Fair Work Act 2009

Part 1‑1—Introduction

Division 1—Preliminary

1 Short title

This Act may be cited as the Fair Work Act 2009.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

• Commencement information
• Column 1 Column 2 Column 3
• Provision(s) Commencement Date/Details
• 1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 7 April 2009
• 2. Sections 3 to 40 A single day to be fixed by Proclamation.However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. 26 May 2009(see F2009L01818)
• 3. Sections 41 to 572 A day or days to be fixed by Proclamation.A Proclamation must not specify a day that occurs before the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent.However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent, they commence on the first day after the end of that period. Sections 41–43, 50–54, 58, 169–281A, 300–327, 332, 333, 334–572: 1 July 2009 (see F2009L02563)Sections 44–49, 55–57A, 59–168, 282–299, 328–331, 333A: 1 January 2010 (see F2009L02563)
• 4. Sections 573 to 718 At the same time as the provision(s) covered by table item 2. 26 May 2009
• 5. Sections 719 to 800 A day or days to be fixed by Proclamation.A Proclamation must not specify a day that occurs before the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent.However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent, they commence on the first day after the end of that period. Sections 719–740, 769–800: 1 July 2009 (see F2009L02563)Sections 741–768: 1 January 2010 (see F2009L02563)
• 6. Schedule 1 At the same time as the provision(s) covered by table item 2. 26 May 2009

Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

Division 2—Object of this Act

3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(a) providing workplace relations laws that are fair to working Australians, 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

(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and

(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and

(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

(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

(cb) providing appropriate remedies in relation to unfair terms of services contracts; and

(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and

(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and

(f) achieving productivity and fairness through an emphasis on enterprise‑level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and

(g) acknowledging the special circumstances of small and medium‑sized businesses.

Division 3—Guide to this Act

4 Guide to this Act

Overview of this Act

(1) This Act is about workplace relations. It:

(a) provides for terms and conditions of employment (Chapter 2); and

(b) sets out rights and responsibilities of employees, employers and organisations in relation to that employment (Chapter 3); and

(ba) provides for minimum terms and conditions for regulated workers (Chapter 3A); and

(bb) sets out measures to deal with unfair terms of services contracts (Chapter 3A); and

(bc) provides for minimum terms and conditions for persons in a road transport contractual chain (Chapter 3B); and

(c) provides for compliance with, and enforcement of, this Act (Chapter 4); and

(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

(e) deals with other matters relating to the above (Chapter 6).

Overview of the rest of this Chapter

(2) The rest of this Chapter deals with:

(a) definitions that are used in this Act (Part 1‑2); and

(b) the application of this Act (Part 1‑3), including how this Act interacts with certain State and Territory laws and its geographical application;

(c) certain matters relating to the road transport industry (Part 1‑4).

Definitions

(3) Many of the terms in this Act are defined. The Dictionary in section 12 contains a list of every term that is defined in this Act.

Application, saving and transitional provisions for amendments

(4) Schedule 1 contains application, saving and transitional provisions relating to amendments of this Act.

5 Terms and conditions of employment (Chapter 2)

(1) Chapter 2 provides for terms and conditions of employment of national system employees.

(2) Part 2‑1 has the core provisions for the Chapter. It deals with compliance with, and interaction between, the sources of the main terms and conditions provided under this Act—the National Employment Standards, modern awards and enterprise agreements.

Note: Workplace determinations are another source of main terms and conditions. In most cases, this Act applies to a workplace determination as if it were an enterprise agreement in operation (see section 279).

Main terms and conditions

(3) Part 2‑2 contains the National Employment Standards, which are minimum terms and conditions that apply to all national system employees.

(4) Part 2‑3 is about modern awards. A modern award is made for a particular industry or occupation and provides additional minimum terms and conditions for those national system employees to whom it applies. A modern award can have terms that are ancillary or supplementary to the National Employment Standards.

(5) Part 2‑4 is about enterprise agreements. An enterprise agreement is made at the enterprise level and provides terms and conditions for those national system employees to whom it applies. An enterprise agreement can have terms that are ancillary or supplementary to the National Employment Standards.

(6) Part 2‑5 is about workplace determinations. A workplace determination provides terms and conditions for those national system employees to whom it applies. A workplace determination is made by the FWC if certain conditions are met.

(7) Part 2‑8 provides for the transfer of certain modern awards, enterprise agreements, workplace determinations and other instruments if there is a transfer of business from one national system employer to another national system employer.

Other terms and conditions

(8) In addition, other terms and conditions of employment for national system employees include those:

(a) provided by a national minimum wage order (see Part 2‑6) or an equal remuneration order (see Part 2‑7); and

(aa) provided by Part 2‑7A (which deals with regulated labour hire arrangement orders); and

(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).

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

(1) Chapter 3 sets out rights and responsibilities of national system employees, national system employers, organisations and others (such as independent contractors and industrial associations).

(2) Part 3‑1 provides general workplace protections. It:

(a) protects workplace rights; and

(b) protects freedom of association and involvement in lawful industrial activities; and

(c) provides other protections, including protection from discrimination.

(3) Part 3‑2 deals with unfair dismissal of national system employees, and the granting of remedies when that happens.

(4) Part 3‑3 deals mainly with industrial action by national system employees and national system employers and sets out when industrial action is protected industrial action. No action lies under any law in force in a State or Territory in relation to protected industrial action except in certain circumstances.

(5) Part 3‑4 is about the rights of officials of organisations who hold entry permits to enter premises for purposes related to their representative role under this Act and under State or Territory OHS laws. In exercising those rights, permit holders must comply with the requirements set out in the Part.

(6) Part 3‑5 allows a national system employer to stand down a national system employee without pay in certain circumstances.

(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.

(7) Part 3‑6 deals with other rights and responsibilities of national system employers in relation to:

(a) termination of employment; and

(b) keeping records and giving payslips; and

(c) advertising rates of pay.

(8) Part 3‑7 deals with offences in relation to corrupting benefits.

6A Rights and responsibilities of regulated workers, regulated businesses, organisations etc. (Chapter 3A)

(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.

(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.

(3) Part 3A‑2 is about minimum standards orders and minimum standards guidelines, which can be made for certain regulated workers.

(4) Part 3A‑3 deals with unfair termination and unfair deactivation of certain regulated workers, and the granting of remedies when that happens.

(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.

(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.

6B Rights and responsibilities of persons in a road transport contractual chain

(1) Chapter 3B sets out rights and responsibilities of persons in a road transport contractual chain.

(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.

(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.

7 Compliance and enforcement (Chapter 4)

(1) Chapter 4 provides for compliance with, and enforcement of, this Act.

(2) Part 4‑1 is about civil remedies. Certain provisions in this Act impose obligations on certain persons. Civil remedies may be sought in relation to contraventions of these civil remedy provisions. Part 4‑1:

(a) deals with applications for orders for contraventions of civil remedy provisions; and

(b) sets out the orders the courts can make in relation to a contravention of a civil remedy provision.

(3) Part 4‑2 is about the jurisdiction and powers of the courts in relation to matters arising under this Act.

8 Administration (Chapter 5)

(1) Chapter 5 provides for the administration of this Act by establishing the Fair Work Commission and the Office of the Fair Work Ombudsman.

(2) Part 5‑1 is about the Fair Work Commission. It:

(a) establishes and confers functions on the FWC; and

(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).

(3) Part 5‑2 is about the Office of the Fair Work Ombudsman. It:

(a) establishes and confers functions on the Fair Work Ombudsman; and

(b) confers functions and powers on Fair Work Inspectors.

9 Miscellaneous (Chapter 6)

(1) Chapter 6 is a collection of miscellaneous matters that relate to the other Chapters.

(2) Part 6‑1 provides rules relating to applications for remedies under this Act. It prevents certain applications if other remedies are available and prevents multiple applications or complaints in relation to the same conduct.

(3) Part 6‑2 is about dealing with disputes between national system employees and their employers under modern awards, enterprise agreements and contracts of employment.

(4) Part 6‑3 extends 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.

(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.

(5) Part 6‑4 contains provisions to give effect, or further effect, to certain international agreements relating to termination of employment.

(5A) Part 6‑4A contains special provisions about TCF outworkers.

(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.

(6) Part 6‑5 deals with miscellaneous matters such as delegations and regulations.

9A Application, transitional and saving provisions for amendments (Schedules)

The Schedules contain application, transitional and saving provisions relating to amendments of this Act.

Note: Application, transitional and saving provisions relating to the enactment of this Act, and States becoming referring States, are in the Transitional Act.

Part 1‑2—Definitions

10 Guide to this Part

This Part is about the terms that are defined in this Act.

Division 2 has the Dictionary (see section 12). The Dictionary is a list of every term that is defined in this Act. A term will either be defined in the Dictionary itself, or in another provision of this Act. If another provision defines the term, the Dictionary will have a signpost to that definition.

Division 3 has definitions relating to the meanings of employee and employer.

Division 4 has some other definitions that apply across this Act.

11 Meanings of employee and employer

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

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

12 The Dictionary

In this Act:

accommodation arrangement: see subsections 521A(1) and (2).

action includes an omission.

adoption‑related leave: see subsection 67(5).

adverse action: see section 342.

affected employees:

(a) for a variation of an enterprise agreement under Subdivision A of Division 7 of Part 2‑4: see subsection 207(2); and

(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

(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

(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).

affected employer:

(a) in relation to an entry under Subdivision A of Division 2 of Part 3‑4: see subsection 482(2); and

(aa) in relation to an entry under section 483A other than a designated outworker terms entry: see paragraph 483B(3)(a); and

(ab) in relation to a designated outworker terms entry under section 483A: see paragraph 483B(3)(b); and

(b) in relation to an entry in accordance with Division 3 of Part 3‑4: see paragraph 495(2)(a); and

(c) in relation to a State or Territory OHS right to inspect or otherwise access an employee record: see paragraph 495(2)(b).

affected member certificate: see subsection 520(1).

