Chapter 1 Introduction

These Regulations are the Fair Work Regulations 2009.

1.02 Commencement

These Regulations commence as follows:

(a) on 1 July 2009 — these Regulations, other than Parts 2-2 and 6-3;

(b) on 1 January 2010 — Parts 2-2 and 6-3.

Part 1-2 Definitions

Division 1 Introduction

1.03 Definitions

In these Regulations:

Act means the Fair Work Act 2009.

quarter means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October in a year.

Division 2 The Dictionary

1.04 Meaning of designated outworker term

For paragraph (f) of the definition of designated outworker term in section 12 of the Act, each of the following terms is prescribed:

(a) a term that deals with the filing of records about work to which outworker terms of a modern award apply;

(b) a term that deals with the provision of materials;

1.05 Meaning of eligible State or Territory court

For paragraph (d) of the definition of eligible State or Territory court in section 12 of the Act, each of the courts mentioned in the following table is prescribed.

Item	Court
1	Industrial Court of New South Wales

1.06 Meaning of prescribed State industrial authority

For the definition of prescribed State industrial authority in section 12 of the Act, the following State tribunals are prescribed:

(a) the Industrial Relations Commission of New South Wales;

(b) the Queensland Industrial Relations Commission;

(d) the Industrial Relations Commission of South Australia;

(e) the Tasmanian Industrial Commission.

1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.

1.08 Meaning of TCF award

For the definition of TCF award in section 12 of the Act, each award mentioned in the following table is prescribed.

Item	Award
1	Textile Industry Award 2000
2	Textile, Clothing, Footwear and Associated Industries Award 2010

Division 4 Other definitions

1.09 Meaning of base rate of pay — pieceworkers (national system employee)

(1) For paragraph 16 (2) (c) of the Act, this regulation provides for the determination of the base rate of pay for the purposes of the National Employment Standards for a national system employee who is an award/agreement free employee and a pieceworker.

Note The Act defines award/ agreement free employee in section 12 and pieceworker in section 21.

(2) The base rate of pay, expressed as an hourly rate of pay, is worked out using the formula:

where:

TA is the total amount earned by the employee during the relevant period.

TH is the total hours worked by the employee during the relevant period.

the relevant period is:

(a) for an employee who was continuously employed by the employer for a period of 12 months or more immediately before the base rate of pay is to be worked out — the 12 months before the rate is to be worked out; or

(b) for an employee who was continuously employed by the employer for a period of less than 12 months immediately before the base rate of pay is to be worked out — that period.

1.10 Meaning of base rate of pay — pieceworkers (enterprise agreement)

(1) For subsection 16 (3) of the Act, this regulation provides for the determination of the base rate of pay for the purpose of section 206 of the Act for a pieceworker who is covered by a modern award.

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

(2) The base rate of pay is the rate in the modern award identified as the base rate of pay for the purposes of the National Employment Standards.

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

(1) For subsection 20 (4) of the Act, this regulation provides for the determination of hours that are taken to be the usual weekly hours of work of an award/agreement free employee who:

(a) is not a full-time employee; and

(b) does not have usual weekly hours of work.

Note Under section 20 of the Act, the usual weekly hours of work of an award/agreement free employee are relevant to establishing the employee’s ordinary hours of work.

(2) To work out the usual weekly hours of work for an employee who has been employed by the employer for at least 4 weeks:

(a) identify the total number of hours that the employee has worked during the previous 4 completed weeks; and

(b) divide the result by 4.

(3) To work out the usual weekly hours of work for an employee who has been employed by the employer for less than 4 weeks:

(a) identify the total number of hours that the employee has worked during the period; and

(b) divide the result by the number of completed weeks for which the employee has been employed by the employer.

1.12 Meaning of pieceworker

(1) For paragraph 21 (1) (c) of the Act, this regulation prescribes a class of award/agreement free employees as pieceworkers.

Note Under paragraph 21 (1) (c) of the Act, a pieceworker is an award/agreement free employee who is in a class of employees prescribed by the regulations as pieceworkers.

(2) The class is award/agreement free employees who:

(a) are paid a rate set by reference to a quantifiable output or task; and

(b) are not paid a rate set by reference to a period of time worked.

Examples of rates set by reference to a quantifiable output or task

1 A rate of pay calculated by reference to the number of articles produced.

2 A rate of pay calculated by reference to the number of kilometres travelled.

3 A rate of pay calculated by reference to the number of articles delivered.

4 A rate of pay calculated by reference to the number of articles sold.

5 A rate of pay calculated by reference to the number of tasks performed.

Part 1-3 Application of the Act

Division 2 Interaction with State and Territory laws

1.13 State and Territory laws that are not excluded by section 26 of the Act — prescribed laws

For paragraph 27 (1) (b) of the Act, each of the following laws of a State or Territory is a law to which section 26 of the Act does not apply:

(a) a law dealing with the suspension, cancellation or termination of a training contract that is entered into as part of a training arrangement;

(b) a law dealing with a period of probation of an employee that:

(i) is part of a training arrangement; but

(ii) is not a period of probationary employment;

(c) a law that provides protection for an employee who discloses information or makes a complaint under a law that deals with any of the following:

(i) whistleblowers;

(ii) environmental protection;

(iii) health services;

(iv) transport safety or operations;

(v) the supply of essential services.

Note Under subsection 27 (1) of the Act, section 26 of the Act does not apply to a law of a State or Territory so far as the law is prescribed by the regulations as a law to which section 26 does not apply.

1.14 Act excludes prescribed State and Territory laws

For subsection 28 (1) of the Act, each of the following laws of a State or Territory is prescribed:

(a) a law relating to child labour, to the extent to which it deals with terms and conditions of employment that:

(i) are provided for by the National Employment Standards; or

(ii) may be included in a modern award; or

(iii) may be included in an enterprise agreement under section 55 of the Act;

but not to the extent to which it deals with the times at which, or the periods during which, a child may be employed;

(b) a law relating to training arrangements, to the extent to which it deals with terms and conditions of employment that:

(i) are provided for by the National Employment Standards; or

(ii) may be included in a modern award; or

(iii) may be included in an enterprise agreement under section 55 of the Act;

Note Under subsection 28 (1) of the Act, the Act is intended to apply to the exclusion of a law of a State or Territory that is prescribed by the regulations.

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

For subsection 29 (3) of the Act, each of the following laws of a State or Territory is prescribed:

(a) a law relating to child labour, to the extent to which it deals with terms and conditions of employment that:

(i) are provided for by the National Employment Standards; or

(ii) may be included in a modern award; or

(iii) may be included in an enterprise agreement under section 55 of the Act;

but not to the extent to which it deals with the times at which, or the periods during which, a child may be employed;

(b) a law relating to training arrangements, to the extent to which it deals with terms and conditions of employment that:

(i) are provided for by the National Employment Standards; or

(ii) may be included in a modern award; or

(iii) may be included in an enterprise agreement under section 55 of the Act;

Note Under subsection 29 (3) of the Act, 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.

Division 4 Miscellaneous

1.16 Interaction between fair work instruments and public sector employment laws

For paragraph 40 (2) (b) of the Act, each of the following classes of instruments is prescribed:

(a) Ordinances made under the Seat of Government (Administration) Act 1910 that:

(i) deal with public sector employment; and

(ii) were, immediately before the repeal of the Workplace Relations Act 1996, inconsistent with that Act or any agreement, award order or determination made under that Act;

(b) enactments, within the meaning of the Australian Capital Territory (Self-Government) Act 1988, that:

(i) deal with public sector employment; and

(ii) were, immediately before the repeal of the Workplace Relations Act 1996, inconsistent with that Act or any agreement, award order or determination made under that Act;

(c) determinations mentioned in paragraph 6 (b) of the Northern Territory (Self-Government) Act 1978 that were, immediately before the repeal of the Workplace Relations Act 1996, inconsistent with an award or workplace agreement (within the meaning of the Workplace Relations Act).

Note Under subsection 40 (2) of the Act, fair work instruments, or terms of fair work instruments, that deal with public sector employment prevail over the public sector employment laws as described in that subsection.

Chapter 2 Terms and conditions of employment

Part 2-2 The National Employment Standards

Division 12 Fair Work Information Statements

2.01 Fair Work Ombudsman to prepare and publish Fair Work Information Statement — content

For subsection 124 (4) of the Act, a Fair Work Information Statement must contain an explanation of the effect on an employee’s entitlements under the National Employment Standards if:

(a) the transfer of a business occurs as described in section 311 of the Act; and

(b) the employee becomes a transferring employee.

Note Section 311 of the Act identifies the participants in the transfer of the business as including a “transferring employee”.

2.02 Fair Work Ombudsman to prepare and publish Fair Work Information Statement — manner of giving Statement to employees

(1) For subsection 124 (4) of the Act, each of the following is a manner in which an employer may give the Fair Work Information Statement to an employee.

(2) The employer may give the Statement to the employee personally.

