Fair Work Act 2009

No. 28, 2009

An Act relating to workplace relations, and for related purposes

[Assented to 7 April 2009]

The Parliament of Australia enacts:

Chapter 1—Introduction

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, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

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

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

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

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

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

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

(d) provides for the administration of this Act by establishing Fair Work Australia and the Office of the Fair Work Ombudsman (Chapter 5); and

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

Overview of the rest of this Chapter

(2) The rest of this Chapter deals with:

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

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

Definitions

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

5 Terms and conditions of employment (Chapter 2)

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

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

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

Main terms and conditions

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

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

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

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

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

Other terms and conditions

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

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

(b) provided by Part 2‑9 (which deals with the frequency and method of making payments to employees, deductions from payments and high‑income employees).

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

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

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

(a) protects workplace rights; and

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

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

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

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

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

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

(a) termination of employment; and

(b) keeping records and giving payslips.

7 Compliance and enforcement (Chapter 4)

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

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

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

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

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

8 Administration (Chapter 5)

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

(2) Part 5‑1 is about FWA. It:

(a) establishes and confers functions on FWA; and

(b) sets out how matters before FWA are to be conducted (for example, how FWA is to deal with applications made to it).

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

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

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

9 Miscellaneous (Chapter 6)

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

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

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

(4) Part 6‑3 extends the National Employment Standards relating to unpaid parental leave and notice of termination to non‑national system employees.

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

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

Part 1‑2—Definitions

Division 1—Introduction

10 Guide to this Part

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

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

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

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

11 Meanings of employee and employer

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

Division 2—The Dictionary

12 The Dictionary

In this Act:

4 yearly review of modern awards: see subsection 156(1).

access period for a proposed enterprise agreement: see subsection 180(4).

action includes an omission.

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

adverse action: see section 342.

affected employees for a variation of an enterprise agreement: see subsection 207(2).

affected employer:

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

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

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

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

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

affected member certificate: see subsection 520(1).

agreed terms for a workplace determination: see section 274.

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

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

annual wage review: see subsection 285(1).

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

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

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

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

applies:

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

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

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

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

appropriate safe job: see subsection 81(4).

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

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

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

Australian employer: see subsection 35(1).

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

authority documents: see subsection 489(3).

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

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

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

award modernisation process means the process of making modern awards under Part 10A of the Workplace Relations Act 1996, as in force immediately before the commencement of Part 2‑3 of this Act (which deals with modern awards).

bargaining order: see subsection 229(1).

bargaining related workplace determination: see subsection 269(1).

bargaining representative for a proposed enterprise agreement: see section 176.

bargaining services: see subsection 353(3).

bargaining services fee: see subsection 353(2).

base rate of pay: see section 16.

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

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

civil remedy provision: see subsection 539(1).

Commissioner means a Commissioner of FWA.

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

Commonwealth authority means:

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

(b) a body corporate:

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

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

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

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

compliance powers: see section 703.

compliance purposes: see subsection 706(1).

conduct includes an omission.

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

consent low‑paid workplace determination: see subsection 260(2).

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

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

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

constitutional trade or commerce means trade or commerce:

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

(b) among the States; or

(d) between 2 Territories; or

(e) within a Territory.

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

continuous service has a meaning affected by section 22.

coverage terms in relation to a modern award: see subsection 143(1).

covers:

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

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

day of placement: see subsection 67(6).

de facto partner of a national system employee:

(a) means a person who, although not legally married to the employee, lives with the employee in a relationship as a couple on a genuine domestic basis (whether the employee and the person are of the same sex or different sexes); and

(b) includes a former de facto partner of the employee.

Deputy President means a Deputy President of FWA.

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

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

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

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

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

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

(f) any other terms prescribed by the regulations.

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

discriminatory term of an enterprise agreement: see section 195.

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

dismissed: see section 386.

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

eligible community service activity: see section 109.

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

(a) a District, County or Local Court;

(b) a magistrates court;

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

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

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

Note 2: If the term has its ordinary meaning, see further subsection 15(1).

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

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

employee organisation means an organisation of employees.

employee record, in relation to an employee, has the meaning given by the Privacy Act 1988.

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

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

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

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

Note 2: If the term has its ordinary meaning, see further subsection 15(2).

employer organisation means an organisation of employers.

employer response action: see section 411.

employing authority: see subsection 795(6).

engages in industrial activity: see section 347.

enterprise means a business, activity, project or undertaking.

enterprise agreement means:

(a) a single‑enterprise agreement; or

(b) a multi‑enterprise agreement.

entry notice: see subsection 487(2).

entry permit: see section 512.

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

equal remuneration order: see subsection 302(1).

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

exemption certificate: see subsection 519(1).

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

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

Fair Work Australia or FWA means the body established by section 575.

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

Fair Work Inspector means:

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

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

fair work instrument means:

(a) a modern award; or

(b) an enterprise agreement; or

(d) an FWA order.

Federal Court means the Federal Court of Australia.

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

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

flexibility term:

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

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

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

franchise has the meaning given by the Corporations Act 2001.

Full Bench means a Full Bench of FWA constituted under section 618.

full rate of pay: see section 18.

FWA: see Fair Work Australia.

FWA Member means the President, a Deputy President, a Commissioner or a Minimum Wage Panel Member.

General Manager means the General Manager of FWA.

general protections court application: see subsection 370(2).

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

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

genuinely agreed in relation to an enterprise agreement: see section 188.

genuine redundancy: see section 389.

good faith bargaining requirements: see section 228.

greenfields agreement: see subsection 172(4).

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

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

high income employee: see section 329.

high income threshold: see section 333.

ILO means the International Labour Organization.

immediate family of a national system employee means:

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

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

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

independent contractor is not confined to an individual.

individual flexibility arrangement:

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

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

industrial action: see section 19.

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

industrial association means:

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

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

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

and includes:

(d) a branch of such an association; and

(e) an organisation; and

(f) a branch of an organisation.

industrial body means:

(a) FWA; or

(b) a court or commission (however described) performing or exercising, under an industrial law, functions and powers corresponding to those conferred on FWA by this Act; or

(c) a court or commission (however described) performing or exercising, under a workplace law, functions and powers corresponding to those conferred on FWA by Schedule 1 to the Workplace Relations Act 1996.

industrial law means:

(a) this Act; or

(b) Schedule 1 to the Workplace Relations Act 1996; or

(d) a State or Territory industrial law.

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

inspector means a Fair Work Inspector.

involved in: see section 550.

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

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

jury service pay: see subsection 111(6).

jury service summons: see subsection 111(7).

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

lock out: see subsection 19(3).

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

(a) the employee is a casual employee; and

(b) the employee has been employed by the employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months.

low‑paid authorisation: see subsection 242(1).

low‑paid workplace determination means:

(a) a consent low‑paid workplace determination; or

(b) a special low‑paid workplace determination.

made:

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

(b) in relation to a variation of an enterprise agreement: see section 209.

magistrates court means:

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

(b) a court constituted by an industrial magistrate.

majority support determination: see subsection 236(1).

maritime employee means a person who is, or whose occupation is that of, a master as defined in section 6 of the Navigation Act 1912, a seaman as so defined or a pilot as so defined.

medical certificate means a certificate signed by a medical practitioner.

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

membership action: see subsection 350(3).

minimum employment period: see section 383.

Minimum Wage Panel means the Minimum Wage Panel of FWA constituted under section 620.

Minimum Wage Panel Member means a Minimum Wage Panel Member of FWA.

minimum wages objective: see subsection 284(1).

miscellaneous modern award: see subsection 163(4).

model consultation term: see subsection 205(3).

model flexibility term: see subsection 202(5).

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

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

modern award powers: see subsection 134(2).

modern awards objective: see subsection 134(1).

modifications includes additions, omissions and substitutions.

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

named employer award: see subsection 312(2).

National Employment Standards: see subsection 61(3).

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

national system employee: see section 13.

national system employer: see section 14.

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

nominal expiry date:

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

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

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

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

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

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

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

non‑transferring employee of a new employer, in relation to a transfer of business: see subsection 314(2).

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

objectionable term means a term that:

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

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

either of the following:

(d) the payment of a bargaining services fee.

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

office, in an industrial association, means:

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

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

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

(ii) the determination of policy for the association;

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

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

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

(i) existing policy of the association; or

(ii) decisions concerning the association; or

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

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

(i) of the association; or

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

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

officer, of an industrial association, means:

(a) an official of the association; or

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

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

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

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

organisation means an organisation registered under Schedule 1 to the Workplace Relations Act 1996.

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;

(d) a body corporate incorporated in a Territory;

(e) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, 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 work is, or is reasonably likely, to be performed in the Territory or in connection with the activity carried on in the Territory.

Note: In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see paragraph 17(a) of the Acts Interpretation Act 1901).

outworker terms: see subsection 140(3).

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

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

paid no safe job leave means paid no safe job leave to which a national system employee is entitled under paragraph 81(3)(b).

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

partial work ban: see subsection 470(3).

passes the better off overall test:

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

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

pattern bargaining: see section 412.

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

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

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

period of employment: see section 384.

permissible occasion: see sections 102 and 104.

permit holder means a person who holds an entry permit.

permit qualification matters: see subsection 513(1).

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

pieceworker: see section 21.

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

post‑declaration negotiating period: see subsection 269(2).

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

premises includes:

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

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

pre‑parental leave position: see subsection 83(2).

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

President means the President of FWA.

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

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

prospective award covered employee for an enterprise agreement: see subsection 193(5).

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

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

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

protected from unfair dismissal: see section 382.

protected industrial action: see section 408.

public holiday: see section 115.

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

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

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

registered employee association means:

(a) an employee organisation; or

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

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

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

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

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

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

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

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

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

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

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

scope order: see subsection 238(1).

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

serious breach declaration: see section 234.

serious misconduct has the meaning prescribed by the regulations.

service: see section 22.

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

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

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

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

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

small business employer: see section 23.

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

special low‑paid workplace determination: see subsection 260(4).

spouse includes a former spouse.

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

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

(b) determines terms and conditions of employment.

state of mind: see subsection 793(3).

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

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

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

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

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

TCF outworker means an outworker in the textile, clothing or footwear industry whose work is covered by a TCF award.

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

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

Territory employer: see subsection 338(4).

test time: see subsection 193(6).

this Act includes the regulations.

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

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

transferable instrument: see subsection 312(1).

transfer of business: see subsection 311(1).

transfer of employment: see subsection 22(7).

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

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

transferring employee, in relation to a transfer of business: see subsection 311(2).

transferring work, in relation to a transfer of business: see paragraph 311(1)(c).

unfair dismissal application: see subsection 729(2).

unfairly dismissed: see section 385.

unlawful term of an enterprise agreement: see section 194.

unlawful termination court application: see subsection 778(2).

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

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

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

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

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

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

vocational placement means a placement that is:

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

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

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

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

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

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

workplace determination means:

(a) a low‑paid workplace determination; or

(b) an industrial action related workplace determination; or

workplace instrument means an instrument that:

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

(b) concerns the relationships between employers and employees.

workplace law means:

(a) this Act; or

(b) Schedule 1 to the Workplace Relations Act 1996; or

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

workplace right: see subsection 341(1).

work value reasons: see subsection 156(4).

Division 3—Definitions relating to the meanings of employee, employer etc.

13 Meaning of national system employee

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

14 Meaning of national system employer

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

(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: In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see paragraph 17(a) of the Acts Interpretation Act 1901).

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.

(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.

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;

(d) overtime or penalty rates;

(e) any other separately identifiable amounts.

Meaning for pieceworkers in relation to entitlements under National Employment Standards

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

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

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

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

Meaning for pieceworkers for the purpose of section 206

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

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

17 Meaning of child of a person

(1) A child of a person includes:

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

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

It does not matter whether the child is an adult.

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

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

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

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

18 Meaning of full rate of pay

General meaning

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

(a) incentive‑based payments and bonuses;

(b) loadings;

(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;

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

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

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

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

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

Agreed ordinary hours of work

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

If there is no agreement

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

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

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

(i) 38 hours; and

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

If the agreed hours are less than usual weekly hours

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

(a) 38 hours; and

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

Regulations may prescribe usual weekly hours

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

21 Meaning of pieceworker

(1) A pieceworker is:

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

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

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

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

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

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

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

(b) a particular kind of work;

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.

(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.

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 any period of unauthorised absence; and

(b) a period of unauthorised absence 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

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.

When service with one employer counts as service with another employer

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

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

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

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

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

Note: For example:

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

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

Meaning of transfer of employment etc.

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

(a) the following conditions are satisfied:

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

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

(b) the following conditions are satisfied:

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

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

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

(8) A transfer of employment:

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

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

23 Meaning of small business employer

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

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

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

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

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

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

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

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

Part 1‑3—Application of this Act

Division 1—Introduction

24 Guide to this Part

This Part deals with the extent of the application of this Act.

Division 2 is about how this Act affects the operation of certain State or Territory laws.

Division 3 is about the geographical application of this Act.

Division 4 deals with other matters relating to the application of this Act.

25 Meanings of employee and employer

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

Division 2—Interaction with State and Territory laws

26 Act excludes State or Territory industrial laws

(1) This Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer.

(2) A State or Territory industrial law is:

(a) a general State industrial law; or

(b) an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes:

(i) regulating workplace relations (including industrial matters, industrial activity, collective bargaining, industrial disputes and industrial action);

(ii) providing for the establishment or enforcement of terms and conditions of employment;

(iii) providing for the making and enforcement of agreements (including individual agreements and collective agreements), and other industrial instruments or orders, determining terms and conditions of employment;

(iv) prohibiting conduct relating to a person’s membership or non‑membership of an industrial association;

(v) providing for rights and remedies connected with the termination of employment;

(vi) providing for rights and remedies connected with conduct that adversely affects an employee in his or her employment; or

(c) a law of a State or Territory that applies to employment generally and deals with leave (other than long service leave or leave for victims of crime); or

(d) a law of a State or Territory providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal or comparable value; or

(e) a law of a State or Territory providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair; or

(f) a law of a State or Territory that entitles a representative of a trade union to enter premises; or

(g) an instrument made under a law described in paragraph (a), (b), (c), (d), (e) or (f), so far as the instrument is of a legislative character; or

(h) either of the following:

(i) a law that is a law of a State or Territory;

(ii) an instrument of a legislative character made under such a law;

that is prescribed by the regulations.

(3) Each of the following is a general State industrial law:

(a) the Industrial Relations Act 1996 of New South Wales;

(b) the Industrial Relations Act 1999 of Queensland;

(d) the Fair Work Act 1994 of South Australia;

(e) the Industrial Relations Act 1984 of Tasmania.

(4) A law or an Act of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to:

(a) all employers and employees in the State or Territory; or

(b) all employers and employees in the State or Territory except those identified (by reference to a class or otherwise) by a law of the State or Territory.

For this purpose, it does not matter whether or not the law also applies to other persons, or whether or not an exercise of a power under the law affects all the persons to whom the law applies.

27 State and Territory laws that are not excluded by section 26

(1A) Section 26 does not apply to any of the following laws:

(a) the Anti‑Discrimination Act 1977 of New South Wales;

(b) the Equal Opportunity Act 1995 of Victoria;

(d) the Equal Opportunity Act 1984 of Western Australia;

(e) the Equal Opportunity Act 1984 of South Australia;

(f) the Anti‑Discrimination Act 1998 of Tasmania;

(g) the Discrimination Act 1991 of the Australian Capital Territory;

(h) the Anti‑Discrimination Act of the Northern Territory.

(1) Section 26 does not apply to a law of a State or Territory so far as:

(b) the law is prescribed by the regulations as a law to which section 26 does not apply; or

(d) the law deals with rights or remedies incidental to:

(i) any matter covered by paragraph (a); or

(ii) any matter dealt with by a law to which paragraph (b) applies; or

(iii) any non‑excluded matters.

Note: Examples of incidental matters covered by paragraph (d) are entry to premises for a purpose connected with workers compensation, occupational health and safety or outworkers.

(2) The non‑excluded matters are as follows:

(a) superannuation;

(b) workers compensation;

(d) matters relating to outworkers (within the ordinary meaning of the term);

(e) child labour;

(f) training arrangements, except in relation to terms and conditions of employment to the extent that those terms and conditions are provided for by the National Employment Standards or may be included in a modern award;

(g) long service leave, except in relation to an employee who is entitled under Division 9 of Part 2‑2 to long service leave;

(h) leave for victims of crime;

(i) attendance for service on a jury, or for emergency service duties;

Note: See also section 112 for employee entitlements in relation to engaging in eligible community service activities.

(j) declaration, prescription or substitution of public holidays, except in relation to the rights and obligations of an employee or employer in relation to public holidays;

(k) the following matters relating to provision of essential services or to situations of emergency:

(i) directions to perform work (including to perform work at a particular time or place, or in a particular way);

(ii) directions not to perform work (including not to perform work at a particular time or place, or in a particular way);

(l) regulation of any of the following:

(i) employee associations;

(ii) employer associations;

(iii) members of employee associations or of employer associations;

(m) workplace surveillance;

(n) business trading hours;

(o) claims for enforcement of contracts of employment, except so far as the law in question provides for a matter to which paragraph 26(2)(e) applies;

(p) any other matters prescribed by the regulations.

28 Act excludes prescribed State and Territory laws

(1) This Act is intended to apply to the exclusion of a law of a State or Territory that is prescribed by the regulations.

(2) However, subsection (1) applies only so far as the law of the State or Territory would otherwise apply in relation to a national system employee or a national system employer.

(3) To avoid doubt, subsection (1) has effect even if the law is covered by section 27 (so that section 26 does not apply to the law). This subsection does not limit subsection (1).

29 Interaction of modern awards and enterprise agreements with State and Territory laws

(1) A modern award or enterprise agreement prevails over a law of a State or Territory, to the extent of any inconsistency.

(2) Despite subsection (1), a term of a modern award or enterprise agreement applies subject to the following:

(a) any law covered by subsection 27(1A);

(b) any law of a State or Territory so far as it is covered by paragraph 27(1)(b), (c) or (d).

(3) Despite subsection (2), a term of a modern award or enterprise agreement does not apply subject to a law of a State or Territory that is prescribed by the regulations as a law to which modern awards and enterprise agreements are not subject.

30 Act may exclude State and Territory laws etc. in other cases

This Division is not a complete statement of the circumstances in which this Act and instruments made under it are intended to apply to the exclusion of, or prevail over, laws of the States and Territories or instruments made under those laws.

Division 3—Geographical application of this Act

31 Exclusion of persons etc. insufficiently connected with Australia

(1) A provision of this Act prescribed by the regulations does not apply to a person or entity in Australia prescribed by the regulations as a person to whom, or an entity to which, the provision does not apply.

Note 1: In this context, Australia includes the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and the coastal sea (see section 15B and paragraph 17(a) of the Acts Interpretation Act 1901).

Note 2: The regulations may prescribe the person or entity by reference to a class (see subsection 13(3) of the Legislative Instruments Act 2003).

(2) Before the Governor‑General makes regulations for the purposes of subsection (1) prescribing either or both of the following:

(a) a provision of this Act that is not to apply to a person or entity;

(b) a person to whom, or an entity to which, a provision of this Act is not to apply;

the Minister must be satisfied that the provision should not apply to the person or entity in Australia because there is not a sufficient connection between the person or entity and Australia.

32 Regulations may modify application of this Act in certain parts of Australia

If the regulations prescribe modifications of this Act for its application in relation to all or part of any one or more of the following areas:

(a) all the waters of the sea on the landward side of the outer limits of the territorial sea of Australia, including:

(i) such waters within the limits of a State or Territory; and

(ii) the airspace over, and the seabed and sub‑soil beneath, such waters;

(b) the Territory of Christmas Island;

then this Act has effect as so modified in relation to any such area or part.

Note: This Act would, in the absence of any such regulations, apply in relation to these areas in the same way as it applies in relation to the rest of Australia.

33 Extension of this Act to the exclusive economic zone and the continental shelf

Extension to Australian ships etc.

(1) Without limiting subsection (3), this Act extends to or in relation to:

(a) any Australian ship in the exclusive economic zone or in the waters above the continental shelf; and

(b) any fixed platform in the exclusive economic zone or in the waters above the continental shelf; and

(i) supplies, services or otherwise operates in connection with a fixed platform in the exclusive economic zone or in the waters above the continental shelf; and

(ii) operates to and from an Australian port; and

(d) any ship, in the exclusive economic zone or in the waters above the continental shelf, that:

(i) is operated or chartered by an Australian employer; and

(ii) uses Australia as a base.

(2) For the purposes of extending this Act in accordance with paragraph (1)(d):

(a) any reference in a provision of this Act to an employer is taken to include a reference to an Australian employer; and

(b) any reference in a provision of this Act to an employee is taken to include a reference to an employee of an Australian employer.

Extensions prescribed by regulations

(3) Without limiting subsection (1), if the regulations prescribe further extensions of this Act, or specified provisions of this Act, to or in relation to the exclusive economic zone or to the waters above the continental shelf, then this Act extends accordingly.

Modifications relating to extended application

(4) Despite subsections (1) and (3), if the regulations prescribe modifications of this Act, or specified provisions of this Act, for its operation under subsection (1) or (3) in relation to one or both of the following:

(a) all or part of the exclusive economic zone;

(b) all or part of the continental shelf;

then, so far as this Act would, apart from this subsection, extend to the zone or part, or to the continental shelf or part, it has effect as so modified.

(5) For the purposes of subsection (4), the regulations may prescribe different modifications in relation to different parts of the exclusive economic zone or continental shelf.

34 Extension of this Act beyond the exclusive economic zone and the continental shelf

Extension to Australian ships etc.

(1) Without limiting subsection (3), this Act extends to or in relation to:

(a) any Australian ship outside the outer limits of the exclusive economic zone and the continental shelf; and

(b) any ship, outside the outer limits of the exclusive economic zone and the continental shelf, that:

(i) is operated or chartered by an Australian employer; and

(ii) uses Australia as a base.

(2) For the purposes of extending this Act in accordance with paragraph (1)(b):

(a) any reference in a provision of this Act to an employer is taken to include a reference to an Australian employer; and

(b) any reference in a provision of this Act to an employee is taken to include a reference to an employee of an Australian employer.

Extensions prescribed by regulations

(3) Without limiting subsection (1), if the regulations prescribe further extensions of this Act, or specified provisions of this Act, in relation to all or part of the area outside the outer limits of the exclusive economic zone and the continental shelf, then this Act, or the specified provisions, extend accordingly to:

(a) any Australian employer; and

(b) any Australian‑based employee.

(3A) For the purposes of extending this Act in accordance with subsection (3):

(a) any reference in a provision of this Act to an employer is taken to include a reference to:

(i) an Australian employer; and

(ii) an employer of an Australian‑based employee; and

(b) any reference in a provision of this Act to an employee is taken to include a reference to:

(i) an employee of an Australian employer; and

(ii) an Australian‑based employee.

Modified application in the area outside the outer limits of the exclusive economic zone and the continental shelf

(4) Despite subsections (1) and (3), if the regulations prescribe modifications of this Act, or specified provisions of this Act, for their operation under subsection (1) or (3) in relation to all or part of the area outside the outer limits of the exclusive economic zone and the continental shelf, then this Act, or the specified provisions, have effect as so modified in relation to the area or part.

(5) For the purposes of subsection (4), the regulations may prescribe different modifications in relation to different parts of the area outside the outer limits of the exclusive economic zone and the continental shelf.

35 Meanings of Australian employer and Australian‑based employee

(1) An Australian employer is an employer that:

(a) is a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or

(b) is a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or

(d) is a Commonwealth authority; or

(e) is a body corporate incorporated in a Territory; or

(f) carries on in Australia, in the exclusive economic zone or in the waters above the continental shelf an activity (whether of a commercial, governmental or other nature), and whose central management and control is in Australia; or

(g) is prescribed by the regulations.

(2) An Australian‑based employee is an employee:

(a) whose primary place of work is in Australia; or

(b) who is employed by an Australian employer (whether the employee is located in Australia or elsewhere); or

(3) However, paragraph (2)(b) does not apply to an employee who is engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories.

35A Regulations excluding application of Act

(1) Regulations made for the purposes of section 32 or subsection 33(4) or 34(4) may exclude the application of the whole of this Act in relation to all or a part of an area referred to in section 32 or subsection 33(4) or 34(4) (as the case may be).

(2) If subsection (1) applies, this Act has effect as if it did not apply in relation to that area or that part of that area.

36 Geographical application of offences

Division 14 (Standard geographical jurisdiction) of the Criminal Code does not apply in relation to an offence against this Act.

Note: The extended geographical application that this Division gives to this Act will apply to the offences in this Act.

Division 4—Miscellaneous

37 Act binds Crown

(1) This Act binds the Crown in each of its capacities.

(2) However, this Act does not make the Crown liable to be prosecuted for an offence.

38 Act not to apply so as to exceed Commonwealth power

(1) Unless the contrary intention appears, if a provision of this Act:

(a) would, apart from this section, have an application (an invalid application) in relation to:

(i) one or more particular persons, things, matters, places, circumstances or cases; or

(ii) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;

because of which the provision exceeds the Commonwealth’s legislative power; and

(b) also has at least one application (a valid application) in relation to:

(i) one or more particular persons, things, matters, places, circumstances or cases; or

(ii) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;

that, if it were the provision’s only application, would be within the Commonwealth’s legislative power;

it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.

(2) Despite subsection (1), the provision is not to have a particular valid application if:

(a) apart from this section, it is clear, taking into account the provision’s context and the purpose or object underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth’s legislative power; or

(b) the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth’s legislative power.

(3) Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).

(4) This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section.

39 Acquisition of property

This Act, or any instrument made under this Act, does not apply to the extent that the operation of this Act or the instrument would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph).

40 Interaction between fair work instruments and public sector employment laws

Generally, public sector employment laws prevail

(1) A public sector employment law prevails over a fair work instrument that deals with public sector employment, to the extent of any inconsistency.

When fair work instruments or their terms prevail

(2) However, a fair work instrument, or a term of a fair work instrument, that deals with public sector employment prevails over a public sector employment law, to the extent of any inconsistency, if:

(a) the instrument or term is prescribed by the regulations for the purposes of that particular law; or

(b) the instrument or term (other than an FWA order or a term of an FWA order) is included in a class of instruments or terms that are prescribed by the regulations for the purposes of that particular law.

Meaning of public sector employment law

(3) A public sector employment law is a law of the Commonwealth (other than this Act) or a Territory, or a term of an instrument made under such a law, that deals with public sector employment.

Laws that fair work instruments never prevail over

(4) Subsection (2) does not apply to any provisions of the following that are public sector employment laws:

(a) the Safety, Rehabilitation and Compensation Act 1988;

(b) the Superannuation Act 1976;

(d) the Superannuation Act 2005;

(e) the Superannuation (Productivity Benefit) Act 1988;

(f) an instrument made under a law referred to in any of the above paragraphs.

Relationship with section 29

(5) This section prevails over section 29, to the extent of any inconsistency.

Chapter 2—Terms and conditions of employment

Part 2‑1—Core provisions for this Chapter

Division 1—Introduction

41 Guide to this Part

This Part has the core provisions for this Chapter, which deals with terms and conditions of employment of national system employees. The main terms and conditions come from the National Employment Standards, modern awards, enterprise agreements and workplace determinations.

The National Employment Standards (Part 2‑2) are minimum terms and conditions that apply to all national system employees.

A modern award (see Part 2‑3), an enterprise agreement (see Part 2‑4) or a workplace determination (see Part 2‑5) provides terms and conditions for those national system employees to whom the award, agreement or determination applies. Only one of those instruments can apply to an employee at a particular time.

Division 2 has the provisions to enforce the National Employment Standards, modern awards and enterprise agreements. It also sets out when a modern award or enterprise agreement applies to a person and the significance of that for this Act.

Note: In most cases, this Act applies to a workplace determination as if it were an enterprise agreement in operation (see section 279). For the rules about workplace determinations, see Part 2‑5.

Division 3 deals with the interaction between the National Employment Standards, modern awards and enterprise agreements.

42 Meanings of employee and employer

In this Part, employee means a national system employee, and employer means a national system employer.

Division 2—Core provisions for this Chapter

Subdivision A—Terms and conditions of employment provided under this Act

43 Terms and conditions of employment provided under this Act

Main terms and conditions

(1) The main terms and conditions of employment of an employee that are provided under this Act are those set out in:

(a) the National Employment Standards (see Part 2‑2); and

(b) a modern award (see Part 2‑3), an enterprise agreement (see Part 2‑4) or a workplace determination (see Part 2‑5) that applies to the employee.

Note 1: The situations in which a workplace determination, rather than a modern award or enterprise agreement, provides an employee’s terms and conditions of employment are limited. In most cases, this Act applies to a workplace determination as if it were an enterprise agreement in operation (see section 279). See Part 2‑5 generally for the rules on workplace determinations.

Note 2: Part 2‑8 provides for the transfer of certain modern awards, enterprise agreements and workplace determinations if there is a transfer of business from an employee’s employer to another employer.

Other terms and conditions

(2) In addition, other terms and conditions of employment include:

(a) those terms and conditions arising from:

(i) a national minimum wage order (see Part 2‑6); or

(ii) an equal remuneration order (see Part 2‑7); and

(b) those terms and conditions provided by Part 2‑9.

Note: Part 2‑9 deals with miscellaneous terms and conditions of employment, such as payment of wages.

Subdivision B—Terms and conditions of employment provided by the National Employment Standards

44 Contravening the National Employment Standards

(1) An employer must not contravene a provision of the National Employment Standards.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) However, an order cannot be made under Division 2 of Part 4‑1 in relation to a contravention (or alleged contravention) of subsection 65(5) or 76(4).

Note 1: Subsections 65(5) and 76(4) state that an employer may refuse a request for flexible working arrangements, or an application to extend unpaid parental leave, only on reasonable business grounds.

Note 2: Modern awards and enterprise agreements include terms about settling disputes in relation to the National Employment Standards (other than disputes as to whether an employer had reasonable business grounds under subsection 65(5) or 76(4)).

Subdivision C—Terms and conditions of employment provided by a modern award

45 Contravening a modern award

A person must not contravene a term of a modern award.

Note 1: This section is a civil remedy provision (see Part 4‑1).

Note 2: A person does not contravene a term of a modern award unless the award applies to the person: see subsection 46(1).

46 The significance of a modern award applying to a person

(1) A modern award does not impose obligations on a person, and a person does not contravene a term of a modern award, unless the award applies to the person.

(2) A modern award does not give a person an entitlement unless the award applies to the person.

Note: Subsection (2) does not affect the ability of outworker terms in a modern award to be enforced under Part 4‑1 in relation to outworkers who are not employees.

47 When a modern award applies to an employer, employee, organisation or outworker entity

When a modern award applies to an employee, employer, organisation or outworker entity

(1) A modern award applies to an employee, employer, organisation or outworker entity if:

(a) the modern award covers the employee, employer, organisation or outworker entity; and

(b) the modern award is in operation; and

(c) no other provision of this Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity.

Note 1: Section 57 provides that a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.

Note 2: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).

Modern awards do not apply to high income employees

(2) However, a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee.

Modern awards apply to employees in relation to particular employment

(3) A reference in this Act to a modern award applying to an employee is a reference to the award applying to the employee in relation to particular employment.

48 When a modern award covers an employer, employee, organisation or outworker entity

When a modern award covers an employee, employer, organisation or outworker entity

(1) A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity.

Note: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).

Effect of other provisions of this Act, FWA orders or court orders on coverage

(2) A modern award also covers an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award covers the employee, employer, organisation or outworker entity:

(a) a provision of this Act;

(b) an FWA order made under a provision of this Act;

(3) Despite subsections (1) and (2), a modern award does not cover an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award does not cover the employee, employer or organisation or outworker entity:

(a) a provision of this Act;

(b) an FWA order made under a provision of this Act;

Modern awards that have ceased to operate

(4) Despite subsections (1) and (2), a modern award that has ceased to operate does not cover an employee, employer, organisation or outworker entity.

Modern awards cover employees in relation to particular employment

(5) A reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment.

49 When a modern award is in operation

When a modern award comes into operation

(1) A modern award comes into operation:

(a) on 1 July in the next financial year after it is made; or

(b) if it is made on 1 July in a financial year—on that day.

(2) However, if FWA specifies another day as the day on which the modern award comes into operation, it comes into operation on that other day. FWA must not specify another day unless it is satisfied that it is appropriate to do so.

(3) The specified day must not be earlier than the day on which the modern award is made.

When a determination revoking a modern award comes into operation

(4) A determination revoking a modern award comes into operation on the day specified in the determination.

(5) The specified day must not be earlier than the day on which the determination is made.

Modern awards and revocation determinations take effect from first full pay period

(6) A modern award, or a determination revoking a modern award, does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after the day the award or determination comes into operation.

Modern awards operate until revoked

(7) A modern award continues in operation until it is revoked.

Subdivision D—Terms and conditions of employment provided by an enterprise agreement

50 Contravening an enterprise agreement

A person must not contravene a term of an enterprise agreement.

Note 1: This section is a civil remedy provision (see Part 4‑1).

Note 2: A person does not contravene a term of an enterprise agreement unless the agreement applies to the person: see subsection 51(1).

51 The significance of an enterprise agreement applying to a person

(1) An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to the person.

(2) An enterprise agreement does not give a person an entitlement unless the agreement applies to the person.

52 When an enterprise agreement applies to an employer, employee or employee organisation

When an enterprise agreement applies to an employee, employer or organisation

(1) An enterprise agreement applies to an employee, employer or employee organisation if:

(a) the agreement is in operation; and

(b) the agreement covers the employee, employer or organisation; and

(c) no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.

Enterprise agreements apply to employees in relation to particular employment

(2) A reference in this Act to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to particular employment.

53 When an enterprise agreement covers an employer, employee or employee organisation

Employees and employers

(1) An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer.

Employee organisations

(2) An enterprise agreement covers an employee organisation:

(a) for an enterprise agreement that is not a greenfields agreement—if FWA has noted in its decision to approve the agreement that the agreement covers the organisation (see subsection 201(2)); or

(b) for a greenfields agreement—if the agreement is made by the organisation.

Effect of provisions of this Act, FWA orders and court orders on coverage

(3) An enterprise agreement also covers an employee, employer or employee organisation if any of the following provides, or has the effect, that the agreement covers the employee, employer or organisation:

(a) a provision of this Act;

(b) an FWA order made under a provision of this Act;

(4) Despite subsections (1), (2) and (3), an enterprise agreement does not cover an employee, employer or employee organisation if any of the following provides, or has the effect, that the agreement does not cover the employee, employer or organisation:

(a) another provision of this Act;

(b) an FWA order made under another provision of this Act;

Enterprise agreements that have ceased to operate

(5) Despite subsections (1), (2) and (3), an enterprise agreement that has ceased to operate does not cover an employee, employer or employee organisation.

Enterprise agreements cover employees in relation to particular employment

(6) A reference in this Act to an enterprise agreement covering an employee is a reference to the agreement covering the employee in relation to particular employment.

54 When an enterprise agreement is in operation

(1) An enterprise agreement approved by FWA operates from:

(a) 7 days after the agreement is approved; or

(b) if a later day is specified in the agreement—that later day.

(2) An enterprise agreement ceases to operate on the earlier of the following days:

(a) the day on which a termination of the agreement comes into operation under section 224 or 227;

(b) the day on which section 58 first has the effect that there is no employee to whom the agreement applies.

Note: Section 58 deals with when an enterprise agreement ceases to apply to an employee.

(3) An enterprise agreement that has ceased to operate can never operate again.

Division 3—Interaction between the National Employment Standards, modern awards and enterprise agreements

Subdivision A—Interaction between the National Employment Standards and a modern award or an enterprise agreement

55 Interaction between the National Employment Standards and a modern award or enterprise agreement

National Employment Standards must not be excluded

(1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.

Terms expressly permitted by Part 2‑2 or regulations may be included

(2) A modern award or enterprise agreement may include any terms that the award or agreement is expressly permitted to include:

(a) by a provision of Part 2‑2 (which deals with the National Employment Standards); or

(b) by regulations made for the purposes of section 127.

Note: In determining what is permitted to be included in a modern award or enterprise agreement by a provision referred to in paragraph (a), any regulations made for the purpose of section 127 that expressly prohibit certain terms must be taken into account.

(3) The National Employment Standards have effect subject to terms included in a modern award or enterprise agreement as referred to in subsection (2).

Note: See also the note to section 63 (which deals with the effect of averaging arrangements).

Ancillary and supplementary terms may be included

(4) A modern award or enterprise agreement may also include the following kinds of terms:

(a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;

(b) terms that supplement the National Employment Standards;

but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.

Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:

(a) under which, instead of taking paid annual leave at the rate of pay required by section 90, an employee may take twice as much leave at half that rate of pay; or

(b) that specify when payment under section 90 for paid annual leave must be made.

Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms:

(a) that increase the amount of paid annual leave to which an employee is entitled beyond the number of weeks that applies under section 87; or

(b) that provide for an employee to be paid for taking a period of paid annual leave or paid/personal carer’s leave at a rate of pay that is higher than the employee’s base rate of pay (which is the rate required by sections 90 and 99).

Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms requiring an employee to give more notice of the taking of unpaid parental leave than is required by section 74.

Enterprise agreements may include terms that have the same effect as provisions of the National Employment Standards

(5) An enterprise agreement may include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards, whether or not ancillary or supplementary terms are included as referred to in subsection (4).

Effect of terms that give an employee the same entitlement as under the National Employment Standards

(6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that the terms give an employee an entitlement (the award or agreement entitlement) that is the same as an entitlement (the NES entitlement) of the employee under the National Employment Standards:

(a) those terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit; and

(b) the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement.

Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year, the provisions of the National Employment Standards relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.

Terms permitted by subsection (4) or (5) do not contravene subsection (1)

(7) To the extent that a term of a modern award or enterprise agreement is permitted by subsection (4) or (5), the term does not contravene subsection (1).

Note: A term of a modern award has no effect to the extent that it contravenes this section (see section 56). An enterprise agreement that includes a term that contravenes this section must not be approved (see section 186) and a term of an enterprise agreement has no effect to the extent that it contravenes this section (see section 56).

56 Terms of a modern award or enterprise agreement contravening section 55 have no effect

A term of a modern award or enterprise agreement has no effect to the extent that it contravenes section 55.

Subdivision B—Interaction between modern awards and enterprise agreements

57 Interaction between modern awards and enterprise agreements

(1) A modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.

(2) If a modern award does not apply to an employee in relation to particular employment because of subsection (1), the award does not apply to an employer, or an employee organisation, in relation to the employee.

57A Designated outworker terms of a modern award continue to apply

(1) This section applies if, at a particular time:

(a) an enterprise agreement applies to an employer; and

(b) a modern award covers the employer (whether the modern award covers the employer in the employer’s capacity as an employer or an outworker entity); and

(2) Despite section 57, the designated outworker terms of the modern award apply at that time to the following:

(a) the employer;

(b) each employee who is both:

(i) a person to whom the enterprise agreement applies; and

(ii) a person who is covered by the modern award;

(3) To avoid doubt:

(a) designated outworker terms of a modern award can apply to an employer under subsection (2) even if none of the employees of the employer is an outworker; and

(b) to the extent to which designated outworker terms of a modern award apply to an employer, an employee or an employee organisation because of subsection (2), the modern award applies to the employer, employee or organisation.

Subdivision C—Interaction between one or more enterprise agreements

58 Only one enterprise agreement can apply to an employee

Only one enterprise agreement can apply to an employee

(1) Only one enterprise agreement can apply to an employee at a particular time.

General rule—later agreement does not apply until earlier agreement passes its nominal expiry date

(2) If:

(a) an enterprise agreement (the earlier agreement) applies to an employee in relation to particular employment; and

(b) another enterprise agreement (the later agreement) that covers the employee in relation to the same employment comes into operation; and

(c) subsection (3) (which deals with a single‑enterprise agreement replacing a multi‑enterprise agreement) does not apply;

then:

(d) if the earlier agreement has not passed its nominal expiry date:

(i) the later agreement cannot apply to the employee in relation to that employment until the earlier agreement passes its nominal expiry date; and

(ii) the earlier agreement ceases to apply to the employee in relation to that employment when the earlier agreement passes its nominal expiry date, and can never so apply again; or

(e) if the earlier agreement has passed its nominal expiry date—the earlier agreement ceases to apply to the employee when the later agreement comes into operation, and can never so apply again.

Special rule—single‑enterprise agreement replaces multi‑enterprise agreement

(3) Despite subsection (2), if:

(a) a multi‑enterprise agreement applies to an employee in relation to particular employment; and

(b) a single‑enterprise agreement that covers the employee in relation to the same employment comes into operation;

the multi‑enterprise agreement ceases to apply to the employee in relation to that employment when the single‑enterprise agreement comes into operation, and can never so apply again.

Part 2‑2—The National Employment Standards

Division 1—Introduction

59 Guide to this Part

This Part contains the National Employment Standards.

Division 2 identifies the National Employment Standards, the detail of which is set out in Divisions 3 to 12.

Division 13 contains miscellaneous provisions relating to the National Employment Standards.

The National Employment Standards are minimum standards that apply to the employment of national system employees. Part 2‑1 (which deals with the core provisions for this Chapter) contains the obligation for employers to comply with the National Employment Standards (see section 44).

The National Employment Standards also underpin what can be included in modern awards and enterprise agreements. Part 2‑1 provides that the National Employment Standards cannot be excluded by modern awards or enterprise agreements, and contains other provisions about the interaction between the National Employment Standards and modern awards or enterprise agreements (see sections 55 and 56).

Divisions 2 and 3 of Part 6‑3 extend the operation of the parental leave and notice of termination provisions of the National Employment Standards to employees who are not national system employees.

60 Meanings of employee and employer

In this Part, employee means a national system employee, and employer means a national system employer.

Division 2—The National Employment Standards

61 The National Employment Standards are minimum standards applying to employment of employees

(1) This Part sets minimum standards that apply to the employment of employees which cannot be displaced, even if an enterprise agreement includes terms of the kind referred to in subsection 55(5).

Note: Subsection 55(5) allows enterprise agreements to include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards.

(2) The minimum standards relate to the following matters:

(a) maximum weekly hours (Division 3);

(b) requests for flexible working arrangements (Division 4);

(d) annual leave (Division 6);

(e) personal/carer’s leave and compassionate leave (Division 7);

(f) community service leave (Division 8);

(g) long service leave (Division 9);

(h) public holidays (Division 10);

(i) notice of termination and redundancy pay (Division 11);

(j) Fair Work Information Statement (Division 12).

(3) Divisions 3 to 12 constitute the National Employment Standards.

Division 3—Maximum weekly hours

62 Maximum weekly hours

Maximum weekly hours of work

(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:

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

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

(i) 38 hours; and

(ii) the employee’s ordinary hours of work in a week.

Employee may refuse to work unreasonable additional hours

(2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.

Determining whether additional hours are reasonable

(3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:

(a) any risk to employee health and safety from working the additional hours;

(b) the employee’s personal circumstances, including family responsibilities;

(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;

(e) any notice given by the employer of any request or requirement to work the additional hours;

(f) any notice given by the employee of his or her intention to refuse to work the additional hours;

(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;

(h) the nature of the employee’s role, and the employee’s level of responsibility;

(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;

(j) any other relevant matter.

Authorised leave or absence treated as hours worked

(4) For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised:

(a) by the employee’s employer; or

(b) by or under a term or condition of the employee’s employment; or

63 Modern awards and enterprise agreements may provide for averaging of hours of work

A modern award or enterprise agreement may include terms providing for the averaging of hours of work over a specified period. The average weekly hours over the period must not exceed:

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

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

(i) 38 hours; and

(ii) the employee’s ordinary hours of work in a week.

Note: Hours in excess of the hours referred to in paragraph (a) or (b) that are worked in a week in accordance with averaging terms in a modern award or enterprise agreement will be treated as additional hours for the purpose of section 62, but the averaging terms will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).

64 Averaging of hours of work for award/agreement free employees

An employer and an award/agreement free employee may agree in writing to an averaging arrangement under which hours of work over a specified period of not more than 26 weeks are averaged. The average weekly hours over the specified period must not exceed:

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

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

(i) 38 hours; and

(ii) the employee’s ordinary hours of work in a week.

Note: Hours in excess of the hours referred to in paragraph (a) or (b) that are worked in a week in accordance with an agreed averaging arrangement will be treated as additional hours for the purpose of section 62, but the averaging arrangement will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).

Division 4—Requests for flexible working arrangements

65 Requests for flexible working arrangements

Employee may request change in working arrangements

(1) An employee who is a parent, or has responsibility for the care, of a child may request the employer for a change in working arrangements to assist the employee to care for the child if the child:

(a) is under school age; or

(b) is under 18 and has a disability.

Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

(2) The employee is not entitled to make the request unless:

(a) for an employee other than a casual employee—the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or

(b) for a casual employee—the employee:

(i) is a long term casual employee of the employer immediately before making the request; and

(ii) has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

Formal requirements

(3) The request must:

(a) be in writing; and

(b) set out details of the change sought and of the reasons for the change.

Agreeing to the request

(4) The employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request.

(5) The employer may refuse the request only on reasonable business grounds.

(6) If the employer refuses the request, the written response under subsection (4) must include details of the reasons for the refusal.

66 State and Territory laws that are not excluded

This Act is not intended to apply to the exclusion of laws of a State or Territory that provide employee entitlements in relation to flexible working arrangements, to the extent that those entitlements are more beneficial to employees than the entitlements under this Division.

Division 5—Parental leave and related entitlements

Subdivision A—General

67 General rule—employee must have completed at least 12 months of service

Employees other than casual employees

(1) An employee, other than a casual employee, is not entitled to leave under this Division (other than unpaid pre‑adoption leave) unless the employee has, or will have, completed at least 12 months of continuous service with the employer immediately before the date that applies under subsection (3).

Casual employees

(2) A casual employee, is not entitled to leave (other than unpaid pre‑adoption leave) under this Division unless:

(a) the employee is, or will be, a long term casual employee of the employer immediately before the date that applies under subsection (3); and

(b) but for:

(i) the birth or expected birth of the child; or

(ii) the placement or the expected placement of the child; or

(iii) if the employee is taking a period of unpaid parental leave that starts under subsection 71(6) or paragraph 72(3)(b) or 72(4)(b)—the taking of the leave;

the employee would have a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

Date at which employee must have completed 12 months of service

(3) For the purpose of subsections (1) and (2), the date that applies is:

(a) unless paragraph (b) or (c) applies:

(i) if the leave is birth‑related leave—the date of birth, or the expected date of birth, of the child; or

(ii) if the leave is adoption‑related leave—the day of placement, or the expected day of placement, of the child; or

(b) for an employee taking a period of unpaid parental leave that is to start within 12 months after the birth or placement of the child under subsection 71(6)—the date on which the employee’s period of leave is to start; or

(c) for a member of an employee couple taking a period of unpaid parental leave that is to start under paragraph 72(3)(b) or 72(4)(b) after the period of unpaid parental leave of the other member of the employee couple—the date on which the employee’s period of leave is to start.

Meaning of birth‑related leave

(4) Birth‑related leave means leave of either of the following kinds:

(a) unpaid parental leave taken in association with the birth of a child (see section 70);

(b) unpaid special maternity leave (see section 80).

Meaning of adoption‑related leave

(5) Adoption‑related leave means leave of either of the following kinds:

(a) unpaid parental leave taken in association with the placement of a child for adoption (see section 70);

(b) unpaid pre‑adoption leave (see section 85).

Meaning of day of placement

(6) The day of placement, in relation to the adoption of a child by an employee, means the earlier of the following days:

(a) the day on which the employee first takes custody of the child for the adoption;

(b) the day on which the employee starts any travel that is reasonably necessary to take custody of the child for the adoption.

68 General rule for adoption‑related leave—child must be under 16 etc.

An employee is not entitled to adoption‑related leave unless the child that is, or is to be, placed with the employee for adoption:

(a) is, or will be, under 16 as at the day of placement, or the expected day of placement, of the child; and

(b) has not, or will not have, lived continuously with the employee for a period of 6 months or more as at the day of placement, or the expected day of placement, of the child; and

(c) is not (otherwise than because of the adoption) a child of the employee or the employee’s spouse or de facto partner.

69 Transfer of employment situations in which employee is entitled to continue on leave etc.

(1) If:

(a) there is a transfer of employment in relation to an employee; and

(b) the employee has already started a period of leave under this Division when his or her employment with the first employer ends;

the employee is entitled to continue on that leave for the rest of that period.

(2) If:

(a) there is a transfer of employment in relation to an employee; and

(b) the employee has, in relation to the first employer, already taken a step that is required or permitted by a provision of this Division in relation to taking a period of leave;

the employee is taken to have taken the step in relation to the second employer.

Note: Steps covered by this subsection include (for example) giving the first employer notice under subsection 74(1), confirmation or advice under subsection 74(4) or evidence under subsection 74(5).

Subdivision B—Parental leave

70 Entitlement to unpaid parental leave

An employee is entitled to 12 months of unpaid parental leave if:

(a) the leave is associated with:

(i) the birth of a child of the employee or the employee’s spouse or de facto partner; or

(ii) the placement of a child with the employee for adoption; and

(b) the employee has or will have a responsibility for the care of the child.

Note 1: Entitlement is also affected by section 67 (which deals with length of the employee’s service) and, for adoption, section 68 (which deals with the age etc. of the adopted child).

Note 2: The 12 months is reduced by the amount of any unpaid special maternity leave the employee has taken (see subsection 80(7)).

71 The period of leave—other than for members of an employee couple who each intend to take leave

Application of this section

(1) This section applies to an employee who intends to take unpaid parental leave if:

(a) the employee is not a member of an employee couple; or

(b) the employee is a member of an employee couple, but the other member of the couple does not intend to take unpaid parental leave.

Leave must be taken in single continuous period

(2) The employee must take the leave in a single continuous period.

Note: An employee may take a form of paid leave at the same time as he or she is on unpaid parental leave (see section 79).

When birth‑related leave must start

(3) If the leave is birth‑related leave for a female employee who is pregnant with, or gives birth to, the child, the period of leave may start up to 6 weeks before the expected date of birth of the child, but must not start later than the date of birth of the child.

(4) If the leave is birth‑related leave but subsection (3) does not apply, the period of leave must start on the date of birth of the child.

When adoption‑related leave must start

(5) If the leave is adoption‑related leave, the period of leave must start on the day of placement of the child.

Leave may start later for employees whose spouse or de facto partner is not an employee

(6) Despite subsections (3) to (5), the period of leave may start at any time within 12 months after the date of birth or day of placement of the child if:

(a) the employee has a spouse or de facto partner who is not an employee; and

(b) the spouse or de facto partner has a responsibility for the care of the child for the period between the date of birth or day of placement of the child and the start date of the leave.

Note: An employee whose leave starts under subsection (6) is still entitled under section 76 to request an extension of the period of leave beyond his or her available parental leave period. However, the period of leave may not be extended beyond 24 months after the date of birth or day of placement of the child (see subsection 76(7)).

72 The period of leave—members of an employee couple who each intend to take leave

Application of this section

(1) This section applies to an employee couple if each of the employees intends to take unpaid parental leave.

Leave must be taken in single continuous period

(2) Each employee must take the leave in a single continuous period.

Note: An employee may take a form of paid leave at the same time as he or she is on unpaid parental leave (see section 79).

When birth‑related leave must start

(3) If the leave is birth‑related leave:

(a) one employee’s period of leave must start first, in accordance with the following rules:

(i) if the member of the employee couple whose period of leave starts first is a female employee who is pregnant with, or gives birth to, the child—the period of leave may start up to 6 weeks before the expected date of birth of the child, but must not start later than the date of birth of the child;

(ii) if subparagraph (i) does not apply—the period of leave must start on the date of birth of the child; and

(b) the other employee’s period of leave must start immediately after the end of the first employee’s period of leave (or that period as extended under section 75 or 76).

When adoption‑related leave must start

(4) If the leave is adoption‑related leave:

(a) one employee’s period of leave must start on the day of placement of the child; and

(b) the other employee’s period of leave must start immediately after the end of the first employee’s period of leave (or that period as extended under section 75 or 76).

Limited entitlement to take concurrent leave

(5) If one of the employees takes a period (the first employee’s period of leave) of unpaid parental leave in accordance with paragraph (3)(a) or (4)(a), the other employee may take a period of unpaid parental leave (the concurrent leave) during the first employee’s period of leave, if the concurrent leave complies with the following requirements:

(a) the concurrent leave must be for a period of 3 weeks or less;

(b) unless the employer agrees as referred to in paragraph (c), the concurrent leave must not start before, and must not end more than 3 weeks after:

(i) if the leave is birth‑related leave—the date of birth of the child; or

(ii) if the leave is adoption‑related leave—the day of placement of the child;

(i) start earlier than is permitted by paragraph (b); or

(ii) end up to 3 weeks later than is permitted by paragraph (b).

(6) Concurrent leave taken by an employee:

(a) is an exception to the rule that the employee must take his or her leave in a single continuous period (see subsection (2)); and

(b) is an exception to the rules about when the employee’s period of unpaid parental leave must start (see subsection (3) or (4)).

Note: The concurrent leave is unpaid parental leave and so comes out of the employee’s entitlement to 12 months of unpaid parental leave under section 70.

73 Pregnant employee may be required to take unpaid parental leave within 6 weeks before the birth

Employer may ask employee to provide a medical certificate

(1) If a pregnant employee who is entitled to unpaid parental leave (whether or not she has complied with section 74) continues to work during the 6 week period before the expected date of birth of the child, the employer may ask the employee to give the employer a medical certificate containing the following statements (as applicable):

(a) a statement of whether the employee is fit for work;

(b) if the employee is fit for work—a statement of whether it is inadvisable for the employee to continue in her present position during a stated period because of:

(i) illness, or risks, arising out of the employee’s pregnancy; or

(ii) hazards connected with the position.

Note: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

Employer may require employee to take unpaid parental leave

(2) The employer may require the employee to take a period of unpaid parental leave (the period of leave) as soon as practicable if:

(a) the employee does not give the employer the requested certificate within 7 days after the request; or

(b) within 7 days after the request, the employee gives the employer a medical certificate stating that the employee is not fit for work; or

(i) within 7 days after the request, the employee gives the employer a medical certificate stating that the employee is fit for work, but that it is inadvisable for the employee to continue in her present position for a stated period for a reason referred to in subparagraph (1)(b)(i) or (ii);

(ii) section 81 does not apply to the employee.

Note: If the medical certificate contains a statement as referred to in subparagraph (c)(i) and section 81 applies to the employee, the employee is entitled under that section to be transferred to a safe job, or to paid no safe job leave.

When the period of leave must end

(3) The period of leave must not end later than the earlier of the following:

(a) the end of the pregnancy;

(b) if the employee has given the employer notice of the taking of a period of leave connected with the birth of the child (whether it is unpaid parental leave or some other kind of leave)—the start date of that leave.

Special rules about the period of leave

(4) The period of leave:

(a) is an exception to the rule that the employee must take her unpaid parental leave in a single continuous period (see subsection 71(2) or 72(2)); and

(b) is an exception to the rules about when the employee’s period of unpaid parental leave must start (see subsections 71(3) and (6), or subsection 72(3)).

Note: The period of leave is unpaid parental leave and so comes out of the employee’s entitlement to 12 months of unpaid parental leave under section 70.

(5) The employee is not required to comply with section 74 in relation to the period of leave.

74 Notice and evidence requirements

Notice

(1) An employee must give his or her employer written notice of the taking of unpaid parental leave under section 71 or 72 by the employee.

(2) The notice must be given to the employer:

(a) at least 10 weeks before starting the leave; or

(b) if that is not practicable—as soon as practicable (which may be a time after the leave has started).

(3) The notice must specify the intended start and end dates of the leave.

Confirmation or change of intended start and end dates

(4) At least 4 weeks before the intended start date specified in the notice given under subsection (1), the employee must:

(a) confirm the intended start and end dates of the leave; or

(b) advise the employer of any changes to the intended start and end dates of the leave;

unless it is not practicable to do so.

Evidence

(5) An employee who has given his or her employer notice of the taking of unpaid parental leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person:

(a) if the leave is birth‑related leave—of the date of birth, or the expected date of birth, of the child; or

(b) if the leave is adoption‑related leave:

(i) of the day of placement, or the expected day of placement, of the child; and

(ii) that the child is, or will be, under 16 as at the day of placement, or the expected day of placement, of the child.

(6) Without limiting subsection (5), an employer may require the evidence referred to in paragraph (5)(a) to be a medical certificate.

Compliance

(7) An employee is not entitled to take unpaid parental leave under section 71 or 72 unless the employee complies with this section.

Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

75 Extending period of unpaid parental leave—extending to use more of available parental leave period

Application of this section

(1) This section applies if:

(a) an employee has, in accordance with section 74, given notice of the taking of a period of unpaid parental leave (the original leave period); and

(b) the original leave period is less than the employee’s available parental leave period; and

(2) The employee’s available parental leave period is 12 months, less any periods of the following kinds:

(a) a period of concurrent leave that the employee has taken in accordance with subsection 72(5);

(b) a period of unpaid parental leave that the employee has been required to take under subsection 73(2) or 82(2);

(d) a period of special maternity leave that the employee has taken.

First extension by giving notice to employer

(3) The employee may extend the period of unpaid parental leave by giving his or her employer written notice of the extension at least 4 weeks before the end date of the original leave period. The notice must specify the new end date for the leave.

(4) Only one extension is permitted under subsection (3).

Further extensions by agreement with employer

(5) If the employer agrees, the employee may further extend the period of unpaid parental leave one or more times.

No entitlement to extension beyond available parental leave period

(6) The employee is not entitled under this section to extend the period of unpaid parental leave beyond the employee’s available parental leave period.

76 Extending period of unpaid parental leave—extending for up to 12 months beyond available parental leave period

Employee may request further period of leave

(1) An employee who takes unpaid parental leave for his or her available parental leave period may request his or her employer to agree to an extension of unpaid parental leave for the employee for a further period of up to 12 months immediately following the end of the available parental leave period.

Making the request

(2) The request must be in writing, and must be given to the employer at least 4 weeks before the end of the available parental leave period.

Agreeing to the requested extension

(3) The employer must give the employee a written response to the request stating whether the employer grants or refuses the request. The response must be given as soon as practicable, and not later than 21 days, after the request is made.

(4) The employer may refuse the request only on reasonable business grounds.

(5) If the employer refuses the request, the written response under subsection (3) must include details of the reasons for the refusal.

Special rules for employee couples

(6) The following paragraphs apply in relation to a member of an employee couple extending a period of unpaid parental leave in relation to a child under this section:

(a) the request must specify any amount of unpaid parental leave and unpaid special maternity leave that the other member of the employee couple has taken, or will have taken, in relation to the child before the extension starts;

(b) the period of the extension cannot exceed 12 months, less any period of unpaid parental leave or unpaid special maternity leave that the other member of the employee couple has taken, or will have taken, in relation to the child before the extension starts;

(c) the amount of unpaid parental leave to which the other member of the employee couple is entitled under section 70 in relation to the child is reduced by the period of the extension.

No extension beyond 24 months after birth or placement

(7) Despite any other provision of this Division, the employee is not entitled to extend the period of unpaid parental leave beyond 24 months after the date of birth or day of placement of the child.

77 Reducing period of unpaid parental leave

If the employer agrees, an employee whose period of unpaid parental leave has started may reduce the period of unpaid parental leave he or she takes.

78 Employee who ceases to have responsibility for care of child

(1) This section applies to an employee who has taken unpaid parental leave in relation to a child if the employee ceases to have any responsibility for the care of the child.

(2) The employer may give the employee written notice requiring the employee to return to work on a specified day.

(3) The specified day:

(a) must be at least 4 weeks after the notice is given to the employee; and

(b) if the leave is birth‑related leave taken by a female employee who has given birth—must not be earlier than 6 weeks after the date of birth of the child.

(4) The employee’s entitlement to unpaid parental leave in relation to the child ends immediately before the specified day.