Age Discrimination Commissioner means the Age Discrimination Commissioner appointed under the Age Discrimination Act 2004.

aggrieved 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).

agreed terms for a workplace determination: see section 274.

agreed to in relation to a termination of an enterprise agreement: see section 221.

alternative protected rate of pay order: see subsection 306M(2).

annual rate of an employee’s guaranteed annual earnings: see subsection 330(3).

annual wage review: see subsection 285(1).

anti‑discrimination law: see subsection 351(3).

apparent indirectly responsible entity: see subsection 789CC(2).

applicable agreement‑derived long service leave terms: see subsection 113(5).

applicable award‑derived long service leave terms: see subsection 113(3).

applicable time: see subsection 23B(2).

application or complaint under another law: see subsection 732(2).

applies:

(a) in relation to a modern award: see section 47; and

(b) in relation to an enterprise agreement: see section 52; and

(ba) in relation to a minimum standards order: see section 536JD; and

(bb) in relation to a collective agreement: see section 536JL; and

(bc) in relation to a road transport contractual chain order: see section 536NR; and

(c) in relation to a copied State instrument: see section 768AM.

applies to employment generally: see subsection 26(4).

appointment:

(a) of a bargaining representative means an appointment of a bargaining representative under paragraph 176(1)(c) or (d) or 177(c); and

(b) of an insolvency practitioner includes a person becoming an insolvency practitioner:

(i) by taking possession or control of property; or

(ii) by operation of law.

appropriate safe job: see subsection 81(3).

approved by the FWC, in relation to an enterprise agreement, means approved by the FWC under section 186 or 189.

arbitrated protected rate of pay order: see subsection 306Q(1).

ART President or Deputy President means the President, a Judicial Deputy President or a Non‑Judicial Deputy President of the Administrative Review Tribunal.

associated entity has the meaning given by section 50AAA of the Corporations Act 2001.

associated regulated business for a regulated worker: see subsection 350B(5).

associated with an underpayment amount: see subsection 546A(1).

Australia 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.

Australian‑based employee: see subsections 35(2) and (3).

Australian employer: see subsection 35(1).

Australian government: see subsection 794A(2).

Australian ship means a ship that has Australian nationality under section 29 of the Shipping Registration Act 1981.

authority documents: see subsection 489(3).

available parental leave period: see subsection 75(2).

award/agreement free employee means a national system employee to whom neither a modern award nor an enterprise agreement applies.

award covered employee for an enterprise agreement: see subsection 193(4).

award modernisation process means:

(a) the process of making modern awards under Part 10A of the Workplace Relations Act 1996, as continued by Part 2 of Schedule 5 of the Transitional Act; and

(b) the enterprise instrument modernisation process provided for by Part 2 of Schedule 6 of the Transitional Act; and

(c) the State reference public sector transitional award modernisation process provided for by Part 2 of Schedule 6A of the Transitional Act.

ballot paper: see subsection 455(2).

Bankruptcy Act 1966: a reference to the Bankruptcy Act 1966 or a provision of that Act is a reference to that Act or provision:

(a) applying of its own force; or

(b) applying, with or without modifications, because of a law of the Commonwealth, a State or a Territory.

bankruptcy trustee of a person means the trustee under the Bankruptcy Act 1966 of the person’s estate in bankruptcy.

bargaining order: see subsection 229(1).

bargaining representative for a proposed enterprise agreement: see sections 176 and 177.

bargaining services: see subsection 353(3).

bargaining services fee: see subsection 353(2).

base rate of pay: see section 16.

birth‑related leave: see subsection 67(4).

breastfeeding:

(a) includes the act of expressing milk; and

(b) includes:

(i) an act of breastfeeding; and

(ii) breastfeeding over a period of time.

bullied at work: see subsection 789FD(1).

cash or in kind payment: see subsection 536F(4).

casual employee: see section 15A.

child of a person: see subsection 17(1).

civil remedy provision: see subsections 539(1) and (3).

close relative: see subsection 106B(3).

collective agreement: see section 15B.

Commissioner means a Commissioner of the FWC.

common requirements in relation to industrial action: see section 413.

Commonwealth 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.

Commonwealth authority means:

(a) a body corporate established for a public purpose by or under a law of the Commonwealth; or

(b) a body corporate:

(i) incorporated under a law of the Commonwealth or a State or a Territory; and

(ii) in which the Commonwealth has a controlling interest.

Commonwealth Ombudsman means the person for the time being holding office as Ombudsman under the Ombudsman Act 1976.

Commonwealth outworker entity means an entity that is an outworker entity otherwise than because of section 30F or 30Q.

Note: Sections 30F and 30Q extend the meaning of outworker entity in relation to a referring State.

Commonwealth place means a place referred to in paragraph 52(i) of the Constitution, other than the seat of government.

compassionate leave means compassionate leave to which a national system employee is entitled under section 104.

complaint about an FWC Member means a complaint referred to in paragraph 581A(1)(a) or section 641A.

complaint handler means:

(a) the President; or

(b) a person who is authorised by the President under subsection 581A(3); or

(c) a person who is a member of a body that is authorised by the President under subsection 581A(3).

compliance powers: see section 703.

compliance purposes: see subsection 706(1).

conduct includes an omission.

conduct of a protected action ballot: see subsection 458(5).

connected with a Territory: an arrangement for work to be performed for a person (either directly or indirectly) is connected with a Territory if one or more of the following apply:

(a) at the time the arrangement is made, one or more parties to the arrangement is in a Territory in Australia;

(b) the work is to be performed in such a Territory;

(c) the person carries on an activity (whether of a commercial, governmental or other nature) in such a Territory, and the work is reasonably likely to be performed in that Territory;

(d) the person carries on an activity (whether of a commercial, governmental or other nature) in such a Territory, and the work is to be performed in connection with that activity.

Note: In this context, Australia includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see the definition of Australia).

consistent with the Digital Labour Platform Deactivation Code: see subsection 536LJ(3).

consistent with the Road Transport Industry Termination Code: see subsection 536LN(3).

consistent with the Small Business Fair Dismissal Code: see subsection 388(2).

consolidation order:

(a) in relation to a transferring employee—see subsection 768BD(1); and

(b) in relation to a non‑transferring employee—see subsection 768BG(1).

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

constitutionally‑covered business: see subsection 789FD(3).

constitutionally‑covered entity: see subsection 338(2).

constitutional trade or commerce means trade or commerce:

(a) between Australia and a place outside Australia; or

(b) among the States; or

(c) between a State and a Territory; or

(d) between 2 Territories; or

(e) within a Territory.

consultation notice for a collective agreement: see subsection 536ML(1).

continental shelf means:

(a) the continental shelf (as defined in the Seas and Submerged Lands Act 1973) of Australia (including its external Territories); and

(b) the Greater Sunrise special regime area (as defined in the Seas and Submerged Lands Act 1973).

continuous service has a meaning affected by section 22.

contractor high income threshold: see section 15C.

contravene this Act, or a provision of this Act, includes contravene any of the following:

(a) a civil remedy provision;

(b) a provision of this Act that creates an offence;

(c) a related offence provision.

cooperation agreement: see subsection 717B(1).

cooperative 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.

copied State award: see subsection 768AI(1).

copied State collective employment agreement: see subsection 768AK(4).

copied State employment agreement: see subsection 768AK(1).

copied State individual employment agreement: see subsection 768AK(5).

copied State instrument: see section 768AH.

corporate MySuper product: see subsection 23A(3).

Corporations 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:

(a) applying of its own force; or

(b) applying, with or without modifications, because of a law of the Commonwealth, a State or a Territory.

coverage terms:

(a) in relation to a modern award (other than a modern enterprise award): see section 143; and

(b) in relation to a modern enterprise award: see section 143A; and

(c) in relation to a State reference public sector modern award: see section 143B.

covered employment instrument means:

(a) an enterprise agreement; or

(b) a workplace determination; or

(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

(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:

(i) the Commonwealth or a State or Territory; or

(ii) an authority of the Commonwealth or of a State or Territory; or

(e) any other instrument relating to the employment of a class of national system employees that:

(i) is made under a law of the Commonwealth (other than this Act) or a State or Territory; and

(ii) is prescribed by the regulations.

covers:

(a) in relation to a modern award: see section 48; and

(b) in relation to an enterprise agreement: see section 53; and

(c) in relation to a workplace determination: see section 277; and

(ca) in relation to a minimum standards order: see section 536JE; and

(cb) in relation to minimum standards guidelines: see section 536JG; and

(cc) in relation to a collective agreement: see section 536JM; and

(cd) in relation to a road transport contractual chain order: see section 536NS; and

(ce) in relation to road transport contractual chain guidelines: see section 536NU; and

(d) in relation to a copied State instrument: see section 768AN.

day of placement: see subsection 67(6).

deactivated: see section 536LG.

de facto partner of a person means:

(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

(b) a former de facto partner (within the meaning of paragraph (a)) of the first person.

default fund employee: see subsection 149C(2).

default fund term: see subsection 149C(2).

Default Superannuation List: see subsection 156B(1).

deferral declaration, in relation to a minimum standards order: see subsection 536KQA(1).

deferral declaration, in relation to a road transport contractual chain order: see subsection 536PU(1).

deferral determination, in relation to a road transport minimum standards order: see subsection 536KQH(1).

deferral determination, in relation to a road transport contractual chain order: see subsection 536QA(1).

defined benefit member has the meaning given by the Superannuation Guarantee (Administration) Act 1992.

delegates’ rights term means a term in a fair work instrument that provides for the exercise of the rights of workplace delegates.

Note: 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.