(3) The employer may send the Statement by pre-paid post to:

(a) the employee’s residential address; or

(b) a postal address nominated by the employee.

(4) The employer may send the Statement to:

(a) the employee’s email address at work; or

(b) another email address nominated by the employee.

(5) The employer may send to the employee’s email address at work (or to another email address nominated by the employee):

(a) an electronic link to the page of the Fair Work Ombudsman’s website on which the Statement is located; or

(b) an electronic link that takes the employee directly to a copy of the Statement on the employer’s intranet.

(6) The employer may fax the Statement to:

(a) the employee’s fax number at work; or

(b) the employee’s fax number at home; or

(7) Subregulations (2) to (6) do not prevent the employer from using another manner of giving the Statement to the employee.

Division 13 Miscellaneous

2.03 What can be agreed to etc. in relation to award/agreement free employees

For paragraph 129 (a) of the Act, employers and award/agreement free employees may agree to the provision of either or both of:

(a) extra annual leave in exchange for foregoing an equivalent amount of pay; and

(b) extra personal/carer’s leave in exchange for foregoing an equivalent amount of pay.

Part 2-4 Enterprise agreements

Division 3 Bargaining and representation during bargaining

2.04 Notice of employee representational rights — how notice is given

(1) For subsection 173 (5) of the Act, each of the following is a manner in which the employer for a proposed enterprise agreement may give employees who will be covered by the agreement notice of the right to be represented by a bargaining representative for the agreement.

(2) The employer may give the notice to the employee personally.

(3) The employer may send the notice by pre-paid post to:

(a) the employee’s residential address; or

(b) a postal address nominated by the employee.

(4) The employer may send the notice to:

(a) the employee’s email address at work; or

(b) another email address nominated by the employee.

(5) The employer may send to the employee’s email address at work (or to another email address nominated by the employee) an electronic link that takes the employee directly to a copy of the notice on the employer’s intranet.

(6) The employer may fax the notice to:

(a) the employee’s fax number at work; or

(b) the employee’s fax number at home; or

(7) The employer may display the notice in a conspicuous location at the workplace that is known by and readily accessible to the employee.

(8) Subregulations (2) to (7) do not prevent the employer from using another manner of giving the notice to the employee.

2.05 Notice of employee representational rights — prescribed form

For subsection 174 (6) of the Act, the notice of employee representational rights in Schedule 2.1 is prescribed.

2.06 Appointment of bargaining representatives — independence

A bargaining representative of an employee must be:

(a) free from control by the employee’s employer or another bargaining representative; and

(b) free from improper influence from the employee’s employer or another bargaining representative.

Division 4 Approval of enterprise agreements

2.07 FWA may approve an enterprise agreement with undertakings — requirements for signing undertaking

For subsection 190 (5) of the Act, an undertaking relating to a an enterprise agreement must be signed by each employer who gives the undertaking.

2.08 Model flexibility term for enterprise agreement

For subsection 202 (5) of the Act, the model flexibility term for enterprise agreements is set out in Schedule 2.2.

2.09 Model consultation term for enterprise agreement

For subsection 205 (3) of the Act, the model consultation term is set out in Schedule 2.3.

2.10 FWA may approve variation of enterprise agreement with undertaking — requirements for signing undertaking for variation

For subsection 212 (4) of the Act, an undertaking relating to the variation of an enterprise agreement must be signed by each employer who gives the undertaking.

Division 8 FWA’s general role in facilitating bargaining

2.11 What a bargaining order must specify — bargaining order for reinstatement of employee

(1) For paragraph 231 (3) (b) of the Act, this regulation provides for FWA to take action and make orders in connection with, and to deal with matters relating to, a bargaining order for reinstatement of an employee under paragraph 231 (2) (d) of the Act.

(2) FWA may make any of the following orders:

(a) an order to reappoint the employee to the position in which he or she was employed immediately before the termination of his or her employment;

(b) an order to appoint the employee to another position for which the terms and conditions of employment are no less favourable than those under which he or she was employed immediately before the termination of his or her employment;

(d) an order that the employer who terminated the employment of the employee pay the employee an amount for remuneration lost, or likely to have been lost, because of the termination.

Part 2-9 Other terms and conditions of employment

Division 2 Payment of wages

2.12 Certain terms have no effect — reasonable deductions

(1) For subsection 326 (2) of the Act, a circumstance in which a deduction mentioned in subsection 326 (1) of the Act is reasonable is that:

(a) the deduction is made in respect of the provision of goods or services:

(i) by an employer, or a party related to the employer; and

(ii) to an employee; and

(b) the goods or services are provided in the ordinary course of the business of the employer or related party; and

(i) the same terms and conditions as those on which the goods or services were provided to the employee; or

(ii) on terms and conditions that are not more favourable to the members of the general public.

Examples

1 A deduction of health insurance fees made by an employer that is a health fund.

2 A deduction for a loan repayment made by an employer that is a financial institution.

(2) For subsection 326 (2) of the Act, a circumstance in which a deduction mentioned in subsection 326 (1) of the Act is reasonable is that the deduction is for the purpose of recovering costs directly incurred by the employer as a result of the voluntary private use of particular property of the employer by an employee (whether authorised or not).

Examples of costs

1 The cost of items purchased on a corporate credit card for personal use by the employee.

2 The cost of personal calls on a company mobile phone.

3 The cost of petrol purchased for the private use of a company vehicle by the employee.

Division 3 Guarantee of annual earnings

2.13 High Income threshold

(1) For subsection 333 (1) of the Act, this regulation sets out the manner in which the high income threshold is to be worked out.

(2) The high income threshold for the period starting on 1 July 2009 and ending at the end of 30 June 2010 is worked out using the following steps.

First indexation
Step 1	Identify the assessment of current average weekly ordinary time earnings published by the Australian Statistician for February 2008 and in effect on 1 July 2008. Note This is the amount of the average weekly ordinary time earnings, seasonally adjusted, for full-time adult employees of all employees in Australia for that day.
Step 2	Divide it by the assessment of current average weekly ordinary time earnings published by the Australian Statistician for May 2007 and in effect on 27 August 2007. Note This is the amount of the average weekly ordinary time earnings, seasonally adjusted, for full-time adult employees of all employees in Australia for that day.
Step 3	Round the result to 3 decimal places. If the fourth decimal place is 5 or above, round it up. If the rounded result is less than 1, the rounded result becomes 1. Multiply $100 000 by the rounded result. If the result is not a multiple of $100, round the result to the nearest multiple of $100. If the result is a multiple of $50, round it up to the next multiple of $100. This result will be indexed again in step 6.
Second indexation
Step 4	Identify the assessment of current average weekly ordinary time earnings published by the Australian Statistician for February 2009 and in effect on 1 July 2009. Note This is the amount of the average weekly ordinary time earnings, seasonally adjusted, for full-time adult employees of all employees in Australia for that day.
Step 5	Divide it by the assessment of current average weekly ordinary time earnings published by the Australian Statistician for February 2008 and in effect on 1 July 2008. Note This is the amount of the average weekly ordinary time earnings, seasonally adjusted, for full-time adult employees of all employees in Australia for that day.
Step 6	Round the result to 3 decimal places. If the fourth decimal place is 5 or above, round it up. If the rounded result is less than 1, the rounded result becomes 1. Multiply the amount worked out in step 3 by the rounded result. If the result is not a multiple of $100, round the result to the nearest multiple of $100. If the result is a multiple of $50, round it up to the next multiple of $100. The result is the high income threshold for the period starting on 1 July 2009 and ending at the end of 30 June 2010.

(3) The high income threshold for the year starting on 1 July 2010, or a later year starting on 1 July, is the threshold for the previous year, indexed using the following steps.

Step 1

Identify the assessment of current average weekly ordinary time earnings published by the Australian Statistician and in effect on 1 July in the current year.

Note This is the amount of the average weekly ordinary time earnings, seasonally adjusted, for full-time adult employees of all employees in Australia for that day.

Step 2

Divide it by the assessment of current average weekly ordinary time earnings published by the Australian Statistician and in effect on 1 July of the previous year.

Note This is the amount of the average weekly ordinary time earnings, seasonally adjusted, for full-time adult employees of all employees in Australia for that day.

Step 3

Round the result to 3 decimal places. If the fourth decimal place is 5 or above, round it up.

If the rounded result is less than 1, the rounded result becomes 1.

Multiply the high income threshold for the previous year by the rounded result.

If the result is not a multiple of $100, round the result to the nearest multiple of $100. If the result is a multiple of $50, round it up to the next multiple of $100.

The result is the high income threshold for the year starting on 1 July.

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

Part 3-1 General protections

Division 5 Other protections

3.01 Temporary absence — illness or injury

(1) For section 352 of the Act, this regulation prescribes kinds of illness or injury.

Note Under section 352 of the Act, 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.

(2) A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:

(a) 24 hours after the commencement of the absence; or

(b) such longer period as is reasonable in the circumstances.

Note The Act defines medical certificate in section 12.

