15Ordinary meanings of employee and employer

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.