in relation to a modern award if the award:\n\n (a) is made before 1 January 2014; and\n\n (b) is in operation on that day; and\n\n (c) immediately before that day, includes a term (the relevant term) of the kind mentioned in section 155A of the amended Act that specifies a fund or scheme (a non‑complying fund or scheme) that does not satisfy paragraph (1)(a) or (b) of that section.\n\n (2) The FWC must ensure that the text of the modern award as published by the FWC does not include a non‑complying fund or scheme in the relevant term.\n\n (3) The FWC must do so by 1 January 2014 (despite section 155A of the amended Act).","sortOrder":1983},{"sectionNumber":"Sch 1 s 12","sectionType":"section","heading":"Application of paragraph 194(h) of amended Act","content":"12  Application of paragraph 194(h) of amended Act\n\n  Paragraph 194(h) of the amended Act applies in relation to an enterprise agreement that is approved by the FWC on or after 1 January 2014.","sortOrder":1984},{"sectionNumber":"Sch 1 Part 3","sectionType":"part","heading":"Amendments made by the Fair Work Amendment (Respect for Emergency Services Volunteers) Act 2016","content":"Part 3—Amendments made by the Fair Work Amendment (Respect for Emergency Services Volunteers) Act 2016","sortOrder":1985},{"sectionNumber":"Sch 1 s 13","sectionType":"section","heading":"Definitions","content":"13  Definitions\n\n  In this Part:\n\namended Act means this Act as amended by the Fair Work Amendment (Respect for Emergency Services Volunteers) Act 2016.\n\ncommencement means the commencement of this Part.","sortOrder":1986},{"sectionNumber":"Sch 1 s 14","sectionType":"section","heading":"Application of amendments—objectionable emergency management terms","content":"14  Application of amendments—objectionable emergency management terms\n\nApplication of amendments\n\n (1) The amended Act applies, after commencement, in relation to enterprise agreements approved, and workplace determinations made, before or after commencement.\n\n (2) Sections 254A and 281AA of the amended Act apply in relation to a matter that is before the FWC on or after commencement, even if the matter was before the FWC before commencement.\n\nEnterprise agreements approved before commencement—preservation of terms in accordance with amended Act\n\n (3) If an enterprise agreement approved before commencement includes an objectionable emergency management term, a term of the agreement has effect after commencement to the extent that:\n\n (a) the term can have effect in accordance with the amended Act; and\n\n (b) it would not exceed the Commonwealth’s legislative power for the term so to have effect.","sortOrder":1987},{"sectionNumber":"Sch 1 Part 4","sectionType":"part","heading":"Amendments made by the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017","content":"Part 4—Amendments made by the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017","sortOrder":1988},{"sectionNumber":"Sch 1 s 15","sectionType":"section","heading":"Definitions","content":"15  Definitions\n\n  In this Part:\n\namended Act means this Act as amended by the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017.","sortOrder":1989},{"sectionNumber":"Sch 1 s 16","sectionType":"section","heading":"Application of amendments—unreasonable requirements to spend or pay amounts","content":"16  Application of amendments—unreasonable requirements to spend or pay amounts\n\n  Subsections 325(1) and (1A) of the amended Act apply in relation to requirements made after this clause commences.","sortOrder":1990},{"sectionNumber":"Sch 1 s 17","sectionType":"section","heading":"Saving of regulations—unreasonable deductions","content":"17  Saving of regulations—unreasonable deductions\n\n  Regulations in force, immediately before the commencement of this clause, for the purposes of subsection 326(2) of the Fair Work Act 2009 have effect after that commencement as if they had been made for the purposes of subsection 326(2) of the amended Act.","sortOrder":1991},{"sectionNumber":"Sch 1 s 18","sectionType":"section","heading":"Application of amendments—increasing maximum penalties for contraventions of certain civil remedy provisions","content":"18  Application of amendments—increasing maximum penalties for contraventions of certain civil remedy provisions\n\n (1) Sections 539, 557A and 557B of the amended Act apply in relation to conduct engaged in on or after the commencement of this Part.\n\n (2) If:\n\n (a) conduct was engaged in by a person before and after that commencement; and\n\n (b) the conduct is part of a course of conduct referred to in subsection 557(1);\n\nthe conduct engaged in before that commencement is to be treated as constituting a separate contravention from the conduct engaged in after that commencement for the purposes of section 557.\n\n (3) However, a court may still consider a contravention of a civil remedy provision (whether or not the provision is referred to in subsection 557(2)) by a person that occurred before the commencement of this Part for the purposes of determining whether a person’s conduct was part of a systematic pattern of conduct referred to in paragraph 557A(1)(b).","sortOrder":1992},{"sectionNumber":"Sch 1 s 19","sectionType":"section","heading":"Application of amendments—responsibility of responsible franchisor entities and holding companies","content":"19  Application of amendments—responsibility of responsible franchisor entities and holding companies\n\n (1) Section 558B of the amended Act applies in relation to contraventions of civil remedy provisions by franchisee entities or subsidiaries that occur after the end of the period of 6 weeks beginning on the day this Part commences.\n\n (2) To avoid doubt, in determining for the purposes of paragraph 558B(1)(d) or (2)(c) of the amended Act whether a person could reasonably be expected to have had knowledge as referred to in that paragraph, a court may have regard to conduct that occurred, or circumstances existing, before the end of the period referred to in subclause (1).","sortOrder":1993},{"sectionNumber":"Sch 1 s 20","sectionType":"section","heading":"Application of amendments—hindering or obstructing the Fair Work Ombudsman and inspectors etc.","content":"20  Application of amendments—hindering or obstructing the Fair Work Ombudsman and inspectors etc.\n\n  Section 707A of the amended Act applies in relation to conduct engaged in at or after the commencement of this Part.","sortOrder":1994},{"sectionNumber":"Sch 1 s 21","sectionType":"section","heading":"Application of power to give FWO notices","content":"21  Application of power to give FWO notices\n\n  Sections 712A to 712F of the amended Act apply in relation to an FWO notice given after this Part commences, whether the investigation to which the notice relates is begun before or after the commencement of this Part.","sortOrder":1995},{"sectionNumber":"Sch 1 s 22","sectionType":"section","heading":"Application of amendments relating to self-incrimination etc.","content":"22  Application of amendments relating to self‑incrimination etc.\n\n  Section 713 of the amended Act applies in relation to information given, records or documents produced or questions answered after the commencement of this Part.","sortOrder":1996},{"sectionNumber":"Sch 1 s 23","sectionType":"section","heading":"Application of requirement for reports not to include information relating to an individual’s affairs","content":"23  Application of requirement for reports not to include information relating to an individual’s affairs\n\n  Section 714A of the amended Act applies in relation to reports prepared after the commencement of this Part.","sortOrder":1997},{"sectionNumber":"Sch 1 s 24","sectionType":"section","heading":"Application of amendments—false or misleading information or documents","content":"24  Application of amendments—false or misleading information or documents\n\n  Subsections 535(4) and 536(3) and section 718A of the amended Act apply in relation to conduct engaged in after the commencement of this Part.","sortOrder":1998},{"sectionNumber":"Sch 1 s 24A","sectionType":"section","heading":"Application of amendments—presumption where records not provided","content":"24A  Application of amendments—presumption where records not provided\n\n  Section 557C of the amended Act applies in relation to contraventions of civil remedy provisions that occur after the commencement of this Part.","sortOrder":1999},{"sectionNumber":"Sch 1 Part 5","sectionType":"part","heading":"Amendments made by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018","content":"Part 5—Amendments made by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018","sortOrder":2000},{"sectionNumber":"Sch 1 Division 1","sectionType":"division","heading":"General","content":"Division 1—General","sortOrder":2001},{"sectionNumber":"Sch 1 s 25","sectionType":"section","heading":"Definitions","content":"25  Definitions\n\n  In this Part:\n\n4 yearly review of modern awards has the meaning given by this Act, as in force immediately before the commencement of Schedule 1 to the amending Act.\n\namended Act means this Act as amended by the amending Act.\n\namending Act means the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018.\n\nSchedule 1 commencement day means the day on which Schedule 1 to the amending Act commences.\n\nSchedule 2 commencement day means the day on which Schedule 2 to the amending Act commences.","sortOrder":2002},{"sectionNumber":"Sch 1 Division 2","sectionType":"division","heading":"Amendments made by Schedule 1 to the amending Act","content":"Division 2—Amendments made by Schedule 1 to the amending Act","sortOrder":2003},{"sectionNumber":"Sch 1 s 26","sectionType":"section","heading":"Incomplete review of modern award","content":"26  Incomplete review of modern award\n\nScope\n\n (1) This clause applies in relation to a review of a modern award conducted as part of a 4 yearly review of modern awards if:\n\n (a) the review of the modern award commenced before the Schedule 1 commencement day; and\n\n (b) immediately before that day, the review of the modern award had not been completed.\n\nSaving\n\n (2) Despite the repeal of:\n\n (a) Division 4 of Part 2‑3 (which deals with 4 yearly reviews of modern awards); and\n\n (b) paragraph 582(4)(a) (which deals with directions by the President); and\n\n (c) subsections 616(2) and (3) (which deal with the FWC’s functions etc. that must be performed by a Full Bench);\n\nby the amending Act, those provisions continue to apply, in relation to the review of the modern award, as if those repeals had not happened.\n\n (3) Despite the repeal of paragraph 582(4)(a) (which deals with directions by the President) by the amending Act, a direction given by the President to an FWC Member under that paragraph that was in force immediately before the Schedule 1 commencement day continues to have effect, in relation to the review of the modern award, as if that repeal had not happened.\n\n (3A) If, after the commencement of Part 5 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, the FWC is considering, under repealed Division 4 of Part 2‑3 (as continued in force under subclause (2)), whether an amendment to a modern award is justified by work value reasons, the FWC’s consideration of those work value reasons must:\n\n (a) be free of assumptions based on gender; and\n\n (b) include consideration of whether historically the work has been undervalued because of assumptions based on gender.\n\nCommon issues\n\n (4) For the purposes of this clause, it is immaterial whether the review of the modern award is conducted in relation to an issue that the modern award has in common with another modern award.","sortOrder":2004},{"sectionNumber":"Sch 1 Division 3","sectionType":"division","heading":"Amendments made by Schedule 2 to the amending Act","content":"Division 3—Amendments made by Schedule 2 to the amending Act","sortOrder":2005},{"sectionNumber":"Sch 1 s 28","sectionType":"section","heading":"Application of amendments—when employees have genuinely agreed to an enterprise agreement","content":"28  Application of amendments—when employees have genuinely agreed to an enterprise agreement\n\n (1) The amendments of section 188 of this Act made by Schedule 2 to the amending Act apply in relation to an application made under section 185 of this Act for approval of an enterprise agreement if the application is made:\n\n (a) on or after the Schedule 2 commencement day; or\n\n (b) before the Schedule 2 commencement day, if circumstances covered by subclause (2) apply.\n\n (2) The circumstances covered by this subclause are:\n\n (a) on or before the Schedule 2 commencement day, the FWC had neither approved, nor refused to approve, the enterprise agreement; or\n\n (b) before the Schedule 2 commencement day:\n\n (i) the FWC approved, or refused to approve, the enterprise agreement; and\n\n (ii) an application was made under section 604 for an appeal against the decision to approve, or refuse to approve, the enterprise agreement; and\n\n (iii) the FWC had not yet made a final decision on the appeal; or\n\n (c) all of the following apply:\n\n (i) within 21 days before the Schedule 2 commencement day, the FWC approved, or refused to approve, the enterprise agreement;\n\n (ii) immediately before the Schedule 2 commencement day, an application had not been made under section 604 for an appeal against the decision to approve, or refuse to approve, the enterprise agreement;\n\n (iii) within 21 days after the FWC approved, or refused to approve, the enterprise agreement, an application is made under section 604 for an appeal against that decision.","sortOrder":2006},{"sectionNumber":"Sch 1 Division 4","sectionType":"division","heading":"Amendments made by Schedule 3 to the amending Act","content":"Division 4—Amendments made by Schedule 3 to the amending Act","sortOrder":2007},{"sectionNumber":"Sch 1 s 29","sectionType":"section","heading":"Application of section 641B of the amended Act","content":"29  Application of section 641B of the amended Act\n\n  Section 641B of the amended Act applies in relation to alleged misbehaviour or incapacity of an FWC Member occurring before or after the commencement of Schedule 3 to the amending Act.","sortOrder":2008},{"sectionNumber":"Sch 1 Part 6","sectionType":"part","heading":"Amendments made by the Fair Work Amendment (Corrupting Benefits) Act 2017","content":"Part 6—Amendments made by the Fair Work Amendment (Corrupting Benefits) Act 2017","sortOrder":2009},{"sectionNumber":"Sch 1 s 30","sectionType":"section","heading":"Disclosure by organisations and employers","content":"30  Disclosure by organisations and employers\n\n  The amendments of Subdivision A of Division 4 of Part 2‑4 made by Schedule 2 to the Fair Work Amendment (Corrupting Benefits) Act 2017 apply in relation to a proposed enterprise agreement for which the access period under subsection 180(4) begins on or after the commencement of this Part.","sortOrder":2010},{"sectionNumber":"Sch 1 Part 8","sectionType":"part","heading":"Amendments made by the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018","content":"Part 8—Amendments made by the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018","sortOrder":2011},{"sectionNumber":"Sch 1 s 39","sectionType":"section","heading":"Entitlement to unpaid family and domestic violence leave","content":"39  Entitlement to unpaid family and domestic violence leave\n\n (1) Subdivision CA of Division 7 of Part 2‑2, as inserted by the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018, applies in relation to an employee whose employment started before the commencement of that Act as if the period:\n\n (a) starting on that commencement; and\n\n (b) ending on the first day after that commencement that is an anniversary of the day the employment started;\n\nwere a 12 month period.\n\n (2) For the purposes of this clause, if an employee is employed by a particular employer:\n\n (a) as a casual employee; or\n\n (b) for a specified period of time, for a specified task or for the duration of a specified season;\n\nthe start of the employee’s employment is taken to be the start of the employee’s first employment with that employer.","sortOrder":2012},{"sectionNumber":"Sch 1 s 40","sectionType":"section","heading":"Resolving uncertainties and difficulties about interaction between enterprise agreements and unpaid family and domestic violence leave","content":"40  Resolving uncertainties and difficulties about interaction between enterprise agreements and unpaid family and domestic violence leave\n\n (1) On application by an employer, employee or employee organisation covered by an enterprise agreement that was made before the commencement of the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018, the FWC may make a determination varying the agreement:\n\n (a) to resolve an uncertainty or difficulty relating to the interaction between the agreement and the following (the unpaid family and domestic violence leave provisions):\n\n (i) the provisions of Subdivision CA of Division 7 of Part 2‑2;\n\n (ii) section 107, to the extent that it relates to taking leave under that Subdivision; or\n\n (b) to make the agreement operate effectively with the unpaid family and domestic violence leave provisions.\n\n (2) A variation of an enterprise agreement under this clause operates from the day specified in the determination, which may be a day before the determination is made.","sortOrder":2013},{"sectionNumber":"Sch 1 Part 9","sectionType":"part","heading":"Amendments made by the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020","content":"Part 9—Amendments made by the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020","sortOrder":2014},{"sectionNumber":"Sch 1 s 41","sectionType":"section","heading":"Definitions","content":"41  Definitions\n\n  In this Part:\n\namending Act means the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020.\n\nSchedule 1 commencement day means the day on which Schedule 1 to the amending Act commences.\n\nSchedule 2 commencement day means the day on which Schedule 2 to the amending Act commences.","sortOrder":2015},{"sectionNumber":"Sch 1 s 42","sectionType":"section","heading":"Amendments about stillbirth, death and hospitalisation of children","content":"42  Amendments about stillbirth, death and hospitalisation of children\n\nUnpaid parental leave\n\n (1) The amendments of Division 5 (parental leave and related entitlements) of Part 2‑2 made by Schedule 1 to the amending Act apply in relation to the stillbirth or death of a child on or after the Schedule 1 commencement day, subject to subclauses (2) to (4).\n\n (2) Section 78A (hospitalised children), as inserted by Schedule 1 to the amending Act, applies in relation to a child born on or after the Schedule 1 commencement day.\n\n (3) The amendment of section 84A (replacement employees) made by Schedule 1 to the amending Act applies if:\n\n (a) an employer engages the replacement employee on or after the Schedule 1 commencement day; and\n\n (b) the child in relation to whom the other employee is taking unpaid parental leave was not stillborn, or did not die, before that day.\n\nUnpaid special maternity leave\n\n (4) The amendments of section 80 (unpaid special maternity leave) made by Schedule 1 to the amending Act apply to a pregnancy that ends on or after the Schedule 1 commencement day.\n\nCompassionate leave\n\n (5) The amendments of Subdivision C (compassionate leave) of Division 7 of Part 2‑2 made by Schedule 1 to the amending Act apply in relation to a permissible occasion that occurs on or after the Schedule 1 commencement day.","sortOrder":2016},{"sectionNumber":"Sch 1 s 43","sectionType":"section","heading":"Amendments about flexible unpaid parental leave","content":"43  Amendments about flexible unpaid parental leave\n\nApplication provision\n\n (1) The amendments of Division 5 of Part 2‑2 made by Schedule 2 to the amending Act apply in relation to a child if the child’s date of birth, or day of placement, is on or after the Schedule 2 commencement day.