(3) A prescribed kind of illness or injury exists if the employee:

(a) is required by the terms of a workplace instrument:

(i) to notify the employer of an absence from work; and

(ii) to substantiate the reason for the absence; and

(b) complies with those terms.

(4) A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107 (3) (a) of the Act, for taking paid personal/carer’s leave for a personal illness or personal injury, as mentioned in paragraph 97 (a) of the Act.

Note Paragraph 97 (a) of the Act provides that an employee may take paid personal/carer’s leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee.

(5) An illness or injury is not a prescribed kind of illness or injury if:

(a) either:

(i) the employee’s absence extends for more than 3 months; or

(ii) the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and

(b) the employee is not on personal/carer’s leave (however described) for a purpose mentioned in paragraph 97 (a) of the Act for the duration of the absence.

(6) In this regulation, a period of paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97 (a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers’ compensation.

Division 8 Compliance

Subdivision A Contraventions involving dismissal

3.02 Application fees

(1) For subsection 367 (2) of the Act, this regulation sets out matters relating to a fee for making an application to FWA under section 365 of the Act.

Fee at commencement of Regulations

(2) If the application is made in the financial year starting on 1 July 2009, the fee is $59.50.

Method for indexing the fee

(3) If the application is made in a financial year starting on 1 July 2010, or 1 July in a later year (the application year), the amount of the fee is to be worked out as follows:

(a) identify the amount of the fee for an application made in the previous financial year;

(b) multiply it by the indexation factor for the application year (see subregulation (4));

(4) The indexation factor for the application year is worked out using the following formula, and then rounded under subregulation (5):

where:

index number, for a quarter, means the All Groups Consumer Price Index Number (being the weighted average of the 8 capital cities) published by the Australian Statistician for that quarter.

most recent March year means the period of 12 months ending on 31 March in the financial year that occurred immediately before the application year.

previous March year means the period of 12 months immediately preceding the most recent March year.

quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December.

(5) The result under subregulation (4) must be rounded up or down to 3 decimal places, rounding up if the result ends in 0.0005.

(6) A calculation under subregulation (4):

(a) is to be made using the index numbers published in terms of the most recently published reference base for the Consumer Price Index; and

(b) is to be made disregarding index numbers that are published in substitution for previously published index numbers (unless the substituted numbers are published to take account of changes in the reference base).

No fee — hardship

(7) If FWA is satisfied that the person making an application will suffer serious hardship if the person is required to pay the fee, no fee is payable for making the application.

Refund of fee — discontinuing application

(8) FWA must repay to the person an amount equal to the fee if:

(a) the fee has been paid; and

(b) the application is subsequently discontinued as mentioned in section 588 of the Act; and

(i) at the time the application is discontinued, the application has not yet been listed for conducting a conference; or

(ii) if the application has, at or before that time, been listed for conducting a conference on a specified date or dates — the discontinuance occurs at least 2 days before that date or the earlier of those dates.

Subdivision B Other contraventions

3.03 Application fees

(1) For subsection 373 (2) of the Act, this regulation sets out matters relating to a fee for making an application to FWA under section 372 of the Act.

Fee at commencement of Regulations

(2) If the application is made in the financial year starting on 1 July 2009, the fee is $59.50.

Method for indexing the fee

(3) If the application is made in a financial year starting on 1 July 2010, or 1 July in a later year (the application year), the amount of the fee is to be worked out as follows:

(a) identify the amount of the fee for an application made in the previous financial year;

(b) multiply it by the indexation factor for the application year (see subregulation (4));

(4) The indexation factor for the application year is worked out using the following formula, and then rounded under subregulation (5):

where:

index number, for a quarter, means the All Groups Consumer Price Index Number (being the weighted average of the 8 capital cities) published by the Australian Statistician for that quarter.

most recent March year means the period of 12 months ending on 31 March in the financial year that occurred immediately before the application year.

previous March year means the period of 12 months immediately preceding the most recent March year.

quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December.

(5) The result under subregulation (4) must be rounded up or down to 3 decimal places, rounding up if the result ends in 0.0005.

(6) A calculation under subregulation (4):

(a) is to be made using the index numbers published in terms of the most recently published reference base for the Consumer Price Index; and

No fee — hardship

(7) If FWA is satisfied that the person making an application will suffer serious hardship if the person is required to pay the fee, no fee is payable for making the application.

Refund of fee — discontinuing application

(8) FWA must repay to the person an amount equal to the fee if:

(a) the fee has been paid; and

(b) the application is subsequently discontinued as mentioned in section 588 of the Act; and

(i) at the time the application is discontinued, the application has not yet been listed for conducting a conference; or

Subdivision C Conference costs

3.04 Schedule of costs

(1) For section 376 of the Act, the schedule of costs set out in Schedule 3.1 is prescribed.

(2) In awarding costs:

(a) FWA is not limited to the items of expenditure mentioned in Schedule 3.1; but

(b) if an item of expenditure is mentioned in Schedule 3.1, FWA must not award costs for that item at a rate or of an amount in excess of the rate or amount mentioned in Schedule 3.1 for that item.

Note An application for an order for costs must be made in accordance with the procedural rules.

(3) A bill of costs must identify, by an item number, each cost and disbursement claimed.

(4) In Schedule 3.1:

folio means 72 words.

Note There are generally 3 folios to a page.

Part 3-2 Unfair dismissal

Division 2 Protection from unfair dismissal

3.05 When a person is protected from unfair dismissal — high income threshold

(1) For subparagraph 382 (b) (iii) of the Act, this regulation explains how to work out amounts for the purpose of assessing whether the high income threshold applies in relation to the dismissal of a person at a particular time.

Note Under section 382 of the Act, a person is protected from unfair dismissal if specified circumstances apply. One of the circumstances is that 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.

Piece rates

(2) Subregulations (3), (4) and (5) apply if part or all of the person’s income at the time of the dismissal is paid as piece rates that are:

(a) set by reference to a quantifiable output or task; and

(b) not paid as a rate set by reference to a period of time worked.

(3) If the person was continuously employed by the employer and was not on leave without full pay at any time during the period of 12 months immediately before the dismissal, the total amount of piece rates paid or payable to the person in respect of the period of 12 months ending immediately before the dismissal is an amount for subparagraph 382 (b) (iii) of the Act.

(4) If the person was continuously employed by the employer and was on leave without full pay at any time during the period of 12 months immediately before the dismissal, the total of:

(a) for the days during that period that the employee was not on leave without full pay — the actual piece rates received by the employee; and

(b) for the days that the employee was on leave without full pay — an amount worked out using the formula:

is an amount for subparagraph 382 (b) (iii) of the Act.

(5) If the person was continuously employed by the employer for a period of less than 12 months immediately before the dismissal, the total amount of piece rates worked out using the formula:

is an amount for subparagraph 382 (b) (iii) of the Act.

Benefits other than payment of money

(6) If:

(a) the person is entitled to receive, or has received, a benefit in accordance with an agreement between the person and the person’s employer; and

(b) the benefit is not an entitlement to a payment of money and is not a non-monetary benefit within the meaning of subsection 332 (3) of the Act; and

(i) it should consider the benefit for the purpose of assessing whether the high income threshold applies to a person at the time of the dismissal; and

(ii) a reasonable money value of the benefit has not been agreed by the person and the employer; and

(iii) FWA can estimate a real or notional money value of the benefit;

the real or notional money value of the benefit estimated by FWA is an amount for subparagraph 382 (b) (iii) of the Act.

Division 4 Remedies for unfair dismissal

3.06 Remedy — compensation (amount taken to have been received by the employee)

For paragraph 392 (6) (b) of the Act:

(a) an employee who was on leave without pay for any part of a period is taken to have received the remuneration that the employee would ordinarily have received during the period of leave if the employee had not been on leave without pay; and

(b) an employee who was on leave without full pay for any part of a period is taken to have received the remuneration that the employee would ordinarily have received during the period of leave if the employee had not been on leave without full pay.

Division 5 Procedural matters

3.07 Application fees

(1) For subsection 395 (2) of the Act, this regulation sets out matters relating to a fee for making an application to FWA under Division 5 of Part 3-2 of the Act.

Fee at commencement of Regulations

(2) If the application is made in the financial year starting on 1 July 2009, the fee is $59.50.

Method for indexing the fee

(3) If the application is made in a financial year starting on 1 July 2010, or 1 July in a later year (the application year), the amount of the fee is to be worked out as follows:

(a) identify the amount of the fee for an application made in the previous financial year;

(b) multiply it by the indexation factor for the application year (see subregulation (4));

(4) The indexation factor for the application year is worked out using the following formula, and then rounded under subregulation (5):

where:

index number, for a quarter, means the All Groups Consumer Price Index Number (being the weighted average of the 8 capital cities) published by the Australian Statistician for that quarter.

most recent March year means the period of 12 months ending on 31 March in the financial year that occurred immediately before the application year.

previous March year means the period of 12 months immediately preceding the most recent March year.

quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December.