Deputy President means a Deputy President of the FWC.

designated emergency management body: see subsections 195A(4) and (5).

designated outworker term of a modern award, enterprise agreement, workplace determination or other instrument, means any of the following terms, so far as the term relates to outworkers in the textile, clothing or footwear industry:

(a) a term that deals with the registration of an employer or outworker entity;

(b) a term that deals with the making and retaining of, or access to, records about work to which outworker terms of a modern award apply;

(c) a term imposing conditions under which an arrangement may be entered into by an employer or an outworker entity for the performance of work, where the work is of a kind that is often performed by outworkers;

(d) a term relating to the liability of an employer or outworker entity for work undertaken by an outworker under such an arrangement, including a term which provides for the outworker to make a claim against an employer or outworker entity;

(e) a term that requires minimum pay or other conditions, including the National Employment Standards, to be applied to an outworker who is not an employee;

(f) any other terms prescribed by the regulations.

designated outworker terms entry: see subsection 483A(5).

digital labour platform: see section 15L.

Digital Labour Platform Deactivation Code means the code made under section 536LJ.

digital labour platform operator: see section 15M.

digital platform work: see section 15N.

directly, when used in relation to TCF work: see section 17A.

Disability Discrimination Commissioner means the Disability Discrimination Commissioner appointed under the Disability Discrimination Act 1992.

discriminatory term of an enterprise agreement: see section 195.

dismissal remedy bargaining order application: see subsection 726(2).

dismissed: see section 386.

earnings: see subsections 332(1) and (2).

eligible community service activity: see section 109.

eligible protected action ballot agent: see subsection 468A(1).

eligible State or Territory court means one of the following courts:

(a) a District, County or Local Court;

(b) a magistrates court;

(c) the Industrial Relations Court of South Australia;

(ca) the Industrial Court of New South Wales;

(d) any other State or Territory court that is prescribed by the regulations.

emergency 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).

employee is defined in the first Division of each Part (other than Part 1‑1) in which the term appears.

Note 1: The definition in the Part will define employee either as a national system employee or as having its ordinary meaning. However, there may be particular provisions in the Part where a different meaning for the term is specified.

Note 2: If the term has its ordinary meaning, see further subsections 15(1), 30E(1) and 30P(1).

Note 3: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).

employee A, in relation to a transfer of business referred to in Part 6‑3A: see subsections 768BD(1) and 768BG(1).

employee claim action: see section 409 and paragraph 471(4A)(c).

employee couple: 2 national system employees are an employee couple if each of the employees is the spouse or de facto partner of the other.

employee‑like worker: see section 15P.

employee‑like worker collective agreement: see subsection 536MK(4).

employee‑like worker guidelines: see subsection 536KR(2).

employee‑like worker minimum standards order: see subsection 536JY(2).

employee organisation means an organisation of employees.

employee record, in relation to an employee, means:

(a) something that is an employee record, in relation to the employee, for the purposes of the Privacy Act 1988; or

(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.

employee response action: see section 410 and paragraph 471(4A)(d).

employee with a disability means a national system employee who is qualified for a disability support pension as set out in section 94 or 95 of the Social Security Act 1991, or who would be so qualified but for paragraph 94(1)(e) or 95(1)(c) of that Act.

employer is defined in the first Division of each Part (other than Part 1‑1) in which the term appears.

Note 1: The definition in the Part will define employer either as a national system employer or as having its ordinary meaning. However, there may be particular provisions in the Part where a different meaning for the term is specified.

Note 2: If the term has its ordinary meaning, see further subsections 15(2), 30E(2) and 30P(2).

Note 3: See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).

employer MySuper product: see subsection 23A(1B).

employer organisation means an organisation of employers.

employer response action: see section 411.

employing authority: see subsection 795(6).

end of the minimum bargaining period: see subsection 235(5).

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

engages in industrial activity: see section 347.

enterprise means a business, activity, project or undertaking.

enterprise agreement means:

(a) a single‑enterprise agreement; or

(b) a multi‑enterprise agreement.

entry notice: see subsection 487(2).

entry permit: see section 512.

equal remuneration for work of equal or comparable value: see subsection 302(2).

Note: 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.

equal remuneration order: see subsection 302(1).

exclusive economic zone means the exclusive economic zone (as defined in the Seas and Submerged Lands Act 1973) of Australia (including its external Territories).

exemption certificate: see subsection 519(1).

exempt public sector superannuation scheme has the meaning given by the Superannuation Industry (Supervision) Act 1993.

Expert Panel means an Expert Panel constituted under section 620.

Expert Panel Member means an Expert Panel Member of the FWC.

extended notice of termination provisions: see subsection 759(3).

extended paid family and domestic violence leave provisions: see subsection 757B(4).

extended parental leave provisions: see subsection 744(3).

Fair Work Commission or FWC means the body continued in existence by section 575.

Fair Work Information Statement: see subsection 124(1).

Fair Work Inspector means:

(a) a person appointed as a Fair Work Inspector under section 700; or

(b) the Fair Work Ombudsman in his or her capacity as a Fair Work Inspector under section 701.

fair work instrument means:

(a) a modern award; or

(b) an enterprise agreement; or

(c) a workplace determination; or

(d) an 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.

family and domestic violence: see subsection 106B(2).

Federal Court means the Federal Court of Australia.

Finance Minister means the Minister administering the Public Governance, Performance and Accountability Act 2013.

first employer, in relation to a transfer of employment: see subsection 22(7).

first stage criteria: see section 156F.

first stage test: see section 156Q.

fixed platform means an artificial island, installation or structure permanently attached to the sea‑bed for the purpose of exploration for, or exploitation of, resources or for other economic purposes.

Fixed Term Contract Information Statement: see subsection 333J(1).

flexibility term:

(a) in relation to a modern award—see subsection 144(1); and

(b) in relation to an enterprise agreement—see subsection 202(1).

flexible day: see subsection 74(3C).

flexible unpaid parental leave: see subsections 72A(1) and (2A).

flight crew officer means a person who performs (whether with or without other duties) duties as a pilot, navigator or flight engineer of aircraft, and includes a person being trained for the performance of such duties.

franchise has the meaning given by the Corporations Act 2001.

franchisee entity of a franchise: see subsection 558A(1).

Full Bench means a Full Bench of the FWC constituted under section 618.

full deferral declaration, in relation to a minimum standards order: see subsection 536KQA(2).

full deferral declaration, in relation to a road transport contractual chain order: see subsection 536PU(2).

full deferral determination, in relation to a road transport minimum standards order: see subsection 536KQJ(2).

full deferral determination, in relation to a road transport contractual chain order: see subsection 536QB(2).

full rate of pay: see section 18.

full suspension declaration, in relation to a minimum standards order: see subsection 536KQD(2).

full suspension declaration, in relation to a road transport contractual chain order: see subsection 536PX(2).

full suspension determination, in relation to a road transport minimum standards order: see subsection 536KQP(2).

full suspension determination, in relation to a road transport contractual chain order: see subsection 536QG(2).

FWC: see Fair Work Commission.

FWC Member means the President, a Vice President, a Deputy President, a Commissioner or an Expert Panel Member.

FWO notice: see subsection 712A(1).

gender identity has the meaning given by the Sex Discrimination Act 1984.

general building and construction work: see subsection 23B(1).

General Manager means the General Manager of the FWC.

general protections court application: see subsection 368(4).

general protections FWC application: see subsection 727(2).

general State industrial law: see subsection 26(3).

genuine redundancy: see section 389.

good faith bargaining requirements: see section 228.

governing body of an agency of the Commonwealth: see subsection 794B(5).

greenfields agreement: see subsection 172(4).

guaranteed period for a guarantee of annual earnings: see section 331.

guarantee of annual earnings: see subsection 330(1).

guarantee of termination entitlements: see subsection 226A(1).

handle a complaint about an FWC Member means do one or more of the following acts relating to the complaint:

(a) consider the complaint;

(b) investigate the complaint;

(c) report on an investigation of the complaint;

(d) deal with a report of an investigation of the complaint;

(e) dispose of the complaint;

(f) refer the complaint to a person or body.

high income employee: see section 329.

high income threshold: see section 333.

host employment instrument: see subsection 306E(6).

ILO means the International Labour Organization.

immediate family of a person means:

(a) a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the person; or

(b) a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the person.

in a road transport contractual chain: see section 15RA.

independent advisor for a protected action ballot means the person (if any) specified in the protected action ballot order as the independent advisor for the ballot.

independent contractor is not confined to an individual.

indirectly, when used in relation to TCF work: see section 17A.

indirectly responsible entity, in relation to TCF work performed by a TCF outworker: see subsections 789CA(3), (4) and (5).

individual flexibility arrangement:

(a) in relation to a modern award—see subsection 144(1); and

(b) in relation to an enterprise agreement—see paragraph 202(1)(a).

industrial action: see section 19.

industrial action related workplace determination: see subsection 266(1).

industrial association means:

(a) an association of employees or independent contractors, or both, or an association of employers, that is registered or recognised as such an association (however described) under a workplace law; or

(b) an association of employees, or independent contractors, or both (whether formed formally or informally), a purpose of which is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors (as the case may be); or

(c) an association of employers a principal purpose of which is the protection and promotion of their interests in matters concerning employment and/or independent contractors;

and includes:

(d) a branch of such an association; and

(e) an organisation; and

(f) a branch of an organisation.

industrial body means:

(a) the FWC; or

(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

(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.

industrial law means:

(a) this Act; or

(b) the Registered Organisations Act; or

(c) a law of the Commonwealth, however designated, that regulates the relationships between employers and employees; or

(d) a State or Territory industrial law.

industry‑specific redundancy scheme means redundancy or termination payment arrangements in a modern award that are described in the award as an industry‑specific redundancy scheme.