79 Interaction with paid leave

(1) This Subdivision (except for subsections (2) and (3)) does not prevent an employee from taking any other kind of paid leave while he or she is taking unpaid parental leave. If the employee does so, the taking of that other paid leave does not break the continuity of the period of unpaid parental leave.

Note: For example, if the employee has paid annual leave available, he or she may (with the employer’s agreement) take some or all of that paid annual leave at the same time as the unpaid parental leave.

(2) An employee is not entitled to take paid personal/carer’s leave or compassionate leave while he or she is taking unpaid parental leave.

(3) An employee is not entitled to any payment under Division 8 (which deals with community service leave) in relation to activities the employee engages in while taking unpaid parental leave.

Subdivision C—Other entitlements

80 Unpaid special maternity leave

Entitlement to unpaid special maternity leave

(1) A female employee is entitled to a period of unpaid special maternity leave if she is not fit for work during that period because:

(a) she has a pregnancy‑related illness; or

(b) she has been pregnant, and the pregnancy ends within 28 weeks of the expected date of birth of the child otherwise than by the birth of a living child.

Note: Entitlement is also affected by section 67 (which deals with the length of the employee’s service).

Notice and evidence

(2) An employee must give her employer notice of the taking of unpaid special maternity leave by the employee.

(3) The notice:

(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and

(b) must advise the employer of the period, or expected period, of the leave.

(4) An employee who has given her employer notice of the taking of unpaid special maternity leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for a reason specified in subsection (1).

(5) Without limiting subsection (4), an employer may require the evidence referred to in that subsection to be a medical certificate.

(6) An employee is not entitled to take unpaid special maternity leave unless the employee complies with subsections (2) to (4).

Taking of special maternity leave reduces entitlement to unpaid parental leave

(7) A female employee’s entitlement to 12 months of unpaid parental leave associated with the birth of a child (see section 70) is reduced by the amount of any unpaid special maternity leave taken by the employee while she was pregnant.

Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

81 Transfer to a safe job

Application of this section

(1) This section applies to a pregnant employee if:

(a) she is entitled to unpaid parental leave; and

(b) she has already complied with the notice and evidence requirements of section 74 for taking unpaid parental leave; and

(c) she gives her employer evidence that would satisfy a reasonable person that she is fit for work, but that it is inadvisable for her to continue in her present position during a stated period (the risk period) because of:

(i) illness, or risks, arising out of her pregnancy; or

(ii) hazards connected with that position.

Note: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

(2) Without limiting paragraph (1)(c), an employer may require the evidence referred to in that paragraph to be a medical certificate.

Employee entitled to appropriate safe job or paid no safe job leave during risk period

(3) If this section applies to an employee:

(a) if there is an appropriate safe job available—the employer must transfer the employee to that job for the risk period, with no other change to the employee’s terms and conditions of employment; or

(b) if there is no appropriate safe job available—the employee is entitled to take paid no safe job leave for the risk period.

(4) An appropriate safe job is a safe job that has:

(a) the same ordinary hours of work as the employee’s present position; or

(b) a different number of ordinary hours agreed to by the employee.

Payment to employee if transferred to appropriate safe job

(5) Without limiting paragraph (3)(a), if the employee is transferred to an appropriate safe job for the risk period, the employer must pay the employee for the safe job at the employee’s full rate of pay (for the position she was in before the transfer) for the hours that she works in the risk period.

Payment to employee if on paid no safe job leave

(6) If the employee takes paid no safe job leave for the risk period, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the risk period.

Risk period ends if pregnancy ends

(7) If the employee’s pregnancy ends before the end of the risk period, the risk period ends when the pregnancy ends.

82 Employee on paid no safe job leave may be asked to provide a further medical certificate

Employer may ask employee to provide a medical certificate

(1) If an employee is on paid no safe job leave during the 6 week period before the expected date of birth of the child, the employer may ask the employee to give the employer a medical certificate stating whether the employee is fit for work.

Note: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

Employer may require employee to take unpaid parental leave

(2) The employer may require the employee to take a period of unpaid parental leave (the period of leave) as soon as practicable if:

(a) the employee does not give the employer the requested certificate within 7 days after the request; or

(b) within 7 days after the request, the employee gives the employer a certificate stating that the employee is not fit for work.

Entitlement to paid no safe job leave ends

(3) When the period of leave starts, the employee’s entitlement to paid no safe job leave ends.

When the period of leave must end etc.

(4) Subsections 73(3), (4) and (5) apply to the period of leave.

83 Consultation with employee on unpaid parental leave

(1) If:

(a) an employee is on unpaid parental leave; and

(b) the employee’s employer makes a decision that will have a significant effect on the status, pay or location of the employee’s pre‑parental leave position;

the employer must take all reasonable steps to give the employee information about, and an opportunity to discuss, the effect of the decision on that position.

(2) The employee’s pre‑parental leave position is:

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

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

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

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

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

84 Return to work guarantee

On ending unpaid parental leave, an employee is entitled to return to:

(a) the employee’s pre‑parental leave position; or

(b) if that position no longer exists—an available position for which the employee is qualified and suited nearest in status and pay to the pre‑parental leave position.

85 Unpaid pre‑adoption leave

Entitlement to unpaid pre‑adoption leave

(1) An employee is entitled to up to 2 days of unpaid pre‑adoption leave to attend any interviews or examinations required in order to obtain approval for the employee’s adoption of a child.

Note: Entitlement is also affected by section 68 (which deals with the age etc. of the adopted child).

(2) However, an employee is not entitled to take a period of unpaid pre‑adoption leave if:

(a) the employee could instead take some other form of leave; and

(b) the employer directs the employee to take that other form of leave.

(3) An employee who is entitled to a period of unpaid pre‑adoption leave is entitled to take the leave as:

(a) a single continuous period of up to 2 days; or

(b) any separate periods to which the employee and the employer agree.

Notice and evidence

(4) An employee must give his or her employer notice of the taking of unpaid pre‑adoption leave by the employee.

(5) The notice:

(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and

(b) must advise the employer of the period, or expected period, of the leave.

(6) An employee who has given his or her employer notice of the taking of unpaid pre‑adoption leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken to attend an interview or examination as referred to in subsection (1).

(7) An employee is not entitled to take unpaid pre‑adoption leave unless the employee complies with subsections (4) to (6).

Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

Division 6—Annual leave

86 Division applies to employees other than casual employees

This Division applies to employees, other than casual employees.

87 Entitlement to annual leave

Amount of leave

(1) For each year of service with his or her employer, an employee is entitled to:

(a) 4 weeks of paid annual leave; or

(b) 5 weeks of paid annual leave, if:

(i) a modern award applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or

(ii) an enterprise agreement applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or

(iii) the employee qualifies for the shiftworker annual leave entitlement under subsection (3) (this relates to award/agreement free employees).

Note: Section 196 affects whether FWA may approve an enterprise agreement covering an employee, if the employee is covered by a modern award that is in operation and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

Accrual of leave

(2) An employee’s entitlement to paid annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.

Note: If an employee’s employment ends during what would otherwise have been a year of service, the employee accrues paid annual leave up to when the employment ends.

Award/agreement free employees who qualify for the shiftworker entitlement

(3) An award/agreement free employee qualifies for the shiftworker annual leave entitlement if:

(a) the employee:

(i) is employed in an enterprise in which shifts are continuously rostered 24 hours a day for 7 days a week; and

(ii) is regularly rostered to work those shifts; and

(iii) regularly works on Sundays and public holidays; or

(b) the employee is in a class of employees prescribed by the regulations as shiftworkers for the purposes of the National Employment Standards.

(4) However, an employee referred to in subsection (3) does not qualify for the shiftworker annual leave entitlement if the employee is in a class of employees prescribed by the regulations as not being qualified for that entitlement.

(5) Without limiting the way in which a class may be described for the purposes of paragraph (3)(b) or subsection (4), the class may be described by reference to one or more of the following:

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

(b) a particular kind of work;

88 Taking paid annual leave

(1) Paid annual leave may be taken for a period agreed between an employee and his or her employer.

(2) The employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.

89 Employee not taken to be on paid annual leave at certain times

Public holidays

(1) If the period during which an employee takes paid annual leave includes a day or part‑day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid annual leave on that public holiday.

Other periods of leave

(2) If the period during which an employee takes paid annual leave includes a period of any other leave (other than unpaid parental leave) under this Part, or a period of absence from employment under Division 8 (which deals with community service leave), the employee is taken not to be on paid annual leave for the period of that other leave or absence.

90 Payment for annual leave

(1) If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

(2) If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

91 Transfer of employment situations that affect entitlement to payment for period of untaken paid annual leave

Transfer of employment situation in which employer may decide not to recognise employee’s service with first employer

(1) Subsection 22(5) does not apply (for the purpose of this Division) to a transfer of employment between non‑associated entities in relation to an employee, if the second employer decides not to recognise the employee’s service with the first employer (for the purpose of this Division).

Employee is not entitled to payment for untaken annual leave if service with first employer counts as service with second employer

(2) If subsection 22(5) applies (for the purpose of this Division) to a transfer of employment in relation to an employee, the employee is not entitled to be paid an amount under subsection 90(2) for a period of untaken paid annual leave.

Note: Subsection 22(5) provides that, generally, if there is a transfer of employment, service with the first employer counts as service with the second employer.

92 Paid annual leave must not be cashed out except in accordance with permitted cashing out terms

Paid annual leave must not be cashed out, except in accordance with:

(a) cashing out terms included in a modern award or enterprise agreement under section 93, or

(b) an agreement between an employer and an award/agreement free employee under subsection 94(1).

93 Modern awards and enterprise agreements may include terms relating to cashing out and taking paid annual leave

Terms about cashing out paid annual leave

(1) A modern award or enterprise agreement may include terms providing for the cashing out of paid annual leave by an employee.

(2) The terms must require that:

(a) paid annual leave must not be cashed out if the cashing out would result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks; and

(b) each cashing out of a particular amount of paid annual leave must be by a separate agreement in writing between the employer and the employee; and

(c) the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.

Terms about requirements to take paid annual leave

(3) A modern award or enterprise agreement may include terms requiring an employee, or allowing for an employee to be required, to take paid annual leave in particular circumstances, but only if the requirement is reasonable.

Terms about taking paid annual leave

(4) A modern award or enterprise agreement may include terms otherwise dealing with the taking of paid annual leave.

94 Cashing out and taking paid annual leave for award/agreement free employees

Agreements to cash out paid annual leave

(1) An employer and an award/agreement free employee may agree to the employee cashing out a particular amount of the employee’s accrued paid annual leave.

(2) The employer and the employee must not agree to the employee cashing out an amount of paid annual leave if the agreement would result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks.

(3) Each agreement to cash out a particular amount of paid annual leave must be a separate agreement in writing.

(4) The employer must pay the employee at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.

Requirements to take paid annual leave

(5) An employer may require an award/agreement free employee to take a period of paid annual leave, but only if the requirement is reasonable.

Note: A requirement to take paid annual leave may be reasonable if, for example:

(a) the employee has accrued an excessive amount of paid annual leave; or

(b) the employer’s enterprise is being shut down for a period (for example, between Christmas and New Year).

Agreements about taking paid annual leave

(6) An employer and an award/agreement free employee may agree on when and how paid annual leave may be taken by the employee.

Note: Matters that could be agreed include, for example, the following:

(a) that paid annual leave may be taken in advance of accrual;

(b) that paid annual leave must be taken within a fixed period of time after it is accrued;

(d) that a specified period of notice must be given before taking paid annual leave.

Division 7—Personal/carer’s leave and compassionate leave

Subdivision A—Paid personal/carer’s leave

95 Subdivision applies to employees other than casual employees

This Subdivision applies to employees, other than casual employees.

96 Entitlement to paid personal/carer’s leave

Amount of leave

(1) For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave.

Accrual of leave

(2) An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.

97 Taking paid personal/carer’s leave

An employee may take paid personal/carer’s leave if the leave is taken:

(a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or

(b) to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:

(i) a personal illness, or personal injury, affecting the member; or

(ii) an unexpected emergency affecting the member.

Note: The notice and evidence requirements of section 107 must be complied with.

98 Employee taken not to be on paid personal/carer’s leave on public holiday

If the period during which an employee takes paid personal/carer’s leave includes a day or part‑day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid personal/carer’s leave on that public holiday.

99 Payment for paid personal/carer’s leave

If, in accordance with this Subdivision, an employee takes a period of paid personal/carer’s leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

100 Paid personal/carer’s leave must not be cashed out except in accordance with permitted cashing out terms

Paid personal/carer’s leave must not be cashed out, except in accordance with cashing out terms included in a modern award or enterprise agreement under section 101.

101 Modern awards and enterprise agreements may include terms relating to cashing out paid personal/carer’s leave

(1) A modern award or enterprise agreement may include terms providing for the cashing out of paid personal/carer’s leave by an employee.

(2) The terms must require that:

(a) paid personal/carer’s leave must not be cashed out if the cashing out would result in the employee’s remaining accrued entitlement to paid personal/carer’s leave being less than 15 days; and

(b) each cashing out of a particular amount of paid personal/carer’s leave must be by a separate agreement in writing between the employer and the employee; and

(c) the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.

Subdivision B—Unpaid carer’s leave

102 Entitlement to unpaid carer’s leave

An employee is entitled to 2 days of unpaid carer’s leave for each occasion (a permissible occasion) when a member of the employee’s immediate family, or a member of the employee’s household, requires care or support because of:

(a) a personal illness, or personal injury, affecting the member; or

(b) an unexpected emergency affecting the member.

103 Taking unpaid carer’s leave

(1) An employee may take unpaid carer’s leave for a particular permissible occasion if the leave is taken to provide care or support as referred to in section 102.

(2) An employee may take unpaid carer’s leave for a particular permissible occasion as:

(a) a single continuous period of up to 2 days; or

(b) any separate periods to which the employee and his or her employer agree.

(3) An employee cannot take unpaid carer’s leave during a particular period if the employee could instead take paid personal/carer’s leave.

Note: The notice and evidence requirements of section 107 must be complied with.

Subdivision C—Compassionate leave

104 Entitlement to compassionate leave

An employee is entitled to 2 days of compassionate leave for each occasion (a permissible occasion) when a member of the employee’s immediate family, or a member of the employee’s household:

(a) contracts or develops a personal illness that poses a serious threat to his or her life; or

(b) sustains a personal injury that poses a serious threat to his or her life; or

105 Taking compassionate leave

(1) An employee may take compassionate leave for a particular permissible occasion if the leave is taken:

(a) to spend time with the member of the employee’s immediate family or household who has contracted or developed the personal illness, or sustained the personal injury, referred to in section 104; or

(b) after the death of the member of the employee’s immediate family or household referred to in section 104.

(2) An employee may take compassionate leave for a particular permissible occasion as:

(a) a single continuous 2 day period; or

(b) 2 separate periods of 1 day each; or

(3) If the permissible occasion is the contraction or development of a personal illness, or the sustaining of a personal injury, the employee may take the compassionate leave for that occasion at any time while the illness or injury persists.

Note: The notice and evidence requirements of section 107 must be complied with.

106 Payment for compassionate leave (other than for casual employees)

If, in accordance with this Subdivision, an employee, other than a casual employee, takes a period of compassionate leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

Note: For casual employees, compassionate leave is unpaid leave.

Subdivision D—Notice and evidence requirements

107 Notice and evidence requirements

Notice

(1) An employee must give his or her employer notice of the taking of leave under this Division by the employee.

(2) The notice:

(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and

(b) must advise the employer of the period, or expected period, of the leave.

Evidence

(3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:

(a) if it is paid personal/carer’s leave—the leave is taken for a reason specified in section 97; or

(b) if it is unpaid carer’s leave—the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or

(c) if it is compassionate leave—the leave is taken for a permissible occasion in circumstances specified in subsection 105(1).

Compliance

(4) An employee is not entitled to take leave under this Division unless the employee complies with this section.

Modern awards and enterprise agreements may include evidence requirements

(5) A modern award or enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave.

Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

Division 8—Community service leave

108 Entitlement to be absent from employment for engaging in eligible community service activity

An employee who engages in an eligible community service activity is entitled to be absent from his or her employment for a period if:

(a) the period consists of one or more of the following:

(i) time when the employee engages in the activity;

(ii) reasonable travelling time associated with the activity;

(iii) reasonable rest time immediately following the activity; and

(b) unless the activity is jury service—the employee’s absence is reasonable in all the circumstances.

109 Meaning of eligible community service activity

General

(1) Each of the following is an eligible community service activity:

(a) jury service (including attendance for jury selection) that is required by or under a law of the Commonwealth, a State or a Territory; or

(b) a voluntary emergency management activity (see subsection (2)); or

Voluntary emergency management activities

(2) An employee engages in a voluntary emergency management activity if, and only if:

(a) the employee engages in an activity that involves dealing with an emergency or natural disaster; and

(b) the employee engages in the activity on a voluntary basis (whether or not the employee directly or indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for engaging in the activity); and

(d) either:

(i) the employee was requested by or on behalf of the body to engage in the activity; or

(ii) no such request was made, but it would be reasonable to expect that, if the circumstances had permitted the making of such a request, it is likely that such a request would have been made.

(3) A recognised emergency management body is:

(a) a body, or part of a body, that has a role or function under a plan that:

(i) is for coping with emergencies and/or disasters; and

(ii) is prepared by the Commonwealth, a State or a Territory; or

(b) a fire‑fighting, civil defence or rescue body, or part of such a body; or

(i) securing the safety of persons or animals in an emergency or natural disaster; or

(ii) protecting property in an emergency or natural disaster; or

(iii) otherwise responding to an emergency or natural disaster; or

(d) a body, or part of a body, prescribed by the regulations;

but does not include a body that was established, or is continued in existence, for the purpose, or for purposes that include the purpose, of entitling one or more employees to be absent from their employment under this Division.

Regulations may prescribe other activities

(4) The regulations may prescribe an activity that is of a community service nature as an eligible community service activity.

110 Notice and evidence requirements

Notice

(1) An employee who wants an absence from his or her employment to be covered by this Division must give his or her employer notice of the absence.

(2) The notice:

(a) must be given to the employer as soon as practicable (which may be a time after the absence has started); and

(b) must advise the employer of the period, or expected period, of the absence.

Evidence

(3) An employee who has given his or her employer notice of an absence under subsection (1) must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the absence is because the employee has been or will be engaging in an eligible community service activity.

Compliance

(4) An employee’s absence from his or her employment is not covered by this Division unless the employee complies with this section.

Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.

111 Payment to employees (other than casuals) on jury service

Application of this section

(1) This section applies if:

(a) in accordance with this Division, an employee is absent from his or her employment for a period because of jury service; and

(b) the employee is not a casual employee.

Employee to be paid base rate of pay

(2) Subject to subsections (3), (4) and (5), the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

Evidence

(3) The employer may require the employee to give the employer evidence that would satisfy a reasonable person:

(a) that the employee has taken all necessary steps to obtain any amount of jury service pay to which the employee is entitled; and

(b) of the total amount (even if it is a nil amount) of jury service pay that has been paid, or is payable, to the employee for the period.

Note: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

(4) If, in accordance with subsection (3), the employer requires the employee to give the employer the evidence referred to in that subsection:

(a) the employee is not entitled to payment under subsection (2) unless the employee provides the evidence; and

(b) if the employee provides the evidence—the amount payable to the employee under subsection (2) is reduced by the total amount of jury service pay that has been paid, or is payable, to the employee, as disclosed in the evidence.

Payment only required for first 10 days of absence

(5) If an employee is absent because of jury service in relation to a particular jury service summons for a period, or a number of periods, of more than 10 days in total:

(a) the employer is only required to pay the employee for the first 10 days of absence; and

(b) the evidence provided in response to a requirement under subsection (3) need only relate to the first 10 days of absence; and

(c) the reference in subsection (4) to the total amount of jury service pay as disclosed in evidence is a reference to the total amount so disclosed for the first 10 days of absence.

Meaning of jury service pay

(6) Jury service pay means an amount paid in relation to jury service under a law of the Commonwealth, a State or a Territory, other than an amount that is, or that is in the nature of, an expense‑related allowance.

Meaning of jury service summons

(7) Jury service summons means a summons or other instruction (however described) that requires a person to attend for, or perform, jury service.

112 State and Territory laws that are not excluded

(1) This Act is not intended to apply to the exclusion of laws of a State or Territory that provide employee entitlements in relation to engaging in eligible community service activities, to the extent that those entitlements are more beneficial to employees than the entitlements under this Division.

Note: For example, this Act would not apply to the exclusion of a State or Territory law providing for a casual employee to be paid jury service pay.

(2) If the community service activity is an activity prescribed in regulations made for the purpose of subsection 109(4), subsection (1) of this section has effect subject to any provision to the contrary in the regulations.

Division 9—Long service leave

113 Entitlement to long service leave

Entitlement in accordance with applicable award‑derived long service leave terms

(1) If there are applicable award‑derived long service leave terms (see subsection (3)) in relation to an employee, the employee is entitled to long service leave in accordance with those terms.

Note: This Act does not exclude State and Territory laws that deal with long service leave, except in relation to employees who are entitled to long service leave under this Division (see paragraph 27(2)(g)), and except as provided in subsection 113A(3).

(2) However, subsection (1) does not apply if:

(a) a workplace agreement, or an AWA, that came into operation before the commencement of this Part applies to the employee; or

(b) one of the following kinds of instrument that came into operation before the commencement of this Part applies to the employee and expressly deals with long service leave:

(i) an enterprise agreement;

(ii) a preserved State agreement;

(iii) a workplace determination;

(iv) a pre‑reform certified agreement;

(v) a pre‑reform AWA;

(vi) a section 170MX award;

(vii) an old IR agreement.

Note: If there ceases to be any agreement or instrument of a kind referred to in paragraph (a) or (b) that applies to the employee, the employee will, at that time, become entitled under subsection (1) to long service leave in accordance with applicable award‑derived long service leave terms.

(3) Applicable award‑derived long service leave terms, in relation to an employee, are:

(a) terms of an award that (disregarding the effect of any instrument of a kind referred to in subsection (2)):

(i) would have applied to the employee immediately before the commencement of this Part if the employee had, at that time, been in his or her current circumstances of employment; and

(ii) would have entitled the employee to long service leave; and

(b) any terms of the award that are ancillary or incidental to the terms referred to in paragraph (a).

Entitlement in accordance with applicable agreement‑derived long service leave terms

(4) If there are applicable agreement‑derived long service leave terms (see subsection (5)) in relation to an employee, the employee is entitled to long service leave in accordance with those terms.

(5) There are applicable agreement‑derived long service leave terms, in relation to an employee if:

(a) an order under subsection (6) is in operation in relation to terms of an instrument; and

(b) those terms of the instrument would have applied to the employee immediately before the commencement of this Part if the employee had, at that time, been in his or her current circumstances of employment; and

(6) If FWA is satisfied that:

(a) any of the following instruments that was in operation immediately before the commencement of this Part contained terms entitling employees to long service leave:

(i) an enterprise agreement;

(ii) a collective agreement;

(iii) a pre‑reform certified agreement;

(iv) an old IR agreement; and

(b) those terms constituted a long service leave scheme that was applying in more than one State or Territory; and

(c) the scheme, considered on an overall basis, is no less beneficial to the employees than the long service leave entitlements that would otherwise apply in relation to the employees under State and Territory laws;

FWA may, on application by, or on behalf of, a person to whom the instrument applies, make an order that those terms of the instrument (and any terms that are ancillary or incidental to those terms) are applicable agreement‑derived long service leave terms.

References to instruments

(7) References in this section to a kind of instrument (other than an enterprise agreement) are references to a transitional instrument of that kind, as continued in existence by Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

113A Enterprise agreements may contain terms discounting service under prior agreements etc. in certain circumstances

(1) This section applies if:

(a) an instrument (the first instrument) of one of the following kinds that came into operation before the commencement of this Part applies to an employee on or after the commencement of this Part:

(i) an enterprise agreement;

(ii) a workplace agreement;

(iii) a workplace determination;

(iv) a preserved State agreement;

(v) an AWA;

(vi) a pre‑reform certified agreement;

(vii) a pre‑reform AWA;

(viii) an old IR agreement;

(ix) a section 170MX award; and

(b) the instrument states that the employee is not entitled to long service leave; and

(d) immediately after the first instrument ceases to apply, an enterprise agreement (the replacement agreement) starts to apply to the employee.

(2) The replacement agreement may include terms to the effect that an employee’s service with the employer during a specified period (the excluded period) (being some or all of the period when the first instrument applied to the employee) does not count as service for the purpose of determining whether the employee is qualified for long service leave, or the amount of long service leave to which the employee is entitled, under this Division or under a law of a State or Territory.

(3) If the replacement agreement includes terms as permitted by subsection (2), the excluded period does not count, and never again counts, as service for the purpose of determining whether the employee is qualified for long service leave, or the amount of long service leave to which the employee is entitled, under this Division or under a law of a State or Territory, unless a later agreement provides otherwise. This subsection has effect despite sections 27 and 29.

(4) References in this section to a kind of instrument (other than an enterprise agreement) are references to a transitional instrument of that kind, as continued in existence by Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

Division 10—Public holidays

114 Entitlement to be absent from employment on public holiday

Employee entitled to be absent on public holiday

(1) An employee is entitled to be absent from his or her employment on a day or part‑day that is a public holiday in the place where the employee is based for work purposes.

Reasonable requests to work on public holidays

(2) However, an employer may request an employee to work on a public holiday if the request is reasonable.

(3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if:

(a) the request is not reasonable; or

(b) the refusal is reasonable.

(4) In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:

(a) the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;

(b) the employee’s personal circumstances, including family responsibilities;

(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;

(e) the type of employment of the employee (for example, whether full‑time, part‑time, casual or shiftwork);

(f) the amount of notice in advance of the public holiday given by the employer when making the request;

(g) in relation to the refusal of a request—the amount of notice in advance of the public holiday given by the employee when refusing the request;

(h) any other relevant matter.

115 Meaning of public holiday

The public holidays

(1) The following are public holidays:

(a) each of these days:

(i) 1 January (New Year’s Day);

(ii) 26 January (Australia Day);

(iii) Good Friday;

(iv) Easter Monday;

(v) 25 April (Anzac Day);

(vi) the Queen’s birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory);

(vii) 25 December (Christmas Day);

(viii) 26 December (Boxing Day);

(b) any other day, or part‑day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday, other than a day or part‑day, or a kind of day or part‑day, that is excluded by the regulations from counting as a public holiday.

Substituted public holidays under State or Territory laws

(2) If, under (or in accordance with a procedure under) a law of a State or Territory, a day or part‑day is substituted for a day or part‑day that would otherwise be a public holiday because of subsection (1), then the substituted day or part‑day is the public holiday.

Substituted public holidays under modern awards and enterprise agreements

(3) A modern award or enterprise agreement may include terms providing for an employer and employee to agree on the substitution of a day or part‑day for a day or part‑day that would otherwise be a public holiday because of subsection (1) or (2).

Substituted public holidays for award/agreement free employees

(4) An employer and an award/agreement free employee may agree on the substitution of a day or part‑day for a day or part‑day that would otherwise be a public holiday because of subsection (1) or (2).

Note: This Act does not exclude State and Territory laws that deal with the declaration, prescription or substitution of public holidays, but it does exclude State and Territory laws that relate to the rights and obligations of an employee or employer in relation to public holidays (see paragraph 27(2)(j)).

116 Payment for absence on public holiday

If, in accordance with this Division, an employee is absent from his or her employment on a day or part‑day that is a public holiday, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part‑day.

Note: If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part‑time employee whose part‑time hours do not include the day of the week on which the public holiday occurs.

Division 11—Notice of termination and redundancy pay

Subdivision A—Notice of termination or payment in lieu of notice

117 Requirement for notice of termination or payment in lieu

Notice specifying day of termination

(1) An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).

Note 1: Section 123 describes situations in which this section does not apply.

Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:

(a) delivering it personally; or

(b) leaving it at the employee’s last known address; or

Amount of notice or payment in lieu of notice

(2) The employer must not terminate the employee’s employment unless:

(a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or

(b) the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.

(3) Work out the minimum period of notice as follows:

(a) first, work out the period using the following table:

Period
	Employee’s period of continuous service with the employer at the end of the day the notice is given	Period
1	Not more than 1 year	1 week
2	More than 1 year but not more than 3 years	2 weeks
3	More than 3 years but not more than 5 years	3 weeks
4	More than 5 years	4 weeks

(b) then increase the period by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.

118 Modern awards and enterprise agreements may provide for notice of termination by employees

A modern award or enterprise agreement may include terms specifying the period of notice an employee must give in order to terminate his or her employment.

Subdivision B—Redundancy pay

119 Redundancy pay

Entitlement to redundancy pay

(1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.

Amount of redundancy pay

(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:

Redundancy pay period
	Employee’s period of continuous service with the employer on termination	Redundancy pay period
1	At least 1 year but less than 2 years	4 weeks
2	At least 2 years but less than 3 years	6 weeks
3	At least 3 years but less than 4 years	7 weeks
4	At least 4 years but less than 5 years	8 weeks
5	At least 5 years but less than 6 years	10 weeks
6	At least 6 years but less than 7 years	11 weeks
7	At least 7 years but less than 8 years	13 weeks
8	At least 8 years but less than 9 years	14 weeks
9	At least 9 years but less than 10 years	16 weeks
10	At least 10 years	12 weeks

120 Variation of redundancy pay for other employment or incapacity to pay

(1) This section applies if:

(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

(b) the employer:

(i) obtains other acceptable employment for the employee; or

(ii) cannot pay the amount.

(2) On application by the employer, FWA may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that FWA considers appropriate.

(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.

121 Exclusions from obligation to pay redundancy pay

(1) Section 119 does not apply to the termination of an employee’s employment if, immediately before the time of the termination, or at the time when the person was given notice of the termination as described in subsection 117(1) (whichever happened first):

(a) the employee’s period of continuous service with the employer is less than 12 months; or

(b) the employer is a small business employer.

(2) A modern award may include a term specifying other situations in which section 119 does not apply to the termination of an employee’s employment.

(3) If a modern award that is in operation includes such a term (the award term), an enterprise agreement may:

(a) incorporate the award term by reference (and as in force from time to time) into the enterprise agreement; and

(b) provide that the incorporated term covers some or all of the employees who are also covered by the award term.

122 Transfer of employment situations that affect the obligation to pay redundancy pay

Transfer of employment situation in which employer may decide not to recognise employee’s service with first employer

(1) Subsection 22(5) does not apply (for the purpose of this Subdivision) to a transfer of employment between non‑associated entities in relation to an employee if the second employer decides not to recognise the employee’s service with the first employer (for the purpose of this Subdivision).

Employee is not entitled to redundancy pay if service with first employer counts as service with second employer

(2) If subsection 22(5) applies (for the purpose of this Subdivision) to a transfer of employment in relation to an employee, the employee is not entitled to redundancy pay under section 119 in relation to the termination of his or her employment with the first employer.

Note: Subsection 22(5) provides that, generally, if there is a transfer of employment, service with the first employer counts as service with the second employer.

Employee not entitled to redundancy pay if refuses employment in certain circumstances

(3) An employee is not entitled to redundancy pay under section 119 in relation to the termination of his or her employment with an employer (the first employer) if:

(a) the employee rejects an offer of employment made by another employer (the second employer) that:

(i) is on terms and conditions substantially similar to, and, considered on an overall basis, no less favourable than, the employee’s terms and conditions of employment with the first employer immediately before the termination; and

(ii) recognises the employee’s service with the first employer, for the purpose of this Subdivision; and

(b) had the employee accepted the offer, there would have been a transfer of employment in relation to the employee.

(4) If FWA is satisfied that subsection (3) operates unfairly to the employee, FWA may order the first employer to pay the employee a specified amount of redundancy pay (not exceeding the amount that would be payable but for subsection (3)) that FWA considers appropriate. The first employer must pay the employee that amount of redundancy pay.

Subdivision C—Limits on scope of this Division

123 Limits on scope of this Division

Employees not covered by this Division

(1) This Division does not apply to any of the following employees:

(a) an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;

(b) an employee whose employment is terminated because of serious misconduct;

(d) an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement;

(e) an employee prescribed by the regulations as an employee to whom this Division does not apply.

(2) Paragraph (1)(a) does not prevent this Division from applying to an employee if a substantial reason for employing the employee as described in that paragraph was to avoid the application of this Division.

Other employees not covered by notice of termination provisions

(3) Subdivision A does not apply to:

(b) a daily hire employee working in the building and construction industry (including working in connection with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or structures); or

(d) a weekly hire employee working in connection with the meat industry and whose termination of employment is determined solely by seasonal factors; or

(e) an employee prescribed by the regulations as an employee to whom that Subdivision does not apply.

Other employees not covered by redundancy pay provisions

(4) Subdivision B does not apply to:

(a) an employee who is an apprentice; or

(b) an employee to whom an industry‑specific redundancy scheme in a modern award applies; or

(i) the scheme is an industry‑specific redundancy scheme that is incorporated by reference (and as in force from time to time) into the enterprise agreement from a modern award that is in operation; and

(ii) the employee is covered by the industry‑specific redundancy scheme in the modern award; or

(d) an employee prescribed by the regulations as an employee to whom that Subdivision does not apply.

Division 12—Fair Work Information Statement

124 Fair Work Ombudsman to prepare and publish Fair Work Information Statement

(1) The Fair Work Ombudsman must prepare a Fair Work Information Statement. The Fair Work Ombudsman must publish the Statement in the Gazette.

Note: If the Fair Work Ombudsman changes the Statement, the Fair Work Ombudsman must publish the new version of the Statement in the Gazette.

(2) The Statement must contain information about the following:

(a) the National Employment Standards;

(b) modern awards;

(d) the right to freedom of association;

(e) the role of FWA and the Fair Work Ombudsman;

(f) termination of employment;

(g) individual flexibility arrangements;

(h) right of entry (including the protection of personal information by privacy laws).

(3) The Fair Work Information Statement is not a legislative instrument.

(4) The regulations may prescribe other matters relating to the content or form of the Statement, or the manner in which employers may give the Statement to employees.

125 Giving new employees the Fair Work Information Statement

(1) An employer must give each employee the Fair Work Information Statement before, or as soon as practicable after, the employee starts employment.

(2) Subsection (1) does not require the employer to give the employee the Statement more than once in any 12 months.

Note: This is relevant if the employer employs the employee more than once in the 12 months.

Division 13—Miscellaneous

126 Modern awards and enterprise agreements may provide for school‑based apprentices and trainees to be paid loadings in lieu

A modern award or enterprise agreement may provide for school‑based apprentices or school‑based trainees to be paid loadings in lieu of any of the following:

(a) paid annual leave;

(b) paid personal/carer’s leave;

Note: Section 199 affects whether FWA may approve an enterprise agreement covering an employee who is a school‑based apprentice or school‑based trainee, if the employee is covered by a modern award that is in operation and provides for the employee to be paid loadings in lieu of paid annual leave, paid personal/carer’s leave or paid absence under Division 10.

127 Regulations about what modern awards and enterprise agreements can do

The regulations may:

(a) permit modern awards or enterprise agreements or both to include terms that would or might otherwise be contrary to this Part or section 55 (which deals with the interaction between the National Employment Standards and a modern award or enterprise agreement); or

(b) prohibit modern awards or enterprise agreements or both from including terms that would or might otherwise be permitted by a provision of this Part or section 55.

128 Relationship between National Employment Standards and agreements etc. permitted by this Part for award/agreement free employees

The National Employment Standards have effect subject to:

(a) an agreement between an employer and an award/agreement free employee or a requirement made by an employer of an award/agreement free employee, that is expressly permitted by a provision of this Part; or

(b) an agreement between an employer and an award/agreement free employee that is expressly permitted by regulations made for the purpose of section 129.

Note 1: In determining what matters are permitted to be agreed or required under paragraph (a), any regulations made for the purpose of section 129 that expressly prohibit certain agreements or requirements must be taken into account.

Note 2: See also the note to section 64 (which deals with the effect of averaging arrangements).

129 Regulations about what can be agreed to etc. in relation to award/agreement free employees

The regulations may:

(a) permit employers, and award/agreement free employees, to agree on matters that would or might otherwise be contrary to this Part; or

(b) prohibit employers and award/agreement free employees from agreeing on matters, or prohibit employers from making requirements of such employees, that would or might otherwise be permitted by a provision of this Part.

130 Restriction on taking or accruing leave or absence while receiving workers’ compensation

(1) An employee is not entitled to take or accrue any leave or absence (whether paid or unpaid) under this Part during a period (a compensation period) when the employee is absent from work because of a personal illness, or a personal injury, for which the employee is receiving compensation payable under a law (a compensation law) of the Commonwealth, a State or a Territory that is about workers’ compensation.

(2) Subsection (1) does not prevent an employee from taking or accruing leave during a compensation period if the taking or accruing of the leave is permitted by a compensation law.

(3) Subsection (1) does not prevent an employee from taking unpaid parental leave during a compensation period.

131 Relationship with other Commonwealth laws

This Part establishes minimum standards and so is intended to supplement, and not to override, entitlements under other laws of the Commonwealth.

Part 2‑3—Modern awards

Division 1—Introduction

132 Guide to this Part

This Part provides for FWA to make, vary and revoke modern awards. Modern awards may set minimum terms and conditions for national system employees in particular industries or occupations. Modern awards can have terms that are ancillary or supplementary to the National Employment Standards (see Part 2‑1).

Division 2 provides for the modern awards objective. This requires FWA to ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account certain social and economic factors. Division 2 also contains special provisions about modern award minimum wages.

Division 3 deals with the terms of modern awards.

Division 4 provides for FWA to conduct 4 yearly reviews of modern awards.

Division 5 provides for FWA to exercise modern award powers outside the system of 4 yearly reviews in certain circumstances.

Division 6 contains some general provisions relating to modern award powers.

The obligation to comply with a modern award is in section 45 (in Part 2‑1).

In relation to minimum wages in modern awards, FWA has powers both under this Part and under Part 2‑6 (which deals with minimum wages). The following is a summary of FWA’s powers under the 2 Parts:

(a) the initial making of a modern award setting modern award minimum wages can only occur under this Part;

(b) the main power to vary modern award minimum wages is in annual wage reviews under Part 2‑6;

(c) modern award minimum wages can also be varied under this Part, but only for work value reasons or in other limited circumstances;

(d) modern award minimum wages can be set (otherwise than in the initial making of a modern award) or revoked either under this Part or in annual wage reviews under Part 2‑6.

133 Meanings of employee and employer

In this Part, employee means a national system employee, and employer means a national system employer.

Division 2—Overarching provisions

134 The modern awards objective

What is the modern awards objective?

(1) FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

(2) The modern awards objective applies to the performance or exercise of FWA’s modern award powers, which are:

(a) FWA’s functions or powers under this Part; and

(b) FWA’s functions or powers under Part 2‑6, so far as they relate to modern award minimum wages.

Note: FWA must also take into account the objects of this Act and any other applicable provisions. For example, if FWA is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).

135 Special provisions relating to modern award minimum wages

(1) Modern award minimum wages cannot be varied under this Part except as follows:

(a) modern award minimum wages can be varied if FWA is satisfied that the variation is justified by work value reasons (see subsections 156(3) and 157(2));

(b) modern award minimum wages can be varied under section 160 (which deals with variation to remove ambiguities or correct errors) or section 161 (which deals with variation on referral by HREOC).

Note 1: The main power to vary modern award minimum wages is in annual wage reviews under Part 2‑6. Modern award minimum wages can also be set or revoked in annual wage reviews.

Note 2: For the meanings of modern award minimum wages, and setting and varying such wages, see section 284.

(2) In exercising its powers under this Part to set, vary or revoke modern award minimum wages, FWA must take into account the rate of the national minimum wage as currently set in a national minimum wage order.

Division 3—Terms of modern awards

Subdivision A—Preliminary

136 What can be included in modern awards

Terms that may or must be included

(1) A modern award must only include terms that are permitted or required by:

(a) Subdivision B (which deals with terms that may be included in modern awards); or

(b) Subdivision C (which deals with terms that must be included in modern awards); or

(c) section 55 (which deals with interaction between the National Employment Standards and a modern award or enterprise agreement); or

(d) Part 2‑2 (which deals with the National Employment Standards).

Note 1: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards.

Note 2: Part 2‑2 includes a number of provisions permitting inclusion of terms about particular matters.

Terms that must not be included

(2) A modern award must not include terms that contravene:

(a) Subdivision D (which deals with terms that must not be included in modern awards); or

(b) section 55 (which deals with the interaction between the National Employment Standards and a modern award or enterprise agreement).

Note: The provisions referred to in subsection (2) limit the terms that can be included in modern awards under the provisions referred to in subsection (1).

137 Terms that contravene section 136 have no effect

A term of a modern award has no effect to the extent that it contravenes section 136.

138 Achieving the modern awards objective

A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.

Subdivision B—Terms that may be included in modern awards

139 Terms that may be included in modern awards—general

(1) A modern award may include terms about any of the following matters:

(a) minimum wages (including wage rates for junior employees, employees with a disability and employees to whom training arrangements apply), and:

(i) skill‑based classifications and career structures; and

(ii) incentive‑based payments, piece rates and bonuses;

(b) type of employment, such as full‑time employment, casual employment, regular part‑time employment and shift work, and the facilitation of flexible working arrangements, particularly for employees with family responsibilities;

(c) arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours;

(d) overtime rates;

(e) penalty rates, including for any of the following:

(i) employees working unsocial, irregular or unpredictable hours;

(ii) employees working on weekends or public holidays;

(iii) shift workers;

(f) annualised wage arrangements that:

(i) have regard to the patterns of work in an occupation, industry or enterprise; and

(ii) provide an alternative to the separate payment of wages and other monetary entitlements; and

(iii) include appropriate safeguards to ensure that individual employees are not disadvantaged;

(g) allowances, including for any of the following:

(i) expenses incurred in the course of employment;

(ii) responsibilities or skills that are not taken into account in rates of pay;

(iii) disabilities associated with the performance of particular tasks or work in particular conditions or locations;

(h) leave, leave loadings and arrangements for taking leave;

(i) superannuation;

(j) procedures for consultation, representation and dispute settlement.

(2) Any allowance included in a modern award must be separately and clearly identified in the award.

140 Outworker terms

(1) A modern award may include either or both of the following:

(a) terms relating to the conditions under which an employer may employ employees who are outworkers;

(b) terms relating to the conditions under which an outworker entity may arrange for work to be performed for the entity (either directly or indirectly), if the work is of a kind that is often performed by outworkers.

(2) Without limiting subsection (1), terms referred to in that subsection may include terms relating to the pay or conditions of outworkers.

(3) The following terms of a modern award are outworker terms:

(a) terms referred to in subsection (1);

(b) terms that are incidental to terms referred to in subsection (1), included in the modern award under subsection 142(1);

(c) machinery terms in relation to terms referred to in subsection (1), included in the modern award under subsection 142(2).

141 Industry‑specific redundancy schemes

When can a modern award include an industry‑specific redundancy scheme?

(1) A modern award may include an industry‑specific redundancy scheme if the scheme was included in the award:

(a) in the award modernisation process; or

(b) in accordance with subsection (2).

Note: An employee to whom an industry‑specific redundancy scheme in a modern award applies is not entitled to the redundancy entitlements in Subdivision B of Division 11 of Part 2‑2.

Coverage of industry‑specific redundancy schemes must not be extended

(2) If:

(a) a modern award includes an industry‑specific redundancy scheme; and

(b) FWA is making or varying another modern award under Division 4 or 5 so that it (rather than the modern award referred to in paragraph (a)) will cover some or all of the classes of employees who are covered by the scheme;

FWA may include the scheme in that other modern award. However, FWA must not extend the coverage of the scheme to classes of employees that it did not previously cover.

Varying industry‑specific redundancy schemes

(3) FWA may only vary an industry‑specific redundancy scheme in a modern award under Division 4 or 5:

(a) by varying the amount of any redundancy payment in the scheme; or

(b) in accordance with a provision of Subdivision B of Division 5 (which deals with varying modern awards in some limited situations).

(4) In varying an industry‑specific redundancy scheme as referred to in subsection (3), FWA:

(a) must not extend the coverage of the scheme to classes of employees that it did not previously cover; and

(b) must retain the industry‑specific character of the scheme.

Omitting industry‑specific redundancy schemes

(5) FWA may vary a modern award under Division 4 or 5 by omitting an industry‑specific redundancy scheme from the award.

142 Incidental and machinery terms

Incidental terms

(1) A modern award may include terms that are:

(a) incidental to a term that is permitted or required to be in the modern award; and

(b) essential for the purpose of making a particular term operate in a practical way.

Machinery terms

(2) A modern award may include machinery terms, including formal matters (such as a title, date or table of contents).

Subdivision C—Terms that must be included in modern awards

143 Coverage terms

Coverage terms must be included

(1) A modern award must include terms (coverage terms) setting out the employers, employees, organisations and outworker entities that are covered by the award, in accordance with this section.

Employers and employees

(2) A modern award must be expressed to cover:

(a) specified employers; and

(b) specified employees of employers covered by the modern award.

Organisations

(3) A modern award may be expressed to cover one or more specified organisations, in relation to all or specified employees or employers that are covered by the award.

Outworker entities

(4) A modern award may be expressed to cover, but only in relation to outworker terms included in the award, specified outworker entities.

How coverage is expressed

(5) For the purposes of subsections (2) to (4):

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

(b) employees must be specified by inclusion in a specified class or specified classes; and

(d) outworker entities may be specified by name or by inclusion in a specified class or specified classes.

(6) Without limiting the way in which a class may be described for the purposes of subsection (5), the class may be described by reference to a particular industry or part of an industry, or particular kinds of work.

Employees not traditionally covered by awards etc.

(7) A modern award must not be expressed to cover classes of employees:

(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or

(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.

Note: For example, in some industries, managerial employees have traditionally not been covered by awards.

144 Flexibility terms

Flexibility terms must be included

(1) A modern award must include a term (a flexibility term) enabling an employee and his or her employer to agree on an arrangement (an individual flexibility arrangement) varying the effect of the award in relation to the employee and the employer, in order to meet the genuine needs of the employee and employer.

Effect of individual flexibility arrangements

(2) If an employee and employer agree to an individual flexibility arrangement under a flexibility term in a modern award:

(a) the modern award has effect in relation to the employee and the employer as if it were varied by the flexibility arrangement; and

(b) the arrangement is taken, for the purposes of this Act, to be a term of the modern award.

(3) To avoid doubt, the individual flexibility arrangement does not change the effect the modern award has in relation to the employer and any other employee.

Requirements for flexibility terms

(4) The flexibility term must:

(a) identify the terms of the modern award the effect of which may be varied by an individual flexibility arrangement; and

(b) require that the employee and the employer genuinely agree to any individual flexibility arrangement; and

(c) require the employer to ensure that any individual flexibility arrangement must result in the employee being better off overall than the employee would have been if no individual flexibility arrangement were agreed to; and

(d) set out how any flexibility arrangement may be terminated by the employee or the employer; and

(e) require the employer to ensure that any individual flexibility arrangement must be in writing and signed:

(i) in all cases—by the employee and the employer; and

(ii) if the employee is under 18—by a parent or guardian of the employee; and

(f) require the employer to ensure that a copy of any individual flexibility arrangement must be given to the employee.

(5) Except as required by subparagraph (4)(e)(ii), the flexibility term must not require that any individual flexibility arrangement agreed to by an employer and employee under the term must be approved, or consented to, by another person.

145 Effect of individual flexibility arrangement that does not meet requirements of flexibility term

Application of this section

(1) This section applies if:

(a) an employee and employer agree to an arrangement that purports to be an individual flexibility arrangement under a flexibility term in a modern award; and

(b) the arrangement does not meet a requirement set out in section 144.

Note: A failure to meet such a requirement may be a contravention of a provision of Part 3‑1 (which deals with general protections).

Arrangement has effect as if it were an individual flexibility arrangement

(2) The arrangement has effect as if it were an individual flexibility arrangement.

Employer contravenes flexibility term in specified circumstances

(3) If subsection 144(4) requires the employer to ensure that the arrangement meets the requirement, the employer contravenes the flexibility term of the award.

Flexibility arrangement may be terminated by agreement or notice

(4) The flexibility term is taken to provide (in addition to any other means of termination of the arrangement that the term provides) that the arrangement can be terminated:

(a) by either the employee, or the employer, giving written notice of not more than 28 days; or

(b) by the employee and the employer at any time if they agree, in writing, to the termination.

146 Terms about settling disputes

Without limiting paragraph 139(1)(j), a modern award must include a term that provides a procedure for settling disputes:

(a) about any matters arising under the award; and

(b) in relation to the National Employment Standards.

Note: FWA or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).

147 Ordinary hours of work

A modern award must include terms specifying, or providing for the determination of, the ordinary hours of work for each classification of employee covered by the award and each type of employment permitted by the award.

Note: An employee’s ordinary hours of work are significant in determining the employee’s entitlements under the National Employment Standards.

148 Base and full rates of pay for pieceworkers

If a modern award defines or describes employees covered by the award as pieceworkers, the award must include terms specifying, or providing for the determination of, base and full rates of pay for those employees for the purposes of the National Employment Standards.

Note: An employee’s base and full rates of pay are significant in determining the employee’s entitlements under the National Employment Standards.

149 Automatic variation of allowances

If a modern award includes allowances that FWA considers are of a kind that should be varied when wage rates in the award are varied, the award must include terms providing for the automatic variation of those allowances when wage rates in the award are varied.

Subdivision D—Terms that must not be included in modern awards

150 Objectionable terms

A modern award must not include an objectionable term.

151 Terms about payments and deductions for benefit of employer etc.

A modern award must not include a term that has no effect because of subsection 326(1) (which deals with unreasonable payments and deductions for the benefit of an employer) or subsection 326(3) (which deals with unreasonable requirements to spend an amount).

152 Terms about right of entry

A modern award must not include terms that require or authorise an official of an organisation to enter premises:

(a) to hold discussions with, or interview, an employee; or

(b) to inspect any work, process or object.

153 Terms that are discriminatory

Discriminatory terms must not be included

(1) A modern award must not include terms that discriminate against an employee because of, or for reasons including, the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Certain terms are not discriminatory

(2) A term of a modern award does not discriminate against an employee:

(a) if the reason for the discrimination is the inherent requirements of the particular position held by the employee; or

(b) merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3) A term of a modern award does not discriminate against an employee merely because it provides for minimum wages for:

(a) all junior employees, or a class of junior employees; or

(b) all employees with a disability, or a class of employees with a disability; or

154 Terms that contain State‑based differences

General rule—State‑based difference terms must not be included

(1) A modern award must not include terms and conditions of employment (State‑based difference terms) that:

(a) are determined by reference to State or Territory boundaries; or

(b) are expressed to operate in one or more, but not every, State and Territory.

When State‑based difference terms may be included

(2) However, a modern award may include State‑based difference terms if the terms were included in the award:

(a) in the award modernisation process; or

(b) in accordance with subsection (3);

but only for up to 5 years starting on the day on which the first modern award that included those terms came into operation.

(3) If:

(a) a modern award includes State‑based difference terms as permitted under subsection (2); and

(b) FWA is making or varying another modern award so that it (rather than the modern award referred to in paragraph (a)) will cover some or all of the classes of employees who are covered by those terms;

FWA may include those terms in that other modern award. However, FWA must not extend the coverage of those terms to classes of employees that they did not previously cover.

155 Terms dealing with long service leave

A modern award must not include terms dealing with long service leave.

Division 4—4 yearly reviews of modern awards

156 4 yearly reviews of modern awards to be conducted

Timing of 4 yearly reviews

(1) FWA must conduct a 4 yearly review of modern awards starting as soon as practicable after each 4th anniversary of the commencement of this Part.

Note 1: FWA must be constituted by a Full Bench to conduct 4 yearly reviews of modern awards, and to make determinations and modern awards in those reviews (see subsections 616(1), (2) and (3)).

Note 2: The President may give directions about the conduct of 4 yearly reviews of modern awards (see section 582).

What has to be done in a 4 yearly review?

(2) In a 4 yearly review of modern awards, FWA:

(a) must review all modern awards; and

(b) may make:

(i) one or more determinations varying modern awards; and

(ii) one or more modern awards; and

(iii) one or more determinations revoking modern awards.

Note: Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).

Variation of modern award minimum wages must be justified by work value reasons

(3) In a 4 yearly review of modern awards, FWA may make a determination varying modern award minimum wages only if FWA is satisfied that the variation of modern award minimum wages is justified by work value reasons.

(4) Work value reasons are reasons justifying the amount that employees should be paid for doing a particular kind of work, being reasons related to any of the following:

(a) the nature of the work;

(b) the level of skill or responsibility involved in doing the work;

Each modern award to be reviewed in its own right

(5) A 4 yearly review of modern awards must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at the same time.

Division 5—Exercising modern award powers outside 4 yearly reviews and annual wage reviews

Subdivision A—Exercise of powers if necessary to achieve modern awards objective

157 FWA may vary etc. modern awards if necessary to achieve modern awards objective

(1) FWA may:

(a) make a determination varying a modern award, otherwise than to vary modern award minimum wages; or

(b) make a modern award; or

if FWA is satisfied that making the determination or modern award outside the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective.

Note 1: FWA must be constituted by a Full Bench to make a modern award (see subsection 616(1)).

Note 2: Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).

Note 3: If FWA is setting modern award minimum wages, the minimum wages objective also applies (see section 284).

(2) FWA may make a determination varying modern award minimum wages if FWA is satisfied that:

(a) the variation of modern award minimum wages is justified by work value reasons; and

(b) making the determination outside the system of annual wage reviews and the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective.

Note: As FWA is varying modern award minimum wages, the minimum wages objective also applies (see section 284).

(3) FWA may make a determination or modern award under this section:

(a) on its own initiative; or

(b) on application under section 158.

158 Applications to vary, revoke or make modern award

(1) The following table sets out who may apply for the making of a determination varying or revoking a modern award, or for the making of a modern award, under section 157:

Who may make an application?
Item	Column 1 This kind of application …	Column 2 may be made by …
1	an application to vary, omit or include terms (other than outworker terms or coverage terms) in a modern award	(a) an employer, employee or organisation that is covered by the modern award; or (b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award.
2	an application to vary, omit or include outworker terms in a modern award	(a) an employer, employee or outworker entity that is or would be covered by the outworker terms; or (b) an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker terms relate or would relate.
3	an application to vary or include coverage terms in a modern award to increase the range of employers, employees or organisations that are covered by the award	(a) an employer, employee or organisation that would become covered by the modern award; or (b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that would become covered by the modern award.
4	an application to vary or include coverage terms in a modern award to increase the range of outworker entities that are covered by outworker terms	(a) an outworker entity that would become covered by the outworker terms; or (b) an organisation that is entitled to represent the industrial interests of one or more outworkers who would become outworkers to whom the outworker terms relate.
5	an application to vary or omit coverage terms in a modern award to reduce the range of employers, employees or organisations that are covered by the award	(a) an employer, employee or organisation that would stop being covered by the modern award; or (b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that would stop being covered by the modern award.
6	an application to vary or omit coverage terms in a modern award to reduce the range of outworker entities that are covered by outworker terms	(a) an outworker entity that would stop being covered by the outworker terms; or (b) an organisation that is entitled to represent the industrial interests of one or more outworkers who would stop being outworkers to whom the outworker terms relate.
7	an application for the making of a modern award	(a) an employee or employer that would be covered by the modern award; or (b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that would be covered by the modern award.
8	an application to revoke a modern award	(a) an employer, employee or organisation that is covered by the modern award; or (b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award.

(2) Subject to the requirements of the table about who can make what kind of application, an applicant may make applications for 2 or more related things at the same time.

Note: For example, an applicant may apply for the making of a modern award and for the related revocation of an existing modern award.

Subdivision B—Other situations

159 Variation of modern award to update or omit name of employer, organisation or outworker entity

(1) FWA may make a determination varying a modern award:

(a) to reflect a change in the name of an employer, organisation or outworker entity; or

(b) to omit the name of an organisation, employer or outworker entity from the modern award, if:

(i) the registration of the organisation has been cancelled under the Workplace Relations Act 1996; or

(ii) the employer, organisation or outworker entity has ceased to exist; or

(c) if the modern award is a named employer award and the named employer is the old employer in a transfer of business—to reflect the transfer of business to the new employer.

(2) FWA may make a determination under this section:

(a) in any case—on its own initiative; or

(b) if paragraph (1)(a) or (b) applies—on application by the employer, organisation or outworker entity referred to in that paragraph; or

(i) the old employer or the new employer; or

(ii) a transferring employee who was covered by the modern award as an employee of the old employer; or

(iii) an organisation that is entitled to represent the industrial interests of the old employer, the new employer, or one or more employees referred to in subparagraph (ii).

160 Variation of modern award to remove ambiguity or uncertainty or correct error

(1) FWA may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.

(2) FWA may make the determination:

(a) on its own initiative; or

(b) on application by an employer, employee, organisation or outworker entity that is covered by the modern award.

161 Variation of modern award on referral by HREOC

(1) FWA must review a modern award if the award is referred to it under section 46PW of the Human Rights and Equal Opportunity Commission Act 1986 (which deals with discriminatory industrial instruments).

(2) The Sex Discrimination Commissioner is entitled to make submissions to FWA for consideration in the review.

(3) If FWA considers that the modern award reviewed requires a person to do an act that would be unlawful under Part II of the Sex Discrimination Act 1984 (but for the fact that the act would be done in direct compliance with the modern award), FWA must make a determination varying the modern award so that it no longer requires the person to do an act that would be so unlawful.

Note: Special criteria apply to changing coverage of modern awards (see section 163).

Division 6—General provisions relating to modern award powers

162 General

This Division contains some specific provisions relevant to the exercise of modern award powers. For other provisions relevant to the exercise of modern award powers, see the general provisions about FWA’s processes in Part 5‑1.

Note: Relevant provisions of Part 5‑1 include the following:

(a) section 582 (which deals with the President’s power to give directions);

(b) section 590 (which deals with FWA’s discretion to inform itself as it considers appropriate, including by commissioning research);

(d) section 601 (which deals with writing and publication requirements).

163 Special criteria relating to changing coverage of modern awards

Special rule about reducing coverage

(1) FWA must not make a determination varying a modern award so that certain employers or employees stop being covered by the award unless FWA is satisfied that they will instead become covered by another modern award (other than the miscellaneous modern award) that is appropriate for them.

Special rule about making a modern award

(2) FWA must not make a modern award covering certain employers or employees unless FWA has considered whether it should, instead, make a determination varying an existing modern award to cover them.

Special rule about covering organisations

(3) FWA must not make a modern award, or make a determination varying a modern award, so that an organisation becomes covered by the award, unless the organisation is entitled to represent the industrial interests of one or more employers or employees who are or will be covered by the award.

The miscellaneous modern award

(4) The miscellaneous modern award is the modern award that is expressed to cover employees who are not covered by any other modern award.

164 Special criteria for revoking modern awards

FWA must not make a determination revoking a modern award unless FWA is satisfied that:

(a) the award is obsolete or no longer capable of operating; or

(b) all the employees covered by the award are covered by a different modern award (other than the miscellaneous modern award) that is appropriate for them, or will be so covered when the revocation comes into operation.

165 When variation determinations come into operation, other than determinations setting, varying or revoking modern award minimum wages

Determinations come into operation on specified day

(1) A determination under this Part that varies a modern award (other than a determination that sets, varies or revokes modern award minimum wages) comes into operation on the day specified in the determination.

Note 1: For when a modern award, or a revocation of a modern award, comes into operation, see section 49.

Note: For when a determination under this Part setting, varying or revoking modern award minimum wages comes into operation, see section 166.

(2) The specified day must not be earlier than the day on which the determination is made, unless:

(a) the determination is made under section 160 (which deals with variation to remove ambiguities or correct errors); and

(b) FWA is satisfied that there are exceptional circumstances that justify specifying an earlier day.

Determinations take effect from first full pay period

(3) The determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after the day the determination comes into operation.

166 When variation determinations setting, varying or revoking modern award minimum wages come into operation

Determinations generally come into operation on 1 July

(1) A determination under this Part that sets, varies or revokes modern award minimum wages comes into operation:

(a) on 1 July in the next financial year after it is made; or

(b) if it is made on 1 July in a financial year—on that day.