(5) The result under subregulation (4) must be rounded up or down to 3 decimal places, rounding up if the result ends in 0.0005.

(6) A calculation under subregulation (4):

(a) is to be made using the index numbers published in terms of the most recently published reference base for the Consumer Price Index; and

No fee — hardship

(7) If FWA is satisfied that the person making an application will suffer serious hardship if the person is required to pay the fee, no fee is payable for making the application.

Refund of fee — discontinuing application

(8) FWA must repay to the person an amount equal to the fee if:

(a) the fee has been paid; and

(b) the application is subsequently discontinued as mentioned in section 588 of the Act; and

(c) FWA is satisfied that FWA did not deal with the application in a substantial way before the application was discontinued.

3.08 Schedule of costs

(1) For subsection 403 (1) of the Act, the schedule of costs set out in Schedule 3.1 is prescribed.

Note 1 Under subsection 403 (2) of the Act, in awarding costs, FWA is not limited to the items of expenditure mentioned in Schedule 3.1. However, if an item of expenditure is mentioned in Schedule 3.1, FWA must not award costs for that item at a rate or of an amount in excess of the rate or amount mentioned in Schedule 3.1 for that item.

Note 2 An application for an order for costs must be made in accordance with the procedural rules.

(2) FWA may allow the costs of briefing more than 1 counsel only if FWA certifies that the attendance is necessary.

Note It is likely that certification under subregulation (2) would occur only in relation to a very large or complex case.

(3) If FWA considers it appropriate, a charge in Schedule 3.1 that is applicable to a solicitor is applicable to a person who:

(a) is not a solicitor; but

(b) is mentioned in section 596 of the Act.

Note Section 596 of the Act sets out who may represent a party to a proceeding before FWA.

(4) A bill of costs must identify, by an item number, each cost and disbursement claimed.

(5) In exercising its discretion under item 1002 of Schedule 3.1, FWA must have regard to commercial rates for copying and binding, and is not obliged to apply the photographic or machine‑made copy costs otherwise allowable in the Schedule.

(6) In Schedule 3.1:

folio means 72 words.

Note There are generally 3 folios to a page.

Part 3-3 Industrial action

Division 2 Protected industrial action

3.09 Purposes prescribed for continuity of employment when employer response action occurs

For section 416A of the Act, the following purposes are prescribed:

(a) superannuation;

(b) remuneration and promotion, as affected by seniority;

Note Section 416A of the Act deals with employer response action. Under the section, employer response action for a proposed enterprise agreement does not affect the continuity of employment of the employees who will be covered by the agreement for such purposes as are prescribed by the regulations.

Division 6 Suspension or termination of protected industrial action by FWA

3.10 Persons prescribed for order to suspend or terminate protected industrial action

(1) For subparagraphs 423 (7) (b) (iii) and 424 (2) (b) (iii) and paragraph 426 (6) (c) of the Act, a Minister of a referring State or of a Territory is prescribed if the industrial action is:

(a) being engaged in in the State or Territory; or

(b) threatened, impending or probable in the State or Territory.

(2) In subregulation (1):

referring State has the same meaning as it has in the Fair Work (State Referral and Consequential and Other Amendments) Act 2009.

Division 8 Protected action ballots

3.11 FWA may decide on ballot agent other than the Australian Electoral Commission — requirements for protected action ballot agent

(1) For subparagraph 444 (1) (b) (ii) of the Act, this regulation sets out requirements that FWA must be satisfied have been met before a person other than the Australian Electoral Commission becomes the protected action ballot agent for a protected action ballot.

Note The person must also be a fit and proper person to conduct the ballot.

(2) The person must be capable of ensuring the secrecy and security of votes cast in the ballot.

(3) The person must be capable of ensuring that the ballot will be fair and democratic.

(4) The person must be capable of conducting the ballot expeditiously.

(5) The person must have agreed to be a protected action ballot agent.

(6) The person must be bound to comply with the Privacy Act 1988 in respect to the handling of information relating to the protected action ballot.

(7) If the person is an industrial association or a body corporate, FWA must be satisfied that:

(a) each individual who will carry out the functions of the protected action ballot agent for the industrial association or body corporate is a fit and proper person to conduct the ballot; and

(b) the requirements in subregulations (2) to (6) are met for the individual.

3.12 Requirements for independent advisor

(1) For subparagraph 444 (3) (c) (ii) of the Act, this regulation sets out requirements that FWA must be satisfied have been met before a person becomes the independent advisor for a protected action ballot.

Note The person must also be sufficiently independent of each applicant for the protected action ballot order.

(2) The person must be capable of giving the protected action ballot agent:

(a) advice that is directed towards ensuring that the ballot will be fair and democratic; and

(b) recommendations that are directed towards ensuring that the ballot will be fair and democratic.

(3) The person must have agreed to be the independent advisor.

3.13 Notice of protected action ballot order — notifying employees

(1) For section 445 and paragraph 469 (b) of the Act, this regulation sets out procedures to be followed for notifying employees in relation to the conduct of a protected action ballot.

Content of notice

(2) The protected action ballot agent for the ballot must, as soon as practicable after FWA makes the protected action ballot order, take all reasonable steps to notify each employee who is eligible to be included on the roll of voters that FWA has made the order.

(3) The notice must include:

(a) any matter specified by FWA in the ballot order; and

(b) the voting method or methods to be used; and

(d) either:

(i) the date or dates on which the ballot will be conducted; or

(ii) the period during which the ballot will be conducted; and

(e) contact details for the protected action ballot agent; and

(f) contact details for the independent advisor (if any).

(4) The notice must also include:

(a) a statement that the employee may contact the protected action ballot agent to find out whether the employee is on the roll of voters; and

(b) a statement that the employee may ask the protected action ballot agent to add or remove the employee’s name from the roll of voters; and

(c) a statement that the employee may raise any concerns or complaints about the conduct of the ballot (including any alleged irregularity) with:

(i) the protected action ballot agent; or

(ii) if the protected action ballot agent is not the Australian Electoral Commission — FWA; or

(iii) the independent advisor (if any).

Note Section 453 of the Act sets out the circumstances in which an employee is eligible to be included on the roll of voters for the protected action ballot.

Manner of notification

(5) The protected action ballot agent may give the notice to an employee by doing any of the following:

(a) giving the notice to the employee personally;

(b) sending the notice by pre-paid post to:

(i) the employee’s residential address; or

(ii) a postal address nominated by the employee;

(i) the employee’s email address at work; or

(ii) another email address nominated by the employee;

(d) sending to the employee’s email address at work (or to another email address nominated by the employee) an electronic link that takes the employee directly to a copy of the notice on the employer’s intranet;

(e) faxing the notice to:

(i) the employee’s fax number at work; or

(ii) the employee’s fax number at home; or

(iii) another fax number nominated by the employee;

(f) displaying the notice in a conspicuous location at the workplace that is known by and readily accessible to the employee.

(6) Subregulation (5) does not prevent a protected action ballot agent from giving notice to an employee by another means.

Protected action ballot agent — access to workplace

(7) An employer must allow the protected action ballot agent access to the workplace for the purpose of notifying employees of the information about the protected action ballot.

(8) An employer must allow the protected action ballot agent access to the workplace for the purpose of preparing for, or conducting the protected action ballot.

3.14 Protected action ballot to be conducted by Australian Electoral Commission or other specified ballot agent — directions about ballot paper

For paragraphs 449 (2) (e) and 469 (b) of the Act, the protected action ballot agent for a protected action ballot may provide with the ballot paper:

(a) directions to be followed by an employee entitled to vote in the ballot so that the vote complies with the Act and these Regulations; and

(b) other directions that the agent reasonably believes may assist in ensuring an irregularity does not occur in the conduct of the ballot; and

(c) notes to assist an employee who is entitled to vote in the ballot by informing him or her of matters relating to conduct of the ballot.

3.15 Compilation of roll of voters

(1) For section 452 and paragraph 469 (b) of the Act, this regulation applies if:

(a) an applicant for a protected action ballot order; or

(b) the employer of an employee who is to be balloted;

provides information under subsection 450 (4) or 452 (3) of the Act.

Note Subsection 450 (4) of the Act allows FWA to direct the provision of information required to assist in compiling a roll of voters. Subsection 452 (3) allows the protected action ballot agent to make a similar direction.

(2) The applicant or employer must include with the information a declaration in writing that the applicant or employer reasonably believes that the information is complete, up-to-date and accurate.

3.16 Protected action ballot papers — form

For paragraph 455 (a) of the Act, the form of a ballot paper for a protected action ballot is set out in Form 1 of Schedule 3.2.

3.17 Report about conduct of protected action ballot — independent advisor

(1) For section 458 and paragraphs 469 (b) and (e) of the Act, this regulation sets out requirements for the preparation of a report under subsection 458 (2) or (3) of the Act by the independent advisor for a protected action ballot agent.