Infrastructure Minister means the Minister administering the Infrastructure Australia Act 2008.

insolvency practitioner for an employer means:

(a) a liquidator of the employer; or

(b) an administrator of the employer appointed under the Corporations Act 2001; or

(c) a restructuring practitioner for the employer appointed under that Act; or

(d) a person appointed as a receiver of property of the employer; or

(e) a person who has possession or control of property of the employer for the purpose of enforcing:

(i) a charge; or

(ii) a mortgage; or

(iii) a lien; or

(iv) a pledge; or

(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

(f) a bankruptcy trustee of the employer.

inspector means a Fair Work Inspector.

interim application period: see paragraph 156N(2)(b).

intersex status has the meaning given by the Sex Discrimination Act 1984.

intractable bargaining declaration: see section 234.

intractable bargaining workplace determination: see section 269.

involved in: see section 550.

irregularity, in relation to the conduct of a protected action ballot: see subsection 458(6).

junior employee means a national system employee who is under 21.

jury service pay: see subsection 111(6).

jury service summons: see subsection 111(7).

keeping in touch day: see subsections 79A(2) and (3).

law enforcement officer has the same meaning as in subsection 30K(1).

lawyer means a person who is admitted to the legal profession by a Supreme Court of a State or Territory.

liquidator means a liquidator appointed (provisionally or otherwise) under the Corporations Act 2001.

local government employee has the same meaning as in subsection 30K(1).

local government employer has the same meaning as in subsection 30K(1).

lock out: see subsection 19(3).

made:

(a) in relation to an enterprise agreement: see section 182; and

(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

(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

(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

(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

(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).

magistrates court means:

(a) a court constituted by a police, stipendiary or special magistrate; or

(b) a court constituted by an industrial magistrate; or

(ba) the Local Court of New South Wales; or

(c) the Local Court of the Northern Territory.

majority support determination: see subsection 236(1).

maritime employee means a person who is, or whose occupation is that of, a master as defined in subsection 14(1) of the Navigation Act 2012, a seafarer as so defined or a pilot as so defined.

medical certificate means a certificate signed by a medical practitioner.

medical practitioner means a person registered, or licensed, as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.

membership action: see subsection 350(3).

members’ voluntary winding up: see subsection 121(5).

minimum employment period: see section 383.

minimum standards guidelines: see section 15D.

minimum standards objective: see section 536JX.

minimum standards order: see section 15E.

minimum wages objective: see subsection 284(1).

miscarriage means a spontaneous loss of an embryo or fetus before a period of gestation of 20 weeks.

miscellaneous modern award: see subsection 163(4).

model consultation term: see subsection 205(3).

model flexibility term: see subsection 202(5).

modern award means a modern award made under Part 2‑3.

modern award minimum wages: see subsection 284(3).

modern award powers: see subsection 134(2).

modern awards objective: see subsection 134(1).

modern enterprise award: see subsection 168A(2).

modern enterprise awards objective: see subsection 168B(1).

modifications includes additions, omissions and substitutions.

multi‑enterprise agreement means an enterprise agreement made as referred to in subsection 172(3).

MySuper product: see subsection 23A(1).

named employer award: see subsection 312(2).

National Employment Standards: see subsection 61(3).

national minimum wage order means a national minimum wage order made in an annual wage review.

national system employee: see section 13.

Note 1: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.

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

national system employer: see section 14.

Note 1: Sections 30D and 30N extend the meaning of national system employer in relation to a referring State.

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

new employer:

(a) in relation to a transfer of business referred to in Part 2‑8—see subsection 311(1); and

(b) in relation to a transfer of business referred to in Part 6‑3A—see subsection 768AD(1).

nominal expiry date:

(a) of an enterprise agreement approved under section 186, means the date specified in the agreement as its nominal expiry date; or

(b) of an enterprise agreement approved under section 189 (which deals with agreements that do not pass the better off overall test): see subsection 189(4); or

(c) of a workplace determination, means the date specified in the determination as its nominal expiry date; or

(d) of a copied State employment agreement: see subsection 768AO(5).

non‑excluded matters: see subsection 27(2).

non‑member record or document: see subsection 482(2A).

non‑monetary benefits: see subsection 332(3).

non‑national system employee means an employee who is not a national system employee.

non‑national system employer means an employer that is not a national system employer.

non‑transferring employee:

(a) in relation to a transfer of business referred to in Part 2‑8—see subsection 314(2); and

(b) in relation to a transfer of business referred to in Part 6‑3A—see subsection 768BG(2).

notification time for a proposed enterprise agreement: see subsection 173(2).

notified negotiation period for a proposed single‑enterprise agreement that is a greenfields agreement: see section 178B.

notional flexible period: see subsection 72A(6).

objectionable emergency management term of an enterprise agreement: see section 195A.

objectionable term means a term that:

(a) requires, has the effect of requiring, or purports to require or have the effect of requiring; or

(b) permits, has the effect of permitting, or purports to permit or have the effect of permitting;

either of the following:

(c) a contravention of Part 3‑1 (which deals with general protections);

(d) the payment of a bargaining services fee.

occupier, of premises, includes a person in charge of the premises.

offence against this Act, or a particular provision of this Act, includes a reference to an offence against a related offence provision.

Note: See also section 11.6 of the Criminal Code.

office, in an industrial association, means:

(a) an office of president, vice president, secretary or assistant secretary of the association; or

(b) the office of a voting member of a collective body of the association, being a collective body that has power in relation to any of the following functions:

(i) the management of the affairs of the association;

(ii) the determination of policy for the association;

(iii) the making, alteration or rescission of rules of the association;

(iv) the enforcement of rules of the association, or the performance of functions in relation to the enforcement of such rules; or

(c) an office the holder of which is, under the rules of the association, entitled to participate directly in any of the functions referred to in subparagraphs (b)(i) and (iv), other than an office the holder of which participates only in accordance with directions given by a collective body or another person for the purpose of implementing:

(i) existing policy of the association; or

(ii) decisions concerning the association; or

(d) an office the holder of which is, under the rules of the association, entitled to participate directly in any of the functions referred to in subparagraphs (b)(ii) and (iii); or

(e) the office of a person holding (whether as trustee or otherwise) property:

(i) of the association; or

(ii) in which the association has a beneficial interest.

Office of the Fair Work Ombudsman means the body established by section 696.

officer, of an industrial association, means:

(a) an official of the association; or

(b) a delegate or other representative of the association.

official, of an industrial association, means a person who holds an office in, or is an employee of, the association.

old employer, in relation to a transfer of business: see subsection 311(1).

old State employer: see subsection 768AD(1).

opt out notice: see subsection 15AB(8).

ordinary hours of work of an award/agreement free employee: see section 20.

organisation means an organisation registered under the Registered Organisations Act.

original State agreement, in relation to a copied State employment agreement: see paragraph 768AK(1)(a).

original State award, in relation to a copied State award: see paragraph 768AI(1)(a).

outworker means:

(a) an employee who, for the purpose of the business of his or her employer, performs work at residential premises or at other premises that would not conventionally be regarded as being business premises; or

(b) an individual who, for the purpose of a contract for the provision of services, performs work:

(i) in the textile, clothing or footwear industry; and

(ii) at residential premises or at other premises that would not conventionally be regarded as being business premises.

outworker entity means any of the following entities, other than in the entity’s capacity as a national system employer:

(a) a constitutional corporation;

(b) the Commonwealth;

(c) a Commonwealth authority;

(d) a body corporate incorporated in a Territory;

(e) a person so far as:

(i) the person arranges for work to be performed for the person (either directly or indirectly); and

(ii) the work is of a kind that is often performed by outworkers; and

(iii) the arrangement is connected with a Territory.

Note: Sections 30F and 30Q extend the meaning of outworker entity in relation to a referring State.

outworker terms: see subsection 140(3).

paid agent, in relation to a matter before the FWC, means an agent (other than a bargaining representative) who charges or receives a fee to represent a person in the matter.

paid annual leave means paid annual leave to which a national system employee is entitled under section 87.

paid family and domestic violence leave means paid family and domestic violence leave to which a national system employee is entitled under section 106A.

paid no safe job leave means paid no safe job leave to which a national system employee is entitled under section 81A.

paid personal/carer’s leave means paid personal/carer’s leave to which a national system employee is entitled under section 96.

paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).

part deferral declaration, in relation to a minimum standards order: see subsection 536KQA(2).

part deferral declaration, in relation to a road transport contractual chain order: see subsection 536PU(2).

part deferral determination, in relation to a road transport minimum standards order: see subsection 536KQJ(2).

part deferral determination, in relation to a road transport contractual chain order: see subsection 536QB(2).

partial work ban: see subsection 470(3).

part of a single enterprise: see subsection 168A(6).

part suspension declaration, in relation to a minimum standards order: see subsection 536KQD(2).

part suspension declaration, in relation to a road transport contractual chain order: see subsection 536PX(2).

part suspension determination, in relation to a road transport minimum standards order: see subsection 536KQP(2).

part suspension determination, in relation to a road transport contractual chain order: see subsection 536QG(2).

passes the better off overall test:

(a) in relation to an enterprise agreement that is not a greenfields agreement: see subsection 193(1); and

(b) in relation to a greenfields agreement: see subsection 193(3).

pattern bargaining: see section 412.

peak council means a national or State council or federation that is effectively representative of a significant number of organisations (within the ordinary meaning of the term) representing employers or employees in a range of industries.

pecuniary penalty order means an order under subsection 546(1).

penalty unit has the meaning given by section 4AA of the Crimes Act 1914.

period of employment: see section 384.

permissible occasion: see sections 102 and 104.

permit holder means a person who holds an entry permit.

permit qualification matters: see subsection 513(1).

permitted matters in relation to an enterprise agreement: see subsection 172(1).

pieceworker: see section 21.

pilot, in relation to an aircraft, includes a pilot in command, co‑pilot or pilot of any other description.

post‑declaration negotiating period: see subsection 235A(1).

post‑industrial action negotiating period: see subsection 266(3).

premises includes:

(a) any land, building, structure, mine, mine working, aircraft, ship, vessel, vehicle or place; and

(b) a part of premises (including premises referred to in paragraph (a)).

pre‑parental leave position: an employee’s pre‑parental leave position, in relation to a particular period of unpaid parental leave, is:

(a) unless paragraph (b) applies, the position the employee held before starting the period of unpaid parental leave; or

(b) if, before starting the period of unpaid parental leave, the employee:

(i) was transferred to a safe job because of her pregnancy; or

(ii) reduced her working hours due to her pregnancy;

the position the employee held immediately before that transfer or reduction.

prescribed State industrial authority means a State board, court, tribunal, body or official prescribed by the regulations.