\n\nTransitional provision—giving notice of taking flexible unpaid parental leave\n\n (2) If:\n\n (a) before the Schedule 2 commencement day, an employee gives notice to an employer in accordance with subsection 74(1) of the taking of a period (the initial leave period) of unpaid parental leave under section 71 or 72 in relation to a child; and\n\n (b) the child’s date of birth or day of placement is on or after the Schedule 2 commencement day;\n\nthen the employee may, during the 1‑month period starting on the Schedule 2 commencement day, give the employer written notice of the taking of flexible unpaid parental leave.\n\n (3) The notice under subclause (2) must specify the number of days of flexible unpaid parental leave that the employee intends to take in relation to the child.\n\n (4) The employee may, in the notice under subclause (2), advise the employer of a change to the end date of the initial leave period, but only if the change is necessary to allow the employee to take the flexible unpaid parental leave for the number of days referred to in subclause (3).\n\n (5) If the employee gives notice in accordance with subclauses (2) and (3), then:\n\n (a) the notice is taken to be a notice given under subsection 74(1) in relation to the taking of flexible unpaid parental leave; and\n\n (b) subsections 74(3A) and (3B) are taken to have been complied with in relation to the giving of that notice; and\n\n (c) if the notice contains advice as referred to in subclause (4)—the employee is taken to have complied with subsection 74(4) in relation to the initial leave period.\n\n (6) The employee cannot take flexible unpaid parental leave before the end of 4 weeks starting on the day the notice under subclause (2) is given, despite subsection 74(4B).","sortOrder":2017},{"sectionNumber":"Sch 1 Part 10","sectionType":"part","heading":"Amendments made by the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021","content":"Part 10—Amendments made by the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021","sortOrder":2018},{"sectionNumber":"Sch 1 s 44","sectionType":"section","heading":"Definitions","content":"44  Definitions\n\n  In this Part:\n\namended Act means this Act as amended by the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021.\n\namending Act means the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021.\n\ncommencement means the commencement of this Part.","sortOrder":2020},{"sectionNumber":"Sch 1 s 45","sectionType":"section","heading":"Resolving uncertainties and difficulties about interaction between enterprise agreements and the definition of casual employee and casual conversion rights","content":"45  Resolving uncertainties and difficulties about interaction between enterprise agreements and the definition of casual employee and casual conversion rights\n\n (1) On application by an employer, employee or employee organisation covered by an enterprise agreement that was made before commencement, the FWC may make a determination varying the agreement:\n\n (a) to resolve an uncertainty or difficulty relating to the interaction between the agreement and any of the following:\n\n (i) the definition of casual employee in section 15A of the amended Act (including to deal with uncertainty or difficulty arising from the circumstances in which employees are to be employed as casual employees under the agreement);\n\n (ii) the provisions of Division 4A of Part 2‑2 of the amended Act; or\n\n (b) to make the agreement operate effectively with that section or those provisions.\n\n (2) A variation of an enterprise agreement under this clause operates from the day specified in the determination, which may be a day before the determination is made.","sortOrder":2022},{"sectionNumber":"Sch 1 s 46","sectionType":"section","heading":"Application of certain amendments","content":"46  Application of certain amendments\n\n (1) Section 15A of the amended Act applies on and after commencement in relation to offers of employment that were given before, on or after commencement.\n\n (2) Subclause (1) does not apply in relation to a person who is an employee of an employer as a result of accepting an offer that was made before commencement if either of the following apply in relation to that person:\n\n (a) a court made a binding decision before commencement that the person is not a casual employee of the employer;\n\n (b) the person converted the employment before commencement to employment other than casual employment under a term of a fair work instrument or contract of employment.\n\n (3) In addition to subclause (1), section 15A of the amended Act (and the amendment made by item 1 of Schedule 1 to the amending Act) also applies before commencement in relation to offers of employment that were given before commencement, unless either of the following apply in relation to a person who is or was an employee of an employer as a result of accepting the offer:\n\n (a) a court made a binding decision before commencement that the person is not a casual employee of the employer;\n\n (b) the person converted the employment before commencement to employment other than casual employment under a term of a fair work instrument or contract of employment.\n\n (4) To avoid doubt, if, apart from subclause (3), an employee could have made a claim for accrued relevant entitlements (within the meaning of subsection 545A(4) of the amended Act), the effect of that subclause is that the employee has not accrued, and cannot make a claim for, those entitlements.\n\n (5) Subject to clause 47, Division 4A of Part 2‑2 of the amended Act applies in relation to periods of employment starting before, on or after commencement.\n\n (6) Section 545A of the amended Act applies in relation to entitlements that accrue, and loading amounts paid, on or after commencement.\n\n (7) In addition to subclause (6), section 545A of the amended Act also applies in relation to entitlements that accrue, and loading amounts paid, before commencement.\n\n (8) To avoid doubt, section 545A of the amended Act applies:\n\n (a) to periods of employment starting before, on or after commencement (regardless of whether the employment period ended before commencement); and\n\n (b) regardless of whether a person is, or is not, an employee of the relevant employer at the time a claim to which that section relates is made.\n\n (9) A reference to periods of employment as a casual employee in section 87, 96, 117, 119 or 121 of the amended Act applies to periods of employment starting before, on or after commencement.\n\n (10) A reference to a regular casual employee in section 23, 65, 67 or 384 of the amended Act applies to periods of employment starting before, on or after commencement.\n\n (11) To avoid doubt, nothing in subclause (1) is taken to change the time at which the person became an employee of the employer.","sortOrder":2023},{"sectionNumber":"Sch 1 s 47","sectionType":"section","heading":"Transitioning casual employees","content":"47  Transitioning casual employees\n\n (1) This clause applies in relation to an employee and an employer (other than a small business employer) if any or all of the following apply:\n\n (a) the employee was, immediately before commencement (and disregarding subclause 46(3)), a casual employee of the employer;\n\n (b) the employee was, immediately before commencement (and disregarding subclause 46(3)), designated as a casual employee by the employer for the purposes of:\n\n (i) any fair work instrument that applies to the employee; or\n\n (ii) the employee’s contract of employment;\n\n (c) the employee is a casual employee of the employer within the meaning of section 15A of the amended Act because of an offer of an employment made before commencement.\n\nNote: The effect of this application provision is to provide a requirement for an employer (other than a small business employer) to assess whether to offer conversion under Division 4A of Part 2‑2 of the amended Act (as modified under this clause) to any employee who was, or may have been, a casual employee immediately before commencement, and to any employee who at commencement is a casual employee within the meaning of section 15A of the amended Act.\n\n (2) Division 4A (other than Subdivision C) of Part 2‑2 of the amended Act is taken to apply in relation to the employee and employer for the period (the transition period) of 6 months after commencement only as if:\n\n (a) the employer was required under section 66B of the amended Act to assess, at a time during the transition period, whether the employer was required to make an offer to the employee under that section; and\n\n (b) paragraph 66B(1)(a) of the amended Act were a requirement for the employee to have been employed by the employer for a period of 12 months ending the day the assessment is made; and\n\n (c) paragraph 66B(2)(c) of the amended Act were a requirement to give the offer to the employee within 21 days after making the assessment; and\n\n (d) subsection 66C(3) of the amended Act included a requirement to give a notice under that subsection if, when the assessment is made, the employee does not meet the requirement in paragraph (b) of this clause; and\n\n (e) paragraph 66C(4)(c) of the amended Act were a requirement to give the notice within 21 days of making the assessment but no later than the end of the transition period.\n\n (3) Subdivision C of Part 2‑2 of the amended Act does not apply in relation to the employee and employer for the transition period.\n\n (4) Division 4A (including Subdivision C) of Part 2‑2 of the amended Act applies in relation to the employee and employer to whom paragraph (1)(a) or (b) applies after the transition period as if the employee were a casual employee of the employer within the meaning of section 15A of the amended Act.\n\n (5) An employer referred to in subclause (1) must give an employee referred to in that subclause a Casual Employment Information Statement as soon as practicable after the end of the transition period.","sortOrder":2024},{"sectionNumber":"Sch 1 s 47A","sectionType":"section","heading":"Casual employees of small business employers","content":"47A  Casual employees of small business employers\n\n (1) This clause applies in relation to an employee and a small business employer if any or all of the following apply:\n\n (a) the employee was, immediately before commencement (and disregarding subclause 46(3)), a casual employee of the employer;\n\n (b) the employee was, immediately before commencement (and disregarding subclause 46(3)), designated as a casual employee by the employer for the purposes of:\n\n (i) any fair work instrument that applies to the employee; or\n\n (ii) the employee’s contract of employment;\n\n (c) the employee is a casual employee of the employer within the meaning of section 15A of the amended Act because of an offer of an employment made before commencement.\n\n (2) Division 4A, other than Subdivision B, of Part 2‑2 of the amended Act applies in relation to the employee and employer to whom paragraph (1)(a) or (b) applies on and after commencement as if the employee were a casual employee of the employer within the meaning of section 15A of the amended Act.\n\n (3) An employer referred to in subclause (1) must give an employee referred to in that subclause a Casual Employment Information Statement as soon as practicable after commencement.","sortOrder":2025},{"sectionNumber":"Sch 1 s 48","sectionType":"section","heading":"Variations to modern awards","content":"48  Variations to modern awards\n\n (1) If:\n\n (a) a modern award is made before commencement; and\n\n (b) the modern award is in operation on commencement; and\n\n (c) immediately before commencement, the modern award includes a term (the relevant term) that:\n\n (i) defines or describes casual employment; or\n\n (ii) deals with the circumstances in which employees are to be employed as casual employees; or\n\n (iii) provides for the manner in which casual employees are to be employed; or\n\n (iv) provides for the conversion of casual employment to another type of employment;\n\nthen the FWC must, within 6 months after commencement, review the relevant term in accordance with subclause (2).\n\n (2) The review must consider the following:\n\n (a) whether the relevant term is consistent with this Act as amended by Schedule 1 to the amending Act;\n\n (b) whether there is any uncertainty or difficulty relating to the interaction between the award and the Act as so amended.\n\n (3) If the review of a relevant term under subclause (1) finds that:\n\n (a) the relevant term is not consistent with this Act as amended by Schedule 1 to the amending Act; or\n\n (b) there is a difficulty or uncertainty relating to the interaction between the award and the Act as so amended;\n\nthen the FWC must make a determination varying the modern award to make the award consistent or operate effectively with the Act as so amended.\n\n (4) The determination must be made as soon as reasonably practicable after the review is conducted.\n\n (5) A determination under subclause (3) comes into operation on (and takes effect from) the start of the day the determination is made.\n\n (6) Section 168 applies to a determination made under subclause (3) as if it were a determination made under Part 2‑3.","sortOrder":2026},{"sectionNumber":"Sch 1 Part 11","sectionType":"part","heading":"Amendments made by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021","content":"Part 11—Amendments made by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021","sortOrder":2027},{"sectionNumber":"Sch 1 s 49","sectionType":"section","heading":"Orders to stop bullying","content":"49  Orders to stop bullying\n\nScope\n\n (1) This clause applies to an order that was in force under subsection 789FF(1) immediately before the commencement of this clause.\n\nTransitional\n\n (2) Despite the repeal of that subsection by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, that subsection continues to apply, in relation to the order, as if that repeal had not happened.","sortOrder":2028},{"sectionNumber":"Sch 1 s 49A","sectionType":"section","heading":"Applications for orders to stop sexual harassment","content":"49A  Applications for orders to stop sexual harassment\n\n  The amendments of section 789FC made by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 apply in relation to an application made under that section after the end of the 2‑month period beginning at the commencement of this clause.","sortOrder":2029},{"sectionNumber":"Sch 1 s 50","sectionType":"section","heading":"Orders to stop sexual harassment","content":"50  Orders to stop sexual harassment\n\n  For the purposes of subparagraph 789FF(1)(b)(ii) (as amended by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021), it is immaterial whether the worker has been sexually harassed at work before, at or after the commencement of this clause.","sortOrder":2030},{"sectionNumber":"Sch 1 Part 12","sectionType":"part","heading":"Amendments made by the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022","content":"Part 12—Amendments made by the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022","sortOrder":2031},{"sectionNumber":"Sch 1 s 51","sectionType":"section","heading":"Definitions","content":"51  Definitions\n\n  In this Part:\n\namending Act means the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022.\n\ndeferred start day means the day after the end of the period of 3 months beginning on the day Schedule 2 to the amending Act commences.\n\npre‑commencement enterprise agreement means an enterprise agreement made before the commencement of Schedule 1 to the amending Act.\n\nsmall business employee means an employee whose employer was, on the day Schedule 1 to the amending Act commences, a small business employer (whether or not the employee was employed by the employer on that day).","sortOrder":2032},{"sectionNumber":"Sch 1 s 52","sectionType":"section","heading":"Entitlement to paid family and domestic violence leave","content":"52  Entitlement to paid family and domestic violence leave\n\nNon‑small business employees\n\n (1) The amendments made by Schedule 1 to the amending Act apply in relation to an employee, other than a small business employee, whose employment starts on or after the commencement of that Schedule.\n\n (2) The amendments made by Schedule 1 to the amending Act also apply, from the commencement of that Schedule, in relation to an employee, other than a small business employee, whose employment started before that commencement, as if the period:\n\n (a) starting on that commencement; and\n\n (b) ending on the first day after that commencement that is an anniversary of the day the employment started;\n\nwere a 12 month period.\n\nSmall business employees\n\n (3) The amendments made by Schedule 1 to the amending Act apply in relation to a small business employee whose employment starts on or after 1 August 2023.\n\n (4) The amendments made by Schedule 1 to the amending Act also apply, from 1 August 2023, in relation to a small business employee whose employment started before 1 August 2023, as if the period:\n\n (a) starting on 1 August 2023; and\n\n (b) ending on the first day after 1 August 2023 that is an anniversary of the day the employment started;\n\nwere a 12 month period.\n\nStart of casual employment\n\n (5) For the purposes of this clause, if an employee is employed by a particular employer:\n\n (a) as a casual employee; or\n\n (b) for a specified period of time, for a specified task or for the duration of a specified season;\n\nthe start of the employee’s employment is taken to be the start of the employee’s first employment with that employer.","sortOrder":2033},{"sectionNumber":"Sch 1 s 53","sectionType":"section","heading":"Resolving interactions between enterprise agreements and paid family and domestic violence leave","content":"53  Resolving interactions between enterprise agreements and paid family and domestic violence leave\n\n (1) On application by an employer, employee or employee organisation covered by a pre‑commencement enterprise agreement, if:\n\n (a) the agreement includes terms entitling employees to paid family and domestic violence leave within the ordinary meaning of that expression; and\n\n (b) the FWC considers that the effect of those terms is detrimental when compared with the entitlement under Subdivision CA of Division 7 of Part 2‑2 as amended by Schedule 1 to the amending Act (the NES entitlement);\n\nthe FWC may make a determination varying the agreement to make the agreement consistent with the NES entitlement.\n\n (2) On application by an employer, employee or employee organisation covered by a pre‑commencement enterprise agreement, the FWC may make a determination varying the agreement to make it operate effectively with the following:\n\n (a) the provisions of Subdivision CA of Division 7 of Part 2‑2 as amended by Schedule 1 to the amending Act;\n\n (b) section 107, to the extent that it relates to taking leave under that Subdivision.\n\n (3) A variation of a pre‑commencement enterprise agreement under this clause operates from the day specified in the determination, which may be a day before the determination is made.","sortOrder":2034},{"sectionNumber":"Sch 1 s 54","sectionType":"section","heading":"Entitlement to extended paid family and domestic violence leave provisions","content":"54  Entitlement to extended paid family and domestic violence leave provisions\n\nNational system employees\n\n (1) The amendments made by Schedule 2 to the amending Act apply in relation to a national system employee, whether the employee’s employment started before or after the commencement of that Schedule.\n\nNon‑national system employees\n\n (2) The amendments made by Schedule 2 to the amending Act apply in relation to a non‑national system employee whose employment starts on or after the deferred start day.