Note Subsection 458 (2) of the Act requires a protected action ballot agent or independent advisor to prepare a report about the conduct of the ballot. Subsection 458 (3) of the Act requires the agent or advisor to prepare a report at the direction of FWA.

(2) For the purpose of preparing the report, the independent advisor may:

(a) be present at the conduct of any part of a protected action ballot (including the scrutiny of the roll of voters); and

(b) request information held by the protected action ballot agent for the ballot; and

(c) make a recommendation to the ballot agent for the purpose of ensuring the conduct of the protected action ballot will be fair and democratic; and

(d) set out in his or her report:

(i) a description of any recommendation made under paragraph (c); and

(ii) whether the protected action ballot agent complied with the recommendation.

Subdivision G Miscellaneous

3.18 Conduct of protected action ballot — ballot papers

(1) For paragraph 469 (b) of the Act, this regulation sets out procedures to be followed in relation to the conduct of a protected action ballot.

Ballot paper

(2) The protected action ballot agent for the ballot must issue to each employee who is to be balloted a ballot paper that bears:

(a) the agent’s initials; or

(b) a facsimile of the agent’s initials.

(3) If the ballot is conducted by postal voting, the agent must, as soon as practicable, post to each employee who is to be balloted a sealed envelope that contains:

(a) the ballot paper; and

(b) information about:

(i) the closing date of the ballot; and

(ii) the time, on the closing date, by which the agent must receive the employee’s vote; and

(d) a prepaid envelope addressed to the protected action ballot agent and that may be posted without cost to the employee; and

(e) any other material that the protected action ballot agent considers to be relevant to the ballot.

(4) The envelope mentioned in paragraph (3) (c) must:

(a) set out a form of declaration that the employee has not voted before in the ballot; and

(b) have a place on which the employee can sign the envelope; and

Replacement ballot paper — postal voting

(5) An employee who is to be balloted by postal voting may ask the protected action ballot agent for a replacement ballot paper because:

(a) the employee did not receive the documents mentioned in subregulation 3.13 (3); or

(b) the employee did not receive a ballot paper in those documents; or

(d) the ballot paper has been spoilt.

(6) The request must:

(a) be received by the protected action ballot agent on or before the closing day of the ballot; and

(b) state the reason for the request; and

(d) include a declaration by the employee that the employee has not voted at the ballot.

(7) The protected action ballot agent must give the employee a replacement ballot paper if the agent is satisfied that:

(a) the reason for the request is a reason mentioned in subregulation (5); and

(b) the request is in accordance with the requirements mentioned in subregulation (6); and

Replacement ballot paper — other voting

(8) If:

(a) an employee is to be balloted otherwise than by postal voting; and

(b) the employee satisfies the protected action ballot agent, before depositing the ballot paper in the ballot box, that the employee has accidentally spoilt the paper;

the protected action ballot agent must give the employee a replacement ballot paper.

(9) The protected ballot agent must also:

(a) mark “spoilt” on the ballot paper and initial the marking; and

(b) keep the ballot paper.

3.19 Conduct of protected action ballot — scrutiny of ballot

(1) For paragraph 469 (b) of the Act, this regulation sets out procedures to be followed in relation to the conduct of a protected action ballot.

Counting votes

(2) The protected action ballot agent for the ballot must determine the result of the ballot by conducting a scrutiny in accordance with this regulation.

(3) As soon as practicable after the close of the ballot, the protected action ballot agent must:

(a) admit the valid ballot papers and reject the informal ballot papers; and

(b) count the valid ballot papers; and

(i) in favour of the question or questions; and

(ii) against the question or questions; and

(d) count the informal ballot papers.

Informal votes

(4) A vote is informal only if:

(a) the ballot paper does not bear:

(i) the initials of the protected action ballot agent; or

(ii) a facsimile of the agent’s initials; or

(b) the ballot paper is marked in a way that allows the employee to be identified; or

(d) a direction under regulation 3.14 that was to be followed by an employee entitled to vote in the ballot has not been complied with.

(5) However, a vote is not informal because of paragraph (4) (a) if the protected action ballot agent is satisfied that the ballot paper is authentic.

(6) If the protected action ballot agent is informed by a scrutineer that the scrutineer objects to a ballot paper being admitted as formal, or rejected as informal, the agent must:

(a) decide whether the ballot paper is to be admitted as formal or rejected as informal; and

(b) endorse the decision on the ballot paper and initial the endorsement.

(7) If the protected action ballot agent conducting the ballot is informed by a scrutineer to the effect that, in the scrutineer’s opinion, an error has been made in the conduct of the scrutiny, the authorised ballot agent must:

(a) decide whether an error has been made; and,

(b) if appropriate, direct what action is to be taken to correct or mitigate the error.

(8) To preserve the secrecy of a postal vote, the protected action ballot agent must ensure that the independent advisor or a scrutineer does not have access to any evidence that may allow the ballot paper to be identified as having been completed by a particular employee.

Control of scrutiny process

(9) If a person:

(a) is not entitled to be present, or to remain present, at a scrutiny; or

(b) interrupts the scrutiny of a ballot, except to perform a function mentioned in subregulation (3);

the protected action ballot agent conducting the ballot may direct the person to leave the place where the scrutiny is being conducted.

(10) A person to whom a direction is given under subregulation (9) must comply with the direction.

3.20 Conduct of protected action ballot — scrutineers

(1) For paragraph 469 (d) of the Act, this regulation sets out matters relating to the qualifications, appointment, powers and duties of scrutineers for a protected action ballot.

Appointment

(2) The employer may appoint 1 or more scrutineers to perform the functions set out in this regulation.

(3) The applicant for a protected action ballot may appoint 1 or more scrutineers to perform the functions set out in this regulation.

(4) An appointment under subregulation (2) or (3) must be made by an instrument signed on behalf of the employer or applicant.

(5) A person who does not have a current appointment under subregulation (2) or (3):

(a) is not a scrutineer; and

(b) is not permitted to attend the scrutiny of ballot material as a scrutineer; and

Functions

(6) A scrutineer may be present at the scrutiny of ballot material as follows:

(a) if the ballot is conducted by postal voting, the scrutineer may be present after the protected action ballot agent has acted under subregulation 3.20 (8) to remove evidence of an employee’s identity;

(b) if the ballot is not conducted by postal voting, the scrutineer may be present when the protected action ballot agent is ready to conduct the scrutiny of the ballot material.

(7) However:

(a) the total number of scrutineers in attendance at a particular time at the scrutiny of the ballot material must not exceed the total number of people who are:

(i) performing functions and duties as, or on behalf of, the protected action ballot agent; and

(ii) engaged on the scrutiny of the ballot material at that time; and

(b) if a person fails to produce the person’s instrument of appointment as a scrutineer for inspection by the protected action ballot agent for the ballot, when requested by the agent to do so, the agent may refuse to allow the person to attend or act as a scrutineer.

(8) At the scrutiny of the ballot material:

(a) if the scrutineer objects to a decision that a vote is formal or informal, the scrutineer may inform the protected action ballot agent of the objection; and

(b) if the scrutineer considers that an error has been made in the conduct of the scrutiny, the scrutineer may inform the protected action ballot agent of the scrutineer’s opinion.

Division 9 Payments relating to periods of industrial action

3.21 Payments relating to partial work bans — working out proportion of reduction of employee’s payments

For subsection 471 (3) of the Act, the proportion mentioned in paragraph 471 (2) (a) of the Act is worked out for an employee or a class of employees by carrying out the following steps.

Step 1

Identify the work that an employee or a class of employees is failing or refusing to perform, or is proposing to fail or refuse to perform.

Step 2

Estimate the usual time that the employee or the class of employees would spend performing the work during a day.

Step 3

Work out the time estimated in Step 2 as a percentage of an employee’s usual hours of work for a day.

The solution is the proportion by which the employee’s payment will be reduced for a day.

3.22 Payments relating to partial work bans — form of partial work ban notice

For paragraph 471 (6) (a) of the Act, a notice given under paragraph 471 (1) (c) or (4) (c) of the Act about the reduction of an employee’s payments due to a partial work ban must be in a legible form and in English.

3.23 Payments relating to partial work bans — content of partial work ban notice

(1) For paragraph 471 (6) (b) of the Act, a notice about a partial work ban given to an employee under paragraph 471 (1) (c) or (4) (c) of the Act must:

(a) specify the day on which the notice is issued; and

(b) specify the industrial action engaged in, or proposed to be engaged in, that constitutes the partial work ban; and

(i) the start of the first day of the partial work ban; and

(ii) the start of the first day after the day on which the notice is given to the employee, if the employee performs work on that day; and

(d) state that the notice will cease to have effect at the end of the day on which the partial work ban ceases.

(2) If the notice is given under paragraph 471 (1) (c) of the Act, it must also:

(a) state that the employee’s payments will be reduced by an amount specified in the notice for each day the employee engages in the partial work ban; and

(b) specify an estimate of the usual time the employer considers an employee would spend during a day performing the work that is the subject of the work ban; and

(c) specify the amount by which the employee’s payments will be reduced for each day the employee engages in the work ban.