Note: Modern award minimum wages can also be set, varied or revoked by determinations made in annual wage reviews. For when those determinations come into operation, see section 286.

FWA may specify another day of operation if appropriate

(2) However, if FWA specifies another day in the determination as the day on which it comes into operation, the determination comes into operation on that other day. FWA must not specify another day unless it is satisfied that it is appropriate to do so.

(3) The specified day must not be earlier than the day on which the determination is made, unless:

(a) the determination is made under section 160 (which deals with variation to remove ambiguities or correct errors); and

(b) FWA is satisfied that there are exceptional circumstances that justify specifying an earlier day.

Determinations may take effect in stages

(4) FWA may specify in the determination that changes to modern award minimum wages made by the determination take effect in stages if FWA is satisfied that it is appropriate to do so.

Determinations take effect from first full pay period

(5) A change to modern award minimum wages made by the determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after:

(a) unless paragraph (b) applies—the day the determination comes into operation; or

(b) if the determination takes effect in stages under subsection (4)—the day the change to modern award minimum wages is specified to take effect.

167 Special rules relating to retrospective variations of awards

Application of this section

(1) This section applies if a determination varying a modern award has a retrospective effect because it comes into operation under subsection 165(2) or 166(3) on a day before the day on which the determination is made.

No effect on past approval of enterprise agreement or variation

(2) If, before the determination was made, an enterprise agreement or a variation of an enterprise agreement was approved by FWA, the validity of the approval is not affected by the retrospective effect of the determination.

No creation of liability to pay pecuniary penalty for past conduct

(3) If:

(a) a person engaged in conduct before the determination was made; and

(b) but for the retrospective effect of the determination, the conduct would not have contravened a term of the modern award or an enterprise agreement;

a court must not order the person to pay a pecuniary penalty under Division 2 of Part 4‑1 in relation to the conduct, on the grounds that the conduct contravened a term of the modern award or enterprise agreement.

Note 1: This subsection does not affect the powers of a court to make other kinds of orders under Division 2 of Part 4‑1.

Note 2: A determination varying a modern award could result in a contravention of a term of an enterprise agreement because of the effect of subsection 206(2).

168 Varied modern award must be published

(1) If FWA makes a determination under this Part or Part 2‑6 (which deals with minimum wages) varying a modern award, FWA must publish the award as varied as soon as practicable.

(2) The publication may be on FWA’s website or by any other means that FWA considers appropriate.

Part 2‑4—Enterprise agreements

Division 1—Introduction

169 Guide to this Part

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

Division 2 deals with the making of enterprise agreements about permitted matters. An enterprise agreement (including a greenfields agreement) may be a single‑enterprise agreement or a multi‑enterprise agreement.

Division 3 deals with the right of employees to be represented by a bargaining representative during bargaining for a proposed enterprise agreement. It also sets out the persons who are bargaining representatives for such agreements.

Subdivision A of Division 4 deals with the approval of proposed enterprise agreements by employees and sets out when an enterprise agreement is made.

Subdivision B of Division 4 deals with the approval of enterprise agreements by FWA. The remaining Subdivisions of the Division deal with certain approval requirements, including in relation to genuine agreement by employees and the better off overall test.

Division 5 deals with the mandatory terms of enterprise agreements relating to individual flexibility arrangements and consultation requirements.

Division 6 deals with the base rate of pay under an enterprise agreement.

Division 7 deals with the variation and termination of enterprise agreements.

Division 8 provides for FWA to facilitate bargaining by making bargaining orders, serious breach declarations, majority support determinations and scope orders. It also permits bargaining representatives to apply for FWA to deal with bargaining disputes.

Division 9 provides for the making of low‑paid authorisations in relation to proposed multi‑enterprise agreements. The effect of such an authorisation is that specified employers are subject to certain rules that would not otherwise apply (for example, bargaining orders that would not usually be available for multi‑enterprise agreements will be available). It also permits FWA to assist the bargaining representatives for such agreements.

Division 10 deals with single interest employer authorisations. The effect of such an authorisation is that the employers specified in the authorisation are single interest employers in relation to a proposed enterprise agreement.

Division 11 deals with other matters relating to enterprise agreements.

170 Meanings of employee and employer

In this Part, employee means a national system employee, and employer means a national system employer.

171 Objects of this Part

The objects of this Part are:

(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b) to enable FWA to facilitate good faith bargaining and the making of enterprise agreements, including through:

(i) making bargaining orders; and

(ii) dealing with disputes where the bargaining representatives request assistance; and

(iii) ensuring that applications to FWA for approval of enterprise agreements are dealt with without delay.

Division 2—Employers and employees may make enterprise agreements

172 Making an enterprise agreement

Enterprise agreements may be made about permitted matters

(1) An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:

(a) matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;

(b) matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement;

(d) how the agreement will operate.

Note 1: For when an enterprise agreement covers an employer, employee or employee organisation, see section 53.

Note 2: An employee organisation that was a bargaining representative for a proposed enterprise agreement will be covered by the agreement if the organisation notifies FWA under section 183 that it wants to be covered.

Single‑enterprise agreements

(2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single‑enterprise agreement):

(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

(b) with one or more relevant employee organisations if:

(i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and

(ii) the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Note: The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).

Multi‑enterprise agreements

(3) Two or more employers that are not all single interest employers may make an enterprise agreement (a multi‑enterprise agreement):

(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

(b) with one or more relevant employee organisations if:

(i) the agreement relates to a genuine new enterprise that the employers are establishing or propose to establish; and

(ii) the employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Note: The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).

Greenfields agreements

(4) A single‑enterprise agreement made as referred to in paragraph (2)(b), or a multi‑enterprise agreement made as referred to in paragraph (3)(b), is a greenfields agreement.

Single interest employers

(5) Two or more employers are single interest employers if:

(a) the employers are engaged in a joint venture or common enterprise; or

(b) the employers are related bodies corporate; or

(c) the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.

Division 3—Bargaining and representation during bargaining

173 Notice of employee representational rights

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.

Note: For the content of the notice, see section 174.

Notification time

(2) The notification time for a proposed enterprise agreement is the time when:

(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or

(b) a majority support determination in relation to the agreement comes into operation; or

(d) a low‑paid authorisation in relation to the agreement that specifies the employer comes into operation.

Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).

When notice must be given

(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.

Notice need not be given in certain circumstances

(4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.

How notices are given

(5) The regulations may prescribe how notices under subsection (1) may be given.

174 Content of notice of employee representational rights

Application of this section

(1) This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee.

Content of notice—employee may appoint a bargaining representative

(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:

(a) in bargaining for the agreement; and

(b) in a matter before FWA that relates to bargaining for the agreement.

Content of notice—default bargaining representative

(3) If subsection (4) does not apply, the notice must explain that:

(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and

(b) the employee does not appoint another person as his or her bargaining representative for the agreement;

the organisation will be the bargaining representative of the employee.

Content of notice—bargaining representative if a low‑paid authorisation is in operation

(4) If a low‑paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).

Content of notice—copy of instrument of appointment to be given

(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).

Regulations may prescribe additional content and form requirements etc.

(6) The regulations may prescribe other matters relating to the content or form of the notice, or the manner in which employers may give the notice to employees.

176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

Bargaining representatives

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;

(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i) the employee is a member of the organisation; and

(ii) in the case where the agreement is a multi‑enterprise agreement in relation to which a low‑paid authorisation is in operation—the organisation applied for the authorisation;

unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.

Bargaining representatives for a proposed multi‑enterprise agreement if a low‑paid authorisation is in operation

(2) If:

(a) the proposed enterprise agreement is a multi‑enterprise agreement in relation to which a low‑paid authorisation is in operation; and

(b) an employee organisation applied for the authorisation; and

(c) but for this subsection, the organisation would not be a bargaining representative of an employee who will be covered by the agreement;

the organisation is taken to be a bargaining representative of such an employee unless:

(d) the employee is a member of another employee organisation that also applied for the authorisation; or

(e) the employee has appointed another person under paragraph (1)(c) as his or her bargaining representative for the agreement; or

(f) the employee has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2).

Requirement relating to employee organisations

(3) Despite subsections (1) and (2), an employee organisation cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.

Employee may appoint himself or herself

(4) To avoid doubt, an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.

Note: Section 228 sets out the good faith bargaining requirements. Applications may be made for bargaining orders that require bargaining representatives to meet the good faith bargaining requirements (see section 229).

178 Appointment of bargaining representatives—other matters

When appointment of a bargaining representative comes into force

(1) An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment.

Copies of instruments of appointment must be given

(2) A copy of an instrument of appointment of a bargaining representative for a proposed enterprise agreement must:

(a) for an appointment made by an employee who will be covered by the agreement—be given to the employee’s employer; and

(b) for an appointment made by an employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement—be given, on request, to a bargaining representative of an employee who will be covered by the agreement.

Regulations may prescribe matters relating to qualifications and appointment

(3) The regulations may prescribe matters relating to the qualifications or appointment of bargaining representatives.

178A Revocation of appointment of bargaining representatives etc.

(1) The appointment of a bargaining representative for an enterprise agreement may be revoked by written instrument.

(2) If a person would, apart from this subsection, be a bargaining representative of an employee for an enterprise agreement because of the operation of paragraph 176(1)(b) or subsection 176(2) (which deal with employee organisations), the employee may, by written instrument, revoke the person’s status as the employee’s bargaining representative for the agreement.

(3) A copy of an instrument under subsection (1) or (2):

(a) for an instrument made by an employee who will be covered by the agreement—must be given to the employee’s employer; and

(b) for an instrument made by an employer that will be covered by a proposed enterprise agreement—must be given to the bargaining representative and, on request, to a bargaining representative of an employee who will be covered by the agreement.

(4) The regulations may prescribe matters relating to the content or form of the instrument of revocation, or the manner in which the copy of the instrument may be given.

Division 4—Approval of enterprise agreements

Subdivision A—Pre‑approval steps and applications for FWA approval

180 Employees must be given a copy of a proposed enterprise agreement etc.

Pre‑approval requirements

(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.

Employees must be given copy of the agreement etc.

(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.

(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

(a) the time and place at which the vote will occur;

(b) the voting method that will be used.

(4) The access period for a proposed enterprise agreement is the 7‑day period ending immediately before the start of the voting process referred to in subsection 181(1).

Terms of the agreement must be explained to employees etc.

(5) The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

(6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:

(a) employees from culturally and linguistically diverse backgrounds;

(b) young employees;

181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

182 When an enterprise agreement is made

Single‑enterprise agreement that is not a greenfields agreement

(1) If the employees of the employer, or each employer, that will be covered by a proposed single‑enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.

Multi‑enterprise agreement that is not a greenfields agreement

(2) If:

(a) a proposed enterprise agreement is a multi‑enterprise agreement; and

(b) the employees of each of the employers that will be covered by the agreement have been asked to approve the agreement under subsection 181(1); and

(d) a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement;

the agreement is made immediately after the end of the voting process referred to in subsection 181(1).

Greenfields agreement

(3) A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement).

183 Entitlement of an employee organisation to have an enterprise agreement cover it

(1) After an enterprise agreement that is not a greenfields agreement is made, an employee organisation that was a bargaining representative for the proposed enterprise agreement concerned may give FWA a written notice stating that the organisation wants the enterprise agreement to cover it.

(2) The notice must be given to FWA, and a copy given to each employer covered by the enterprise agreement, before FWA approves the agreement.

Note: FWA must note in its decision to approve the enterprise agreement that the agreement covers the employee organisation (see subsection 201(2)).

184 Multi‑enterprise agreement to be varied if not all employees approve the agreement

Application of this section

(1) This section applies if:

(a) a multi‑enterprise agreement is made; and

(b) the agreement was not approved by the employees of all of the employers that made a request under subsection 181(1) in relation to the agreement.

Variation of agreement

(2) Before a bargaining representative applies under section 185 for approval of the agreement, the bargaining representative must vary the agreement so that the agreement is expressed to cover only the following:

(a) each employer whose employees approved the agreement;

(b) the employees of each of those employers.

(3) The bargaining representative who varies the agreement as referred to in subsection (2) must give written notice of the variation to all the other bargaining representatives for the agreement.

(4) The notice must specify the employers and employees that the agreement as varied covers.

(5) Subsection (3) does not require the bargaining representative to give a notice to a person if the bargaining representative does not know, or could not reasonably be expected to know, that the person is a bargaining representative for the agreement.

185 Bargaining representative must apply for FWA approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to FWA for approval of the agreement.

(1A) Despite subsection (1), if the agreement is a greenfields agreement, the application must be made by:

(a) an employer covered by the agreement; or

(b) a relevant employee organisation that is covered by the agreement.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the agreement; and

(b) any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) If the agreement is not a greenfields agreement, the application must be made:

(a) within 14 days after the agreement is made; or

(b) if in all the circumstances FWA considers it fair to extend that period—within such further period as FWA allows.

(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.

Signature requirements

(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.

Subdivision B—Approval of enterprise agreements by FWA

186 When FWA must approve an enterprise agreement—general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under section 185, FWA must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note: FWA may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.

(2) FWA must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and

(b) if the agreement is a multi‑enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test.

Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.

Note 2: FWA may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).

Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).

Requirement that the group of employees covered by the agreement is fairly chosen

(3) FWA must be satisfied that the group of employees covered by the agreement was fairly chosen.

(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Requirement that there be no unlawful terms

(4) FWA must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).

Requirement that there be no designated outworker terms

(4A) FWA must be satisfied that the agreement does not include any designated outworker terms.

Requirement for a nominal expiry date etc.

(5) FWA must be satisfied that:

(a) the agreement specifies a date as its nominal expiry date; and

(b) the date will not be more than 4 years after the day on which FWA approves the agreement.

Requirement for a term about settling disputes

(6) FWA must be satisfied that the agreement includes a term:

(a) that provides a procedure that requires or allows FWA, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

(i) about any matters arising under the agreement; and

(ii) in relation to the National Employment Standards; and

(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.

Note 1: FWA or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).

Note 2: However, this does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4).

187 When FWA must approve an enterprise agreement—additional requirements

Additional requirements

(1) This section sets out additional requirements that must be met before FWA approves an enterprise agreement under section 186.

Requirement that approval not be inconsistent with good faith bargaining etc.

(2) FWA must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.

Requirement relating to notice of variation of agreement

(3) If a bargaining representative is required to vary the agreement as referred to in subsection 184(2), FWA must be satisfied that the bargaining representative has complied with that subsection and subsection 184(3) (which deals with giving notice of the variation).

Requirements relating to particular kinds of employees

(4) FWA must be satisfied as referred to in any provisions of Subdivision E of this Division that apply in relation to the agreement.

Note: Subdivision E of this Division deals with approval requirements relating to particular kinds of employees.

Requirements relating to greenfields agreements

(5) If the agreement is a greenfields agreement, FWA must be satisfied that:

(a) the relevant employee organisations that will be covered by the agreement are (taken as a group) entitled to represent the industrial interests of a majority of the employees who will be covered by the agreement, in relation to work to be performed under the agreement; and

(b) it is in the public interest to approve the agreement.

188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre‑approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

189 FWA may approve an enterprise agreement that does not pass better off overall test—public interest test

Application of this section

(1) This section applies if:

(a) FWA is not required to approve an enterprise agreement under section 186; and

(b) the only reason for this is that FWA is not satisfied that the agreement passes the better off overall test.

Approval of agreement if not contrary to the public interest

(2) FWA may approve the agreement under this section if FWA is satisfied that, because of exceptional circumstances, the approval of the agreement would not be contrary to the public interest.

Note: FWA may approve an enterprise agreement under this section with undertakings (see section 190).

(3) An example of a case in which FWA may be satisfied of the matter referred to in subsection (2) is where the agreement is part of a reasonable strategy to deal with a short‑term crisis in, and to assist in the revival of, the enterprise of an employer covered by the agreement.

Nominal expiry date

(4) The nominal expiry date of an enterprise agreement approved by FWA under this section is the earlier of the following:

(a) the date specified in the agreement as the nominal expiry date of the agreement;

(b) 2 years after the day on which FWA approved the agreement.

190 FWA may approve an enterprise agreement with undertakings

Application of this section

(1) This section applies if:

(a) an application for the approval of an enterprise agreement has been made under section 185; and

(b) FWA has a concern that the agreement does not meet the requirements set out in sections 186 and 187.

Approval of agreement with undertakings

(2) FWA may approve the agreement under section 186 if FWA is satisfied that an undertaking accepted by FWA under subsection (3) of this section meets the concern.

Undertakings

(3) FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:

(a) cause financial detriment to any employee covered by the agreement; or

(b) result in substantial changes to the agreement.

FWA must seek views of bargaining representatives

(4) FWA must not accept an undertaking under subsection (3) unless FWA has sought the views of each person who FWA knows is a bargaining representative for the agreement.

Signature requirements

(5) The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.

191 Effect of undertakings

(1) If:

(a) FWA approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement; and

(b) the agreement covers a single employer;

the undertaking is taken to be a term of the agreement, as the agreement applies to the employer.

(2) If:

(a) FWA approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement; and

(b) the agreement covers 2 or more employers;

the undertaking is taken to be a term of the agreement, as the agreement applies to each employer that gave the undertaking.

192 When FWA may refuse to approve an enterprise agreement

(1) If an application for the approval of an enterprise agreement is made under section 185, FWA may refuse to approve the agreement if FWA considers that compliance with the terms of the agreement may result in:

(a) a person committing an offence against a law of the Commonwealth; or

(b) a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth.

(2) Subsection (1) has effect despite sections 186 and 189 (which deal with the approval of enterprise agreements).

(3) If FWA refuses to approve an enterprise agreement under this section, FWA may refer the agreement to any person or body FWA considers appropriate.

Subdivision C—Better off overall test

193 Passing the better off overall test

When a non‑greenfields agreement passes the better off overall test

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if FWA is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

FWA must disregard individual flexibility arrangement

(2) If, under the flexibility term in the relevant modern award, an individual flexibility arrangement has been agreed to by an award covered employee and his or her employer, FWA must disregard the individual flexibility arrangement for the purposes of determining whether the agreement passes the better off overall test.

When a greenfields agreement passes the better off overall test

(3) A greenfields agreement passes the better off overall test under this section if FWA is satisfied, as at the test time, that each prospective award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

Award covered employee

(4) An award covered employee for an enterprise agreement is an employee who:

(a) is covered by the agreement; and

(b) at the test time, is covered by a modern award (the relevant modern award) that:

(i) is in operation; and

(ii) covers the employee in relation to the work that he or she is to perform under the agreement; and

(iii) covers his or her employer.

Prospective award covered employee

(5) A prospective award covered employee for an enterprise agreement is a person who, if he or she were an employee at the test time of an employer covered by the agreement:

(a) would be covered by the agreement; and

(b) would be covered by a modern award (the relevant modern award) that:

(i) is in operation; and

(ii) would cover the person in relation to the work that he or she would perform under the agreement; and

(iii) covers the employer.

Test time

(6) The test time is the time the application for approval of the agreement by FWA was made under section 185.

FWA may assume employee better off overall in certain circumstances

(7) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, FWA is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.

Subdivision D—Unlawful terms

194 Meaning of unlawful term

A term of an enterprise agreement is an unlawful term if it is:

(a) a discriminatory term; or

(b) an objectionable term; or

(c) if a particular employee would be protected from unfair dismissal under Part 3‑2 after completing a period of employment of at least the minimum employment period—a term that confers an entitlement or remedy in relation to a termination of the employee’s employment that is unfair (however described) before the employee has completed that period; or

(d) a term that excludes the application to, or in relation to, a person of a provision of Part 3‑2 (which deals with unfair dismissal), or modifies the application of such a provision in a way that is detrimental to, or in relation to, a person; or

(e) a term that is inconsistent with a provision of Part 3‑3 (which deals with industrial action); or

(f) a term that provides for an entitlement:

(i) to enter premises for a purpose referred to in section 481 (which deals with investigation of suspected contraventions); or

(ii) to enter premises to hold discussions of a kind referred to in section 484;

other than in accordance with Part 3‑4 (which deals with right of entry); or

(g) a term that provides for the exercise of a State or Territory OHS right other than in accordance with Part 3‑4 (which deals with right of entry).

195 Meaning of discriminatory term

Discriminatory term

(1) A term of an enterprise agreement is a discriminatory term to the extent that it discriminates against an employee covered by the agreement because of, or for reasons including, the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Certain terms are not discriminatory terms

(2) A term of an enterprise agreement does not discriminate against an employee:

(a) if the reason for the discrimination is the inherent requirements of the particular position concerned; or

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3) A term of an enterprise agreement does not discriminate against an employee merely because it provides for wages for:

(a) all junior employees, or a class of junior employees; or

(b) all employees with a disability, or a class of employees with a disability; or

Subdivision E—Approval requirements relating to particular kinds of employees

196 Shiftworkers

Application of this section

(1) This section applies if:

(a) an employee is covered by an enterprise agreement; and

(b) a modern award that is in operation and covers the employee defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

Shiftworkers and the National Employment Standards

(2) FWA must be satisfied that the agreement defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

Note: Section 87 provides an employee with an entitlement to 5 weeks of paid annual leave if an enterprise agreement that applies to the employee defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

197 Pieceworkers—enterprise agreement includes pieceworker term

Application of this section

(1) This section applies if:

(a) an enterprise agreement that covers an employee includes a term that defines or describes the employee as a pieceworker; and

(b) a modern award that is in operation and covers the employee does not include such a term.

No detriment test

(2) FWA must be satisfied that the effect of including such a term in the agreement is not detrimental to the employee in relation to the entitlements of the employee under the National Employment Standards.

198 Pieceworkers—enterprise agreement does not include a pieceworker term

Application of this section

(1) This section applies if:

(a) an enterprise agreement that covers an employee does not include a term that defines or describes the employee as a pieceworker; and

(b) a modern award that is in operation and covers the employee includes such a term.

No detriment test

(2) FWA must be satisfied that the effect of not including such a term in the agreement is not detrimental to the employee in relation to the entitlements of the employee under the National Employment Standards.

199 School‑based apprentices and school‑based trainees

Application of this section

(1) This section applies if:

(a) an employee who is a school‑based apprentice or a school‑based trainee is covered by an enterprise agreement; and

(b) the agreement provides for the employee to be paid loadings (the agreement loadings) in lieu of any of the following:

(i) paid annual leave;

(ii) paid personal/carer’s leave;

(iii) paid absence under Division 10 of Part 2‑2 (which deals with public holidays); and

(c) a modern award that is in operation and covers the employee provides for the employee to be paid loadings (the award loadings) in lieu of leave or absence of that kind.

No detriment test

(2) FWA must be satisfied that the amount or rate (as the case may be) of the agreement loadings is not detrimental to the employee when compared to the amount or rate of the award loadings.

200 Outworkers

Application of this section

(1) This section applies if:

(a) an employee who is an outworker is covered by an enterprise agreement; and

(b) a modern award that is in operation and covers the employee includes outworker terms.

Agreement must include outworker terms etc.

(2) FWA must be satisfied that:

(a) the agreement includes terms of that kind; and

(b) those terms of the agreement are not detrimental to the employee in any respect when compared to the outworker terms of the modern award.

Subdivision F—Other matters

201 Approval decision to note certain matters

Approval decision to note model terms included in an enterprise agreement

(1) If:

(a) FWA approves an enterprise agreement; and

(b) either or both of the following apply:

(i) the model flexibility term is taken, under subsection 202(4), to be a term of the agreement;

(ii) the model consultation term is taken, under subsection 205(2), to be a term of the agreement;

FWA must note in its decision to approve the agreement that those terms are so included in the agreement.

Approval decision to note that an enterprise agreement covers an employee organisation

(2) If:

(a) an employee organisation has given a notice under subsection 183(1) that the organisation wants the enterprise agreement to cover it; and

(b) FWA approves the agreement;

FWA must note in its decision to approve the agreement that the agreement covers the organisation.

Approval decision to note undertakings

(3) If FWA approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement, FWA must note in its decision to approve the agreement that the undertaking is taken to be a term of the agreement.

Division 5—Mandatory terms of enterprise agreements

202 Enterprise agreements to include a flexibility term etc.

Flexibility term must be included in an enterprise agreement

(1) An enterprise agreement must include a term (a flexibility term) that:

(a) enables an employee and his or her employer to agree to an arrangement (an individual flexibility arrangement) varying the effect of the agreement in relation to the employee and the employer, in order to meet the genuine needs of the employee and employer; and

(b) complies with section 203.

Effect of an individual flexibility arrangement

(2) If an employee and employer agree to an individual flexibility arrangement under a flexibility term in an enterprise agreement:

(a) the agreement has effect in relation to the employee and the employer as if it were varied by the arrangement; and

(b) the arrangement is taken to be a term of the agreement.

(3) To avoid doubt, the individual flexibility arrangement:

(a) does not change the effect the agreement has in relation to the employer and any other employee; and

(b) does not have any effect other than as a term of the agreement.

Model flexibility term

(4) If an enterprise agreement does not include a flexibility term, the model flexibility term is taken to be a term of the agreement.

(5) The regulations must prescribe the model flexibility term for enterprise agreements.

203 Requirements to be met by a flexibility term

Flexibility term must meet requirements

(1) A flexibility term in an enterprise agreement must meet the requirements set out in this section.

Requirements relating to content

(2) The flexibility term must:

(a) set out the terms of the enterprise agreement the effect of which may be varied by an individual flexibility arrangement agreed to under the flexibility term; and

(b) require the employer to ensure that any individual flexibility arrangement agreed to under the flexibility term:

(i) must be about matters that would be permitted matters if the arrangement were an enterprise agreement; and

(ii) must not include a term that would be an unlawful term if the arrangement were an enterprise agreement.

Requirement for genuine agreement

(3) The flexibility term must require that any individual flexibility arrangement is genuinely agreed to by the employer and the employee.

Requirement that the employee be better off overall

(4) The flexibility term must require the employer to ensure that any individual flexibility arrangement agreed to under the term must result in the employee being better off overall than the employee would have been if no individual flexibility arrangement were agreed to.

Requirement relating to approval or consent of another person

(5) Except as required by subparagraph (7)(a)(ii), the employer must ensure that the flexibility term does not require that any individual flexibility arrangement agreed to by an employer and employee under the term be approved, or consented to, by another person.

Requirement relating to termination of individual flexibility arrangements

(6) The flexibility term must require the employer to ensure that any individual flexibility arrangement agreed to under the term must be able to be terminated:

(a) by either the employee, or the employer, giving written notice of not more than 28 days; or

(b) by the employee and the employer at any time if they agree, in writing, to the termination.

Other requirements

(7) The flexibility term must require the employer to ensure that:

(a) any individual flexibility arrangement agreed to under the term must be in writing and signed:

(i) in all cases—by the employee and the employer; and

(ii) if the employee is under 18—by a parent or guardian of the employee; and

(b) a copy of any individual flexibility arrangement agreed to under the term must be given to the employee within 14 days after it is agreed to.

204 Effect of arrangement that does not meet requirements of flexibility term

Application of this section

(1) This section applies if:

(a) an employee and employer agree to an arrangement that purports to be an individual flexibility arrangement under a flexibility term in an enterprise agreement; and

(b) the arrangement does not meet a requirement set out in section 203.

Note: A failure to meet such a requirement may be a contravention of a provision of Part 3‑1 (which deals with general protections).

Arrangement has effect as if it were an individual flexibility arrangement

(2) The arrangement has effect as if it were an individual flexibility arrangement.

Employer contravenes flexibility term in specified circumstances

(3) If section 203 requires the employer to ensure that the arrangement meets the requirement, the employer contravenes the flexibility term of the agreement.

Requirement relating to termination of arrangement

(4) If the arrangement does not provide that the arrangement is able to be terminated:

(a) by either the employee, or the employer, giving written notice of not more than 28 days; or

(b) by the employee and the employer at any time if they agree, in writing, to the termination;

the arrangement is taken to provide that the arrangement is able to be so terminated.

205 Enterprise agreements to include a consultation term etc.

Consultation term must be included in an enterprise agreement

(1) An enterprise agreement must include a term (a consultation term) that:

(a) requires the employer or employers to which the agreement applies to consult the employees to whom the agreement applies about major workplace changes that are likely to have a significant effect on the employees; and

(b) allows for the representation of those employees for the purposes of that consultation.

Model consultation term

(2) If an enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement.

(3) The regulations must prescribe the model consultation term for enterprise agreements.

Division 6—Base rate of pay under enterprise agreements

206 Base rate of pay under an enterprise agreement must not be less than the modern award rate or the national minimum wage order rate etc.

If an employee is covered by a modern award that is in operation

(1) If:

(a) an enterprise agreement applies to an employee; and

(b) a modern award that is in operation covers the employee;

the base rate of pay payable to the employee under the agreement (the agreement rate) must not be less than the base rate of pay that would be payable to the employee under the modern award (the award rate) if the modern award applied to the employee.

(2) If the agreement rate is less than the award rate, the agreement has effect in relation to the employee as if the agreement rate were equal to the award rate.

If an employer is required to pay an employee the national minimum wage etc.

(3) If:

(a) an enterprise agreement applies to an employee; and

(b) the employee is not covered by a modern award that is in operation; and

(c) a national minimum wage order would, but for the agreement applying to the employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;

the base rate of pay payable to the employee under the enterprise agreement (the agreement rate) must not be less than the employee’s order rate.

(4) If the agreement rate is less than the employee’s order rate, the agreement has effect in relation to the employee as if the agreement rate were equal to the employee’s order rate.

Division 7—Variation and termination of enterprise agreements

Subdivision A—Variation of enterprise agreements by employers and employees

207 Variation of an enterprise agreement may be made by employers and employees

Variation by employers and employees

(1) The following may jointly make a variation of an enterprise agreement:

(a) if the agreement covers a single employer—the employer and:

(i) the employees employed at the time who are covered by the agreement; and

(ii) the employees employed at the time who will be covered by the agreement if the variation is approved by FWA;

(b) if the agreement covers 2 or more employers—all of those employers and:

(i) the employees employed at the time who are covered by the agreement; and

(ii) the employees employed at the time who will be covered by the agreement if the variation is approved by FWA.

Note: For when a variation of an enterprise agreement is made, see section 209.

(2) The employees referred to in paragraphs (1)(a) and (b) are the affected employees for the variation.

Variation has no effect unless approved by FWA

(3) A variation of an enterprise agreement has no effect unless it is approved by FWA under section 211.

Limitation—greenfields agreement

(4) Subsection (1) applies to a greenfields agreement only if one or more of the persons who will be necessary for the normal conduct of the enterprise concerned and are covered by the agreement have been employed.

208 Employers may request employees to approve a proposed variation of an enterprise agreement

(1) An employer covered by an enterprise agreement may request the affected employees for a proposed variation of the agreement to approve the proposed variation by voting for it.

(2) Without limiting subsection (1), the employer may request that the affected employees vote by ballot or by an electronic method.

209 When a variation of an enterprise agreement is made

Single‑enterprise agreement

(1) If the affected employees of an employer, or each employer, covered by a single‑enterprise agreement have been asked to approve a proposed variation under subsection 208(1), the variation is made when a majority of the affected employees who cast a valid vote approve the variation.

Multi‑enterprise agreement

(2) If the affected employees of each employer covered by a multi‑enterprise agreement have been asked to approve a proposed variation under subsection 208(1), the variation is made when a majority of the affected employees of each individual employer who cast a valid vote have approved the variation.

210 Application for FWA approval of a variation of an enterprise agreement

Application for approval

(1) If a variation of an enterprise agreement has been made, a person covered by the agreement must apply to FWA for approval of the variation.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the variation; and

(b) a copy of the agreement as proposed to be varied; and

When the application must be made

(3) The application must be made:

(a) within 14 days after the variation is made; or

(b) if in all the circumstances FWA considers it fair to extend that period—within such further period as FWA allows.

Signature requirements

(4) The regulations may prescribe requirements relating to the signing of variations of enterprise agreements.

211 When FWA must approve a variation of an enterprise agreement

Approval of variation by FWA

(1) If an application for the approval of a variation of an enterprise agreement is made under section 210, FWA must approve the variation if:

(a) FWA is satisfied that had an application been made under section 185 for the approval of the agreement as proposed to be varied, FWA would have been required to approve the agreement under section 186; and

(b) FWA is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which FWA approved the agreement;

unless FWA is satisfied that there are serious public interest grounds for not approving the variation.

Note: FWA may approve a variation under this section with undertakings (see section 212).

Modification of approval requirements

(2) For the purposes of FWA deciding whether it is satisfied of the matter referred to in paragraph (1)(a), FWA must:

(a) take into account subsections (3) and (4) and any regulations made for the purposes of subsection (6); and

(b) comply with subsection (5); and

(3) The following provisions:

(a) section 180 (which deals with pre‑approval steps);

(b) subsection 186(2) (which deals with FWA approval of enterprise agreements);

have effect as if:

(d) references in sections 180 and 188 to the proposed enterprise agreement, or the enterprise agreement, were references to the proposed variation, or the variation, of the enterprise agreement (as the case may be); and

(e) references in those provisions to the employees employed at the time who will be covered by the proposed enterprise agreement, or the employees covered by the enterprise agreement, were references to the affected employees for the variation; and

(f) references in section 180 to subsection 181(1) were references to subsection 208(1); and

(g) the words “if the agreement is not a greenfields
agreement—” in paragraph 186(2)(a) were omitted; and

(h) paragraph 186(2)(b) were omitted; and

(ha) references in paragraphs 186(2)(c) and (d) to the agreement were references to the enterprise agreement as proposed to be varied; and

(hb) subparagraph 188(a)(ii) were omitted; and

(j) the words “182(1) or (2)” in paragraph 188(b) were omitted and the words “209(1) or (2)” were substituted.

(4) Section 193 (which deals with passing the better off overall test) has effect as if:

(a) the words “that is not a greenfields agreement” in subsection (1) were omitted; and

(b) subsection (3) were omitted; and

(c) the words “the agreement” in subsection (6) were omitted and the words “the variation of the enterprise agreement” were substituted; and

(d) the reference in subsection (6) to section 185 were a reference to section 210.

(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, FWA must disregard any individual flexibility arrangement that has been agreed to by an award covered employee and his or her employer under the flexibility term in the agreement.

Regulations may prescribe additional modifications

(6) The regulations may provide that, for the purposes of FWA deciding whether it is satisfied of the matter referred to in paragraph (1)(a), specified provisions of this Part have effect with such modifications as are prescribed by the regulations.

212 FWA may approve a variation of an enterprise agreement with undertakings

Application of this section

(1) This section applies if:

(a) an application for the approval of a variation of an enterprise agreement has been made under section 210; and

(b) FWA has a concern that the variation does not meet the requirements set out in section 211.

Approval of agreement with undertakings

(2) FWA may approve the variation under section 211 if FWA is satisfied that an undertaking accepted by FWA under subsection (3) of this section meets the concern.

Undertakings

(3) FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:

(a) cause financial detriment to any affected employee for the variation; or

(b) result in substantial changes to the variation.

Signature requirements

(4) An undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.

213 Effect of undertakings

(1) If:

(a) FWA approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation; and

(b) the agreement covers a single employer;

the undertaking is taken to be a term of the agreement, as the agreement applies to the employer.

(2) If:

(a) FWA approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation; and

(b) the agreement covers 2 or more employers;

the undertaking is taken to be a term of the agreement, as the agreement applies to each employer that gave the undertaking.

214 When FWA may refuse to approve a variation of an enterprise agreement

(1) If an application for the approval of a variation of an enterprise agreement is made under section 210, FWA may refuse to approve the variation if FWA considers that compliance with the terms of the agreement as proposed to be varied may result in:

(a) a person committing an offence against a law of the Commonwealth; or

(b) a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth.

(2) Subsection (1) has effect despite section 211 (which deals with the approval of variations of enterprise agreements).

(3) If FWA refuses to approve a variation of an enterprise agreement under this section, FWA may refer the agreement as proposed to be varied to any person or body FWA considers appropriate.

215 Approval decision to note undertakings

If FWA approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation, FWA must note in its decision to approve the variation that the undertaking is taken to be a term of the agreement.

216 When variation comes into operation

If a variation of an enterprise agreement is approved under section 211, the variation operates from the day specified in the decision to approve the variation.

Subdivision B—Variations of enterprise agreements where there is ambiguity, uncertainty or discrimination

217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) FWA may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(2) If FWA varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.

217A FWA may deal with certain disputes about variations

(1) This section applies if a variation of an enterprise agreement is proposed.

(2) An employer or employee organisation covered by the enterprise agreement or an affected employee for the variation may apply to FWA for FWA to deal with a dispute about the proposed variation if the employer and the affected employees are unable to resolve the dispute.

(3) FWA must not arbitrate (however described) the dispute.

218 Variation of an enterprise agreement on referral by HREOC

Review of an enterprise agreement

(1) FWA must review an enterprise agreement if the agreement is referred to it under section 46PW of the Human Rights and Equal Opportunity Commission Act 1986 (which deals with discriminatory industrial instruments).

(2) The Sex Discrimination Commissioner is entitled to make submissions to FWA for consideration in the review.

Variation of an enterprise agreement

(3) If FWA considers that the agreement reviewed requires a person to do an act that would be unlawful under Part II of the Sex Discrimination Act 1984 (but for the fact that the act would be done in direct compliance with the agreement), FWA must vary the agreement so that it no longer requires the person to do an act that would be so unlawful.

(4) If the agreement is varied under subsection (3), the variation operates from the day specified in the decision to vary the agreement.

Subdivision C—Termination of enterprise agreements by employers and employees

219 Employers and employees may agree to terminate an enterprise agreement

Termination by employers and employees

(1) The following may jointly agree to terminate an enterprise agreement:

(a) if the agreement covers a single employer—the employer and the employees covered by the agreement; or

(b) if the agreement covers 2 or more employers—all of the employers and the employees covered by the agreement.

Note: For when a termination of an enterprise agreement is agreed to, see section 221.

Termination has no effect unless approved by FWA

(2) A termination of an enterprise agreement has no effect unless it is approved by FWA under section 223.

Limitation—greenfields agreement

(3) Subsection (1) applies to a greenfields agreement only if one or more of the persons who will be necessary for the normal conduct of the enterprise concerned and are covered by the agreement have been employed.

220 Employers may request employees to approve a proposed termination of an enterprise agreement

(1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

(2) Before making the request, the employer must:

(a) take all reasonable steps to notify the employees of the following:

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and

(b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

221 When termination of an enterprise agreement is agreed to

Single‑enterprise agreement

(1) If the employees of an employer, or each employer, covered by a single‑enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

Multi‑enterprise agreement

(2) If the employees of each employer covered by a multi‑enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees of each individual employer who cast a valid vote have approved the termination.

222 Application for FWA approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to FWA for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances FWA considers it fair to extend that period—within such further period as FWA allows.

223 When FWA must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, FWA must approve the termination if:

(a) FWA is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) FWA is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) FWA is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) FWA considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.

Subdivision D—Termination of enterprise agreements after nominal expiry date

225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to FWA for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

226 When FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.

Division 8—FWA’s general role in facilitating bargaining

Subdivision A—Bargaining orders

228 Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f) recognising and bargaining with the other bargaining representatives for the agreement.

(2) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.

229 Applications for bargaining orders

Persons who may apply for a bargaining order

(1) A bargaining representative for a proposed enterprise agreement may apply to FWA for an order (a bargaining order) under section 230 in relation to the agreement.

Multi‑enterprise agreements

(2) An application for a bargaining order must not be made in relation to a proposed multi‑enterprise agreement unless a low‑paid authorisation is in operation in relation to the agreement.

Timing of applications

(3) The application may only be made at whichever of the following times applies:

(a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:

(i) not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or

(ii) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;

(b) otherwise—at any time.

Note: An employer cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice of employee representational rights is given.

Prerequisites for making an application

(4) The bargaining representative may only apply for the bargaining order if the bargaining representative:

(a) has concerns that:

(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) has given a written notice setting out those concerns to the relevant bargaining representatives; and

(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.

Non‑compliance with notice requirements may be permitted

(5) FWA may consider the application even if it does not comply with paragraph (4)(b) or (c) if FWA is satisfied that it is appropriate in all the circumstances to do so.

230 When FWA may make a bargaining order

Bargaining orders

(1) FWA may make a bargaining order under this section in relation to a proposed enterprise agreement if:

(a) an application for the order has been made; and

(b) the requirements of this section are met in relation to the agreement; and

Agreement to bargain or certain instruments in operation

(2) FWA must be satisfied in all cases that one of the following applies:

(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;

(b) a majority support determination in relation to the agreement is in operation;

(d) all of the employers are specified in a low‑paid authorisation that is in operation in relation to the agreement.

Good faith bargaining requirements not met

(3) FWA must in all cases be satisfied:

(a) that:

(i) one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.

Bargaining order must be in accordance with section 231

(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).

231 What a bargaining order must specify

(1) A bargaining order in relation to a proposed enterprise agreement must specify all or any of the following:

(a) the actions to be taken by, and requirements imposed upon, the bargaining representatives for the agreement, for the purpose of ensuring that they meet the good faith bargaining requirements;

(b) requirements imposed upon those bargaining representatives not to take action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining;

(c) the actions to be taken by those bargaining representatives to deal with the effects of such capricious or unfair conduct;

(d) such matters, actions or requirements as FWA considers appropriate, taking into account subparagraph 230(3)(a)(ii) (which deals with multiple bargaining representatives), for the purpose of promoting the efficient or fair conduct of bargaining for the agreement.

(2) The kinds of bargaining orders that FWA may make in relation to a proposed enterprise agreement include the following:

(a) an order excluding a bargaining representative for the agreement from bargaining;

(b) an order requiring some or all of the bargaining representatives of the employees who will be covered by the agreement to meet and appoint one of the bargaining representatives to represent the bargaining representatives in bargaining;

(c) an order that an employer not terminate the employment of an employee, if the termination would constitute, or relate to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining);

(d) an order to reinstate an employee whose employment has been terminated if the termination constitutes, or relates to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining).

(3) The regulations may:

(a) specify the factors FWA may or must take into account in deciding whether or not to make a bargaining order for reinstatement of an employee; and

(b) provide for FWA to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind.

232 Operation of a bargaining order

A bargaining order in relation to a proposed enterprise agreement:

(a) comes into operation on the day on which it is made; and

(b) ceases to be in operation at the earliest of the following:

(i) if the order is revoked—the time specified in the instrument of revocation;

(ii) when the agreement is approved by FWA;

(iii) when a workplace determination that covers the employees that would have been covered by the agreement comes into operation;

(iv) when the bargaining representatives for the agreement agree that bargaining has ceased.

233 Contravening a bargaining order

A person to whom a bargaining order applies must not contravene a term of the order.

Note: This section is a civil remedy provision (see Part 4‑1).

Subdivision B—Serious breach declarations

234 Applications for serious breach declarations

A bargaining representative for a proposed enterprise agreement may apply to FWA for a declaration (a serious breach declaration) under section 235 in relation to the agreement.

Note: The consequence of a serious breach declaration being made in relation to the agreement is that FWA may, in certain circumstances, make a bargaining related workplace determination under section 269 in relation to the agreement.

235 When FWA may make a serious breach declaration

Serious breach declaration

(1) FWA may make a serious breach declaration in relation to a proposed enterprise agreement if:

(a) an application for the declaration has been made; and

(b) FWA is satisfied of the matters set out in subsection (2).

Matters of which FWA must be satisfied before making a serious breach declaration

(2) FWA must be satisfied that:

(a) one or more bargaining representatives for the agreement has contravened one or more bargaining orders in relation to the agreement; and

(b) the contravention or contraventions:

(i) are serious and sustained; and

(ii) have significantly undermined bargaining for the agreement; and

(c) the other bargaining representatives for the agreement (the designated bargaining representatives) have exhausted all other reasonable alternatives to reach agreement on the terms that should be included in the agreement; and

(d) agreement on the terms that should be included in the agreement will not be reached in the foreseeable future; and

(e) it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement.

Factors FWA must take into account in deciding whether reasonable alternatives exhausted

(3) In deciding whether or not the designated bargaining representatives have exhausted all other reasonable alternatives to reach agreement on the terms that should be included in the agreement, FWA may take into account any matter FWA considers relevant, including the following:

(a) whether FWA has provided assistance under section 240 in relation to the agreement;

(b) whether a designated bargaining representative has applied to a court for an order under Part 4‑1 in relation to the contravention or contraventions referred to in paragraph (2)(a) of this section; and

What declaration must specify

(4) The declaration must specify:

(a) the proposed enterprise agreement to which the declaration relates; and

(b) any other matter prescribed by the procedural rules.

Operation of declaration

(5) The declaration:

(a) comes into operation on the day on which it is made; and

(b) ceases to be in operation when each employer specified in the declaration is covered by an enterprise agreement or a workplace determination.

Subdivision C—Majority support determinations and scope orders

236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single‑enterprise agreement may apply to FWA for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

(2) The application must specify:

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.

237 When FWA must make a majority support determination

Majority support determination

(1) FWA must make a majority support determination in relation to a proposed single‑enterprise agreement if:

(a) an application for the determination has been made; and

(b) FWA is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which FWA must be satisfied before making a majority support determination

(2) FWA must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by FWA; and

(ii) who will be covered by the agreement;

want to bargain; and

(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

(d) it is reasonable in all the circumstances to make the determination.

(3) For the purposes of paragraph (2)(a), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Operation of determination

(4) The determination comes into operation on the day on which it is made.

238 Scope orders

Bargaining representatives may apply for scope orders

(1) A bargaining representative for a proposed single‑enterprise agreement may apply to FWA for an order (a scope order) under this section if:

(a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and

(b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.

No scope order if a single interest employer authorisation is in operation

(2) Despite subsection (1), the bargaining representative must not apply for the scope order if a single interest employer authorisation is in operation in relation to the agreement.

Bargaining representative must have given notice of concerns

(3) The bargaining representative may only apply for the scope order if the bargaining representative:

(a) has given a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and

(b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

When FWA may make scope order

(4) FWA may make the scope order if FWA is satisfied:

(a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and

(b) that making the order will promote the fair and efficient conduct of bargaining; and

(c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and

(d) it is reasonable in all the circumstances to make the order.

Matters which FWA must take into account

(4A) If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Scope order must specify employer and employees to be covered

(5) The scope order must specify, in relation to a proposed single‑enterprise agreement:

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.

Scope order must be in accordance with this section etc.

(6) The scope order:

(a) must be in accordance with this section; and

(b) may relate to more than one proposed single‑enterprise agreement.

Orders etc. that FWA may make

(7) If FWA makes the scope order, FWA may also:

(a) amend any existing bargaining orders; and

(b) make or vary such other orders (such as protected action ballot orders), determinations or other instruments made by FWA, or take such other actions, as FWA considers appropriate.

239 Operation of a scope order

A scope order in relation to a proposed single‑enterprise agreement:

(a) comes into operation on the day on which it is made; and

(b) ceases to be in operation at the earliest of the following:

(i) if the order is revoked—the time specified in the instrument of revocation;

(ii) when the agreement is approved by FWA;

(iii) when a workplace determination that covers the employees that would have been covered by the agreement comes into operation;

(iv) when the bargaining representatives for the agreement agree that bargaining has ceased.

Subdivision D—FWA may deal with a bargaining dispute on request

240 Application for FWA to deal with a bargaining dispute

Bargaining representative may apply for FWA to deal with a dispute

(1) A bargaining representative for a proposed enterprise agreement may apply to FWA for FWA to deal with a dispute about the agreement if the bargaining representatives for the agreement are unable to resolve the dispute.

(2) If the proposed enterprise agreement is:

(a) a single‑enterprise agreement; or

(b) a multi‑enterprise agreement in relation to which a low‑paid authorisation is in operation;

the application may be made by one bargaining representative, whether or not the other bargaining representatives for the agreement have agreed to the making of the application.

(3) If subsection (2) does not apply, a bargaining representative may only make the application if all of the bargaining representatives for the agreement have agreed to the making of the application.

(4) If the bargaining representatives have agreed that FWA may arbitrate (however described) the dispute, FWA may do so.

Division 9—Low‑paid bargaining

241 Objects of this Division

The objects of this Division are:

(a) to assist and encourage low‑paid employees and their employers, who have not historically had the benefits of collective bargaining, to make an enterprise agreement that meets their needs; and

(b) to assist low‑paid employees and their employers to identify improvements to productivity and service delivery through bargaining for an enterprise agreement that covers 2 or more employers, while taking into account the specific needs of individual enterprises; and

(c) to address constraints on the ability of low‑paid employees and their employers to bargain at the enterprise level, including constraints relating to a lack of skills, resources, bargaining strength or previous bargaining experience; and

(d) to enable FWA to provide assistance to low‑paid employees and their employers to facilitate bargaining for enterprise agreements.

Note: A low‑paid workplace determination may be made in specified circumstances under Division 2 of Part 2‑5 if the bargaining representatives for a proposed enterprise agreement in relation to which a low‑paid authorisation is in operation are unable to reach agreement.

242 Low‑paid authorisations

(1) The following persons may apply to FWA for an authorisation (a low‑paid authorisation) under section 243 in relation to a proposed multi‑enterprise agreement:

(a) a bargaining representative for the agreement;

(b) an employee organisation that is entitled to represent the industrial interests of an employee in relation to work to be performed under the agreement.

Note: The effect of a low‑paid authorisation is that the employers specified in it are subject to certain rules in relation to the agreement that would not otherwise apply (such as in relation to the availability of bargaining orders, see subsection 229(2)).

(2) The application must specify:

(a) the employers that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.

(3) An application under this section must not be made in relation to a proposed greenfields agreement.

243 When FWA must make a low‑paid authorisation

Low‑paid authorisation

(1) FWA must make a low‑paid authorisation in relation to a proposed multi‑enterprise agreement if:

(a) an application for the authorisation has been made; and

(b) FWA is satisfied that it is in the public interest to make the authorisation, taking into account the matters specified in subsections (2) and (3).

FWA must take into account historical and current matters relating to collective bargaining

(2) In deciding whether or not to make the authorisation, FWA must take into account the following:

(a) whether granting the authorisation would assist low‑paid employees who have not had access to collective bargaining or who face substantial difficulty bargaining at the enterprise level;

(b) the history of bargaining in the industry in which the employees who will be covered by the agreement work;

(d) the current terms and conditions of employment of the employees who will be covered by the agreement, as compared to relevant industry and community standards;

(e) the degree of commonality in the nature of the enterprises to which the agreement relates, and the terms and conditions of employment in those enterprises.

FWA must take into account matters relating to the likely success of collective bargaining

(3) In deciding whether or not to make the authorisation, FWA must also take into account the following:

(a) whether granting the authorisation would assist in identifying improvements to productivity and service delivery at the enterprises to which the agreement relates;

(b) the extent to which the likely number of bargaining representatives for the agreement would be consistent with a manageable collective bargaining process;

(d) the extent to which the terms and conditions of employment of the employees who will be covered by the agreement is controlled, directed or influenced by a person other than the employer, or employers, that will be covered by the agreement;

(e) the extent to which the applicant for the authorisation is prepared to consider and respond reasonably to claims, or responses to claims, that may be made by a particular employer named in the application, if that employer later proposes to bargain for an agreement that:

(i) would cover that employer; and

(ii) would not cover the other employers specified in the application.

What authorisation must specify etc.

(4) The authorisation must specify:

(a) the employers that will be covered by the agreement (which may be some or all of the employers specified in the application); and

(b) the employees who will be covered by the agreement (which may be some or all of the employees specified in the application); and

Operation of authorisation

(5) The authorisation comes into operation on the day on which it is made.

244 Variation of low‑paid authorisations—general

Variation to remove employer

(1) An employer specified in a low‑paid authorisation may apply to FWA for a variation of the authorisation to remove the employer’s name from the authorisation.

(2) If an application is made under subsection (1), FWA must vary the authorisation to remove the employer’s name if FWA is satisfied that, because of a change in the employer’s circumstances, it is no longer appropriate for the employer to be specified in the authorisation.

Variation to add employer

(3) The following may apply to FWA for a variation of a low‑paid authorisation to add the name of an employer that is not specified in the authorisation:

(a) the employer;

(b) a bargaining representative of an employee who will be covered by the proposed multi‑enterprise agreement to which the authorisation relates;

(c) an employee organisation that is entitled to represent the industrial interests of an employee in relation to work to be performed under that agreement.

(4) If an application is made under subsection (3), FWA must vary the authorisation to add the employer’s name if FWA is satisfied that it is in the public interest to do so, taking into account the matters specified in subsections 243(2) and (3).

245 Variation of low‑paid authorisations—enterprise agreement etc. comes into operation

FWA is taken to have varied a low‑paid authorisation to remove an employer’s name when an enterprise agreement, or a workplace determination, that covers the employer comes into operation.

246 FWA assistance for the low‑paid

Application of this section

(1) This section applies if a low‑paid authorisation is in operation in relation to a proposed multi‑enterprise agreement.

FWA assistance

(2) FWA may, on its own initiative, provide to the bargaining representatives for the agreement such assistance:

(a) that FWA considers appropriate to facilitate bargaining for the agreement; and

(b) that FWA could provide if it were dealing with a dispute.

Note: This section does not empower FWA to arbitrate, because subsection 595(3) provides that FWA may arbitrate only if expressly authorised to do so.

FWA may direct a person to attend a conference

(3) Without limiting subsection (2), FWA may provide assistance by directing a person who is not an employer specified in the authorisation to attend a conference at a specified time and place if FWA is satisfied that the person exercises such a degree of control over the terms and conditions of the employees who will be covered by the agreement that the participation of the person in bargaining is necessary for the agreement to be made.

(4) Subsection (3) does not limit FWA’s powers under Subdivision B of Division 3 of Part 5‑1.

Division 10—Single interest employer authorisations

Subdivision A—Declaration that employers may bargain together for a proposed enterprise agreement

247 Ministerial declaration that employers may bargain together for a proposed enterprise agreement

Application for declaration

(1) Two or more employers that will be covered by a proposed enterprise agreement may apply to the Minister for a declaration under subsection (3).

Note: Employers named in a declaration may apply for a single interest employer authorisation (see Subdivision B of this Division).

(2) The application must specify the employers (the relevant employers) that will be covered by the agreement.

Declaration by the Minister

(3) If an application is made under subsection (1), the Minister may declare, in writing, that the relevant employers may bargain together for the agreement.

(4) In deciding whether or not to make the declaration, the Minister must take into account the following matters:

(a) the history of bargaining of each of the relevant employers, including whether they have previously bargained together;

(b) the interests that the relevant employers have in common, and the extent to which those interests are relevant to whether they should be permitted to bargain together;

(d) whether it would be more appropriate for each of the relevant employers to make a separate enterprise agreement with its employees;

(e) the extent to which the relevant employers operate collaboratively rather than competitively;

(f) whether the relevant employers are substantially funded, directly or indirectly, by the Commonwealth, a State or a Territory;

(g) any other matter the Minister considers relevant.

(5) If the Minister decides to make the declaration, the relevant employers must be specified in the declaration.

(6) A declaration under subsection (3) is not a legislative instrument.

Subdivision B—Single interest employer authorisations

248 Single interest employer authorisations

(1) Two or more employers may apply to FWA for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement.

Note: The effect of a single interest employer authorisation is that the employers are single interest employers in relation to the agreement (see paragraph 172(5)(c)).

(2) The application must specify the following:

(a) the employers that will be covered by the agreement;

(b) the employees who will be covered by the agreement;

249 When FWA must make a single interest employer authorisation

Single interest employer authorisation

(1) FWA must make a single interest employer authorisation in relation to a proposed enterprise agreement if:

(a) an application for the authorisation has been made; and

(b) FWA is satisfied that:

(i) the employers that will be covered by the agreement have agreed to bargain together; and

(ii) no person coerced, or threatened to coerce, any of the employers to agree to bargain together; and

(c) the requirements of either subsection (2) (which deals with franchisees) or (3) (which deals with employers that may bargain together for a proposed enterprise agreement) are met.

Franchisees

(2) The requirements of this subsection are met if FWA is satisfied that the employers carry on similar business activities under the same franchise and are:

(a) franchisees of the same franchisor; or

(b) related bodies corporate of the same franchisor; or

Employers that may bargain together for the agreement

(3) The requirements of this subsection are met if FWA is satisfied that all of the employers are specified in a declaration made under section 247 in relation to the agreement.

Operation of authorisation

(4) The authorisation:

(a) comes into operation on the day on which it is made; and

(b) ceases to be in operation at the earlier of the following:

(i) the day on which the enterprise agreement to which the authorisation relates is made;

(ii) 12 months after the day on which the authorisation is made or, if the period is extended under section 252, at the end of that period.

250 What a single interest employer authorisation must specify

What authorisation must specify

(1) A single interest employer authorisation in relation to a proposed enterprise agreement must specify the following:

(a) the employers that will be covered by the agreement;

(b) the employees who will be covered by the agreement;

(d) any other matter prescribed by the procedural rules.

Authorisation may relate to only some of employers or employees

(2) If FWA is satisfied of the matters specified in subsection 249(2) or (3) (which deal with franchisees and employers that may bargain together for a proposed enterprise agreement) in relation to only some of the employers that will be covered by the agreement, FWA may make a single interest employer authorisation specifying those employers and their employees only.

251 Variation of single interest employer authorisations

Variation to remove employer

(1) An employer specified in a single interest employer authorisation in relation to a proposed enterprise agreement may apply to FWA for a variation of the authorisation to remove the employer’s name from the authorisation.

Variation to add employer

(3) An employer that is not specified in a single interest employer authorisation may apply to FWA for a variation of the authorisation to add the employer’s name to the authorisation.

(4) If an application is made under subsection (3), FWA must vary the authorisation to add the employer’s name if FWA is satisfied that:

(a) each employer specified in the authorisation has agreed to the employer’s name being added; and

(b) no person coerced, or threatened to coerce, the employer to make the application; and

(c) the requirements of subsection 249(2) or (3) (which deal with franchisees and employers that may bargain together for a proposed enterprise agreement) are met.

252 Variation to extend period single interest employer authorisation is in operation

(1) A bargaining representative for a proposed enterprise agreement to which a single interest employer authorisation relates may apply to FWA to vary the authorisation to extend the period for which the authorisation is in operation.

(2) FWA may vary the authorisation to extend the period if FWA is satisfied that:

(a) there are reasonable prospects that the agreement will be made if the authorisation is in operation for a longer period; and

(b) it is appropriate in all the circumstances to extend the period.

Division 11—Other matters

253 Terms of an enterprise agreement that are of no effect

(1) A term of an enterprise agreement has no effect to the extent that:

(a) it is not a term about a permitted matter; or

(b) it is an unlawful term; or

Note 1: A term of an enterprise agreement has no effect to the extent that it contravenes section 55 (see section 56).

Note 2: A term of an enterprise agreement permitting or requiring deductions or payments to be made has no effect if it benefits the employer and is unreasonable in the circumstances (see section 326).

(2) However, if an enterprise agreement includes a term that has no effect because of subsection (1), or section 56 or 326, the inclusion of the term does not prevent the agreement from being an enterprise agreement.

254 Applications by bargaining representatives

Application of this section

(1) This section applies if a provision of this Part permits an application to be made by a bargaining representative of an employer that will be covered by a proposed enterprise agreement.

Persons who may make applications

(2) If the agreement will cover more than one employer, the application may be made by:

(a) in the case of a proposed enterprise agreement in relation to which a single interest employer authorisation is in operation—the person (if any) specified in the authorisation as the person who may make applications under this Act; or

(b) in any case—a bargaining representative of an employer that will be covered by the agreement, on behalf of one or more other such bargaining representatives, if those other bargaining representatives have agreed to the application being made on their behalf.

255 Part does not empower FWA to make certain orders

(1) This Part does not empower FWA to make an order that requires, or has the effect of requiring:

(a) particular content to be included or not included in a proposed enterprise agreement; or

(b) an employer to request under subsection 181(1) that employees approve a proposed enterprise agreement; or

(2) Despite paragraph (1)(a), FWA may make an order that particular content be included or not included in a proposed enterprise agreement if the order is made in the course of arbitration undertaken when dealing with a dispute under section 240.