\n\n (3) The amendments made by Schedule 2 to the amending Act also apply, from the deferred start day, in relation to a non‑national system employee whose employment started before the deferred start day, as if the period:\n\n (a) starting on the deferred start day; and\n\n (b) ending on the first day after the deferred start day that is an anniversary of the day the employment started;\n\nwere a 12 month period.\n\nStart of casual employment\n\n (4) For the purposes of this clause, if an employee is employed by a particular employer:\n\n (a) as a casual employee; or\n\n (b) for a specified period of time, for a specified task or for the duration of a specified season;\n\nthe start of the employee’s employment is taken to be the start of the employee’s first employment with that employer.","sortOrder":2035},{"sectionNumber":"Sch 1 Part 13","sectionType":"part","heading":"Amendments made by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022","content":"Part 13—Amendments made by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022","sortOrder":2036},{"sectionNumber":"Sch 1 s 55","sectionType":"section","heading":"Definitions","content":"55  Definitions\n\n  In this Part:\n\namended Act means this Act as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022.\n\namending Act means the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022.\n\ncommencement means the commencement of this Part.","sortOrder":2038},{"sectionNumber":"Sch 1 s 56","sectionType":"section","heading":"Appeal of decisions of the Registered Organisations Commissioner","content":"56  Appeal of decisions of the Registered Organisations Commissioner\n\n  Divisions 3 and 4 of Part 5‑1, as amended by Division 2 of Part 1 of Schedule 1 to the amending Act, have effect as if a reference to a decision made under the Registered Organisations Act by the General Manager included a reference to a decision made under the Registered Organisations Act before the commencement of Division 2 of Part 1 of that Schedule by the Registered Organisations Commissioner (including a delegate of the Commissioner), other than a decision under subsection 293H(3) of the Registered Organisations Act.","sortOrder":2040},{"sectionNumber":"Sch 1 s 57","sectionType":"section","heading":"Objects of the Act","content":"57  Objects of the Act\n\n (1) Sections 3 and 134 of the amended Act apply, after commencement, in relation to the FWC performing functions, or exercising powers, in relation to:\n\n (a) a matter that arises after commencement; or\n\n (b) a proceeding in the FWC that was on foot at commencement, or commences after commencement.\n\n (2) Section 284 of the amended Act applies, after commencement, in relation to an annual wage review conducted in:\n\n (a) the financial year beginning on 1 July 2022; or\n\n (b) a later financial year.","sortOrder":2042},{"sectionNumber":"Sch 1 s 58","sectionType":"section","heading":"Equal remuneration","content":"58  Equal remuneration\n\n (1) Section 157 of the amended Act applies after commencement in relation to a determination or modern award made under that section after commencement.\n\n (2) Subsections 302(3A) to (4A) of the amended Act apply after commencement in relation to the FWC performing functions, or exercising powers, in relation to:\n\n (a) a matter that arises after commencement; or\n\n (b) a proceeding in the FWC that was on foot at commencement, or commences after commencement.\n\n (3) If an application under subsection 302(3) of this Act as in force immediately before commencement has not been finally determined at commencement, subsection 302(5) of the amended Act applies in relation to the application as if it were an application under paragraph 302(3)(b) of the amended Act.","sortOrder":2044},{"sectionNumber":"Sch 1 Division 5","sectionType":"division","heading":"Amendments made by Part 7 of Schedule 1 to the amending Act","content":"Division 5—Amendments made by Part 7 of Schedule 1 to the amending Act","sortOrder":2045},{"sectionNumber":"Sch 1 s 59","sectionType":"section","heading":"Pay secrecy","content":"59  Pay secrecy\n\n (1) Section 333B of the amended Act applies after commencement in relation to an employee if:\n\n (a) the employee’s contract of employment is entered into on or after commencement; or\n\n (b) the employee’s contract of employment is entered into before commencement and does not include a term that is inconsistent with subsection 333B(1) or (2) of the amended Act.\n\n (2) If:\n\n (a) an employee’s contract of employment is entered into before commencement; and\n\n (b) the contract includes a term that is inconsistent with subsection 333B(1) or (2) of the amended Act; and\n\n (c) after commencement, the contract is varied at a particular time;\n\nsection 333B of the amended Act applies in relation to the employee after that time.\n\n (3) Section 333C of the amended Act applies after commencement in relation to a fair work instrument made before, on or after commencement.\n\n (4) Section 333C of the amended Act applies after commencement in relation to a contract of employment if:\n\n (a) the contract is entered into on or after commencement; or\n\n (b) the contract is entered into before commencement and does not include a term that is inconsistent with subsection 333B(1) or (2) of the amended Act.\n\n (5) If:\n\n (a) a contract of employment is entered into before commencement; and\n\n (b) the contract includes a term that is inconsistent with subsection 333B(1) or (2) of the amended Act; and\n\n (c) after commencement, the contract is varied at a particular time;\n\nsection 333C of the amended Act applies in relation to the contract after that time.\n\n (6) Section 333D of the amended Act applies after the 6‑month period beginning on commencement in relation to a contract of employment entered into on or after commencement.","sortOrder":2046},{"sectionNumber":"Sch 1 Division 6","sectionType":"division","heading":"Amendments made by Part 8 of Schedule 1 to the amending Act","content":"Division 6—Amendments made by Part 8 of Schedule 1 to the amending Act","sortOrder":2047},{"sectionNumber":"Sch 1 s 60","sectionType":"section","heading":"Prohibiting sexual harassment in connection with work","content":"60  Prohibiting sexual harassment in connection with work\n\n (1) Despite the amendments of Part 6‑4B made by Schedule 1 to the amending Act, that Part, as in force immediately before the commencement of Division 1 of Part 8 of that Schedule, continues to apply, on and after that commencement, in relation to:\n\n (a) the sexual harassment of a worker at work before that commencement; and\n\n (b) the sexual harassment of a worker at work on or after that commencement, if the sexual harassment is part of a course of conduct that begins before that commencement.\n\n (2) Despite the repeal of subsection 789FF(1) by Schedule 1 to the amending Act, an order that was in force under that subsection immediately before the commencement of Division 1 of Part 8 of that Schedule continues in force (and may be dealt with) on and after that commencement as if that repeal had not happened.\n\n (3) Subsection 527D(1) does not apply in relation to sexual harassment of a worker if the sexual harassment is part of a course of conduct that begins before the commencement of Division 1 of Part 8 of Schedule 1 to the amending Act.","sortOrder":2048},{"sectionNumber":"Sch 1 Division 7","sectionType":"division","heading":"Amendments made by Part 9 of Schedule 1 to the amending Act","content":"Division 7—Amendments made by Part 9 of Schedule 1 to the amending Act","sortOrder":2049},{"sectionNumber":"Sch 1 s 61","sectionType":"section","heading":"Anti-discrimination and special measures","content":"61  Anti‑discrimination and special measures\n\n (1) Subject to subclauses (2) and (3), the amendments made by Part 9 of Schedule 1 to the amending Act apply on and after commencement.\n\n (2) The amendments of sections 172A and 195 made by Part 9 of Schedule 1 to the amending Act apply in relation to enterprise agreements made on and after commencement.\n\n (3) The amendment of section 351 made by Part 9 of Schedule 1 to the amending Act applies in relation to adverse action taken on and after commencement.","sortOrder":2050},{"sectionNumber":"Sch 1 Division 8","sectionType":"division","heading":"Amendments made by Part 10 of Schedule 1 to the amending Act","content":"Division 8—Amendments made by Part 10 of Schedule 1 to the amending Act","sortOrder":2051},{"sectionNumber":"Sch 1 s 62","sectionType":"section","heading":"Fixed term contracts","content":"62  Fixed term contracts\n\n  Section 333E of the amended Act applies in relation to a contract of employment entered into on or after the commencement of Part 10 of Schedule 1 to the amending Act (whether or not a previous contract referred to in subsection 333E(4) of the amended Act was entered into before, on or after that commencement).","sortOrder":2052},{"sectionNumber":"Sch 1 s 63","sectionType":"section","heading":"Resolving uncertainties and difficulties about interaction between enterprise agreements and the provisions of Division 5 of Part 2-9","content":"63  Resolving uncertainties and difficulties about interaction between enterprise agreements and the provisions of Division 5 of Part 2‑9\n\n (1) On application by an employer or employee covered by an enterprise agreement that was made before the commencement of Part 10 of Schedule 1 to the amending Act, the FWC may make a determination varying the enterprise agreement to resolve an uncertainty or difficulty relating to the interaction between the enterprise agreement and the provisions of Division 5 of Part 2‑9.\n\n (2) A variation of an enterprise agreement under this clause operates from the day specified in the determination, which may be a day before the enterprise agreement is made.","sortOrder":2053},{"sectionNumber":"Sch 1 Division 9","sectionType":"division","heading":"Amendments made by Part 11 of Schedule 1 to the amending Act","content":"Division 9—Amendments made by Part 11 of Schedule 1 to the amending Act","sortOrder":2054},{"sectionNumber":"Sch 1 s 64","sectionType":"section","heading":"Requests for flexible working arrangements","content":"64  Requests for flexible working arrangements\n\n  The amendments made by Divisions 1, 3, 4 and 5 of Part 11 of Schedule 1 to the amending Act apply in relation to a request made under subsection 65(1) of this Act on or after the commencement of that Part.","sortOrder":2055},{"sectionNumber":"Sch 1 Division 10","sectionType":"division","heading":"Amendments made by Part 12 of Schedule 1 to the amending Act","content":"Division 10—Amendments made by Part 12 of Schedule 1 to the amending Act","sortOrder":2056},{"sectionNumber":"Sch 1 s 65","sectionType":"section","heading":"Termination of enterprise agreements after nominal expiry date","content":"65  Termination of enterprise agreements after nominal expiry date\n\n  The amendments made by Part 12 of Schedule 1 to the amending Act apply in relation to an application for the termination of an enterprise agreement made under section 225:\n\n (a) on or after the commencement of that Part; or\n\n (b) before the commencement of that Part if, at that commencement, the FWC has neither terminated nor refused to terminate the agreement.","sortOrder":2057},{"sectionNumber":"Sch 1 Division 11","sectionType":"division","heading":"Amendments made by Part 14 of Schedule 1 to the amending Act","content":"Division 11—Amendments made by Part 14 of Schedule 1 to the amending Act","sortOrder":2058},{"sectionNumber":"Sch 1 s 66","sectionType":"section","heading":"Genuine agreement in relation to enterprise agreements","content":"66  Genuine agreement in relation to enterprise agreements\n\n  Despite the amendments made by Part 14 of Schedule 1 to the amending Act, Part 2‑4 continues to apply, as if the amendments had not been made, in relation to:\n\n (a) any proposed enterprise agreement for which the notification time occurs before the commencement of Part 14 of that Schedule; and\n\n (b) any variation of an enterprise agreement for which the employer’s request that affected employees for the variation approve the variation by voting for it occurs before that commencement.","sortOrder":2059},{"sectionNumber":"Sch 1 Division 12","sectionType":"division","heading":"Amendments made by Part 16 of Schedule 1 to the amending Act","content":"Division 12—Amendments made by Part 16 of Schedule 1 to the amending Act","sortOrder":2060},{"sectionNumber":"Sch 1 s 67","sectionType":"section","heading":"The better off overall test","content":"67  The better off overall test\n\n  The amendments made by Part 16 of Schedule 1 to the amending Act apply in relation to enterprise agreements made on and after the commencement of that Part.","sortOrder":2061},{"sectionNumber":"Sch 1 Division 13","sectionType":"division","heading":"Amendments made by Part 17 of Schedule 1 to the amending Act","content":"Division 13—Amendments made by Part 17 of Schedule 1 to the amending Act","sortOrder":2062},{"sectionNumber":"Sch 1 s 68","sectionType":"section","heading":"Validation of approval of enterprise agreement","content":"68  Validation of approval of enterprise agreement\n\n  Section 602A of the amended Act applies in relation to an approval given by the FWC before, at or after the commencement of that section.","sortOrder":2063},{"sectionNumber":"Sch 1 s 69","sectionType":"section","heading":"Validation of approval of variation of enterprise agreement","content":"69  Validation of approval of variation of enterprise agreement\n\n  Section 602B of the amended Act applies in relation to an approval given by the FWC before, at or after the commencement of that section.","sortOrder":2064},{"sectionNumber":"Sch 1 Division 14","sectionType":"division","heading":"Amendments made by Part 18 of Schedule 1 to the amending Act","content":"Division 14—Amendments made by Part 18 of Schedule 1 to the amending Act","sortOrder":2065},{"sectionNumber":"Sch 1 s 70","sectionType":"section","heading":"Serious breach declarations","content":"70  Serious breach declarations\n\n  Despite the amendments made to the following provisions of this Act by Part 18 of Schedule 1 to the amending Act, those provisions continue to apply, in relation to an application made under section 234 of this Act before that Part commences, as if the amendments had not been made:\n\n (a) Subdivision B of Division 8 of Part 2‑4;\n\n (b) Division 4 of Part 2‑5;\n\n (c) section 274;\n\n (d) section 413.","sortOrder":2066},{"sectionNumber":"Sch 1 s 71","sectionType":"section","heading":"Intractable bargaining declarations","content":"71  Intractable bargaining declarations\n\n  In making a declaration under section 235 of the amended Act, the FWC may have regard to conduct engaged in before or after the commencement of Subdivision B of Division 8 of Part 2‑4 of the amended Act.","sortOrder":2067},{"sectionNumber":"Sch 1 Division 15","sectionType":"division","heading":"Amendments made by Part 19 of Schedule 1 to the amending Act","content":"Division 15—Amendments made by Part 19 of Schedule 1 to the amending Act","sortOrder":2068},{"sectionNumber":"Sch 1 s 72","sectionType":"section","heading":"Industrial action","content":"72  Industrial action\n\n (2) The amendments of sections 437 and 440 made by Division 2 of Part 19 of Schedule 1 to the amending Act apply in relation to an application made under subsection 437(1) of this Act on or after the commencement of that Division.\n\n (3) Subject to subclause (2) of this clause, the amendments of Part 3‑3 made by Division 2 of Part 19 of Schedule 1 to the amending Act apply in relation to a protected action ballot order if the application for the order is made under subsection 437(1) of this Act on or after the commencement of that Division.\n\n (4) The amendments of section 539 made by Division 2 of Part 19 of Schedule 1 to the amending Act apply in relation to a contravention, or proposed contravention, of a civil remedy provision referred to in item 18, 19 or 20 of the table in subsection 539(2) that occurs on or after the commencement of that Division.\n\n (5) The amendment made by Division 3 of Part 19 of Schedule 1 to the amending Act applies in relation to an application made under subsection 437(1) of this Act on or after the commencement of that Division.\n\n (6) The amendments of Part 3‑3 made by Division 4 of Part 19 of Schedule 1 to the amending Act apply in relation to employee claim action if the application for the relevant protected action ballot order is made under subsection 437(1) of this Act on or after the commencement of that Division.\n\n (7) The amendments of Part 3‑3 made by Division 5 of Part 19 of Schedule 1 to the amending Act apply in relation to a protected action ballot order if the application for the order is made under subsection 437(1) of this Act on or after the commencement of that Division.","sortOrder":2069},{"sectionNumber":"Sch 1 Division 16","sectionType":"division","heading":"Amendments made by Part 21 of Schedule 1 to the amending Act","content":"Division 16—Amendments made by Part 21 of Schedule 1 to the amending Act","sortOrder":2070},{"sectionNumber":"Sch 1 s 73","sectionType":"section","heading":"Variation of single interest employer agreement to add employer and employees","content":"73  Variation of single interest employer agreement to add employer and employees\n\n  Subdivision AD of Division 7 of Part 2‑4 of the amended Act, as inserted by Part 21 of Schedule 1 to the amending Act, applies in relation to variations of single interest employer agreements on or after the commencement of that Part of the amending Act, if the agreements were made after that commencement.","sortOrder":2071},{"sectionNumber":"Sch 1 s 74","sectionType":"section","heading":"Application to existing applications for declarations","content":"74  Application to existing applications for declarations\n\n (1) This clause applies in relation to applications for declarations made under subsection 247(1) of the Act immediately before the commencement of Part 21 of Schedule 1 to the amending Act if, immediately before that commencement, the Minister had not made a decision on the application.\n\n (2) Despite the amendments of Division 10 of Part 2‑4 made by Part 21 of Schedule 1 to the amending Act, that Division continues to apply as if those amendments had not been made.","sortOrder":2072},{"sectionNumber":"Sch 1 s 75","sectionType":"section","heading":"Application to existing Ministerial declarations where application for authorisation not made","content":"75  Application to existing Ministerial declarations where application for authorisation not made\n\n (1) This clause applies in relation to declarations made under subsection 247(3) of the Act before the commencement of Part 21 of Schedule 1 to the amending Act if, immediately before that commencement, 2 or more of the employers to whom the declaration relates had not made an application for an authorisation.\n\n (2) If, after that commencement, those employers make an application for an authorisation, then, despite the amendments of Division 10 of Part 2‑4 made by Part 21 of Schedule 1 to the amending Act, that Division continues to apply in relation to the application as if those amendments had not been made.","sortOrder":2073},{"sectionNumber":"Sch 1 s 76","sectionType":"section","heading":"Application to existing applications for authorisations","content":"76  Application to existing applications for authorisations\n\n (1) This clause applies in relation to applications for authorisations made under subsection 248(1) of the Act immediately before the commencement of Part 21 of Schedule 1 to the amending Act if, immediately before that commencement, the FWC had not made a decision on the application.