(3) If the notice is given under paragraph 471 (4) (c) of the Act, it must also state that the employee will not be entitled to any payment for a day on which the employee engages in the partial work ban.

3.24 Manner of giving notice about partial work ban

(1) For paragraph 471 (7) (b) of the Act, this regulation prescribes how the employer may give employees notice for paragraph 471 (1) (c) or (4) (c) of the Act.

(2) The employer may give the notice to the employee personally.

(3) The employer may send the notice by pre-paid post to:

(a) the employee’s residential address; or

(b) a postal address nominated by the employee.

(4) The employer may send the notice to:

(a) the employee’s email address at work; or

(b) another email address nominated by the employee.

(5) The employer may fax the notice to:

(a) the employee’s fax number at work; or

(b) the employee’s fax number at home; or

Part 3-4 Right of entry

Division 3 State or Territory OHS rights

3.25 Meaning of State or Territory OHS law

For subsection 494 (3) of the Act, each law mentioned in the following table is prescribed.

Item	Law
1	Occupational Health and Safety Act 2000 of New South Wales
2	Occupational Health and Safety Act 2004 of Victoria
3	Workplace Health and Safety Act 1995 of Queensland
4	Sections 49G and 49I to 49O of the Industrial Relations Act 1979 of Western Australia, but only to the extent to which those provisions provide for, or relate to, a right of entry to investigate a suspected contravention of: (a) the Occupational Safety and Health Act 1984 of that State; or (b) the Mines Safety and Inspection Act 1994 of that State
5	Occupational Health and Safety Act 1989 of the Australian Capital Territory
6	Workplace Health and Safety Act 2007 of the Northern Territory

Division 6 Entry permits, entry notices and certificates

3.26 Form of entry permit

For paragraph 521 (a) of the Act, the form of an entry permit issued to an official of an organisation is set out in Form 1 in Schedule 3.3.

3.27 Form of entry notice

For paragraph 521 (a) of the Act, the form of an entry notice is set out in Form 2 in Schedule 3.3.

3.28 Form of exemption certificate

For paragraph 521 (a) of the Act, the form of an exemption certificate issued to an organisation is set out in Form 3 in Schedule 3.3.

3.29 Form of affected member certificate

For paragraph 521 (a) of the Act, the form of an affected member certificate issued to an organisation is set out in Form 4 in Schedule 3.3.

Part 3-6 Other rights and responsibilities

Division 2 Notification and consultation relating to certain dismissals

Subdivision A Requirement to notify Centrelink

3.30 Employer to notify Centrelink of certain proposed dismissals — form of notice

For subsection 530 (2) of the Act, the form of a notice to Centrelink of a proposed dismissal under subsection 530 (1) is set out in Form 1 of Schedule 3.4.

Division 3 Employer obligations in relation to employee records and pay slips

Note about Subdivision 1

The regulations in Subdivision 1 set out the kinds of records that must be made and kept for the purposes of sections 535 and 796 of the Act. These records are required to be kept by employers for 7 years.

An employer must keep a record in respect of each employee about:

(a) basic employment details such as the name of the employer and the employee and the nature of their employment (e.g. part-time, full-time, permanent, temporary or casual); and

(b) pay; and

(d) averaging arrangements; and

(e) leave entitlements; and

(f) superannuation contributions; and

(g) termination of employment (where applicable); and

(h) individual flexibility arrangements and guarantees of annual earnings.

There are also obligations on old employers and new employers in transfer of business situations.

Records must be properly maintained. For example, regulation 3.31 sets out form requirements to make sure that records are legible and readily accessible to an inspector. Regulation 3.44 sets out requirements to ensure that records are accurate at all times.

This subdivision also deals with obligations for employers in relation to facilitate the inspection and copying of records by employees (see also the inspector powers set out at Part 5-2 of the Act).

Most of the obligations in this Part are civil remedy provisions. This means that Part 4-1 of the FW Act will apply (including the course of conduct rule in section 550).

Note about Subdivision 2

The regulations in Subdivision 2 deal with the form and content of pay slips for the purposes of section 536 of the Act.

Pay slips must include all of the information set out in regulation 3.46.

Subdivision 1 Employee records

3.31 Records — form

For subsection 535 (1) and section 796 of the Act, an employee record made and kept by an employer for this Subdivision must be of the following kind:

(a) a record in a legible form and in the English language;

(b) a record in a form that is readily accessible to an inspector.

Note Subsection 535 (1) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.

3.32 Records — content

For subsection 535 (1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies:

(a) the employer’s name; and

(b) the employee’s name; and

(d) whether the employee’s employment is permanent, temporary or casual; and

(e) the date on which the employee’s employment began; and

(f) on and after 1 January 2010 — the Australian Business Number (if any) of the employer.

3.33 Records — pay

(1) For subsection 535 (1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies:

(a) the rate of remuneration paid to the employee; and

(b) the gross and net amounts paid to the employee; and

(2) If the employee is a casual or irregular part-time employee who is guaranteed a rate of pay set by reference to a period of time worked, the record must set out the hours worked by the employee.

(3) If the employee is entitled to be paid:

(a) an incentive-based payment; or

(b) a bonus; or

(d) a penalty rate; or

(e) another monetary allowance or separately identifiable entitlement;

the record must set out details of the payment, bonus, loading, rate, allowance or entitlement.

3.34 Records — overtime

For subsection 535 (1) of the Act, if a penalty rate or loading (however described) must be paid for overtime hours actually worked by an employee, a kind of employee record that the employer must make and keep is a record that specifies:

(a) the number of overtime hours worked by the employee during each day; or

(b) when the employee started and ceased working overtime hours.

3.35 Records — averaging of hours

For subsection 535 (1) of the Act, if an employer and employee agree in writing to an averaging of the employee’s hours of work, a copy of the agreement is a kind of employee record that the employer must make and keep.

3.36 Records — leave

(1) For subsection 535 (1) of the Act, if an employee is entitled to leave, a kind of employee record that the employer must make and keep is a record that sets out:

(a) any leave that the employee takes; and

(b) the balance (if any) of the employee’s entitlement to that leave from time to time.

(2) If an employer and employee agree to cash out an accrued amount of leave:

(a) a copy of the agreement is a kind of employee record that the employer must make and keep; and

(b) a kind of employee record that the employer must make and keep is a record that sets out:

(i) the rate of payment for the amount of leave that was cashed out; and

(ii) when the payment was made

3.37 Records — superannuation contributions

(1) For subsection 535 (1) of the Act, if an employer is required to make superannuation contributions for the benefit of an employee, a kind of employee record that the employer must make and keep is a record that specifies:

(a) the amount of the contributions made; and

(b) the period over which the contributions were made; and

(d) the name of any fund to which a contribution was made; and

(e) the basis on which the employer became liable to make the contribution, including:

(i) a record of any election made by the employee as to the fund to which contributions are to be made; and

(ii) the date of any relevant election.

(2) In subregulation (1):

contributions does not include a contribution in respect of a defined benefit interest (within the meaning of the Superannuation Industry (Supervision) Regulations 1994) in a defined benefit fund (within the meaning of the Superannuation Industry (Supervision) Act 1993).

3.38 Records — individual flexibility arrangement

For subsection 535 (1) of the Act, if an employer and employee agree in writing on an individual flexibility arrangement under the Act:

(a) a copy of the agreement is a kind of employee record that the employer must make and keep; and

(b) a copy of a notice or agreement that terminates the agreement is a kind of employee record that the employer must make and keep.

3.39 Records — guarantee of annual earnings

(1) For subsection 535 (1) of the Act, if an employer gives a guarantee of annual earnings under section 330 of the Act, the guarantee is a kind of employee record that the employer must make and keep.

(2) For subsection 535 (1) of the Act, if an employer revokes a guarantee of annual earnings under section 330 of the Act, a kind of employee record that the employer must make and keep is a record of the date of the revocation.

3.40 Records — termination of employment

For subsection 535 (1) of the Act, if an employee’s employment is terminated, a kind of employee record that the employer must make and keep is a record that sets out:

(a) whether the employment was terminated:

(i) by consent; or

(ii) by notice; or

(iii) summarily; or

(iv) in some other manner (specifying the manner); and

(b) the name of the person who acted to terminate the employment.

3.41 Records — transfer of business

(1) For section 796 of the Act, this regulation applies if a transfer of business occurs as described in section 311 of the Act.

Note Section 311 identifies the participants in the transfer of the business as:

(a) the old employer; and

(b) the new employer; and

(2) The old employer must transfer to the new employer each employee record concerning a transferring employee that the old employer was required to keep for subsection 535 (1) of the Act at the time at which the connection between the old employer and the new employer mentioned in paragraph 311 (1) (d) of the Act occurs.

(3) If the old employer is a Commonwealth authority, the old employer only has to provide copies of those records.