President means the President of the FWC.

primary party: see subsection 15RA(2).

procedural rules means the procedural rules of the FWC made under section 609.

process or proceedings under a workplace law or workplace instrument: see subsection 341(2).

prohibited beneficiary: see subsection 536F(5).

protected action ballot means a ballot conducted under Division 8 of Part 3‑3.

protected action ballot agent for a protected action ballot means the person or entity that conducts the protected action ballot.

protected action ballot order: see subsection 437(1).

protected employee for a termination of an enterprise agreement under section 226: see subsection 226A(2).

protected from unfair deactivation: see section 536LD.

protected from unfair dismissal: see section 382.

protected from unfair termination: see section 536LE.

protected industrial action: see section 408.

protected rate of pay: see section 306F.

public holiday: see section 115.

public sector employment: see subsections 795(4) and (5).

public sector employment law: see subsection 40(3).

reasonably foreseeable employee for an enterprise agreement: see subsection 193(5).

recognised emergency management body: see subsection 109(3).

recurring extended exemption period: see subsection 306K(2).

reduction in take‑home pay: see subsection 768BR(3).

re‑employment time, in relation to a transferring employee covered by a transfer of business referred to in Part 6‑3A: see subsection 768AE(3).

registered employee association means:

(a) an employee organisation; or

(b) an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under a State or Territory industrial law.

Registered Organisations Act means the Fair Work (Registered Organisations) Act 2009.

registered organisations officer or employee: see section 536E.

regular casual employee: a national system employee of a national system employer is a regular casual employee at a particular time if, at that time:

(a) the employee is a casual employee; and

(b) the employee has been employed by the employer on a regular and systematic basis.

regulated business: see section 15F.

regulated employee: see subsection 306E(5).

regulated host: see section 306C.

regulated labour hire arrangement order: see subsection 306E(1).

regulated road transport contractor: see section 15Q.

regulated worker: see section 15G.

reinstatement includes appointment by an associated entity in the circumstances provided for in an order to which subsection 391(1A) applies.

related body corporate has the meaning given by the Corporations Act 2001.

related offence provision means:

(a) section 6 of the Crimes Act 1914; or

(b) a provision of Part 2.4 of the Criminal Code;

to 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).

related party has the same meaning as in the Registered Organisations Act.

relevant affairs, in relation to a registered organisations officer or employee, means the affairs of:

(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

(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.

relevant belief: a person has a relevant belief in relation to a complaint about an FWC Member if:

(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:

(i) terminating the appointment of the FWC Member in accordance with section 641; or

(ii) (other than if the FWC Member is the President) suspending the FWC Member from office in accordance with section 642; or

(b) the person believes that if one or more of the circumstances that gave rise to the complaint were substantiated, the circumstances may:

(i) adversely affect, or have adversely affected, the performance of duties by the FWC Member; or

(ii) have the capacity to adversely affect, or have adversely affected, the reputation of the FWC.

Note: Sections 641 and 642 deal with termination of appointment and suspension on the grounds of misbehaviour or incapacity.

relevant employee organisation, in relation to a greenfields agreement, means an employee organisation that is entitled to represent the industrial interests of one or more of the employees who will be covered by the agreement, in relation to work to be performed under the agreement.

removed person: see subsections 177A(1) and (2).

respondent in relation to an alleged contravention of Division 2 of Part 3‑5A (prohibiting sexual harassment in connection with work): see subsection 527F(1).

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: see subsection 794C(4).

responsible franchisor entity for a franchisee entity: see subsection 558A(2).

responsible person, in relation to TCF work performed by a TCF outworker: see subsection 789CA(1).

right 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).

Note: Section 333M deals with the right to disconnect.

risk period: see subsections 81(1) and (5).

Road Transport Advisory Group: see section 40E.

road transport business: see section 15R.

road transport collective agreement: see subsection 536MK(5).

road transport contractual chain: see section 15RA.

road transport contractual chain guidelines: see section 536QP.

road transport contractual chain order: see section 536PD.

road transport employee‑like worker: see section 15RB.

road transport guidelines: see subsection 536KR(3).

road transport industry: see section 15S.

road transport industry contractual chain participant: see section 40H.

Road Transport Industry Termination Code means the code made under subsection 536LN(1).

road transport minimum standards order: see subsection 536JY(3).

safety net contractual entitlement means an entitlement under a contract between an employee and an employer that relates to any of the subject matters described in:

(a) subsection 61(2) (which deals with the National Employment Standards); or

(b) subsection 139(1) (which deals with modern awards).

Schedule of Approved Employer MySuper Products: see paragraph 156L(1)(a).

school age, for a child, means the age at which the child is required by a law of the State or Territory in which the child lives to attend school.

school‑based apprentice means a national system employee who is an apprentice to whom a school‑based training arrangement applies.

school‑based trainee means a national system employee (other than a school‑based apprentice) to whom a school‑based training arrangement applies.

school‑based training arrangement means a training arrangement undertaken as part of a course of secondary education.

scope order: see subsection 238(1).

secondary party: see subsection 15RA(2).

second employer, in relation to a transfer of employment: see subsection 22(7).

second stage test:

(a) in relation to a standard MySuper product—see subsection 156H(2); and

(b) in relation to an employer MySuper product—see section 156S.

section 15AA commencement: see subsection 15AB(8).

section 179A disclosable benefit: see subsection 179A(4).

section 179 disclosable benefit: see subsection 179(6).

selected 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).

serious contravention has the meaning given by section 557A.

serious misconduct has the meaning prescribed by the regulations.

service: see section 22.

services contract: see section 15H.

setting modern award minimum wages: see subsection 284(4).

Sex Discrimination Commissioner means the Sex Discrimination Commissioner appointed under the Sex Discrimination Act 1984.

sexual harassment court application: see subsection 527T(2).

sexual harassment FWC application: see subsection 734A(3).

sexually harass has the meaning given by section 28A of the Sex Discrimination Act 1984.

Note: 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).

ship includes a barge, lighter, hulk or other vessel.

single enterprise: see section 168A.

single‑enterprise agreement means an enterprise agreement made as referred to in subsection 172(2).

single interest employer 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.

single interest employer authorisation: see subsection 248(1).

small business employer: see section 23.

Small Business Fair Dismissal Code means the Small Business Fair Dismissal Code declared under subsection 388(1).

small claims proceedings means proceedings dealt with as small claims proceedings under section 548.

special measure to achieve equality: see subsections 195(4) to (6).

spouse includes a former spouse.

standard application period: see paragraph 156N(2)(a).

standard MySuper product: see subsection 23A(1A).

State award: see section 768AJ.

State collective employment agreement: see subsection 768AL(3).

State employment agreement: see subsections 768AL(1) and (2).

State individual employment agreement: see subsection 768AL(4).

State industrial instrument means an award, an agreement (whether individual or collective), or another industrial instrument or order, that:

(a) is made under, or recognised by, a law of a State that is a State or Territory industrial law; and

(b) determines terms and conditions of employment.

State industrial law means a law of a State that is a State or Territory industrial law.

state of mind: see subsection 793(3).

State or Territory industrial law: see subsection 26(2).

State or Territory OHS law: see subsection 494(3).

State or Territory OHS right: see subsection 494(2).

State public sector employee, of a State, means:

(a) an employee of a State public sector employer of the State; or

(b) any other non‑national system employee in the State of a kind specified in the regulations;

and includes a law enforcement officer of the State but does not include a local government employee of the State.

State public sector employer, of a State, means a non‑national system employer that is:

(a) the State, the Governor of the State or a Minister of the State; or

(b) a body corporate that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or

(c) a body corporate in which the State has a controlling interest; or

(d) a person who employs individuals for the purposes of an unincorporated body that is established for a public purpose by or under a law of the State, by the Governor of the State or by a Minister of the State; or

(e) any other employer in the State of a kind specified in the regulations;

and includes a non‑national system employer of a law enforcement officer of the State but does not include a local government employer of the State.

State reference public sector employee: see subsection 168E(3).

State reference public sector employer: see subsection 168E(4).

State reference public sector modern award: see subsection 168E(2).

State reference public sector modern awards objective: see section 168F.

step‑child: without limiting who is a step‑child of a person, someone who is a child of the person’s de facto partner is a step‑child of a person, if he or she would be the person’s step‑child except that the person is not legally married to the de facto partner.

stillborn: see subsection 77A(2).

stop sexual harassment order: see paragraph 527F(1)(a).

superannuation fund means a superannuation fund or a superannuation scheme.

supported 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.

supported bargaining authorisation: see subsection 242(1).

suspension declaration, in relation to a minimum standards order: see subsection 536KQD(1).

suspension declaration, in relation to a road transport contractual chain order: see subsection 536PX(1).

suspension determination, in relation to a road transport minimum standards order: see subsection 536KQN(1).

suspension determination, in relation to a road transport contractual chain order: see subsection 536QF(1).

tailored MySuper product: see subsection 23A(2).

take‑home pay: see subsection 768BR(2).

take‑home pay order: see subsection 768BS(1).

TCF award means an instrument prescribed by the regulations for the purposes of this definition.

TCF award worker: see subsection 483A(1A).

TCF contract outworker: see subsection 789BB(2).

TCF outwork code: see section 789DA.

TCF outworker means an outworker in the textile, clothing or footwear industry.

TCF work means work in the textile, clothing or footwear industry.

terminated: see section 536LL.

termination of industrial action instrument: see subsection 266(2).

termination time, in relation to a transferring employee covered by a transfer of business referred to in Part 6‑3A: see subsection 768AE(2).

territorial sea, in relation to Australia, has the meaning given by Division 1 of Part II of the Seas and Submerged Lands Act 1973.