\n\n (2) Despite the amendments of Division 10 of Part 2‑4 made by Part 21 of Schedule 1 to the amending Act, that Division continues to apply as if those amendments had not been made.","sortOrder":2074},{"sectionNumber":"Sch 1 s 77","sectionType":"section","heading":"Effect of making a single interest employer authorisation","content":"77  Effect of making a single interest employer authorisation\n\n  Paragraph 172(5)(b) of the amended Act, as inserted by Part 21 of Schedule 1 to the amending Act, applies in relation to single interest employer authorisations on or after the commencement of that Part if the authorisation was made on or after that commencement.","sortOrder":2075},{"sectionNumber":"Sch 1 s 78","sectionType":"section","heading":"Application to existing applications to vary authorisations","content":"78  Application to existing applications to vary authorisations\n\n  The amendments to section 251 made by Part 21 of Schedule 1 to the amending Act do not apply in relation to applications for variations made before the commencement of that Part.","sortOrder":2076},{"sectionNumber":"Sch 1 s 78A","sectionType":"section","heading":"Application to authorisations in operation before commencement","content":"78A  Application to authorisations in operation before commencement\n\n (1) This clause applies in relation to 2 or more employers that were, immediately before the commencement of Part 21 of Schedule 1 to the amending Act, specified in a single interest employer authorisation made under subsection 249(1) that is in operation.\n\n (2) For the purposes of section 172 of the amended Act, the employers are taken to be related employers within the meaning of subsection 172(5A).","sortOrder":2077},{"sectionNumber":"Sch 1 s 78B","sectionType":"section","heading":"Application to certain authorisations made after commencement","content":"78B  Application to certain authorisations made after commencement\n\n  If, because of the operation of clause 74, 75 or 76 of this Part, the FWC makes a single interest employer authorisation after the commencement of Part 21 of Schedule 1 to the amending Act:\n\n (a) Division 10 of Part 2‑4 of this Act, as in force immediately before that commencement, continues to apply in relation to the authorisation; and\n\n (b) for the purposes of section 172 of the amended Act, the employers specified in the authorisation are taken to be related employers within the meaning of subsection 172(5A).","sortOrder":2078},{"sectionNumber":"Sch 1 s 78C","sectionType":"section","heading":"Availability of scope orders","content":"78C  Availability of scope orders\n\n  Despite the repeal of subsection 238(2) of this Act by Part 21 of Schedule 1 to the amending Act, that subsection continues to apply after the commencement of that Part to proposed single‑enterprise agreements in relation to which a single interest employer authorisation is in operation.","sortOrder":2079},{"sectionNumber":"Sch 1 Division 17","sectionType":"division","heading":"Amendments made by Part 23 of Schedule 1 to the amending Act","content":"Division 17—Amendments made by Part 23 of Schedule 1 to the amending Act","sortOrder":2080},{"sectionNumber":"Sch 1 s 80A","sectionType":"section","heading":"Approval of enterprise agreement—requirement relating to genuine agreement of employers","content":"80A  Approval of enterprise agreement—requirement relating to genuine agreement of employers\n\n  Subsection 186(2AA) of the amended Act applies in relation to an enterprise agreement made after the commencement of that subsection.","sortOrder":2081},{"sectionNumber":"Sch 1 s 81","sectionType":"section","heading":"Approval of cooperative workplace agreement—requirement relating to representation","content":"81  Approval of cooperative workplace agreement—requirement relating to representation\n\n  Subsection 186(2A) of the amended Act applies in relation to a cooperative workplace agreement made after the commencement of that subsection.","sortOrder":2082},{"sectionNumber":"Sch 1 s 82","sectionType":"section","heading":"Variation of cooperative workplace agreement to add employer and employees","content":"82  Variation of cooperative workplace agreement to add employer and employees\n\n  Subdivision AC of Division 7 of Part 2‑4 of the amended Act applies in relation to a variation of a cooperative workplace agreement, if the agreement was made after the commencement of that Subdivision.","sortOrder":2083},{"sectionNumber":"Sch 1 Division 17A","sectionType":"division","heading":"Amendments made by Part 23A of Schedule 1 to the amending Act","content":"Division 17A—Amendments made by Part 23A of Schedule 1 to the amending Act","sortOrder":2084},{"sectionNumber":"Sch 1 s 82A","sectionType":"section","heading":"Multi-enterprise agreements and general building and construction work","content":"82A  Multi‑enterprise agreements and general building and construction work\n\n  Subsection 186(2B) of the amended Act, as inserted by Part 23A to the amending Act, applies in relation to:\n\n (a) the approval of an enterprise agreement, if the agreement is made after the commencement of that Part; and\n\n (b) the approval of a variation of an enterprise agreement, if the variation is made after the commencement of that Part.","sortOrder":2085},{"sectionNumber":"Sch 1 Division 18","sectionType":"division","heading":"Amendments made by Part 24 of Schedule 1 to the amending Act","content":"Division 18—Amendments made by Part 24 of Schedule 1 to the amending Act","sortOrder":2086},{"sectionNumber":"Sch 1 s 83","sectionType":"section","heading":"Small claims procedure","content":"83  Small claims procedure\n\n (1) The following provisions apply in relation to small claims proceedings commenced on or after the commencement of Part 24 of Schedule 1 to the amending Act:\n\n (a) the amendment of paragraph 548(2)(a) of this Act made by that Part;\n\n (b) subsection 548(2A) as inserted by that Part.\n\n (2) Subsections 548(10) and (11), as inserted by Part 24 of Schedule 1 to the amending Act, apply in relation to:\n\n (a) small claims proceedings commenced, but not finally determined, before the commencement of that Part; and\n\n (b) small claims proceedings commenced after the commencement of that Part.","sortOrder":2087},{"sectionNumber":"Sch 1 Division 19","sectionType":"division","heading":"Amendments made by Part 25 of Schedule 1 to the amending Act","content":"Division 19—Amendments made by Part 25 of Schedule 1 to the amending Act","sortOrder":2088},{"sectionNumber":"Sch 1 s 84","sectionType":"section","heading":"Employment advertisements","content":"84  Employment advertisements\n\n  Division 4 of Part 3‑6 of this Act, as inserted by Part 25 of Schedule 1 to the amending Act, applies in relation to employment advertised on or after the day that is one month after the commencement of Part 25 of Schedule 1 to the amending Act (whether the employment was first advertised before, on or after that day).","sortOrder":2089},{"sectionNumber":"Sch 1 Division 20","sectionType":"division","heading":"Amendments made by Part 25B of Schedule 1 to the amending Act","content":"Division 20—Amendments made by Part 25B of Schedule 1 to the amending Act","sortOrder":2090},{"sectionNumber":"Sch 1 s 85","sectionType":"section","heading":"Requests for extension of period of unpaid parental leave","content":"85  Requests for extension of period of unpaid parental leave\n\n  The amendments made by Part 25B of Schedule 1 to the amending Act apply in relation to a request made under subsection 76(1) of this Act on or after the commencement of that Part.","sortOrder":2091},{"sectionNumber":"Sch 1 Part 14","sectionType":"part","heading":"Amendments made by the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023","content":"Part 14—Amendments made by the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023","sortOrder":2092},{"sectionNumber":"Sch 1 s 86","sectionType":"section","heading":"Definitions","content":"86  Definitions\n\n  In this Part:\n\namended Act means this Act as amended by the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023.\n\namending Act means the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023.","sortOrder":2094},{"sectionNumber":"Sch 1 s 87","sectionType":"section","heading":"Amendments about unpaid parental leave","content":"87  Amendments about unpaid parental leave\n\n (1) The amendments made by Schedule 2 to the amending Act apply in relation to an employee in respect of a child if the child’s date of birth, or day of placement, is on or after 1 July 2023.\n\n (2) If:\n\n (a) before the commencement of Schedule 2 to the amending Act, an employee gave notice to the employee’s employer in accordance with subsection 74(1) of the taking of a period of unpaid parental leave under section 72 in relation to a child; and\n\n (b) the period of unpaid parental leave is covered by paragraph 72(3)(a) or (4)(a); and\n\n (c) the child’s date of birth, or day of placement, is on or after 1 July 2023;\n\nthe period of unpaid parental leave is to be treated, after the commencement of Schedule 2 to the amending Act, as a continuous period of unpaid parental leave under section 71 of the amended Act.\n\n (3) If:\n\n (a) before the commencement of Schedule 2 to the amending Act, an employee gave notice to the employee’s employer in accordance with subsection 74(1) of the taking of a period of concurrent leave under subsection 72(5) in relation to a child; and\n\n (b) the child’s date of birth, or day of placement, is on or after 1 July 2023;\n\nthe period of concurrent leave is to be treated, after the commencement of Schedule 2 to the amending Act, as a period of flexible unpaid parental leave under section 72A of the amended Act.\n\n (4) If:\n\n (a) before the commencement of Schedule 2 to the amending Act, an employee gave notice to the employee’s employer in accordance with subsection 74(1) of the taking of a period of unpaid parental leave under section 71, 72 or 72A in relation to a child; and\n\n (b) the child’s date of birth, or day of placement, is on or after 1 July 2023;\n\nthen:\n\n (c) the employee may give the employer a written notice (an amendment notice) that makes amendments to the subsection 74(1) notice that are consistent with the amended Act; and\n\n (d) if the employee gives an amendment notice to the employer in relation to the child:\n\n (i) the amendments made by the amendment notice must not take effect until at least 4 weeks after the amendment notice is given to the employer; and\n\n (ii) any requirement imposed by this Act (other than subsection 74(4) or (4B)) in relation to the period within which the employer is to be given written notice of the taking of unpaid parental leave is waived for the taking of the unpaid parental leave covered by the amendment notice; and\n\n (e) the employee is not entitled to give more than one amendment notice to the employer in relation to the child.","sortOrder":2096},{"sectionNumber":"Sch 1 s 88","sectionType":"section","heading":"Superannuation—reduction of employer’s liability to the extent of superannuation charge payments","content":"88  Superannuation—reduction of employer’s liability to the extent of superannuation charge payments\n\n  Subsection 149B(2), as inserted by Part 2 of Schedule 3 to the amending Act, applies in relation to an employer’s obligation to make superannuation contributions on behalf of an employee, whether the requirements of that subsection are satisfied before or after the commencement of that Part.","sortOrder":2098},{"sectionNumber":"Sch 1 s 89","sectionType":"section","heading":"Interaction of a workplace determination with an earlier enterprise agreement","content":"89  Interaction of a workplace determination with an earlier enterprise agreement\n\n  The amendments made by Schedule 4 to the amending Act apply in relation to:\n\n (a) an enterprise agreement that applies to an employee in relation to particular employment before, on or after the commencement of that Schedule; and\n\n (b) a workplace determination that:\n\n (i) covers the employee in relation to the same employment; and\n\n (ii) comes into operation before, on or after the commencement of that Schedule.","sortOrder":2100},{"sectionNumber":"Sch 1 s 90","sectionType":"section","heading":"Employee authorised deductions","content":"90  Employee authorised deductions\n\n (1) An authorisation made for the purposes of paragraph 324(1)(a) that is in force immediately before the commencement of Schedule 5 continues in force, after the commencement, until it is withdrawn.\n\n (2) An authorisation covered by subclause (3) that is in force immediately before the commencement of Schedule 5:\n\n (a) is taken to be, and taken always to have been, made in compliance with section 324 as in force immediately before the commencement; and\n\n (b) continues in force, after the commencement, until it is withdrawn.\n\n (3) An authorisation is covered by this subclause if the authorisation:\n\n (a) was purportedly made for the purposes of paragraph 324(1)(a) as in force immediately before the commencement of Schedule 5; and\n\n (b) purportedly authorises multiple or ongoing deductions for amounts as varied from time to time; and\n\n (c) would, after the commencement, comply with section 324 of the amended Act.\n\n (4) However, paragraph (2)(a) does not affect rights or liabilities arising between parties to proceedings:\n\n (a) in which judgment is reserved by a court before the commencement of Schedule 5; or\n\n (b) which have been heard and finally determined by a court before the commencement;\n\nto the extent those rights or liabilities arose from, or were affected by, an authorisation covered by subclause (3).","sortOrder":2102},{"sectionNumber":"Sch 1 Part 15","sectionType":"part","heading":"Amendments made by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023","content":"Part 15—Amendments made by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023","sortOrder":2103},{"sectionNumber":"Sch 1 s 91","sectionType":"section","heading":"Definitions","content":"91  Definitions\n\n  In this Part:\n\namended Act means this Act as amended by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023.\n\namending Act means the Fair Work Legislation Amendment (Closing Loopholes) Act 2023.","sortOrder":2105},{"sectionNumber":"Sch 1 s 92","sectionType":"section","heading":"Application—section 121","content":"92  Application—section 121\n\n  Despite the amendment made by item 28 of Part 2 of Schedule 1 to the amending Act, section 121, as in force immediately before the commencement of that item, continues to apply in relation to the termination of an employee’s employment if any of the following occurred before that commencement:\n\n (a) the termination of the employee;\n\n (b) any other termination covered by that section as amended that caused the employer to become a small business employer.","sortOrder":2107},{"sectionNumber":"Sch 1 s 93","sectionType":"section","heading":"Application of amendments—regulated labour hire arrangement orders","content":"93  Application of amendments—regulated labour hire arrangement orders\n\nApplication of requirement to pay protected rate of pay\n\n (1) Section 306F of the amended Act (protected rate of pay payable to employees if a regulated labour hire arrangement order is in force) applies on and after 1 November 2024 regardless of whether any agreement resulting in the performance of work by a regulated employee is entered into before, on or after that day.\n\nAnti‑avoidance provisions apply retrospectively in relation to certain conduct and schemes\n\n (2) Division 4 of Part 2‑7A of the amended Act (anti‑avoidance) applies, on and after the introduction day, in relation to:\n\n (a) conduct engaged in; or\n\n (b) a scheme that is entered into, begun to be carried out or carried out;\n\non or after the introduction day.\n\n (3) In this section:\n\nintroduction day means the day on which the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 was introduced into the Parliament.","sortOrder":2109},{"sectionNumber":"Sch 1 s 94","sectionType":"section","heading":"Application of section 149E of amended Act","content":"94  Application of section 149E of amended Act\n\n (1) Section 149E (delegates’ rights terms) of the amended Act applies in relation to a modern award that is in operation on or after 1 July 2024, whether or not the award was made before that day.\n\n (2) However, a modern award is not invalid on or after 1 July 2024 only because it does not include a delegates’ rights term.","sortOrder":2111},{"sectionNumber":"Sch 1 s 95","sectionType":"section","heading":"FWC to vary certain modern awards","content":"95  FWC to vary certain modern awards\n\n (1) This clause applies in relation to a modern award if the award:\n\n (a) is made before 1 July 2024; and\n\n (b) is to be in operation on that day.\n\n (2) The FWC must, by 30 June 2024, make a determination varying the modern award to include a delegates’ rights term.\n\n (3) A determination made under subclause (2) comes into operation on (and takes effect from) 1 July 2024.\n\n (4) Section 168 applies to a determination made under subclause (2) as if it were a determination made under Part 2‑3.","sortOrder":2112},{"sectionNumber":"Sch 1 s 96","sectionType":"section","heading":"Application of section 205A of amended Act","content":"96  Application of section 205A of amended Act\n\n (1) Section 205A (enterprise agreements to include delegates’ rights terms etc.) of the amended Act does not apply in relation to an enterprise agreement if:\n\n (a) before 1 July 2024, the employer concerned asks the employees to approve the agreement by voting for it; and\n\n (b) by that vote, the employees approve the agreement; and\n\n (c) the FWC approves the agreement.\n\n (2) In deciding, after 1 July 2024, whether to approve the agreement mentioned in subclause (1) (in that form), the FWC must disregard section 205A.","sortOrder":2113},{"sectionNumber":"Sch 1 s 97","sectionType":"section","heading":"Application of subsections 273(6) and (7) of amended Act","content":"97  Application of subsections 273(6) and (7) of amended Act\n\n (1) Subsections 273(6) and (7) (delegates’ rights terms) of the amended Act apply in relation to a workplace determination made on or after 1 July 2024.\n\n (2) However, a workplace determination is not invalid on or after 1 July 2024 only because it does not include a delegates’ rights term.","sortOrder":2114},{"sectionNumber":"Sch 1 s 98","sectionType":"section","heading":"Offence relating to failure to pay certain amounts as required","content":"98  Offence relating to failure to pay certain amounts as required\n\n  Subsection 327A(1) of the amended Act applies in relation to conduct that occurs after the commencement of Part 14 of Schedule 1 to the amending Act, including conduct that occurs after that commencement that is part of a course of conduct that began before that commencement.","sortOrder":2116},{"sectionNumber":"Sch 1 s 99","sectionType":"section","heading":"Application of amendments","content":"99  Application of amendments\n\n (1) The amendment of subsection 409(6A) of this Act made by Part 14A of Schedule 1 to the amending Act applies in relation to industrial action to the extent that the industrial action occurs, or is to occur, on or after the commencement of that Part.\n\n (2) However, the amendment does not apply in relation to doing any of the following before that commencement in relation to industrial action, even if the industrial action occurs, or was to occur, on or after that commencement:\n\n (a) organising the industrial action;\n\n (b) threatening to engage in the industrial action;\n\n (c) threatening to organise the industrial action;\n\n (d) engaging in any other conduct in relation to the industrial action.