(4) If the transferring employee becomes an employee of the new employer after the time at which the connection between the old employer and the new employer mentioned in paragraph 311 (1) (d) of the Act occurs, the new employer must ask the old employer to give the new employer the employee records concerning the transferring employee.

(5) If the old employer receives a request under subregulation (4), the old employer must give the employee records to the new employer.

(6) The new employer who receives transferred employee records must keep the records, as if they had been made by the new employer at the time at which they were made by the old employer.

(7) The new employer is not required to make employee records relating to the transferring employee’s employment with the old employer.

3.42 Records — inspection and copying of a record

(1) For subsection 535 (3) of the Act, an employer must make a copy of an employee record available for inspection and copying on request by the employee or former employee to whom the record relates.

(2) The employer must make the copy available in a legible form to the employee or former employee for inspection and copying.

(3) If the employee record is kept at the premises at which the employee works or the former employee worked, the employer must:

(a) make the copy available at the premises within 3 business days after receiving the request; or

(b) post a copy of the employee record to the employee or former employee within 14 days after receiving the request.

(4) If the employee record is not kept at the premises at which the employee works or the former employee worked, the employer must, as soon as practicable after receiving the request.

(a) make the copy available at the premises; or

(b) post a copy of the employee record to the employee or former employee.

Note Under the Act, an inspector is also permitted to inspect and copy an employee record for the purposes of the Act. The inspector may also require the production of the employee record.

3.43 Records — information concerning a record

(1) An employer who has been asked by an employee or former employee to make a copy of an employee record available for inspection must tell the employee or former employee, on request, where employee records relating to the employee or former employee are kept.

(2) The employee or former employee may interview the employer, or a representative of the employer, at any time during ordinary working hours, about an employee record that the employer has made or will make.

Note Part 5-2 of Chapter 5 of the Act sets out the circumstances in which an inspector can inspect employee records and require the production of employee records.

3.44 Records — accuracy

(1) An employer must ensure that a record that the employer is required to keep under the Act or these Regulations is not false or misleading to the employer’s knowledge.

(2) An employer must correct a record that the employer is required to keep under the Act or these Regulations as soon as the employer becomes aware that it contains an error.

(3) An employer must ensure that a record that the employer is required:

(a) to keep under the Act or these Regulations; and

(b) to correct in accordance with subregulation (2);

contains a notation of the nature of the corrected error with the correction.

(4) An employer must not alter a record that the employer is required to keep under the Act or these Regulations except:

(a) in compliance with subregulation (2) or (3); or

(b) to any extent otherwise permitted by the Act or these Regulations.

(5) An employer must ensure that a record that the employer is required to keep under the Act or these Regulations is not altered by other person except:

(a) in compliance with subregulation (2) or (3); or

(b) to any extent otherwise permitted by the Act or these Regulations.

(6) A person must not make use of an entry in an employee record made and kept by an employer for this Subdivision if the person does so knowing that the entry is false or misleading.

Subdivision 2 Pay slips

3.45 Pay slips — form

For paragraph 536 (2) (b) of the Act, a pay slip must be:

(a) in electronic form; or

(b) a hard copy.

Note Subsection 536 (2) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.

3.46 Pay slips — content

(1) For paragraph 536 (2) (b) of the Act, a pay slip must specify:

(a) the employer’s name; and

(b) the employee’s name; and

(d) the date on which the payment to which the pay slip relates was made; and

(e) the gross amount of the payment; and

(f) the net amount of the payment; and

(g) any amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentive-based payment or other separately identifiable entitlement; and

(h) on and after 1 January 2010 — the Australian Business Number (if any) of the employer.

(2) If an amount is deducted from the gross amount of the payment, the pay slip must also include the name, or the name and number, of the fund or account into which the deduction was paid.

(3) If the employee is paid at an hourly rate of pay, the pay slip must also include:

(a) the rate of pay for the employee’s ordinary hours (however described); and

(b) the number of hours in that period for which the employee was employed at that rate; and

(4) If the employee is paid at an annual rate of pay, the pay slip must also include the rate as at the latest date to which the payment relates.

(5) If the employer is required to make superannuation contributions for the benefit of the employee, the pay slip must also include:

(a) the amount of each contribution that the employer made during the period to which the pay slip relates, and the name, or the name and number, of any fund to which the contribution was made; or

(b) the amounts of contributions that the employer is liable to make in relation to the period to which the pay slip relates, and the name, or the name and number, of any fund to which the contributions will be made.

(6) In subregulation (5):

Chapter 4 Compliance and enforcement

Part 4-1 Civil remedies

Division 3 Small claims procedure

4.01 Plaintiffs may choose small claims procedure

(1) For paragraph 548 (1) (c) of the Act, the manner in which a person must indicate that he or she wants a small claims procedure to apply to an action that the person has commenced is:

(a) by:

(i) endorsing the papers initiating the action with a statement that the person wants a small claims procedure to apply to the action; or

(ii) lodging with the magistrates court or the Federal Magistrates Court a paper that identifies the action and states that the person wants a small claims procedure to apply to the action; and

(b) by serving a copy of the papers initiating the action, together with a copy of the paper (if any) mentioned in subparagraph (a) (ii), on every other party to the action.

(2) Subregulation (1) does not apply to an action that a person starts in a magistrates court or the Federal Magistrates Court if rules of court relating to that court prescribe the manner in which the person indicates that he or she wants a small claims procedure to apply to the action.

Division 4 General provisions relating to civil remedies and infringement notices

4.02 General

(1) For subsection 558 (1) of the Act, this Division provides 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) This Division does not:

(a) require an infringement notice to be issued to a person for an alleged contravention of a civil remedy provision; or

(b) affect the liability of a person to proceedings for contravention of a civil remedy provision if an infringement notice is not issued to the person for the alleged contravention; or

(c) affect the liability of a person to proceedings for contravention of a civil remedy provision if the person does not comply with an infringement notice for the alleged contravention; or

(d) limit or otherwise affect the penalty that may be imposed by a court on a person for a contravention other than the contravention of the civil remedy provision for which the infringement notice was issued.

4.03 Definitions for Division 4

In this Division:

civil remedy provision means a civil remedy provision in item 29 of the table in subsection 539 (2) of the Act.

contravention means a contravention of a civil remedy provision.

infringement notice means an infringement notice under regulation 4.04.

nominated person means the person to whom a recipient can apply:

(a) to have an infringement notice withdrawn; or

(b) to be allowed more time to pay a penalty.

recipient means a person to whom an infringement notice is given under subregulation 4.04 (1).

4.04 When an infringement notice can be given

(1) If an inspector reasonably believes that a person has committed 1 or more contraventions of a particular civil remedy provision, the inspector may give to the person an infringement notice relating to the alleged contravention or contraventions.

(2) An infringement notice must be given within 12 months after the day on which the contravention or contraventions are alleged to have taken place.

(3) This regulation does not authorise the giving of 2 or more infringement notices to a person in relation to contraventions of a particular civil remedy provision that:

(a) allegedly took place on the same day; and

(b) allegedly relate to the same action or conduct by the person.

(4) An inspector must not give an infringement notice in respect of a contravention if the Fair Work Ombudsman has accepted an enforceable undertaking from the person under section 715 of the Act in relation to the relevant civil remedy provision.

4.05 Content of infringement notice

(1) An infringement notice must:

(a) specify the recipient’s full name; and

(b) specify the recipient’s address; and

(d) specify its date of issue; and

(e) set out brief details of the alleged contravention, including the civil remedy provision that has been allegedly contravened; and

(f) specify the penalty for the alleged contravention that is payable under the notice; and

(g) state where and how the penalty can be paid; and

(h) specify the maximum penalty that a court could impose on the recipient for the alleged contravention; and

(i) identify the nominated person; and

(j) explain how the recipient can apply to the nominated person:

(i) to have the infringement notice withdrawn; or

(ii) to be allowed more time to pay the penalty; and

(k) state the effect of the recipient paying the penalty within the required time, as explained in regulation 4.09; and

(l) be signed by the inspector who issued it.

(2) The infringement notice may contain any other information that the inspector who issues it thinks necessary.

Note The maximum penalty payable under the infringement notice for an alleged contravention is one-tenth of the penalty that a court could impose.

4.06 Time for payment of penalty

(1) The penalty stated in an infringement notice must be paid within 28 days after the day on which the notice is served on the recipient unless subregulation (2), (3) or (4) applies.

(2) If the recipient applies for a further period of time in which to pay the penalty, and the application is granted, the penalty must be paid within the further period allowed.

(3) If the recipient applies for a further period of time in which to pay the penalty, and the application is refused, the penalty must be paid within 7 days after the notice of the refusal is served on the recipient.

(4) If the recipient applies for the notice to be withdrawn, and the application is refused, the penalty must be paid within 28 days after the notice of the refusal is served on the person.

4.07 Extension of time to pay penalty

(1) Before the end of 28 days after receiving an infringement notice, the recipient may apply, in writing, to the nominated person for a further period of up to 28 days in which to pay the penalty stated in the notice.