Note: FWA may only arbitrate a dispute under section 240 if arbitration has been agreed to by the bargaining representatives for the agreement (see subsection 240(4)).

256 Prospective employers and employees

A reference to an employer, or an employee, in relation to a greenfields agreement, includes a reference to a person who may become an employer or employee.

256A How employees, employers and employee organisations are to be described

(1) This section applies if a provision of this Part requires or permits an instrument of any kind to specify the employers, employees or employee organisations covered, or who will be covered, by an enterprise agreement or other instrument.

(2) The employees may be specified by class or by name.

(3) The employers and employee organisations must be specified by name.

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

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

(b) a particular kind of work;

(d) a particular classification, job level or grade.

257 Enterprise agreements may incorporate material in force from time to time etc.

Despite section 46AA of the Acts Interpretation Act 1901, an enterprise agreement may incorporate material contained in an instrument or other writing:

(a) as in force at a particular time; or

(b) as in force from time to time.

Part 2‑5—Workplace determinations

Division 1—Introduction

258 Guide to this Part

This Part is about workplace determinations, which provide terms and conditions for those national system employees to whom they apply.

Division 2 deals with low‑paid workplace determinations. Bargaining representatives for a proposed multi‑enterprise agreement may apply to FWA for such a determination if they are unable to reach agreement on the terms that should be included in the agreement.

Division 3 deals with industrial action related workplace determinations. FWA must make such a determination if:

(a) a termination of industrial action instrument is made in relation to a proposed enterprise agreement; and

(b) after the end of the post‑industrial action negotiating period, the bargaining representatives for the agreement have not settled the matters that were at issue during bargaining for the agreement.

Division 4 deals with bargaining related workplace determinations. FWA must make such a determination if:

(a) a serious breach declaration is made in relation to a proposed enterprise agreement; and

(b) after the end of the post‑declaration negotiating period, the bargaining representatives for the agreement have not settled the matters that were at issue during bargaining for the agreement.

Division 5 sets out the core terms, mandatory terms and agreed terms of workplace determinations. It also sets out the factors that FWA must take into account in deciding the terms of a workplace determination.

Division 6 deals with the operation, coverage and interaction etc. of workplace determinations. It also provides that, subject to certain exceptions, this Act applies to a workplace determination that is in operation as if it were an enterprise agreement that is in operation.

Division 7 deals with contraventions of workplace determinations and other matters relating to applications by bargaining representatives.

259 Meanings of employee and employer

In this Part, employee means a national system employee, and employer means a national system employer.

Division 2—Low‑paid workplace determinations

260 Applications for low‑paid workplace determinations

Application of this section

(1) This section applies if:

(a) a low‑paid authorisation is in operation in relation to a proposed multi‑enterprise agreement; and

(b) one or more of the bargaining representatives for the agreement are unable to reach agreement on the terms that should be included in the agreement.

Consent low‑paid workplace determination

(2) The following bargaining representatives for the agreement may jointly apply to FWA for a determination (a consent low‑paid workplace determination) under section 261:

(a) one or more bargaining representatives of one or more of the employers that would have been covered by the agreement;

(b) the bargaining representative or representatives of the employees of those employers.

(3) An application for a consent low‑paid workplace determination must specify the following:

(a) the bargaining representatives making the application;

(b) the terms that those bargaining representatives have, at the time of the application, agreed should be included in the agreement;

(d) the employers that have consented to being covered by the determination;

(e) those employers’ employees who will be covered by the determination;

(f) each employee organisation (if any) that is a bargaining representative of those employees.

Special low‑paid workplace determination

(4) A bargaining representative for the agreement may apply to FWA for a determination (a special low‑paid workplace determination) under section 262.

(5) An application for a special low‑paid workplace determination must specify the following:

(a) the terms that the bargaining representatives concerned have, at the time of the application, agreed should be included in the agreement;

(b) the matters at issue at the time of the application;

(d) the employees who will be covered by the determination;

(e) each employee organisation (if any) that is a bargaining representative of those employees.

261 When FWA must make a consent low‑paid workplace determination

FWA must make a consent low‑paid workplace determination if:

(a) an application for the determination has been made; and

(b) FWA is satisfied that the bargaining representatives who made the application have made all reasonable efforts to agree on the terms that should be included in the agreement; and

Note: FWA must be constituted by a Full Bench to make a consent low‑paid workplace determination (see subsection 616(4)).

262 When FWA must make a special low‑paid workplace determination—general requirements

Special low‑paid workplace determination

(1) FWA must make a special low‑paid workplace determination under this section if:

(a) an application for the determination has been made; and

(b) the requirements set out in this section and section 263 are met.

Note: FWA must be constituted by a Full Bench to make a special low‑paid workplace determination (see subsection 616(4)).

Genuinely unable to reach agreement etc.

(2) FWA must be satisfied that:

(a) the bargaining representatives for the proposed multi‑enterprise agreement concerned are genuinely unable to reach agreement on the terms that should be included in the agreement; and

(b) there is no reasonable prospect of agreement being reached.

Minimum safety net

(3) FWA must be satisfied that, at the time of the application, the terms and conditions of the employees who will be covered by the determination were substantially equivalent to the minimum safety net of terms and conditions provided by modern awards together with the National Employment Standards.

Promotion of future bargaining for an enterprise agreement etc.

(4) FWA must be satisfied that the making of the determination will promote:

(a) bargaining in the future for an enterprise agreement or agreements that will cover the employers and employees who will be covered by the workplace determination; and

(b) productivity and efficiency in the enterprise or enterprises concerned.

Public interest

(5) FWA must be satisfied that it is in the public interest to make the determination.

263 When FWA must make a special low‑paid workplace determination—additional requirements

Additional requirements

(1) This section sets out additional requirements that must be met before FWA makes a special low‑paid determination (the relevant determination) under section 262.

No employer is specified in an application for a consent low‑paid workplace determination

(2) FWA must be satisfied that no employer that will be covered by the relevant determination is specified in an application for a consent low‑paid workplace determination that was made by bargaining representatives for the proposed multi‑enterprise agreement concerned before or after the application for the relevant determination was made.

No employer is, or has previously been, covered by an enterprise agreement or workplace determination

(3) FWA must be satisfied that no employer that will be covered by the relevant determination is, or has previously been, covered by an enterprise agreement, or another workplace determination, in relation to the work to be performed by the employees who will be covered by the relevant determination.

264 Terms etc. of a low‑paid workplace determination

Basic rule

(1) A low‑paid workplace determination must comply with subsection (4) and include:

(a) the terms set out in subsections (2) and (3); and

(b) the core terms set out in section 272; and

Note: For the factors that FWA must take into account in deciding the terms of the determination, see section 275.

Agreed terms

(2) The determination must include the agreed terms (see subsection 274(1)) for the determination.

Terms dealing with the matters at issue

(3) The determination must include the terms that FWA considers deal with the matters at issue specified in the application for the determination.

Coverage

(4) The determination must be expressed to cover the employers, employees and employee organisations (if any) that were specified in the application for the determination.

265 No other terms

A low‑paid workplace determination must not include any terms other than those required by subsection 264(1).

Division 3—Industrial action related workplace determinations

266 When FWA must make an industrial action related workplace determination

Industrial action related workplace determination

(1) If:

(a) a termination of industrial action instrument has been made in relation to a proposed enterprise agreement; and

(b) the post‑industrial action negotiating period ends; and

(c) the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the agreement;

FWA must make a determination (an industrial action related workplace determination) as quickly as possible after the end of that period.

Note: FWA must be constituted by a Full Bench to make an industrial action related workplace determination (see subsection 616(4)).

Termination of industrial action instrument

(2) A termination of industrial action instrument in relation to a proposed enterprise agreement is:

(a) an order under section 423 or 424 terminating protected industrial action for the agreement; or

(b) a declaration under section 431 terminating protected industrial action for the agreement.

Post‑industrial action negotiating period

(3) The post‑industrial action negotiating period is the period that:

(a) starts on the day on which the termination of industrial action instrument is made; and

(b) ends:

(i) 21 days after that day; or

(ii) if FWA extends that period under subsection (4)—42 days after that day.

(4) FWA must extend the period referred to in subparagraph (3)(b)(i) if:

(a) all of the bargaining representatives for the agreement jointly apply to FWA for the extension within 21 days after the termination of industrial action instrument was made; and

(b) those bargaining representatives have not settled all of the matters that were at issue during bargaining for the agreement.

267 Terms etc. of an industrial action related workplace determination

Basic rule

(1) An industrial action related workplace determination must comply with subsection (4) and include:

(a) the terms set out in subsections (2) and (3); and

(b) the core terms set out in section 272; and

Note: For the factors that FWA must take into account in deciding the terms of the determination, see section 275.

Agreed terms

(2) The determination must include the agreed terms (see subsection 274(2)) for the determination.

Terms dealing with the matters at issue

(3) The determination must include the terms that FWA considers deal with the matters that were still at issue at the end of the post‑industrial action negotiating period.

Coverage

(4) The determination must be expressed to cover:

(a) each employer that would have been covered by the proposed enterprise agreement concerned; and

(b) the employees who would have been covered by that agreement; and

268 No other terms

An industrial action related workplace determination must not include any terms other than those required by subsection 267(1).

Division 4—Bargaining related workplace determinations

269 When FWA must make a bargaining related workplace determination

Bargaining related workplace determination

(1) If:

(a) a serious breach declaration has been made in relation to a proposed enterprise agreement; and

(b) the post‑declaration negotiating period ends; and

(c) the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the agreement;

FWA must make a determination (a bargaining related workplace determination) as quickly as possible after the end of that period.

Note 1: A serious breach declaration may be made in relation to a proposed single‑enterprise agreement or a proposed multi‑enterprise agreement in relation to which a low‑paid authorisation is in operation (see sections 229 and 235).

Note 2: FWA must be constituted by a Full Bench to make a bargaining related workplace determination (see subsection 616(4)).

Post‑declaration negotiating period

(2) The post‑declaration negotiating period is the period that:

(a) starts on the day on which the serious breach declaration is made; and

(b) ends:

(i) 21 days after that day; or

(ii) if FWA extends that period under subsection (3)—42 days after that day.

(3) FWA must extend the period referred to in subparagraph (2)(b)(i) if:

(a) all of the bargaining representatives for the agreement jointly apply to FWA for the extension within 21 days after the serious breach declaration was made; and

(b) those bargaining representatives have not settled all of the matters that were at issue during bargaining for the agreement.

270 Terms etc. of a bargaining related workplace determination

Basic rule

(1) A bargaining related workplace determination must comply with whichever of subsection (4), (5) or (6) applies and include:

(a) the terms set out in this section; and

(b) the core terms set out in section 272; and

Note: For the factors that FWA must take into account in deciding the terms of the determination, see section 275.

Agreed terms

(2) The determination must include the agreed terms (see subsection 274(3)) for the determination.

Terms dealing with the matters at issue

(3) The determination must include the terms that FWA considers deal with the matters that were still at issue at the end of the post‑declaration negotiating period.

Coverage—single‑enterprise agreement

(4) If the serious breach declaration referred to in paragraph 269(1)(a) was made in relation to a proposed single‑enterprise agreement, the determination must be expressed to cover:

(a) each employer that would have been covered by the agreement; and

(b) the employees who would have been covered by that agreement; and

Coverage—multi‑enterprise agreement

(5) If:

(a) the serious breach declaration referred to in paragraph 269(1)(a) was made in relation to a proposed multi‑enterprise agreement in relation to which a low‑paid authorisation is in operation; and

(b) the bargaining representatives for the agreement that contravened a bargaining order as referred to in subsection 235(2) were bargaining representatives of one or more employers that would have been covered by the agreement;

the determination must be expressed to cover:

(d) their employees who would have been covered by the agreement; and

(e) each employee organisation (if any) that was a bargaining representative of those employees.

(6) If:

the determination must be expressed to cover:

(d) all of their employees who would have been covered by the agreement; and

(e) each employee organisation (if any) that was a bargaining representative of those employees.

271 No other terms

A bargaining related workplace determination must not include any terms other than those required by subsection 270(1).

Division 5—Core terms, mandatory terms and agreed terms of workplace determinations etc.

272 Core terms of workplace determinations

Core terms

(1) This section sets out the core terms that a workplace determination must include.

Nominal expiry date

(2) The determination must include a term specifying a date as the determination’s nominal expiry date, which must not be more than 4 years after the date on which the determination comes into operation.

Permitted matters etc.

(3) The determination must not include:

(a) any terms that would not be about permitted matters if the determination were an enterprise agreement; or

(b) a term that would be an unlawful term if the determination were an enterprise agreement; or

Better off overall test

(4) The determination must include terms such that the determination would, if the determination were an enterprise agreement, pass the better off overall test under section 193.

Safety net requirements

(5) The determination must not include a term that would, if the determination were an enterprise agreement, mean that FWA could not approve the agreement:

(a) because the term would contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); or

(b) because of the operation of Subdivision E of Division 4 of Part 2‑4 (which deals with approval requirements relating to particular kinds of employees).

273 Mandatory terms of workplace determinations

Mandatory terms

(1) This section sets out the mandatory terms that a workplace determination must include.

Term about settling disputes

(2) The determination must include a term that provides a procedure for settling disputes:

(a) about any matters arising under the determination; and

(b) in relation to the National Employment Standards.

(3) Subsection (2) does not apply to the determination if FWA is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy paragraphs 186(6)(a) and (b) (which deal with terms in enterprise agreements about settling disputes).

Flexibility term

(4) The determination must include the model flexibility term unless FWA is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy paragraph 202(1)(a) and section 203 (which deal with flexibility terms in enterprise agreements).

Consultation term

(5) The determination must include the model consultation term unless FWA is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy subsection 205(1) (which deals with terms about consultation in enterprise agreements).

274 Agreed terms for workplace determinations

Agreed term for a low‑paid workplace determination

(1) An agreed term for a low‑paid workplace determination is a term that the application for the determination specifies as a term that the bargaining representatives concerned had, at the time of the application, agreed should be included in the proposed multi‑enterprise agreement concerned.

Note: The determination must include an agreed term (see subsection 264(2)).

Agreed term for an industrial action related workplace determination

(2) An agreed term for an industrial action related workplace determination is a term that the bargaining representatives for the proposed enterprise agreement concerned had, at the end of the post‑industrial action negotiating period, agreed should be included in the agreement.

Note: The determination must include an agreed term (see subsection 267(2)).

Agreed term for a bargaining related workplace determination

(3) An agreed term for a bargaining related workplace determination is a term that the bargaining representatives for the proposed enterprise agreement concerned had, at the end of the post‑declaration negotiating period, agreed should be included in the agreement.

Note: The determination must include an agreed term (see subsection 270(2)).

275 Factors FWA must take into account in deciding terms of a workplace determination

The factors that FWA must take into account in deciding which terms to include in a workplace determination include the following:

(a) the merits of the case;

(b) for a low‑paid workplace determination—the interests of the employers and employees who will be covered by the determination, including ensuring that the employers are able to remain competitive;

(c) for a workplace determination other than a low‑paid workplace determination—the interests of the employers and employees who will be covered by the determination;

(d) the public interest;

(e) how productivity might be improved in the enterprise or enterprises concerned;

(f) the extent to which the conduct of the bargaining representatives for the proposed enterprise agreement concerned was reasonable during bargaining for the agreement;

(g) the extent to which the bargaining representatives for the proposed enterprise agreement concerned have complied with the good faith bargaining requirements;

(h) incentives to continue to bargain at a later time.

Division 6—Operation, coverage and interaction etc. of workplace determinations

276 When a workplace determination operates etc.

(1) A workplace determination operates from the day on which it is made.

(2) A workplace determination ceases to operate on the earlier of the following days:

(a) the day on which a termination of the determination comes into operation under section 224 or 227 as applied to the determination by section 279 (which deals with the application of this Act to workplace determinations);

(b) the day on which section 278 first has the effect that there is no employee to whom the agreement applies.

Note: Section 278 deals with when a workplace determination ceases to apply to an employee.

(3) A workplace determination that has ceased to operate can never operate again.

277 Employers, employees and employee organisations covered by a workplace determination

Employers, employees and employee organisations

(1) A workplace determination covers an employer, employee or employee organisation if the determination is expressed to cover the employer, employee or organisation.

Effect of provisions of this Act, FWA orders and court orders on coverage

(2) A workplace determination also covers an employer, employee or employee organisation if any of the following provides, or has the effect, that the determination covers the employer, employee or organisation:

(a) a provision of this Act;

(b) an FWA order made under a provision of this Act;

(3) Despite subsections (1) and (2), a workplace determination does not cover an employer, employee or employee organisation if any of the following provides, or has the effect, that the determination does not cover the employer, employee or organisation:

(a) another provision of this Act;

(b) an FWA order made under another provision of this Act;

Workplace determinations that have ceased to operate

(4) Despite subsections (1) and (2), a workplace determination that has ceased to operate does not cover an employer, employee or employee organisation.

Workplace determinations cover employees in relation to particular employment

(5) A reference in this Act to a workplace determination covering an employee is a reference to the determination covering the employee in relation to particular employment.

278 Interaction of a workplace determination with enterprise agreements etc.

Interaction with an enterprise agreement

(1) If:

(a) a workplace determination applies to an employee in relation to particular employment; and

(b) an enterprise agreement that covers the employee in relation to the same employment comes into operation;

the determination ceases to apply to the employee in relation to that employment, and can never so apply again.

Interaction with another workplace determination

(2) If:

(a) a workplace determination (the earlier determination) applies to an employee in relation to particular employment; and

(b) another workplace determination (the later determination) that covers the employee in relation to the same employment comes into operation;

the earlier determination ceases to apply to the employee in relation to that employment when the later determination comes into operation, and can never so apply again.

279 Act applies to a workplace determination as if it were an enterprise agreement

(1) This Act applies to a workplace determination that is in operation as if it were an enterprise agreement that is in operation.

(2) However, the following provisions do not apply to the determination:

(a) section 50 (which deals with contraventions of enterprise agreements);

(b) section 53 (which deals with the coverage of enterprise agreements);

(d) section 58 (which deals with the interaction between one or more enterprise agreements);

(e) section 183 (which deals with the entitlement of employee organisations to be covered by enterprise agreements);

(f) the provisions of Subdivisions A and B of Division 7 of Part 2‑4 (which deal with the variation of enterprise agreements).

(3) In addition, Subdivision C of Division 7 of Part 2‑4 (which deals with the termination of enterprise agreements by employers and employees) only applies to a workplace determination after the determination has passed its nominal expiry date.

Division 7—Other matters

280 Contravening a workplace determination

A person must not contravene a term of a workplace determination.

Note 1: This section is a civil remedy provision (see Part 4‑1).

Note 2: A person does not contravene a term of a workplace determination unless the determination applies to the person: see subsections 51(1) and 279(1).

281 Applications by bargaining representatives

Application of this section

(1) This section applies if a provision of this Part permits an application to be made by a bargaining representative of an employer that would have been covered by a proposed enterprise agreement.

Persons who may make applications

(2) If the agreement would have covered more than one employer, the application may be made by:

(b) in any case—a bargaining representative of an employer that would have been covered by the agreement, on behalf of one or more other such bargaining representatives, if those other bargaining representatives have agreed to the application being made on their behalf.

281A How employees, employers and employee organisations are to be described

(2) The employees may be specified by class or by name.

(3) The employers and employee organisations must be specified by name.

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

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

(b) a particular kind of work;

(d) a particular classification, job level or grade.

Part 2‑6—Minimum wages

Division 1—Introduction

282 Guide to this Part

This Part provides for FWA (constituted by the Minimum Wage Panel) to set and vary minimum wages for national system employees. For employees covered by modern awards, minimum wages are specified in the modern award. For award/agreement free employees, minimum wages are specified in the national minimum wage order.

Division 2 provides for the minimum wages objective. This requires FWA to establish and maintain a safety net of fair minimum wages, taking into account certain social and economic factors.

Division 3 provides for FWA (constituted by the Minimum Wage Panel) to conduct annual wage reviews. In an annual wage review, FWA may set or vary minimum wages in modern awards, and must make a national minimum wage order. Minimum wages in modern awards can also be set, or varied (in limited circumstances), under Part 2‑3 (which deals with modern awards).

Division 4 provides for national minimum wage orders and requires employers to comply with them. The orders set the national minimum wage, as well as special national minimum wages for junior employees, employees to whom training arrangements apply and employees with a disability. The orders also set the casual loading for award/agreement free employees.

National minimum wages and special national minimum wages apply to award/agreement free employees. However, they are also relevant to other employees as follows:

(a) in setting or varying modern award minimum wages, FWA must take the national minimum wage into account (see subsection 135(2) (in Part 2‑3) and subsection 285(3) (in this Part));

(b) for an employee who is not covered by a modern award and to whom an enterprise agreement applies, the employee’s base rate of pay under the agreement must not be less than the relevant national minimum wage or special national minimum wage (see subsection 206(3) (in Part 2‑4)).

For an employee who is covered by a modern award and to whom an enterprise agreement applies, the employee’s base rate of pay under the agreement must not be less than the base rate of pay that would have been payable to the employee if the award applied (see subsection 206(1) (in Part 2‑4)).

283 Meanings of employee and employer

In this Part, employee means a national system employee, and employer means a national system employer.

Division 2—Overarching provisions

284 The minimum wages objective

What is the minimum wages objective?

(1) FWA must establish and maintain a safety net of fair minimum wages, taking into account:

(a) the performance and competitiveness of the national economy, including productivity, business competitiveness and viability, inflation and employment growth; and

(b) promoting social inclusion through increased workforce participation; and

(d) the principle of equal remuneration for work of equal or comparable value; and

(e) providing a comprehensive range of fair minimum wages to junior employees, employees to whom training arrangements apply and employees with a disability.

This is the minimum wages objective.

When does the minimum wages objective apply?

(2) The minimum wages objective applies to the performance or exercise of:

(a) FWA’s functions or powers under this Part; and

(b) FWA’s functions or powers under Part 2‑3, so far as they relate to setting, varying or revoking modern award minimum wages.

Note: FWA must also take into account the objects of this Act and any other applicable provisions. For example, if FWA is setting, varying or revoking modern award minimum wages, the modern awards objective also applies (see section 134).

Meaning of modern award minimum wages

(3) Modern award minimum wages are the rates of minimum wages in modern awards, including:

(a) wage rates for junior employees, employees to whom training arrangements apply and employees with a disability; and

(b) casual loadings; and

Meaning of setting and varying modern award minimum wages

(4) Setting modern award minimum wages is the initial setting of one or more new modern award minimum wages in a modern award, either in the award as originally made or by a later variation of the award. Varying modern award minimum wages is varying the current rate of one or more modern award minimum wages.

Division 3—Annual wage reviews

Subdivision A—Main provisions

285 Annual wage reviews to be conducted

(1) FWA must conduct and complete an annual wage review in each financial year.

Note 1: FWA must be constituted by the Minimum Wage Panel to conduct annual wage reviews, and to make determinations and orders in those reviews (see section 617).

Note 2: The President may give directions about the conduct of annual wage reviews (see section 582).

(2) In an annual wage review, FWA:

(a) must review:

(i) modern award minimum wages; and

(ii) the national minimum wage order; and

(b) may make one or more determinations varying modern awards to set, vary or revoke modern award minimum wages; and

Note: For provisions about national minimum wage orders, see Division 4.

(3) In exercising its power in an annual wage review to make determinations referred to in paragraph (2)(b), FWA must take into account the rate of the national minimum wage that it proposes to set in the review.

286 When annual wage review determinations varying modern awards come into operation

Determinations generally come into operation on 1 July

(1) A determination (a variation determination) varying one or more modern awards to set, vary or revoke modern award minimum wages that is made in an annual wage review comes into operation on 1 July in the next financial year.

Later operation of determinations in exceptional circumstances

(2) If FWA is satisfied that there are exceptional circumstances justifying why a variation determination should not come into operation until a later day, FWA may specify that later day as the day on which it comes into operation. However, the determination must be limited just to the particular situation to which the exceptional circumstances relate.

Note: This may mean that FWA needs to make more than one determination, if different circumstances apply to different employees.

(3) If a later day is so specified, the variation determination comes into operation on that later day.

Effect of determinations cannot be deferred

(4) FWA cannot provide for the effect of a variation determination on modern award minimum wages to be deferred to a day that is later than the day on which the determination comes into operation.

Determinations take effect from first full pay period

(5) A variation determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after the day the determination comes into operation.

287 When national minimum wage orders come into operation etc.

Orders come into operation on 1 July

(1) A national minimum wage order that is made in an annual wage review comes into operation on 1 July in the next financial year (the year of operation).

Setting of different wages or loadings only permitted in exceptional circumstances

(2) The national minimum wage or the casual loading for award/agreement free employees set by the order must be the same for all employees, unless:

(a) FWA is satisfied that there are exceptional circumstances justifying setting different wages or loadings; and

(b) the setting of different wages or loadings is limited just to the extent necessary because of the particular situation to which the exceptional circumstances relate.

(3) A special national minimum wage set by the order for a specified class of employees must be the same for all employees in that class, unless:

(a) FWA is satisfied that there are exceptional circumstances justifying setting different wages; and

(b) the setting of different wages is limited just to the extent necessary because of the particular situation to which the exceptional circumstances relate.

Adjustments taking effect during year of operation only permitted in exceptional circumstances

(4) The order may provide that an adjustment of the national minimum wage, the casual loading for award/agreement free employees, or a special national minimum wage, set by the order takes effect (whether for some or all employees to whom that wage or loading applies) on a specified day in the year of operation that is later than 1 July, but only if:

(a) FWA is satisfied that there are exceptional circumstances justifying the adjustment taking effect on that day; and

(b) the adjustment is limited just to the particular situation to which the exceptional circumstances relate.

When orders take effect

(5) The order takes effect in relation to a particular employee from the start of the employee’s first full pay period that starts on or after 1 July in the year of operation. However, an adjustment referred to in subsection (4) takes effect in relation to a particular employee from the start of the employee’s first full pay period that starts on or after the day specified as referred to in that subsection.

Subdivision B—Provisions about conduct of annual wage reviews

288 General

This Subdivision contains some specific provisions relevant to the conduct of annual wage reviews. For other provisions relevant to the conduct of annual wage reviews, see the general provisions about FWA’s processes in Part 5‑1.

Note: Relevant provisions of Part 5‑1 include the following:

(a) section 582 (which deals with the President’s power to give directions);

(b) section 590 (which deals with FWA’s discretion to inform itself as it considers appropriate, including by commissioning research);

(d) section 601 (which deals with writing and publication requirements).

289 Everyone to have a reasonable opportunity to make and comment on submissions

(1) FWA must, in relation to each annual wage review, ensure that all persons and bodies have a reasonable opportunity to make written submissions to FWA for consideration in the review.

(2) FWA must publish all submissions made to FWA for consideration in the review.

(3) However, if a submission made by a person or body includes information that is claimed by the person or body to be confidential or commercially sensitive, and FWA is satisfied that the information is confidential or commercially sensitive, FWA:

(a) may decide not to publish the information; and

(b) may instead publish:

(i) a summary of the information which contains sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive); or

(ii) if FWA considers that it is not practicable to prepare a summary that would comply with subparagraph (i)—a statement that confidential or commercially sensitive information in the submission has not been published.

(4) A reference in this Act (other than in this section) to a submission under this section includes a reference to a summary or statement referred to in paragraph (3)(b).

(5) FWA must ensure that all persons and bodies have a reasonable opportunity to make comments to FWA, for consideration in the review, on the material published under subsections (2) and (3).

(6) The publishing of material under subsections (2) and (3) may be on FWA’s website or by any other means that FWA considers appropriate.

290 President may direct investigations and reports

(1) The President may give a direction under section 582 requiring that a matter be investigated, and that a report about the matter be prepared, for consideration in an annual wage review.

(2) The direction:

(a) may be given to:

(i) the Minimum Wage Panel; or

(ii) a Minimum Wage Panel Member; or

(iii) a Full Bench that includes one or more Minimum Wage Panel Members; and

(b) must (unless the direction is given to the Minimum Wage Panel) require the report be given to the Minimum Wage Panel.

291 Research must be published

(1) If FWA undertakes or commissions research for the purposes of an annual wage review, FWA must publish the research so that submissions can be made addressing issues covered by the research.

(2) The publication may be on FWA’s website or by any other means that FWA considers appropriate.

292 Varied wage rates must be published by 1 July

(1) If FWA makes one or more determinations varying modern award minimum wages in an annual wage review, FWA must publish the rates of those wages as so varied before 1 July in the next financial year.

Note: FWA must also publish the modern award as varied (see section 168).

(2) The publication may be on FWA’s website or by any other means that FWA considers appropriate.

Division 4—National minimum wage orders

293 Contravening a national minimum wage order

An employer must not contravene a term of a national minimum wage order.

Note: This section is a civil remedy provision (see Part 4‑1).

294 Content of national minimum wage order—main provisions

Setting minimum wages and the casual loading

(1) A national minimum wage order:

(a) must set the national minimum wage; and

(b) must set special national minimum wages for all award/agreement free employees in the following classes:

(i) junior employees;

(ii) employees to whom training arrangements apply;

(iii) employees with a disability; and

Note: A national minimum wage order must be made in each annual wage review (see section 285).

Requiring employers to pay minimum wages and the casual loading

(2) The order:

(a) must require employers to pay employees to whom the national minimum wage applies a base rate of pay that at least equals the national minimum wage; and

(b) must require employers to pay to employees to whom a special national minimum wage applies a base rate of pay that at least equals that special national minimum wage; and

(c) must require employers to pay, to award/agreement free employees who are casual employees, a casual loading that at least equals the casual loading for award/agreement free employees (as applied to the employees’ base rates of pay).

What employees does the national minimum wage apply to?

(3) The national minimum wage applies to all award/agreement free employees who are not:

(a) junior employees; or

(b) employees to whom training arrangements apply; or

What employees does a special national minimum wage apply to?

(4) A special national minimum wage applies to the employees to whom it is expressed in the order to apply. Those employees must be:

(a) all junior employees who are award/agreement free employees, or a specified class of those employees; or

(b) all employees to whom training arrangements apply and who are award/agreement free employees, or a specified class of those employees; or

295 Content of national minimum wage order—other matters

Expressing minimum wages and the casual loading

(1) In a national minimum wage order:

(a) the national minimum wage, and the special national minimum wages, set by the order must be expressed in a way that produces a monetary amount per hour; and

(b) the casual loading for award/agreement free employees must be expressed as a percentage.

Note: The means by which the national minimum wage or a special national minimum wage may be expressed include:

(a) a monetary amount per hour; or

(b) a monetary amount for a specified number of hours; or

Terms about how the order applies

(2) The order may also include terms about how the order, or any of the requirements in it, applies.

296 Variation of national minimum wage order to remove ambiguity or uncertainty or correct error

Permitted variations

(1) FWA may make a determination varying a national minimum wage order to remove an ambiguity or uncertainty or to correct an error.

Note: FWA must be constituted by the Minimum Wage Panel to vary a national minimum wage order (see section 617).

(2) If FWA varies a national minimum wage order, FWA must, as soon as practicable, publish the order as varied on its website or by any other means that FWA considers appropriate.

No other variation or revocation permitted

(3) A national minimum wage order:

(a) cannot be varied except as referred to in subsection (1); and

(b) cannot be revoked.

297 When determinations varying national minimum wage orders come into operation

Determinations come into operation on specified day

(1) A determination varying a national minimum wage order under section 296 comes into operation on the day specified in the determination.

Note: For when a national minimum wage order comes into operation, see section 287.

(2) The specified day must not be earlier than the day on which the determination is made, unless FWA is satisfied that there are exceptional circumstances that justify specifying an earlier day.

Determinations take effect from first full pay period

298 Special rule about retrospective variations of national minimum wage orders

Application of this section

(1) This section applies if a determination varying a national minimum wage order has a retrospective effect because it comes into operation under subsection 297(2) on a day before the day on which the determination is made.

No creation of liability to pay pecuniary penalty for past conduct

(2) If:

(a) a person engaged in conduct before the determination was made; and

(b) but for the retrospective effect of the determination, the conduct would not have contravened a term of the national minimum wage order or an enterprise agreement;

a court must not order the person to pay a pecuniary penalty under Division 2 of Part 4‑1 in relation to the conduct, on the grounds that the conduct contravened a term of the national minimum wage order or enterprise agreement.

Note 1: This subsection does not affect the powers of a court to make other kinds of orders under Division 2 of Part 4‑1.

Note 2: A determination varying a national minimum wage order could result in a contravention of a term of an enterprise agreement because of the effect of subsection 206(4).

299 When a national minimum wage order is in operation

A national minimum wage order continues in operation until the next national minimum wage order comes into operation.

Note: For when a national minimum wage order comes into operation, see section 287.

Part 2‑7—Equal remuneration

Division 1—Introduction

300 Guide to this Part

This Part allows FWA to make orders to ensure that there will be equal remuneration for men and women workers for work of equal or comparable value.

301 Meanings of employee and employer

In this Part, employee means a national system employee, and employer means a national system employer.

Division 2—Equal remuneration orders

302 FWA may make an order requiring equal remuneration

Power to make an equal remuneration order

(1) FWA may make any order (an equal remuneration order) it considers appropriate to ensure that, for employees to whom the order will apply, there will be equal remuneration for work of equal or comparable value.

Meaning of equal remuneration for work of equal or comparable value

(2) Equal remuneration for work of equal or comparable value means equal remuneration for men and women workers for work of equal or comparable value.

Who may apply for an equal remuneration order

(3) FWA may make the equal remuneration order only on application by any of the following:

(a) an employee to whom the order will apply;

(b) an employee organisation that is entitled to represent the industrial interests of an employee to whom the order will apply;

FWA must take into account orders and determinations of the Minimum Wage Panel

(4) In deciding whether to make an equal remuneration order, FWA must take into account:

(a) orders and determinations made by the Minimum Wage Panel in annual wage reviews; and

(b) the reasons for those orders and determinations.

Restriction on power to make an equal remuneration order

(5) However, FWA may make the equal remuneration order only if it is satisfied that, for the employees to whom the order will apply, there is not equal remuneration for work of equal or comparable value.

303 Equal remuneration order may increase, but must not reduce, rates of remuneration

(1) Without limiting subsection 302(1), an equal remuneration order may provide for such increases in rates of remuneration as FWA considers appropriate to ensure that, for employees to whom the order will apply, there will be equal remuneration for work of equal or comparable value.

(2) An equal remuneration order must not provide for a reduction in an employee’s rate of remuneration.

304 Equal remuneration order may implement equal remuneration in stages

An equal remuneration order may implement equal remuneration for work of equal or comparable value in stages (as provided in the order) if FWA considers that it is not feasible to implement equal remuneration for work of equal or comparable value when the order comes into operation.

305 Contravening an equal remuneration order

An employer must not contravene a term of an equal remuneration order.

Note: This section is a civil remedy provision (see Part 4‑1).

306 Inconsistency with modern awards, enterprise agreements and orders of FWA

A term of a modern award, an enterprise agreement or an FWA order has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an equal remuneration order that applies to the employee.

Part 2‑8—Transfer of business

Division 1—Introduction

307 Guide to this Part

This Part provides for the transfer of enterprise agreements, certain modern awards and certain other instruments if there is a transfer of business from one national system employer to another national system employer.

Division 2 describes when a transfer of business occurs and defines the following key concepts: old employer, new employer, transferring work, transferring employee and transferable instrument.

Division 2 also sets out the circumstances in which enterprise agreements, certain modern awards and certain other instruments that covered the old employer and the transferring employees (including high income employees) cover the new employer, the transferring employees and certain non‑transferring employees and organisations.

Division 3 provides for FWA to make orders in relation to a transfer of business.

308 Meanings of employee and employer

In this Part, employee means a national system employee, and employer means a national system employer.

309 Object of this Part

The object of this Part is to provide a balance between:

(a) the protection of employees’ terms and conditions of employment under enterprise agreements, certain modern awards and certain other instruments; and

(b) the interests of employers in running their enterprises efficiently;

if there is a transfer of business from one employer to another employer.

Division 2—Transfer of instruments

310 Application of this Division

This Division provides for the transfer of rights and obligations under enterprise agreements, certain modern awards and certain other instruments if there is a transfer of business from an old employer to a new employer.

311 When does a transfer of business occur

Meanings of transfer of business, old employer, new employer and transferring work

(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:

(a) the employment of an employee of the old employer has terminated;

(b) within 3 months after the termination, the employee becomes employed by the new employer;

(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;

(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).

Meaning of transferring employee

(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.

Transfer of assets from old employer to new employer

(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:

(a) the old employer or an associated entity of the old employer; and

(b) the new employer or an associated entity of the new employer;

the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):

(d) that relate to, or are used in connection with, the transferring work.

Old employer outsources work to new employer

(4) There is a connection between the old employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer.

New employer ceases to outsource work to old employer

(5) There is a connection between the old employer and the new employer if:

(a) the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and

(b) the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer.

New employer is associated entity of old employer

(6) There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer.

312 Instruments that may transfer

Meaning of transferable instrument

(1) Each of the following is a transferable instrument:

(a) an enterprise agreement that has been approved by FWA;

(b) a workplace determination;

Meaning of named employer award

(2) A named employer award is a modern award that is expressed to cover one or more named employers.

313 Transferring employees and new employer covered by transferable instrument

(1) If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer, then:

(a) the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer; and

(b) while the transferable instrument covers the new employer and the transferring employee in relation to the transferring work, no other enterprise agreement or named employer award that covers the new employer at the transfer time covers the transferring employee in relation to that work.

(2) To avoid doubt, a transferable instrument that covers the new employer and a transferring employee under paragraph (1)(a) includes any individual flexibility arrangement that had effect as a term of the transferable instrument immediately before the termination of the transferring employee’s employment with the old employer.

(3) This section has effect subject to any FWA order under subsection 318(1).

314 New non‑transferring employees of new employer may be covered by transferable instrument

(1) If:

(a) a transferable instrument covers the new employer because of paragraph 313(1)(a); and

(b) after the transferable instrument starts to cover the new employer, the new employer employs a non‑transferring employee; and

(d) at the time the non‑transferring employee is employed, no other enterprise agreement or modern award covers the new employer and the non‑transferring employee in relation to that work;

then the transferable instrument covers the new employer and the non‑transferring employee in relation to that work.

(2) A non‑transferring employee of a new employer, in relation to a transfer of business, is an employee of the new employer who is not a transferring employee.

(3) This section has effect subject to any FWA order under subsection 319(1).

315 Organisations covered by transferable instrument

Employer organisation covered by named employer award

(1) If:

(a) a named employer award covers the new employer because of paragraph 313(1)(a); and

(b) the named employer award covered an employer organisation in relation to the old employer immediately before the termination of a transferring employee’s employment with the old employer;

then the named employer award covers the employer organisation in relation to the new employer.

Employee organisation covered by named employer award

(2) If:

(a) a named employer award covers the new employer and a transferring employee because of paragraph 313(1)(a); and

(b) the named employer award covered an employee organisation in relation to the transferring employee immediately before the termination of the transferring employee’s employment with the old employer;

then the named employer award covers the employee organisation in relation to:

(d) any non‑transferring employee of the new employer who:

(i) is covered by the named employer award because of a provision of this Part or an FWA order; and

(ii) performs the same work as the transferring employee.

Employee organisation covered by enterprise agreement

(3) To avoid doubt, if:

(a) an enterprise agreement covers a transferring employee or a non‑transferring employee because of a provision of this Part or an FWA order; and

(b) the enterprise agreement covered an employee organisation immediately before the termination of the transferring employee’s employment with the old employer;

then the enterprise agreement covers the employee organisation.

316 Transferring employees who are high income employees

(1) This section applies if:

(a) the old employer had given a guarantee of annual earnings for a guaranteed period to a transferring employee; and

(b) the transferring employee was a high income employee immediately before the termination of the transferring employee’s employment with the old employer; and

(c) some of the guaranteed period occurs after the time (the transfer time) the transferring employee becomes employed by the new employer; and

(d) an enterprise agreement does not apply to the transferring employee in relation to the transferring work at the transfer time.

(2) The guarantee of annual earnings has effect after the transfer time (except as provided in this section) as if it had been given to the transferring employee by the new employer.

(3) The new employer is not required to comply with the guarantee of annual earnings in relation to any part of the guaranteed period before the transfer time.

(4) The new employer is not required to comply with the guarantee of annual earnings to the extent that it requires the new employer to pay an amount of earnings to the transferring employee, in relation to the part of the guaranteed period after the transfer time, at a rate that is more than the annual rate of the guarantee of annual earnings.

(5) If:

(a) the transferring employee is entitled to non‑monetary benefits under the guarantee of annual earnings after the transfer time; and

(b) it is not practicable for the new employer to provide those benefits to the transferring employee;

then the guarantee of annual earnings is taken to be varied so that, instead of the entitlement to those benefits, the transferring employee is entitled to an amount of money that is equivalent to the agreed money value of those benefits.

(6) This section does not affect the rights and obligations of the old employer that arose before the transfer time in relation to the guarantee of annual earnings.

Division 3—Powers of FWA

317 FWA may make orders in relation to a transfer of business

This Division provides for FWA to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.

318 Orders relating to instruments covering new employer and transferring employees

Orders that FWA may make

(1) FWA may make the following orders:

(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;

(b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.

Who may apply for an order

(2) FWA may make the order only on application by any of the following:

(a) the new employer or a person who is likely to be the new employer;

(b) a transferring employee, or an employee who is likely to be a transferring employee;

(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

Matters that FWA must take into account

(3) In deciding whether to make the order, FWA must take into account the following:

(a) the views of:

(i) the new employer or a person who is likely to be the new employer; and

(ii) the employees who would be affected by the order;

(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

(d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;

(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

(g) the public interest.

Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular transferring employee before the later of the following:

(a) the time when the transferring employee becomes employed by the new employer;

(b) the day on which the order is made.

319 Orders relating to instruments covering new employer and non‑transferring employees

Orders that FWA may make

(1) FWA may make the following orders:

(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a non‑transferring employee because of subsection 314(1) does not, or will not, cover the non‑transferring employee;

(b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(c) an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer.

Note: Orders may be made under paragraphs (1)(b) and (c) in relation to a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non‑transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover the new employer.

Who may apply for an order

(2) FWA may make the order only on application by any of the following:

(a) the new employer or a person who is likely to be the new employer;

(b) a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

Matters that FWA must take into account

(3) In deciding whether to make the order, FWA must take into account the following:

(a) the views of:

(i) the new employer or a person who is likely to be the new employer; and

(ii) the employees who would be affected by the order;

(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

(d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;

(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

(g) the public interest.

Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular non‑transferring employee before the later of the following:

(a) the time when the non‑transferring employee starts to perform the transferring work for the new employer;

(b) the day on which the order is made.

320 Variation of transferable instruments

Application of this section

(1) This section applies in relation to a transferable instrument that covers, or is likely to cover, the new employer because of a provision of this Part.

Power to vary transferable instrument

(2) FWA may vary the transferable instrument:

(a) to remove terms that FWA is satisfied are not, or will not be, capable of meaningful operation because of the transfer of business to the new employer; or

(b) to remove an ambiguity or uncertainty about how a term of the instrument operates if:

(i) the ambiguity or uncertainty has arisen, or will arise, because of the transfer of business to the new employer; and

(ii) FWA is satisfied that the variation will remove the ambiguity or uncertainty; or

(c) to enable the transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise.

Who may apply for a variation

(3) FWA may make the variation only on application by:

(a) a person who is, or is likely to be, covered by the transferable instrument; or

(b) if the application is to vary a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee who is, or is likely to be, covered by the named employer award.

Matters that FWA must take into account

(4) In deciding whether to make the variation, FWA must take into account the following:

(a) the views of:

(i) the new employer or a person who is likely to be the new employer; and

(ii) the employees who would be affected by the transferable instrument as varied;

(b) whether any employees would be disadvantaged by the transferable instrument as varied in relation to their terms and conditions of employment;

(d) whether the transferable instrument, without the variation, would have a negative impact on the productivity of the new employer’s workplace;

(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument, without the variation;

(f) the degree of business synergy between the transferable instrument, without the variation, and any workplace instrument that already covers the new employer;

(g) the public interest.

Restriction on when variation may come into operation

(5) A variation of a transferable instrument under subsection (2) must not come into operation before the later of the following:

(a) the time when the transferable instrument starts to cover the new employer;

(b) the day on which the variation is made.

Part 2‑9—Other terms and condition of employment

Division 1—Introduction

321 Guide to this Part

This Part deals with other terms and conditions of employment.

Division 2 is about the frequency and methods of payment of amounts payable to national system employees in relation to the performance of work, and the circumstances in which a national system employer may make deductions from such amounts.

Division 3 is about the guarantee of annual earnings that may be given to a national system employee whose earnings exceed the high income threshold. Modern awards do not apply to such an employee.

322 Meanings of employee and employer

In this Part, employee means a national system employee, and employer means a national system employer.

Division 2—Payment of wages

323 Method and frequency of payment

(1) An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a) in full (except as provided by section 324); and

(b) in money by one, or a combination, of the methods referred to in subsection (2); and

Note 1: This subsection is a civil remedy provision (see Part 4‑1).

Note 2: Amounts referred to in this subsection include the following if they become payable during a relevant period:

(a) incentive‑based payments and bonuses;

(b) loadings;

(d) overtime or penalty rates;

(e) leave payments.

(2) The methods are as follows:

(a) cash;

(b) cheque, money order, postal order or similar order, payable to the employee;

(d) a method authorised under a modern award or an enterprise agreement.

(3) Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method.

Note: This subsection is a civil remedy provision (see Part 4‑1).

324 Permitted deductions

(1) An employer may deduct an amount from an amount payable to an employee in accordance with subsection 323(1) if:

(a) the deduction is authorised in writing by the employee and is principally for the employee’s benefit; or

(b) the deduction is authorised by the employee in accordance with an enterprise agreement; or

(d) the deduction is authorised by or under a law of the Commonwealth, a State or a Territory, or an order of a court.

Note 1: A deduction in accordance with a salary sacrifice or other arrangement, under which an employee chooses to:

(a) forgo an amount payable to the employee in relation to the performance of work; but

(b) receive some other form of benefit or remuneration;

will be permitted if it is made in accordance with this section and the other provisions of this Division.

Note 2: Certain terms of modern awards, enterprise agreements and contracts of employment relating to deductions have no effect (see section 326). A deduction made in accordance with such a term will not be authorised for the purposes of this section.

(2) An authorisation for the purposes of paragraph (1)(a):

(a) must specify the amount of the deduction; and

(b) may be withdrawn in writing by the employee at any time.

(3) Any variation in the amount of the deduction must be authorised in writing by the employee.

325 Unreasonable requirements to spend amount

(1) An employer must not directly or indirectly require an employee to spend any part of an amount payable to the employee in relation to the performance of work if the requirement is unreasonable in the circumstances.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) The regulations may prescribe circumstances in which a requirement referred to in subsection (1) is or is not reasonable.

326 Certain terms have no effect

Unreasonable payments and deductions for benefit of employer

(1) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term:

(a) permits, or has the effect of permitting, an employer to deduct an amount from an amount that is payable to an employee in relation to the performance of work; or

(b) requires, or has the effect of requiring, an employee to make a payment to an employer or another person;

if either of the following apply:

(i) directly or indirectly for the benefit of the employer, or a party related to the employer; and

(ii) unreasonable in the circumstances;

(d) if the employee is under 18—the deduction or payment is not agreed to in writing by a parent or guardian of the employee.

(2) The regulations may prescribe circumstances in which a deduction or payment referred to in subsection (1) is or is not reasonable.

Unreasonable requirements to spend an amount

(3) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term:

(a) permits, or has the effect of permitting, an employer to make a requirement that would contravene subsection 325(1); or

(b) directly or indirectly requires an employee to spend an amount, if the requirement would contravene subsection 325(1) if it had been made by an employer.

327 Things given or provided, and amounts required to be spent, in contravention of this Division

In proceedings for recovery of an amount payable to an employee in relation to the performance of work:

(a) anything given or provided by the employer contrary to paragraph 323(1)(b) and subsection 323(3) is taken never to have been given or provided to the employee; and

(b) any amount that the employee has been required to spend contrary to subsection 325(1), or in accordance with a term to which subsection 326(3) applies, is taken never to have been paid to the employee.

Division 3—Guarantee of annual earnings

328 Employer obligations in relation to guarantee of annual earnings

Employer must comply with guarantee

(1) An employer that has given a guarantee of annual earnings to an employee must (subject to any reductions arising from circumstances in which the employer is required or entitled to reduce the employee’s earnings) comply with the guarantee during any period during which the employee:

(a) is a high income employee of the employer; and

(b) is covered by a modern award that is in operation.

Note 1: Examples of circumstances in which the employer is required or entitled to reduce the employee’s earnings are unpaid leave or absence, and periods of industrial action (see Division 9 of Part 3‑3).

Note 2: This subsection is a civil remedy provision (see Part 4‑1).

Employer must comply with guarantee for period before termination

(2) If:

(a) the employment of a high income employee is terminated before the end of the guaranteed period; and

(b) either or both of the following apply:

(i) the employer terminates the employment;

(ii) the employee becomes a transferring employee in relation to a transfer of business from the employer to a new employer, and the guarantee of annual earnings has effect under subsection 316(2) as if it had been given to the employee by the new employer; and

the employer must pay earnings to the employee in relation to the part of the guaranteed period before the termination at the annual rate of the guarantee of annual earnings.

Note: This subsection is a civil remedy provision (see Part 4‑1).

Employer must give notice of consequences

(3) Before or at the time of giving a guarantee of annual earnings to an employee covered by a modern award that is in operation, an employer must notify the employee in writing that a modern award will not apply to the employee during any period during which the annual rate of the guarantee of annual earnings exceeds the high income threshold.

Note: This subsection is a civil remedy provision (see Part 4‑1).

329 High income employee

(1) A full‑time employee is a high income employee of an employer at a time if:

(a) the employee has a guarantee of annual earnings for the guaranteed period; and

(b) the time occurs during the period; and

(2) An employee other than a full‑time employee is a high‑income employee of an employer at a time if:

(a) the employee has a guarantee of annual earnings for the guaranteed period; and

(b) the time occurs during the period; and

(c) the annual rate of the guarantee of annual earnings would have exceeded the high income threshold at that time if the employee were employed on a full‑time basis at the same rate of earnings.

(3) To avoid doubt, the employee does not have a guarantee of annual earnings for the guaranteed period if the employer revokes the guarantee of annual earnings with the employee’s agreement.

330 Guarantee of annual earnings and annual rate of guarantee

(1) An undertaking given by an employer to an employee is a guarantee of annual earnings if:

(a) the employee is covered by a modern award that is in operation; and

(b) the undertaking is an undertaking in writing to pay the employee an amount of earnings in relation to the performance of work during a period of 12 months or more; and

(d) the undertaking and the employee’s agreement are given before the start of the period, and within 14 days after:

(i) the day the employee is employed; or

(ii) a day on which the employer and employee agree to vary the terms and conditions of the employee’s employment; and

(e) an enterprise agreement does not apply to the employee’s employment at the start of the period.

(2) However, if:

(a) an employee is employed for a period shorter than 12 months; or

(b) an employee will perform duties of a particular kind for a period shorter than 12 months;

the undertaking may be given for that shorter period.

(3) The annual rate of the guarantee of annual earnings is the annual rate of the earnings covered by the undertaking.

331 Guaranteed period

The guaranteed period for a guarantee of annual earnings is the period that:

(a) starts at the start of the period of the undertaking that is the guarantee of annual earnings; and

(b) ends at the earliest of the following:

(i) the end of that period;

(ii) an enterprise agreement starting to apply to the employment of the employee;

(iii) the employer revoking the guarantee of annual earnings with the employee’s agreement.

332 Earnings

(1) An employee’s earnings include:

(a) the employee’s wages; and

(b) amounts applied or dealt with in any way on the employee’s behalf or as the employee directs; and

(d) amounts or benefits prescribed by the regulations.

(2) However, an employee’s earnings do not include the following:

(a) payments the amount of which cannot be determined in advance;

(b) reimbursements;

(d) amounts prescribed by the regulations.

Note: Some examples of payments covered by paragraph (a) are commissions, incentive‑based payments and bonuses, and overtime (unless the overtime is guaranteed).

(3) Non‑monetary benefits are benefits other than an entitlement to a payment of money:

(a) to which the employee is entitled in return for the performance of work; and

(b) for which a reasonable money value has been agreed by the employee and the employer;

but does not include a benefit prescribed by the regulations.

(4) This subsection applies to contributions that the employer makes to a superannuation fund to the extent that one or more of the following applies:

(a) the employer would have been liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed;

(b) the employer is required to contribute to the fund for the employee’s benefit in relation to a defined benefit interest (within the meaning of section 292‑175 of the Income Tax Assessment Act 1997) of the employee;

(c) the employer is required to contribute to the fund for the employee’s benefit under a law of the Commonwealth, a State or a Territory.

333 High income threshold

(1) Subject to this section, the high income threshold is the amount prescribed by, or worked out in the manner prescribed by, the regulations.

(2) A regulation made for the purposes of subsection (1) has no effect to the extent that it would have the effect of reducing the amount of the high income threshold.

(3) If:

(a) in prescribing a manner in which the high income threshold is worked out, regulations made for the purposes of subsection (1) specify a particular matter or state of affairs; and

(b) as a result of a change in the matter or state of affairs, the amount of the high income threshold worked out in that manner would, but for this subsection, be less than it was on the last occasion on which this subsection did not apply;

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

333A Prospective employees

If:

(a) an employer, or a person who may become an employer, gives to another person an undertaking that would have been a guarantee of annual earnings if the other person had been the employer’s or person’s employee; and

(b) the other person subsequently becomes the employer’s or person’s employee; and

this Division applies in relation to the undertaking, after the other person becomes the employer’s or person’s employee, as if the other person had been the employer’s or person’s employee at the time the undertaking was given.

Chapter 3—Rights and responsibilities of employees, employers, organisations etc.

Part 3‑1—General protections

Division 1—Introduction

334 Guide to this Part

This Part provides general workplace protections.

Division 2 sets out the circumstances in which this Part applies.

Division 3 protects workplace rights, and the exercise of those rights.

Division 4 protects freedom of association and involvement in lawful industrial activities.

Division 5 provides other protections, including protection from discrimination.

Division 6 deals with sham arrangements.

Division 7 sets out rules for the purposes of establishing contraventions of this Part.

Division 8 deals with compliance. In most cases, a general protections dispute that involves dismissal will be dealt with by a court only if the dispute has not been resolved by FWA.

335 Meanings of employee and employer

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

336 Objects of this Part

The objects of this Part are as follows:

(a) to protect workplace rights;

(b) to protect freedom of association by ensuring that persons are:

(i) free to become, or not become, members of industrial associations; and

(ii) free to be represented, or not represented, by industrial associations; and

(iii) free to participate, or not participate, in lawful industrial activities;

(d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.

Division 2—Application of this Part

337 Application of this Part

This Part applies only to the extent provided by this Division.

338 Action to which this Part applies

(1) This Part applies to the following action:

(a) action taken by a constitutionally‑covered entity;

(b) action that affects, is capable of affecting or is taken with intent to affect the activities, functions, relationships or business of a constitutionally‑covered entity;

(c) action that consists of advising, encouraging or inciting, or action taken with intent to coerce, a constitutionally‑covered entity:

(i) to take, or not take, particular action in relation to another person; or

(ii) to threaten to take, or not take, particular action in relation to another person;

(d) action taken in a Territory or a Commonwealth place;

(e) action taken by:

(i) a trade and commerce employer; or

(ii) a Territory employer;

that affects, is capable of affecting or is taken with intent to affect an employee of the employer;

(f) action taken by an employee of:

(i) a trade and commerce employer; or

(ii) a Territory employer;

that affects, is capable of affecting or is taken with intent to affect the employee’s employer.

(2) Each of the following is a constitutionally‑covered entity:

(a) a constitutional corporation;

(b) the Commonwealth;

(d) a body corporate incorporated in a Territory;

(e) an organisation.

(3) A trade and commerce employer is a national system employer within the meaning of paragraph 14(d).

(4) A Territory employer is a national system employer within the meaning of paragraph 14(f).

339 Additional effect of this Part

In addition to the effect provided by section 338, this Part also has the effect it would have if any one or more of the following applied:

(a) a reference to an employer in one or more provisions of this Part were a reference to a national system employer;

(b) a reference to an employee in one or more provisions of this Part were a reference to a national system employee;

(c) a reference to an industrial association in one or more provisions of this Part were a reference to an organisation, or another association of employees or employers, a purpose of which is the protection and promotion of the interests of national system employees or national system employers in matters concerning employment;

(d) a reference to an officer of an industrial association in one or more provisions of this Part were a reference to an officer of an organisation;

(e) a reference to a person, another person or a third person in one or more provisions of this Part were a reference to a constitutionally‑covered entity;

(f) a reference to a workplace law in one or more provisions of this Part were a reference to a workplace law of the Commonwealth;

(g) a reference to a workplace instrument in one or more provisions of this Part were a reference to a workplace instrument made under, or recognised by, a law of the Commonwealth;

(h) a reference to an industrial body in one or more provisions of this Part were a reference to an industrial body performing functions or exercising powers under a law of the Commonwealth.

Division 3—Workplace rights

340 Protection

(1) A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.

Note: This subsection is a civil remedy provision (see Part 4‑1).

341 Meaning of workplace right

Meaning of workplace right

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee—in relation to his or her employment.

Meaning of process or proceedings under a workplace law or workplace instrument

(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:

(a) a conference conducted or hearing held by FWA;

(b) court proceedings under a workplace law or workplace instrument;

(d) a protected action ballot;

(e) making, varying or terminating an enterprise agreement;

(f) appointing, or terminating the appointment of, a bargaining representative;

(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;

(i) making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);

(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

(k) any other process or proceedings under a workplace law or workplace instrument.

Prospective employees taken to have workplace rights

(3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.

Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.

Exceptions relating to prospective employees

(4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.

(5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2‑8 (which deals with transfer of business).

342 Meaning of adverse action

(1) The following table sets out circumstances in which a person takes adverse action against another person.

Meaning of adverse action
Item	Column 1 Adverse action is taken by ...	Column 2 if ...
1	an employer against an employee	the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee’s prejudice; or (d) discriminates between the employee and other employees of the employer.
2	a prospective employer against a prospective employee	the prospective employer: (a) refuses to employ the prospective employee; or (b) discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.
3	a person (the principal) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor	the principal: (a) terminates the contract; or (b) injures the independent contractor in relation to the terms and conditions of the contract; or (c) alters the position of the independent contractor to the independent contractor’s prejudice; or (d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or (e) refuses to supply, or agree to supply, goods or services to the independent contractor.
4	a person (the principal) proposing to enter into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor	the principal: (a) refuses to engage the independent contractor; or (b) discriminates against the independent contractor in the terms or conditions on which the principal offers to engage the independent contractor; or (c) refuses to make use of, or agree to make use of, services offered by the independent contractor; or (d) refuses to supply, or agree to supply, goods or services to the independent contractor.
5	an employee against his or her employer	the employee: (a) ceases work in the service of the employer; or (b) takes industrial action against the employer.
6	an independent contractor against a person who has entered into a contract for services with the independent contractor	the independent contractor: (a) ceases work under the contract; or (b) takes industrial action against the person.
7	an industrial association, or an officer or member of an industrial association, against a person	the industrial association, or the officer or member of the industrial association: (a) organises or takes industrial action against the person; or (b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment or prospective employment; or (c) if the person is an independent contractor—takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or (d) if the person is a member of the association—imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member).

(2) Adverse action includes:

(a) threatening to take action covered by the table in subsection (1); and

(b) organising such action.

(3) Adverse action does not include action that is authorised by or under:

(a) this Act or any other law of the Commonwealth; or

(b) a law of a State or Territory prescribed by the regulations.

(4) Without limiting subsection (3), adverse action does not include an employer standing down an employee who is:

(a) engaged in protected industrial action; and

(b) employed under a contract of employment that provides for the employer to stand down the employee in the circumstances.

343 Coercion

(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

(b) exercise, or propose to exercise, a workplace right in a particular way.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) Subsection (1) does not apply to protected industrial action.

344 Undue influence or pressure

An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:

(a) make, or not make, an agreement or arrangement under the National Employment Standards; or

(b) make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or

(d) accept a guarantee of annual earnings; or

(e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.

Note: This section is a civil remedy provision (see Part 4‑1).

345 Misrepresentations

(1) A person must not knowingly or recklessly make a false or misleading representation about:

(a) the workplace rights of another person; or

(b) the exercise, or the effect of the exercise, of a workplace right by another person.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

Division 4—Industrial activities

346 Protection

A person must not take adverse action against another person because the other person:

(a) is or is not, or was or was not, an officer or member of an industrial association; or

(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or

(c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).

Note: This section is a civil remedy provision (see Part 4‑1).

347 Meaning of engages in industrial activity

A person engages in industrial activity if the person:

(a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or

(b) does, or does not:

(i) become involved in establishing an industrial association; or

(ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or

(iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or

(iv) comply with a lawful request made by, or requirement of, an industrial association; or

(v) represent or advance the views, claims or interests of an industrial association; or

(vi) pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or

(vii) seek to be represented by an industrial association; or

(d) encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or

(e) complies with an unlawful request made by, or requirement of, an industrial association; or

(f) takes part in industrial action; or

(g) makes a payment:

(i) that, because of Division 9 of Part 3‑3 (which deals with payments relating to periods of industrial action), an employer must not pay; or

(ii) to which an employee is not entitled because of that Division.

348 Coercion

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.

Note: This section is a civil remedy provision (see Part 4‑1).

349 Misrepresentations

(1) A person must not knowingly or recklessly make a false or misleading representation about either of the following:

(a) another person’s obligation to engage in industrial activity;

(b) another person’s obligation to disclose whether he or she, or a third person:

(i) is or is not, or was or was not, an officer or member of an industrial association; or

(ii) is or is not engaging, or has or has not engaged, in industrial activity.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

350 Inducements—membership action

(1) An employer must not induce an employee to take, or propose to take, membership action.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) A person who has entered into a contract for services with an independent contractor must not induce the independent contractor to take, or propose to take, membership action.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(3) A person takes membership action if the person becomes, does not become, remains or ceases to be, an officer or member of an industrial association.

Division 5—Other protections

351 Discrimination

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) However, subsection (1) does not apply to action that is:

(a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or

(b) taken because of the inherent requirements of the particular position concerned; or

(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3) Each of the following is an anti‑discrimination law:

(aa) the Age Discrimination Act 2004;

(ab) the Disability Discrimination Act 1992;

(ac) the Racial Discrimination Act 1975;

(ad) the Sex Discrimination Act 1984;

(a) the Anti‑Discrimination Act 1977 of New South Wales;

(b) the Equal Opportunity Act 1995 of Victoria;

(d) the Equal Opportunity Act 1984 of Western Australia;

(e) the Equal Opportunity Act 1984 of South Australia;

(f) the Anti‑Discrimination Act 1998 of Tasmania;

(g) the Discrimination Act 1991 of the Australian Capital Territory;

(h) the Anti‑Discrimination Act of the Northern Territory.

352 Temporary absence—illness or injury

An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

Note: This section is a civil remedy provision (see Part 4‑1).

353 Bargaining services fees

(1) An industrial association, or an officer or member of an industrial association, must not:

(a) demand; or

(b) purport to demand; or

(i) have the effect of demanding; or

(ii) purport to have the effect of demanding;

payment of a bargaining services fee.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) A bargaining services fee is a fee (however described) payable:

(a) to an industrial association; or

(b) to someone in lieu of an industrial association;

wholly or partly for the provision, or purported provision, of bargaining services, but does not include membership fees.

(3) Bargaining services are services provided by, or on behalf of, an industrial association in relation to an enterprise agreement, or a proposed enterprise agreement (including in relation to bargaining for, or the making, approval, operation, variation or termination of, the enterprise agreement, or proposed enterprise agreement).

Exception for fees payable under contract

(4) Subsection (1) does not apply if the fee is payable to the industrial association under a contract for the provision of bargaining services.

354 Coverage by particular instruments

(1) A person must not discriminate against an employer because:

(a) employees of the employer are covered, or not covered, by:

(i) provisions of the National Employment Standards; or

(ii) a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or

(iii) an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation; or

(b) it is proposed that employees of the employer be covered, or not be covered, by:

(i) a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or

(ii) an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) Subsection (1) does not apply to protected industrial action.

355 Coercion—allocation of duties etc. to particular person

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a) employ, or not employ, a particular person; or

(b) engage, or not engage, a particular independent contractor; or

(c) allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or

(d) designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities.

Note: This section is a civil remedy provision (see Part 4‑1).

356 Objectionable terms

A term of a workplace instrument, or an agreement or arrangement (whether written or unwritten), has no effect to the extent that it is an objectionable term.

Division 6—Sham arrangements

357 Misrepresenting employment as independent contracting arrangement

(1) A person (the employer) that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed by the employer is a contract for services under which the individual performs, or would perform, work as an independent contractor.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) Subsection (1) does not apply if the employer proves that, when the representation was made, the employer:

(a) did not know; and

(b) was not reckless as to whether;

the contract was a contract of employment rather than a contract for services.

358 Dismissing to engage as independent contractor

An employer must not dismiss, or threaten to dismiss, an individual who:

(a) is an employee of the employer; and

(b) performs particular work for the employer;

in order to engage the individual as an independent contractor to perform the same, or substantially the same, work under a contract for services.

Note: This section is a civil remedy provision (see Part 4‑1).

359 Misrepresentation to engage as independent contractor

A person (the employer) that employs, or has at any time employed, an individual to perform particular work must not make a statement that the employer knows is false in order to persuade or influence the individual to enter into a contract for services under which the individual will perform, as an independent contractor, the same, or substantially the same, work for the employer.

Note: This section is a civil remedy provision (see Part 4‑1).

Division 7—Ancillary rules

360 Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

361 Reason for action to be presumed unless proved otherwise

(1) If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2) Subsection (1) does not apply in relation to orders for an interim injunction.

362 Advising, encouraging, inciting or coercing action

(1) If:

(a) for a particular reason (the first person’s reason), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and

(b) the action, if taken by the second person for the first person’s reason, would contravene a provision of this Part;

the first person is taken to have contravened the provision.

(2) Subsection (1) does not limit section 550.

363 Actions of industrial associations

(1) For the purposes of this Part, each of the following is taken to be action of an industrial association:

(a) action taken by the committee of management of the industrial association;

(b) action taken by an officer or agent of the industrial association acting in that capacity;

(i) the rules of the industrial association; or

(ii) the committee of management of the industrial association; or

(iii) an officer or agent of the industrial association acting in that capacity;

(d) action taken by a member of the industrial association who performs the function of dealing with an employer on behalf of the member and other members of the industrial association, acting in that capacity;

(e) if the industrial association is an unincorporated industrial association that does not have a committee of management—action taken by a member, or group of members, of the industrial association.

(2) Paragraphs (1)(c) and (d) do not apply if:

(a) the committee of management of the industrial association; or

(b) a person authorised by the committee; or

has taken all reasonable steps to prevent the action.

(3) If, for the purposes of this Part, it is necessary to establish the state of mind of an industrial association in relation to particular action, it is enough to show:

(a) that the action was taken by a person, or a group, referred to in paragraphs (1)(a) to (e); and

(b) that the person, or a person in the group, had that state of mind.

(4) Subsections (1) to (3) have effect despite subsections 793(1) and (2) (which deal with liabilities of bodies corporate).

364 Unincorporated industrial associations

Person includes unincorporated industrial association

(1) For the purposes of this Part, a reference to a person includes a reference to an unincorporated industrial association.

Liability for contraventions by unincorporated industrial associations

(2) A contravention of this Part that would otherwise be committed by an unincorporated industrial association is taken to have been committed by each member, officer or agent of the industrial association who:

(a) took, or took part in, the relevant action; and

(b) did so with the relevant state of mind.

Division 8—Compliance

Subdivision A—Contraventions involving dismissal

365 Application for FWA to deal with a dispute

If:

(a) a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to FWA for FWA to deal with the dispute.

366 Time for application

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

367 Application fees

(1) The application must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to FWA under section 365; and

(b) a method for indexing the fee; and

368 Conferences

(1) If an application is made under section 365, FWA must conduct a conference to deal with the dispute.

Note 1: For conferences, see section 592.

Note 2: FWA may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that FWA might make is that an application be made under Part 3‑2 (which deals with unfair dismissal) in relation to the dispute.

(2) Despite subsection 592(3), FWA must conduct the conference in private.

369 Certificate if dispute not resolved

If FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, FWA must issue a certificate to that effect.

370 Advice on general protections court application

(1) If FWA considers, taking into account all the materials before it, that a general protections court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly.

(2) A general protections court application is an application to a court under Division 2 of Part 4‑1 for orders in relation to a contravention of this Part.

371 General protections court applications

FWA conference to be held before application

(1) A person who is entitled to apply under section 365 to FWA for FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless:

(a) FWA has issued a certificate under section 369 in relation to the dispute; or

(b) the general protections court application includes an application for an interim injunction.

Time for application

(2) Despite section 544, a general protections court application that requires a certificate under section 369 must be made within 14 days after the certificate is issued.

Subdivision B—Other contraventions

372 Application for FWA to deal with a dispute

If:

(a) a person alleges a contravention of this Part; and

(b) the person is not entitled to apply to FWA under section 365 for FWA to deal with the dispute;

the person may apply to FWA under this section for FWA to deal with the dispute.

373 Application fees

(1) The application must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to FWA under section 372; and

(b) a method for indexing the fee; and

374 Conferences

(1) If:

(a) an application is made under section 372; and

(b) the parties to the dispute agree to participate;

FWA must conduct a conference to deal with the dispute.

Note 1: For conferences, see section 592.

Note 2: FWA may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(2) Despite subsection 592(3), FWA must conduct the conference in private.

375 Advice on general protections court application

If FWA considers, taking into account all the materials before it, that a general protections court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly.

Subdivision C—Conference costs

376 Costs orders against lawyers and paid agents

(1) If FWA has granted permission in accordance with section 596 for a person to be represented by a lawyer or paid agent in relation to an application under section 365 or 372, FWA may make an order for costs against the lawyer or paid agent if FWA is satisfied:

(a) that:

(i) the lawyer or paid agent caused costs to be incurred by another party to the dispute because the lawyer or paid agent encouraged the person to make the application; and

(ii) it should have been reasonably apparent that the application would have no reasonable prospect of success; or

(b) that the lawyer or paid agent caused costs to be incurred by another party to the dispute because of an unreasonable act or omission of the lawyer or paid agent in connection with the conduct or continuation of the dispute.

(2) FWA may make an order under this section only if the other party has applied for it under section 377.

(3) This section does not limit FWA’s power to order costs under section 611.

377 Applications for costs orders

An application for an order for costs in relation to an application under section 365 or 372 must be made within 14 days after FWA finishes dealing with the dispute.

378 Contravening costs orders

A person to whom an order for costs made under section 376 applies must not contravene a term of the order.

Note: This section is a civil remedy provision (see Part 4‑1).

Part 3‑2—Unfair dismissal

Division 1—Introduction

379 Guide to this Part

This Part is about the unfair dismissal of national system employees, and the granting of remedies for unfair dismissal.

Division 2 sets out when a person is protected from unfair dismissal.

Division 3 sets out the elements that make up an unfair dismissal.

Division 4 sets out the remedies FWA can grant for unfair dismissal.

Division 5 is about the procedural aspects of getting remedies for unfair dismissal.

380 Meanings of employee and employer

In this Part, employee means a national system employee, and employer means a national system employer.

381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

Division 2—Protection from unfair dismissal

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.

Division 3—What is an unfair dismissal

385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.

388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.

Division 4—Remedies for unfair dismissal

390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that FWA considers relevant.

Misconduct reduces amount

(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

393 Monetary orders may be in instalments

To avoid doubt, an order by FWA under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.

Division 5—Procedural matters

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6‑1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

395 Application fees

(1) An application to FWA under this Division must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to FWA under this Division; and

(b) a method for indexing the fee; and

396 Initial matters to be considered before merits

FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.

397 Matters involving contested facts

FWA must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.

398 Conferences

(1) This section applies in relation to a matter arising under this Part if FWA conducts a conference in relation to the matter.

(2) Despite subsection 592(3), FWA must conduct the conference in private.

(3) FWA must take into account any difference in the circumstances of the parties to the matter in:

(a) considering the application; and

(b) informing itself in relation to the application.

(4) FWA must take into account the wishes of the parties to the matter as to the way in which FWA:

(a) considers the application; and

(b) informs itself in relation to the application.

399 Hearings

(1) FWA must not hold a hearing in relation to a matter arising under this Part unless FWA considers it appropriate to do so, taking into account:

(a) the views of the parties to the matter; and

(b) whether a hearing would be the most effective and efficient way to resolve the matter.

(2) If FWA holds a hearing in relation to a matter arising under this Part, it may decide not to hold the hearing in relation to parts of the matter.

(3) FWA may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to the matter.

400 Appeal rights

(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by FWA in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

401 Costs orders against lawyers and paid agents

(1) If FWA has granted permission in accordance with section 596 for a person to be represented by a lawyer or paid agent in a matter arising under this Part before FWA, FWA may make an order for costs against the lawyer or paid agent if FWA is satisfied:

(a) that:

(i) the lawyer or paid agent caused costs to be incurred by the other party to the matter because the lawyer or paid agent encouraged the person to start or continue the matter; and

(ii) it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or

(b) that the lawyer or paid agent caused costs to be incurred by the other party to the matter because of an unreasonable act or omission of the lawyer or paid agent in connection with the conduct or continuation of the matter.

(2) FWA may make an order under this section only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit FWA’s power to order costs under section 611.

402 Applications for costs orders

An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 401, must be made within 14 days after:

(a) FWA determines the matter; or

(b) the matter is discontinued.

403 Schedule of costs

(1) A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in relation to matters that can be covered by an order:

(a) under section 611 in relation to a matter arising under this Part; or

(b) under section 401;

including expenses arising from the representation of a party by a person or organisation other than on a legal professional basis.

(2) If a schedule of costs is prescribed for the purposes of subsection (1), then, in awarding costs under section 611 in relation to a matter arising under this Part, or awarding costs under section 401, FWA:

(a) is not limited to the items of expenditure appearing in the schedule; but

(b) if an item does appear in the schedule—must not award costs in relation to that item at a rate or of an amount that exceeds the rate or amount appearing in the schedule.

404 Security for costs

The procedural rules may provide for the furnishing of security for the payment of costs in relation to matters arising under this Part.

405 Contravening orders under this Part

A person to whom an order under this Part applies must not contravene a term of the order.

Note: This section is a civil remedy provision (see Part 4‑1).

Part 3‑3—Industrial action

Division 1—Introduction

406 Guide to this Part

This Part deals mainly with industrial action by national system employees and national system employers.

Division 2 sets out when industrial action for a proposed enterprise agreement is protected industrial action. No action lies under any law in force in a State or Territory in relation to protected industrial action except in certain circumstances.

Division 3 provides that industrial action must not be organised or engaged in by certain persons before the nominal expiry date of an enterprise agreement or workplace determination has passed.

Division 4 provides for FWA to make orders, in certain circumstances, that industrial action stop, not occur or not be organised for a specified period.

Division 5 deals with injunctions against industrial action if a bargaining representative of an employee who will be covered by a proposed enterprise agreement is engaging in pattern bargaining.

Division 6 provides for FWA to make orders suspending or terminating protected industrial action for a proposed enterprise agreement in certain circumstances. If FWA makes such an order, the action will no longer be protected industrial action.

Division 7 provides for the Minister to make a declaration terminating protected industrial action for a proposed enterprise agreement in certain circumstances. If the Minister makes such an order, the action will no longer be protected industrial action.

Division 8 establishes the process that will allow employees to choose, by means of a fair and democratic secret ballot, whether to authorise protected industrial action for a proposed enterprise agreement.

Division 9 sets out restrictions about payments to employees relating to periods of industrial action.

Division 10 deals with the making of applications under this Part.

407 Meanings of employee and employer

In this Part, employee means a national system employee, and employer means a national system employer.

Division 2—Protected industrial action

Subdivision A—What is protected industrial action

408 Protected industrial action

Industrial action is protected industrial action for a proposed enterprise agreement if it is one of the following:

(a) employee claim action for the agreement (see section 409);

(b) employee response action for the agreement (see section 410);

409 Employee claim action

Employee claim action

(1) Employee claim action for a proposed enterprise agreement is industrial action that:

(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and

(b) is organised or engaged in, against an employer that will be covered by the agreement, by:

(i) a bargaining representative of an employee who will be covered by the agreement; or

(ii) an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and

(d) meets the additional requirements set out in this section.

Protected action ballot is necessary

(2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part).

Unlawful terms

(3) The industrial action must not be in support of, or to advance, claims to include unlawful terms in the agreement.

Industrial action must not be part of pattern bargaining

(4) A bargaining representative of an employee who will be covered by the agreement must not be engaging in pattern bargaining in relation to the agreement.

Industrial action must not relate to a demarcation dispute etc.

(5) The industrial action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene an FWA order that relates to a significant extent to a demarcation dispute.

Notice requirements after suspension order must be met

(6) If section 429 (which deals with employee claim action without a further protected action ballot after a period of suspension) applies in relation to the industrial action, the notice requirements of section 430 must be met.

Officer of an employee organisation

(7) If an employee organisation is a bargaining representative of an employee who will be covered by the agreement, the reference to a bargaining representative of the employee in subparagraph (1)(b)(i) of this section includes a reference to an officer of the organisation.

410 Employee response action

Employee response action

(1) Employee response action for a proposed enterprise agreement means industrial action that:

(a) is organised or engaged in as a response to industrial action by an employer; and

(b) is organised or engaged in, against an employer that will be covered by the agreement, by:

(i) a bargaining representative of an employee who will be covered by the agreement; or

(ii) an employee who will be covered by the agreement; and

(d) meets the additional requirements set out in this section.

Industrial action must not relate to a demarcation dispute etc.

(2) The industrial action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene an FWA order that relates to a significant extent to a demarcation dispute.

Officer of an employee organisation

(3) If an employee organisation is a bargaining representative of an employee who will be covered by the agreement, the reference to a bargaining representative of the employee in subparagraph (1)(b)(i) includes a reference to an officer of the organisation.

411 Employer response action

Employer response action for a proposed enterprise agreement means industrial action that:

(a) is organised or engaged in as a response to industrial action by:

(i) a bargaining representative of an employee who will be covered by the agreement; or

(ii) an employee who will be covered by the agreement; and

(b) is organised or engaged in by an employer that will be covered by the agreement against one or more employees that will be covered by the agreement; and

(d) does not affect the continuity of the employees’ employment, for such purposes as are prescribed by the regulations.

412 Pattern bargaining

Pattern bargaining

(1) A course of conduct by a person is pattern bargaining if:

(a) the person is a bargaining representative for 2 or more proposed enterprise agreements; and

(b) the course of conduct involves seeking common terms to be included in 2 or more of the agreements; and

Exception—genuinely trying to reach an agreement

(2) The course of conduct, to the extent that it relates to a particular employer, is not pattern bargaining if the bargaining representative is genuinely trying to reach an agreement with that employer.

(3) For the purposes of subsection (2), the factors relevant to working out whether a bargaining representative is genuinely trying to reach an agreement with a particular employer, include the following:

(a) whether the bargaining representative is demonstrating a preparedness to bargain for the agreement taking into account the individual circumstances of that employer, including in relation to the nominal expiry date of the agreement;

(b) whether the bargaining representative is bargaining in a manner consistent with the terms of the agreement being determined as far as possible by agreement between that employer and its employees;

(4) If a person seeks to rely on subsection (2), the person has the burden of proving that the subsection applies.

Genuinely trying to reach an agreement

(5) This section does not affect, and is not affected by, the meaning of the expression “genuinely trying to reach an agreement”, or any variant of the expression, as used elsewhere in this Act.

Subdivision B—Common requirements for industrial action to be protected industrial action

413 Common requirements that apply for industrial action to be protected industrial action

Common requirements

(1) This section sets out the common requirements for industrial action to be protected industrial action for a proposed enterprise agreement.

Type of proposed enterprise agreement

(2) The industrial action must not relate to a proposed enterprise agreement that is a greenfields agreement or multi‑enterprise agreement.

Genuinely trying to reach an agreement

(3) The following persons must be genuinely trying to reach an agreement:

(a) if the person organising or engaging in the industrial action is a bargaining representative for the agreement—the bargaining representative;

(b) if the person organising or engaging in the industrial action is an employee who will be covered by the agreement—the bargaining representative of the employee.

Notice requirements

(4) The notice requirements set out in section 414 must have been met in relation to the industrial action.

Compliance with orders

(5) The following persons must not have contravened any orders that apply to them and that relate to, or relate to industrial action relating to, the agreement or a matter that arose during bargaining for the agreement:

(a) if the person organising or engaging in the industrial action is a bargaining representative for the agreement—the bargaining representative;

(b) if the person organising or engaging in the industrial action is an employee who will be covered by the agreement—the employee and the bargaining representative of the employee.

No industrial action before an enterprise agreement etc. passes its nominal expiry date

(6) The person organising or engaging in the industrial action must not contravene section 417 (which deals with industrial action before the nominal expiry date of an enterprise agreement etc.) by organising or engaging in the industrial action.

No suspension or termination order is in operation etc.

(7) None of the following must be in operation:

(a) an order under Division 6 of this Part suspending or terminating industrial action in relation to the agreement;

(b) a Ministerial declaration under subsection 431(1) terminating industrial action in relation to the agreement;

414 Notice requirements for industrial action

Notice requirements—employee claim action

(1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

(2) The period of notice must be at least:

(a) 3 working days; or

(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph—that period of notice.

Notice of employee claim action not to be given until ballot results declared

(3) A notice under subsection (1) must not be given until after the results of the protected action ballot for the employee claim action have been declared.

Notice requirements—employee response action

(4) Before a person engages in employee response action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

Notice requirements—employer response action

(5) Before an employer engages in employer response action for a proposed enterprise agreement, the employer must:

(a) give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and

(b) take all reasonable steps to notify the employees who will be covered by the agreement of the action.

Notice requirements—content

(6) A notice given under this section must specify the nature of the action and the day on which it will start.

Subdivision C—Significance of industrial action being protected industrial action

415 Immunity provision

(1) No action lies under any law (whether written or unwritten) in force in a State or Territory in relation to any industrial action that is protected industrial action unless the industrial action has involved or is likely to involve:

(a) personal injury; or

(b) wilful or reckless destruction of, or damage to, property; or

(2) However, subsection (1) does not prevent an action for defamation being brought in relation to anything that occurred in the course of industrial action.

416 Employer response action—employer may refuse to make payments to employees

If an employer engages in employer response action against employees, the employer may refuse to make payments to the employees in relation to the period of the action.

Note: If an employee engages in protected industrial action against his or her employer, the employer must not make a payment to an employee in relation to certain periods of action (see Subdivision A of Division 9 of this Part).

Division 3—No industrial action before nominal expiry date of enterprise agreement etc.

417 Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.

No industrial action

(1) A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:

(a) an enterprise agreement is approved by FWA until its nominal expiry date has passed; or

(b) a workplace determination comes into operation until its nominal expiry date has passed;

whether or not the industrial action relates to a matter dealt with in the agreement or determination.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) The persons are:

(a) an employer, employee, or employee organisation, who is covered by the agreement or determination; or

(b) an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.

Injunctions and other orders

(3) If a person contravenes subsection (1), the Federal Court or Federal Magistrates Court may do either or both of the following:

(a) grant an injunction under this subsection;

(b) make any other order under subsection 545(1);

that the court considers necessary to stop, or remedy the effects of, the contravention.

(4) The court may grant an injunction under subsection (3) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).

(5) Despite subsection 545(4), the court may make any other order under subsection 545(1) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).

Note: Section 539 deals with applications for orders in relation to contraventions of civil remedy provisions.

Division 4—FWA orders stopping etc. industrial action

418 FWA must order that industrial action by employees or employers stop etc.

(1) If it appears to FWA that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

Note: For interim orders, see section 420.

(2) FWA may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, FWA does not have to specify the particular industrial action.

(4) If FWA is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

FWA may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.

419 FWA must order that industrial action by non‑national system employees or non‑national system employers stop etc.

Stop orders etc.

(1) If it appears to FWA that industrial action by one or more non‑national system employees or non‑national system employers:

(a) is:

(i) happening; or

(ii) threatened, impending or probable; or

(iii) being organised; and

(b) will, or would, be likely to have the effect of causing substantial loss or damage to the business of a constitutional corporation;

FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period specified in the order.

Note: For interim orders, see section 420.

(2) FWA may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, FWA does not have to specify the particular industrial action.

420 Interim orders etc.

Application must be determined within 2 days

(1) As far as practicable, FWA must determine an application for an order under section 418 or 419 within 2 days after the application is made.

Interim orders

(2) If FWA is unable to determine the application within that period, FWA must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be).

(3) However, FWA must not make the interim order if FWA is satisfied that it would be contrary to the public interest to do so.

(4) In making the interim order, FWA does not have to specify the particular industrial action.

(5) An interim order continues in operation until the application is determined.

421 Contravening an order etc.

Contravening orders

(1) A person to whom an order under section 418, 419 or 420 applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) However, a person is not required to comply with an order if:

(a) the order is an order under section 418, or an order under section 420 that relates to an application for an order under section 418; and

(b) the industrial action to which the order relates is, or would be, protected industrial action.

Injunctions

(3) The Federal Court or Federal Magistrates Court may grant an injunction, under this subsection, on such terms as the court considers appropriate if:

(a) a person referred to in column 2 of item 15 of the table in subsection 539(2) has applied for the injunction; and

(b) the court is satisfied that another person to whom the order applies has contravened, or proposes to contravene, a term of the order.

Note: Section 539 deals with applications for orders in relation to contraventions of civil remedy provisions.

No other orders

(4) Section 545 (which deals with orders that a court can make if a person has contravened etc. a civil remedy provision) does not apply to a contravention of a term of the order.

Division 5—Injunction against industrial action if pattern bargaining is being engaged in

422 Injunction against industrial action if a bargaining representative is engaging in pattern bargaining

(1) The Federal Court or Federal Magistrates Court may grant an injunction on such terms as the court considers appropriate if:

(a) a person has applied for the injunction; and

(b) the requirement set out in subsection (2) is met.

(2) The court is satisfied that:

(a) employee claim action for a proposed enterprise agreement is being engaged in, or is threatened, impending or probable; and

(b) a bargaining representative of an employee who will be covered by the agreement is engaging in pattern bargaining in relation to the agreement.

Division 6—Suspension or termination of protected industrial action by FWA

423 FWA may suspend or terminate protected industrial action—significant economic harm etc.

Suspension or termination of protected industrial action

(1) FWA may make an order suspending or terminating protected industrial action for a proposed enterprise agreement that is being engaged in if the requirements set out in this section are met.

Requirement—significant economic harm

(2) If the protected industrial action is employee claim action, FWA must be satisfied that the action is causing, or is threatening to cause, significant economic harm to:

(a) the employer, or any of the employers, that will be covered by the agreement; and

(b) any of the employees who will be covered by the agreement.

(3) If the protected industrial action is:

(a) employee response action; or

(b) employer response action;

FWA must be satisfied that the action is causing, or is threatening to cause, significant economic harm to any of the employees who will be covered by the agreement.

(4) For the purposes of subsections (2) and (3), the factors relevant to working out whether protected industrial action is causing, or is threatening to cause, significant economic harm to a person referred to in those subsections, include the following:

(a) the source, nature and degree of harm suffered or likely to be suffered;

(b) the likelihood that the harm will continue to be caused or will be caused;

(d) the views of the person and the bargaining representatives for the agreement;

(e) whether the bargaining representatives for the agreement have met the good faith bargaining requirements and have not contravened any bargaining orders in relation to the agreement;

(f) if FWA is considering terminating the protected industrial action:

(i) whether the bargaining representatives for the agreement are genuinely unable to reach agreement on the terms that should be included in the agreement; and

(ii) whether there is no reasonable prospect of agreement being reached;

(g) the objective of promoting and facilitating bargaining for the agreement.

Requirement—harm is imminent

(5) If the protected industrial action is threatening to cause significant economic harm as referred to in subsection (2) or (3), FWA must be satisfied that the harm is imminent.

Requirement—protracted action etc.

(6) FWA must be satisfied that:

(a) the protected industrial action has been engaged in for a protracted period of time; and

(b) the dispute will not be resolved in the reasonably foreseeable future.

Order may be made on own initiative or on application

(7) FWA may make the order:

(a) on its own initiative; or

(b) on application by any of the following:

(i) a bargaining representative for the agreement;

(ii) the Minister;

(iii) a person prescribed by the regulations.

424 FWA must suspend or terminate protected industrial action—endangering life etc.

Suspension or termination of protected industrial action

(1) FWA must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:

(a) is being engaged in; or

(b) is threatened, impending or probable;

if FWA is satisfied that the protected industrial action has threatened, is threatening, or would threaten:

(d) to cause significant damage to the Australian economy or an important part of it.

(2) FWA may make the order:

(a) on its own initiative; or

(b) on application by any of the following:

(i) a bargaining representative for the agreement;

(ii) the Minister;

(iii) a person prescribed by the regulations.

Application must be determined within 5 days

(3) If an application for an order under this section is made, FWA must, as far as practicable, determine the application within 5 days after it is made.

Interim orders

(4) If FWA is unable to determine the application within that period, FWA must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.

(5) An interim order continues in operation until the application is determined.

425 FWA must suspend protected industrial action—cooling off

(1) FWA must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if FWA is satisfied that the suspension is appropriate taking into account the following matters:

(a) whether the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue;

(b) the duration of the protected industrial action;

(d) any other matters that FWA considers relevant.

(2) FWA may make the order only on application by:

(a) a bargaining representative for the agreement; or

(b) a person prescribed by the regulations.

426 FWA must suspend protected industrial action—significant harm to a third party

Suspension of protected industrial action

(1) FWA must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the requirements set out in this section are met.

Requirement—adverse effect on employers or employees

(2) FWA must be satisfied that the protected industrial action is adversely affecting:

(a) the employer, or any of the employers, that will be covered by the agreement; or

(b) any of the employees who will be covered by the agreement.

Requirement—significant harm to a third party

(3) FWA must be satisfied that the protected industrial action is threatening to cause significant harm to any person other than:

(a) a bargaining representative for the agreement; or

(b) an employee who will be covered by the agreement.

(4) For the purposes of subsection (3), FWA may take into account any matters it considers relevant including the extent to which the protected industrial action threatens to:

(a) damage the ongoing viability of an enterprise carried on by the person; or

(b) disrupt the supply of goods or services to an enterprise carried on by the person; or

(d) cause other economic loss to the person.

Requirement—suspension is appropriate

(5) FWA must be satisfied that the suspension is appropriate taking into account the following:

(a) whether the suspension would be contrary to the public interest or inconsistent with the objects of this Act;

(b) any other matters that FWA considers relevant.

Order may only be made on application by certain persons

(6) FWA may make the order only on application by:

(a) an organisation, person or body directly affected by the protected industrial action other than:

(i) a bargaining representative for the agreement; or

(ii) an employee who will be covered by the agreement; or

(b) the Minister; or

427 FWA must specify the period of suspension

Application of this section

(1) This section applies if FWA is required or permitted by this Division to make an order suspending protected industrial action.

Suspension period

(2) FWA must specify, in the order, the period for which the protected industrial action is suspended.

Notice period

(3) FWA may specify, in the order, a longer period of notice of up to 7 working days for the purposes of paragraph 430(2)(b) if FWA is satisfied that there are exceptional circumstances justifying that longer period of notice.

428 Extension of a period of suspension

(1) FWA may make an order extending the period of suspension specified in an order (the suspension order) suspending protected industrial action for a proposed enterprise agreement if:

(a) the person who applied, or a person who could have applied, for the suspension order, applies for the extension; and

(b) FWA has not previously made an order under this section in relation to the suspension order; and

(c) FWA is satisfied that the extension is appropriate taking into account any matters FWA considers relevant including the matters specified in the provision under which the suspension order was made.

(2) If FWA is permitted to make an order under this section:

(a) FWA must specify, in the order, the period of extension; and

(b) FWA may specify, in the order, a longer period of notice of up to 7 working days for the purposes of paragraph 430(2)(b) if FWA is satisfied that there are exceptional circumstances justifying that longer period of notice.

429 Employee claim action without a further protected action ballot after a period of suspension etc.

Application of this section

(1) This section applies in relation to employee claim action for a proposed enterprise agreement if:

(a) an order suspending the employee claim action has been made; and

(b) a protected action ballot authorised the employee claim action:

(i) some or all of which had not been taken before the beginning of the period (the suspension period) of suspension specified in the order; or

(ii) which had not ended before the beginning of the suspension period; or

(iii) beyond the suspension period; and

(c) the suspension period (including any extension under section 428) ends, or the order is revoked before the end of that period.

Further protected action ballot not required to engage in employee claim action

(2) A person may engage in the employee claim action without another protected action ballot.

(3) For the purposes of working out when the employee claim action may be engaged in, the suspension period (including any dates authorised by the protected action ballot as dates on which employee claim action is to be engaged in) must be disregarded.

(4) Nothing in this section authorises employee claim action that is different in type or duration from the employee claim action that was authorised by the protected action ballot.

430 Notice of employee claim action engaged in after a period of suspension etc.

(1) Before a person engages in employee claim action for a proposed enterprise agreement as permitted by subsection 429(2), a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

(2) The period of notice must be at least:

(a) 3 working days; or

(b) if, under subsection 427(3) or paragraph 428(2)(b), FWA specified, for the purposes of this paragraph, a longer period of notice in an order relating to the employee claim action—that period of notice.

(3) The notice must state the nature of the employee claim action and the day on which it will start.

Division 7—Ministerial declarations

431 Ministerial declaration terminating industrial action

(1) The Minister may make a declaration, in writing, terminating protected industrial action for a proposed enterprise agreement if the Minister is satisfied that:

(a) the industrial action is being engaged in, or is threatened, impending or probable; and

(b) the industrial action is threatening, or would threaten:

(i) to endanger the life, the personal safety or health, or the welfare, of the population or a part of it; or

(ii) to cause significant damage to the Australian economy or an important part of it.

(2) The declaration comes into operation on the day that it is made.

(3) A declaration under subsection (1) is not a legislative instrument.

432 Informing people of declaration

(1) This section applies if the Minister makes a declaration under subsection 431(1).

(2) The declaration must be published in the Gazette.

(3) The Minister must inform FWA of the making of the declaration.

(4) The Minister must, as soon as practicable, take all reasonable steps to ensure that the bargaining representatives for the proposed enterprise agreement concerned are made aware:

(a) of the making of the declaration; and

(b) of the effect of Part 2‑5 (which deals with workplace determinations).

433 Ministerial directions to remove or reduce threat

(1) If a declaration under subsection 431(1) is in operation in relation to a proposed enterprise agreement, the Minister may give directions, in writing, requiring the following persons to take, or refrain from taking, specified actions:

(a) specified bargaining representatives for the agreement;

(b) specified employees who will be covered by the agreement.

(2) The Minister may only give directions that the Minister is satisfied are reasonably directed to removing or reducing the threat referred to in paragraph 431(1)(b).

(3) A direction under subsection (1) is not a legislative instrument.

434 Contravening a Ministerial direction

A person to whom a direction under subsection 433(1) applies must not contravene the direction.

Note: This section is a civil remedy provision (see Part 4‑1).

Division 8—Protected action ballots

Subdivision A—Introduction

435 Guide to this Division

This Division establishes the process that will allow employees to choose, by means of a fair and democratic secret ballot, whether to authorise protected industrial action for a proposed enterprise agreement.

Subdivision B provides for FWA to make a protected action ballot order, on application by a bargaining representative of an employee who will be covered by a proposed enterprise agreement, requiring a protected action ballot to be conducted.

Subdivision C deals with the conduct of a protected action ballot.

Subdivision D deals with the effect of a protected action ballot.

Subdivision E deals with compliance matters in relation to a protected action ballot.

Subdivision F deals with the liability for the costs of a protected action ballot.

Subdivision G deals with records and other miscellaneous matters.

436 Object of this Division

The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

Subdivision B—Protected action ballot orders

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to FWA for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi‑enterprise agreement.

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless FWA specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) are represented by a bargaining representative who is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

438 Restriction on when application may be made

(1) If one or more enterprise agreements cover the employees who will be covered by the proposed enterprise agreement, an application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be).

(2) To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.

439 Joint applications

Without limiting section 609, the procedural rules may provide for the following:

(a) how a provision of this Act that applies in relation to an applicant for a protected action ballot order is to apply in relation to joint applicants for such an order;

(b) the joinder, with the consent of each existing applicant, of one or more bargaining representatives to an application for a protected action ballot order;

440 Notice of application

Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted, and:

(a) if the application specifies a person that the applicant wishes to be the protected action ballot agent—that person; or

(b) otherwise—the Australian Electoral Commission.

441 Application to be determined within 2 days after it is made

(1) FWA must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.

(2) However, FWA must not determine the application unless it is satisfied that each applicant has complied with section 440.

442 Dealing with multiple applications together

FWA may deal with 2 or more applications for a protected action ballot order at the same time if:

(a) the applications relate to industrial action by:

(i) employees of the same employer; or

(ii) employees at the same workplace; and

(b) FWA is satisfied that dealing with the applications at the same time will not unreasonably delay the determination of any of the applications.

443 When FWA must make a protected action ballot order

(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If FWA decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that FWA decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If FWA is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

444 FWA may decide on ballot agent other than the Australian Electoral Commission and independent advisor

Alternative ballot agent

(1) FWA may decide that a person other than the Australian Electoral Commission is to be the protected action ballot agent for a protected action ballot only if:

(a) the person is specified in the application for the protected action ballot order as the person the applicant wishes to be the protected action ballot agent; and

(b) FWA is satisfied that:

(i) the person is a fit and proper person to conduct the ballot; and

(ii) any other requirements prescribed by the regulations are met.

(2) The regulations may prescribe:

(a) conditions that a person must meet in order to satisfy FWA that the person is a fit and proper person to conduct a protected action ballot; and

(b) factors that FWA must take into account in determining whether a person is a fit and proper person to conduct a protected action ballot.

Independent advisor

(3) FWA may decide that a person (the other person) is to be the independent advisor for a protected action ballot if:

(a) FWA has decided that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the ballot; and

(b) FWA considers it appropriate that there be an independent advisor for the ballot; and

(i) the other person is sufficiently independent of each applicant for the protected action ballot order; and

(ii) any other requirements prescribed by the regulations are met.

445 Notice of protected action ballot order

As soon as practicable after making a protected action ballot order, FWA must give a copy of the order to:

(a) each applicant for the order; and

(b) the employer of the employees who are to be balloted; and

446 Protected action ballot order may require 2 or more protected action ballots to be held at the same time

(1) This section applies if:

(a) FWA has made a protected action ballot order; and

(b) FWA proposes to make another protected action ballot order or orders; and

(c) the orders would require a protected action ballot to be held in relation to industrial action by employees of the same employer or employees at the same workplace.

(2) FWA may make, or vary, the protected action ballot orders so as to require the protected action ballots to be held at the same time if FWA is satisfied:

(a) that the level of disruption of the employer’s enterprise, or at the workplace, could be reduced if the ballots were held at the same time; and

(b) that requiring the ballots to be held at the same time will not unreasonably delay either ballot.

447 Variation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to FWA to vary the order.

(2) The protected action ballot agent for a protected action ballot may apply to FWA to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3) An application may be made under subsection (1) or (2):

(a) at any time before the date by which voting in the protected action ballot closes; or

(b) if the ballot has not been held before that date and FWA consents—after that time.

(4) If an application is made under subsection (1) or (2), FWA may vary the protected action ballot order.

448 Revocation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to FWA, at any time before voting in the protected action ballot closes, to revoke the order.

(2) If an application to revoke a protected action ballot order is made, FWA must revoke the order.

Subdivision C—Conduct of protected action ballot

449 Protected action ballot to be conducted by Australian Electoral Commission or other specified ballot agent

(1) A protected action ballot must be conducted by:

(a) if a person is specified in the protected action ballot order as the protected action ballot agent for the ballot—that person; or

(b) otherwise—the Australian Electoral Commission.

(2) The protected action ballot agent must conduct the protected action ballot in accordance with the following:

(a) the protected action ballot order;

(b) the timetable for the ballot;

(d) any directions given by FWA;

(e) any procedures prescribed by the regulations.

450 Directions for conduct of protected action ballot

(1) This section applies if the protected action ballot agent is not the Australian Electoral Commission.

(2) FWA must give the protected action ballot agent written directions in relation to the following matters relating to the protected action ballot:

(a) the development of a timetable;

(b) the voting method, or methods, to be used;

(d) the addition of names to, or removal of names from, the roll of voters;

(e) any other matter in relation to the conduct of the ballot that FWA considers appropriate.

Note: A protected action ballot agent must not contravene a term of a direction given by FWA in relation to a protected action ballot (see subsection 463(2)).

(3) A direction given under subsection (2) may require the protected action ballot agent to comply with a provision of this Subdivision (other than subsection 454(5)) in relation to a particular matter.

Note: Subsection 454(5) provides for the Australian Electoral Commission to vary the roll of voters on its own initiative.

(4) To enable the roll of voters to be compiled, FWA may direct, in writing, either or both of the following:

(a) the employer of the employees who are to be balloted;

(b) the applicant for the protected action ballot order;

to give to FWA or the protected action ballot agent:

(c) the names of the employees included in the group or groups of employees specified in the protected action ballot order; and

(d) any other information that it is reasonable for FWA or the protected action ballot agent to require to assist in compiling the roll of voters.

451 Timetable for protected action ballot

(1) This section applies if:

(a) the protected action ballot agent is the Australian Electoral Commission; or

(b) FWA has directed the protected action ballot agent to comply with this section.

Note: If this section does not apply, the protected action ballot agent must comply with directions given by FWA in relation to the matters dealt with by this section (see section 450).

(2) As soon as practicable after receiving a copy of the protected action ballot order, the protected action ballot agent must, in consultation with each applicant for the order and the employer of the employees who are to be balloted:

(a) develop a timetable for the conduct of the protected action ballot; and

(b) determine the voting method, or methods, to be used for the ballot.

452 Compilation of roll of voters

(1) This section applies if:

(a) the protected action ballot agent is the Australian Electoral Commission; or

(b) FWA has directed the protected action ballot agent to comply with this section.

Note: If this section does not apply, the protected action ballot agent must comply with directions given by FWA in relation to the matters dealt with by this section (see section 450).

(2) As soon as practicable after receiving a copy of the protected action ballot order, the protected action ballot agent must compile the roll of voters for the protected action ballot.

(3) For the purpose of compiling the roll of voters, the protected action ballot agent may direct, in writing, the employer of the employees who are to be balloted, or the applicant for the order (or both), to give to the ballot agent:

(a) the names of the employees included in the group or groups of employees specified in the protected action ballot order; and

(b) any other information that it is reasonable for the protected action ballot agent to require to assist in compiling the roll of voters.

453 Who is eligible to be included on the roll of voters

An employee is eligible to be included on the roll of voters for the protected action ballot only if:

(a) the employee will be covered by the proposed enterprise agreement to which the ballot relates; and

(b) on the day the protected action ballot order was made, the employee:

(i) was represented by a bargaining representative who was an applicant for the order; and

(ii) was included in a group of employees specified in the order.

454 Variation of roll of voters

Variation by protected action ballot agent on request

(1) Subsections (2) to (4) apply if:

(a) the protected action ballot agent is the Australian Electoral Commission; or

(b) FWA has directed the protected action ballot agent to comply with those subsections.

Note: If subsections (2) to (4) do not apply, the protected action ballot agent must comply with directions given by FWA in relation to the matters dealt with by those subsections (see section 450).

Adding names to the roll of voters

(2) The protected action ballot agent must include an employee’s name on the roll of voters for the protected action ballot if:

(a) the protected action ballot agent is requested to do so by:

(i) an applicant for the protected action ballot order; or

(ii) the employee; or

(iii) the employee’s employer; and

(b) the protected action ballot agent is satisfied that the employee is eligible to be included on the roll of voters; and

Removing names from the roll of voters

(3) The protected action ballot agent must remove an employee’s name from the roll of voters for the protected action ballot if:

(a) the protected action ballot agent is requested to do so by:

(i) an applicant for the protected action ballot order; or

(ii) the employee; or

(iii) the employee’s employer; and

(b) the protected action ballot agent is satisfied that the employee is not eligible to be included on the roll of voters; and

(4) The protected action ballot agent must remove a person’s name from the roll of voters for the protected action ballot if:

(a) the person (the former employee) is no longer employed by the employer (the former employer) of the employees who are to be balloted; and

(b) the protected action ballot agent is requested to do so by:

(i) an applicant for the protected action ballot order; or

(ii) the former employee; or

(iii) the former employer; and

Variation by Australian Electoral Commission on its own initiative

(5) If the protected action ballot agent is the Australian Electoral Commission, the Commission may, on its own initiative and before the end of the working day before the day on which voting in the ballot starts:

(a) include an employee’s name on the roll of voters for the protected action ballot if the Commission is satisfied that the employee is eligible to be included on the roll of voters; or

(b) remove an employee’s name from the roll of voters for the protected action ballot if the Commission is satisfied that the employee is not eligible to be included on the roll of voters; or

(c) remove a person’s name from the roll of voters for the protected action ballot if the person is no longer employed by the employer of the employees who are to be balloted.

455 Protected action ballot papers

The ballot paper for the protected action ballot must:

(a) if a form is prescribed by the regulations—be in that form; and

(b) include any information prescribed by the regulations.

456 Who may vote in protected action ballot

An employee may vote in the protected action ballot only if the employee’s name is on the roll of voters for the ballot.

457 Results of protected action ballot

(1) As soon as practicable after voting in the protected action ballot closes, the protected action ballot agent must, in writing:

(a) make a declaration of the results of the ballot; and

(b) inform the following persons of the results:

(i) each applicant for the protected action ballot order;

(ii) the employer of the employees who were balloted;

(iii) FWA.

(2) FWA must publish the results of the protected action ballot, on its website or by any other means that FWA considers appropriate, as soon as practicable after it is informed of them.

458 Report about conduct of protected action ballot

Protected action ballot conducted by the Australian Electoral Commission

(1) If:

(a) the protected action ballot agent is the Australian Electoral Commission; and

(b) the Commission:

(i) receives any complaints about the conduct of the protected action ballot; or

(ii) becomes aware of any irregularities in relation to the conduct of the ballot;

the Commission must prepare a written report about the conduct of the ballot and give it to FWA.

Protected action ballot conducted by person other than the Australian Electoral Commission

(2) If:

(a) the protected action ballot agent is not the Australian Electoral Commission; and

(b) the protected action ballot agent or the independent advisor (if any) for the protected action ballot:

(i) receives any complaints about the conduct of the ballot; or

(ii) becomes aware of any irregularities in relation to the conduct of the ballot;

the protected action ballot agent or the independent advisor (as the case may be) must prepare a report about the conduct of the ballot and give it to FWA.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(3) If:

(a) the protected action ballot agent is not the Australian Electoral Commission; and

(b) FWA:

(i) receives any complaints about the conduct of the protected action ballot; or

(ii) becomes aware of any irregularities in relation to the conduct of the ballot;

FWA must, in writing, direct the protected action ballot agent or the independent advisor (if any) for the ballot (or both) to prepare a report about the conduct of the ballot and give it to FWA.

(4) A report under subsection (2) or (3) must be prepared in accordance with the regulations.

Meaning of conduct of a protected action ballot

(5) Conduct of a protected action ballot includes, but is not limited to, the compilation of the roll of voters for the ballot.

Meaning of irregularity in relation to the conduct of a protected action ballot

(6) An irregularity, in relation to the conduct of a protected action ballot, includes, but is not limited to, an act or omission by means of which the full and free recording of votes by all employees entitled to vote in the ballot, and by no other persons is, or is attempted to be, prevented or hindered.

Subdivision D—Effect of protected action ballot

459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(d) the action commences:

(i) during the 30‑day period starting on the date of the declaration of the results of the ballot; or

(ii) if FWA has extended that period under subsection (3)—during the extended period.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3) FWA may extend the 30‑day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to FWA for the period to be extended; and

(b) the period has not previously been extended.

460 Immunity for persons who act in good faith on protected action ballot results

(1) This section applies if:

(a) the results of a protected action ballot, as declared by the protected action ballot agent for the ballot, purported to authorise particular industrial action; and

(b) an organisation or a person, acting in good faith on the declared ballot results, organised or engaged in that industrial action; and

(i) it later becomes clear that that industrial action was not authorised by the ballot; or

(ii) the decision to make the protected action ballot order is quashed or varied on appeal, or on review by FWA, after the industrial action is organised or engaged in.

(2) No action lies against the organisation or person under any law (whether written or unwritten) in force in a State or a Territory in relation to the industrial action unless the action involved:

(a) personal injury; or

(b) intentional or reckless destruction of, or damage to, property; or

(3) This section does not prevent an action for defamation being brought in relation to anything that occurred in the course of the industrial action.

461 Validity of protected action ballot etc. not affected by technical breaches

A technical breach of a provision of this Division does not affect the validity of any of the following:

(a) a protected action ballot order;

(b) an order, direction or decision of FWA in relation to a protected action ballot order or a protected action ballot;

(c) a direction or decision of the protected action ballot agent in relation to a protected action ballot order or a protected action ballot;

(d) a protected action ballot;

(e) the conduct of a protected action ballot;

(f) the declaration of the results of a protected action ballot.

Subdivision E—Compliance

462 Interferences etc. with protected action ballot

General

(1) A person (the first person) must not do any of the following in relation to a protected action ballot:

(a) hinder or obstruct the holding of the ballot;

(b) use any form of intimidation to prevent a person entitled to vote in the ballot from voting, or to influence the vote of such a person;

(c) threaten, offer or suggest, or use, cause or inflict, any violence, injury, punishment, damage, loss or disadvantage because of, or to induce:

(i) any vote or omission to vote; or

(ii) any support of, or opposition to, voting in a particular manner;

(d) offer an advantage (whether financial or otherwise) to a person entitled to vote in the ballot because of or to induce:

(i) any vote or omission to vote; or

(ii) any support of, or opposition to, voting in a particular manner;

(e) counsel or advise a person entitled to vote to refrain from voting;

(f) impersonate another person to obtain a ballot paper to which the first person is not entitled, or impersonate another person for the purpose of voting;

(g) do an act that results in a ballot paper or envelope being destroyed, defaced, altered, taken or otherwise interfered with;

(h) fraudulently put a ballot paper or other paper:

(i) into a ballot box or other ballot receptacle; or

(ii) into the post;

(i) fraudulently deliver a ballot paper or other paper to a person receiving ballot papers for the purposes of the ballot;

(j) record a vote that the first person is not entitled to record;

(k) record more than one vote;

(l) forge a ballot paper or envelope, or utter a ballot paper or envelope that the first person knows to be forged;

(m) provide a ballot paper without authority;

(n) obtain or have possession of a ballot paper to which the first person is not entitled;

(o) request, require or induce another person:

(i) to show a ballot paper to the first person; or

(ii) to permit the first person to see a ballot paper in such a manner that the first person can see the vote;

while the ballot paper is being marked or after it has been marked;

(p) do an act that results in a ballot box or other ballot receptacle being destroyed, taken, opened or otherwise interfered with.

Note: This subsection is a civil remedy provision (see Part 4‑1).

Meaning of utter

(2) A person is taken to utter a forged document if the person:

(a) uses or deals with it; or

(b) attempts to use or deal with it; or

Obligations of person performing functions or exercising powers for the purposes of a protected action ballot

(3) A person (the first person) who is performing functions or exercising powers for the purposes of a protected action ballot must not show to another person, or permit another person to have access to, a ballot paper used in the ballot, except in the course of performing those functions or exercising those powers.

Note: This subsection is a civil remedy provision (see Part 4‑1).

463 Contravening a protected action ballot order etc.

(1) A person must not contravene:

(a) a term of a protected action ballot order; or

(b) a term of an order made by FWA in relation to a protected action ballot order or a protected action ballot.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) A person must not contravene a direction given by FWA, or a protected action ballot agent, in relation to a protected action ballot order or a protected action ballot.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(3) However, an order cannot be made under Division 2 of Part 4‑1 in relation to a contravention (or alleged contravention) of subsection (1) or (2) by the Australian Electoral Commission.

Subdivision F—Liability for costs of protected action ballot

464 Costs of protected action ballot conducted by the Australian Electoral Commission

(1) This section applies if the protected action ballot agent for a protected action ballot is the Australian Electoral Commission.

(2) The Commonwealth is liable for the costs incurred by the Australian Electoral Commission in relation to the protected action ballot, whether or not the ballot is completed.

(3) However, except as provided by regulations made for the purposes of subsection 466(1), the Commonwealth is not liable for any costs incurred by the Australian Electoral Commission in relation to legal challenges to matters connected with the protected action ballot.

465 Costs of protected action ballot conducted by protected action ballot agent other than the Australian Electoral Commission

(1) This section applies if the protected action ballot agent for a protected action ballot is not the Australian Electoral Commission.

(2) The applicant for the protected action ballot order is liable for the costs of conducting the protected action ballot, whether or not the ballot is completed.

(3) If the application for the protected action ballot order was made by joint applicants, each applicant is jointly and severally liable for the costs of conducting the protected action ballot, whether or not the ballot is completed.

(4) The costs of conducting a protected action ballot are:

(a) if the protected action ballot agent is an applicant for the protected action ballot order—the costs incurred by the applicant in relation to the ballot; or

(b) otherwise—the amount the protected action ballot agent charges to the applicant or applicants in relation to the ballot.

(5) However, the costs of conducting a protected action ballot do not include any costs incurred by the protected action ballot agent in relation to legal challenges to matters connected with the ballot.

466 Costs of legal challenges

(1) The regulations may provide for who is liable for costs incurred in relation to legal challenges to matters connected with a protected action ballot.

(2) Regulations made for the purposes of subsection (1) may also provide for a person who is liable for costs referred to in that subsection to be indemnified by another person for some or all of those costs.

Subdivision G—Miscellaneous

467 Information about employees on roll of voters not to be disclosed

(1) A person who:

(a) is the protected action ballot agent for a protected action ballot (other than the Australian Electoral Commission); or

(b) is the independent advisor for a protected action ballot; or

(c) acquires information from, or on behalf of, a person referred to in paragraph (a) or (b) in the course of performing functions or exercising powers for the purposes of the ballot;

must not disclose to any other person information about an employee who is on the roll of voters for the ballot if the information will identify whether or not the employee is a member of an employee organisation.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) Subsection (1) does not apply if:

(a) the disclosure is made in the course of performing functions or exercising powers for the purposes of the protected action ballot; or

(b) the disclosure is required or authorised by or under a law; or

Note 1: Personal information given to FWA, the Australian Electoral Commission or another protected action ballot agent under this Division may be regulated under the Privacy Act 1988.

Note 2: The President of FWA may, in certain circumstances, disclose, or authorise the disclosure of, information acquired by FWA or a member of the staff of FWA, in the course of performing functions or exercising powers as FWA (see section 655).

468 Records

(1) The protected action ballot agent for a protected action ballot must keep the following ballot material:

(a) the roll of voters for the ballot;

(b) the ballot papers, envelopes and other documents and records relating to the ballot;

(2) The ballot material must be kept for one year after the day on which the protected action ballot closed.

(3) The protected action ballot agent must comply with any requirements prescribed by the regulations relating to how the ballot material is to be kept.

469 Regulations

The regulations may provide for the following matters:

(a) the requirements that must be satisfied for a person (other than the Australian Electoral Commission) to be:

(i) the protected action ballot agent for a protected action ballot; or

(ii) the independent advisor for a protected action ballot;

(b) the procedures to be followed in relation to the conduct of a protected action ballot;

(d) the qualifications, appointment, powers and duties of scrutineers for a protected action ballot;

(e) the preparation of reports under subsection 458(2) or (3);

(f) the records that the protected action ballot agent must keep in relation to a protected action ballot and how those records are to be kept.

Division 9—Payments relating to periods of industrial action

Subdivision A—Protected industrial action

470 Payments not to be made relating to certain periods of industrial action

(1) If an employee engaged, or engages, in protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to the total duration of the industrial action on that day.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) However, this section does not apply to a partial work ban.

Note: For payments relating to periods of partial work bans, see section 471.

(3) A partial work ban is industrial action that is not:

(a) a failure or refusal by an employee to attend for work; or

(b) a failure or refusal by an employee who attends for work to perform any work at all; or

(4) If the industrial action is, or includes, an overtime ban, this section does not apply, in relation to a period of overtime to which the ban applies, unless:

(a) the employer requested or required the employee to work the period of overtime; and

(b) the employee refused to work the period of overtime; and

(c) the refusal was a contravention of the employee’s obligations under a modern award, enterprise agreement or contract of employment.

(5) If:

(a) the industrial action is, or includes, an overtime ban; and

(b) this section applies in relation to a period of overtime to which the ban applies;

then for the purposes of this section, the total duration of the industrial action is, or includes, the period of overtime to which the ban applies.

471 Payments relating to partial work bans

Employer gives notice of reduction in payments

(1) If:

(a) an employee engaged, or engages, in protected industrial action against an employer on a day; and

(b) the industrial action is a partial work ban; and

(c) the employer gives to the employee a written notice stating that, because of the ban, the employee’s payments will be reduced by a proportion specified in the notice;

then the employee’s payments are reduced in accordance with subsection (2) in relation to the period (the industrial action period) referred to in subsection (5).

(2) The employee’s payments in relation to the industrial action period are reduced:

(a) by the proportion specified in the notice; or

(b) if FWA has ordered a different proportion under section 472—by the proportion specified in the order;

and the modern award, enterprise agreement or contract of employment that applies to the employee’s employment has effect accordingly.

(3) The regulations may prescribe how the proportion referred to in paragraph (2)(a) is to be worked out.

Employer gives notice of non‑payment

(4) If:

(a) an employee engaged, or engages, in protected industrial action against an employer on a day; and

(b) the industrial action is a partial work ban; and

(i) the employee will not be entitled to any payments; and

(ii) the employer refuses to accept the performance of any work by the employee until the employee is prepared to perform all of his or her normal duties;

then the employee is not entitled to any payments in relation to the period (the industrial action period) referred to in subsection (5).

(4A) If:

(a) an employer has given an employee a notice under paragraph (4)(c); and

(b) the employee fails or refuses to attend for work, or fails or refuses to perform any work at all if he or she attends for work, during the industrial action period;

then:

(c) the failure or refusal is employee claim action, even if it does not satisfy subsections 409(2) and 413(4), if the related industrial action referred to in paragraph (4)(a) is employee claim action; or

(d) the failure or refusal is employee response action, even if it does not satisfy subsection 413(4), if the related industrial action referred to in paragraph (4)(a) is employee response action.

The industrial action period

(5) The industrial action period is the period:

(a) starting at the later of:

(i) the start of the first day on which the employee implemented the partial work ban; or

(ii) the start of the next day, after the day on which the notice was given, on which the employee performs work; and

(b) ending at the end of the day on which the ban ceases.

Form and content of notice

(6) The regulations may prescribe requirements relating to one or both of the following:

(a) the form of a notice given under paragraph (1)(c) or (4)(c);

(b) the content of such a notice.

Manner of giving notice

(7) Without limiting paragraph (1)(c) or (4)(c), the employer is taken to have given a notice in accordance with that paragraph to the employee if the employer:

(a) has taken all reasonable steps to ensure that the employee, and the employee’s bargaining representative (if any), receives the notice; and

(b) has complied with any requirements, relating to the giving of the notice, prescribed by the regulations.