\n\n (3) For the purposes of subsection 409(6A) of this Act, as amended by Part 14A of Schedule 1 to the amending Act, it does not matter whether a contravention of an order made under section 448A of this Act occurred before, on or after the commencement of that Part.","sortOrder":2118},{"sectionNumber":"Sch 1 Part 16","sectionType":"part","heading":"Main amendments made by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024","content":"Part 16—Main amendments made by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024","sortOrder":2119},{"sectionNumber":"Sch 1 s 100","sectionType":"section","heading":"Definitions","content":"100  Definitions\n\n  In this Part:\n\namended Act means this Act as amended by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.\n\namending Act means the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.","sortOrder":2121},{"sectionNumber":"Sch 1 s 101","sectionType":"section","heading":"Resolving uncertainties and difficulties about interaction between fair work instruments and the definition of casual employee and employee choice","content":"101  Resolving uncertainties and difficulties about interaction between fair work instruments and the definition of casual employee and employee choice\n\n (1) The FWC may make a determination varying a fair work instrument that is a modern award, enterprise agreement or workplace determination that was made before the commencement of this clause:\n\n (a) for an enterprise agreement or workplace determination—on application by an employer, employee or employee organisation covered by the enterprise agreement or workplace determination; or\n\n (b) for a modern award:\n\n (i) by the FWC on its own initiative; or\n\n (ii) on application by an employer organisation or employee organisation entitled to represent the industrial interests of an employer or employee covered by the award.\n\n (2) The FWC may make a determination varying the instrument:\n\n (a) to resolve an uncertainty or difficulty relating to the interaction between the instrument and any of the following:\n\n (i) the definition of casual employee in section 15A of the amended Act (including to deal with uncertainty or difficulty arising from the circumstances in which employees are to be employed as casual employees under the agreement);\n\n (ii) the provisions of Division 4A of Part 2‑2 of the amended Act; or\n\n (b) to make the instrument operate effectively with that section or those provisions.\n\n (3) A variation of a fair work instrument under this clause operates from the day specified in the determination, which may be a day before the determination is made.\n\n (4) If the determination relates to a modern award, the FWC must publish the award as varied as soon as practicable on the FWC’s website or by any other means the FWC considers appropriate.","sortOrder":2123},{"sectionNumber":"Sch 1 s 102","sectionType":"section","heading":"Application of amendments","content":"102  Application of amendments\n\nApplication of definition of casual employee\n\n (1) Section 15A of the amended Act applies on and after commencement in relation to employment relationships entered into before, on or after commencement.\n\n (2) Despite subclause (1), for the purposes of applying section 15A of the amended Act on and after commencement in relation to employment relationships entered into before commencement:\n\n (a) conduct of an employer and employee that occurred before commencement is to be disregarded for the purposes of applying subsections 15A(2) and (3) in relation to that employee; and\n\n (b) if an employee’s contract of employment immediately before commencement included a term of a kind referred to in subsection 15A(4)—that subsection is taken not to apply in relation to the employee for the remainder of the term of that contract.\n\nContinuing casual employees\n\n (3) For the purposes of subclause (1), an employee who was, immediately before commencement, a casual employee of an employer within the meaning of section 15A as in force at that time, is taken to be a casual employee of the employer within the meaning of section 15A of the amended Act on and after commencement.\n\nApplication of employee choice and casual conversion provisions\n\n (5) The amendments of Division 4A of Part 2‑2 made by the amending Act apply on and after commencement in relation to employment relationships entered into before, on or after commencement.\n\n (6) For the purposes of applying subclause (5) in relation to employment relationships entered into before commencement:\n\n (a) any period of employment as a casual employee that occurred before commencement is to be disregarded for the purposes of paragraphs 66AAB(c) and (d) of the amended Act; and\n\n (b) paragraph 66AAB(d) of the amended Act is taken to include a requirement that in the period referred to in that paragraph the employee has not:\n\n (ia) been given a notice before commencement under subsection 66C(3) that the employer is not required to make an offer to the employee under section 66B; or\n\n (ib) been given a notice after commencement under subsection 66C(3) that the employer is not required to make an offer to the employee under section 66B (as those sections continue to apply because of subclauses (6AA) and (6AB)); or\n\n (ic) declined before commencement, under section 66D, an offer made by the employer under section 66B; or\n\n (id) declined after commencement, under section 66D, an offer made by the employer under section 66B (as those sections continue to apply because of subclauses (6AA) and (6AB)); or\n\n (i) been given a response before commencement by the employer under section 66G refusing a request made by the employee under section 66F; or\n\n (ii) been given a response after commencement by the employer under section 66G refusing a request made by the employee under section 66F (as those sections continue to apply because of subclauses (6A) and (6B)).\n\n (6AA) Despite subclause (5), sections 66B and 66C as in force immediately before commencement continue to apply after commencement for a period of 6 months from commencement in relation to employment relationships entered into before commencement where the employer is not a small business employer at commencement.\n\n (6AB) Despite subclause (5), sections 66D and 66E as in force immediately before commencement continue to apply after commencement in relation to:\n\n (a) an offer made before commencement by an employer under section 66B for which, immediately before commencement, a response under section 66D or a notice under section 66E had not been given; or\n\n (b) an offer made after commencement by an employer under section 66B, or a notice given after commencement under subsection 66C(3) that the employer has decided not to make an offer to the employee under section 66B (as those sections continue to apply because of subclause (6AA)).\n\n (6A) Despite subclause (5), section 66F as in force immediately before commencement continues to apply after commencement in relation to employment relationships entered into before commencement for a period of:\n\n (a) for an employer that is a small business employer at commencement—12 months from commencement; or\n\n (b) for an employer that is not a small business employer at commencement—6 months from commencement.\n\n (6B) Despite subclause (5), sections 66G to 66J as in force immediately before commencement continue to apply after commencement in relation to:\n\n (a) a request made before commencement by an employee under section 66F for which, immediately before commencement, a response under section 66G or a notice under section 66J had not been given; or\n\n (b) a request made after commencement by an employee under section 66F (as that section continues to apply because of subclause (6A)).\n\n (7) Despite subclause (5), sections 66M, 548 and 739 as in force immediately before commencement continue to apply after commencement to:\n\n (a) disputes that arose before commencement relating to the operation of Division 4A of Part 2‑2; and\n\n (aa) disputes that arise after commencement relating to the operation of sections 66B to 66E (as those sections continue to apply because of subclauses (6AA) and (6AB)); and\n\n (b) disputes that arise after commencement relating to the operation of sections 66F to 66J (as those sections continue to apply because of subclauses (6A) and (6B)).\n\nDefinitions\n\n (8) In this clause:\n\ncommencement means the commencement of Part 1 of Schedule 1 to the amending Act.","sortOrder":2124},{"sectionNumber":"Sch 1 s 103","sectionType":"section","heading":"Transitional provision","content":"103  Transitional provision\n\n  For the purposes of applying section 66L of this Act during the period beginning when this clause commences and ending when Part 1 of Schedule 1 to the amending Act commences, the reference to “this Division” in that provision is taken to include a reference to that Division as amended by that Part.","sortOrder":2125},{"sectionNumber":"Sch 1 s 104","sectionType":"section","heading":"Replacement agreements","content":"104  Replacement agreements\n\n (1) Subsections 58(4) and (5), as inserted by the amending Act, apply in relation to single‑enterprise agreements made after the commencement of Part 4 of Schedule 1 to that Act, whether the single interest employer agreement or supported bargaining agreement was made before or after that commencement.\n\n (2) Section 180B and subsection 240A(4), as inserted by the amending Act, apply in relation to single interest employer agreements and supported bargaining agreements whether made before or after the commencement of Part 4 of Schedule 1 to that Act.\n\n (3) Subsections 236(1B) and 238(2), as inserted by the amending Act, apply in relation to applications made after the commencement of Part 4 of Schedule 1 to that Act, whether the single interest employer agreement or supported bargaining agreement was made before or after that commencement.","sortOrder":2127},{"sectionNumber":"Sch 1 s 105","sectionType":"section","heading":"Variation of supported bargaining authorisations","content":"105  Variation of supported bargaining authorisations\n\n  Subsection 245(2), as inserted by the amending Act, applies in relation to enterprise agreements and workplace determinations that come into operation before or after the commencement of Part 4 of Schedule 1 to that Act.","sortOrder":2128},{"sectionNumber":"Sch 1 s 106","sectionType":"section","heading":"Application of better off overall test to replacement agreements","content":"106  Application of better off overall test to replacement agreements\n\n  Sections 193 and 193A, as amended by the amending Act, apply in relation to single‑enterprise agreements made on or after the commencement of Part 4 of Schedule 1 to that Act, whether the supported bargaining agreement or single interest employer agreement was made before or after that commencement.","sortOrder":2129},{"sectionNumber":"Sch 1 s 107","sectionType":"section","heading":"Model terms and enterprise agreements","content":"107  Model terms and enterprise agreements\n\n (1) Despite the amendments made by Part 5 of Schedule 1 to the amending Act, sections 202, 205 and 737, as in force immediately before the commencement of that Part, continue to apply in relation to an enterprise agreement if:\n\n (a) before that commencement, the employer concerned asks the employees to approve the agreement by voting for it; and\n\n (b) by that vote, the employees approve the agreement; and\n\n (c) the FWC approves the agreement.\n\n (2) In deciding, after the commencement of that Part, whether to approve the agreement mentioned in subclause (1) (in that form), the FWC must disregard the amendments made by that Part.","sortOrder":2131},{"sectionNumber":"Sch 1 s 108","sectionType":"section","heading":"Model terms and copied State instruments","content":"108  Model terms and copied State instruments\n\n  Despite the amendments made by Part 5 of Schedule 1 to the amending Act, section 768BK, as in force immediately before the commencement of that Part, continues to apply in relation to a model term that is taken, before that commencement, to be a term of a copied State instrument.","sortOrder":2132},{"sectionNumber":"Sch 1 s 109","sectionType":"section","heading":"Disallowance—model terms made before commencement","content":"109  Disallowance—model terms made before commencement\n\n  Section 42 (disallowance) of the Legislation Act 2003 does not apply to a determination made in the exercise of a power under subsection 202(5), 205(3), 737(1) or 768BK(1A) of the amended Act, before the commencement of Part 5 of Schedule 1 to the amending Act, relying on subsection 4(1) of the Acts Interpretation Act 1901.\n\nNote: Subsection 4(1) of the Acts Interpretation Act 1901 provides for the exercise of powers between the passing and commencement of an Act.","sortOrder":2133},{"sectionNumber":"Sch 1 s 110","sectionType":"section","heading":"Application of amendments—intractable bargaining workplace determinations","content":"110  Application of amendments—intractable bargaining workplace determinations\n\n (1) This clause applies to the following provisions:\n\n (a) section 270A of the amended Act;\n\n (b) subsection 274(3) of the amended Act.\n\n (2) The provisions apply in relation to determinations made on or after the commencement of Part 5A of Schedule 1 to the amending Act (including determinations in relation to which the declaration concerned, or the application for the declaration concerned, was made before that commencement).\n\n (3) The provisions also apply in relation to determinations made before that commencement, in the circumstances specified in clause 111.","sortOrder":2135},{"sectionNumber":"Sch 1 s 111","sectionType":"section","heading":"Application of amendments to intractable bargaining workplace determinations made before commencement","content":"111  Application of amendments to intractable bargaining workplace determinations made before commencement\n\n (1) This clause applies in relation to an intractable bargaining workplace determination made before the commencement of Part 5A of Schedule 1 to the amending Act (the original determination).\n\n (2) On application by an employer, employee or employee organisation covered by the original determination, the FWC must make a determination (a variation) varying the original determination where required so as to give effect to the provisions to which clause 110 applies.\n\n (3) An application under subclause (2) must be made before the end of the period of 12 months commencing on the day Part 5A of Schedule 1 to the amending Act commences.\n\n (4) The FWC may make a variation despite paragraph 603(3)(c).\n\n (5) Any variation must be made by a Full Bench.\n\n (6) A variation operates from the day specified by the FWC in the variation, which must not be a day before the variation is made.","sortOrder":2136},{"sectionNumber":"Sch 1 Division 5A","sectionType":"division","heading":"Amendments made by Part 8 of Schedule 1 to the amending Act","content":"Division 5A—Amendments made by Part 8 of Schedule 1 to the amending Act","sortOrder":2137},{"sectionNumber":"Sch 1 s 111A","sectionType":"section","heading":"Definitions","content":"111A  Definitions\n\n  In this Division:\n\ncommencement means the commencement of Part 8 of Schedule 1 to the amending Act.","sortOrder":2138},{"sectionNumber":"Sch 1 s 111B","sectionType":"section","heading":"Application of section 149F of the amended Act","content":"111B  Application of section 149F of the amended Act\n\n (1) Section 149F (right to disconnect term) of the amended Act applies in relation to a modern award that is in operation on or after commencement, whether or not the award was made before commencement.\n\n (2) However, a modern award is not invalid on or after commencement only because it does not include a right to disconnect term.","sortOrder":2139},{"sectionNumber":"Sch 1 s 111C","sectionType":"section","heading":"FWC to vary certain modern awards","content":"111C  FWC to vary certain modern awards\n\n (1) This clause applies in relation to a modern award if the award:\n\n (a) is made before commencement; and\n\n (b) is to be in operation on commencement.\n\n (2) The FWC must, by the day before commencement, make a determination varying the modern award to include a right to disconnect term.\n\n (3) A determination made under subclause (2) comes into operation on (and takes effect from) commencement.\n\n (4) Section 168 applies to a determination made under subclause (2) as if it were a determination made under Part 2‑3.","sortOrder":2140},{"sectionNumber":"Sch 1 s 111D","sectionType":"section","heading":"Application of amendments to small business employers","content":"111D Application of amendments to small business employers\n\n  The amendments made by Part 8 of Schedule 1 to the amending Act do not apply in relation to an employer that is a small business employer on the day of commencement, or an employee of the employer, for a period of 12 months beginning on that day.","sortOrder":2141},{"sectionNumber":"Sch 1 s 112","sectionType":"section","heading":"Application of amendments","content":"112  Application of amendments\n\n  Section 357, as amended by Part 9 of Schedule 1 to the amending Act, applies in relation to representations made on or after the commencement of that Part.","sortOrder":2143},{"sectionNumber":"Sch 1 s 113","sectionType":"section","heading":"Application of amendments—right of entry","content":"113  Application of amendments—right of entry\n\n  The amendments of subsection 510(1) made by Part 10 of Schedule 1 to the amending Act apply in relation to each entry permit held by a permit holder whether issued before, on or after the commencement of that Part.","sortOrder":2145},{"sectionNumber":"Sch 1 s 114","sectionType":"section","heading":"Penalties for contravention of civil remedy provisions","content":"114  Penalties for contravention of civil remedy provisions\n\nChanges to amounts of pecuniary penalties and serious contraventions\n\n (1) The amendments of Part 4‑1 made by Division 1 of Part 11 of Schedule 1 to the amending Act apply in relation to conduct engaged in after the commencement of that Division.\n\n (2) For the purposes of section 557, conduct engaged in before that commencement cannot constitute the same course of conduct as conduct engaged in after that commencement.\n\nChanges relating to underpayments\n\n (3) The amendments of Part 4‑1 made by Division 3 of Part 11 of Schedule 1 to the amending Act apply in relation to conduct engaged in after the commencement of that Division.\n\n (4) For the purposes of section 557, conduct engaged in before that commencement cannot constitute the same course of conduct as conduct engaged in after that commencement.","sortOrder":2147},{"sectionNumber":"Sch 1 Part 17","sectionType":"part","heading":"Amendments made by Part 15 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024","content":"Part 17—Amendments made by Part 15 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024","sortOrder":2148},{"sectionNumber":"Sch 1 s 115","sectionType":"section","heading":"Definitions","content":"115  Definitions\n\n  In this Part:\n\namended Act means this Act as amended by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.\n\namending Act means the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.\n\ncommencement means the commencement of item 237 of Part 15 of Schedule 1 to the amending Act.\n\nold Act means this Act as in force immediately before commencement.","sortOrder":2150},{"sectionNumber":"Sch 1 s 116","sectionType":"section","heading":"Relationships in existence as at commencement or entered into on or after commencement","content":"116  Relationships in existence as at commencement or entered into on or after commencement\n\n (1) Subject to this Schedule and sections 15AB to 15AD of the amended Act, section 15AA of the amended Act applies on and after commencement to the following:\n\n (a) a relationship between an individual and a person entered into before commencement that is in existence as at commencement;\n\n (b) a relationship between an individual and a person entered into on or after commencement.