Territory employer: see subsection 338(4).

test time: see subsection 193(6).

this Act includes the regulations.

time‑sensitive road transport contractual chain order means a road transport contractual chain order made or varied as a result of an emergency application.

trade and commerce employer: see subsection 338(3).

training arrangement means a combination of work and training that is subject to a training agreement, or a training contract, that takes effect under a law of a State or Territory relating to the training of employees.

transferable instrument: see subsection 312(1).

transfer of business:

(a) for a transfer of business between a national system employer and another national system employer—see subsection 311(1); and

(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).

transfer of employment: see subsection 22(7).

transfer of employment between associated entities: see paragraph 22(8)(a).

transfer of employment between non‑associated entities: see paragraph 22(8)(b).

transferring employee:

(a) in relation to a transfer of business referred to in Part 2‑8—see subsection 311(2); and

(b) in relation to a transfer of business referred to in Part 6‑3A—see subsection 768AE(1).

transferring work:

(a) in relation to a transfer of business referred to in Part 2‑8—see paragraph 311(1)(c); and

(b) in relation to a transfer of business referred to in Part 6‑3A—see paragraph 768AD(1)(c).

Transitional Act means the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

transport arrangement: see subsections 521B(1) and (2).

underpayment amount:

(a) in relation to a contravention of a civil remedy provision—see subsection 546A(2); and

(b) in relation to the commission of an offence against subsection 327A(1)—see subsection 327A(7).

unfair dismissal application: see subsection 729(2).

unfairly deactivated: see section 536LF.

unfairly dismissed: see section 385.

unfairly terminated: see section 536LK.

unfairness ground: see section 536JR.

unlawful term of an enterprise agreement: see section 194.

unlawful termination court application: see subsection 776(4).

unlawful termination FWC application: see subsection 730(2).

unpaid amount, in relation to TCF work performed by a TCF outworker: see subsections 789CA(1) and (4).

unpaid carer’s leave means unpaid carer’s leave to which a national system employee is entitled under section 102.

unpaid no safe job leave means unpaid no safe job leave to which a national system employee is entitled under section 82A.

unpaid parental leave means unpaid parental leave to which a national system employee is entitled under section 70.

unpaid pre‑adoption leave means unpaid pre‑adoption leave to which a national system employee is entitled under section 85.

unpaid special parental leave means unpaid special parental leave to which a national system employee is entitled under section 80.

varying modern award minimum wages: see subsection 284(4).

Vice President means a Vice President of the FWC.

vocational placement means a placement that is:

(a) undertaken with an employer for which a person is not entitled to be paid any remuneration; and

(b) undertaken as a requirement of an education or training course; and

(c) authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory.

voluntary emergency management activity: see subsection 109(2).

Voluntary Small Business Wage Compliance Code means the Voluntary Small Business Wage Compliance Code declared under subsection 327B(1).

volunteer of a designated emergency management body: see subsection 195A(6).

voting request order: see subsections 240A(1), (2) and (4).

waters above the continental shelf means any part of the area in, on or over the continental shelf.

waterside worker has the meaning given by clause 1 of Schedule 2 to the Workplace Relations Act 1996 as in force immediately before the commencement of this section.

worker:

(aa) in Part 3‑5A—see subsection 527D(2); and

(a) in Part 6‑4B—see subsection 789FC(2); and

(b) otherwise—has its ordinary meaning.

worker in a business or undertaking: see subsection 527D(3).

working day means a day that is not a Saturday, a Sunday or a public holiday.

workplace delegate: see subsection 350C(1).

workplace determination means:

(b) an industrial action related workplace determination; or

(c) an intractable bargaining workplace determination.

workplace instrument means an instrument that:

(a) is made under, or recognised by, a workplace law; and

(b) concerns the relationships between:

(i) employers and employees; or

(ii) digital labour platform operators and employee‑like workers; or

(iii) road transport businesses and regulated road transport contractors; or

(iv) persons in a road transport contractual chain.

workplace law means:

(a) this Act; or

(b) the Registered Organisations Act; or

(c) the Independent Contractors Act 2006; or

(d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).

workplace right: see subsection 341(1).

work value reasons: see subsection 157(2A).

13 Meaning of national system employee

A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

Note: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.

14 Meaning of national system employer

(1) A national system employer is:

(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or

(b) the Commonwealth, so far as it employs, or usually employs, an individual; or

(c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or

(d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

(i) a flight crew officer; or

(ii) a maritime employee; or

(iii) a waterside worker; or

(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

(f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.

Note 1: In this context, Australia includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see the definition of Australia in section 12).

Note 2: Sections 30D and 30N extend the meaning of national system employer in relation to a referring State.

Particular employers declared not to be national system employers

(2) Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:

(a) that employer:

(i) is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or

(ii) is a body established for a local government purpose by or under a law of a State or Territory; or

(iii) is a wholly‑owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and

(b) that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and

(c) an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer.

(3) Paragraph (2)(b) does not apply to an employer that is covered by a declaration by or under such a law only because it is included in a specified class or kind of employer.

Endorsement of declarations

(4) The Minister may, in writing:

(a) endorse, in relation to an employer, a declaration referred to in paragraph (2)(b); or

(b) revoke or amend such an endorsement.

(5) An endorsement, revocation or amendment under subsection (4) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the endorsement, revocation or amendment.

Note: 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).

Employers that cannot be declared

(6) Subsection (2) does not apply to an employer that:

(a) generates, supplies or distributes electricity; or

(b) supplies or distributes gas; or

(c) provides services for the supply, distribution or release of water; or

(d) operates a rail service or a port;

unless the employer is a body established for a local government purpose by or under a law of a State or Territory, or is a wholly‑owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, such a body.

(7) Subsection (2) does not apply to an employer if the employer is an Australian university (within the meaning of the Higher Education Support Act 2003) that is established by or under a law of a State or Territory.

14A Transitional matters relating to employers etc. becoming, or ceasing to be, national system employers etc.

(1) The regulations may make provisions of a transitional, application or saving nature in relation to any of the following:

(a) an employer ceasing to be a national system employer because subsection 14(2) applies to the employer;

(b) an individual ceasing to be a national system employee because an employer ceases to be a national system employer for the reason referred to in paragraph (a);

(c) an employer becoming a national system employer because subsection 14(2) ceases to apply to the employer;

(d) an individual becoming a national system employee because an employer becomes a national system employer for the reason referred to in paragraph (c).

(2) Without limiting subsection (1), regulations made for the purpose of that subsection may:

(a) modify provisions of this Act or the Transitional Act; or

(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.

15 Ordinary meanings of employee and employer

(1) A reference in this Act to an employee with its ordinary meaning:

(a) includes a reference to a person who is usually such an employee; and

(b) does not include a person on a vocational placement.

Note: Subsections 30E(1) and 30P(1) extend the meaning of employee in relation to a referring State.

(2) A reference in this Act to an employer with its ordinary meaning includes a reference to a person who is usually such an employer.

Note: Subsections 30E(2) and 30P(2) extend the meaning of employer in relation to a referring State.

15AA Determining the ordinary meanings of employee and employer

(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.

(2) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person:

(a) the totality of the relationship between the individual and the person must be considered; and

(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.

Note: 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.

(3) Subsections (1) and (2) do not apply to the following provisions of this Act:

(a) Divisions 2A and 2B of Part 1‑3;

(b) Part 3‑1, to the extent that Part 3‑1 applies only because of the operation of section 30G or 30R.

15AB Individual may elect that section 15AA does not apply

(1) This section applies to a relationship between a person and an individual.

Person may notify individual before the section 15AA commencement that they may give an opt out notice

(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.

Person may notify individual on or after the section 15AA commencement that they may give an opt out notice

(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.

Earnings requirement

(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.

Individual may give an opt out notice

(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:

(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

(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.

(6) The individual may give only one opt out notice in respect of the relationship.

Opt out notice to include a statement about earnings

(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.

Definitions

(8) In this section, and in sections 15AC and 15AD:

opt out notice means a notice under subsection (5).

section 15AA commencement means the commencement of section 15AA of this Act.

Note: 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.

15AC Effect of an opt out notice

(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.

Opt out notice given before the section 15AA commencement

(2) If the opt out notice is given before the section 15AA commencement, and is not revoked before that commencement under section 15AD, then:

(a) by force of this section, section 15AA does not start to apply to the relationship on that commencement; and

(b) section 15AA does not apply to the relationship after that commencement, unless the opt out notice is revoked.

Opt out notice given on or after the section 15AA commencement

(3) If the opt out notice is given on or after the section 15AA commencement, then:

(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

(b) section 15AA does not apply to the relationship on or after that day, unless the opt out notice is revoked.

Note: 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.

15AD Opt out notice may be revoked by an individual

(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.

Revocation before the section 15AA commencement

(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.

Revocation on or after the section 15AA commencement

(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.

(4) An individual may give only one revocation notice in respect of a particular relationship.

15A Meaning of casual employee

General rule

(1) An employee is a casual employee of an employer only if:

(a) the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and

(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.

Note: An employee who commences employment as a casual employee remains a casual employee until the occurrence of a specified event (see subsection (5)).

Indicia that apply for purposes of general rule

(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:

(a) on the basis of the real substance, practical reality and true nature of the employment relationship; and

(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

(c) having regard to, but not limited to, the following considerations (which may indicate the presence, rather than an absence, of such a commitment):

(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);

(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;

(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;

(iv) whether there is a regular pattern of work for the employee.

Note: 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.

(3) To avoid doubt:

(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

(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

(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).

Exceptions to general rule

(4) Despite subsection (1), an employee is not a casual employee of an employer if:

(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

(b) the employee is a member of the academic staff or teaching staff of a higher education institution; and

(c) the employee is covered by one of the following modern awards:

(i) the Higher Education Industry‑Academic Staff‑Award 2020 as in force from time to time;

(ii) the Higher Education Industry‑General Staff‑Award 2020 as in force from time to time; and

(d) the employee is not a State public sector employee of a State within the meaning of subsection 30A(1).