Employer does not give notice

(8) If:

(a) an employee engaged, or engages, in protected industrial action against an employer on a day; and

(b) the industrial action is a partial work ban; and

then the employee’s payments for the day are not to be reduced because of the ban.

472 Orders by FWA relating to certain partial work bans

(1) FWA may make an order varying the proportion by which an employee’s payments are reduced.

(2) FWA may make the order only if a person has applied for it under subsection (4).

(3) In considering making such an order, FWA must take into account:

(a) whether the proportion specified in the notice given under paragraph 471(1)(c) was reasonable having regard to the nature and extent of the partial work ban to which the notice relates; and

(b) fairness between the parties taking into consideration all the circumstances of the case.

(4) An employee, or the employee’s bargaining representative, may apply to FWA for an order under subsection (2) if a notice has been given under paragraph 471(1)(c) stating that the employee’s payments will be reduced.

473 Accepting or seeking payments relating to periods of industrial action

(1) An employee must not:

(a) accept a payment from an employer if the employer would contravene section 470 by making the payment; or

(b) ask the employer to make such a payment.

Note 1: This subsection is a civil remedy provision (see Part 4‑1).

Note 2: Acts of coercion, or misrepresentations, relating to such payments may also contravene section 348 or 349.

(2) An employee organisation, or an officer or member of an employee organisation, must not ask an employer to make a payment to an employee if the employer would contravene section 470 by making the payment.

Note 1: This subsection is a civil remedy provision (see Part 4‑1).

Note 2: Acts of coercion, or misrepresentations, relating to such payments may also contravene section 348 or 349.

Subdivision B—Industrial action that is not protected industrial action

474 Payments not to be made relating to certain periods of industrial action

(1) If an employee engaged, or engages, in industrial action that is not protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to:

(a) if the total duration of the industrial action on that day is at least 4 hours—the total duration of the industrial action on that day; or

(b) otherwise—4 hours of that day.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) However, if the industrial action is, or includes, an overtime ban, this section does not apply, in relation to a period of overtime to which the ban applies, unless:

(a) the employer requested or required the employee to work the period of overtime; and

(b) the employee refused to work the period of overtime; and

(c) the refusal was a contravention of the employee’s obligations under a modern award, enterprise agreement or contract of employment.

Note: An employee is able to refuse to work additional hours if they are unreasonable (see subsection 62(2)). There may be other circumstances in which an employee can lawfully refuse to work additional hours.

(2A) If:

(a) the industrial action is, or includes, an overtime ban; and

(b) this section applies in relation to a period of overtime to which the ban applies;

then, for the purposes of this section:

(d) if paragraph (1)(b) applies—the period of 4 hours mentioned in that paragraph includes the period of overtime to which the ban applies.

(3) If:

(a) the industrial action is during a shift (or other period of work); and

(b) the shift (or other period of work) occurs partly on one day and partly on the next day;

then, for the purposes of this section, the shift is taken to be a day and the remaining parts of the days are taken not to be part of that day.

Example: An employee, who is working a shift from 10 pm on Tuesday until 7 am on Wednesday, engages in industrial action that is not protected industrial action from 11 pm on Tuesday until 1 am on Wednesday. That industrial action would prevent the employer making a payment to the employee in relation to 4 hours of the shift, but would not prevent the employer from making a payment in relation to the remaining 5 hours of the shift.

(4) For the purposes of subsection (3), overtime is taken not to be a separate shift.

475 Accepting or seeking payments relating to periods of industrial action

(1) An employee must not:

(a) accept a payment from an employer if the employer would contravene section 474 by making the payment; or

(b) ask the employer to make such a payment.

Note 1: This subsection is a civil remedy provision (see Part 4‑1).

Note 2: Acts of coercion, or misrepresentations, relating to such payments may also contravene section 348 or 349.

Note 1: This subsection is a civil remedy provision (see Part 4‑1).

Note 2: Acts of coercion, or misrepresentations, relating to such payments may also contravene section 348 or 349.

Subdivision C—Miscellaneous

476 Other responses to industrial action unaffected

If an employee engaged, or engages, in industrial action against an employer, this Division does not affect any right of the employer, under this Act or otherwise, to do anything in response to the industrial action that does not involve payments to the employee.

Division 10—Other matters

477 Applications by bargaining representatives

Application of this section

(1) This section applies if a provision of this Part permits an application to be made by a bargaining representative of an employer that will be covered by a proposed single‑enterprise agreement.

Persons who may make applications

(2) If the agreement will cover more than one employer, the application may be made by:

(a) in the case of a proposed single‑enterprise agreement in relation to which a single interest employer authorisation is in operation—the person (if any) specified in the authorisation as the person who may make applications under this Act; or

Part 3‑4—Right of entry

Division 1—Introduction

478 Guide to this Part

This Part is about the rights of officials of organisations who hold entry permits to enter premises for purposes related to their representative role under this Act and under State or Territory OHS laws.

Division 2 allows permit holders to enter premises to investigate suspected contraventions of this Act and fair work instruments. The Division makes special provision in relation to TCF outworkers. Division 2 also allows permit holders to enter premises to hold discussions with certain employees and TCF outworkers. In exercising rights under Division 2, permit holders must comply with the requirements set out in the Division.

Division 3 sets out requirements for exercising rights under State or Territory OHS laws.

Division 4 prohibits certain action in relation to the operation of this Part.

Division 5 sets out powers of FWA in relation to the operation of this Part.

Division 6 deals with entry permits, entry notices and certificates.

479 Meanings of employee and employer

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

480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and

(ii) State or Territory OHS laws; and

(b) the right of employees and TCF outworkers to receive, at work, information and representation from officials of organisations; and

Division 2—Entry rights under this Act

Subdivision A—Entry to investigate suspected contravention

481 Entry to investigate suspected contravention

(1) A permit holder may enter premises and exercise a right under section 482 or 483 for the purpose of investigating a suspected contravention of this Act, or a term of a fair work instrument, that relates to, or affects, a member of the permit holder’s organisation:

(a) whose industrial interests the organisation is entitled to represent; and

(b) who performs work on the premises.

Note 1: Particulars of the suspected contravention must be specified in an entry notice or exemption certificate (see subsections 518(2) and 519(2)).

Note 2: FWA may issue an affected member certificate if it is satisfied that a member referred to in this subsection is on the premises (see subsection 520(1)).

(2) The fair work instrument must apply or have applied to the member.

(3) The permit holder must reasonably suspect that the contravention has occurred, or is occurring. The burden of proving that the suspicion is reasonable lies on the person asserting that fact.

Note: A permit holder who seeks to exercise rights under this Part without reasonably suspecting that a contravention has occurred, or is occurring, is liable to be penalised under subsection 503(1) (which deals with misrepresentations about things authorised by this Part).

482 Rights that may be exercised while on premises

Rights that may be exercised while on premises

(1) While on the premises, the permit holder may do the following:

(a) inspect any work, process or object relevant to the suspected contravention;

(b) interview any person about the suspected contravention:

(i) who agrees to be interviewed; and

(ii) whose industrial interests the permit holder’s organisation is entitled to represent;

(c) require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, any record or document (other than a non‑member record or document) that is directly relevant to the suspected contravention and that:

(i) is kept on the premises; or

(ii) is accessible from a computer that is kept on the premises.

Note 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).

Note 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.

(1A) However, an occupier or affected employer is not required under paragraph (1)(c) to allow the permit holder to inspect, or make copies of, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory.

Meaning of affected employer

(2) A person is an affected employer, in relation to an entry onto premises under this Subdivision, if:

(a) the person employs a member of the permit holder’s organisation whose industrial interests the organisation is entitled to represent; and

(b) the member performs work on the premises; and

Meaning of non‑member record or document

(2A) A non‑member record or document is a record or document that:

(a) relates to the employment of a person who is not a member of the permit holder’s organisation; and

(b) does not also substantially relate to the employment of a person who is a member of the permit holder’s organisation;

but does not include a record or document that relates only to a person or persons who are not members of the permit holder’s organisation if the person or persons have consented in writing to the record or document being inspected or copied by the permit holder.

Occupier and affected employer must not contravene requirement

(3) An occupier or affected employer must not contravene a requirement under paragraph (1)(c).

Note: This subsection is a civil remedy provision (see Part 4‑1).

483 Later access to record or document

Later access to record or document

(1) The permit holder may, by written notice, require an affected employer to produce, or provide access to, a record or document (other than a non‑member record or document) that is directly relevant to the suspected contravention on a later day or days specified in the notice.

(1A) However, an affected employer is not required under subsection (1) to produce, or provide access to, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory.

Other rules relating to notices

(2) The day or days specified in the notice must not be earlier than 14 days after the notice is given.

(3) The notice may be given:

(a) while the permit holder is on the premises; or

(b) within 5 days after the entry.

Affected employer must not contravene requirement

(4) An affected employer must not contravene a requirement under subsection (1).

Note: This subsection is a civil remedy provision (see Part 4‑1).

Where record or document may be inspected or copied

(5) The permit holder may inspect, and make copies of, the record or document at:

(a) the premises; or

(b) if another place is agreed upon by the permit holder and the affected employer—that other place.

Note 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).

Note 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.

483AA Application to FWA for access to non‑member records

(1) The permit holder may apply to FWA for an order allowing the permit holder to do either or both of the following:

(a) require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, specified non‑member records or documents (or parts of such records or documents) under paragraph 482(1)(c);

(b) require an affected employer to produce, or provide access to, specified non‑member records or documents (or parts of such records or documents) under subsection 483(1).

(2) FWA may make the order if it is satisfied that the order is necessary to investigate the suspected contravention. Before doing so, FWA must have regard to any conditions imposed on the permit holder’s entry permit.

(3) If FWA makes the order, this Subdivision has effect accordingly.

(4) An application for an order under this section:

(a) must be in accordance with the regulations; and

(b) must set out the reason for the application.

Subdivision AA—Entry to investigate suspected contravention relating to TCF outworkers

483A Entry to investigate suspected contravention relating to TCF outworkers

(1) A permit holder may enter premises and exercise a right under section 483B or 483C for the purpose of investigating a suspected contravention of:

(a) this Act, or a term of a fair work instrument, that relates to, or affects, a TCF outworker:

(i) whose industrial interests the permit holder’s organisation is entitled to represent; and

(ii) who performs work on the premises; or

(b) a designated outworker term that is in an instrument that relates to TCF outworkers whose industrial interests the permit holder’s organisation is entitled to represent.

Note: Particulars of the suspected contravention must be specified in an entry notice, unless the entry is a designated outworker terms entry (see subsection 518(2)).

(2) The permit holder must reasonably suspect that the contravention has occurred, or is occurring.

(3) The burden of proving that the suspicion is reasonable lies on the person asserting that fact.

(4) Subsections (2) and (3) do not apply in relation to a designated outworker terms entry.

(5) A designated outworker terms entry is an entry under paragraph (1)(b) for the purpose of investigating a suspected contravention of a designated outworker term.

483B Rights that may be exercised while on premises

Rights that may be exercised while on premises

(1) While on the premises, the permit holder may do the following:

(a) inspect any work, process or object relevant to the suspected contravention;

(b) interview any person about the suspected contravention:

(i) who agrees to be interviewed; and

(ii) whose industrial interests the permit holder’s organisation is entitled to represent;

(c) require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, any record or document that is directly relevant to the suspected contravention and that:

(i) is kept on the premises; or

(ii) is accessible from a computer that is kept on the premises.

Note 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).

Note 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.

(2) However, an occupier or affected employer is not required under paragraph (1)(c) to allow the permit holder to inspect, or make copies of, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory.

Meaning of affected employer

(3) A person is an affected employer:

(a) in relation to an entry onto premises under section 483A other than a designated outworker terms entry, if:

(i) the person employs a TCF outworker whose industrial interests the permit holder’s organisation is entitled to represent; and

(ii) the TCF outworker performs work on the premises; and

(iii) the suspected contravention relates to, or affects, the TCF outworker; or

(b) in relation to a designated outworker terms entry under section 483A, if the person is covered by a TCF award.

Occupier and affected employer must not contravene requirement

(4) An occupier or affected employer must not contravene a requirement under paragraph (1)(c).

Note: This subsection is a civil remedy provision (see Part 4‑1).

483C Later access to record or document

Later access to record or document

(1) The permit holder may, by written notice, require the occupier or an affected employer to produce, or provide access to, a record or document that is directly relevant to the suspected contravention on a later day or days specified in the notice.

(2) However, an occupier or affected employer is not required under subsection (1) to produce, or provide access to, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory.

Other rules relating to notices

(3) The day or days specified in the notice must not be earlier than 14 days after the notice is given.

(4) The notice may be given:

(a) while the permit holder is on the premises; or

(b) within 5 days after the entry.

Occupier and affected employer must not contravene requirement

(5) An occupier or affected employer must not contravene a requirement under subsection (1).

Note: This subsection is a civil remedy provision (see Part 4‑1).

Where record or document may be inspected or copied

(6) The permit holder may inspect, and make copies of, the record or document at:

(a) the premises; or

(b) if another place is agreed upon by the permit holder and the occupier or affected employer—that other place.

Note 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).

Note 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.

483D Entry onto other premises to access records and documents

(1) A permit holder who may enter premises under paragraph 483A(1)(a) for the purpose of investigating a suspected contravention may enter other premises and exercise a right under subsection (2) or section 483E if the permit holder reasonably suspects that records or documents that are directly relevant to the suspected contravention:

(a) are kept on the other premises; or

(b) are accessible from a computer that is kept on the other premises.

Note: Particulars of the suspected contravention must be specified in an entry notice (see subsection 518(2)).

Rights that may be exercised while on premises

(2) While on the other premises, the permit holder may require the occupier to allow the permit holder to inspect, and make copies of, any such record or document.

Note 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).

Note 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.

(3) However, an occupier is not required under subsection (2) to allow the permit holder to inspect, or make copies of, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory.

Occupier must not contravene requirement

(4) An occupier must not contravene a requirement under subsection (2).

Note: This subsection is a civil remedy provision (see Part 4‑1).

483E Later access to record or document—other premises

Later access to record or document

(1) The permit holder may, by written notice, require the occupier of the other premises to produce, or provide access to, a record or document that is directly relevant to the suspected contravention on a later day or days specified in the notice.

(2) However, an occupier is not required under subsection (1) to produce, or provide access to, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory.

Other rules relating to notices

(3) The day or days specified in the notice must not be earlier than 14 days after the notice is given.

(4) The notice may be given:

(a) while the permit holder is on the other premises; or

(b) within 5 days after the entry.

Occupier must not contravene requirement

(5) An occupier must not contravene a requirement under subsection (1).

Note: This subsection is a civil remedy provision (see Part 4‑1).

Where record or document may be inspected or copied

(6) The permit holder may inspect, and make copies of, the record or document at:

(a) the other premises; or

(b) if another place is agreed upon by the permit holder and the occupier—that other place.

Note 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).

Note 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.

Subdivision B—Entry to hold discussions

484 Entry to hold discussions

A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF outworkers:

(a) who perform work on the premises; and

(b) whose industrial interests the permit holder’s organisation is entitled to represent; and

Subdivision C—Requirements for permit holders

486 Permit holder must not contravene this Subdivision

Subdivisions A, AA and B do not authorise a permit holder to enter or remain on premises, or exercise any other right, if he or she contravenes this Subdivision, or regulations prescribed under section 521, in exercising that right.

487 Giving entry notice or exemption certificate

Entry under Subdivision A or B

(1) Unless FWA has issued an exemption certificate for the entry, the permit holder must:

(a) before entering premises under Subdivision A—give the occupier of the premises and any affected employer an entry notice for the entry; and

(b) before entering premises under Subdivision B—give the occupier of the premises an entry notice for the entry.

(2) An entry notice for an entry is a notice that complies with section 518.

(3) An entry notice for an entry under Subdivision A or B must be given during working hours at least 24 hours, but not more than 14 days, before the entry.

(4) If FWA has issued an exemption certificate for the entry, the permit holder must, either before or as soon as practicable after entering the premises, give a copy of the certificate to:

(a) the occupier of the premises or another person who apparently represents the occupier; and

(b) any affected employer or another person who apparently represents the employer;

if the occupier, employer or other person is present at the premises.

Entry under Subdivision AA

(5) If the permit holder enters premises under Subdivision AA, the permit holder must, either before or as soon as practicable after entering the premises, give an entry notice for the entry to the occupier of the premises or another person who apparently represents the occupier if the occupier or other person is present at the premises.

488 Contravening entry permit conditions

The permit holder must not contravene a condition imposed on the entry permit.

489 Producing authority documents

(1) If the permit holder has entered premises under Subdivision A or AA, the permit holder must produce his or her authority documents for inspection by the occupier of the premises, or an affected employer:

(a) on request; and

(b) before making a requirement under:

(i) paragraph 482(1)(c) or 483B(1)(c), or subsection 483D(2); or

(ii) subsection 483(1), 483C(1) or 483E(1).

Note: Paragraphs 482(1)(c) and 483B(1)(c) and subsection 483D(2) deal with access to records and documents while the permit holder is on the premises. Subsections 483(1), 483C(1) and 483E(1) deal with access to records and documents at later times.

(2) If the permit holder has entered premises under Subdivision B, the permit holder must produce his or her authority documents for inspection by the occupier of the premises on request.

(3) Authority documents, for an entry under Subdivision A, AA or B, means:

(a) the permit holder’s entry permit; and

(b) either:

(i) a copy of the entry notice for the entry; or

(ii) if FWA has issued an exemption certificate for the entry—the certificate.

490 When right may be exercised

(1) The permit holder may exercise a right under Subdivision A, AA or B only during working hours.

(2) The permit holder may hold discussions under section 484 only during mealtimes or other breaks.

(3) The permit holder may only enter premises under Subdivision A, AA or B on a day specified in the entry notice or exemption certificate for the entry.

491 Occupational health and safety requirements

The permit holder must comply with any reasonable request by the occupier of the premises for the permit holder to comply with an occupational health and safety requirement that applies to the premises.

Note: FWA may deal with a dispute about whether the request is reasonable (see subsection 505(1)).

492 Conduct of interviews in particular room etc.

(1) The permit holder must comply with any reasonable request by the occupier of the premises to:

(a) conduct interviews or hold discussions in a particular room or area of the premises; or

(b) take a particular route to reach a particular room or area of the premises.

Note: FWA may deal with a dispute about whether the request is reasonable (see subsection 505(1)).

(2) Without limiting when a request under subsection (1) might otherwise be unreasonable, a request under paragraph (1)(a) is unreasonable if:

(a) the room or area is not fit for the purpose of conducting the interviews or holding the discussions; or

(b) the request is made with the intention of:

(i) intimidating persons who might participate in the interviews or discussions; or

(ii) discouraging persons from participating in the interviews or discussions; or

(iii) making it difficult for persons to participate in the interviews or discussions, whether because the room or area is not easily accessible during mealtimes or other breaks, or for some other reason.

(3) However, a request under subsection (1) is not unreasonable only because the room, area or route is not that which the permit holder would have chosen.

(4) The regulations may prescribe circumstances in which a request under subsection (1) is or is not reasonable.

493 Residential premises

The permit holder must not enter any part of premises that is used mainly for residential purposes.

Division 3—State or Territory OHS rights

494 Official must be permit holder to exercise State or Territory OHS right

Official must be permit holder

(1) An official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder.

Note: This subsection is a civil remedy provision (see Part 4‑1).

Meaning of State or Territory OHS right

(2) A right to enter premises, or to inspect or otherwise access an employee record of an employee that is on premises, is a State or Territory OHS right if the right is conferred by a State or Territory OHS law, and:

(a) the premises are occupied or otherwise controlled by any of the following:

(i) a constitutional corporation;

(ii) a body corporate incorporated in a Territory;

(iii) the Commonwealth;

(iv) a Commonwealth authority; or

(b) the premises are located in a Territory; or

(d) the right relates to requirements to be met, action taken, or activity undertaken or controlled, by any of the following in its capacity as an employer:

(i) a constitutional corporation;

(ii) a body corporate incorporated in a Territory;

(iii) the Commonwealth;

(iv) a Commonwealth authority; or

(e) the right relates to requirements to be met, action taken, or activity undertaken or controlled, by an employee of, or an independent contractor providing services for, any of the following:

(i) a constitutional corporation;

(ii) a body corporate incorporated in a Territory;

(iii) the Commonwealth;

(iv) a Commonwealth authority; or

(f) the exercise of the right will have a direct effect on any of the following in its capacity as an employer:

(i) a constitutional corporation;

(ii) a body corporate incorporated in a Territory;

(iii) the Commonwealth;

(iv) a Commonwealth authority; or

(g) the exercise of the right will have a direct effect on a person who is employed by, or who is an independent contractor providing services for, any of the following:

(i) a constitutional corporation;

(ii) a body corporate incorporated in a Territory;

(iii) the Commonwealth;

(iv) a Commonwealth authority.

Meaning of State or Territory OHS law

(3) A State or Territory OHS law is a law of a State or a Territory prescribed by the regulations.

495 Giving notice of entry

(1) A permit holder must not exercise a State or Territory OHS right to inspect or otherwise access an employee record of an employee, unless:

(a) he or she has given the occupier of the premises, and any affected employer, a written notice setting out his or her intention to exercise the right, and reasons for doing so; and

(b) the notice is given at least 24 hours before exercising the right.

Note: This subsection is a civil remedy provision (see Part 4‑1).

Meaning of affected employer

(2) A person is an affected employer:

(a) in relation to an entry onto premises in accordance with this Division—if one or more of the person’s employees perform work on the premises; and

(b) in relation to a right to inspect or otherwise access an employee record in accordance with this Division—if the person employs the employee to whom the record relates.

496 Contravening entry permit conditions

In exercising a State or Territory OHS right, a permit holder must not contravene a condition imposed on his or her entry permit.

Note: This section is a civil remedy provision (see Part 4‑1).

497 Producing entry permit

A permit holder must not exercise a State or Territory OHS right unless the permit holder produces his or her entry permit for inspection when requested to do so by the occupier of the premises or an affected employer.

Note: This section is a civil remedy provision (see Part 4‑1).

498 When right may be exercised

A permit holder may exercise a State or Territory OHS right only during working hours.

Note: This section is a civil remedy provision (see Part 4‑1).

499 Occupational health and safety requirements

A permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises.

Note 1: This section is a civil remedy provision (see Part 4‑1).

Note 2: FWA may deal with a dispute about whether the request is reasonable (see subsection 505(1)).

Division 4—Prohibitions

500 Permit holder must not hinder or obstruct

A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

Note: This section is a civil remedy provision (see Part 4‑1).

501 Person must not refuse or delay entry

A person must not refuse or unduly delay entry onto premises by a permit holder who is entitled to enter the premises in accordance with this Part.

Note: This section is a civil remedy provision (see Part 4‑1).

502 Person must not hinder or obstruct permit holder

(1) A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) To avoid doubt, a failure to agree on a place as referred to in paragraph 483(5)(b), 483C(6)(b) or 483E(6)(b) does not constitute hindering or obstructing a permit holder.

(3) Without limiting subsection (1), that subsection extends to hindering or obstructing that occurs after an entry notice is given but before a permit holder enters premises.

503 Misrepresentations about things authorised by this Part

(1) A person must not take action:

(a) with the intention of giving the impression; or

(b) reckless as to whether the impression is given;

that the doing of a thing is authorised by this Part if it is not so authorised.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.

504 Unauthorised use or disclosure of information or documents

A person must not use or disclose information or a document obtained under section 482, 483, 483B, 483C, 483D or 483E in the investigation of a suspected contravention for a purpose that is not related to the investigation or rectifying the suspected contravention, unless:

(a) the person reasonably believes that the use or disclosure is necessary to lessen or prevent:

(i) a serious and imminent threat to an individual’s life, health or safety; or

(ii) a serious threat to public health or public safety; or

(b) the person has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the information or document as a necessary part of an investigation of the matter or in reporting concerns to relevant persons or authorities; or

(d) the person reasonably believes that the use or disclosure is reasonably necessary for one or more of the following by, or on behalf of, an enforcement body (within the meaning of the Privacy Act 1988):

(i) the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction or breaches of a prescribed law;

(ii) the enforcement of laws relating to the confiscation of the proceeds of crime;

(iii) the protection of the public revenue;

(iv) the prevention, detection, investigation or remedying of seriously improper conduct or prescribed conduct;

(v) the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal; or

(e) if the information is, or the document contains, personal information (within the meaning of the Privacy Act 1988)—the use or disclosure is made with the consent of the individual to whom the information relates.

Note: This section is a civil remedy provision (see Part 4‑1).

Division 5—Powers of FWA

Subdivision A—Dealing with disputes

505 FWA may deal with a dispute about the operation of this Part

(1) FWA may deal with a dispute about the operation of this Part (including a dispute about whether a request under section 491, 492 or 499 is reasonable).

Note: Sections 491, 492 and 499 deal with requests for permit holders to use particular rooms or areas, and comply with occupational health and safety requirements.

(2) FWA may deal with the dispute by arbitration, including by making one or more of the following orders:

(a) an order imposing conditions on an entry permit;

(b) an order suspending an entry permit;

(d) an order about the future issue of entry permits to one or more persons;

(e) any other order it considers appropriate.

Note: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3) FWA may deal with the dispute:

(a) on its own initiative; or

(b) on application by any of the following to whom the dispute relates:

(i) a permit holder;

(ii) a permit holder’s organisation;

(iii) an employer;

(iv) an occupier of premises.

(4) In dealing with the dispute, FWA must take into account fairness between the parties concerned.

(5) In dealing with the dispute, FWA must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2 or 3 of this Part, unless the dispute is about whether a request under section 491, 492 or 499 is reasonable.

506 Contravening order made to deal with dispute

A person must not contravene a term of an order under subsection 505(2).

Note: This section is a civil remedy provision (see Part 4‑1).

Subdivision B—Taking action against permit holder

507 FWA may take action against permit holder

(1) FWA may, on application by an inspector or a person prescribed by the regulations, take the following action against a permit holder:

(a) impose conditions on any entry permit issued to the permit holder;

(b) suspend any entry permit issued to the permit holder;

(2) In deciding whether to take action under subsection (1), FWA must take into account the permit qualification matters.

Note: For permit qualification matters, see subsection 513(1).

Subdivision C—Restricting rights of organisations and officials where misuse of rights

508 FWA may restrict rights if organisation or official has misused rights

(1) FWA may restrict the rights that are exercisable under this Part by an organisation, or officials of an organisation, if FWA is satisfied that the organisation, or an official of the organisation, has misused those rights.

Note: Only a Deputy President or Full Bench may take action under this subsection (see subsections 612(2) and 615(1)).

(2) The action that FWA may take under subsection (1) includes the following:

(a) imposing conditions on entry permits;

(b) suspending entry permits;

(d) requiring some or all of the entry permits that might in future be issued in relation to the organisation to be issued subject to specified conditions;

(e) banning, for a specified period, the issue of entry permits in relation to the organisation, either generally or to specified persons;

(f) making any order it considers appropriate.

(3) FWA may take action under subsection (1):

(a) on its own initiative; or

(b) on application by an inspector.

(4) Without limiting subsection (1), an official misuses rights exercisable under this Part if:

(a) the official exercises those rights repeatedly with the intention or with the effect of hindering, obstructing or otherwise harassing an occupier or employer; or

(b) in exercising a right under Subdivision B of Division 2 of this Part, the official encourages a person to become a member of an organisation and does so in a way that is unduly disruptive:

(i) because the exercise of the right is excessive in the circumstances; or

(ii) for some other reason.

509 Contravening order made for misuse of rights

A person must not contravene a term of an order under subsection 508(1).

Note: This section is a civil remedy provision (see Part 4‑1).

Subdivision D—When FWA must revoke or suspend entry permits

510 When FWA must revoke or suspend entry permits

When FWA must revoke or suspend entry permits

(1) FWA must, under this subsection, revoke or suspend each entry permit held by a permit holder if it is satisfied that any of the following has happened since the first of those permits was issued:

(a) the permit holder was found, in proceedings under this Act, to have contravened subsection 503(1) (which deals with misrepresentations about things authorised by this Part);

(b) the permit holder has contravened section 504 (which deals with unauthorised use or disclosure of information or documents);

(c) the Privacy Commissioner has, under paragraph 52(1)(b) of the Privacy Act 1988, found substantiated a complaint relating to action taken by the permit holder in relation to information or documents obtained under section 482, 483, 483B, 483C, 483D or 483E;

(d) the permit holder, or another person, was ordered to pay a pecuniary penalty under this Act in relation to a contravention of this Part by the permit holder;

(e) a court, or other person or body, under a State or Territory industrial law:

(i) cancelled or suspended a right of entry for industrial purposes that the permit holder had under that law; or

(ii) disqualified the permit holder from exercising, or applying for, a right of entry for industrial purposes under that law;

(f) the permit holder has, in exercising a right of entry under a State or Territory OHS law, taken action that was not authorised by that law.

(2) Despite subsection (1), FWA is not required to suspend or revoke an entry permit under paragraph (1)(d) or (f) if FWA is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.

(3) Subsection (1) does not apply in relation to a circumstance referred to in a paragraph of that subsection if FWA took the circumstance into account when taking action under that subsection on a previous occasion.

Minimum suspension period

(4) A suspension under subsection (1) must be for a period that is at least as long as the period (the minimum suspension period) specified in whichever of the following paragraphs applies:

(a) if FWA has not previously taken action under subsection (1) against the permit holder—3 months;

(b) if FWA has taken action under subsection (1) against the permit holder on only one occasion—12 months;

Banning issue of future entry permits

(5) If FWA takes action under subsection (1), it must also ban the issue of any further entry permit to the permit holder for a specified period (the ban period).

(6) The ban period must:

(a) begin when the action is taken under subsection (1); and

(b) be no shorter than the minimum suspension period.

Subdivision E—General rules for suspending entry permits

511 General rules for suspending entry permits

If FWA suspends an entry permit, the suspension:

(a) must be for a specified period; and

(b) does not prevent the revocation of, or the imposition of conditions on, the entry permit during the suspension period; and

Division 6—Entry permits, entry notices and certificates

Subdivision A—Entry permits

512 FWA may issue entry permits

FWA may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if FWA is satisfied that the official is a fit and proper person to hold the entry permit.

513 Considering application

(1) In deciding whether the official is a fit and proper person, FWA must take into account the following permit qualification matters:

(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;

(b) whether the official has ever been convicted of an offence against an industrial law;

(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:

(i) entry onto premises; or

(ii) fraud or dishonesty; or

(iii) intentional use of violence against another person or intentional damage or destruction of property;

(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;

(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;

(f) whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:

(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

(g) any other matters that FWA considers relevant.

(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, FWA for the purpose of making a decision under this Part.

Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

514 When FWA must not issue permit

FWA must not issue an entry permit to an official at a time when a suspension or disqualification, imposed by a court or other person or body:

(a) applies to the official’s exercise of; or

(b) prevents the official from exercising or applying for;

a right of entry for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory OHS law.

515 Conditions on entry permit

(1) FWA may impose conditions on an entry permit when it is issued.

(2) In deciding whether to impose conditions under subsection (1), FWA must take into account the permit qualification matters.

(3) FWA must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part).

(4) If FWA imposes a condition on an entry permit after it has been issued, the permit ceases to be in force until FWA records the condition on the permit.

(5) To avoid doubt, a permit holder does not contravene an FWA order merely because the permit holder contravenes a condition imposed on his or her permit by order (whether the condition is imposed at the time the entry permit is issued or at any later time).

516 Expiry of entry permit

(1) Unless it is revoked, an entry permit expires at the earlier of the following times:

(a) at the end of the period of 3 years beginning on the day it is issued, or that period as extended under subsection (2);

(b) when the permit holder ceases to be an official of the organisation that applied for the permit.

(2) FWA may extend the period of 3 years referred to in paragraph (1)(a) by a specified period if:

(a) the organisation that applied for the permit (the old permit) has applied for another entry permit for the permit holder; and

(b) the application was made at least 1 month before the old permit would otherwise have expired under that paragraph; and

(3) The period specified must not be longer than the period that FWA considers necessary for it to determine the application.

(4) FWA must not extend the period under subsection (2) if:

(a) FWA has requested or required the organisation or permit holder to provide copies of records or documents, or to provide any other information, in relation to the application; and

(b) the organisation or permit holder has not complied with the request or requirement; and

517 Return of entry permits to FWA

When permit holder must return entry permit to FWA

(1) A permit holder must return an entry permit to FWA within 7 days of any of the following things happening:

(a) the permit is revoked or suspended;

(b) conditions are imposed on the permit after it is issued;

Note: This subsection is a civil remedy provision (see Part 4‑1).

FWA to return entry permit to permit holder after suspension

(2) After the end of a suspension period, FWA must return the entry permit to the permit holder if:

(a) the permit holder, or the permit holder’s organisation, applies to FWA for the return of the entry permit; and

(b) the entry permit has not expired.

Subdivision B—Entry notices

518 Entry notice requirements

Requirements for all entry notices

(1) An entry notice must specify the following:

(a) the premises that are proposed to be entered;

(b) the day of the entry;

Requirements for entry notice for entry to investigate suspected contravention

(2) An entry notice given for an entry under section 481, 483A or 483D must:

(a) specify that section as the provision that authorises the entry; and

(b) unless the entry is a designated outworker terms entry under section 483A—specify the particulars of the suspected contravention, or contraventions; and

(c) for an entry under section 481—contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of a member, who performs work on the premises, and:

(i) to whom the suspected contravention or contraventions relate; or

(ii) who is affected by the suspected contravention or contraventions; and

(ca) for an entry under section 483A other than a designated outworker terms entry—contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of a TCF outworker, who performs work on the premises, and:

(i) to whom the suspected contravention or contraventions relate; or

(ii) who is affected by the suspected contravention or contraventions; and

(cb) for a designated outworker terms entry under section 483A—contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of TCF outworkers; and

(cc) for an entry under section 483D—contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of a TCF outworker:

(i) to whom the suspected contravention or contraventions relate; or

(ii) who is affected by the suspected contravention or contraventions; and

(d) specify the provision of the organisation’s rules that entitles the organisation to represent the member or TCF outworker.

Requirements for entry notice for entry to hold discussions

(3) An entry notice given for an entry under section 484 (which deals with entry to hold discussions) must:

(a) specify that section as the provision that authorises the entry; and

(b) contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of an employee or TCF outworker who performs work on the premises; and

(c) specify the provision of the organisation’s rules that entitles the organisation to represent the employee or TCF outworker.

Note: See section 503 (which deals with misrepresentations about things authorised by this Part).

Subdivision C—Exemption certificates

519 Exemption certificates

(1) FWA must issue a certificate (an exemption certificate) to an organisation for an entry under section 481 (which deals with entry to investigate suspected contraventions) if:

(a) the organisation has applied for the certificate; and

(b) FWA reasonably believes that advance notice of the entry given by an entry notice might result in the destruction, concealment or alteration of relevant evidence.

(2) An exemption certificate must specify the following:

(a) the premises to which it relates;

(b) the organisation to which it relates;

(d) particulars of the suspected contravention, or contraventions, to which the entry relates;

(e) section 481 as the provision that authorises the entry.

Subdivision D—Affected member certificates

520 Affected member certificates

(1) FWA must, on application by an organisation, issue a certificate (an affected member certificate) to the organisation if FWA is satisfied that:

(a) a member of the organisation performs work on particular premises; and

(b) the organisation is entitled to represent the industrial interests of the member; and

(2) An affected member certificate must state the following:

(a) the premises to which it relates;

(b) the organisation to which it relates;

(d) that FWA is satisfied of the matters referred to in paragraphs (1)(a), (b) and (c).

(3) An affected member certificate must not reveal the identity of the member or members to whom it relates.

Subdivision E—Miscellaneous

521 Regulations dealing with instruments under this Part

The regulations may provide for, and in relation to, the following:

(a) the form of entry permits, entry notices, exemption certificates and affected member certificates;

(b) additional information to be included on, or given with, entry permits, entry notices, exemption certificates and affected member certificates;

(c) the manner in which entry permits, entry notices, exemption certificates and affected member certificates are to be given;

(d) any other matter in relation to entry permits, entry notices, exemption certificates and affected member certificates.

Part 3‑5—Stand down

Division 1—Introduction

522 Guide to this Part

This Part provides for a national system employer to stand down a national system employee without pay in certain circumstances.

Division 2 sets out the circumstances in which an employer may stand down an employee without pay.

Division 3 provides for FWA to deal with disputes about the operation of this Part.

523 Meanings of employee and employer

In this Part, employee means a national system employee, and employer means a national system employer.

Division 2—Circumstances allowing stand down

524 Employer may stand down employees in certain circumstances

(1) An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:

(a) industrial action (other than industrial action organised or engaged in by the employer);

(b) a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;

(2) However, an employer may not stand down an employee under subsection (1) during a period in which the employee cannot usefully be employed because of a circumstance referred to in that subsection if:

(a) an enterprise agreement, or a contract of employment, applies to the employer and the employee; and

(b) the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of that circumstance.

Note 1: If an employer may not stand down an employee under subsection (1), the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment.

Note 2: An enterprise agreement or a contract of employment may also include terms that impose additional requirements that an employer must meet before standing down an employee (for example requirements relating to consultation or notice).

(3) If an employer stands down an employee during a period under subsection (1), the employer is not required to make payments to the employee for that period.

525 Employee not stood down during a period of authorised leave or absence

An employee is not taken to be stood down under subsection 524(1) during a period when the employee:

(a) is taking paid or unpaid leave that is authorised by the employer; or

(b) is otherwise authorised to be absent from his or her employment.

Note: An employee may take paid or unpaid leave (for example, annual leave) during all or part of a period during which the employee would otherwise be stood down under subsection 524(1).

Division 3—Dealing with disputes

526 FWA may deal with a dispute about the operation of this Part

(1) FWA may deal with a dispute about the operation of this Part.

(2) FWA may deal with the dispute by arbitration.

Note: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3) FWA may deal with the dispute only on application by any of the following:

(a) an employee who has been, or is going to be, stood down under subsection 524(1) (or purportedly under subsection 524(1));

(b) an employee in relation to whom the following requirements are satisfied:

(i) the employee has made a request to take leave to avoid being stood down under subsection 524(1) (or purportedly under subsection 524(1));

(ii) the employee’s employer has authorised the leave;

(c) an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (a) or (b);

(d) an inspector.

(4) In dealing with the dispute, FWA must take into account fairness between the parties concerned.

527 Contravening an FWA order dealing with a dispute about the operation of this Part

A person must not contravene a term of an FWA order dealing with a dispute about the operation of this Part.

Note: This section is a civil remedy provision (see Part 4‑1).

Part 3‑6—Other rights and responsibilities

Division 1—Introduction

528 Guide to this Part

This Part deals with other rights and responsibilities.

Division 2 is about the obligations of a national system employer if a decision is made to dismiss 15 or more employees for reasons of an economic, technological, structural or similar nature.

Subdivision A of Division 2 deals with notifying the Chief Executive Officer of the Commonwealth Services Delivery Agency (Centrelink) about the proposed dismissals.

Subdivision B of Division 2 provides for FWA to make orders if the employer fails to notify and consult relevant industrial associations.

Subdivision C of Division 2 provides that that Division does not apply in relation to certain employees.

Division 3 is about the obligations of national system employers to make and keep employee records in relation to each of their employees and to give pay slips to each of their employees.

529 Meanings of employee and employer

In this Part, employee means a national system employee, and employer means a national system employer.

Division 2—Notification and consultation relating to certain dismissals

Subdivision A—Requirement to notify Centrelink

530 Employer to notify Centrelink of certain proposed dismissals

(1) If an employer decides to dismiss 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons, the employer must give a written notice about the proposed dismissals to the Chief Executive Officer of the Commonwealth Services Delivery Agency (Centrelink).

(2) The notice must be in the form (if any) prescribed by the regulations and set out:

(a) the reasons for the dismissals; and

(b) the number and categories of employees likely to be affected; and

(3) The notice must be given:

(a) as soon as practicable after making the decision; and

(b) before dismissing an employee in accordance with the decision.

(4) The employer must not dismiss an employee in accordance with the decision unless the employer has complied with this section.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(5) The orders that may be made under subsection 545(1) in relation to a contravention of subsection (4) of this section:

(a) include an order requiring the employer not to dismiss the employees in accordance with the decision, except as permitted by the order; but

(b) do not include an order granting an injunction.

Subdivision B—Failure to notify or consult registered employee associations

531 FWA may make orders where failure to notify or consult registered employee associations about dismissals

(1) FWA may make an order under subsection 532(1) if it is satisfied that:

(a) an employer has decided to dismiss 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons; and

(b) the employer has not complied with subsection (2) (which deals with notifying relevant registered employee associations) or subsection (3) (which deals with consulting relevant registered employee associations); and

(c) the employer could reasonably be expected to have known, when he or she made the decision, that one or more of the employees were members of a registered employee association.

Notifying relevant registered employee associations

(2) An employer complies with this subsection if:

(a) the employer notifies each registered employee association of which any of the employees was a member, and that was entitled to represent the industrial interests of that member, of the following:

(i) the proposed dismissals and the reasons for them;

(ii) the number and categories of employees likely to be affected;

(iii) the time when, or the period over which, the employer intends to carry out the dismissals; and

(b) the notice is given:

(i) as soon as practicable after making the decision; and

(ii) before dismissing an employee in accordance with the decision.

Consulting relevant registered employee associations

(3) An employer complies with this subsection if:

(a) the employer gives each registered employee association of which any of the employees was a member, and that was entitled to represent the industrial interests of that member, an opportunity to consult the employer on:

(i) measures to avert or minimise the proposed dismissals; and

(ii) measures (such as finding alternative employment) to mitigate the adverse effects of the proposed dismissals; and

(b) the opportunity is given:

(i) as soon as practicable after making the decision; and

(ii) before dismissing an employee in accordance with the decision.

532 Orders that FWA may make

(1) FWA may make whatever orders it considers appropriate, in the public interest, to put:

(a) the employees; and

(b) each registered employee association referred to in paragraph 531(2)(a) or (3)(a);

in the same position (as nearly as can be done) as if the employer had complied with subsections 531(2) and (3).

(2) FWA must not, under subsection (1), make orders for any of the following:

(a) reinstatement of an employee;

(b) withdrawal of a notice of dismissal if the notice period has not expired;

(d) payment of severance pay;

(e) disclosure of confidential information or commercially sensitive information relating to the employer, unless the recipient of such information gives an enforceable undertaking not to disclose the information to any other person;

(f) disclosure of personal information relating to a particular employee, unless the employee has given written consent to the disclosure of the information and the disclosure is in accordance with that consent.

533 Application for FWA order

FWA may make the order only on application by:

(a) one of the employees; or

(b) a registered employee association referred to in paragraph 531(2)(a) or (3)(a); or

(c) any other registered employee association that is entitled to represent the industrial interests of one of the employees.

Subdivision C—Limits on scope of this Division

534 Limits on scope of this Division

(1) This Division does not apply in relation to any of the following employees:

(a) an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;

(b) an employee who is dismissed because of serious misconduct;

(e) a daily hire employee working in the building and construction industry (including working in connection with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or structures);

(f) a daily hire employee working in the meat industry in connection with the slaughter of livestock;

(g) a weekly hire employee working in connection with the meat industry and whose dismissal is determined solely by seasonal factors;

(h) an employee prescribed by the regulations as an employee in relation to whom this Division does not apply.

(2) Paragraph (1)(a) does not prevent this Division from applying in relation to an employee if a substantial reason for employing the employee as described in that paragraph was to avoid the application of this Division.

Division 3—Employer obligations in relation to employee records and pay slips

535 Employer obligations in relation to employee records

(1) An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) The records must:

(a) if a form is prescribed by the regulations—be in that form; and

(b) include any information prescribed by the regulations.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(3) The regulations may provide for the inspection of those records.

536 Employer obligations in relation to pay slips

(1) An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) The pay slip must:

(a) if a form is prescribed by the regulations—be in that form; and

(b) include any information prescribed by the regulations.

Note: This subsection is a civil remedy provision (see Part 4‑1).

Chapter 4—Compliance and enforcement

Part 4‑1—Civil remedies

Division 1—Introduction

537 Guide to this Part

This Part is about civil remedies. Certain provisions in this Act impose obligations on certain persons. Civil remedies may be sought in relation to contraventions of these civil remedy provisions.

Subdivision A of Division 2 deals with applications for orders in relation to contraventions of civil remedy provisions and safety net contractual entitlements, and applications for orders to enforce entitlements arising under subsection 542(1).

Subdivision B of Division 2 sets out the orders that can be made by the Federal Court, the Federal Magistrates Court or an eligible State or Territory Court in relation to a contravention of a civil remedy provision.

Division 3 sets out when proceedings relating to a contravention of a civil remedy provision may be dealt with as small claims proceedings.

Division 4 deals with general provisions relating to civil remedies, including rules about evidence and procedure.

Division 5 deals with unclaimed money.

538 Meanings of employee and employer

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

Division 2—Orders

Subdivision A—Applications for orders

539 Applications for orders in relation to contraventions of civil remedy provisions

(1) A provision referred to in column 1 of an item in the table in subsection (2) is a civil remedy provision.

(2) For each civil remedy provision, the persons referred to in column 2 of the item may, subject to sections 540 and 544 and Subdivision B, apply to the courts referred to in column 3 of the item for orders in relation to a contravention or proposed contravention of the provision, including the maximum penalty referred to in column 4 of the item.

Note 1: Civil remedy provisions within a single Part may be grouped together in a single item of the table.

Note 2: Applications cannot be made by an inspector in relation to a contravention of a civil remedy provision by a person in certain cases where an undertaking or compliance notice has been given (see subsections 715(4) and 716(4A)).

Note 3: The regulations may also prescribe persons for the purposes of an item in column 2 of the table (see subsection 540(8)).

Standing, jurisdiction and maximum penalties
Item	Column 1 Civil remedy provision	Column 2 Persons	Column 3 Courts	Column 4 Maximum penalty
Part 2‑1—Core provisions
1	44(1)	(a) an employee; (b) an employee organisation; (c) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	60 penalty units
2	45 (other than in relation to a contravention of an outworker term in a modern award)	(a) an employee; (b) an employer; (c) an employee organisation; (d) an employer organisation; (e) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	60 penalty units
3	45 (in relation to a contravention of an outworker term in a modern award)	(a) an outworker; (b) an employer; (c) an outworker entity; (d) an employee organisation; (e) an employer organisation; (f) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	60 penalty units
4	50	(a) an employee; (b) an employer; (c) an employee organisation to which the enterprise agreement concerned applies; (d) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	60 penalty units
Part 2‑4—Enterprise agreements
6	233	(a) an employee who the proposed enterprise agreement will cover; (b) a bargaining representative for the proposed enterprise agreement; (c) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	60 penalty units
Part 2‑5—Workplace determinations
7	280	(a) an employee; (b) an employer; (c) an employee organisation to which the workplace determination concerned applies; (d) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	60 penalty units
Part 2‑6—Minimum wages
8	293	(a) an employee; (b) an employee organisation; (c) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	60 penalty units
Part 2‑7—Equal remuneration
9	305	(a) an employee; (b) an employee organisation; (c) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	60 penalty units
Part 2‑9—Other terms and conditions of employment
10	323(1) 323(3) 325(1) 328(1) 328(2) 328(3)	(a) an employee; (b) an employee organisation; (c) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	60 penalty units
Part 3‑1—General protections
11	340(1) 340(2) 343(1) 344 345(1) 346 348 349(1) 350(1) 350(2) 351(1) 352 353(1) 354(1) 355 357(1) 358 359	(a) a person affected by the contravention; (b) an industrial association; (c) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court	60 penalty units
12	378	(a) a person to whom the costs are payable; (b) an industrial association; (c) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court	60 penalty units
Part 3‑2—Unfair dismissal
13	405	(a) a person affected by the contravention; (b) an employee organisation; (c) an employer organisation; (d) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	60 penalty units
Part 3‑3—Industrial action
14	417(1)	(a) an employee; (b) an employer; (c) an employee organisation covered by the enterprise agreement or workplace determination concerned; (d) a person affected by the industrial action; (e) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court	60 penalty units
15	421(1)	(a) a person affected by the contravention; (b) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court	60 penalty units
16	434	an inspector	the Federal Court	60 penalty units
17	458(2)	(a) an employee; (b) an employer; (c) an applicant for the protected action ballot order; (d) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court	30 penalty units
18	462(1) 462(3)	(a) an employee; (b) an employer; (c) an applicant for the protected action ballot order; (d) the protected action ballot agent; (e) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court	30 penalty units
19	463(1) 463(2)	(a) an employee; (b) an employer; (c) an applicant for the protected action ballot order; (d) the protected action ballot agent; (e) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court	60 penalty units
20	467(1)	(a) an employee; (b) an employer; (c) an applicant for the protected action ballot order; (d) the protected action ballot agent; (e) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court	30 penalty units
21	470(1)	an inspector	(a) the Federal Court; (b) the Federal Magistrates Court	60 penalty units
22	473(1) 473(2)	(a) an employer; (b) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court	60 penalty units
23	474(1)	an inspector	(a) the Federal Court; (b) the Federal Magistrates Court	60 penalty units
24	475(1) 475(2)	(a) an employer; (b) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court	60 penalty units
Part 3‑4—Right of entry
25	482(3) 483(4) 483B(4) 483C(5) 483D(4) 483E(5) 494(1) 495(1) 496 497 498 499 500 501 502(1) 503(1) 504 506 509	(a) a person affected by the contravention; (b) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court	60 penalty units
26	517(1)	an inspector	(a) the Federal Court; (b) the Federal Magistrates Court	60 penalty units
Part 3‑5—Stand down
27	527	(a) an employee; (b) an employee organisation; (c) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	60 penalty units
Part 3‑6—Other rights and responsibilities
28	530(4)	(a) an employee; (b) a registered employee association; (c) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court	30 penalty units
29	535(1) 535(2) 536(1) 536(2)	(a) an employee; (b) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	30 penalty units
Part 5‑1—Fair Work Australia
30	611(3)	(a) a person to whom the costs are payable; (b) an employee organisation; (c) an employer organisation; (d) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	60 penalty units
Part 5‑2—Office of the Fair Work Ombudsman
31	711(3)	an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	30 penalty units
32	712(3)	an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	60 penalty units
33	716(5)	an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	30 penalty units
Part 6‑3—Extension of National Employment Standards entitlements
34	745(1) 760	(a) an employee; (b) a registered employee association; (c) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court; (c) an eligible State or Territory court	60 penalty units
Part 6‑4—Additional provisions relating to termination of employment
35	772(1)	(a) a person affected by the contravention; (b) an industrial association; (c) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court	60 penalty units
36	782	(a) a person to whom the costs are payable; (b) an industrial association; (c) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court	60 penalty units
37	785(4)	(a) an employee; (b) a registered employee association; (c) an inspector	(a) the Federal Court; (b) the Federal Magistrates Court	30 penalty units

540 Limitations on who may apply for orders etc.

Employees, employers, outworkers and outworker entities

(1) The following persons may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if the person is affected by the contravention, or will be affected by the proposed contravention:

(a) an employee;

(b) an employer;

(d) an outworker entity.

Employee organisations and registered employee associations

(2) An employee organisation or a registered employee association may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision (other than an outworker term) in relation to an employee, only if:

(a) the employee is affected by the contravention, or will be affected by the proposed contravention; and

(b) the organisation or association is entitled to represent the industrial interests of the employee.

(3) However, subsection (2) does not apply in relation to items 4, 7 and 14 in the table in subsection 539(2).

(4) An employee organisation may apply for an order under this Division, in relation to a contravention or proposed contravention of an outworker term in a modern award, only if the employee organisation is entitled to represent the industrial interests of an outworker to whom the outworker term relates.

Employer organisations

(5) An employer organisation may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if the organisation has a member who is affected by the contravention, or who will be affected by the proposed contravention.

Industrial associations

(6) An industrial association may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if:

(a) the industrial association is affected by the contravention, or will be affected by the proposed contravention; or

(b) if the contravention is in relation to a person:

(i) the person is affected by the contravention, or will be affected by the proposed contravention; and

(ii) the industrial association is entitled to represent the industrial interests of the person.

(7) If an item in column 2 of the table in subsection 539(2) refers to an industrial association then, to avoid doubt, an employee organisation, a registered employee association or an employer organisation may apply for an order, in relation to a contravention or proposed contravention of a civil remedy provision, only if the organisation or association is entitled to apply for the order under subsection (6).

Regulations

(8) The regulations may prescribe a person for the purposes of an item in column 2 of the table in subsection 539(2). The regulations may provide that the person is prescribed only in relation to circumstances specified in the regulations.

541 Applications for orders in relation to safety net contractual entitlements

(1) This section applies if an inspector applies to a court for an order under this Division, in relation to an employer’s contravention or proposed contravention of a provision or term referred to in subsection (3) in relation to an employee.

(2) The inspector may also apply to the court, on behalf of the employee, for an order in relation to the employer’s contravention, or proposed contravention, of a safety net contractual entitlement of the employee.

(3) The provisions and terms are the following:

(a) a provision of the National Employment Standards;

(b) a term of a modern award;

(d) a term of a workplace determination;

(e) a term of a national minimum wage order;

(f) a term of an equal remuneration order.

542 Entitlements under contracts

(1) For the purposes of this Part, a safety net contractual entitlement of a national system employer or a national system employee, as in force from time to time, also has effect as an entitlement of the employer or employee under this Act.

(2) The entitlement has effect under this Act subject to any modifications, by a law of the Commonwealth (including this Act or a fair work instrument), a State or a Territory, of the safety net contractual entitlement.

543 Applications for orders in relation to statutory entitlements derived from contracts

A national system employer or a national system employee may apply to the Federal Court or the Federal Magistrates Court to enforce an entitlement of the employer or employee arising under subsection 542(1).

544 Time limit on applications

A person may apply for an order under this Division in relation to a contravention of one of the following only if the application is made within 6 years after the day on which the contravention occurred:

(a) a civil remedy provision;

(b) a safety net contractual entitlement;

Note 1: This section does not apply in relation to general protections court applications or unlawful termination court applications (see subsections 371(2) and 779(2)).

Note 2: For time limits on orders relating to underpayments, see subsection 545(5).

Subdivision B—Orders

545 Orders that can be made by particular courts

Federal Court and Federal Magistrates Court

(1) The Federal Court or the Federal Magistrates Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

Note 1: For the court’s power to make pecuniary penalty orders, see section 546.

Note 2: For limitations on orders in relation to costs, see section 570.

Note 3: The Federal Court and the Federal Magistrates Court may grant injunctions in relation to industrial action under subsections 417(3) and 421(3).

Note 4: There are limitations on orders that can be made in relation to contraventions of subsection 65(5), 76(4), 463(1) or 463(2) (which deal with reasonable business grounds and protected action ballot orders) (see subsections 44(2), 463(3) and 745(2)).

(2) Without limiting subsection (1), orders the Federal Court or Federal Magistrates Court may make include the following:

(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

(b) an order awarding compensation for loss that a person has suffered because of the contravention;

Eligible State or Territory courts

(3) An eligible State or Territory court may order an employer to pay an amount to, or on behalf of, an employee of the employer if the court is satisfied that:

(a) the employer was required to pay the amount under this Act or a fair work instrument; and

(b) the employer has contravened a civil remedy provision by failing to pay the amount.

Note 1: For the court’s power to make pecuniary penalty orders, see section 546.

Note 2: For limitations on orders in relation to costs, see section 570.

(3A) An eligible State or Territory court may order an outworker entity to pay an amount to, or on behalf of, an outworker if the court is satisfied that:

(a) the outworker entity was required to pay the amount under a modern award; and

(b) the outworker entity has contravened a civil remedy provision by failing to pay the amount.

Note 1: For the court’s power to make pecuniary penalty orders, see section 546.

Note 2: For limitations on orders in relation to costs, see section 570.

When orders may be made

(4) A court may make an order under this section:

(a) on its own initiative, during proceedings before the court; or

(b) on application.

Time limit for orders in relation to underpayments

(5) A court must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced.

546 Pecuniary penalty orders

(1) The Federal Court, the Federal Magistrates Court or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

Note: Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of a modern award, a national minimum wage order or an enterprise agreement only because of the retrospective effect of a determination (see subsections 167(3) and 298(2)).

Determining amount of pecuniary penalty

(2) The pecuniary penalty must not be more than:

(a) if the person is an individual—the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or

(b) if the person is a body corporate—5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).

Payment of penalty

(3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to:

(a) the Commonwealth; or

(b) a particular organisation; or

Recovery of penalty

(4) The pecuniary penalty may be recovered as a debt due to the person to whom the penalty is payable.

No limitation on orders

(5) To avoid doubt, a court may make a pecuniary penalty order in addition to one or more orders under section 545.

547 Interest up to judgment

(1) This section applies to an order (other than a pecuniary penalty order) under this Division in relation to an amount that a person was required to pay to, or on behalf of, another person under this Act or a fair work instrument.

(2) In making the order the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.

(3) Without limiting subsection (2), in determining the amount of interest, the court must take into account the period between the day the relevant cause of action arose and the day the order is made.

Division 3—Small claims procedure

548 Plaintiffs may choose small claims procedure

(1) Proceedings are to be dealt with as small claims proceedings under this section if:

(a) a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Magistrates Court; and

(b) the order relates to an amount referred to in subsection (1A); and

(c) the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.

(1A) The amounts are as follows:

(a) an amount that an employer was required to pay to, or on behalf of, an employee:

(i) under this Act or a fair work instrument; or

(ii) because of a safety net contractual entitlement; or

(iii) because of an entitlement of the employee arising under subsection 542(1);

(b) an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.

Limits on award

(2) In small claims proceedings, the court may not award more than:

(a) $20,000; or

(b) if a higher amount is prescribed by the regulations—that higher amount.

Procedure

(3) In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:

(a) in an informal manner; and

(b) without regard to legal forms and technicalities.

(4) At any stage of the small claims proceedings, the court may amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment.

Legal representation

(5) A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court.

(6) If the court grants leave for a party to the proceedings to be represented by a lawyer, the court may, if it considers appropriate, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.

(7) For the purposes of this section, a person is taken not to be represented by a lawyer if the lawyer is an employee or officer of the person.

Representation by an industrial association

(8) The regulations may provide for a party to small claims proceedings to be represented in the proceedings, in specified circumstances, by an official of an industrial association.

(9) However, if small claims proceedings are heard in a court of a State, the regulations may so provide only if the law of the State allows a party to be represented in that court in those circumstances by officials of bodies representing interests related to the matters in dispute.

Division 4—General provisions relating to civil remedies

549 Contravening a civil remedy provision is not an offence

A contravention of a civil remedy provision is not an offence.

550 Involvement in contravention treated in same way as actual contravention

(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a) has aided, abetted, counselled or procured the contravention; or

(b) has induced the contravention, whether by threats or promises or otherwise; or

(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d) has conspired with others to effect the contravention.

551 Civil evidence and procedure rules for proceedings relating to civil remedy provisions

A court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention, or proposed contravention, of a civil remedy provision.

552 Civil proceedings after criminal proceedings

A court must not make a pecuniary penalty order against a person for a contravention of a civil remedy provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.

553 Criminal proceedings during civil proceedings

(1) Proceedings for a pecuniary penalty order against a person for a contravention of a civil remedy provision are stayed if:

(a) criminal proceedings are commenced or have already commenced against the person for an offence; and

(b) the offence is constituted by conduct that is substantially the same as the conduct in relation to which the order would be made.

(2) The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.

554 Criminal proceedings after civil proceedings

Criminal proceedings may be commenced against a person for conduct that is substantially the same as conduct constituting a contravention of a civil remedy provision regardless of whether an order has been made against the person under Division 2.

555 Evidence given in proceedings for pecuniary penalty not admissible in criminal proceedings

(1) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:

(a) the individual previously gave the information or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of a civil remedy provision (whether or not the order was made); and

(b) the conduct alleged to constitute the offence is substantially the same as the conduct in relation to which the order was sought.

(2) However, this does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.

556 Civil double jeopardy

If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.

Note: A court may make other orders, such as an order for compensation, in relation to particular conduct even if the court has made a pecuniary penalty order in relation to that conduct (see subsection 546(5)).