\n\n (2) Despite section 40A, section 7 of the Acts Interpretation Act 1901, as in force from time to time, applies in relation to the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act.\n\nNote: Section 7 of the Acts Interpretation Act 1901 provides for the effect of amendment and repeal of provisions of Acts, including in relation to rights, liabilities, penalties and forfeitures etc. accrued or incurred before the repeal.","sortOrder":2152},{"sectionNumber":"Sch 1 s 117","sectionType":"section","heading":"References to employees etc. in fair work instruments made before commencement","content":"117  References to employees etc. in fair work instruments made before commencement\n\n (1) This clause applies to a fair work instrument that:\n\n (a) was made before commencement; and\n\n (b) is in operation on or after commencement.\n\n (2) A reference in the fair work instrument to an employee or an employer is taken, on and after commencement, to include a reference to an employee or an employer, as the case requires, within the meaning of section 15AA of the amended Act, and, to avoid doubt, does not include a reference to an individual in respect of whom an opt out notice has been given and not revoked.","sortOrder":2153},{"sectionNumber":"Sch 1 s 118","sectionType":"section","heading":"Entitlements determined by reference to length of a period of employment etc.","content":"118  Entitlements determined by reference to length of a period of employment etc.\n\n (1) This clause applies if:\n\n (a) immediately before commencement, an individual was not an employee of a person within the ordinary meaning of that expression; and\n\n (b) because of the operation of section 15AA of the amended Act, on commencement, the individual becomes an employee of the person, within the ordinary meaning of that expression, in respect of that relationship.\n\n (2) For the purposes of determining whether the individual has a right or entitlement under the amended Act or under a fair work instrument in respect of the employment of the individual, being a right or entitlement calculated by reference to:\n\n (a) the individual’s length of service (however described) as an employee; or\n\n (b) a minimum period of employment (however described) of the individual;\n\nthe nature of the relationship between the individual and the person in respect of a period or periods before commencement is to be ascertained in accordance with the old Act.","sortOrder":2154},{"sectionNumber":"Sch 1 s 119","sectionType":"section","heading":"Old Act applies to proceedings on foot as at commencement","content":"119  Old Act applies to proceedings on foot as at commencement\n\n (1) Despite the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act, the old Act continues to apply, on and after commencement, as if that amendment had not been made, in relation to the following:\n\n (a) an application made, or proceedings on foot, as at commencement, other than an application or proceedings prescribed by the regulations;\n\n (b) an application for review of, or an appeal relating to, an application or proceedings referred to in paragraph (a) (whether the application for review was made, or the appeal proceedings were brought, before, on or after commencement).\n\n (2) For the purposes of paragraph (1)(a), an application or proceedings are on foot until all rights of review and appeal in relation to the application or proceedings have expired or have been exhausted.","sortOrder":2155},{"sectionNumber":"Sch 1 s 120","sectionType":"section","heading":"FWC power to deal with uncertainties or difficulties arising from the operation of section 15AA of the amended Act","content":"120  FWC power to deal with uncertainties or difficulties arising from the operation of section 15AA of the amended Act\n\n (1) The FWC may make a determination varying a fair work instrument in order to resolve an uncertainty or difficulty relating to the operation or effect of the fair work instrument, being an uncertainty or difficulty arising as a result of, or in connection with, the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act.\n\n (2) The FWC may make a determination under subclause (1) varying a modern award:\n\n (a) on its own initiative; or\n\n (b) on application by an employer, employee, organisation or outworker entity covered by the modern award; or\n\n (c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees covered by the modern award; or\n\n (d) if the modern award includes outworker terms—on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker terms relate.\n\n (3) The FWC may make a determination under subclause (1) varying an enterprise agreement or a workplace determination:\n\n (a) on its own initiative; or\n\n (b) on application by any of the following:\n\n (i) one or more of the employers covered by the enterprise agreement or workplace determination;\n\n (ii) an employee covered by the enterprise agreement or workplace determination;\n\n (iii) an employee organisation covered by the enterprise agreement or workplace determination.\n\n (4) The FWC may make a determination under subclause (1) varying an FWC order:\n\n (a) on its own initiative; or\n\n (b) on application:\n\n (i) by a person affected by the order; or\n\n (ii) if the FWC order is of a kind prescribed by the regulations—by a person prescribed by the regulations in relation to that kind of order.\n\n (5) A variation of a fair work instrument under this clause operates from the day specified in the determination, which may be a day before the determination was made.\n\n (6) The regulations may provide as follows:\n\n (a) that this clause applies, or does not apply, to a specified fair work instrument or a specified class of fair work instrument;\n\n (b) that this clause applies, or does not apply, to a specified uncertainty or difficulty, or a specified class of uncertainty or difficulty.","sortOrder":2156},{"sectionNumber":"Sch 1 s 121","sectionType":"section","heading":"General power for regulations to deal with transitional etc. matters","content":"121  General power for regulations to deal with transitional etc. matters\n\n (1) The regulations may make provisions of a transitional, application or saving nature in relation to the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act.\n\n (2) The regulations may make provisions of a transitional, application or saving nature in relation to the following:\n\n (a) a person becoming an employer because of the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act;\n\n (b) an individual becoming an employee because of the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act.","sortOrder":2158},{"sectionNumber":"Sch 1 s 122","sectionType":"section","heading":"Other general provisions about regulations","content":"122  Other general provisions about regulations\n\n (1) This clause applies to regulations made for the purposes of this Part.\n\n (2) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to the regulations.\n\n (3) If:\n\n (a) regulations are expressed to commence from a date (the registration date) before the regulations are registered under the Legislation Act 2003; and\n\n (b) a person engaged in conduct before the registration date; and\n\n (c) but for the retrospective effect of the regulations, the conduct would not have contravened a provision of this Act;\n\nthen a court must not convict the person of an offence, or order the person to pay a pecuniary penalty, in relation to the conduct on the grounds that it contravened a provision of this Act.","sortOrder":2159},{"sectionNumber":"Sch 1 Part 18","sectionType":"part","heading":"Amendments made by Part 16 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024","content":"Part 18—Amendments made by Part 16 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024","sortOrder":2160},{"sectionNumber":"Sch 1 s 123","sectionType":"section","heading":"Definitions","content":"123  Definitions\n\n  In this Part:\n\namended Act means this Act as amended by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.\n\namending Act means the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.\n\ncommencement means the commencement of item 238 of Part 16 of Schedule 1 to the amending Act.\n\nold Act means this Act as in force immediately before commencement.","sortOrder":2162},{"sectionNumber":"Sch 1 s 124","sectionType":"section","heading":"Unfair deactivation and unfair termination","content":"124  Unfair deactivation and unfair termination\n\n (1) Part 3A‑3 (unfair deactivation or unfair termination of regulated workers) applies to a deactivation or termination that occurs after commencement.\n\n (2) For the purposes of determining under paragraph 536LD(c) whether an employee‑like worker has been performing work for a period of at least 6 months, a period or periods before commencement are not to be counted.\n\n (3) For the purposes of determining under paragraph 536LE(c) whether a regulated road transport contractor has been performing work for a period of at least 6 months, a period or periods before commencement are not to be counted.","sortOrder":2164},{"sectionNumber":"Sch 1 s 125","sectionType":"section","heading":"New applications relating to unfair contracts","content":"125  New applications relating to unfair contracts\n\n  An application in relation to a services contract may be made under section 536ND only if the contract was entered into on or after commencement.","sortOrder":2165},{"sectionNumber":"Sch 1 s 126","sectionType":"section","heading":"Services contracts entered into before commencement","content":"126  Services contracts entered into before commencement\n\n (1) This section applies to a services contract entered into before commencement.\n\n (2) Despite the amendments of the Independent Contractors Act 2006 made by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, the Independent Contractors Act 2006 continues to apply to the services contract after commencement as if those amendments had not been made.","sortOrder":2166},{"sectionNumber":"Sch 1 Part 19","sectionType":"part","heading":"Amendments made by the Fair Work Amendment (Protecting Penalty and Overtime Rates) Act 2025","content":"Part 19—Amendments made by the Fair Work Amendment (Protecting Penalty and Overtime Rates) Act 2025","sortOrder":2167},{"sectionNumber":"Sch 1 s 127","sectionType":"section","heading":"Application of amendments","content":"127  Application of amendments\n\n  The amendments made by Schedule 1 to the Fair Work Amendment (Protecting Penalty and Overtime Rates) Act 2025 apply in relation to the exercise of the FWC’s powers under Part 2‑3 to make, vary or revoke a modern award on and after the commencement of that Schedule, including in relation to:\n\n (a) an application for the making, variation or revocation of a modern award made before that commencement; and\n\n (b) a modern award made before that commencement.","sortOrder":2168},{"sectionNumber":"Sch 1 Part 20","sectionType":"part","heading":"Amendments made by the Fair Work Amendment (Baby Priya’s) Act 2025","content":"Part 20—Amendments made by the Fair Work Amendment (Baby Priya’s) Act 2025","sortOrder":2169},{"sectionNumber":"Sch 1 s 128","sectionType":"section","heading":"Application provision—employer-funded paid parental leave under workplace instruments etc.","content":"128  Application provision—employer‑funded paid parental leave under workplace instruments etc.\n\n  Section 333X (employer‑funded paid parental leave—preserved if child is stillborn or dies) applies in relation to an employee if:\n\n (a) the stillbirth or death mentioned in paragraph 333X(1)(a) occurs on or after the commencement of section 333X; and\n\n (b) the employee would have had an entitlement to leave mentioned in paragraph 333X(1)(b); and\n\n (c) the entitlement arises other than under a contract of employment (regardless of whether the source of the entitlement was made before, on or after that commencement).","sortOrder":2170},{"sectionNumber":"Sch 1 s 129","sectionType":"section","heading":"Application provision—employer-funded paid parental leave under employment contracts","content":"129  Application provision—employer‑funded paid parental leave under employment contracts\n\nContracts entered into after section 333X commences\n\n (1) Section 333X (employer‑funded paid parental leave—preserved if child is stillborn or dies) applies in relation to an employee if:\n\n (a) the employee would have had an entitlement to leave mentioned in paragraph 333X(1)(b); and\n\n (b) the entitlement arises under a contract of employment; and\n\n (c) the contract is entered into on or after the commencement of section 333X.\n\nContracts in effect immediately before section 333X commences\n\n (2) Section 333X (employer‑funded paid parental leave cannot be refused or cancelled because of child’s stillbirth or death) also applies in relation to an employee if:\n\n (a) the stillbirth or death mentioned in paragraph 333X(1)(a) occurs on or after the commencement of section 333X; and\n\n (b) the employee would have had an entitlement to leave mentioned in paragraph 333X(1)(b); and\n\n (c) the entitlement arises under a contract of employment; and\n\n (d) the contract was in effect immediately before that commencement; and\n\n (e) at that commencement, the employee:\n\n (i) had not given notice of intention to take that leave; or\n\n (ii) had given notice of intention to take that leave, but not all the requirements for seeking that leave had been met; or\n\n (iii) had met all the requirements for seeking that leave, but had not been approved to take that leave; or\n\n (iv) had been approved to take that leave, but had not commenced that leave; or\n\n (v) had commenced that leave.\n\nNote: Paragraph (d) also covers a contract that is varied after that commencement, as long as the contract (with or without the variation) was in effect immediately before that commencement.","sortOrder":2171},{"sectionNumber":"Sch 1 Part 21","sectionType":"part","heading":"Amendments made by the Treasury Laws Amendment (Payday Superannuation) Act 2025","content":"Part 21—Amendments made by the Treasury Laws Amendment (Payday Superannuation) Act 2025","sortOrder":2172},{"sectionNumber":"Sch 1 s 130","sectionType":"section","heading":"Application of amendments","content":"130  Application of amendments\n\n (1) The amendments made by Schedule 1 to the Treasury Laws Amendment (Payday Superannuation) Act 2025 apply in relation to individual base superannuation guarantee shortfalls, or choice loadings, relating to a QE day that is 1 July 2026 or a later day.\n\n (2) Despite those amendments, subsection 116D(2) of this Act continues to apply on and after 1 July 2026 in relation to individual superannuation guarantee shortfalls relating to a quarter ending before that day, as if the amendments had not been made.\n\n (3) Terms used in this section that are defined in the Superannuation Guarantee (Administration) Act 1992 have the same meaning in this section as they have in that Act.\n\n (4) In this section:\n\nindividual superannuation guarantee shortfall has the same meaning as in the Superannuation Guarantee (Administration) Act 1992 (as in force on 30 June 2026).","sortOrder":2173},{"sectionNumber":"Sch 1 Part 22","sectionType":"part","heading":"Amendments made by the Fair Work Amendment (Fairer Fuel) Act 2026","content":"Part 22—Amendments made by the Fair Work Amendment (Fairer Fuel) Act 2026","sortOrder":2174},{"sectionNumber":"Sch 1 s 131","sectionType":"section","heading":"Application of amendments","content":"131  Application of amendments\n\n  The amendments made by Schedule 1 to the Fair Work Amendment (Fairer Fuel) Act 2026 apply in relation to any determination made under section 536PEA of the Fair Work Act 2009 made on or after the commencement of that Schedule in relation to:\n\n (a) an application for a road transport contractual chain order; or\n\n (b) an application for a determination varying or revoking a road transport contractual chain order;\n\nmade on or after that commencement.","sortOrder":2175},{"sectionNumber":"Sch 1 Part 23","sectionType":"part","heading":"Amendments made by the Workplace Relations Legislation Amendment (Building Cooperative Workplaces No. 1) Act 2026","content":"Part 23—Amendments made by the Workplace Relations Legislation Amendment (Building Cooperative Workplaces No. 1) Act 2026","sortOrder":2176},{"sectionNumber":"Sch 1 s 132","sectionType":"section","heading":"Definitions","content":"132  Definitions\n\n  In this Part:\n\namending Act means the Workplace Relations Legislation Amendment (Building Cooperative Workplaces No. 1) Act 2026.","sortOrder":2178},{"sectionNumber":"Sch 1 s 133","sectionType":"section","heading":"Application of amendments relating to the road transport contractor high income threshold","content":"133  Application of amendments relating to the road transport contractor high income threshold\n\n (1) Subsection 15AB(4), as in force immediately before the commencement of Part 4 of Schedule 1 to the amending Act, continues to apply on and after that commencement in relation to a notice given under subsection 15AB(2) or (3) before that commencement.\n\n (2) Subsections 536LU(2) and 536ND(2), as amended by Part 4 of Schedule 1 to the amending Act, apply in relation to an application made on or after the commencement of that Part.","sortOrder":2180},{"sectionNumber":"Sch 1 s 134","sectionType":"section","heading":"Application of amendments relating to jurisdictional objections","content":"134  Application of amendments relating to jurisdictional objections\n\n  The amendments made by Part 5 of Schedule 1 to the amending Act apply in relation to an application that is made on or after the commencement of that Part, whether the alleged dismissal or termination to which the application relates took effect before, on or after that commencement.","sortOrder":2182},{"sectionNumber":"Sch 1 s 135","sectionType":"section","heading":"Application of amendments relating to delegation of powers in dismissal and termination disputes","content":"135  Application of amendments relating to delegation of powers in dismissal and termination disputes\n\n  Section 625, as amended by Part 6 of Schedule 1 to the amending Act, applies in relation to a function performed or a power exercised on or after the commencement of that Part, including in relation to a dispute that the FWC started dealing with (other than by arbitration) before, on or after that commencement.","sortOrder":2184},{"sectionNumber":"Sch 1 s 136","sectionType":"section","heading":"Application of amendments relating to determining matters on the papers","content":"136  Application of amendments relating to determining matters on the papers\n\n  The amendments of sections 397 and 536LX made by Part 7 of Schedule 1 to the amending Act apply in relation to an application under section 394 or 536LU made on or after the commencement of that Part.","sortOrder":2186},{"sectionNumber":"Sch 1 s 137","sectionType":"section","heading":"Application of amendments relating to dismissing applications and vexatious litigants","content":"137  Application of amendments relating to dismissing applications and vexatious litigants\n\n  The amendments made by Part 8 of Schedule 1 to the amending Act apply in relation to an application made on or after the commencement of that Part.","sortOrder":2188},{"sectionNumber":"Sch 1 s 138","sectionType":"section","heading":"Application of amendments relating to exemptions from general protections","content":"138  Application of amendments relating to exemptions from general protections\n\n  Sections 342, 343 and 354 of this Act, as amended by Part 9 of Schedule 1 to the amending Act, apply in relation to any discrimination that occurs on or after the commencement of that Part.","sortOrder":2190},{"sectionNumber":"Sch 1 Division 7A","sectionType":"division","heading":"Amendments made by Part 9A of Schedule 1 to the amending Act","content":"Division 7A—Amendments made by Part 9A of Schedule 1 to the amending Act","sortOrder":2191},{"sectionNumber":"Sch 1 s 138A","sectionType":"section","heading":"Application of amendments—intractable bargaining workplace determinations","content":"138A  Application of amendments—intractable bargaining workplace determinations\n\n (1) Sections 270A and 273, as amended by Part 9A of Schedule 1 to the amending Act, apply in relation to intractable bargaining workplace determinations made on or after the commencement of that Part (including determinations in relation to which the intractable bargaining declaration concerned, or the application for that declaration, was made before that commencement).