Note 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).

Note 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).

Employees engaged as casual employees remain so until the occurrence of a specified event

(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:

(a) the employee’s employment status is changed to full‑time employment or part‑time employment under Division 4A of Part 2‑2; or

(b) the employee’s employment status is changed by order of the FWC under section 66MA or 739; or

(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

(d) the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.

Division 3A—Definitions relating to regulated workers and persons in a road transport contractual chain

Subdivision A—General

15B Meaning of collective agreement

A collective agreement means the following:

(a) an employee‑like worker collective agreement (see subsection 536MK(4));

(b) a road transport collective agreement (see subsection 536MK(5)).

15C Meaning of contractor high income threshold

(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.

(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.

(3) If:

(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

(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;

the contractor high income threshold is the amount that it would be if the change had not occurred.

15D Meaning of minimum standards guidelines

Minimum standards guidelines means the following:

(a) employee‑like worker guidelines (see subsection 536KR(2));

(b) road transport guidelines (see subsection 536KR(3)).

15E Meaning of minimum standards order

A minimum standards order means the following:

(a) an employee‑like worker minimum standards order (see subsection 536JY(2));

(b) a road transport minimum standards order (see subsection 536JY(3)).

15F Meaning of regulated business

A person is a regulated business if:

(a) the person is a digital labour platform operator (see section 15M); or

(b) the person is a road transport business (see subsection 15R).

15G Meaning of regulated worker

A person is a regulated worker if:

(a) the person is an employee‑like worker (see section 15P); or

(b) the person is a regulated road transport contractor (see section 15Q).

15H Meaning of services contract

General meaning

(1) A services contract is a contract for services:

(a) that relates to the performance of work under the contract by an individual; and

(b) that has the requisite constitutional connection specified in subsection (2) or (3).

Note: Conditions or collateral arrangements relating to a services contract may be taken to be part of the services contract: see subsection (4).

The requisite constitutional connection

(2) A contract for services has the requisite constitutional connection if:

(a) at least one party to the contract is:

(i) a constitutional corporation; or

(ii) the Commonwealth or a Commonwealth authority; or

(iii) a body corporate incorporated in a Territory in Australia; or

(b) one or more of the following subparagraphs is satisfied:

(i) the work concerned is wholly or principally to be performed in a Territory in Australia;

(ii) the contract was entered into in a Territory in Australia;

(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;

(iv) the work concerned is done in the course of constitutional trade or commerce.

Note: 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).

(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:

(a) a constitutional corporation; or

(b) the Commonwealth or a Commonwealth authority; or

(c) a body corporate incorporated in a Territory in Australia; or

(d) a natural person who is resident in, or a body corporate that has its principal place of business in, a Territory in Australia.

Note: 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).

Conditions and collateral arrangements

(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.

15J Prospective regulated workers

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.

15K Effect of Chapter in determining whether a person is an employee or an employer

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:

(a) whether the individual is an employee of the person within the ordinary meaning of that expression; or

(b) whether the person is an employer of the individual within the ordinary meaning of that expression;

the 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.

15KA Specific provision about the effect of certain provisions in determining whether a person is an employee or an employer

(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:

(a) Part 3A‑3;

(b) the Digital Labour Platform Deactivation Code;

(c) an order made under, or for the purposes of, Chapter 3A.

(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:

(a) Part 3A‑3;

(b) the Road Transport Industry Termination Code;

(c) an order made under, or for the purposes of, Chapter 3A.

(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.

(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.

Subdivision B—Digital platform work

15L Meaning of digital labour platform

(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:

(a) the operator of the application, website or system:

(i) engages independent contractors directly or indirectly through or by means of the application, website or system; or

(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

(b) any of the following processes payments referable to the work performed by the independent contractors:

(i) the operator of the application, website or system;

(ii) an associated entity of the operator;

(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.

(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.

(3) A digital labour platform does not include an online application, website or system prescribed by the regulations for the purposes of this subsection.

(4) For the purposes of this section:

(a) an online application, website or system may be specified by name or by inclusion in a specified class or specified classes;

(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.

15M Meaning of digital labour platform operator

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.

15N Meaning of digital platform work

(1) Digital platform work means:

(a) work performed by an independent contractor, where:

(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

(ii) payment is made for that work; or

(b) work prescribed by the regulations for the purposes of this subsection.

(2) Digital platform work does not include work prescribed by the regulations for the purposes of this subsection.

(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.

15P Meaning of employee‑like worker

(1) A person is an employee‑like worker if:

(a) the person is:

(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

(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

(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

(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

(b) the person performs all, or a significant majority, of the work to be performed under the services contract; and

(c) the work that the person performs under the services contract is digital platform work; and

(d) the person does not perform any work under the services contract as an employee; and

(e) the person satisfies 2 or more of the following:

(i) the person has low bargaining power in negotiations in relation to the services contract under which the work is performed;

(ii) the person receives remuneration at or below the rate of an employee performing comparable work;

(iii) the person has a low degree of authority over the performance of the work;

(iv) the person has such other characteristics as are prescribed by the regulations.

(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).

(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.

(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.

Subdivision C—Road transport industry

15Q Meaning of regulated road transport contractor

(1) A person is a regulated road transport contractor if:

(a) the person is:

(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

(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

(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

(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

(b) the person performs all, or a significant majority, of the work to be performed under the services contract; and

(c) the person does not perform any work under the services contract as an employee; and

(d) the work performed under the services contract is work in the road transport industry; and

(e) the person is not an employee‑like worker who performs work in the road transport industry under the services contract.

(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).

15R Meaning of road transport business

(1) A person is a road transport business if the person:

(a) receives services under a services contract, where the services contract provides for the performance of work in the road transport industry; or

(b) is a constitutional corporation, or is included in a class of constitutional corporations, prescribed by the regulations for the purposes of this paragraph.

(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.

15RA Meanings of road transport contractual chain and in a road transport contractual chain

(1) A road transport contractual chain means a chain or series of contracts or arrangements:

(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

(b) in which at least one party to the first contract or arrangement in the chain or series is a constitutional corporation.

(2) A person is in a road transport contractual chain if:

(a) the person is a party (a primary party) to the first contract or arrangement in the road transport contractual chain; or

(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

(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.

(3) Despite subsection (2), an individual is not in a road transport contractual chain in relation to:

(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

(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

(c) work performed by the individual in the capacity of an employee; or

(d) work performed by the individual in an industry prescribed by the regulations for the purposes of this subsection.

(4) For the purposes of paragraph (3)(d):

(a) an industry may be specified by name or by inclusion in a specified class or specified classes; and

(b) an industry may be specified in respect of work in the road transport industry, or in respect of specified forms of such work.

(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:

(a) is taken to be performed for the person who engaged the regulated road transport contractor, road transport employee‑like worker or employee; and

(b) is also taken to be performed for each party to a contract or arrangement in the chain or series of contracts or arrangements.

(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.

(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:

(a) is a constitutional corporation; or

(b) is a party to a contract with a constitutional corporation; or

(c) is a national system employer to the extent that it engages national system employees to perform work in the road transport industry; or

(d) is a regulated business; or

(e) is engaged in constitutional trade or commerce; or

(f) is incorporated in a Territory; or

(g) is prescribed by the regulations.

15RB Meaning of a road transport employee‑like worker

A road transport employee‑like worker means an employee‑like worker who performs work in the road transport industry.

15S Meaning of road transport industry

(1) The road transport industry means:

(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

(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

(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

(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

(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

(f) any other industry (however described) prescribed by the regulations for the purposes of this paragraph.

(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.

Division 4—Other definitions

16 Meaning of base rate of pay

General meaning

(1) The base rate of pay of a national system employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not including any of the following:

(a) incentive‑based payments and bonuses;

(b) loadings;

(c) monetary allowances;

(d) overtime or penalty rates;

(e) any other separately identifiable amounts.

Meaning for pieceworkers in relation to entitlements under National Employment Standards

(2) Despite subsection (1), if one of the following paragraphs applies to a national system employee who is a pieceworker, the employee’s base rate of pay, in relation to entitlements under the National Employment Standards, is the base rate of pay referred to in that paragraph:

(a) a modern award applies to the employee and specifies the employee’s base rate of pay for the purposes of the National Employment Standards;

(b) an enterprise agreement applies to the employee and specifies the employee’s base rate of pay for the purposes of the National Employment Standards;

(c) the employee is an award/agreement free employee, and the regulations prescribe, or provide for the determination of, the employee’s base rate of pay for the purposes of the National Employment Standards.

Meaning for pieceworkers for the purpose of section 206

(3) The regulations may prescribe, or provide for the determination of, the base rate of pay, for the purpose of section 206, of an employee who is a pieceworker. If the regulations do so, the employee’s base rate of pay, for the purpose of that section, is as prescribed by, or determined in accordance with, the regulations.

Note: Section 206 deals with an employee’s base rate of pay under an enterprise agreement.

17 Meaning of child of a person

(1) A child of a person includes:

(a) someone who is a child of the person within the meaning of the Family Law Act 1975; and

(b) an adopted child or step‑child of the person.

It does not matter whether the child is an adult.

(2) If, under this section, one person is a child of another person, other family relationships are also to be determined on the basis that the child is a child of that other person.

Note: For example, for the purpose of leave entitlements in relation to immediate family under Division 7 of Part 2‑2 (which deals with personal/carer’s leave, compassionate leave and paid family and domestic violence leave):

(a) the other person is the parent of the child, and so is a member of the child’s immediate family; and

(b) the child, and any other children, of the other person are siblings, and so are members of each other’s immediate family.

17A Meaning of directly and indirectly (in relation to TCF work)

(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:

(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);

(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).

(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).

(3) This section does not apply for the purposes of Division 2A or 2B of Part 1‑3.