557 Course of conduct

(1) For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:

(a) the contraventions are committed by the same person; and

(b) the contraventions arose out of a course of conduct by the person.

(2) The civil remedy provisions are the following:

(a) subsection 44(1) (which deals with contraventions of the National Employment Standards);

(b) section 45 (which deals with contraventions of modern awards);

(d) section 280 (which deals with contraventions of workplace determinations);

(e) section 293 (which deals with contraventions of national minimum wage orders);

(f) section 305 (which deals with contraventions of equal remuneration orders);

(g) subsection 323(1) (which deals with methods and frequency of payment);

(h) subsection 323(3) (which deals with methods of payment specified in modern awards or enterprise agreements);

(i) subsection 325(1) (which deals with unreasonable requirements to spend amounts);

(j) subsection 417(1) (which deals with industrial action before the nominal expiry date of an enterprise agreement etc.);

(k) subsection 421(1) (which deals with contraventions of orders in relation to industrial action);

(l) section 434 (which deals with contraventions of Ministerial directions in relation to industrial action);

(m) subsection 530(4) (which deals with notifying Centrelink of certain proposed dismissals);

(n) subsections 535(1) and (2) (which deal with employer obligations in relation to employee records);

(o) subsections 536(1) and (2) (which deal with employer obligations in relation to pay slips);

(p) subsection 745(1) (which deals with contraventions of the extended parental leave provisions);

(q) section 760 (which deals with contraventions of the extended notice of termination provisions);

(r) subsection 785(4) (which deals with notifying Centrelink of certain proposed terminations);

(s) any other civil remedy provisions prescribed by the regulations.

(3) Subsection (1) does not apply to a contravention of a civil remedy provision that is committed by a person after a court has imposed a pecuniary penalty on the person for an earlier contravention of the provision.

558 Regulations dealing with infringement notices

(1) The regulations may provide for a person who is alleged to have contravened a civil remedy provision to pay a penalty to the Commonwealth as an alternative to civil proceedings.

(2) The penalty must not exceed one‑tenth of the maximum penalty referred to in the relevant item in column 4 of the table in subsection 539(2) for contravening that provision.

Division 5—Unclaimed money

559 Unclaimed money

Payment to the Commonwealth

(1) An employer may pay an amount to the Commonwealth if:

(a) the employer was required to pay the amount to an employee under this Act or a fair work instrument; and

(b) the employee has left the employment of the employer without having been paid the amount; and

(c) the employer is unable to pay the amount to the employee because the employer does not know the employee’s whereabouts.

Discharge of employer

(2) Payment of the amount to the Commonwealth is a sufficient discharge to the employer, as against the employee, for the amount paid.

Payment where money later claimed

(3) The Fair Work Ombudsman, on behalf of the Commonwealth, must pay an amount to a person if:

(a) the amount has been paid to the Commonwealth under this section; and

(b) the person has made a claim for the amount in accordance with the form prescribed by the regulations; and

Appropriation of Consolidated Revenue Fund

(4) The Consolidated Revenue Fund is appropriated for the purposes of this section.

Part 4‑2—Jurisdiction and powers of courts

Division 1—Introduction

560 Guide to this Part

This Part is about the jurisdiction and powers of the courts in relation to matters arising under this Act.

Divisions 2 and 3 confer jurisdiction on the Federal Court and the Federal Magistrates Court. That jurisdiction is generally required to be exercised in the Fair Work Divisions of those courts.

Division 4 deals with intervention, costs, limitation on imprisonment, and regulations, in relation to proceedings in the Federal Court, the Federal Magistrates Court and, in some cases, a court of a State or Territory.

561 Meanings of employee and employer

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

Division 2—Jurisdiction and powers of the Federal Court

562 Conferring jurisdiction on the Federal Court

Jurisdiction is conferred on the Federal Court in relation to any matter (whether civil or criminal) arising under this Act.

563 Exercising jurisdiction in the Fair Work Division of the Federal Court

The jurisdiction conferred on the Federal Court under section 562 is to be exercised in the Fair Work Division of the Federal Court if:

(a) an application is made to the Federal Court under this Act; or

(b) a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Act; or

(c) a declaration is sought under section 21 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or

(d) an injunction is sought under section 23 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or

(e) a prosecution is instituted in the Federal Court under this Act; or

(f) an appeal is instituted in the Federal Court from a judgment of the Federal Magistrates Court or a court of a State or Territory in a matter arising under this Act; or

(g) proceedings in relation to a matter arising under this Act are transferred to the Federal Court from the Federal Magistrates Court; or

(h) the Federal Magistrates Court or a court of a State or Territory states a case or reserves a question for the consideration of the Federal Court in a matter arising under this Act; or

(i) the President refers, under section 608 of this Act, a question of law to the Federal Court; or

(j) the High Court remits a matter arising under this Act to the Federal Court.

564 No limitation on Federal Court’s powers

To avoid doubt, nothing in this Act limits the Federal Court’s powers under section 21, 22 or 23 of the Federal Court of Australia Act 1976.

565 Appeals from eligible State or Territory courts

(1) An appeal lies to the Federal Court from a decision of an eligible State or Territory court exercising jurisdiction under this Act.

(2) It is not necessary to obtain the leave of the Federal Court, or the court appealed from, in relation to an appeal under subsection (1).

(3) No appeal lies from a decision referred to in subsection (1), except as provided for by this section.

Division 3—Jurisdiction and powers of the Federal Magistrates Court

566 Conferring jurisdiction on the Federal Magistrates Court

Jurisdiction is conferred on the Federal Magistrates Court in relation to any civil matter arising under this Act.

567 Exercising jurisdiction in the Fair Work Division of the Federal Magistrates Court

Jurisdiction conferred on the Federal Magistrates Court under section 566 is to be exercised in the Fair Work Division of the Federal Magistrates Court if:

(a) an application is made to the Federal Magistrates Court under this Act; or

(b) an injunction is sought under section 15 of the Federal Magistrates Act 1999 in relation to a matter arising under this Act; or

(c) a declaration is sought under section 16 of the Federal Magistrates Act 1999 in relation to a matter arising under this Act; or

(d) proceedings in relation to a matter arising under this Act are transferred to the Federal Magistrates Court from the Federal Court; or

(e) the High Court remits a matter arising under this Act to the Federal Magistrates Court.

568 No limitation on Federal Magistrates Court’s powers

To avoid doubt, nothing in this Act limits the Federal Magistrates Court’s powers under section 14, 15 or 16 of the Federal Magistrates Act 1999.

Division 4—Miscellaneous

569 Minister’s entitlement to intervene

(1) The Minister may intervene on behalf of the Commonwealth in proceedings before a court (including a court of a State or Territory) in relation to a matter arising under this Act if the Minister believes it is in the public interest to do so.

(2) If the Minister intervenes, the Minister is taken to be a party to the proceedings for the purposes of instituting an appeal from a judgment given in the proceedings.

(3) Despite section 570, a court may make an order as to costs against the Commonwealth if:

(a) the Minister intervenes under subsection (1); or

(b) the Minister institutes an appeal from a judgment as referred to in subsection (2).

570 Costs only if proceedings instituted vexatiously etc.

(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569.

Note: The Commonwealth might be ordered to pay costs under section 569.

(2) The party may be ordered to pay the costs only if:

(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or

(i) the party unreasonably refused to participate in a matter before FWA;

(ii) the matter arose from the same facts as the proceedings.

571 No imprisonment for failure to pay pecuniary penalty

(1) A court (including a court of a State or Territory) may not order a person to serve a sentence of imprisonment if the person fails to pay a pecuniary penalty imposed under this Act.

(2) This section applies despite any other law of the Commonwealth, a State or a Territory.

572 Regulations dealing with matters relating to court proceedings

The regulations may provide for the fees to be charged in relation to proceedings in a court (including a court of a State or Territory) under this Act.

Chapter 5—Administration

Part 5‑1—Fair Work Australia

Division 1—Introduction

573 Guide to this Part

This Part is about Fair Work Australia.

Division 2 establishes and confers functions on FWA. FWA consists of the President, Deputy Presidents, Commissioners and Minimum Wage Panel Members. Division 2 also confers functions on the President.

Division 3 deals with the conduct of matters before FWA (such as applications, representation by lawyers, FWA’s decisions and appeals).

Division 4 deals with the organisation of FWA, who may perform functions of FWA and delegation of FWA’s functions and powers. Certain functions must be performed by a Full Bench or the Minimum Wage Panel.

Division 5 deals with the appointment, terms and conditions of FWA Members.

Division 6 deals with cooperation with the States.

Division 7 deals with FWA’s seal. It also deals with other powers and functions of the President and the General Manager (including in relation to annual reports, reports on making enterprise agreements, arrangements with certain courts, and disclosing information obtained by FWA).

Division 8 is about the General Manager of FWA (whose function is to assist the President), staff of FWA and others assisting FWA.

Division 9 contains offences in relation to FWA.

574 Meanings of employee and employer

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

574A Schedule 1

Schedule 1 has effect.

Division 2—Establishment and functions of Fair Work Australia

Subdivision A—Establishment and functions of Fair Work Australia

575 Establishment of Fair Work Australia

(1) Fair Work Australia is established by this section.

(2) Fair Work Australia consists of:

(a) the President; and

(b) such number of Deputy Presidents as, from time to time, hold office under this Act; and

(d) a minimum of 4, and no more than 6, Minimum Wage Panel Members.

Note: Fair Work Australia also has a General Manager and staff (see Division 8).

576 Functions of FWA

(1) FWA has the functions conferred by this Act in relation to the following subject matters:

(a) the National Employment Standards (Part 2‑2);

(b) modern awards (Part 2‑3);

(d) workplace determinations (Part 2‑5);

(e) minimum wages (Part 2‑6);

(f) equal remuneration (Part 2‑7);

(g) transfer of business (Part 2‑8);

(h) general protections (Part 3‑1);

(i) unfair dismissal (Part 3‑2);

(j) industrial action (Part 3‑3);

(k) right of entry (Part 3‑4);

(l) stand down (Part 3‑5);

(m) other rights and responsibilities (Part 3‑6);

(n) the extension of the National Employment Standards entitlements (Part 6‑3);

(o) unlawful termination protections (Part 6‑4).

(2) FWA also has the following functions:

(a) dealing with disputes as referred to in section 595;

(b) providing assistance and advice about its functions and activities;

(ca) mediating any proceedings, part of proceedings or matter arising out of any proceedings that, under section 53A of the Federal Court of Australia Act 1976 or section 34 of the Federal Magistrates Act 1999, have been referred by the Fair Work Division of the Federal Court or Federal Magistrates Court to FWA for mediation;

(d) any other function conferred on FWA by a law of the Commonwealth.

577 Performance of functions etc. by FWA

FWA must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that FWA performs its functions and exercises its powers efficiently etc. (see section 581).

578 Matters FWA must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), FWA must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

579 FWA has privileges and immunities of the Crown

FWA has the privileges and immunities of the Crown in right of the Commonwealth.

580 Protection of FWA Members

An FWA Member has, in performing his or her functions or exercising his or her powers as an FWA Member, the same protection and immunity as a Justice of the High Court.

Subdivision B—Functions and powers of the President

581 Functions of the President

The President is responsible for ensuring that FWA performs its functions and exercises its powers in a manner that:

(a) is efficient; and

(b) adequately serves the needs of employers and employees throughout Australia.

Note: The President must perform his or her own functions and exercise his or her own powers in a manner that facilitates cooperation with prescribed State industrial authorities (see section 649).

582 Directions by the President

The President may give directions

(1) The President may give directions under subsection (2) as to the manner in which FWA is to perform its functions, exercise its powers or deal with matters.

(2) The President may give a direction that is of a general nature, or that relates to a particular matter, to one or more of the following persons:

(a) an FWA Member;

(b) a Full Bench;

(d) the General Manager.

(3) The direction must not relate to a decision by FWA.

(4) Without limiting subsection (2), the direction may be a direction of the following kind:

(a) a direction about the conduct of 4 yearly reviews of modern awards;

(b) a direction about the conduct of annual wage reviews;

(c) a direction that 2 or more matters be dealt with jointly by one or more single FWA Members or one or more Full Benches;

(d) a direction about the transfer between FWA Members (including a transfer between Full Benches) of one or more matters being dealt with by FWA.

Persons must comply with the President’s directions

(5) A person to whom a direction is given must comply with the direction.

Note: For directions to the General Manager, see section 658.

Direction is not a legislative instrument

(6) If a direction is in writing, the direction is not a legislative instrument.

583 President not subject to direction

The President is not subject to direction by or on behalf of the Commonwealth.

584 Delegation of functions and powers of the President

(1) The President may, in writing, delegate to a Deputy President all or any of the President’s functions or powers, other than under:

(a) section 620 (which deals with the constitution and decision‑making of the Minimum Wage Panel); or

(b) section 625 (which deals with the delegation of functions and powers of FWA).

(2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the President.

Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

Division 3—Conduct of matters before FWA

Subdivision A—Applications to FWA

585 Applications in accordance with procedural rules

An application to FWA must be in accordance with the procedural rules (if any) relating to applications of that kind.

Note 1: Certain provisions might impose additional requirements in relation to particular kinds of applications (see for example subsection 185(2)).

Note 2: FWA may, under section 587, dismiss an application that is not made in accordance with the procedural rules.

586 Correcting and amending applications and documents etc.

FWA may:

(a) allow a correction or amendment of any application, or other document relating to a matter before FWA, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to FWA.

587 Dismissing applications

(1) Without limiting when FWA may dismiss an application, FWA may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(2) Despite paragraphs (1)(b) and (c), FWA must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) FWA may dismiss an application:

(a) on its own initiative; or

(b) on application.

588 Discontinuing applications

A person who has applied to FWA may discontinue the application:

(a) in accordance with the procedural rules (if any); and

(b) whether or not the matter has been settled.

Subdivision B—Conduct of matters before FWA

589 Procedural and interim decisions

(1) FWA may make decisions as to how, when and where a matter is to be dealt with.

(2) FWA may make an interim decision in relation to a matter before it.

(3) FWA may make a decision under this section:

(a) on its own initiative; or

(b) on application.

(4) This section does not limit FWA’s power to make decisions.

590 Powers of FWA to inform itself

(1) FWA may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), FWA may inform itself in the following ways:

(a) by requiring a person to attend before FWA;

(b) by inviting, subject to any terms and conditions determined by FWA, oral or written submissions;

(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e) by requiring an FWA Member, a Full Bench or the Minimum Wage Panel to prepare a report;

(f) by conducting inquiries;

(g) by undertaking or commissioning research;

(h) by conducting a conference (see section 592);

(i) by holding a hearing (see section 593).

591 FWA not bound by rules of evidence and procedure

FWA is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not FWA holds a hearing in relation to the matter).

592 Conferences

(1) For the purpose of performing a function or exercising a power of FWA (other than a function or power under Part 2‑6), FWA may direct a person to attend a conference at a specified time and place.

Note: Part 2‑6 deals with minimum wages. For the conduct of annual wage reviews, see Subdivision B of Division 3 of Part 2‑6.

(2) An FWA Member (other than a Minimum Wage Panel Member), or a delegate of FWA, is responsible for conducting the conference.

(3) The conference must be conducted in private, unless the person responsible for conducting the conference directs that it be conducted in public.

Note: This subsection does not apply in relation to conferences conducted in relation to unfair dismissal or general protection matters (see sections 368, 374, 398 and 776).

593 Hearings

(1) FWA is not required to hold a hearing in performing functions or exercising powers, except as provided by this Act.

(2) If FWA holds a hearing in relation to a matter, the hearing must be held in public, except as provided by subsection (3).

Confidential evidence in hearings

(3) FWA may make the following orders in relation to a hearing that FWA holds if FWA is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) orders that all or part of the hearing is to be held in private;

(b) orders about who may be present at the hearing;

(d) orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following:

(i) evidence given in the hearing;

(ii) matters contained in documents before FWA in relation to the hearing.

(4) Subsection (3) does not apply to the publication of a submission made to FWA for consideration in an annual wage review (see subsection 289(2)).

594 Confidential evidence

(1) FWA may make an order prohibiting or restricting the publication of the following in relation to a matter before FWA (whether or not FWA holds a hearing in relation to the matter) if FWA is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) evidence given to FWA in relation to the matter;

(b) the names and addresses of persons making submissions to FWA in relation to the matter;

(d) the whole or any part of its decisions or reasons in relation to the matter.

(2) Subsection (1) does not apply to the publication of a submission made to FWA for consideration in an annual wage review (see subsection 289(2)).

595 FWA’s power to deal with disputes

(1) FWA may deal with a dispute only if FWA is expressly authorised to do so under or in accordance with another provision of this Act.

(2) FWA may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a) by mediation or conciliation;

(b) by making a recommendation or expressing an opinion.

(3) FWA may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if FWA is expressly authorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to FWA arbitrating a bargaining dispute (see subsection 240(4)).

(4) In dealing with a dispute, FWA may exercise any powers it has under this Subdivision.

Example: FWA could direct a person to attend a conference under section 592.

(5) To avoid doubt, FWA must not exercise any of the powers referred to in subsection (2) or (3) in relation to a matter before FWA except as authorised by this section.

Subdivision C—Representation by lawyers and paid agents and Minister’s entitlement to make submissions

596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.

(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Note: Circumstances in which FWA might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non‑English speaking background or has difficulty reading or writing;

(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

(3) FWA’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2‑3 or 2‑6 (which deal with modern awards and minimum wages).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(i) an organisation; or

(ii) an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

597 Minister’s entitlement to make submissions

(1) The Minister is entitled to make a submission for consideration in relation to a matter before FWA if:

(a) the matter is before a Full Bench and it is in the public interest for the Minister to make a submission; or

(b) the matter involves public sector employment.

(2) Subsection (1) applies whether or not FWA holds a hearing in relation to the matter.

Subdivision D—Decisions of FWA

598 Decisions of FWA

(1) A reference in this Part to a decision of FWA includes any decision of FWA however described. However, to avoid doubt, a reference to a decision of FWA does not include an outcome of a process carried out in accordance with subsection 595(2) (which deals with FWA’s power to deal with disputes).

Note: Examples of decisions that FWA makes include making modern awards, approving or refusing to approve enterprise agreements, decisions as to how, when and where a matter is to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals.

(2) If FWA makes a decision that makes or varies an instrument, a reference in this Part to a decision of FWA includes FWA’s decision to make or vary the instrument in the particular terms decided.

(3) A decision of FWA that is described as an order must be made by order.

Note: An example of a decision that is described as an order is a bargaining order.

(4) A decision of FWA that is not described as an order may be made by order.

599 FWA not required to decide an application in terms applied for

Except as provided by this Act, FWA is not required to make a decision in relation to an application in the terms applied for.

600 Determining matters in the absence of a person

FWA may determine a matter before it in the absence of a person who has been required to attend before it.

601 Writing and publication requirements for FWA’s decisions

(1) The following decisions of FWA must be in writing:

(a) a decision of FWA made under a Part of this Act other than this Part;

(b) an interim decision that relates to a decision to be made under a Part of this Act other than this Part;

Note: For appeals and reviews, see sections 604 and 605.

(2) FWA may give written reasons for any decision that it makes.

(3) A decision, and reasons, that are in writing must be expressed in plain English and be easy to understand in structure and content.

(4) FWA must publish the following, on its website or by any other means that FWA considers appropriate:

(a) a decision that is required to be in writing and any written reasons that FWA gives in relation to such a decision;

(b) an enterprise agreement that has been approved by FWA under Part 2‑4.

FWA must do so as soon as practicable after making the decision or approving the agreement.

(5) Subsection (4) does not apply to any of the following decisions or reasons in relation to such decisions:

(a) a decision to issue, or refuse to issue, a certificate under section 369;

(d) a decision to impose conditions on an entry permit under section 515;

(e) a decision to issue, or refuse to issue, an exemption certificate under section 519;

(f) a decision to issue, or refuse to issue, an affected member certificate under section 520;

(g) a decision or reasons in relation to which an order is in operation under paragraph 594(1)(d).

(6) Subsections (1) and (4) do not limit FWA’s power to put decisions in writing or publish decisions.

602 Correcting obvious errors etc. in relation to FWA’s decisions

(1) FWA may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of FWA (other than an error, defect or irregularity in a modern award or national minimum wage order).

Note 1: If FWA makes a decision to make an instrument, FWA may correct etc. the instrument under this section (see subsection 598(2)).

Note 2: FWA corrects modern awards and national minimum wage orders under sections 160 and 296.

(2) FWA may correct or amend the error, defect or irregularity:

(a) on its own initiative; or

(b) on application.

603 Varying and revoking FWA’s decisions

(1) FWA may vary or revoke a decision of FWA that is made under this Act (other than a decision referred to in subsection (3)).

Note: If FWA makes a decision to make an instrument, FWA may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) FWA may vary or revoke a decision under this section:

(a) on its own initiative; or

(b) on application by:

(i) a person who is affected by the decision; or

(ii) if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision.

(3) FWA must not vary or revoke any of the following decisions of FWA under this section:

(a) a decision under Part 2‑3 (which deals with modern awards);

(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2‑4 (which deal with enterprise agreements);

(d) a decision under Part 2‑6 (which deals with minimum wages);

(e) a decision under Division 3 of Part 2‑8 (which deals with transfer of business);

(f) a decision under Division 8 of Part 3‑3 (which deals with protected action ballots);

(g) a decision under section 472 (which deals with partial work bans);

(h) a decision that is prescribed by the regulations.

Note: FWA can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).

Subdivision E—Appeals, reviews and referring questions of law

604 Appeal of decisions

(1) A person who is aggrieved by a decision made by FWA (other than a decision of a Full Bench or the Minimum Wage Panel) may appeal the decision, with the permission of FWA.

Note: Generally, FWA must be constituted by a Full Bench to decide whether to grant permission, and to hear an appeal (see section 613).

(2) Without limiting when FWA may grant permission, FWA must grant permission if FWA is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(3) A person may appeal the decision by applying to FWA.

605 Minister’s entitlement to apply for review of a decision

(1) The Minister may apply to FWA for a review to be conducted by FWA of a decision made by FWA (other than a decision of a Full Bench or the Minimum Wage Panel) if the Minister believes that the decision is contrary to the public interest.

(2) Without limiting when FWA may conduct a review, FWA must conduct a review of the decision if FWA is satisfied that it is in the public interest to conduct the review.

Note: FWA must be constituted by a Full Bench to decide whether to conduct a review, and to conduct the review (see section 614).

(3) In conducting a review:

(a) FWA must take such steps as it considers appropriate to ensure that each person with an interest in the review is made aware of the review; and

(b) the Minister is entitled to make submissions for consideration in the review.

(4) Nothing in this section affects any right of appeal or any power of FWA under section 604 or 607. A review of a decision and an appeal of the decision may be dealt with together if FWA considers it appropriate.

606 Staying decisions that are appealed or reviewed

(1) If, under section 604 or 605, FWA hears an appeal from, or conducts a review of, a decision, FWA may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that FWA considers appropriate, until a decision in relation to the appeal or review is made or FWA makes a further order.

(2) If a Full Bench is hearing the appeal or conducting the review, an order under subsection (1) in relation to the appeal or review may be made by:

(a) the Full Bench; or

(b) the person who has seniority under section 619 in relation to the appeal or review.

(3) This section does not apply in relation to a decision to make a protected action ballot order.

607 Process for appealing or reviewing decisions

(1) An appeal from, or a review of, a decision of FWA may be heard or conducted without holding a hearing only if:

(a) it appears to FWA that the appeal or review can be adequately determined without persons making oral submissions for consideration in the appeal or review; and

(b) the persons who would otherwise, or who will, make submissions (whether oral or written) for consideration in the appeal or review consent to the appeal or review being heard or conducted without a hearing.

(2) FWA may:

(a) admit further evidence; and

(b) take into account any other information or evidence.

(3) FWA may do any of the following in relation to the appeal or review:

(a) confirm, quash or vary the decision;

(b) make a further decision in relation to the matter that is the subject of the appeal or review;

(c) refer the matter that is the subject of the appeal or review to an FWA Member (other than a Minimum Wage Panel Member) and:

(i) require the FWA Member to deal with the subject matter of the decision; or

(ii) require the FWA Member to act in accordance with the directions of FWA.

608 Referring questions of law to the Federal Court

(1) The President may refer a question of law arising in a matter before FWA for the opinion of the Federal Court.

(2) A question of law referred under subsection (1) must be determined by the Full Court of the Federal Court.

(3) FWA may make a decision in relation to the matter even if the Federal Court is determining the question of law, except if the question is whether FWA may exercise powers in relation to the matter.

(4) Once the Federal Court has determined the question, FWA may only make a decision in relation to the matter that is not inconsistent with the opinion of the Federal Court (if FWA has not already done so).

(5) However, if FWA has made a decision in relation to the matter that is inconsistent with the opinion of the Federal Court, FWA must vary the decision in such a way as to make it consistent with the opinion of the Federal Court.

Subdivision F—Miscellaneous

609 Procedural rules

(1) After consulting the other FWA Members, the President may, by legislative instrument, make procedural rules in relation to:

(a) the practice and procedure to be followed by FWA; or

(b) the conduct of business in relation to matters allowed or required to be dealt with by FWA.

(2) Without limiting subsection (1), the procedural rules may provide for the following:

(a) the requirements for making an application to FWA;

(b) the circumstances in which a lawyer or paid agent may make an application or submission to FWA on behalf of a person who is entitled to make the application or submission;

(d) the procedural requirements for making decisions of FWA;

(e) the form and manner in which FWA gives directions and notifies persons of things;

(f) who is notified by FWA of things;

(g) the manner in which conferences are to be conducted in relation to applications made under Part 3‑1, 3‑2 or Part 6‑4 (which deal with general protections, unfair dismissal and unlawful termination).

(3) To avoid doubt, subsection (1) includes the power to make procedural rules in relation to any functions conferred on FWA by any other law of the Commonwealth.

610 Regulations dealing with FWA matters

The regulations may provide for any matter that the procedural rules may provide for.

Note: Regulations made under this section prevail over procedural rules (see subsection 796(2)).

611 Costs

(1) A person must bear the person’s own costs in relation to a matter before FWA.

(2) However, FWA may order a person (the first person) to bear some or all of the costs of another person in relation to an application to FWA if:

(a) FWA is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) FWA is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note: FWA can also order costs under sections 376, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4‑1).

Division 4—Organisation of FWA

Subdivision A—Functions etc. to be performed by a single FWA Member, a Full Bench or the Minimum Wage Panel

612 FWA functions etc. may generally be performed by single FWA Member

(1) A function or power of FWA may be performed or exercised by a single FWA Member (other than a Minimum Wage Panel Member), as directed by the President, except as provided by this Subdivision.

Note: The President gives directions under section 582.

(2) Action taken under subsection 508(1) (which deals with misuse of rights under Part 3‑4) must be taken by a Deputy President, except as provided by section 615.

(3) This section does not limit the power of the President to delegate a function or power of FWA under section 625.

613 Appeal of decisions to be heard by a Full Bench, the President or a Deputy President

(1) A Full Bench must (except as provided by subsection (2)):

(a) decide under section 604 whether to grant permission to appeal a decision; and

(b) if the Full Bench decides to grant the permission—hear the appeal in accordance with section 607.

Note: For the constitution of a Full Bench, see section 618.

(2) The President, or a Deputy President directed by the President, may:

(a) decide under section 604 whether to grant permission to appeal a decision of a delegate under subsection 625(2); and

(b) if President or the Deputy President (as the case may be) grants the permission—hear the appeal in accordance with section 607.

Note: The President gives directions under section 582.

614 Review of decisions by a Full Bench

A Full Bench must:

(a) decide under section 605 whether to conduct a review of a decision; and

(b) if the Full Bench decides to conduct the review—conduct the review in accordance with section 607.

Note: For the constitution of a Full Bench, see section 618.

615 FWA functions etc. performed by a Full Bench on direction by the President

(1) A function or power of FWA may be performed or exercised by a Full Bench if the President so directs.

Note: The President gives directions under section 582.

(2) The President may direct that the function or power be exercised by a Full Bench generally, or in relation to a particular matter or class of matters.

(3) To avoid doubt, a reference in this section to a Full Bench includes a reference to more than one Full Bench.

Note: For the constitution of a Full Bench, see section 618.

616 FWA functions etc. that must be performed by a Full Bench

Modern awards

(1) A modern award must be made under Part 2‑3 by a Full Bench.

(2) A 4 yearly review of modern awards must be conducted under Part 2‑3 by a Full Bench.

(3) A determination that varies or revokes a modern award made in a 4 yearly review of modern awards must be made by a Full Bench.

Note: A determination that varies or revokes a modern award may be made by a single FWA Member if it is not made in a 4 yearly review of modern awards or in an annual wage review.

Workplace determinations

(4) A workplace determination must be made under Part 2‑5 by a Full Bench.

Full Benches

(5) To avoid doubt, a reference in this section to a Full Bench includes a reference to more than one Full Bench.

Note: For the constitution of a Full Bench, see section 618.

617 FWA functions etc. that must be performed by the Minimum Wage Panel

(1) An annual wage review must be conducted under Part 2‑6 by the Minimum Wage Panel.

Note: For the constitution of the Minimum Wage Panel, see section 620.

(2) A national minimum wage order, or a determination, made in an annual wage review must be made by the Minimum Wage Panel.

(3) A determination that varies a national minimum wage order must be made under Part 2‑6 by the Minimum Wage Panel.

Subdivision B—Constitution of FWA by a single FWA Member, a Full Bench or the Minimum Wage Panel

618 Constitution and decision‑making of a Full Bench

Constitution of a Full Bench

(1) A Full Bench constituted under this section consists of at least 3 FWA Members, including at least one Deputy President.

Note: A Minimum Wage Panel Member might form part of a Full Bench.

(2) The President may determine which FWA Members form part of a Full Bench.

Making decisions

(3) A decision of a majority of the FWA Members on the Full Bench prevails.

(4) However, if there is no majority, the decision of the FWA Member who has seniority under section 619 prevails.

619 Seniority of FWA Members

(1) While FWA is constituted by a Full Bench, the FWA Members on the Full Bench have seniority according to the following order:

(a) the President;

(b) the Deputy Presidents, according to the days on which their appointments as Deputy Presidents took effect;

(c) if 2 or more appointments as Deputy Presidents took effect on the same day—the Deputy Presidents, according to the precedence assigned to them in their instruments of appointment.

(2) The FWA Member on a Full Bench who has seniority under this section is responsible for managing the Full Bench in performing functions and exercising powers of FWA.

Note: The FWA Member who has seniority also has a deciding vote if there is no majority (see subsection 618(4)).

620 Constitution and decision‑making of the Minimum Wage Panel

Constitution of the Minimum Wage Panel

(1) The Minimum Wage Panel constituted under this section consists of 7 FWA Members (except as provided by section 622), and must include:

(a) the President; and

(b) at least 3 Minimum Wage Panel Members.

(2) The President may determine which FWA Members form part of the Minimum Wage Panel.

(3) The President is responsible for managing the Minimum Wage Panel in performing the functions and exercising the powers referred to in section 617.

Making decisions

(4) A decision of the majority of the FWA Members of the Minimum Wage Panel prevails.

(5) However, if there is no majority, the decision of the President prevails.

621 Reconstitution of FWA when single FWA Member becomes unavailable

(1) This section applies if:

(a) an FWA Member is dealing with a matter (other than by forming part of a Full Bench or the Minimum Wage Panel in relation to a matter); and

(b) the FWA Member becomes unavailable to continue dealing with the matter before the matter is completely dealt with.

(2) The President must direct another FWA Member to constitute FWA for the purposes of dealing with the matter.

Note: The new FWA Member must take into account everything that happened before the FWA Member began to deal with the matter (see section 623).

622 Reconstitution of FWA when FWA Member of a Full Bench or the Minimum Wage Panel becomes unavailable

(1) This section applies if:

(a) an FWA Member (the unavailable member) forms part of a Full Bench or the Minimum Wage Panel in relation to a matter; and

(b) the FWA Member becomes unavailable to continue dealing with the matter before the matter is completely dealt with.

(2) The Full Bench or the Minimum Wage Panel may continue to deal with the matter without the unavailable member if the Full Bench or the Minimum Wage Panel consists of the following:

(a) for the Minimum Wage Panel—the President and at least 3 Minimum Wage Panel Members;

(b) for a Full Bench—at least 3 FWA Members, including at least one Deputy President.

(3) Otherwise, the President must direct another FWA member to form part of the Full Bench or the Minimum Wage Panel. After the President does so, the Full Bench or the Minimum Wage Panel may continue to deal with the matter without the unavailable member.

Note: The new FWA Member must take into account everything that happened before the FWA Member began to deal with the matter (see section 623).

623 When new FWA Members begin to deal with matters

If an FWA Member begins to deal with a matter under section 621 or 622, the FWA Member must take into account everything that occurred before FWA, and everything that FWA did, in relation to the matter before the FWA Member began to deal with the matter.

624 FWA’s decisions not invalid when improperly constituted

A decision of FWA is not invalid merely because it was made by a Full Bench, or the Minimum Wage Panel, constituted otherwise than as provided by this Division.

Note: If FWA makes a decision to make an instrument while constituted otherwise than as provided by this Division, the instrument is not invalid (see subsection 598(2)).

Subdivision C—Delegation of FWA’s functions and powers

625 Delegation by the President of functions and powers of FWA

(1) The President may, in writing, delegate all or any of the following powers of FWA to the General Manager or a member of the staff of FWA:

(a) correcting or amending applications and documents, or waiving irregularities, under section 586;

(b) informing itself as it considers appropriate under section 590 (other than FWA’s power to hold a hearing);

(d) correcting or amending obvious errors, defects or irregularities under section 602.

(2) The President may, in writing, delegate all or any of the following functions or powers of FWA to a person referred to in subsection (3):

(a) publishing varied modern awards under section 168;

(b) publishing submissions under section 289;

(d) publishing varied wage rates under section 292;

(da) publishing the results of a protected action ballot under section 457;

(f) imposing conditions on entry permits, revoking or suspending entry permits, or banning the issue of any further entry permits, under section 507 or 510;

(g) the functions and powers of FWA under Division 6 of Part 3‑4 (which deals with entry permits, entry notices and certificates);

(h) publishing enterprise agreements under paragraph 601(4)(b);

(i) any function or power prescribed by the regulations.

(3) The people to whom a delegation may be given under subsection (2) are any of the following:

(a) the General Manager;

(b) a member of the staff of FWA who is an SES employee or acting SES employee;

(4) In performing functions or exercising powers under a delegation under subsection (1) or (2), the delegate must comply with any directions of the President.

Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

Division 5—FWA Members

Subdivision A—Appointment of FWA Members

626 Appointment of FWA Members

(1) An FWA Member is to be appointed by the Governor‑General by written instrument.

(2) The instrument of appointment must specify whether the FWA Member is the President, a Deputy President, a Commissioner or a Minimum Wage Panel Member.

(3) The instrument of appointment must assign a precedence to the FWA Member if the FWA Member and one or more other FWA Members are appointed as Deputy Presidents on the same day.

Note: Precedence is relevant to the seniority of Deputy Presidents (see paragraph 619(1)(c)).

(4) The same person must not hold, at the same time, an appointment as both:

(a) a Minimum Wage Panel Member; and

(b) the President, a Deputy President or a Commissioner.

627 Qualifications for appointment of FWA Members

President

(1) Before the Governor‑General appoints a person as the President, the Minister must be satisfied that the person:

(a) is or has been a Judge of a court created by the Parliament; or

(b) is qualified for appointment because the person has knowledge of, or experience in, one or more of the following fields:

(i) workplace relations;

(ii) law;

(iii) business, industry or commerce.

Deputy Presidents

(2) Before the Governor‑General appoints a person as a Deputy President, the Minister must be satisfied that the person:

(a) either:

(i) is or has been a Judge of a court created by the Parliament; or

(ii) has been a Judge of a court of a State or Territory; or

(b) has a high level of experience in the field of workplace relations, including a high level of experience that has been acquired:

(i) through legal practice; or

(ii) in the service of a peak council or another association representing the interests of employers or employees; or

(iii) in the service of government or an authority of government; or

(iv) in academia.

Commissioners

(3) Before the Governor‑General appoints a person as a Commissioner, the Minister must be satisfied that the person is qualified for appointment because the person has knowledge of, or experience in, one or more of the following fields:

(a) workplace relations;

(b) law;

Minimum Wage Panel Members

(4) Before the Governor‑General appoints a person as a Minimum Wage Panel Member, the Minister must be satisfied that the person is qualified for appointment because the person has knowledge of, or experience in, one or more of the following fields:

(a) workplace relations;

(b) economics;

(d) business, industry or commerce.

628 Basis of appointment of FWA Members

President, Deputy Presidents and Commissioners

(1) The President, a Deputy President or a Commissioner holds office on a full‑time basis.

(2) A Deputy President or a Commissioner may perform his or her duties on a part‑time basis, with the President’s approval.

Minimum Wage Panel Members

(3) A Minimum Wage Panel Member holds office on a part‑time basis.

629 Period of appointment of FWA Members

President, Deputy Presidents and Commissioners

(1) The President, a Deputy President or a Commissioner holds office until the earliest of the following:

(a) he or she attains the age of 65 years;

(b) he or she resigns or the appointment is terminated under this Part.

Members of a prescribed State industrial authority

(2) Despite subsection (1), a person who is a member of a prescribed State industrial authority may be appointed as a Deputy President or Commissioner for a period specified in the instrument of appointment.

Note: A member of a prescribed State industrial authority may hold office as a Deputy President or Commissioner (see section 631).

(3) If a person is so appointed, the person holds office as Deputy President or Commissioner until the earliest of the following:

(a) the specified period ends;

(b) the person ceases to be a member of the prescribed State industrial authority;

Minimum Wage Panel Members

(4) A Minimum Wage Panel Member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

Note: A Minimum Wage Panel Member is eligible for reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).

Subdivision B—Terms and conditions of FWA Members

630 Appointment of a Judge not to affect tenure etc.

(1) The appointment of a Judge of a court created by the Parliament as an FWA Member, or service by such a Judge as an FWA Member, does not affect:

(a) the Judge’s tenure of office as a Judge; or

(b) the Judge’s rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of his or her office as a Judge.

(2) For all purposes, the Judge’s service as the FWA Member is taken to be service as a Judge.

631 Dual federal and State appointments of Deputy Presidents or Commissioners

(1) Nothing in this Act prevents a Deputy President or Commissioner from being appointed to, and holding at the same time, an office as a member of a prescribed State industrial authority, with the President’s approval.

(2) Nothing in this Act prevents a member of a prescribed State industrial authority from being appointed to, and holding at the same time, an office as a Deputy President or Commissioner.

Note 1: A member of a prescribed State industrial authority may hold office as a Deputy President or Commissioner only if he or she is qualified for appointment (see section 627).

Note 2: For the period of appointment, and remuneration and allowances, of a Deputy President or Commissioner who is a member of a prescribed State industrial authority, see sections 629 and 637.

(3) Subsections (1) and (2) have effect subject to any law of the relevant State.

632 Dual federal and Territory appointments of Deputy Presidents or Commissioners

Nothing in this Act prevents a Deputy President or Commissioner from being appointed to, and holding at the same time, one of the following offices, with the President’s approval:

(a) an office as a member of a Commonwealth or Territory tribunal prescribed by the regulations (other than a court);

(b) an office under a Commonwealth or Territory law that provides for the office to be held by an FWA Member.

633 Outside employment of FWA Members

Deputy Presidents and Commissioners

(1) A Deputy President or Commissioner (whether performing duties on a full‑time or part‑time basis) must not engage in paid employment outside the duties of his or her office without the President’s approval.

(2) However, the President’s approval is not required if the paid employment is an office or appointment in the Defence Force.

Minimum Wage Panel Members

(3) A Minimum Wage Panel Member must not engage in any paid employment that, in the President’s opinion, conflicts or may conflict with the proper performance of his or her duties.

634 Oath or affirmation of office

Before beginning to discharge the duties of his or her office, an FWA Member must take an oath or affirmation in accordance with the regulations.

635 Remuneration of the President

Remuneration if the President is not a Judge

(1) The President (other than a President who is a Judge of a court created by the Parliament) is to be paid:

(a) salary at an annual rate equal to the annual rate of salary payable to the Chief Justice of the Federal Court; and

(b) such travelling allowances as are determined from time to time by the Remuneration Tribunal; and

Remuneration if the President is a Judge

(2) A President who is a Judge of a court created by the Parliament must be paid an additional allowance, in accordance with subsection (3), if the salary payable to the person as a Judge is less than the salary that would be payable to the person as President under subsection (1).

(3) The amount of the allowance is the difference between the Judge’s salary and the salary that is payable to the President under subsection (1).

Additional amount

(4) The President or a former President must be paid an amount in accordance with subsection 7(5E) of the Remuneration Tribunal Act 1973 if the President, or former President, would be entitled to that amount had the President or former President held the office of Chief Justice of the Federal Court instead of the office of President.

636 Application of Judges’ Pensions Act to the President

(1) The Judges’ Pensions Act 1968 does not apply to the President if:

(a) immediately before being appointed as the President, he or she was one of the following (a public sector superannuation scheme member):

(i) an eligible employee for the purposes of the Superannuation Act 1976;

(ii) a member of the superannuation scheme established by deed under the Superannuation Act 1990;

(iii) an ordinary employer‑sponsored member of PSSAP (within the meaning of the Superannuation Act 2005); and

(b) he or she does not make an election under subsection (2).

(2) The President may elect to cease to be a public sector superannuation scheme member.

(3) The election must be made:

(a) within 3 months of the President’s appointment; and

(b) by written notice to the Minister.

(4) If the President makes the election:

(a) he or she is taken to have ceased to be a public sector superannuation scheme member immediately before being appointed as the President; and

(b) the Judges’ Pensions Act 1968 applies to him or her, and is taken to have so applied, immediately after he or she was appointed as the President.

637 Remuneration of FWA Members other than the President

Remuneration if an FWA Member is not a Judge

(1) An FWA Member (other than an FWA Member who is a Judge of a court created by the Parliament) is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the FWA Member is to be paid the remuneration that is prescribed by the regulations.

(2) An FWA Member is to be paid the allowances that are prescribed by the regulations.

(3) Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973 and to section 638 (which deals with remuneration of part‑time Deputy Presidents and Commissioners).

(4) Despite subsections (1) to (3), if a person who is a member of a prescribed State industrial authority is appointed as a Deputy President or Commissioner, the person is not to be paid any remuneration or allowances in relation to the office of Deputy President or Commissioner other than any travel allowance prescribed under subsection (2).

Remuneration if an FWA Member is a Judge

(5) An FWA Member who is a Judge (other than the Chief Justice of the Federal Court) of a court created by the Parliament is to be paid an additional allowance, in accordance with subsection (6), if the salary payable to the person as a Judge is less than the salary that would be payable to the person as an FWA Member under subsection (1).

(6) The amount of the allowance is the difference between the Judge’s salary and the salary that is payable to the FWA Member under subsection (1).

Section does not apply to the President

(7) This section does not apply to the President.

638 Remuneration of Deputy Presidents or Commissioners performing duties on a part‑time basis

(1) If the President approves a Deputy President or Commissioner (the part‑time member) performing his or her duties on a part‑time basis, the President and the part‑time member are to enter into a written agreement specifying the proportion (the agreed proportion) of full‑time duties to be worked by the part‑time member.

(2) The agreed proportion may be varied by a written agreement between the President and the part‑time member.

(3) The part‑time member’s annual rate of salary at a particular time is equal to the agreed proportion at that time of the annual rate of salary that would be payable to the part‑time member if he or she were performing his or her duties on a full‑time basis.

(4) The allowances that are to be paid to the part‑time member under section 637 are not affected by this section.

639 Leave of absence of FWA Members other than the President

(1) An FWA Member has the recreation leave entitlements that are determined by the Remuneration Tribunal.

(2) The President may grant an FWA Member leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise as the President determines.

(3) In making a determination in accordance with this section, the Remuneration Tribunal and the President must take into account:

(a) any past employment of the FWA Member in the service of a State or an authority of a State; or

(b) any past service of the FWA Member as a member of an authority of a State.

(4) This section does not apply to the President.

640 Disclosure of interests by FWA Members other than the President

(1) This section applies if:

(a) an FWA Member (other than the President) is dealing, or will deal, with a matter; and

(b) the FWA Member has or acquires any interest (the potential conflict), pecuniary or otherwise, that conflicts or could conflict with the proper performance of the FWA Member’s functions in relation to the matter.

(2) An FWA Member must disclose a potential conflict to the President.

(3) If an FWA Member discloses a potential conflict to the President, the FWA Member may only deal, or continue to deal, with the matter with the President’s approval.

(4) The President must give a direction to the FWA Member not to deal, or to no longer deal, with the matter if:

(a) the President becomes aware that an FWA Member has a potential conflict in relation to a matter (whether or not because of a disclosure under subsection (2)); and

(b) the President considers that the FWA Member should not deal, or should no longer deal, with the matter.

(5) To avoid doubt, subsection (4) applies in relation to an FWA Member even if the President has previously given approval to the FWA Member under subsection (3).

641 Termination of appointment on grounds of misbehaviour or incapacity

The Governor‑General may terminate the appointment of an FWA Member if an address praying for the termination, on one of the following grounds, is presented to the Governor‑General by each House of the Parliament in the same session:

(a) proved misbehaviour;

(b) the FWA Member is unable to perform the duties of his or her office because of physical or mental incapacity.

642 Suspension on grounds of misbehaviour or incapacity

Governor‑General may suspend FWA Member

(1) The Governor‑General may suspend an FWA Member (other than the President) from office:

(a) for misbehaviour; or

(b) if the FWA Member is unable to perform the duties of his or her office because of physical or mental incapacity.

Statement of grounds

(2) The Minister must cause to be tabled in each House of Parliament, within 7 sitting days of that House after the suspension, a statement identifying the FWA Member and setting out the ground of the suspension.

Resolution by a House of Parliament

(3) A House of the Parliament may, within 15 sitting days of that House after the day on which the statement has been tabled in it, declare by resolution that the appointment of the FWA Member should be terminated.

Suspension terminates

(4) If a House does not pass a resolution in that way, the suspension terminates.

Appointment to be terminated

(5) If each House of the Parliament passes a resolution in that way, the Governor‑General must terminate the appointment of the FWA Member.

Suspension not to affect entitlements

(6) The suspension of an FWA Member under this section does not affect any entitlement of the FWA Member to be paid remuneration, and allowances, in accordance with this Act.

643 Termination of appointment for bankruptcy, etc.

The Governor‑General must terminate the appointment of an FWA Member (other than the President) if:

(a) the FWA Member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors, or makes an assignment of his or her remuneration for the benefit of his or her creditors; or

(b) the FWA Member is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(c) the FWA Member fails, without reasonable excuse, to comply with section 640 (which deals with disclosure of interests).

644 Termination of appointment for outside employment

Deputy Presidents and Commissioners

(1) The Governor‑General must terminate the appointment of a Deputy President or Commissioner if the Deputy President or Commissioner engages, except with the President’s approval, in paid employment outside the duties of his or her office (see subsection 633(1)).

Minimum Wage Panel Members

(2) The Governor‑General must terminate the appointment of a Minimum Wage Panel Member if the Minimum Wage Panel Member engages in paid employment that, in the President’s opinion, conflicts or may conflict with the proper performance of his or her duties (see subsection 633(3)).

645 Resignation of FWA Members

(1) An FWA Member may resign his or her appointment by giving the Governor‑General a written resignation.

(2) The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.

646 Other terms and conditions of FWA Members

An FWA Member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor‑General.

647 Appointment of acting President

Appointment by Governor‑General

(1) The Governor‑General may, by written instrument, appoint a person who is qualified for appointment as the President to act as the President:

(a) during a vacancy in the office of the President (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the President is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.

Note: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.

No invalidity

(2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the appointment; or

(d) the occasion for the person to act had not arisen or had ceased.

Not disqualified

(3) A person is not disqualified from being appointed to act as the President under subsection (1) merely because the person is over 65.

648 Appointment of acting Deputy Presidents

Appointment by Governor‑General

(1) The Governor‑General may, by written instrument, appoint a person who is qualified for appointment as a Deputy President to act as a Deputy President for a specified period (including a period that exceeds 12 months).

Note: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.

(2) Before the Governor‑General appoints a person to act as a Deputy President, the Minister must be satisfied that the appointment is necessary to enable FWA to perform its functions effectively.

No invalidity

(3) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the appointment; or

(d) the occasion for the person to act had not arisen or had ceased.

Not disqualified

(4) A person is not disqualified from being appointed to act as a Deputy President under subsection (1) merely because the person is over 65.

Division 6—Cooperation with the States

649 President to cooperate with prescribed State industrial authorities

(1) The President must perform his or her functions, and exercise his or her powers, in a manner that facilitates cooperation between FWA and prescribed State industrial authorities.

(2) Without limiting subsection (1), the President may invite the heads of prescribed State industrial authorities, or the principal registrars of prescribed State industrial authorities, to meet with the President to exchange information and discuss matters of mutual interest in relation to workplace relations.

650 Provision of administrative support

The President may make a written arrangement with a prescribed State industrial authority for:

(a) FWA to provide administrative support to the authority; or

(b) the authority to provide administrative support to FWA.

Division 7—Seals and additional powers and functions of the President and the General Manager

651 Seals

Seal of FWA

(1) FWA must have a seal on which are inscribed the words “The Seal of Fair Work Australia”.

Duplicate seals

(2) There are to be such duplicates of the seal of FWA as the President directs.

Note: The President gives directions under section 582.

(3) A document to which a duplicate seal of FWA is affixed is taken to have the seal of FWA affixed to it.

Custody and use of the seal of FWA and duplicate seals

(4) The seal of FWA, and the duplicates of that seal, are to be kept in such custody as the President directs and must not be used except as authorised by the President.

Note: The President gives directions under section 582.

Judicial notice of the seal of FWA

(5) All courts, judges and persons acting judicially must:

(a) take judicial notice of the imprint of the seal of FWA appearing on a document; and

(b) presume that the document was duly sealed.

652 Annual report

(1) The President must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on the operations of FWA during that year.

Note: See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.

(2) To avoid doubt, subsection (1) does not require or authorise the disclosure of information for the purposes of the Privacy Act 1988.

653 Reports about making enterprise agreements, individual flexibility arrangements etc.

Review and research

(1) The General Manager must:

(a) review the developments, in Australia, in making enterprise agreements; and

(b) conduct research into the extent to which individual flexibility arrangements under modern awards and enterprise agreements are being agreed to, and the content of those arrangements; and

(i) requests for flexible working arrangements under subsection 65(1); and

(ii) requests for extensions of unpaid parental leave under subsection 76(1); and

(d) conduct research into:

(i) the circumstances in which employees make such requests; and

(ii) the outcome of such requests; and

(iii) the circumstances in which such requests are refused.

(1A) The review and research must be conducted in relation to each of the following periods:

(a) the 3 year period that starts when this section commences;

(b) each later 3 year period.

(2) Without limiting subsection (1), the General Manager must, in conducting the review and research, consider the effect that the matters referred to in paragraphs (1)(a) to (d) have had, during the period, on the employment (including wages and conditions of employment) of the following persons:

(a) women;

(b) part‑time employees;

(d) mature age persons;

(e) young persons;

(f) any other persons prescribed by the regulations.

Report

(3) The General Manager must give the Minister a written report of the review and research as soon as practicable, and in any event within 6 months, after the end of the period to which it relates.

(4) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

(5) Subsections 34C(4) to (7) of the Acts Interpretation Act 1901 apply to the report as if it were a periodic report as defined in subsection 34C(1) of that Act.

653A Arrangements with the Federal Court and the Federal Magistrates Court

The General Manager may make a written arrangement with the Federal Court or the Federal Magistrates Court for FWA to provide administrative support to the Fair Work Division of the Court.

654 President must provide certain information etc. to the Minister and Fair Work Ombudsman

(1) The President must provide to the Minister and the Fair Work Ombudsman information and copies of documents prescribed by the regulations by the time, and in the form, prescribed.

(2) The regulations may prescribe:

(a) information that is publicly available, or derived from information that is publicly available, relating to:

(i) a decision of FWA that is made under this Act; or

(ii) a notice, notification or application that is made or given to FWA under this Act; and

(b) a decision of FWA that is made under this Act and is publicly available.

655 Disclosure of information by FWA

Information to which this section applies

(1) This section applies to the following information:

(a) information acquired by FWA, or a member of the staff of FWA, in the course of performing functions or exercising powers as FWA;

(b) information acquired by a person in the course of assisting FWA under section 672, or in the course of performing functions, or exercising powers, as a consultant under section 673.

Disclosure that is necessary or appropriate, or likely to assist administration or enforcement

(2) The President may disclose, or authorise the disclosure of, the information if the President reasonably believes:

(a) that it is necessary or appropriate to do so in the course of performing functions, or exercising powers, of FWA; or

(b) that the disclosure is likely to assist in the administration or enforcement of a law of the Commonwealth, a State or a Territory.

Division 8—General Manager, staff and consultants

Subdivision A—Functions of the General Manager

656 Establishment

There is to be a General Manager of Fair Work Australia.

657 Functions and powers of the General Manager

(1) The General Manager is to assist the President in ensuring that FWA performs its functions and exercises its powers.

(1A) The General Manager also has the following functions:

(a) any function conferred on him or her by a fair work instrument;

(b) any function conferred on him or her by a law of the Commonwealth.

Note: Sections 653 and 653A confer additional functions and powers on the General Manager.

(2) The General Manager has power to do all things necessary or convenient to be done for the purpose of performing his or her functions.

658 Directions from the President

Despite the President’s power of direction under section 582, the General Manager is not required to comply with a direction by the President to the extent that:

(a) compliance with the direction would be inconsistent with the General Manager’s performance of functions or exercise of powers under the Financial Management and Accountability Act 1997 in relation to FWA; or

(b) the direction relates to the General Manager’s performance of functions or exercise of powers under the Public Service Act 1999 in relation to FWA; or

(c) the direction relates to the conduct by the General Manager of the review and research, and the preparation of the report, under section 653.

659 General Manager not otherwise subject to direction

Except as provided by this or any other Act, the General Manager is not subject to direction by or on behalf of the Commonwealth.

Subdivision B—Appointment and terms and conditions of the General Manager

660 Appointment of the General Manager

(1) The General Manager is to be appointed by the Governor‑General by written instrument.

(2) The General Manager holds office on a full‑time basis.

(3) The General Manager holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

Note: The General Manager is eligible for reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).

661 Remuneration of the General Manager

(1) The General Manager is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the General Manager is to be paid the remuneration that is prescribed by the regulations.

(2) The General Manager is to be paid the allowances that are prescribed by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

662 Leave of absence of the General Manager

(1) The General Manager has the recreation leave entitlements that are determined by the Remuneration Tribunal.

(2) The Minister may grant the General Manager leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

663 Outside employment of the General Manager

The General Manager must not engage in paid employment outside the duties of his or her office without the President’s approval.

664 Disclosure of interests to the President

The General Manager must give written notice to the President of all interests, pecuniary or otherwise, that the General Manager has or acquires and that conflict or could conflict with the proper performance of the General Manager’s functions.

665 Resignation of the General Manager

(1) The General Manager may resign his or her appointment by giving the Governor‑General a written resignation.

(2) The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.

666 Termination of appointment of the General Manager

(1) The Governor‑General may terminate the appointment of the General Manager:

(a) for misbehaviour; or

(b) if the General Manager is unable to perform the duties of his or her office because of physical or mental incapacity.

(2) The Governor‑General must terminate the appointment of the General Manager if:

(a) the General Manager becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors, or makes an assignment of his or her remuneration for the benefit of his or her creditors; or

(b) the General Manager is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(c) the General Manager engages, except with the President’s approval, in paid employment outside the duties of his or her office (see section 663); or

(d) the General Manager fails, without reasonable excuse, to comply with section 664 (which deals with disclosure of interests to the President).

667 Other terms and conditions of the General Manager

The General Manager holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor‑General.

668 Appointment of acting General Manager

(1) The Minister may, by written instrument, appoint a person to act as the General Manager:

(a) during a vacancy in the office of the General Manager (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the General Manager is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.

Note: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.

(2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the appointment; or

(d) the occasion to act had not arisen or had ceased.

669 Minister to consult the President

The Minister must consult the President before:

(a) a person is appointed as the General Manager under section 660; or

(b) terms and conditions are determined under section 667; or

Subdivision C—Staff and consultants

670 Staff

(1) The staff of FWA must be persons engaged under the Public Service Act 1999.

(2) For the purposes of the Public Service Act 1999:

(a) the General Manager and the staff of FWA together constitute a Statutory Agency; and

(b) the General Manager is the Head of that Statutory Agency.

671 Delegation by General Manager to staff

(1) The General Manager may, in writing, delegate all or any of his or her functions or powers to:

(a) a member of the staff of FWA who is an SES employee or acting SES employee; or

(b) a member of the staff of FWA who is in a class of employees prescribed by the regulations.

(2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the General Manager.

Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

672 Persons assisting FWA

FWA may also be assisted:

(a) by employees of Agencies (within the meaning of the Public Service Act 1999); or

(b) by officers and employees of a State or Territory; or

whose services are made available to FWA in connection with the performance of any of its functions.

673 Consultants

The General Manager may engage persons having suitable qualifications and experience as consultants to FWA.

Division 9—Offences relating to Fair Work Australia

674 Offences in relation to FWA

Insulting or disturbing an FWA Member

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct insults or disturbs an FWA Member in the performance of functions, or the exercise of powers, as an FWA Member.

Penalty: Imprisonment for 12 months.

Using insulting language

(2) A person commits an offence if:

(a) the person uses insulting language towards another person; and

(b) the person is reckless as to whether the language is insulting; and

Penalty: Imprisonment for 12 months.

Interrupting matters before FWA

(3) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct interrupts a matter before FWA.

Penalty: Imprisonment for 12 months.

Creating or continuing a disturbance

(4) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person’s conduct creates, or contributes to creating or continuing, a disturbance; and

Penalty: Imprisonment for 12 months.

Improper influence of FWA Members etc.

(5) A person commits an offence if:

(a) the person uses words (whether by writing or speech) that are intended to improperly influence another person; and

(b) the other person is an FWA Member or a person attending before FWA.

Penalty: Imprisonment for 12 months.

Delegates of FWA

(6) A reference in subsections (1) to (5) to FWA or an FWA Member includes a delegate of FWA.

Adversely affecting public confidence in FWA

(7) A person commits an offence if:

(a) the person publishes a statement; and

(b) the statement implies or states that an FWA Member (whether identified or not) has engaged in misconduct in relation to the performance of functions, or the exercise of powers, as an FWA Member; and

(d) the publication is likely to have a significant adverse effect on public confidence that FWA is properly performing its functions and exercising its powers.

Penalty: 12 months imprisonment.

Note 1: Sections 135.1, 135.4, 139.1, 141.1 and 142.1 of the Criminal Code create offences of using various dishonest means to influence a Commonwealth public official.

Note 2: Sections 676 and 678 of this Act and sections 36A, 37, 38 and 40 of the Crimes Act 1914 create offences relating to interference with a witness. Section 39 of that Act makes it an offence to destroy anything that may be required in evidence.

675 Contravening an FWA order

(1) A person commits an offence if:

(a) FWA has made an order under this Act; and

(b) either of the following applies:

(i) the order applies to the person;

(ii) a term of the order applies to the person; and

(d) the conduct contravenes:

(i) a term of the order referred to in subparagraph (b)(i); or

(ii) the term referred to in subparagraph (b)(ii).

(2) However, subsection (1) does not apply to the following orders:

(a) an order under Part 2‑3 (which deals with modern awards);

(b) a bargaining order;

(d) an order under Part 2‑6 (which deals with minimum wages);

(e) an equal remuneration order;

(f) an order under Part 2‑8 (which deals with transfer of business);

(g) an order under Division 6 of Part 3‑3 (which deals with the suspension or termination of protected industrial action);

(h) a protected action ballot order, or an order in relation to a protected action ballot order or a protected action ballot;

(i) an order under Part 3‑5 (which deals with stand down).