\n\n (2) Sections 270A and 273, as amended by Part 9A of Schedule 1 to the amending Act, also apply in relation to intractable bargaining workplace determinations made before that commencement, in the circumstances specified in clause 138B.","sortOrder":2192},{"sectionNumber":"Sch 1 s 138B","sectionType":"section","heading":"Application of amendments to intractable bargaining workplace determinations made before commencement","content":"138B  Application of amendments to intractable bargaining workplace determinations made before commencement\n\n (1) This clause applies in relation to an intractable bargaining workplace determination made before the commencement of Part 9A of Schedule 1 to the amending Act (the original determination).\n\n (2) On application by an employer, employee or employee organisation covered by the original determination, the FWC must make a determination (a variation) varying the original determination where required so as to give effect to sections 270A and 273 as amended by that Part.\n\n (3) An application under subclause (2) must be made before the end of the period of 12 months commencing on the day that Part commences.\n\n (4) The FWC may make a variation despite paragraph 603(3)(c).\n\n (5) Any variation must be made by a Full Bench.\n\n (6) A variation operates from the day specified by the FWC in the variation, which must not be a day before the variation is made.","sortOrder":2193},{"sectionNumber":"Sch 1 s 139","sectionType":"section","heading":"Application of amendments relating to agreements replacing earlier supported bargaining agreements","content":"139  Application of amendments relating to agreements replacing earlier supported bargaining agreements\n\n  Subsection 243(2C), as inserted by Part 10 of Schedule 1 to the amending Act, applies in relation to an application made on or after the commencement of that Part, whether the earlier agreement came into operation before, on or after that commencement.","sortOrder":2195},{"sectionNumber":"Schedule 2","sectionType":"schedule","heading":"Amendments made by the Fair Work Amendment (Transfer of Business) Act 2012","content":"Schedule 2—Amendments made by the Fair Work Amendment (Transfer of Business) Act 2012\n\nNote: See section 795A.","sortOrder":2196},{"sectionNumber":"Sch 2 s 1","sectionType":"section","heading":"Definitions","content":"1  Definitions\n\n  In this Schedule:\n\namending Act means the Fair Work Amendment (Transfer of Business) Act 2012.\n\ncommencement means the commencement of this Schedule.","sortOrder":2197},{"sectionNumber":"Sch 2 s 2","sectionType":"section","heading":"Application of the amendments made by the amending Act","content":"2  Application of the amendments made by the amending Act\n\n  The amendments made by the amending Act apply in relation to a transfer of business referred to in Part 6‑3A (as inserted by item 1 of Schedule 1 to the amending Act), but only if the connection between the old State employer and the new employer referred to in paragraph 768AD(1)(d) (as inserted by that item) occurs on or after commencement.","sortOrder":2198},{"sectionNumber":"Schedule 3","sectionType":"schedule","heading":"Amendments made by the Fair Work Amendment Act 2012","content":"Schedule 3—Amendments made by the Fair Work Amendment Act 2012\n\nNote: See section 795A.","sortOrder":2199},{"sectionNumber":"Sch 3 Part 1","sectionType":"part","heading":"Preliminary","content":"Part 1—Preliminary","sortOrder":2200},{"sectionNumber":"Sch 3 s 1","sectionType":"section","heading":"Definitions","content":"1  Definitions\n\n  In this Schedule:\n\namending Act means the Fair Work Amendment Act 2012.\n\ndoing a thing includes making an instrument.\n\nFWA (short for Fair Work Australia) means the body referred to in section 575, as in force immediately before the commencement of Part 1 of Schedule 9 to the amending Act.","sortOrder":2201},{"sectionNumber":"Sch 3 Part 2","sectionType":"part","heading":"Default superannuation (Schedule 1)","content":"Part 2—Default superannuation (Schedule 1)","sortOrder":2202},{"sectionNumber":"Sch 3 s 2","sectionType":"section","heading":"Schedule 1 to the amending Act","content":"2  Schedule 1 to the amending Act\n\n (1) Section 149B, subsection 149C(1) and section 149D (as inserted by Schedule 1 to the amending Act) apply in relation to a modern award that:\n\n (a) is made on or after 1 January 2014; or\n\n (b) is made before 1 January 2014 and that is varied on or after that day under Division 4A of Part 2‑3 (as inserted by Schedule 1 to the amending Act).\n\n (2) Despite the repeal of sections 149A and 155A made by Schedule 1 to the amending Act, those sections continue in force in relation to a modern award that:\n\n (a) is made before 1 January 2014; and\n\n (b) is not varied on or after that day under Division 4A of Part 2‑3 (as inserted by Schedule 1 to the amending Act).\n\n (3) The amendments made by items 15, 18, 19 and 20 of Schedule 1 to the amending Act apply in relation to a modern award that is in operation on or after 1 January 2014, whether or not the award was made before that day.","sortOrder":2203},{"sectionNumber":"Sch 3 s 2A","sectionType":"section","heading":"Transitional provision—when first variations of default fund term take effect","content":"2A  Transitional provision—when first variations of default fund term take effect\n\n (1) This clause applies to the first 4 yearly review of default fund terms of modern awards under Division 4A of Part 2‑3 (as inserted by Schedule 1 to the amending Act).\n\n (2) In the review, determinations under that Division (whether made under section 156H or 156J) varying the default fund term of a modern award:\n\n (a) must take effect at the same time; and\n\n (b) must not take effect before 1 January 2015.","sortOrder":2204},{"sectionNumber":"Sch 3 s 2B","sectionType":"section","heading":"Transitional provision—modern awards made on or after 1 January 2014","content":"2B  Transitional provision—modern awards made on or after 1 January 2014\n\n  If a modern award is made in the period that starts on 1 January 2014 and ends on 31 December 2017, then, until the default fund term of the award is varied after that period under Division 4A of Part 2‑3 (as inserted by Schedule 1 to the amending Act), this Act has effect in relation to the award as if subsection 149D(1A) (as inserted by that Schedule) were as follows:\n\nSuperannuation funds offering employer MySuper products\n\n (1A) A default fund term of a modern award must permit an employer covered by the award to make contributions, for the benefit of a default fund employee, to a superannuation fund that offers an employer MySuper product that relates to the employer.","sortOrder":2205},{"sectionNumber":"Sch 3 Part 3","sectionType":"part","heading":"Modern awards (Schedule 3)","content":"Part 3—Modern awards (Schedule 3)","sortOrder":2206},{"sectionNumber":"Sch 3 s 3","sectionType":"section","heading":"Part 1 of Schedule 3 to the amending Act","content":"3  Part 1 of Schedule 3 to the amending Act\n\n (1) This clause applies if, before the commencement of Part 1 of Schedule 3 to the amending Act (which is about variation etc. of modern awards):\n\n (a) a determination was made under subsection 160(1) (about varying a modern award); or\n\n (b) an application was made under subsection 160(2) (about varying a modern award).\n\n (2) The determination and the application are as valid, and are taken always to have been as valid, as they would have been if paragraphs 160(2)(c) and (d) (as inserted by Part 1 of Schedule 3 to the amending Act) had been in force at the time the determination or application was made.","sortOrder":2207},{"sectionNumber":"Sch 3 Part 4","sectionType":"part","heading":"Enterprise agreements (Schedule 4)","content":"Part 4—Enterprise agreements (Schedule 4)","sortOrder":2208},{"sectionNumber":"Sch 3 s 4","sectionType":"section","heading":"Part 1 of Schedule 4 to the amending Act","content":"4  Part 1 of Schedule 4 to the amending Act\n\n  The amendment made by Part 1 of Schedule 4 to the amending Act (which is about enterprise agreements covering a single employee) applies in relation to enterprise agreements that are purportedly made after the commencement of that Part.","sortOrder":2209},{"sectionNumber":"Sch 3 s 5","sectionType":"section","heading":"Part 2 of Schedule 4 to the amending Act","content":"5  Part 2 of Schedule 4 to the amending Act\n\n  The amendments made by Part 2 of Schedule 4 to the amending Act (which is about bargaining representatives) apply in relation to appointments of bargaining representatives that are made after the commencement of that Part.","sortOrder":2210},{"sectionNumber":"Sch 3 s 6","sectionType":"section","heading":"Part 3 of Schedule 4 to the amending Act","content":"6  Part 3 of Schedule 4 to the amending Act\n\n (1) The amendment made by Part 3 of Schedule 4 to the amending Act (which is about unlawful terms) applies in relation to enterprise agreements that are made before or after the commencement of that Part.\n\n (2) However, if:\n\n (a) an enterprise agreement that was made before the commencement of that Part included a term referred to in paragraph 194(ba) (as inserted by Part 3 of Schedule 4 to the amending Act); and\n\n (b) a person made an election in accordance with that term before the commencement of that Part;\n\nthen the amendment does not apply in relation to that person.","sortOrder":2211},{"sectionNumber":"Sch 3 s 7","sectionType":"section","heading":"Part 4 of Schedule 4 to the amending Act","content":"7  Part 4 of Schedule 4 to the amending Act\n\n  The amendment made by Part 4 of Schedule 4 to the amending Act (which is about scope orders) applies in relation to applications for a scope order that are made after the commencement of that Part.","sortOrder":2212},{"sectionNumber":"Sch 3 s 8","sectionType":"section","heading":"Part 5 of Schedule 4 to the amending Act","content":"8  Part 5 of Schedule 4 to the amending Act\n\n (1) The amendments made by Part 5 of Schedule 4 to the amending Act (which is about notice of employee representational rights) apply in relation to notices of employee representational rights that are given after the commencement of that Part.\n\n (2) Regulations that:\n\n (a) were made for the purposes of subsection 174(6) before the commencement of Part 5 of Schedule 4 to the amending Act; and\n\n (b) were in force immediately before that commencement;\n\ncontinue in force (and may be dealt with) after that commencement as if they had been made for the purposes of subsection 174(1A) (as inserted by Part 5 of Schedule 4 to the amending Act).","sortOrder":2213},{"sectionNumber":"Sch 3 Part 5","sectionType":"part","heading":"General protections (Schedule 5)","content":"Part 5—General protections (Schedule 5)","sortOrder":2214},{"sectionNumber":"Sch 3 s 9","sectionType":"section","heading":"Part 1 of Schedule 5 to the amending Act","content":"9  Part 1 of Schedule 5 to the amending Act\n\n  The amendment made by Part 1 of Schedule 5 to the amending Act (which is about time limits for making applications) applies in relation to dismissals that take effect after the commencement of that Part.","sortOrder":2215},{"sectionNumber":"Sch 3 Part 6","sectionType":"part","heading":"Unfair dismissal (Schedule 6)","content":"Part 6—Unfair dismissal (Schedule 6)","sortOrder":2216},{"sectionNumber":"Sch 3 s 10","sectionType":"section","heading":"Part 1 of Schedule 6 to the amending Act","content":"10  Part 1 of Schedule 6 to the amending Act\n\n  The amendment made by Part 1 of Schedule 6 to the amending Act (which is about time limits for making applications) applies in relation to dismissals that take effect after the commencement of that Part.","sortOrder":2217},{"sectionNumber":"Sch 3 s 11","sectionType":"section","heading":"Part 2 of Schedule 6 to the amending Act","content":"11  Part 2 of Schedule 6 to the amending Act\n\n  The amendments made by Part 2 of Schedule 6 to the amending Act (which is about the power to dismiss applications) apply in relation to dismissals that take effect after the commencement of that Part.","sortOrder":2218},{"sectionNumber":"Sch 3 s 12","sectionType":"section","heading":"Part 3 of Schedule 6 to the amending Act","content":"12  Part 3 of Schedule 6 to the amending Act\n\n  The amendments made by Part 3 of Schedule 6 to the amending Act (which is about costs orders against parties) apply in relation to dismissals that take effect after the commencement of that Part.","sortOrder":2219},{"sectionNumber":"Sch 3 s 13","sectionType":"section","heading":"Part 4 of Schedule 6 to the amending Act","content":"13  Part 4 of Schedule 6 to the amending Act\n\n  The amendment made by Part 4 of Schedule 6 to the amending Act (which is about costs orders against lawyers and paid agents) applies in relation to dismissals that take effect after the commencement of that Part.","sortOrder":2220},{"sectionNumber":"Sch 3 Part 7","sectionType":"part","heading":"Industrial action (Schedule 7)","content":"Part 7—Industrial action (Schedule 7)","sortOrder":2221},{"sectionNumber":"Sch 3 s 14","sectionType":"section","heading":"Part 1 of Schedule 7 to the amending Act","content":"14  Part 1 of Schedule 7 to the amending Act\n\n  The amendments made by Part 1 of Schedule 7 to the amending Act (which is about electronic voting in protected action ballots) apply in relation to applications for protected action ballot orders that are made after the commencement of that Part.","sortOrder":2222},{"sectionNumber":"Sch 3 s 15","sectionType":"section","heading":"Part 2 of Schedule 7 to the amending Act","content":"15  Part 2 of Schedule 7 to the amending Act\n\n  The amendments made by Part 2 of Schedule 7 to the amending Act (which is about employees to be balloted in protected action ballots) apply in relation to applications for protected action ballot orders that are made after the commencement of that Part.","sortOrder":2223},{"sectionNumber":"Sch 3 s 16","sectionType":"section","heading":"Part 3 of Schedule 7 to the amending Act","content":"16  Part 3 of Schedule 7 to the amending Act\n\n  The amendments made by Part 3 of Schedule 7 to the amending Act (which is about conducting protected action ballots) apply in relation to protected action ballot orders that are made after the commencement of that Part.","sortOrder":2224},{"sectionNumber":"Sch 3 Part 8","sectionType":"part","heading":"The Fair Work Commission (Schedule 8)","content":"Part 8—The Fair Work Commission (Schedule 8)","sortOrder":2225},{"sectionNumber":"Sch 3 s 17","sectionType":"section","heading":"Part 1 of Schedule 8 to the amending Act","content":"17  Part 1 of Schedule 8 to the amending Act\n\n  The amendment made by Part 1 of Schedule 8 to the amending Act (which is about stay orders) applies in relation to orders under subsection 606(1) that are made after the commencement of that Part.","sortOrder":2226},{"sectionNumber":"Sch 3 s 18","sectionType":"section","heading":"Part 2 of Schedule 8 to the amending Act","content":"18  Part 2 of Schedule 8 to the amending Act\n\n  The amendments made by Part 2 of Schedule 8 to the amending Act (which is about conflicts of interest) apply in relation to matters that an FWC member begins to deal with before or after the commencement of that Part.","sortOrder":2227},{"sectionNumber":"Sch 3 s 19","sectionType":"section","heading":"Part 4 of Schedule 8 to the amending Act","content":"19  Part 4 of Schedule 8 to the amending Act\n\n  The amendments made by Part 4 of Schedule 8 to the amending Act (which is about appointing acting Commissioners) apply in relation to appointments that are made after the commencement of that Part.","sortOrder":2228},{"sectionNumber":"Sch 3 s 20","sectionType":"section","heading":"Part 5 of Schedule 8 to the amending Act","content":"20  Part 5 of Schedule 8 to the amending Act\n\n  The amendments made by Part 5 of Schedule 8 to the amending Act (which is about appointing the General Manager) apply in relation to appointments and acting appointments that are made after the commencement of that Part.","sortOrder":2229},{"sectionNumber":"Sch 3 s 21","sectionType":"section","heading":"Part 6 of Schedule 8 to the amending Act","content":"21  Part 6 of Schedule 8 to the amending Act\n\n  The amendments made by Part 6 of Schedule 8 to the amending Act (which is about Vice Presidents) apply in relation to appointments that take effect after the commencement of that Part.","sortOrder":2230},{"sectionNumber":"Sch 3 s 22","sectionType":"section","heading":"Part 7 of Schedule 8 to the amending Act","content":"22  Part 7 of Schedule 8 to the amending Act\n\n  The amendments made by Part 7 of Schedule 8 to the amending Act (which is about handling complaints) apply after the commencement of that Part in relation to a complaint about an FWC Member, regardless of whether:\n\n (a) the complaint is made before or after that commencement; or\n\n (b) the circumstances that give rise to the complaint occur before or after that commencement.","sortOrder":2231},{"sectionNumber":"Sch 3 s 23","sectionType":"section","heading":"Part 8 of Schedule 8 to the amending Act","content":"23  Part 8 of Schedule 8 to the amending Act\n\n  The amendments made by Part 8 of Schedule 8 to the amending Act (which is about engaging in outside work) apply in relation to paid work that is engaged in after the commencement of that Part.","sortOrder":2232},{"sectionNumber":"Sch 3 Part 9","sectionType":"part","heading":"Changing the name of Fair Work Australia (Schedule 9)","content":"Part 9—Changing the name of Fair Work Australia (Schedule 9)","sortOrder":2233},{"sectionNumber":"Sch 3 s 24","sectionType":"section","heading":"Transitional provision—President","content":"24  Transitional provision—President\n\n (1) The person holding office as the President of FWA immediately before the commencement of Part 1 of Schedule 9 to the amending Act continues to hold office as the President of the FWC.\n\n (2) If, before that commencement, a thing was done by, or in relation to, the President of FWA, then, for the purposes of the operation of any law on or after that commencement, the thing is taken to have been done by, or in relation to, the President of the FWC.\n\n (3) For the purposes of subclause (2), a thing done before that commencement under a provision amended by Part 1, 2 or 3 of Schedule 9 to the amending Act has effect from that commencement as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done.\n\n (4) The Minister may, by writing, determine that subclause (2):\n\n (a) does not apply in relation to a specified thing done by, or in relation to, the President of FWA; or\n\n (b) applies as if the reference in that subclause to the President of the FWC were a reference to the FWC; or\n\n (c) applies as if the reference in that subclause to the President of the FWC were a reference to another FWC member.\n\nA determination under this subclause has effect accordingly.\n\n (5) A determination made under subclause (4) is not a legislative instrument.","sortOrder":2234},{"sectionNumber":"Sch 3 s 25","sectionType":"section","heading":"Transitional provision—Deputy President","content":"25  Transitional provision—Deputy President\n\n (1) Subject to subclause (2), a person holding office as a Deputy President of FWA immediately before the commencement of Part 1 of Schedule 9 to the amending Act continues to hold office as a Deputy President of the FWC.\n\n (2) If, immediately before that commencement, a person:\n\n (a) is a member of a prescribed State industrial authority; and\n\n (b) holds office as a Deputy President of FWA;\n\nthe person continues to hold office as a Deputy President of the FWC for the balance of the person’s term of appointment that remains immediately before that commencement.\n\n (3) If, before that commencement, a thing was done by, or in relation to, a Deputy President of FWA, then, for the purposes of the operation of any law on or after that commencement, the thing is taken to have been done by, or in relation to, a Deputy President of the FWC.\n\n (4) For the purposes of subclause (3), a thing done before that commencement under a provision amended by Part 1, 2 or 3 of Schedule 9 to the amending Act has effect from that commencement as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done.\n\n (5) The Minister may, by writing, determine that subclause (3):\n\n (a) does not apply in relation to a specified thing done by, or in relation to, a Deputy President of FWA; or\n\n (b) applies as if the reference in that subclause to the Deputy President of the FWC were a reference to the FWC; or\n\n (c) applies as if the reference in that subclause to the Deputy President of the FWC were a reference to another FWC member.\n\nA determination under this subclause has effect accordingly.\n\n (6) A determination made under subclause (5) is not a legislative instrument.","sortOrder":2235},{"sectionNumber":"Sch 3 s 26","sectionType":"section","heading":"Transitional provision—Commissioner","content":"26  Transitional provision—Commissioner\n\n (1) Subject to subclause (2), a person holding office as a Commissioner of FWA immediately before the commencement of Part 1 of Schedule 9 to the amending Act continues to hold office as a Commissioner of the FWC.\n\n (2) If, immediately before that commencement, a person:\n\n (a) is a member of a prescribed State industrial authority; and\n\n (b) holds office as a Commissioner of FWA;\n\nthe person continues to hold office as a Commissioner of the FWC for the balance of the person’s term of appointment that remains immediately before that commencement.\n\n (3) If, before that commencement, a thing was done by, or in relation to, a Commissioner of FWA, then, for the purposes of the operation of any law on or after that commencement, the thing is taken to have been done by, or in relation to, a Commissioner of the FWC.\n\n (4) For the purposes of subclause (3), a thing done before that commencement under a provision amended by Part 1, 2 or 3 of Schedule 9 to the amending Act has effect from that commencement as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done.\n\n (5) The Minister may, by writing, determine that subclause (3):\n\n (a) does not apply in relation to a specified thing done by, or in relation to, a Commissioner of FWA; or\n\n (b) applies as if the reference in that subclause to a Commissioner of the FWC were a reference to the FWC; or\n\n (c) applies as if the reference in that subclause to a Commissioner of the FWC were a reference to another FWC member.\n\nA determination under this subclause has effect accordingly.\n\n (6) A determination made under subclause (5) is not a legislative instrument.","sortOrder":2236},{"sectionNumber":"Sch 3 s 27","sectionType":"section","heading":"Transitional provision—Minimum Wage Panel Member","content":"27  Transitional provision—Minimum Wage Panel Member\n\n (1) A person holding office as a Minimum Wage Panel Member of FWA immediately before the commencement of Part 1 of Schedule 9 to the amending Act continues to hold office:\n\n (a) as a Minimum Wage Panel Member of the FWC; and\n\n (b) for the balance of the person’s term of appointment that remains immediately before that commencement.\n\n (2) If, before that commencement, a thing was done by, or in relation to, a Minimum Wage Panel Member of FWA, then, for the purposes of the operation of any law on or after that commencement, the thing is taken to have been done by, or in relation to, a Minimum Wage Panel Member of the FWC.\n\n (3) For the purposes of subclause (2), a thing done before that commencement under a provision amended by Part 1, 2 or 3 of Schedule 9 to the amending Act has effect from that commencement as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done.\n\n (4) The Minister may, by writing, determine that subclause (2):\n\n (a) does not apply in relation to a specified thing done by, or in relation to, a Minimum Wage Panel Member of FWA; or\n\n (b) applies as if the reference in that subclause to a Minimum Wage Panel Member of the FWC were a reference to the FWC; or\n\n (c) applies as if the reference in that subclause to a Minimum Wage Panel Member of the FWC were a reference to another FWC member.\n\nA determination under this subclause has effect accordingly.\n\n (5) A determination made under subclause (4) is not a legislative instrument.","sortOrder":2237},{"sectionNumber":"Sch 3 s 28","sectionType":"section","heading":"Operation of laws—things done by, or in relation to, FWA","content":"28  Operation of laws—things done by, or in relation to, FWA\n\n (1) If, before the commencement of Part 1 of Schedule 9 to the amending Act, a thing was done by, or in relation to, FWA, then, for the purposes of the operation of any law on or after that commencement, the thing is taken to have been done by, or in relation to, the FWC.\n\n (2) For the purposes of subclause (1), a thing done before that commencement under a provision amended by Part 1, 2 or 3 of Schedule 9 to the amending Act has effect from that commencement as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done.\n\n (3) The Minister may, by writing, determine that subclause (1):\n\n (a) does not apply in relation to a specified thing done by, or in relation to, FWA; or\n\n (b) applies as if the reference in that subclause to the FWC were a reference to the President of the FWC; or\n\n (c) applies as if the reference in that subclause to the FWC were a reference to another FWC member.\n\nA determination under this subclause has effect accordingly.\n\n (4) A determination made under subclause (3) is not a legislative instrument.","sortOrder":2238},{"sectionNumber":"Sch 3 s 29","sectionType":"section","heading":"Transitional provision—General Manager and staff of FWA","content":"29  Transitional provision—General Manager and staff of FWA\n\nGeneral Manager\n\n (1) The person holding office as the General Manager of FWA immediately before the commencement of Part 1 of Schedule 9 to the amending Act continues to hold office:\n\n (a) as the General Manager of the FWC; and\n\n (b) for the balance of the person’s term of appointment that remains immediately before that commencement.\n\n (2) If, before that commencement, a thing was done by, or in relation to, the General Manager of FWA, then, for the purposes of the operation of any law on or after that commencement, the thing is taken to have been done by, or in relation to, the General Manager of the FWC.\n\n (3) For the purposes of subclause (2), a thing done before that commencement under a provision amended by Part 1, 2 or 3 of Schedule 9 to the amending Act has effect from that commencement as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done.\n\n (4) The Minister may, by writing, determine that subclause (2):\n\n (a) does not apply in relation to a specified thing done by, or in relation to, the General Manager of FWA; or\n\n (b) applies as if the reference in that subclause to the General Manager of the FWC were a reference to the Commonwealth.\n\nA determination under this subclause has effect accordingly.\n\n (5) A determination made under subclause (4) is not a legislative instrument.\n\nStaff\n\n (6) A person who, immediately before that commencement, was a member of the staff of FWA, continues, on and after that commencement, as a member of the staff of the FWC.","sortOrder":2239},{"sectionNumber":"Sch 3 s 30","sectionType":"section","heading":"Operation of section 7 and subsection 25B(1) of the Acts Interpretation Act 1901 not limited","content":"30  Operation of section 7 and subsection 25B(1) of the Acts Interpretation Act 1901 not limited\n\n  This Part and Schedule 9 to the amending Act do not limit the operation of section 7 or subsection 25B(1) of the Acts Interpretation Act 1901.","sortOrder":2240},{"sectionNumber":"Sch 3 Part 10","sectionType":"part","heading":"Other amendments (Schedule 10)","content":"Part 10—Other amendments (Schedule 10)","sortOrder":2241},{"sectionNumber":"Sch 3 s 31","sectionType":"section","heading":"Part 1 of Schedule 10 to the amending Act","content":"31  Part 1 of Schedule 10 to the amending Act\n\n  The amendment made by Part 1 of Schedule 10 to the amending Act (which is about costs orders in court proceedings) applies in relation to proceedings commenced after the commencement of that Part.","sortOrder":2242},{"sectionNumber":"Sch 3 Part 11","sectionType":"part","heading":"Regulations","content":"Part 11—Regulations","sortOrder":2243},{"sectionNumber":"Sch 3 s 32","sectionType":"section","heading":"Regulations about application, transitional and saving matters","content":"32  Regulations about application, transitional and saving matters\n\n (1) The regulations may prescribe matters of an application, transitional or saving nature relating to the amendments and repeals made by the amending Act.\n\n (2) Without limiting subclause (1), the regulations may:\n\n (a) provide that Part 9 of this Schedule or Part 4 of Schedule 9 to the amending Act applies with specified modifications; or\n\n (b) provide that the Transitional Act applies with specified modifications.\n\n (3) The provisions referred to in subclause (2) have effect subject to regulations made for the purposes of this clause.\n\n (4) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to:\n\n (a) regulations relating to the amendments and repeals made by Schedule 9 to the amending Act; and\n\n (b) regulations made for the purposes of subclause (2).","sortOrder":2244},{"sectionNumber":"Schedule 4","sectionType":"schedule","heading":"Amendments made by the Fair Work Amendment Act 2013","content":"Schedule 4—Amendments made by the Fair Work Amendment Act 2013\n\nNote: See section 795A.","sortOrder":2245},{"sectionNumber":"Sch 4 Part 1","sectionType":"part","heading":"Preliminary","content":"Part 1—Preliminary","sortOrder":2246},{"sectionNumber":"Sch 4 s 1","sectionType":"section","heading":"Definition","content":"1  Definition\n\n  In this Schedule:\n\namending Act means the Fair Work Amendment Act 2013.","sortOrder":2247},{"sectionNumber":"Sch 4 Part 2","sectionType":"part","heading":"Family-friendly measures (Schedule 1)","content":"Part 2—Family‑friendly measures (Schedule 1)","sortOrder":2248},{"sectionNumber":"Sch 4 s 2","sectionType":"section","heading":"Part 1 of Schedule 1 to the amending Act","content":"2  Part 1 of Schedule 1 to the amending Act\n\n  The amendments made by Part 1 of Schedule 1 to the amending Act apply in relation to a period of unpaid special maternity leave that starts after the commencement of that Part.","sortOrder":2249},{"sectionNumber":"Sch 4 s 3","sectionType":"section","heading":"Part 2 of Schedule 1 to the amending Act","content":"3  Part 2 of Schedule 1 to the amending Act\n\n  The amendments made by Part 2 of Schedule 1 to the amending Act apply in relation to the taking of unpaid parental leave by members of an employee couple if the first taking of leave by either member of the employee couple occurs after the commencement of that Part.","sortOrder":2250},{"sectionNumber":"Sch 4 s 4","sectionType":"section","heading":"Part 3 of Schedule 1 to the amending Act","content":"4  Part 3 of Schedule 1 to the amending Act\n\n  The amendments made by Part 3 of Schedule 1 to the amending Act apply in relation to a request that is made under subsection 65(1) after the commencement of that Part.","sortOrder":2251},{"sectionNumber":"Sch 4 s 5","sectionType":"section","heading":"Part 4 of Schedule 1 to the amending Act","content":"5  Part 4 of Schedule 1 to the amending Act\n\nApplication of amendments\n\n (1) The amendment made by item 19 of Schedule 1 to the amending Act applies in relation to a modern award that is in operation on or after 1 January 2014, whether or not the award was made before that day.\n\n (2) The amendments made by items 20 and 21 of Schedule 1 to the amending Act apply in relation to an enterprise agreement that is made after the commencement of Part 4 of that Schedule.\n\nTransitional provision\n\n (3) If:\n\n (a) a modern award is made before 1 January 2014; and\n\n (b) the modern award is in operation on that day; and\n\n (c) immediately before that day, the modern award does not include a term (the relevant term) of the kind mentioned in section 145A (as inserted by item 19 of Schedule 1 to the amending Act);\n\nthen the FWC must, by 31 December 2013, make a determination varying the modern award to include the relevant term.\n\n (4) A determination made under subclause (3) comes into operation on (and takes effect from) 1 January 2014.\n\n (5) Section 168 applies to a determination made under subclause (3) as if it were a determination made under Part 2‑3.","sortOrder":2252},{"sectionNumber":"Sch 4 s 6","sectionType":"section","heading":"Part 5 of Schedule 1 to the amending Act","content":"6  Part 5 of Schedule 1 to the amending Act\n\n  The amendments made by Part 5 of Schedule 1 to the amending Act apply in relation to evidence that is given under section 81 after the commencement of that Part.","sortOrder":2253},{"sectionNumber":"Sch 4 Part 3","sectionType":"part","heading":"Modern awards objective (Schedule 2)","content":"Part 3—Modern awards objective (Schedule 2)","sortOrder":2254},{"sectionNumber":"Sch 4 s 7","sectionType":"section","heading":"Schedule 2 to the amending Act","content":"7  Schedule 2 to the amending Act\n\n  The amendment made by Schedule 2 to the amending Act applies in relation to a modern award that is made or varied after the commencement of that Schedule.","sortOrder":2255},{"sectionNumber":"Sch 4 Part 4","sectionType":"part","heading":"Anti-bullying measure (Schedule 3)","content":"Part 4—Anti‑bullying measure (Schedule 3)","sortOrder":2256},{"sectionNumber":"Sch 4 s 8","sectionType":"section","heading":"Schedule 3 to the amending Act","content":"8  Schedule 3 to the amending Act\n\n  The amendments made by Schedule 3 to the amending Act apply in relation to an application that is made under section 789FC (as inserted by item 6 of that Schedule) after the commencement of that Schedule.","sortOrder":2257},{"sectionNumber":"Sch 4 Part 4A","sectionType":"part","heading":"Conferences (Schedule 3A)","content":"Part 4A—Conferences (Schedule 3A)","sortOrder":2258},{"sectionNumber":"Sch 4 s 8A","sectionType":"section","heading":"Schedule 3A to the amending Act","content":"8A  Schedule 3A to the amending Act\n\n  The amendments made by Schedule 3A to the amending Act apply in relation to a matter that arises before or after the commencement of that Schedule, whether or not a conference starts to be conducted in relation to the matter before or after that commencement.","sortOrder":2259},{"sectionNumber":"Sch 4 Part 5","sectionType":"part","heading":"Right of entry (Schedule 4)","content":"Part 5—Right of entry (Schedule 4)","sortOrder":2260},{"sectionNumber":"Sch 4 s 9","sectionType":"section","heading":"Schedule 4 to the amending Act","content":"9  Schedule 4 to the amending Act\n\nApplication of amendment relating to sections 492 and 492A\n\n (1) The amendment made by item 7 of Schedule 4 to the amending Act applies in relation to interviews conducted and discussions held after the commencement of that item.\n\nApplication of amendments relating to section 505A\n\n (2) The amendments made by items 12 and 13 of Schedule 4 to the amending Act apply in relation to the frequency of entry after the commencement of those items.\n\nApplication of amendments relating to accommodation arrangements and transport arrangements\n\n (3) The amendments made by items 14 and 15 of Schedule 4 to the amending Act do not apply in relation to arrangements entered into before the commencement of those items.","sortOrder":2261},{"sectionNumber":"Sch 4 Part 6","sectionType":"part","heading":"Consent arbitration for general protections and unlawful termination (Schedule 4A)","content":"Part 6—Consent arbitration for general protections and unlawful termination (Schedule 4A)","sortOrder":2262},{"sectionNumber":"Sch 4 s 10","sectionType":"section","heading":"Schedule 4A to the amending Act","content":"10  Schedule 4A to the amending Act\n\n (1) The amendments made by Part 1 of Schedule 4A to the amending Act apply in relation to dismissals that take effect after the commencement of that Schedule.\n\n (2) The amendments made by Part 2 of Schedule 4A to the amending Act apply in relation to employment that is terminated after the commencement of that Schedule.","sortOrder":2263},{"sectionNumber":"Sch 4 Part 7","sectionType":"part","heading":"The FWC (Schedule 5)","content":"Part 7—The FWC (Schedule 5)","sortOrder":2264},{"sectionNumber":"Sch 4 s 11","sectionType":"section","heading":"Item 4 of Schedule 5 to the amending Act","content":"11  Item 4 of Schedule 5 to the amending Act\n\n  The amendment made by item 4 of Schedule 5 to the amending Act applies in relation to an appointment made after the commencement of that Schedule.","sortOrder":2265},{"sectionNumber":"Schedule 5","sectionType":"schedule","heading":"Amendments made by the Fair Work Amendment Act 2015","content":"Schedule 5—Amendments made by the Fair Work Amendment Act 2015\n\nNote: See section 795A.","sortOrder":2266},{"sectionNumber":"Sch 5 s 1","sectionType":"section","heading":"Definition","content":"1  Definition\n\n  In this Schedule:\n\namending Act means the Fair Work Amendment Act 2015.","sortOrder":2267},{"sectionNumber":"Sch 5 s 2","sectionType":"section","heading":"Part 1 of Schedule 1 to the amending Act","content":"2  Part 1 of Schedule 1 to the amending Act\n\n  The amendment made by Part 1 of Schedule 1 to the amending Act applies in relation to a request made after the commencement of that Part.","sortOrder":2268},{"sectionNumber":"Sch 5 s 9","sectionType":"section","heading":"Part 5 of Schedule 1 to the amending Act","content":"9  Part 5 of Schedule 1 to the amending Act\n\n  The amendments made by Part 5 of Schedule 1 to the amending Act, so far as they concern proposed enterprise agreements, apply in relation to a proposed enterprise agreement if an employer agrees to bargain for the proposed enterprise agreement after the commencement of that Part.","sortOrder":2269},{"sectionNumber":"Sch 5 s 11","sectionType":"section","heading":"Part 7 of Schedule 1 to the amending Act","content":"11  Part 7 of Schedule 1 to the amending Act\n\n  The amendment of section 437 made by Part 7 of Schedule 1 to the amending Act applies in relation to an application made under that section, if the application was made after the commencement of that Part.","sortOrder":2270},{"sectionNumber":"Sch 5 s 14","sectionType":"section","heading":"Part 10 of Schedule 1 to the amending Act","content":"14  Part 10 of Schedule 1 to the amending Act\n\n  Paragraph 559(3A)(c) applies in relation to an amount that was paid to the Commonwealth under subsection 559(1) after the commencement of Part 10 of Schedule 1 to the amending Act.","sortOrder":2271}],"analysis":null,"importantCases":[],"_links":{"self":"/api/acts/fair-work-act-2009","history":"/api/acts/fair-work-act-2009/history","analysis":"/api/acts/fair-work-act-2009/analysis","conflicts":"/api/acts/fair-work-act-2009/conflicts","importantCases":"/api/acts/fair-work-act-2009/important-cases","documents":"/api/acts/fair-work-act-2009/documents"}}