18 Meaning of full rate of pay

General meaning

(1) The full rate of pay of a national system employee is the rate of pay payable to the employee, including all the following:

(a) incentive‑based payments and bonuses;

(b) loadings;

(c) monetary allowances;

(d) overtime or penalty rates;

(e) any other separately identifiable amounts.

Meaning for pieceworkers in relation to entitlements under National Employment Standards

(2) However, if one of the following paragraphs applies to a national system employee who is a pieceworker, the employee’s full rate of pay, in relation to entitlements under the National Employment Standards, is the full rate of pay referred to in that paragraph:

(a) a modern award applies to the employee and specifies the employee’s full rate of pay for the purposes of the National Employment Standards;

(b) an enterprise agreement applies to the employee and specifies the employee’s full rate of pay for the purposes of the National Employment Standards;

(c) the employee is an award/agreement free employee, and the regulations prescribe, or provide for the determination of, the employee’s full rate of pay for the purposes of the National Employment Standards.

19 Meaning of industrial action

(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d) the lockout of employees from their employment by the employer of the employees.

Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

(2) However, industrial action does not include the following:

(a) action by employees that is authorised or agreed to by the employer of the employees;

(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

(c) action by an employee if:

(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.

Note: In this section, employee and employer have their ordinary meanings (see section 11).

19A Meaning of industrial action: regulated workers

(1) This section applies to a regulated worker and to a regulated business if:

(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

(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

(c) if the regulated business is a digital labour platform operator—the regulated worker is an employee‑like worker:

(i) from whom the digital labour platform operator receives services under a services contract; or

(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

(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.

(2) Industrial action, in relation to the regulated worker and the regulated business, means action of any of the following kinds:

(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;

(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;

(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;

(d) the lockout of the regulated worker by the regulated business.

(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).

(4) However, industrial action does not include the following:

(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;

(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;

(c) action by the regulated worker, if:

(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

(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.

(5) A regulated business locks out a regulated worker if either or both of the following apply:

(a) the regulated business prevents the regulated worker from performing work under a services contract without terminating the contract;

(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.

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

Agreed ordinary hours of work

(1) The ordinary hours of work of an award/agreement free employee are the hours agreed by the employee and his or her national system employer as the employee’s ordinary hours of work.

If there is no agreement

(2) If there is no agreement about ordinary hours of work for an award/agreement free employee, the ordinary hours of work of the employee in a week are:

(a) for a full‑time employee—38 hours; or

(b) for an employee who is not a full‑time employee—the lesser of:

(i) 38 hours; and

(ii) the employee’s usual weekly hours of work.

If the agreed hours are less than usual weekly hours

(3) If, for an award/agreement free employee who is not a full‑time employee, there is an agreement under subsection (1) between the employee and his or her national system employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work, the ordinary hours of work of the employee in a week are the lesser of:

(a) 38 hours; and

(b) the employee’s usual weekly hours of work.

Regulations may prescribe usual weekly hours

(4) For an award/agreement free employee who is not a full‑time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of subsections (2) and (3).

21 Meaning of pieceworker

(1) A pieceworker is:

(a) a national system employee to whom a modern award applies and who is defined or described in the award as a pieceworker; or

(b) a national system employee to whom an enterprise agreement applies and who is defined or described in the agreement as a pieceworker; or

(c) an award/agreement free employee who is in a class of employees prescribed by the regulations as pieceworkers.

Note: Sections 197 and 198 affect whether the FWC may approve an enterprise agreement covering a national system employee that includes a term that:

(a) defines or describes the employee as a pieceworker, if the employee is covered by a modern award that is in operation and does not include such a term; or

(b) does not define or describe the employee as a pieceworker, if the employee is covered by a modern award that is in operation and includes such a term.

(2) Without limiting the way in which a class may be described for the purposes of paragraph (1)(c), the class may be described by reference to one or more of the following:

(a) a particular industry or part of an industry;

(b) a particular kind of work;

(c) a particular type of employment.

22 Meanings of service and continuous service

General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2‑2 (which deals with community service leave); or

(ii) a period of stand down under Part 3‑5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.

Meaning for Divisions 4 and 5, and Subdivision A of Division 11, of Part 2‑2

(4) For the purposes of Divisions 4 and 5, and Subdivision A of Division 11, of Part 2‑2:

(a) a period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include:

(i) any period of unauthorised absence; or

(ii) any other period of a kind prescribed by the regulations; and

(b) a period referred to in subparagraph (a)(i) or (ii) does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service; and

(c) subsections (1), (2) and (3) do not apply.

Note: Divisions 4 and 5, and Subdivision A of Division 11, of Part 2‑2 deal, respectively, with requests for flexible working arrangements, parental leave and related entitlements, and notice of termination or payment in lieu of notice.

(4A) Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly.

When service with one employer counts as service with another employer

(5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee:

(a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and

(b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer (taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer.

Note: This subsection does not apply to a transfer of employment between non‑associated entities, for the purpose of Division 6 of Part 2‑2 (which deals with annual leave) or Subdivision B of Division 11 of Part 2‑2 (which deals with redundancy pay), if the second employer decides not to recognise the employee’s service with the first employer for the purpose of that Division or Subdivision (see subsections 91(1) and 122(1)).

(6) If the national system employee has already had the benefit of an entitlement the amount of which was calculated by reference to a period of service with the first employer, subsection (5) does not result in that period of service with the first employer being counted again when calculating the employee’s entitlements of that kind as an employee of the second employer.

Note: For example:

(a) the accrued paid annual leave to which the employee is entitled as an employee of the second employer does not include any period of paid annual leave that the employee has already taken as an employee of the first employer; and

(b) if an employee receives notice of termination or payment in lieu of notice in relation to a period of service with the first employer, that period of service is not counted again in calculating the amount of notice of termination, or payment in lieu, to which the employee is entitled as an employee of the second employer.

Meaning of transfer of employment etc.

(7) There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:

(a) the following conditions are satisfied:

(i) the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer;

(ii) the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or

(b) the following conditions are satisfied:

(i) the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;

(ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.

Note: Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer.

(8) A transfer of employment:

(a) is a transfer of employment between associated entities if paragraph (7)(a) applies; and

(b) is a transfer of employment between non‑associated entities if paragraph (7)(b) applies.

23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.

23A Terms relating to superannuation

(1) MySuper product has the meaning given by the Superannuation Industry (Supervision) Act 1993.

(1A) A standard MySuper product is a MySuper product that is not an employer MySuper product.

(1B) An employer MySuper product is a tailored MySuper product or a corporate MySuper product.

(2) A tailored MySuper product is a MySuper product in relation to which section 29TB of the Superannuation Industry (Supervision) Act 1993 is satisfied.

(3) A corporate MySuper product is a MySuper product that is offered by a superannuation fund that:

(a) is a standard employer‑sponsored fund (within the meaning of the Superannuation Industry (Supervision) Act 1993); and

(b) is not a public offer superannuation fund (within the meaning of that Act); and

(c) has:

(i) one standard employer‑sponsor (within the meaning of that Act); or

(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.

(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.

23B Meaning of general building and construction work

(1) Work is general building and construction work if:

(a) the work is done, onsite, by an employee in the industry of:

(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

(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

(b) the work is not any of the following:

(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;

(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;

(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;

(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;

(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;

(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;

(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;

(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;

(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;

(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;

(xii) work in connection with the installation, major modernisation, servicing, repair or maintenance of lifts and escalators, or air‑conditioning or ventilation;

(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;

(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.

(2) The applicable time is the start of the day before this section commences.

Part 1‑3—Application of this Act

24 Guide to this Part

This Part deals with the extent of the application of this Act.

Division 2 is about how this Act affects the operation of certain State or Territory laws.

Divisions 2A and 2B are about the extended application of this Act in States that have referred to the Parliament of the Commonwealth matters relating to this Act.

Division 3 is about the geographical application of this Act.

Division 4 deals with other matters relating to the application of this Act.

25 Meanings of employee and employer

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

Note: 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.

26 Act excludes State or Territory industrial laws

(1) This Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer.

(2) A State or Territory industrial law is:

(a) a general State industrial law; or

(b) an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes:

(i) regulating workplace relations (including industrial matters, industrial activity, collective bargaining, industrial disputes and industrial action);

(ii) providing for the establishment or enforcement of terms and conditions of employment;

(iii) providing for the making and enforcement of agreements (including individual agreements and collective agreements), and other industrial instruments or orders, determining terms and conditions of employment;

(iv) prohibiting conduct relating to a person’s membership or non‑membership of an industrial association;

(v) providing for rights and remedies connected with the termination of employment;

(vi) providing for rights and remedies connected with conduct that adversely affects an employee in his or her employment; or

(c) a law of a State or Territory that applies to employment generally and deals with leave (other than long service leave or leave for victims of crime); or

(d) a law of a State or Territory providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal or comparable value; or

(e) a law of a State or Territory providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair; or

(f) a law of a State or Territory that entitles a representative of a trade union to enter premises; or

(g) an instrument made under a law described in paragraph (a), (b), (c), (d), (e) or (f), so far as the instrument is of a legislative character; or

(h) either of the following:

(i) a law that is a law of a State or Territory;

(ii) an instrument of a legislative character made under such a law;

that is prescribed by the regulations.

(3) Each of the following is a general State industrial law:

(a) the Industrial Relations Act 1996 of New South Wales;

(b) the Industrial Relations Act 1999 of Queensland;

(c) the Industrial Relations Act 1979 of Western Australia;

(d) the Fair Work Act 1994 of South Australia;

(e) the Industrial Relations Act 1984 of Tasmania.

(4) A law or an Act of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to:

(a) all employers and employees in the State or Territory; or

(b) all employers and employees in the State or Territory except those identified (by reference to a class or otherwise) by a law of the State or Territory.

For this purpose, it does not matter whether or not the law also applies to other persons, or whether or not an exercise of a power under the law affects all the persons to whom the law applies.