Penalty: Imprisonment for 12 months.

(3) Strict liability applies to paragraphs (1)(a) and (b).

Note: For strict liability, see section 6.1 of the Criminal Code.

676 Intimidation etc.

A person commits an offence if:

(a) the person threatens, intimidates, coerces or prejudices another person; and

(b) the person does so because the other person has given, or proposes to give, information or documents to FWA.

Penalty: Imprisonment for 12 months.

Note: A person may also contravene a civil remedy provision by threatening etc. a person who has given, or proposes to give, information or documents to FWA (see section 343).

677 Offences in relation to attending before FWA

Required to attend

(1) A person commits an offence if:

(a) the person has been required to attend before FWA; and

(b) the person fails to attend as required.

Penalty: Imprisonment for 6 months.

Oath or affirmation

(2) A person commits an offence if:

(a) the person attends before FWA; and

(b) FWA requires the person to take an oath or make an affirmation; and

Penalty: Imprisonment for 6 months.

Questions or documents

(3) A person commits an offence if:

(a) the person attends before FWA; and

(b) FWA requires the person to answer a question or produce a document; and

Penalty: Imprisonment for 6 months.

Reasonable excuse

(4) Subsection (1), (2) or (3) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

(5) A reference in this section to FWA or an FWA Member includes a delegate of FWA.

678 False or misleading evidence

Giving false or misleading evidence

(1) A person (the witness) commits an offence if:

(a) the witness gives sworn or affirmed evidence; and

(b) the witness gives the evidence as a witness:

(i) in a matter before FWA; or

(ii) before a person taking evidence on behalf of FWA for use in a matter that the witness will start by application to FWA; and

Penalty: Imprisonment for 12 months.

Note: A person will not commit an offence if the person carries out the conduct constituting the offence under duress (see section 10.2 of the Criminal Code).

Inducing or coercing another person to give false or misleading evidence

(2) A person (the offender) commits an offence if:

(a) another person (the witness) has been, or will be, required to appear as a witness in a matter before FWA (whether the person is to appear before FWA or a delegate of FWA); and

(b) the offender induces, threatens or intimidates the witness to give false or misleading evidence in the matter.

Penalty: Imprisonment for 12 months.

Part 5‑2—Office of the Fair Work Ombudsman

Division 1—Introduction

679 Guide to this Part

This Part is about the Office of the Fair Work Ombudsman.

Division 2 is about the Fair Work Ombudsman. The Fair Work Ombudsman’s functions include promoting and monitoring compliance with this Act, and providing education, assistance and advice to employees, employers, outworkers, outworker entities and organisations.

Division 3 is about the Office of the Fair Work Ombudsman. The Office of the Fair Work Ombudsman consists of the Fair Work Ombudsman, Fair Work Inspectors and staff.

The inspectors exercise compliance powers for purposes including determining whether this Act is being complied with. The compliance powers include the power to enter certain premises, and to inspect and make copies of documents on the premises.

680 Meanings of employee and employer

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

Division 2—Fair Work Ombudsman

Subdivision A—Establishment and functions and powers of the Fair Work Ombudsman

681 Establishment

There is to be a Fair Work Ombudsman.

682 Functions of the Fair Work Ombudsman

(1) The Fair Work Ombudsman has the following functions:

(a) to promote:

(i) harmonious, productive and cooperative workplace relations; and

(ii) compliance with this Act and fair work instruments;

including by providing education, assistance and advice to employees, employers, outworkers, outworker entities and organisations and producing best practice guides to workplace relations or workplace practices;

(b) to monitor compliance with this Act and fair work instruments;

(c) to inquire into, and investigate, any act or practice that may be contrary to this Act, a fair work instrument or a safety net contractual entitlement;

(d) to commence proceedings in a court, or to make applications to FWA, to enforce this Act, fair work instruments and safety net contractual entitlements;

(e) to refer matters to relevant authorities;

(f) to represent employees or outworkers who are, or may become, a party to proceedings in a court, or a party to a matter before FWA, under this Act or a fair work instrument, if the Fair Work Ombudsman considers that representing the employees or outworkers will promote compliance with this Act or the fair work instrument;

(g) any other functions conferred on the Fair Work Ombudsman by any Act.

Note 1: The Fair Work Ombudsman also has the functions of an inspector (see section 701).

Note 2: In performing functions under paragraph (a), the Fair Work Ombudsman might, for example, produce a best practice guide to achieving productivity through bargaining.

(2) The Fair Work Ombudsman must consult with FWA in producing guidance material that relates to the functions of FWA.

683 Delegation by the Fair Work Ombudsman

(1) The Fair Work Ombudsman may, in writing, delegate to a member of the staff of the Office of the Fair Work Ombudsman or to an inspector all or any of the Fair Work Ombudsman’s functions or powers under any Act (other than his or her functions or powers as an inspector).

(2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Fair Work Ombudsman.

684 Directions from the Minister

(1) The Minister may, by legislative instrument, give written directions to the Fair Work Ombudsman about the performance of his or her functions.

Note: Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative Instruments Act 2003 do not apply to the direction (see sections 44 and 54 of that Act).

(2) The direction must be of a general nature only.

(3) The Fair Work Ombudsman must comply with the direction.

(4) The Fair Work Ombudsman is not required to comply with the direction to the extent that it relates to the Fair Work Ombudsman’s performance of functions, or exercise of powers, under the Public Service Act 1999 in relation to the Office of the Fair Work Ombudsman.

685 Minister may require reports

(1) The Minister may, in writing, direct the Fair Work Ombudsman to give the Minister specified reports relating to the Fair Work Ombudsman’s functions.

(2) The Fair Work Ombudsman must comply with the direction.

(3) The direction, or the report (if made in writing), is not a legislative instrument.

686 Annual report

(1) The Fair Work Ombudsman must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on the operations of the Office of the Fair Work Ombudsman during that year.

Note: See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.

(2) To avoid doubt, subsection (1) does not require or authorise the disclosure of information for the purposes of the Privacy Act 1988.

Subdivision B—Appointment and terms and conditions of the Fair Work Ombudsman

687 Appointment of the Fair Work Ombudsman

(1) The Fair Work Ombudsman is to be appointed by the Governor‑General by written instrument.

(2) Before the Governor‑General appoints a person as the Fair Work Ombudsman, the Minister must be satisfied that the person:

(a) has suitable qualifications or experience; and

(b) is of good character.

(3) The Fair Work Ombudsman holds office on a full‑time basis.

(4) The Fair Work Ombudsman holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

Note: The Fair Work Ombudsman is eligible for reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).

688 Remuneration of the Fair Work Ombudsman

(1) The Fair Work Ombudsman is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Fair Work Ombudsman is to be paid the remuneration that is prescribed by the regulations.

(2) The Fair Work Ombudsman is to be paid the allowances that are prescribed by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

689 Leave of absence of the Fair Work Ombudsman

(1) The Fair Work Ombudsman has the recreation leave entitlements that are determined by the Remuneration Tribunal.

(2) The Minister may grant the Fair Work Ombudsman leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

690 Outside employment of the Fair Work Ombudsman

The Fair Work Ombudsman must not engage in paid employment outside the duties of his or her office without the Minister’s approval.

691 Disclosure of interests to the Minister

The Fair Work Ombudsman must give written notice to the Minister of all interests, pecuniary or otherwise, that the Fair Work Ombudsman has or acquires and that conflict or could conflict with the proper performance of the Fair Work Ombudsman’s functions.

692 Resignation of the Fair Work Ombudsman

(1) The Fair Work Ombudsman may resign his or her appointment by giving the Governor‑General a written resignation.

(2) The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.

693 Termination of appointment of the Fair Work Ombudsman

(1) The Governor‑General may terminate the appointment of the Fair Work Ombudsman:

(a) for misbehaviour; or

(b) if the Fair Work Ombudsman is unable to perform the duties of his or her office because of physical or mental incapacity.

(2) The Governor‑General must terminate the appointment of the Fair Work Ombudsman if:

(a) the Fair Work Ombudsman becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors, or makes an assignment of his or her remuneration for the benefit of his or her creditors; or

(b) the Fair Work Ombudsman is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(c) the Fair Work Ombudsman engages, except with the Minister’s approval, in paid employment outside the duties of his or her office (see section 690); or

(d) the Fair Work Ombudsman fails, without reasonable excuse, to comply with section 691 (which deals with disclosure of interests to the Minister).

694 Other terms and conditions of the Fair Work Ombudsman

The Fair Work Ombudsman holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor‑General.

695 Appointment of acting Fair Work Ombudsman

(1) The Minister may, by written instrument, appoint a person who is qualified for appointment as the Fair Work Ombudsman to act as the Fair Work Ombudsman:

(a) during a vacancy in the office of Fair Work Ombudsman (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the Fair Work Ombudsman is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.

Note: See also section 33A of the Acts Interpretation Act 1901, which contains extra rules about acting appointments.

(2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the appointment; or

(d) the occasion to act had not arisen or had ceased.

Division 3—Office of the Fair Work Ombudsman

Subdivision A—Establishment of the Office of the Fair Work Ombudsman

696 Establishment of the Office of the Fair Work Ombudsman

(1) The Office of the Fair Work Ombudsman is established by this section.

(2) The Office of the Fair Work Ombudsman consists of:

(a) the Fair Work Ombudsman; and

(b) the staff of the Office of the Fair Work Ombudsman; and

Subdivision B—Staff and consultants etc.

697 Staff

(1) The staff of the Office of the Fair Work Ombudsman must be persons engaged under the Public Service Act 1999.

(2) For the purposes of the Public Service Act 1999:

(a) the Fair Work Ombudsman and the staff of the Office of the Fair Work Ombudsman together constitute a Statutory Agency; and

(b) the Fair Work Ombudsman is the Head of that Statutory Agency.

698 Persons assisting the Fair Work Ombudsman

The Fair Work Ombudsman may also be assisted:

(a) by employees of Agencies (within the meaning of the Public Service Act 1999); or

(b) by officers and employees of a State or Territory; or

whose services are made available to the Fair Work Ombudsman in connection with the performance of any of his or her functions.

Note: For example, State or Territory employees could be made available to assist the Fair Work Ombudsman in providing education in a particular region.

699 Consultants

The Fair Work Ombudsman may engage persons having suitable qualifications and experience as consultants to the Office of the Fair Work Ombudsman.

Subdivision C—Appointment of Fair Work Inspectors

700 Appointment of Fair Work Inspectors

(1) The Fair Work Ombudsman may, in writing, appoint as a Fair Work Inspector:

(a) a person who has been appointed, or who is employed, by the Commonwealth; or

(b) a person who is employed by a State or Territory.

(2) The Fair Work Ombudsman may appoint a person as a Fair Work Inspector only if the Fair Work Ombudsman is satisfied that the person is of good character.

(3) A Fair Work Inspector is appointed for the period specified in the instrument of appointment. The period must not exceed 4 years.

Note: A Fair Work Inspector is eligible for reappointment (see subsection 33(4A) of the Acts Interpretation Act 1901).

701 Fair Work Ombudsman is a Fair Work Inspector

The Fair Work Ombudsman is a Fair Work Inspector by force of this section.

702 Identity cards

(1) The Fair Work Ombudsman must issue an identity card to an inspector appointed under section 700.

(2) The Minister must issue an identity card to the Fair Work Ombudsman.

Form of identity card

(3) The identity card must:

(a) be in the form approved by the Fair Work Ombudsman; and

(b) contain a recent photograph of the inspector.

Inspector must carry card

(4) An inspector must carry the identity card at all times when performing functions or exercising powers as an inspector.

Offence

(5) A person commits an offence if:

(a) the person ceases to be an inspector; and

(b) the person does not, within 14 days of so ceasing, return the person’s identity card to the Fair Work Ombudsman or the Minister (as the case may be).

Penalty: 1 penalty unit.

(6) Subsection (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Defence—card lost or destroyed

(7) Subsection (5) does not apply if the identity card was lost or destroyed.

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

Subdivision D—Functions and powers of Fair Work Inspectors

703 Conditions and restrictions on functions and powers

The functions, and powers (compliance powers), conferred on an inspector are subject to such conditions and restrictions as are specified in his or her instrument of appointment.

704 General directions by the Fair Work Ombudsman

(1) The Fair Work Ombudsman may, by legislative instrument, give a written direction to inspectors relating to the performance of their functions or the exercise of their powers as inspectors.

(2) The direction must be of a general nature only, and cannot relate to a particular case.

(3) An inspector must comply with the direction.

705 Particular directions by the Fair Work Ombudsman

(1) The Fair Work Ombudsman may give a direction to an inspector relating to the performance of the inspector’s functions or the exercise of the inspector’s powers as an inspector.

(2) The inspector must comply with the direction.

(3) If a direction is in writing, the direction is not a legislative instrument.

706 Purpose for which powers of inspectors may be exercised

(1) An inspector may exercise compliance powers (other than a power under section 715 or 716) for one or more of the following purposes (compliance purposes):

(a) determining whether this Act or a fair work instrument is being, or has been, complied with;

(b) subject to subsection (2), determining whether a safety net contractual entitlement is being, or has been, contravened by a person;

(d) the purposes of a provision of another Act that confers functions or powers on inspectors.

Note: The powers in sections 715 (which deals with enforceable undertakings) and 716 (which deals with compliance notices) may be exercised for the purpose of remedying the effects of certain contraventions.

(2) An inspector may exercise compliance powers for the purpose referred to in paragraph (1)(b) only if the inspector reasonably believes that the person has contravened one or more of the following:

(a) a provision of the National Employment Standards;

(b) a term of a modern award;

(d) a term of a workplace determination;

(e) a term of a national minimum wage order;

(f) a term of an equal remuneration order.

707 When powers of inspectors may be exercised

An inspector may exercise compliance powers:

(a) at any time during working hours; or

(b) at any other time, if the inspector reasonably believes that it is necessary to do so for compliance purposes.

708 Power of inspectors to enter premises

(1) An inspector may, without force:

(a) enter premises, if the inspector reasonably believes that this Act or a fair work instrument applies to work that is being, or applied to work that has been, performed on the premises; or

(b) enter business premises, if the inspector reasonably believes that there are records or documents relevant to compliance purposes on the premises, or accessible from a computer on the premises.

(2) Despite paragraph (1)(a), an inspector must not enter a part of premises that is used for residential purposes unless the inspector reasonably believes that the work referred to in that paragraph is being performed on that part of the premises.

(3) The inspector must, either before or as soon as practicable after entering premises, show his or her identity card to the occupier, or another person who apparently represents the occupier, if the occupier or other person is present at the premises.

709 Powers of inspectors while on premises

The inspector may exercise one or more of the following powers while on the premises:

(a) inspect any work, process or object;

(b) interview any person;

(d) require a person who has the custody of, or access to, a record or document to produce the record or document to the inspector either while the inspector is on the premises, or within a specified period;

(e) inspect, and make copies of, any record or document that:

(i) is kept on the premises; or

(ii) is accessible from a computer that is kept on the premises;

(f) take samples of any goods or substances in accordance with any procedures prescribed by the regulations.

Note: See also sections 713 and 714 (which deal with self‑incrimination and produced documents etc.).

710 Persons assisting inspectors

(1) A person (the assistant) may accompany the inspector onto the premises to assist the inspector if the Fair Work Ombudsman is satisfied that:

(a) the assistance is necessary and reasonable; and

(b) the assistant has suitable qualifications and experience to properly assist the inspector.

(2) The assistant:

(a) may do such things on the premises as the inspector requires to assist the inspector to exercise compliance powers; but

(b) must not do anything that the inspector does not have power to do.

(3) Anything done by the assistant is taken for all purposes to have been done by the inspector.

711 Power to ask for person’s name and address

(1) An inspector may require a person to tell the inspector the person’s name and address if the inspector reasonably believes that the person has contravened a civil remedy provision.

(2) If the inspector reasonably believes that the name or address is false, the inspector may require the person to give evidence of its correctness.

(3) A person must comply with a requirement under subsection (1) or (2) if:

(a) the inspector advises the person that he or she may contravene a civil remedy provision if he or she fails to comply with the requirement; and

(b) the inspector shows his or her identity card to the person.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(4) Subsection (3) does not apply if the person has a reasonable excuse.

712 Power to require persons to produce records or documents

(1) An inspector may require a person, by notice, to produce a record or document to the inspector.

(2) The notice must:

(a) be in writing; and

(b) be served on the person; and

(c) require the person to produce the record or document at a specified place within a specified period of at least 14 days.

The notice may be served by sending the notice to the person’s fax number.

(3) A person who is served with a notice to produce must not fail to comply with the notice.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(4) Subsection (3) does not apply if the person has a reasonable excuse.

713 Self‑incrimination

(1) A person is not excused from producing a record or document under paragraph 709(d), or subsection 712(1), on the ground that the production of the record or document might tend to incriminate the person or expose the person to a penalty.

(2) However, in the case of an individual none of the following are admissible in evidence against the individual in criminal proceedings:

(a) the record or document produced;

(b) producing the record or document;

(d) any record or document that is inspected or copied under paragraph 709(e);

(e) any information, document or thing obtained as a direct or indirect consequence of inspecting or copying a record or document under paragraph 709(e).

714 Power to keep records or documents

(1) If a record or document is produced to an inspector in accordance with this Subdivision, the inspector may:

(a) inspect, and make copies of, the record or document; and

(b) keep the record or document for such period as is necessary.

(2) While an inspector keeps a record or document, the inspector must allow the following persons to inspect, or make copies of, the record or document at all reasonable times:

(a) the person who produced the record or document;

(b) any person otherwise entitled to possession of the record or document;

715 Enforceable undertakings relating to contraventions of civil remedy provisions

Application of this section

(1) This section applies if the Fair Work Ombudsman reasonably believes that a person has contravened a civil remedy provision.

Accepting an undertaking

(2) The Fair Work Ombudsman may accept a written undertaking given by the person in relation to the contravention, except as provided by subsection (5).

Withdrawing or varying an undertaking

(3) The person may withdraw or vary the undertaking at any time, but only with the Fair Work Ombudsman’s consent.

Relationship with orders in relation to contraventions of civil remedy provisions

(4) An inspector must not apply for an order under Division 2 of Part 4‑1 in relation to a contravention of a civil remedy provision by a person if an undertaking given by the person under this section in relation to the contravention has not been withdrawn.

Note: A person other than an inspector who is otherwise entitled to apply for an order in relation to the contravention may do so.

Relationship with compliance notices

(5) The Fair Work Ombudsman must not accept an undertaking in relation to a contravention if the person has been given a notice in relation to the contravention under section 716.

Enforcement of undertakings

(6) If the Fair Work Ombudsman considers that the person who gave the undertaking has contravened any of its terms, the Fair Work Ombudsman may apply to the Federal Court, the Federal Magistrates Court or an eligible State or Territory Court for an order under subsection (7).

(7) If the court is satisfied that the person has contravened a term of the undertaking, the court may make one or more of the following orders:

(a) an order directing the person to comply with the term of the undertaking;

(b) an order awarding compensation for loss that a person has suffered because of the contravention;

716 Compliance notices

Application of this section

(1) This section applies if an inspector reasonably believes that a person has contravened one or more of the following:

(a) a provision of the National Employment Standards;

(b) a term of a modern award;

(d) a term of a workplace determination;

(e) a term of a national minimum wage order;

(f) a term of an equal remuneration order.

Giving a notice

(2) The inspector may, except as provided by subsection (4), give the person a notice requiring the person to do either or both of the following within such reasonable time as is specified in the notice:

(a) take specified action to remedy the direct effects of the contravention referred to in subsection (1);

(b) produce reasonable evidence of the person’s compliance with the notice.

(3) The notice must also:

(a) set out the name of the person to whom the notice is given; and

(b) set out the name of the inspector who gave the notice; and

(d) explain that a failure to comply with the notice may contravene a civil remedy provision; and

(e) explain that the person may apply to the Federal Court, the Federal Magistrates Court or an eligible State or Territory Court for a review of the notice on either or both of the following grounds:

(i) the person has not committed a contravention set out in the notice;

(ii) the notice does not comply with subsection (2) or this subsection; and

(f) set out any other matters prescribed by the regulations.

Relationship with enforceable undertakings

(4) An inspector must not give a person a notice in relation to a contravention if:

(a) the person has given an undertaking under section 715 in relation to the contravention; and

(b) the undertaking has not been withdrawn.

Relationship with civil remedy provisions

(4A) An inspector must not apply for an order under Division 2 of Part 4‑1 in relation to a contravention of a civil remedy provision by a person if:

(a) the inspector has given the person a notice in relation to the contravention; and

(b) either of the following subparagraphs applies:

(i) the notice has not been withdrawn, and the person has complied with the notice;

(ii) the person has made an application under section 717 in relation to the notice that has not been completely dealt with.

Note: A person other than an inspector who is otherwise entitled to apply for an order in relation to the contravention may do so.

(4B) A person who complies with a notice in relation to a contravention of a civil remedy provision is not taken:

(a) to have admitted to contravening the provision; or

(b) to have been found to have contravened the provision.

Person must not fail to comply with notice

(5) A person must not fail to comply with a notice given under this section.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(6) Subsection (5) does not apply if the person has a reasonable excuse.

717 Review of compliance notices

(1) A person who has been given a notice under section 716 may apply to the Federal Court, the Federal Magistrates Court or an eligible State or Territory Court for a review of the notice on either or both of the following grounds:

(a) the person has not committed a contravention set out in the notice;

(b) the notice does not comply with subsection 716(2) or (3).

(2) At any time after the application has been made, the court may stay the operation of the notice on the terms and conditions that the court considers appropriate.

(3) The court may confirm, cancel or vary the notice after reviewing it.

Subdivision E—Disclosure of information by the Office of the Fair Work Ombudsman

718 Disclosure of information by the Office of the Fair Work Ombudsman

Information to which this section applies

(1) This section applies to the following information:

(a) information acquired by the Fair Work Ombudsman in the course of performing functions, or exercising powers, as the Fair Work Ombudsman;

(b) information acquired by an inspector in the course of performing functions, or exercising powers, as an inspector;

(c) information acquired by a member of the staff of the Office of the Fair Work Ombudsman in the course of performing functions, or exercising powers, as a member of that staff;

(d) information acquired by a person in the course of assisting the Fair Work Ombudsman under section 698, or in the course of performing functions, or exercising powers, as a consultant under section 699;

(e) information acquired by a person in the course of assisting an inspector under section 710.

Disclosure that is necessary or appropriate, or likely to assist administration or enforcement

(2) The Fair Work Ombudsman may disclose, or authorise the disclosure of, the information if the Fair Work Ombudsman reasonably believes:

(a) that it is necessary or appropriate to do so in the course of performing functions, or exercising powers, under this Act; or

(b) that the disclosure is likely to assist in the administration or enforcement of a law of the Commonwealth, a State or a Territory.

Disclosure to the Minister

(3) The Fair Work Ombudsman may disclose, or authorise the disclosure of, the information to the Minister if the Fair Work Ombudsman reasonably believes that the disclosure is likely to assist the Minister to consider a complaint or issue in relation to a matter arising under this Act.

Disclosure to the Department

(4) The Fair Work Ombudsman may disclose, or authorise the disclosure of, the information to:

(a) the Secretary of the Department; or

(b) an SES employee, or an APS employee, in the Department;

for the purpose of briefing, or considering briefing, the Minister if the Fair Work Ombudsman reasonably believes the disclosure is likely to assist the Minister to consider a complaint or issue in relation to a matter arising under this Act.

Chapter 6—Miscellaneous

Part 6‑1—Multiple actions

Division 1—Introduction

719 Guide to this Part

This Part provides rules relating to applications for remedies under this Act.

Division 2 prevents certain applications where other remedies are available.

Division 3 prevents multiple applications or complaints in relation to the same conduct.

720 Meanings of employee and employer

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

Division 2—Certain actions not permitted if alternative action can be taken

721 Equal remuneration applications

(1) FWA must not deal with an application for an equal remuneration order if FWA is satisfied that there is available to the employees to whom the order will apply, an adequate alternative remedy that:

(a) exists under a law of the Commonwealth (other than Part 2‑7) or a law of a State or Territory; and

(b) will ensure equal remuneration for work of equal or comparable value for those employees.

(2) A remedy that:

(a) exists under a law of the Commonwealth, a State or a Territory relating to discrimination in relation to employment; and

(b) consists solely of compensation for past actions;

is not an adequate alternative remedy for the purposes of this section.

722 Notification and consultation requirements applications

FWA must not make an order under subsection 532(1) or 787(1) if FWA is satisfied that there is available to the applicant, or to the employees represented by the applicant, an alternative remedy that:

(a) exists under a law of the Commonwealth (other than Division 2 of Part 3‑6 or Division 5 of Part 6‑1) or a law of a State or Territory; and

(b) will give effect, in relation to the employees and registered employee associations concerned, to the requirements of Article 13 of the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer, done at Geneva on 22 June 1982 ([1994] ATS 4).

Note: In 2009, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

723 Unlawful termination applications

A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.

Division 3—Preventing multiple actions

Subdivision A—Equal remuneration applications

724 Equal remuneration applications

(1) FWA must not deal with an application for an equal remuneration order in relation to an employee if proceedings for an alternative remedy:

(a) to ensure equal remuneration for work of equal or comparable value for the employee; or

(b) against unequal remuneration for work of equal or comparable value for the employee;

have commenced under a law of the Commonwealth (other than Part 2‑7) or a law of a State or Territory.

(2) Subsection (1) does not prevent FWA from dealing with the application if the proceedings for the alternative remedy:

(a) have been discontinued by the party who commenced the proceedings; or

(b) have failed for want of jurisdiction.

(3) If an application has been made to FWA for an equal remuneration order in relation to an employee, a person is not entitled to commence proceedings for an alternative remedy under a law of the Commonwealth (other than Part 2‑7) or a law of a State or Territory:

(a) to ensure equal remuneration for work of equal or comparable value for the employee; or

(b) against unequal remuneration for work of equal or comparable value for the employee.

(4) Subsection (3) does not prevent a person from commencing proceedings for an alternative remedy if:

(a) the applicant has discontinued the application for the equal remuneration order; or

(b) the application has failed for want of jurisdiction.

(5) A remedy that:

(a) exists under a law of the Commonwealth, a State or a Territory relating to discrimination in relation to employment; and

(b) consists solely of compensation for past actions;

is not an alternative remedy for the purposes of this section.

Subdivision B—Applications and complaints relating to dismissal

725 General rule

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.

726 Dismissal remedy bargaining order applications

(1) This section applies if:

(a) a dismissal remedy bargaining order application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction.

(2) A dismissal remedy bargaining order application is an application for a bargaining order made on the ground that the person was dismissed in contravention of the good faith bargaining requirement in paragraph 228(1)(e).

727 General protections FWA applications

(1) This section applies if:

(a) a general protections FWA application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) resulted in the issue of a certificate under section 369 (which provides for FWA to issue a certificate if FWA is satisfied that all reasonable attempts to resolve a dispute have been, or are likely to be, unsuccessful).

(2) A general protections FWA application is an application under section 365 for FWA to deal with a dispute that relates to dismissal.

728 General protections court applications

This section applies if:

(a) a general protections court application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction.

729 Unfair dismissal applications

(1) This section applies if:

(a) an unfair dismissal application has been made by the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) failed because FWA was satisfied that the dismissal was a case of genuine redundancy.

(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.

730 Unlawful termination FWA applications

(1) This section applies if:

(a) an unlawful termination FWA application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) resulted in the issue of a certificate under section 777 (which provides for FWA to issue a certificate if FWA is satisfied that all reasonable attempts to resolve a dispute have been, or are likely to be, unsuccessful).

(2) An unlawful termination FWA application is an application under section 773 for FWA to deal with a dispute that relates to dismissal.

731 Unlawful termination court applications

This section applies if:

(a) an unlawful termination court application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction.

732 Applications and complaints under other laws

(1) This section applies if:

(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application or complaint has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction.

(2) An application or complaint under another law is an application or complaint made under:

(a) a law of the Commonwealth (other than this Act); or

(b) a law of a State or Territory.

(3) For the purposes of this Subdivision, if a complaint under the Human Rights and Equal Opportunity Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.

733 Dismissal does not include failure to provide benefits

For the purposes of this Subdivision, a reference to an application or complaint made in relation to a dismissal does not include a reference to an application or complaint made only in relation to failure by the employer concerned to provide a benefit to which the dismissed person is entitled as a result of the dismissal.

Subdivision C—General protections applications that do not relate to dismissal

734 General rule

(1) A person must not make a general protections court application in relation to conduct that does not involve the dismissal of the person if:

(a) an application or complaint under an anti‑discrimination law has been made by, or on behalf of, the person in relation to the conduct; and

(b) the application or complaint has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction.

(2) A person must not make an application or complaint under an anti‑discrimination law in relation to conduct that does not involve the dismissal of the person if:

(a) a general protections court application has been made by, or on behalf of, the person in relation to the conduct; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction.

Part 6‑2—Dealing with disputes

Division 1—Introduction

735 Guide to this Part

This Part is about dealing with disputes between national system employees and their employers.

Division 2 deals with the powers of FWA and other persons to deal with a dispute if a modern award, enterprise agreement or contract of employment includes a term that provides for FWA or the person to deal with the dispute.

736 Meanings of employee and employer

In this Part, employee means a national system employee, and employer means a national system employer.

Division 2—Dealing with disputes

Subdivision A—Model term about dealing with disputes

737 Model term about dealing with disputes

The regulations must prescribe a model term for dealing with disputes for enterprise agreements.

Subdivision B—Dealing with disputes

738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

739 Disputes dealt with by FWA

(1) This section applies if a term referred to in section 738 requires or allows FWA to deal with a dispute.

(2) FWA must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to FWA dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises FWA to deal with the matter.

Note: This does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, FWA must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that FWA may arbitrate (however described) the dispute, FWA may do so.

Note: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), FWA must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) FWA may deal with a dispute only on application by a party to the dispute.

740 Dispute dealt with by persons other than FWA

(1) This section applies if a term referred to in section 738 requires or allows a person other than FWA to deal with a dispute.

(2) The person must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the person dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the person to deal with the matter.

Note: This does not prevent a person from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) If, in accordance with the term, the parties have agreed that the person may arbitrate (however described) the dispute, the person may do so.

(4) Despite subsection (3), the person must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

Part 6‑3—Extension of National Employment Standards entitlements

Division 1—Introduction

741 Guide to this Part

This Part contains Divisions that extend some National Employment Standards entitlements to non‑national system employees.

Division 2 extends the entitlements to unpaid parental leave, and related entitlements.

Division 3 extends the entitlements to notice of termination or payment in lieu of notice.

742 Meanings of employee and employer

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

Division 2—Extension of entitlement to unpaid parental leave and related entitlements

Subdivision A—Main provisions

743 Object of this Division

The object of this Division is to give effect, or further effect, to:

(a) the ILO Convention (No. 156) concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities, done at Geneva on 23 June 1981 ([1991] ATS 7); and

(b) the Workers with Family Responsibilities Recommendation, 1981 (Recommendation No. R165) which the General Conference of the ILO adopted on 23 June 1981;

by providing for a system of unpaid parental leave and related entitlements, that will help men and women workers who have responsibilities in relation to their dependent children:

(d) to reconcile their employment and family responsibilities.

Note 1: In 2009, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

Note 2: In 2009, the text of a Recommendation adopted by the General Conference of the ILO was accessible through the ILO website (www.ilo.org).

744 Extending the entitlement to unpaid parental leave and related entitlements

Extension of Division 5 of Part 2‑2 and related provisions

(1) The provisions of Division 5 of Part 2‑2, and the related provisions identified in subsection (2), apply in relation to a non‑national system employee as if:

(a) any reference in the provisions to a national system employee also included a reference to a non‑national system employee; and

(b) any reference in the provisions to a national system employer also included a reference to a non‑national system employer.

Note 1: Division 5 of Part 2‑2 provides for unpaid parental leave and related entitlements.

Note 2: This subsection applies to express references to national system employees and national system employers, and to references that are to national system employees and national system employers because of section 60 or another similar section.

(2) The related provisions are the following, so far as they apply in relation to Division 5 of Part 2‑2 as it applies because of subsection (1):

(a) the provisions of Divisions 2 and 13 of Part 2‑2;

(b) any other provisions of this Act prescribed by the regulations;

(c) any provisions of this Act that define expressions that are used (directly or indirectly) in provisions of Division 5 of Part 2‑2, or in provisions referred to in paragraph (a) or (b) of this subsection.

Modifications are set out in Subdivision B

(3) The extended parental leave provisions have effect subject to the modifications provided for in Subdivision B. The extended parental leave provisions are the provisions of Division 5 of Part 2‑2, and the related provisions identified in subsection (2) of this section, as they apply because of this section.

Regulations made for the purpose of provisions

(4) Subsection (1) also applies to any regulations made for the purpose of a provision to which that subsection applies, other than a provision that is modified by Subdivision B.

745 Contravening the extended parental leave provisions

(1) A non‑national system employer must not contravene the extended parental leave provisions.

Note 1: This subsection is a civil remedy provision (see Part 4‑1).

Note 2: The extended parental leave provisions also affect national system employers (including as section 44 applies to them) and their national system employees. This is because the provisions may result in a national system employee, and a non‑national system employee, being an employee couple.

(2) However, an order cannot be made under Division 2 of Part 4‑1 in relation to a contravention (or alleged contravention) of subsection 76(4).

Note: Subsection 76(4) states that an employer may refuse an application to extend unpaid parental leave only on reasonable business grounds.

746 References to the National Employment Standards include extended parental leave provisions

A reference in this Act, or another law of the Commonwealth, to the National Employment Standards includes a reference to the extended parental leave provisions.

747 State and Territory laws that are not excluded

This Act is not intended to apply to the exclusion of laws of a State or Territory that provide employee entitlements in relation to the birth or adoption of children, to the extent that those laws:

(a) apply to non‑national system employees; and

(b) provide entitlements for those employees that are more beneficial than the entitlements under the extended parental leave provisions.

Subdivision B—Modifications of the extended parental leave provisions

748 Non‑national system employees are not award/agreement free employees

A non‑national system employee is not an award/agreement free employee for the purpose of the extended parental leave provisions.

749 Modification of meaning of base rate of pay for pieceworkers

Section 16 has effect as if the following paragraph were added at the end of subsection 16(2):

(d) the employee is a non‑national system employee, and the regulations prescribe, or provide for the determination of, the employee’s base rate of pay for the purposes of the extended parental leave provisions.

750 Modification of meaning of full rate of pay for pieceworkers

Section 18 has effect as if the following paragraph were added at the end of subsection 18(2):

(d) the employee is a non‑national system employee, and the regulations prescribe, or provide for the determination of, the employee’s full rate of pay for the purposes of the extended parental leave provisions.

751 Modification of meaning of ordinary hours of work—if determined by State industrial instrument

Section 20 has effect as if the following subsection were inserted before subsection 20(1):

(1A) If a State industrial instrument applies to a non‑national system employee and specifies, or provides for the determination of, the employee’s ordinary hours of work, the employee’s ordinary hours of work are as specified in, or determined in accordance with, that instrument.

752 Modification of meaning of ordinary hours of work—if not determined by State industrial instrument

Section 20 has effect as if references in subsections 20(1), (2) and (3) to an award/agreement free employee also included references to a non‑national system employee to whom either of the following paragraphs applies:

(a) a State industrial instrument applies to the employee, but it does not specify, or provide for the determination of, the employee’s ordinary hours of work;

(b) no State industrial instrument applies to the employee.

753 Modification of meaning of ordinary hours of work—regulations may prescribe usual weekly hours

Section 20 has effect as if the following subsection were added at the end:

(5) For a non‑national system employee:

(a) who is not a full‑time employee; and

(b) who does not have usual weekly hours of work; and

(i) a State industrial instrument applies to the employee, but it does not specify, or provide for the determination of, the employee’s ordinary hours of work;

(ii) no State industrial instrument applies to the employee;

the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of the extended parental leave provisions.

754 Modification of meaning of pieceworker

Section 21 has effect as if the following paragraph were added at the end of subsection 21(1):

(d) a non‑national system employee who is in a class of employees prescribed by the regulations as pieceworkers for the purpose of the extended parental leave provisions.

755 Modification of provision about interaction with paid leave

Section 79 applies as if subsections 79(2) and (3) were omitted.

756 Modification of provision about relationship between National Employment Standards and agreements

Section 128 has effect as if references to an award/agreement free employee also included references to a non‑national system employee.

757 Modification of power to make regulations

Section 129 has effect as if the following subsection were added at the end:

(2) The regulations may:

(a) permit non‑national system employers and non‑national system employees to agree on matters that would or might otherwise be contrary to an extended parental leave provision; and

(b) prohibit such employers and employees from agreeing on matters, or prohibit such employers from making requirements of such employees, that would or might otherwise be permitted by an extended parental leave provision.

Division 3—Extension of entitlement to notice of termination or payment in lieu of notice

Subdivision A—Main provisions

758 Object of this Division

The object of this Division is to give effect, or further effect, to:

(a) the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer, done at Geneva on 22 June 1982 ([1994] ATS 4); and

(b) the Termination of Employment Recommendation, 1982 (Recommendation No. R166) which the General Conference of the ILO adopted on 22 June 1982.

Note 1: In 2009, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

Note 2: In 2009, the text of a Recommendation adopted by the General Conference of the ILO was accessible through the ILO website (www.ilo.org).

759 Extending entitlement to notice of termination or payment in lieu of notice

Extension of Subdivision A of Division 11 of Part 2‑2 and related provisions

(1) The provisions of Subdivision A of Division 11 of Part 2‑2, and the related provisions identified in subsection (2), apply in relation to a non‑national system employee as if:

(a) any reference in the provisions to a national system employee also included a reference to a non‑national system employee; and

(b) any reference in the provisions to a national system employer also included a reference to a non‑national system employer.

Note 1: Subdivision A of Division 11 of Part 2‑2 provides for notice of termination or payment in lieu of notice.

(2) The related provisions are the following, so far as they apply in relation to Subdivision A of Division 11 of Part 2‑2 as it applies because of subsection (1):

(a) the provisions of Division 2, Subdivision C of Division 11, and Division 13, of Part 2‑2;

(b) any other provisions of this Act prescribed by the regulations;

(c) any provisions of this Act that define expressions that are used (directly or indirectly) in provisions of Subdivision A of Division 11 of Part 2‑2, or in provisions referred to in paragraph (a) or (b) of this subsection.

Modifications are set out in Subdivision B

(3) The extended notice of termination provisions have effect subject to the modifications provided for in Subdivision B. The extended notice of termination provisions are the provisions of Subdivision A of Division 11 of Part 2‑2, and the related provisions identified in subsection (2) of this section, as they apply because of this section.

Regulations made for the purpose of provisions

(4) Subsection (1) also applies to any regulations made for the purpose of a provision to which that subsection applies, other than a provision that is modified by Subdivision B.

760 Contravening the extended notice of termination provisions

A non‑national system employer must not contravene the extended notice of termination provisions.

Note: This section is a civil remedy provision (see Part 4‑1).

761 References to the National Employment Standards include extended notice of termination provisions

A reference in this Act, or another law of the Commonwealth, to the National Employment Standards includes a reference to the extended notice of termination provisions.

762 State and Territory laws that are not excluded

This Act is not intended to apply to the exclusion of laws of a State or Territory that provide employee entitlements relating to notice of termination of employment (or payment in lieu of notice), to the extent that those laws:

(a) apply to non‑national system employees; and

(b) provide entitlements for those employees that are more beneficial than the entitlements under the extended notice of termination provisions.

Subdivision B—Modifications of the extended notice of termination provisions

763 Non‑national system employees are not award/agreement free employees

A non‑national system employee is not an award/agreement free employee for the purpose of the extended notice of termination provisions.

764 Modification of meaning of full rate of pay for pieceworkers

Section 18 has effect as if the following paragraph were added at the end of subsection 18(2):

765 Modification of meaning of pieceworker

Section 21 has effect as if the following paragraph were added at the end of subsection 21(1):

(d) a non‑national system employee who is in a class of employees prescribed by the regulations as pieceworkers for the purpose of the extended notice of termination provisions.

766 Modification of provision about notice of termination by employee

Section 118 has effect as if the following subsection were added at the end:

(2) A State industrial instrument may include terms specifying the period of notice a non‑national system employee must give in order to terminate his or her employment.

767 Modification of provision about relationship between National Employment Standards and agreements

Section 128 has effect as if references to an award/agreement free employee also included references to a non‑national system employee.

768 Modification of power to make regulations

Section 129 has effect as if the following subsection were added at the end:

(2) The regulations may:

(a) permit non‑national system employers and non‑national system employees to agree on matters that would or might otherwise be contrary to an extended notice of termination provision; and

Part 6‑4—Additional provisions relating to termination of employment

Division 1—Introduction

769 Guide to this Part

This Part contains provisions to give effect, or further effect, to certain international agreements relating to discrimination and termination of employment.

Division 2 makes it unlawful for an employer to terminate an employee’s employment for certain reasons. Division 2 also deals with compliance. In most cases, a dispute that involves the termination of an employee’s employment will be dealt with by a court only if the dispute has not been resolved by FWA.

Division 3 sets out notification and consultation requirements in relation to certain terminations of employment.

770 Meanings of employee and employer

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

Division 2—Termination of employment

771 Object of this Division

The object of this Division is to give effect, or further effect, to:

(a) the ILO Convention (No. 111) concerning Discrimination in respect of Employment and Occupation, done at Geneva on 25 June 1958 ([1974] ATS 12); and

(b) the ILO Convention (No. 156) concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities, done at Geneva on 23 June 1981 ([1991] ATS 7); and

(c) the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer, done at Geneva on 22 June 1982 ([1994] ATS 4); and

(d) the Termination of Employment Recommendation, 1982 (Recommendation No. R166) which the General Conference of the ILO adopted on 22 June 1982.

Note 1: In 2009, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

Note 2: In 2009, the text of a Recommendation adopted by the General Conference of the ILO was accessible through the ILO website (www.ilo.org).

772 Employment not to be terminated on certain grounds

(1) An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons:

(a) temporary absence from work because of illness or injury of a kind prescribed by the regulations;

(b) trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours;

(d) seeking office as, or acting or having acted in the capacity of, a representative of employees;

(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;

(f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

(g) absence from work during maternity leave or other parental leave;

(h) temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) However, subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating a person’s employment if:

(a) the reason is based on the inherent requirements of the particular position concerned; or

(b) if the person is a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—the employment is terminated:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3) To avoid doubt, if:

(a) an employer terminates an employee’s employment; and

(b) the reason, or a reason, for the termination is that the position held by the employee no longer exists, or will no longer exist; and

(c) the reason, or a reason, that the position held by the employee no longer exists, or will no longer exist, is the employee’s absence, or proposed or probable absence, during maternity leave or other parental leave;

the employee’s employment is taken, for the purposes of paragraph (1)(g), to have been terminated for the reason, or for reasons including the reason, of absence from work during maternity leave or other parental leave.

(4) For the purposes of subsection (1), subsection 109(2) (which deals with the meaning of voluntary emergency management activity) has effect as if the word employee had its ordinary meaning.

773 Application for FWA to deal with a dispute

If:

(a) an employer has terminated an employee’s employment; and

(b) the employee, or an industrial association that is entitled to represent the industrial interests of the employee, alleges that the employee’s employment was terminated in contravention of subsection 772(1);

the employee, or the industrial association, may apply to FWA for FWA to deal with the dispute.

774 Time for application

(1) An application under section 773 must be made:

(a) within 60 days after the employment was terminated; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the employee to dispute the termination; and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

775 Application fees

(1) The application must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to FWA under section 773; and

(b) a method for indexing the fee; and

776 Conferences

(1) If an application is made under section 773, FWA must conduct a conference to deal with the dispute.

Note 1: For conferences, see section 592.

Note 2: FWA may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(2) Despite subsection 592(3), FWA must conduct the conference in private.

777 Certificate if dispute not resolved

If FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, FWA must issue a certificate to that effect.

778 Advice on unlawful termination court application

(1) If FWA considers, taking into account all the materials before it, that an unlawful termination court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly.

(2) An unlawful termination court application is an application to a court under Division 2 of Part 4‑1 for orders in relation to a contravention of subsection 772(1).

779 Unlawful termination court applications

FWA conference to be held before application

(1) A person who is entitled to apply under section 773, to FWA for FWA to deal with a dispute must not make an unlawful termination court application in relation to the dispute unless:

(a) FWA has issued a certificate under section 777 in relation to the dispute; or

(b) the unlawful termination court application includes an application for an interim injunction.

Time for application

(2) Despite section 544, an unlawful termination court application that requires a certificate under section 777 must be made within 14 days after the certificate is issued.

780 Costs orders against lawyers and paid agents

(1) If FWA has granted permission in accordance with section 596 for a person to be represented by a lawyer or paid agent in relation to an application under section 773, FWA may make an order for costs against the lawyer or paid agent if FWA is satisfied:

(a) that:

(i) the lawyer or paid agent caused costs to be incurred by the other party to the dispute because the lawyer or paid agent encouraged the person to make the application; and

(ii) it should have been reasonably apparent that the application would have no reasonable prospect of success; or

(b) that the lawyer or paid agent caused costs to be incurred by the other party to the dispute because of an unreasonable act or omission of the lawyer or paid agent in connection with the conduct or continuation of the dispute.

(2) FWA may make an order under this section only if the other party to the dispute has applied for it under section 781.

(3) This section does not limit FWA’s power to order costs under section 611.

781 Applications for costs orders

An application for an order for costs in relation to an application under section 773 must be made within 14 days after FWA finishes dealing with the dispute.

782 Contravening costs orders

A person to whom an order for costs made under section 780 applies must not contravene a term of the order.

Note: This section is a civil remedy provision (see Part 4‑1).

783 Reason for action to be presumed unless proved otherwise

(1) If:

(a) in an application in relation to a contravention of subsection 772(1), it is alleged that a person took, or is taking, action for a particular reason; and

(b) taking that action for that reason would constitute a contravention of subsection 772(1);

it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason, unless the person proves otherwise.

(2) Subsection (1) does not apply in relation to orders for an interim injunction.

Division 3—Notification and consultation requirements relating to certain terminations of employment

Subdivision A—Object of this Division

784 Object of this Division

The object of this Division is to give effect, or further effect, to:

(a) the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer, done at Geneva on 22 June 1982 ([1994] ATS 4); and

(b) the Termination of Employment Recommendation, 1982 (Recommendation No. R166) which the General Conference of the ILO adopted on 22 June 1982.

Note 1: In 2009, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

Note 2: In 2009, the text of a Recommendation adopted by the General Conference of the ILO was accessible through the ILO website (www.ilo.org).

Subdivision B—Requirement to notify Centrelink

785 Employer to notify Centrelink of certain proposed terminations

(1) If an employer decides to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons, the employer must give a written notice about the proposed terminations to the Chief Executive Officer of the Commonwealth Services Delivery Agency (Centrelink).

(2) The notice must be in the form (if any) prescribed by the regulations and set out:

(a) the reasons for the terminations; and

(b) the number and categories of employees likely to be affected; and

(3) The notice must be given:

(a) as soon as practicable after making the decision; and

(b) before terminating an employee’s employment in accordance with the decision.

(4) The employer must not terminate an employee’s employment in accordance with the decision unless the employer has complied with this section.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(5) The orders that may be made under subsection 545(1) in relation to a contravention of subsection (4) of this section:

(a) include an order requiring the employer not to terminate the employment of employees in accordance with the decision, except as permitted by the order; but

(b) do not include an order granting an injunction.

Subdivision C—Failure to notify or consult registered employee associations

786 FWA may make orders where failure to notify or consult registered employee associations about terminations

(1) FWA may make an order under subsection 787(1) if it is satisfied that:

(a) an employer has decided to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons; and

(c) the employer could reasonably be expected to have known, when he or she made the decision, that one or more of the employees were members of a registered employee association.

Notifying relevant registered employee associations

(2) An employer complies with this subsection if:

(i) the proposed terminations and the reasons for them;

(ii) the number and categories of employees likely to be affected;

(iii) the time when, or the period over which, the employer intends to carry out the terminations; and

(b) the notice is given:

(i) as soon as practicable after making the decision; and

(ii) before terminating an employee’s employment in accordance with the decision.

Consulting relevant registered employee associations

(3) An employer complies with this subsection if:

(i) measures to avert or minimise the proposed terminations; and

(ii) measures (such as finding alternative employment) to mitigate the adverse effects of the proposed terminations; and

(b) the opportunity is given:

(i) as soon as practicable after making the decision; and

(ii) before terminating an employee’s employment in accordance with the decision.

787 Orders that FWA may make

(1) FWA may make whatever orders it considers appropriate, in the public interest, to put:

(a) the employees; and

(b) each registered employee association referred to in paragraph 786(2)(a) or (3)(a);

in the same position (as nearly as can be done) as if the employer had complied with subsections 786(2) and (3).

(2) FWA must not, under subsection (1), make orders for any of the following:

(a) reinstatement of an employee;

(b) withdrawal of a notice of termination if the notice period has not expired;

(d) payment of severance pay;

788 Application to FWA for order

FWA may make the order only on application by:

(a) one of the employees; or

(b) a registered employee association referred to in paragraph 786(2)(a) or (3)(a); or

(c) any other registered employee association that is entitled to represent the industrial interests of one of the employees.

Subdivision D—Limits on scope of this Division

789 Limits on scope of this Division

(1) This Division does not apply in relation to any of the following employees:

(a) an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;

(b) an employee whose employment is terminated because of serious misconduct;

(f) a daily hire employee working in the meat industry in connection with the slaughter of livestock;

(g) a weekly hire employee working in connection with the meat industry and whose termination of employment is determined solely by seasonal factors;

(h) an employee prescribed by the regulations as an employee in relation to whom this Division does not apply.

Part 6‑5—Miscellaneous

Division 1—Introduction

790 Guide to this Part

This Part deals with miscellaneous matters such as delegations and regulations.

791 Meanings of employee and employer

In this Part, employee means a national system employee, and employer means a national system employer.

Division 2—Miscellaneous

792 Delegation by Minister

(1) The Minister may, in writing, delegate all or any of his or her functions or powers under this Act to:

(a) the Secretary of the Department; or

(b) an SES employee, or acting SES employee, in the Department.

(2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Minister.

Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

793 Liability of bodies corporate

Conduct of a body corporate

(1) Any conduct engaged in on behalf of a body corporate:

(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

State of mind of a body corporate

(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

(b) that the person had that state of mind.

Meaning of state of mind

(3) The state of mind of a person includes:

(a) the knowledge, intention, opinion, belief or purpose of the person; and

(b) the person’s reasons for the intention, opinion, belief or purpose.

Disapplication of Part 2.5 of the Criminal Code

(4) Part 2.5 of Chapter 2 of the Criminal Code does not apply to an offence against this Act.

Note: Part 2.5 of the Criminal Code deals with corporate criminal responsibility.

(5) In this section, employee has its ordinary meaning.

794 Signature on behalf of body corporate

For the purposes of this Act, a document may be signed on behalf of a body corporate by an authorised officer of the body and need not be made under the body’s seal.

795 Public sector employer to act through employing authority

Employer to act through employing authority

(1) For the purposes of this Act and the procedural rules, the employer of an employee (a public sector employee) employed in public sector employment must act only through the employee’s employing authority acting on behalf of the employer.

Acts done by or to employing authority

(2) For the purposes of this Act and the procedural rules, anything done by or to a public sector employee’s employing authority acting on behalf of the employee’s employer is taken to have been done by or to the employer (as the case may be).

Application of subsections (1) and (2)

(3) Subsections (1) and (2) apply despite any other law of the Commonwealth, a State or a Territory.

Meaning of public sector employment

(4) Public sector employment means employment of, or service by, a person in any capacity (whether permanently or temporarily, and whether full‑time or part‑time):

(a) under the Public Service Act 1999 or the Parliamentary Service Act 1999; or

(b) by or in the service of a Commonwealth authority; or

(c) under a law of the Australian Capital Territory relating to employment by that Territory, including a law relating to the Australian Capital Territory Government Service; or

(d) by or in the service of:

(i) an enactment authority as defined by section 3 of the A.C.T. Self‑Government (Consequential Provisions) Act 1988; or

(ii) a body corporate incorporated by or under a law of the Australian Capital Territory and in which the Australian Capital Territory has a controlling interest;

other than an authority or body prescribed by the regulations; or

(e) under a law of the Northern Territory relating to the Public Service of the Northern Territory; or

(f) by or in the service of a Northern Territory authority; or

(g) by or in the service of a person prescribed by the regulations; or

(h) under a law prescribed by the regulations.

(5) However, public sector employment does not include:

(a) employment of, or service by, a person prescribed by the regulations; or

(b) employment or service under a law prescribed by the regulations.

This subsection does not apply for the purposes of section 40.

Note: Section 40 deals with the interaction between fair work instruments and public sector employment laws.

Meaning of employing authority

(6) An employing authority of an employee is the person prescribed by the regulations as the employee’s employing authority.

796 Regulations—general

(1) The Governor‑General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) Regulations made under this Act prevail over procedural rules made under this Act, to the extent of any inconsistency.

797 Regulations dealing with offences

(1) The regulations may provide for offences against the regulations.

(2) The penalties for offences must not be more than 20 penalty units.

798 Regulations dealing with civil penalties

(1) The regulations may provide for civil penalties for contravention of the regulations.

(2) The penalties for contravention must not be more than:

(a) 20 penalty units for an individual; or

(b) 100 penalty units for a body corporate.

799 Regulations dealing with infringement notices

Infringement notices for offences

(1) The regulations may provide for a person who is alleged to have committed an offence against the regulations to pay a penalty to the Commonwealth as an alternative to prosecution.

(2) The penalty must not exceed one‑fifth of the maximum penalty prescribed by the regulations for that offence.

Infringement notices for civil penalties

(3) The regulations may provide for a person who is alleged to have contravened a civil penalty provision under the regulations to pay a penalty to the Commonwealth as an alternative to civil proceedings.

(4) The penalty must not exceed one‑tenth of the maximum penalty prescribed by the regulations for contravening that provision.

800 Regulations dealing with exhibiting fair work instruments

The regulations may provide for the exhibiting, on the premises of an employer, of a fair work instrument or a term of a fair work instrument.

Schedule 1—Transitional provisions

Note: See section 574A.

1 Definitions

(1) For the purposes of this Schedule, unless a contrary intention appears, expressions used in this Schedule that are defined in the Workplace Relations Act 1996 (other than Schedule 1 to that Act) have the same meanings as they have in that Act.

(2) If:

(a) a provision of this Schedule uses an expression defined in both the Workplace Relations Act 1996 and this Act; and

(b) it is clear from the context of the provision which of those meanings is intended to apply in that provision;

the expression has that meaning.

2 Appointments to Fair Work Australia

(1) An appointment that is:

(a) to an office of the Commission mentioned in a table item below; and

(b) in force immediately before the commencement time for the table item;

is taken, after that time, to be an appointment, under section 626 of this Act, to the office of FWA mentioned in the table item.

Note: The person continues to be appointed to the Commission (see subclause (3)).

Appointments to FWA
Item	Column 1 Office of the Commission	Column 2 Office of FWA	Column 3 Commencement time
1	President of the Commission	President of FWA	The day proclaimed for the purposes of item 2 of the table in subsection 2(1) of this Act.
2	Vice President of the Commission	Deputy President of FWA	The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of this Act.
3	Senior Deputy President of the Commission	Deputy President of FWA	The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of the FW Act.
4	Deputy President of the Commission	Deputy President of FWA	The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of this Act.
5	Commissioner of the Commission	Commissioner of FWA	The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of this Act.

(2) Subclause (1) does not apply to a member of the Commission who:

(a) was appointed as a member of a prescribed State industrial authority (within the meaning of the Workplace Relations Act 1996) before being appointed as a member of the Commission; and

(b) still holds that appointment as a member of the prescribed State industrial authority.

Dual appointments

(3) Despite any provision of the Workplace Relations Act 1996 or this Act, a person who is taken to have been appointed as an FWA Member under this clause continues also to hold office under the Workplace Relations Act 1996.

Note: The terms and conditions of a person who is taken to have been appointed as an FWA Member are the terms and conditions that attach to his or her appointment under the Workplace Relations Act 1996 (see clause 3).

3 Terms and conditions

(1) A person who is taken to have been appointed as an FWA Member under clause 2:

(a) holds office under this Act on the same terms and conditions as attach, or attached, to his or her appointment under the Workplace Relations Act 1996 (including under subsections 63(2) and (3) of that Act); and

(b) is entitled to the same designation as he or she is, or was, entitled to in relation to his or her appointment under the Workplace Relations Act 1996 (including the designation the person has, or had, because of subsection 80(2) of the Industrial Relations (Consequential Provisions) Act 1988).

(2) To avoid doubt, subclause (1):

(a) has effect despite subsections 633(1) and 644(1) of this Act; and

(b) continues the operation of the Judges’ Pensions Act 1968 in relation to a person taken to have been appointed under clause 2 and to whom that Act applied as a member of the Commission.

(3) For the purposes of determining the remuneration of a person who is taken to have been appointed as an FWA Member under clause 2:

(a) sections 635 and 637 of this Act do not apply; and

(b) sections 79 and 81 of the Workplace Relations Act 1996 continue to apply in relation to the person’s appointment as both an FWA Member and a member of the Commission.

4 Seniority of FWA Members

(1) If a person who is a member of the Commission is taken to have been appointed as an FWA Member under clause 2, the day on which the person’s appointment took effect is, for the purposes of section 619 of this Act, taken to be the day on which the person was appointed as such a member of the Commission.

(2) If 2 or more such persons were appointed to the Commission on the same day, their seniority is, for the purposes of section 619 of this Act, to be determined in accordance with the precedence assigned to them under section 65 of the Workplace Relations Act 1996.

5 Procedural rules

Section 609 of this Act has effect, in relation to any time at which the President is the only FWA Member, as if the words “After consulting the other FWA Members,” were omitted from subsection (1) of that section.

6 Transfer of assets and liabilities

(1) The person referred to in column 1 of an item of the following table must arrange for the transfer, on the first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of this Act, of assets and liabilities of the body referred to in column 2 of the item of the following table to the body referred to in column 3 of the item of the following table.

Transfer of assets and liabilities
Item	Column 1 Office‑holder who enters arrangement with FWA	Column 2 Body whose assets and liabilities are transferred	Column 3 Body to which assets and liabilities are transferred
1	Director of the AFPC Secretariat	AFPC Secretariat	FWA
2	Industrial Registrar	Australian Industrial Registry	FWA
3	Workplace Authority Director	Workplace Authority	Office of the Fair Work Ombudsman
4	Workplace Ombudsman	Office of the Workplace Ombudsman	Office of the Fair Work Ombudsman

(2) Despite subclause (1), the Minister may, before the day mentioned in that subclause, determine one or more of the following by writing:

(a) that some or all assets and liabilities of the body (as specified in the determination) are to be transferred to a different body (as specified in the determination) from the one referred to in column 3 of the table;

(b) that some or all assets and liabilities of the body (as specified in the determination) are to be transferred on a different day (as specified in the determination) from the one referred to in subclause (1);

(c) that some or all assets and liabilities of the body (as specified in the determination) are to be transferred in accordance with regulations made, or to be made, for the purposes of this paragraph.

(3) A determination under subclause (2):

(a) has effect accordingly; and

(b) is not a legislative instrument.

(4) In this clause, a reference to an asset of a body includes a reference to a record or any other information that is in the custody of, or under the control of, the body.

7 Additional function and power of the General Manager

The General Manager of FWA may enter into an arrangement with the person referred to in column 1 of an item of the following table for FWA to provide assistance to the body referred to in column 2 of the item for the purpose of performing functions on and after the WR Act repeal day.

Arrangements between FWA and body
Item	Column 1 Office‑holder who enters arrangement with FWA	Column 2 Body to which assistance is provided
1	Industrial Registrar	Australian Industrial Registry
2	Workplace Authority Director	Workplace Authority
3	Director of the AFPC Secretariat	AFPC Secretariat