(2) Within 14 days after receiving the application, the nominated person must:

(a) grant or refuse a further period not longer than the period sought (but less than 28 days); and

(b) notify the person in writing of the decision and, if the decision is a refusal, the reasons for the decision.

4.08 Withdrawal of infringement notice

(1) Before the end of 28 days after receiving the infringement notice, the recipient may apply, in writing, to the nominated person for the infringement notice to be withdrawn.

(2) Within 14 days after receiving the application, the nominated person must:

(a) withdraw or refuse to withdraw the infringement notice; and

(b) notify the recipient in writing of the decision and, if the decision is a refusal, the reasons for the decision.

(3) If the nominated person has not approved, or refused to approve, the withdrawal of the infringement notice within the period allowed by subregulation (2), the application is taken to have been refused.

(4) An inspector may also withdraw an infringement notice issued by him or her by serving a notice of withdrawal on the recipient without an application having been made.

(5) A notice of the withdrawal of an infringement notice must:

(a) specify the recipient’s full name; and

(b) specify the recipient’s address; and

(d) state that the infringement notice is withdrawn.

4.09 Effect of payment of penalty

If an infringement notice is not withdrawn, and the recipient pays the penalty stated in the notice:

(a) any liability of the recipient for the alleged contravention is discharged; and

(b) no proceedings may be brought against the recipient, by any person, for the alleged contravention; and

(d) the recipient is not taken to have been convicted of a contravention.

4.10 Refund of penalty

If an infringement notice is withdrawn after the penalty stated in it has been paid, the Commonwealth must refund the amount of the penalty to the person who paid it.

Division 5 Unclaimed money

4.11 Unclaimed money

For paragraph 559 (3) (b) of the Act, the form of a claim for the payment of unclaimed money is set out in Schedule 4.1.

Chapter 5 Administration

Part 5-1 Fair Work Australia

Division 5 FWA members

5.01 Delegation by the President of functions and powers of FWA

For subparagraph 625 (2) (i) of the Act, the requirement to give a copy of a protected action ballot order under section 445 of the Act is a prescribed function.

5.02 Dual federal and Territory appointments of Deputy Presidents or Commissioners

(1) For paragraph 632 (a) of the Act, the following Commonwealth tribunals are prescribed:

(a) the Defence Force Remuneration Tribunal;

(b) the Pharmaceutical Benefits Remuneration Tribunal.

(2) For paragraph 632 (a) of the Act, the following Territory tribunals are prescribed:

(a) the Prison Officers Arbitral Tribunal of the Northern Territory;

(b) the Police Officers Arbitral Tribunal of the Northern Territory.

5.03 Oath and affirmation of office

(1) For section 634 of the Act, the oath and affirmation for an FWA Member are set out in Schedule 5.1.

(2) An oath or affirmation to be taken by the President must be taken before:

(a) the Governor-General; or

(b) a Justice of the High Court; or

(d) a Judge of the Supreme Court of a State or a Territory.

(3) An oath or affirmation to be taken by an FWA Member other than the President must be taken before:

(a) the Governor-General; or

(b) a Justice of the High Court; or

(d) a Judge of the Supreme Court of a State or a Territory; or

(e) the President.

Division 7 Seals and additional powers of the President and the General Manager

5.04 President must provide certain information etc. to the Minister and Fair Work Ombudsman

(1) For subsection 654 (1) of the Act:

(a) the information and copies of documents which the President must provide to the Minister are set out in Part 1 of Schedule 5.2; and

(b) the information and copies of documents which the President must provide to the Fair Work Ombudsman are set out in Part 2 Schedule 5.2.

Note Information prescribed in Schedule 5.2 is minimum information only.

(2) Schedule 5.2 also sets out the time by which the information and documents must be provided.

(3) In addition to the matters in Schedule 5.2, the Minister may request from the President a copy of:

(a) an order or interim order made by FWA; or

(b) an instrument made under section 262, 266, 269, 320 or 458 of the Act.

(4) If the Minister requests a copy of an instrument or order, the President must provide the copy:

(a) within 24 hours after the request; or

(b) if the instrument, order or interim order has not been written within that period — as soon as practicable.

(5) For the Minister:

(a) information, or a copy of a document, may be provided:

(i) in paper form; or

(ii) in electronic form, in accordance with any particular information technology requirements notified to the President by the Secretary; and

(b) subparagraph (a) (ii) does not prevent the President from including other relevant information with information provided to the Minister in electronic form; and

(c) a copy of a document that is provided to the Minister in paper form must be posted to the address notified to the President by the Secretary; and

(d) information, or a copy of a document, that is provided to the Minister in electronic form must be sent to the e‑mail address notified to the President by the Secretary; and

(e) the President must ensure that:

(i) all copies of documents that are to be provided to the Minister in paper form during a week are given at the same time in that week; and

(ii) all information, or copies of documents, of a particular kind that are to be provided to the Minister in electronic form during a week are provided at the same time in that week.

(6) The President may provide information mentioned in subitem 15.1 of Schedule 5.2:

(a) by providing the Minister with a copy of a relevant statutory declaration provided by an employer in accordance with paragraph 185 (2) (b) of the Act and the procedural rules; or

(b) by other means.

(7) For the Fair Work Ombudsman:

(a) information, or a copy of a document, may be provided:

(i) in paper form; or

(ii) in electronic form, in accordance with any particular information technology requirements notified to the President by the Fair Work Ombudsman; and

(b) subparagraph (a) (ii) does not prevent the President from including other relevant information with information provided to the Fair Work Ombudsman in electronic form; and

(c) a copy of a document that is provided to the Fair Work Ombudsman in paper form must be posted to the address notified to the President by the Fair Work Ombudsman; and

(d) information, or a copy of a document, that is provided to the Fair Work Ombudsman in electronic form must be sent to the e‑mail address notified to the President by the Fair Work Ombudsman; and

(e) the President must ensure that:

(i) all copies of documents that are to be provided to the Fair Work Ombudsman in paper form during a week are given at the same time in that week; and

(ii) all information, or copies of documents, of a particular kind that are to be provided to the Fair Work Ombudsman in electronic form during a week are provided at the same time in that week.

Part 5-2 Office of the Fair Work Ombudsman

Division 3 Office of the Fair Work Ombudsman

5.05 Powers and functions of inspectors — notification of failure to observe requirements

If an inspector is satisfied that a person has failed to observe a requirement imposed by or for the Act, these Regulations or a fair work instrument, the inspector may, by notice in writing:

(a) inform the person of the failure; and

(b) require the person to take the action specified in the notice, within the period specified in the notice, to rectify the failure; and

(c) require the person to notify the inspector in accordance with the notice of any action taken to comply with the notice; and

(d) advise the person of the actions the inspector may take if the person fails to comply with the notice.

5.06 Powers of inspectors while on premises — taking samples of goods and substances

For paragraph 709 (f) of the Act, an inspector must not take a sample of goods or a substance until the inspector has informed:

(a) the owner; or

(b) another person in charge of the goods or substances; or

of the inspector’s intention to take the sample.

Chapter 6 Miscellaneous

Part 6-2 Dealing with disputes

Division 2 Dealing with disputes

Subdivision A Model term about dealing with disputes

6.01 Model term about dealing with disputes

For section 737 of the Act, the model term for dealing with disputes for enterprise agreements is set out in Schedule 6.1.

Part 6-3 Extension of National Employment Standards entitlements

Division 2 Extension of entitlement to unpaid parental leave and related entitlements

6.02 Modification of meaning of base rate of pay for pieceworkers (non-national system employees)

(1) For section 16 of the Act, as modified by section 749 of the Act, this regulation provides for the determination of the base rate of pay for the purposes of the extended parental leave provisions for a non-national system employee who is a pieceworker.

Note 1 Section 749 of the Act modifies section 16 of the Act by giving it effect as if a paragraph 16 (2) (d) were added.

Note 2 The Act defines pieceworker in section 21. The effect of section 21 is modified for a non-national system employees by section 754 of the Act.

(2) The base rate of pay, expressed as an hourly rate of pay, is the rate provided in, or calculated in accordance with, a State industrial instrument that applies to the employee.

(3) If there is no rate provided in, or calculated in accordance with, a State industrial instrument that applies to the employee, the base rate of pay, expressed as an hourly rate of pay, is worked out using the formula:

where:

TA is the total amount earned by the employee during the relevant period.

TH is the total hours worked by the employee during the relevant period.

the relevant period is:

(b) for an employee who was continuously employed by the employer for a period less than 12 months immediately before the base rate of pay is to be worked out — that period.

6.03 Meaning of pieceworker

(1) For section 21 of the Act, as modified by section 754 of the Act, this regulation prescribes a class of non-national system employees as pieceworkers.

Note Section 754 of the Act modifies section 21 by giving it effect as if a paragraph 21 (1) (d) were added.

Under the new paragraph 21 (1) (d), a pieceworker is a non-national system employee who is in a class of employees prescribed by the regulations as pieceworkers.

(2) The class is non-national system employees who: